Native Ecosystems Council v. Leslie Weldon
697 F.3d 1043
| 9th Cir. | 2012Background
- Native Ecosystems Council appeals a district court ruling that granted summary judgment to the Forest Service regarding the Ettien Ridge Fuels Reduction Project in the Lewis and Clark National Forest, Montana.
- The Project, approved Sept. 29, 2009, aimed to reduce wildfire risk by understory thinning and burning to protect the Middle Fork Judith Wilderness Study Area and Sapphire Village.
- Native Ecosystems Council challenged NEPA and NFMA findings—FONSI and Decision Notice—alleging failure to consider alternatives, impacts to elk hiding cover and goshawk habitat.
- After an administrative appeal, the Forest Service reduced the Project from 1,655 to 832 acres, cut thinning from 632 to 243 acres, eliminated unroaded land treatments, and reduced temporary roads.
- The Forest Service used an elk hiding cover analysis based on a PI Type methodology and a Montana Rule, relying on a 1982 elk logging study and later revised silvicultural analyses (2009/2010) incorporated into the EA.
- The court addressed both NEPA and NFMA challenges, deferring to the agency’s expertise on scientific judgments and upholding the Forest Service’s compliance with the Forest Plan under NFMA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA: Did Forest Service take a proper hard look at elk hiding cover and related impacts? | Native contends PI Type method is unreliable and understory removal affects hiding cover. | Forest Service reasonably relied on the 1982 elk study, Montana Rule, and updated analyses; deference owed for scientific judgments. | No NEPA violation; methodology and analysis were reasonable and adequately supported. |
| NFMA: Do the logging/thinning, prescribed burning, and cutting/slashing decisions comply with the Forest Plan and affect elk hiding cover? | Project would alter PI Type and elk hiding cover, violating the Forest Plan. | Updated 2009/2010 analyses show no PI Type change and reasonable interpretation of the Forest Plan; deference to agency. | No NFMA violation; Forest Service complied with the Forest Plan. |
| NFMA: Was goshawk monitoring and the “further evaluation” requirement properly applied? | Forest Service failed to monitor 100% of goshawk territories and neglected further evaluation after declines. | Monitoring gaps were not within the Project area; declines attributed to natural variability; further evaluation reasonably conducted. | Forest Service complied with NFMA; further evaluation and monitoring were reasonable. |
Key Cases Cited
- Northern Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) (deference to agency scientific judgments in NEPA review)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008 (en banc)) (deference to agency’s scientific reliability determinations; use of reliable studies)
- Lands Council v. U.S. Forest Serv., 537 F.3d 987 (9th Cir. 2008) (NEPA review tolerates agency’s reliance on its own experts)
- Tri-Valley CAREs v. U.S.D.O.E., 671 F.3d 1113 (9th Cir. 2012) (EA must provide enough information for public to weigh in; not exhaustive)
- Bering Strait Citizens for Responsible Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938 (9th Cir. 2008) (NEPA requires a workable public document with supporting evidence)
- Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) (agency decisions deserve deference in NFMA context; site-specific analysis standards)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (S. Ct. 1989) (NEPA’s purpose to ensure hard look at environmental impacts; deference to agency judgments)