Lands Council v. McNair
629 F.3d 1070
| 9th Cir. | 2010Background
- Mission Brush Project in IPNF aims to thin 277 acres of old-growth by removing understory and fuel ladders to promote stand health.
- Project preserves large trees over 21 inches in diameter and does not harvest old-growth trees.
- IPNF Plan requires about 10% old-growth and management of old-growth dependent species; 40% population potential is a separate objective.
- FIA and updated TSMRS databases provide estimates of old-growth, used to assess compliance with the 10% standard.
- Lands Council and Wild West Institute challenged NFMA, IPNF Plan, and NEPA compliance; district court granted Forest Service summary judgment.
- On appeal, court reviews under APA/ NFMA/NEPA standards and defers to agency expertise in technical determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of challenge to 10% standard | Lands Council exhausted by challenging 10% rule via Lesica study and proxy-on-proxy concerns. | Exhaustion satisfied; general challenge to 10% standard raised below and on appeal. | Exhaustion satisfied; challenge preserved. |
| Validity of relying on 10% old-growth standard from IPNF Plan | Proxy-on-proxy yields too little habitat; 14% implied by Lesica is required. | Agency reasonably relied on 10% standard; 40% population potential is objective, not a fixed requirement. | Forest Service reasonably relied on 10% standard; upheld. |
| Compliance with 10%-old-growth standard using FIA/TSMRS data | FIA/TSMRS data flawed; cannot prove >10% old growth. | Updated FIA/TSMRS data are scientifically sound and support compliance. | Agency reasonably relied on FIA/TSMRS data; compliance shown. |
| Habitat suitability models and proxy-on-proxy methodology | Flammulated owl and other MIS/proxy measures inadequate; flawed habitat viability analysis. | Proxy-on-proxy and site data can demonstrate viability; monitoring difficulties do not invalidate analysis. | Proxy-on-proxy approach accepted; habitat viability analysis sufficient. |
Key Cases Cited
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (challenged TSMSRS accuracy; informs reliance on data)
- Lands Council v. McNair, 494 F.3d 771 (9th Cir. 2007) (injunctions and administrative review under NFMA/NEPA)
- Lands Council v. McNair (en banc), 537 F.3d 981 (9th Cir. 2008) (affirmed denial of injunctive relief; set framework for deference to agency expertise)
- Inland Empire Pub. Lands v. U.S. Forest Serv., 88 F.3d 754 (9th Cir. 1996) (viability analyses may rely on current science and proxies)
- Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006) (arbitrary and capricious review standard; defer to agency expertise)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (plan-level objectives vs. mandatory requirements; viability standards)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (deference to agency scientific judgments when conflicting opinions exist)
- Sausalito v. O'Neill, 386 F.3d 1186 (9th Cir. 2004) (APA review and deference framework for NFMA/NEPA actions)
- Ecology Center v. Castaneda, 574 F.3d 652 (9th Cir. 2009) (Lesica study relevance to viable population standard)