*1
(9th Cir.2005).
Sanders,
the record materially different imposed have
would known that the Sentenc- had she
sentence than advisory rather
ing Guidelines were sentencing hearing on
mandatory. At the 14, 2004, the district court indicat-
October CENTER, INC., by the Sentenc- that it was constrained ECOLOGY ed Guidelines, Plaintiff-Appellant, are un- stating “[w]e ing law I have to follow the der the law and observing that “[i]t After guidelines.” AUSTIN, capaci Deborah her official to me that 46 to 57 months
does seem ty Supervisor as Forest for the Lolo court sentenced high,” the district pretty Forest; Bradley Powell, Re National months, Sahanaja which is the low to “46 gional Region One of the Forester giving an alter- asked about end.” When service; united states for U.S. Forest that the Sen- sentence in the event native Service, agency an De est U.S. found to uncon- tencing were Guidelines Agriculture, partment Defendants- stitutional, declined to do the district court Appellees, so, explaining, sen- Generally, give I do alternative County; Superior; Mineral Town of St. guidelines if the entire schematic tences 6; Regis Superior District No. School guеss I I is found unconstitutional. 3; District No. Montana Coali School num- crunching so have been involved Counties; Tim Tricon tion Of Forest that I haven’t and KOH and GHB bers ber, Defendant-Intervenors-Appellees. ap- would be really thought about what I in this case. propriate punishment No. 03-35995. this, doing considered it to some Appeals, United States Court do constrain guidelines extent but the Ninth Circuit. dramatically. one day, following In a minute order issued 14, 2005. Feb. Argued Submitted formally gov- the district court denied Filed Dec. an alternative sen- request for ernment’s tence, that indeter- stating, the event- “[i]n reinstated, the Court sentencing
minate at that time.”
will consider it
However, possi- a limited remand is judge case because the district
ble Sahanaja has retired. Un-
who sentenced circumstances, original “the sen- these
der and the case re- should be vacated
tence resentencing hearing.”
manded for a full *2 FedAppx.
See also 82 *4 Defense, Woodbury,
Thomas J. Forest Missoula, MT, P.C., plaintiff-appel- for the lant. Avila, Spritzer,
Aaron P. Ronald M. De- Justice, D.C., partment Washington, defendants-appellees. detail, including ered four alternatives .in July “no action alternative.” In a slightly Forest Service selected modified McKEOWN, FLETCHER, version of “Alternative Number Five” for B. Before: involves, GOULD, Project. This alternative in- Judges. Circuit alia, commercial of small di- thinning ter FLETCHER, Judge. B. Circuit BETTY prescribed burning ameter timber and Center”) stands, Center, old-growth forest as well as sal- (“Ecology Inc. Ecology vage logging of burned and insect killed Forest the United States Ser- challenges “Service”) (“Forest Lolo timber various areas of the forest. Service” vice’s (“Pro- Project Burn Forest Post National 7, 2003, February Ecology On Center in the after- designed ject”), which raising claims complaint, filed its several the Lolo 2000 wildfires on math of the under NEPA and NFMA. Center (“LNF”). Ecology Cen- National objects to the Forest Service’s decision to procedural number of ter raises a permit logging old-growth commercial En- under the National claims substantive stands, raising forest concerns about the (“NEPA”) Policy Act and the vironmental impact logging viability of such on the *5 Act Management Forest National dependent upon that are old- species (“NFMA”). jurisdiction pursuant haveWe habitat, pileated growth such as wood- find that § 1291. Because we to 28 U.S.C. pecker goshawk. and the northern Simi- log- permit decision to the Forest Service’s questions the larly, Ecology Center Ser- post- old-growth forest ging critical analysis salvage logging of impact vice’s capricious, fire habitats was habitat, respect post-fire particularly with summary judg- grant of we reverse the a woodpecker, to the sensi- black-backed and remand. ment to the Service species. Ecology Center also raises tive impact of the Pro- concerns-regarding I ject questions on conditions and soil , anal- reliability quality soil 2000, Service’s approximately burned In wildfires ysis. 74,000 the Lolo National Forest. acres on caused considerable dam- the fires
While temporary moved for a Ecology Center forest, they created habitat to the also age injunc- restraining preliminary order and dependent upon'post- that are species for tion, court de- of which the district both habitats, the black-backed fire such as filed cross-motions parties nied. The then woodpecker. 4, judgment. November summary for On 2003, fires, court struck extra-record the Forest the district In to the 2000 response had in- Center developing the Lolo Nation- declarations began granted motion and sum- Project cluded with its preparing Burn al Forest Post the Forest Ser- mary judgment in favor of Impact State- requisite Environmental (“EIS”). consid- vice.1 ment The Forest Service analysis respect to its separate Sierra Club Forest Service with proceedings, In
1. Project’s impact areas. on unroaded challenged project at issue here. the same disposition decided December favor of the Sierra memorandum court ruled in district 2, 2003, court on both we reversed the district Service was re- Club’s claim that the Forest the Forest Service’s claims: we found that quired how sediment af- to determine much Project’s effect water imple- assessment of could before fected streams assimilate NEPA, its quality satisfied but that menting Project, favor of the but ruled in 1062 adopt regulations specifying guide-
II viee lines for the achievement of NFMA’s sub- a record review “Because this is stantive mandates. 16 U.S.C. case, summary judg may direct § 1604(g)(3). party granted to either based ment be of the administra upon our de novo review uses, “In providing multiple for Powell, Lands Council v.
tive record.”
(9th Cir.2004),
738,
plan
comply
forest
must
743
amended
substantive
379 F.3d
(9th Cir.2005). Our re
by
take
notice of the Sieira Club settle-
agreement,
supple-
scope
Project,
party argues
ment
and for leave to file
neither
explain-
Ecology
mental information and declarations
claims
Center's
are moot.
processes
Habitat
or “historic”
it is intended
“Treatment” Old-Growth
A.
of
mimic.
Project
involves what
the Forest
. as
rehabilitative
characterizes
1. NFMA
(and potential
old-growth
of
“treatment”
Ecology
While
Center
does
stands;
this treatment
forest
old-growth)
proof
proposed
offer
treatment
old-growth stands
thinning
of
entails
fears,
causes
harms
the Service does
prescribed
logging
commercial
via
proof
proposed
offer
treat
a num-
burning. The Forest Service cites
ment benefits —or at
least does not
of studies that indicate such treatment
ber
dependent
species.
old-growth
harm —
uncharacteristic
necessary
to correct
Ecology
argues
Center
that because the
years
from
development resulting
forest
Forest Service has not assessed the effects
points
also
suppression.
fire
The Service
old-growth
dependent spe
treatment on
designed to
out that the treatment is
leave
cies,
reasonably
the Service cannot be
cer
old-growth
of the desirable
trees
most
treating old-growth
tain that
consistent
improve
and to
their health.
place
with NFMA’s -substantive mandate to en
species diversity
viability.
sure
As a
the scientific
Ecology
highlights
Center
result, especially given the scientific uncer
the ne-
uncertainty
regarding
and debate
tainty surrounding the treatment of old-
cessity, design,
long-term
effects of
stands,
growth
the Forest Service’s deci
old-growth
particular,
treatment.
such
old-growth
sion to treat additional
stands
Ecology
alleges that the treatment
Center
capricious.
species that are
old-growth
forest harms
upon old-growth
For
dependent
Although
points
habitat..
the Forest
to a
that,
claims
even
example,
Center
report
species
which notes that
two
old-growth
if treatment
leaves most
trees woodpecker
foraging
observed
were
it removes or alters other essen-
place,
forest, it
old-growth
treated
does not oth-
habitat and
old-growth
tial elements within
dispute
charge
that it has not
erwise
currently nesting or
species
disturbs bird
directly
treating
impact
monitored
Al-
foraging
targeted
within
stands.2
Instead,
old-growth
dependent species.
*7
though
may
designed
treatment
to re-
the Service maintains-that
it need not do
conditions,”
old-growth to “historic
(1)
store
so because
it has observed the short-
points
Center
out this can be a
thinning old-growth
term effects
stands
of
misleading concept:
example,
for
informa-
logging
prescribed
via commercial
and
(2)
regarding
conditions
incom-
tion
historic
is
it has
burning
composition,
on forest
plete; altering particular sections of forest
old-growth
reason to
that certain
believe
in order to achieve “historic” conditions
dependent species
prefer
post-
would
the
may
old-growth
not make sense when the forest as
composition
a
forest
treatment
and-(3)
stands,
already
fundamentally
has
been
assumption
whole
its
that treat-
changed; many
old-growth dependent
variables can affect treat- ment does not harm
outcomes;
The Ser-
process
species
ment
and the treatment
is therefore reasonable.
that we must defer to
qualitatively
argues
different from the “natural”
vice further
is
proposed
example,
pileated woodpecker
edges
danger,
the
is
it believes
For
measures,”
snags
"snag mitigation
with
dependent upon old-growth
(standing
combined
trees),
snag-creation during
pre-
potential for
dead
but
treatment
involves timber
potential
burning process, will offset most of
harvesting,
for
scribed
which "creates the
by logging.
snag
Although
snag
loss.”
Service acknowl-
loss caused
argues that under Inland
what
The Service
regarding
choices
methodological
its
v. U.S. For-
Empire Public Lands Council
impact of
to assess the
to monitor and how
(9th
Serv.,
Cir.1996), we
the Service’s NEPA 2. un- treating old-growth inadequate to be der NEPA.4 any
“The EIS did address uncertainties meaningful way various Harvesting B. Blaclc- Salvage upon evidence” surrounding the scientific Woodpecker Backed Habitat the Lolo Na the decision to treat which designated The Forest Service has rests. Seattle old-growth tional Forest woodpecker black-backed as a “sensitive Soc’y Espy, Audubon Cir.1993). viability a species,” species a for which Although the EIS identifies impact woodpecker’s concern.' The black-backed regarding concerns public’s particu- species viability as is sensitive because it is dependent of treatment issues,3 larly dependent upon post-fire landscapes, “driving” the EIS does “key” or fire-suppression and the combination of ef- actually any detail the bases explain concerns, past salvage logging forts and has drasti- much less address of those cally post-fire reduced the amount of habi- (finding id. NEPA violation them. Cf. EIS, to this According “[d]ue “to include a tat. to the Forest Service failed where habitat, black-backed wood- uncertainty” reduсtion full discussion of the scientific relatively being from abun- maintaining peckers for went surrounding strategy its relatively rare.” To make matters dant to viability). owl The EIS discusses spotted fuels, understory adversely affect al could EIS entitled "Issue De- 3. In a section of the Threatened, ”[p]otential velopment,” Endangered Spe- Proposed, the Service describes issues,” Sensitive, Threatened, are "defined as actual and which or En- cies and listed effects, risks, perceived and hazards of the dangered Species present ... known to be Proposed Issues were identified Action.” analysis potential to the or to be within internally through “public both involve- area. part, the EIS states: ment.” In relevant that the reduction of There is concern challeng- also raises claims Center canopy density closure and stand caused Project’s ing im- the Service’s reduction activities and commercial fuels dependent pact specific old-growth on two thinning may adversely affect habitat pileated woodpecker species, dependent species are several bird goshawk. we find that the northern Because dry upon forests with late-successional *9 old-growth to treat violates Service’s decision canopies high closed basal area. NEPA, these we do not reach both NFMA more narrow claims. that the ... commercial There is a concern trees, thinning and the remov- of unburned conditions, worse, they salvag- two believed that all fires create black-backed habitat, ... of ing likely burned stands “would not cause a loss woodpecker and the it only viability population,” though even qualify that do serve as black-backed “may impact a number individuals or habitat.” woodpecker habitat for limited result, post-fire new habi- years. of As a EIS, appears From the that at the continuously generated. tat must be Project developed, was time the was there 19,219 the Forest a total of acres of black-backed Ecology Center and fires, in Lolo National agree prior woodpecker that to the 2000 there habitat shortage a of black-backed Forest: there were 9349 acres that were critical Specifically, by pre-2000 habitat. created fires and were less woodpecker Ser- old, years plus estimated that from 1993 to fires than five 9870 acres of vice 11,045 post-fire habitat that were created the 2000 fries. created a total of acres (9160 acres, of those acres were burned in Of those 9100 are located habitat alone). Project alternative This total was estimated to area. The selected originally proposed salvage harvesting of what would been created be 6% have However, historically comparable six-year pe- over a 1020 of those acres. the Record level, riod. At that the Service considered of Decision reduced that amount to 815 woodpecker and other the black-backed acres.5
post-fire dependent species habitat to be The Forest Service maintains that the “at risk.” extreme Project complies with NFMA because the
Writing large poten- 2000 about 2000 fries a amount of November created habitat, woodpeckers,” only tial portion [on] “effect black-backed small will explained: salvaged. points be further Forest Service scientists “We any Project mitigation that out that salvage post- concluded includes designed on the Lolo Forest] fire habitat measures minimize the ad- [National However, impact ... ‘will or impact salvaging.6 individuals habitat and verse consequence may salvage with a the action has also indicated that “[Research logging, large snags contribute to a trend towards federal even when numbers of list- left, ing viability species.” or cause a loss of to the are is detrimental to this ” study population species.’ They explained example, For one “found black- (less acres) woodpeckers that a small amount than 400 backed did not nest in areas salvage permitted, only lightly salvaged.” could but were considered if addition, Project’s mitigation there was “a commitment to creation of measures equal of an post-fire provide equal habitat amount” do not for the creation of an through prescribed post-fire fires. Under those amount of habitat elsewhere.7 7.Although aspects Project 5. The Sierra Club settlement further reduced other in- prescribed burning, pre- that amount to 155 acres. volve "the Lolo program scribed fire has not demonstrated an ability large post-fire amounts of to recruit example, Project provides 6. For that no habitat, although improving there is an trend harvesting will wherever occur black-backed located; prescribed in 1997-98.” Most kinds of burn- woodpecker spring, are each nests necessary post-fire ing do create the habi- harvesting actually begins, targeted before tat; only higher-intensity post-fire fires create re-surveyed stands will be for black-baclced nests, habitat. There is no indication that the kind woodpecker loggers be in- will prescribed burning Project preserve any that the entails identified trees structed nest designed woodpeck- patches surrounding as well as reserve to create black-backed nesting trees. er habitat.
1067 longer critically the habitat level is no low 1. NEPA previously prescribed that the restric- and adequately explain to The EIS fails no salvaging longer tions on should be Service’s conclu for the Forest the basis reasonably To certain that enforced.9 be new eliminating portion a of the that sion post-Project levels be habitat would adversely affect will not ly-created habitat species viability, sufficient to ensure one viability. woodpeckers’ the black-backed the threshold must know wherе between fires, post- amount of the 2000 Prior to “critical” and “sufficient” levels of burned the black- so low fire habitat was does not habitat lies. Because EIS post-fire woodpecker and other backed is, disclose what this threshold much less were deemed at dependent species habitat determined, explain how the threshold was risk,” experts “extreme cannot we evaluate the Service’s decision. “salvage any post-fire of concluded Indeed, cannot certain that the we even be impact ... ... individuals habitat would Service determined considered this that the consequence ... a or habitat making factor when its assessment. towards may contribute to a trend action viability a of to listing or cause loss federal Similarly, the EIS does not indi Yet, the Pro species.”8 or population much further habitat levels have cate how meaningful ex ject states —without EIS species downgraded before the drop to salvaging though planation even —that to or how the from sensitive threatened may negatively impact in post-fire habitat plans generate additional black- woodpeckers, it will black-backed dividuаl woodpecker backed to counter-bal habitat feder likely result a trend towards “not salvaging, passage from of ance losses this, more, general listing.” al Without time, ongoing fire-suppression efforts. impact regarding possible statement Where, here, “the information in the as a not constitute “do[es] and risk involved incomplete misleading ... EIS was so justification regarding absent a ‘hard look’ public decisionmaker and the information could not why more definitive comparison of could not make an informed Cuddy Moun provided.” Neighbors be alternatives., may of an revision EIS be 1380; tain, 40 C.F.R. 137 F.3d reasonable, necessary provide good ‘a § that the “shall be 1502.1(providing EIS faith, objective presentation of the ” by agency that the has supported evidence subjects required by NEPA.’ Animal analy- necessary environmental made the Hodel, 1432, 840 F.2d Council Def. ses”). Cir.1988) Davis, (9th Johnston v. (quoting (10th Cir.1983)), 1088, 1095 only one 698 F.2d can from the EIS We discern (9th Cir.1989); by amended changed for the Service’s possible basis Thomas, Cong. v. Sporting Idaho impact salvaging: see also assessment of the Cir.1998) (“[Al F.3d fires created additional fact that the 2000 rely expert habitat, lowing the Forest Service which raised the total post-fire a However, data either vitiates opinion without hard post-fire habitat. amount challenge agency an ability to plaintiffs this fact alone that cannot conclude from above, Service considered the experts 9. We note that the these concluded 8. As noted 11,045 post-fire tolerated, habitat acres of creation salvaging but that some could (6% critically six-year period low a to be over mitigat- only limited to a small amount and if thus, rate); the creation of historic equal post- ed the creation of an amount 19,219 period comparable does acres over elsewhere. fire habitat increase. necessarily represent a sufficient *11 action or in the courts second Because the Forest results Service failed to provide the factual basis for its guessing agency’s an scientific conclusions. adequately to explain failed its deci- unacceptable, are As both of these results sion, reasonably we cannot be certain that requires that we conclude that NEPA salvaging the Service-concedes —which public underlying environmen- receive may hаrm individual black-backed wood- tal data from which a Forest Service ex- peckers jeopardize the black- —will pert opinion.”). derived her woodpeckers’ viability. backed Native Cf. Thus, Serv., that the Ecosystems we hold Forest Service Council v. U.S. Forest (9th 953, Cir.2005) (finding adequately explain failed to its im- either NFMA violation where “we cannot reason- pact provide the information assessment ably determine that the Forest Service has necessary that is to understand and evalu- Plan”). complied with the [Forest] We permit ate the decision to Forest Service’s therefore hold that salvage the decision to salvaging woodpeck- of the black-backed woodpecker harvest black-backed habitat habitat, ers’ rare in violation of NEPA. is also and capricious under NFMA. 2. NFMA Soil-Quality Analysis C. designation species of a as Ecology challenges next Center the For- sensitive arises from the Forest Service’s quality analysis. est Service’s soil Under obligations NFMA. under Pursuant to 16 applicable Regional Quality Soil Stan- § 1604(g)(3)(B), U.S.C. the Forest Service dard, the Forest Service cannot allow an required “provide diversity to for activity that wоuld create detrimental soil plant animal communities.” The For percent activity conditions fifteen duty popu est Service’s to maintain viable area.10 Center claims that “applies special lations with force to ‘sensi methodology the Forest Service used to species.” tive’ Friends the Clearwater percentage what of soil is in a determine Dombeck, 556 n. 2 F.3d activity detrimental state each area was Cir.2000) (citation omitted). quotation insufficiently reliable because the Service requires, The Lolo National Forest Plan estimated soil conditions on the basis of specifically,
more that the Forest Service maps, samples throughout from the For- “manage population viability” to maintain est, reconnaissance, aerial computer plant species and animal “that are not modeling, verify but did not those esti- endangered, threatened or but where via by directly observing mates soil conditions (ie., bility species).” is a concern activity sensitive in the areas.11 roads, "activity (e.gtimber 10. An area” a unit harvesting), jammer of forest in fire- activity, salvage lines, trails, an which in this case harvest- high and skid as well as areas of ing, Project place; proposes is to take severity overlap proposed soil burn ac- harvesting approximately 128 different ac- addition, tivity input areas. the Service tivity "cutting Regional areas or units.” The Systems Inventory data from Land Quality provides Soil Standard further that if ("LSI”) Emergency and the Burned Area Re- percent activity fifteen or more of the area ("BAER Report Report”) habilitation into conditions, already has detrimental soil then generate project's models estimates of the Project permitted will not be to make it possible Report effects. The BAER was based Rather, Project worse. should then aim helicopter flyovers, on field reviews and as improve the soil conditions. (an surveys” approved well as "transect meth- observations). od of field The LSI and BAER Specifically, maps the Service looked Report purpose data collected for the damaging past determine where activities claim, because, from nearly guishable identical Lands Council addressed We Quality Regional notwithstanding *12 the same Soil the involving non-binding nature of Standard, Lands Standard, in Lands Council.12 Seе complet- the the Forest Service case, Council, In that F.3d at 752-53. 379 on-the-ground ed sufficient verification of throughout the samples from “based on quality its soil estimates. We address Forest, the Forest photographs, and aerial in argument each turn.13 in the soils quality the Service estimated mod- Project using spreadsheet area a
the
Regional
Quality
1. The
Soil
Standard
the
at 752. We held that
el.” Id.
“Forest
argues
The Forest
that
Service
mod-
spreadsheet
reliance
the
Service’s
is not
it was
binding
the Standard
because
els,
by
spot
unaccompanied
on-site
verifi-
incorporated
never
into the Lolo National
predictions, violated
of the model’s
cation
Plan,
although
incorpo
Forest
and
it was
holding,
In
Id. at 752-53.
so
NFMA.”
Manual,
into the Forest
this
rated
Service
district
analysis
the
of an earlier
relied on
held that
court has
the Forest Service
case,
Range
Kettle
Conservation
court
independent
Manual does
have the
Serv.,
F.Supp.2d
v.
Forest
148
Group U.S.
force and effect of
Radio
law. Western
(E.D.Wash.2001),
Forest
where the
1107
896,
Espy,
Servs. Co.
79 F.3d
Service,
gen-
on assumptions [from
“based
Cir.1996).
soils], geological
the
eral data from
Forest
аssuming, arguendo,
Even
that
the
...
maps,
photographs,
and aerial
estimat-
unit,
to
independent
ed
of each
tried
does
have the
the condition
Standard
which units
exceed estab-
might
respect
determine
and effect of
with
to the
force
law
standards,
projected potassium
Forest,
lished
National
it
nonetheless
Lolo
would
original).
in
(emphasis
Id. at 1127
levels.”
capricious
for the Forest
be
ignore
to
the draft
Service
because both
case,
methodologies
in this
Although
final EIS
as
EIS and
discuss the Standard
Council,
Range
ap-
all
Lands
Kettle
binding
if it is
claim that the Service
pear
from
critical de-
to suffer
the same
Project
developed
compliance
with
fect,
that Lands
argues
the Forest Service
Thus,
if we were to
provisions.
its
even
Specifical-
is not
here.
controlling
Council
merely
adviso
agree that
Standard is
ly,
argues
Regional
the Service
that
compelled
would then
to find
ry, we
Quality
binding with
Soil
Standard is not
are mis
that the draft EIS and final EIS
projects
Lolo National
respect
addition,
in violation
See Re
leading
of NEPA.
the Forest Service
Forest.
Robertson,
factually
Ltd. v.
35 F.3d
that
this case
distin-
sources
argues
expertise,
compliance
Regional
required
agency
determining
defer to
with the
court is
rely
Project
permitted
adopt and
Quality
agency
Standards.
is not
Soil
Because
reasonably
developed
methodology
sur-
veri-
upon
after
BAER transect
a
without
conducted,
Council,
reliability.
veys
fying
were
transects did not
its
Lands
areas;
Service,
activity
752("The
majority
appropri-
granted
cover the vast
of the
Forest
deference,
only
by
were crossed
a few
coincidence.
demonstrate the
ate
still does not
reliability
spread sheet mod-
required
Moreover,
el.”)
case,
Lands
was decided after
one of
Forest
12. Because
Council
this
briefing,
briefing.
experts,
supplemental
Region
we ordered
Scientist John
Service's own
Nesser,
analy-
soil
called
Forest Service's
argu-
question
failed to assess
its
sis into
because it
13. The Forest
also reiterates
testing the actual ac-
court
its choice
conditions
field
ment that this
must defer to
soil
methodology
tivity
ex-
areas—the exact reason
Lands
and reliance on its own
method-
argument
deemed the Forest Service’s
perts. This
for the same
Council
fails here
inadequatе.
although
ology
did in Lands
reason it
Council:
(9th Cir.1994)
Second,
(rejecting
1304 n.
the ar-
argues
Forest Service
its soil
gument
sufficiently
that the Forest Service could treat
nonetheless
because it
reliable
utilized data from areas
Interagency Grizzly
Bear
as
Guidelines
ecological
characteristics similar to
Fish and
optional where the
Wildlife Ser-
the proposed harvest units. Lands Coun-
jeopardy”
vice made its “no
conclusion
rejected
expressly
argument.
cil
this same
contingent on adherence to the Guide-
(“The
Id.
concedes that it
lines);
Animal
840 F.2d at
Def.
area,
activity
did not test much of the
but
(noting
misleading
EIS violates
*13
argues that
it
because
tested similar soils
NEPA). Moreover,
purpose
the
of the
Forest,
within the
and similar soils act the
compliance
to
Standard is
ensure
with the
way,
same
then
methodology
the
is
substantive mandates of NFMA. The For-
sound.”).
We note
comments on the
explain
est
it can
Service does
how
Project by
expert
the Service’s own
sup-
Project
certain that
the
complies with
port
holding: Region
Scientist Nesser
Project
NFMA if
in
developed
the
was not
argued that
the Service’s conclusions re-
accordance with the Standard.
in
garding
activity
soil conditions
areas
were “not credible” because the Service
2. On-Site
Soil Condi-
Verification of
themselves,
activity
did not test the
areas
tions
requires.15
as the Standard
First,
points
the Service
to the
Third, the
points
Service
to some infor-
during
transects it conducted
BAER
reports
record,
mal field
contained
assessment of the 2000 fires’ aftermath.
some of which
that a
per-
indicate
small
However, during
Project
development,
centage
activity
of the
areas were ob-
experts pointed
one of the Service’s own
directly.16
provides
served
The record
lit-
targeted
out that the transects
burned ar
tle information that enables us to assess
eas,
units;
not proposed harvest
as a re
reliability
significance
of these re-
sult,
activity
most of the
areas were not
ports;
example,
we do not know the
Thus,
transected.14
BAER
transects
qualifications
persons
conducting
distinguish
do not
this case from Lands
review,
utilized,
the field
methodology
Council, where the
similarly
“did or whether
the field observations con-
activity
not test much of the
area.” Lands
firmed or contradicted the Service's esti-
379 F.3d at
by
Moreover,
as amended
mates.
the final
repeated-
EIS
Finally,
Ill
verify soil conditions
plan the Service’s
authorizing the
activity
after
in the
areas
of Modi-
The Forest
selection
Service’s
actually commencing
Project, but before
Lolo
Number 5 for the
fied Alternative
*14
activities,
and
harvesting
satisfies NFMA
Project
Post-Burn
vio-
National Forest
to
plans
The
that the
fact
NEPA.
and NFMA.
reverse
lates both NEPA
We
prior
any
to
on-site verification
conduct
summary
judgment
the district court’s
implies
even the Service
harvesting
that
Service,
the
and direct the
favor of
Forest
soil-quality
its
estimates
recognizes
summary judgment
court
district
to enter
Thus,
conclude
to be verified.
we
need
Center.
remand
on behalf of
We
to au
Forest
decision
Service’s
for further
this case to the Forest Service
verify
later
Project
first
thorize
consistent,
opinion.18
with this
proceedings
this case from Lands
distinguish
does
and REMANDED.
REVERSED
Project violates
the Ser
conclude that
NFMA. We also
McKEOWN,
Judge, dissenting:
Circuit
post-
verify
to
its estimates
plan
vice’s
Circuit, like
cir-
Ninth
the other
The
NEPA,
satisfy
fails
because
decision
cuits,
mantras
frequently
legal
po
of the
requires
repeats
consideration
“NEPA
of
review the context
of administrative
action
the action
impact of an
tential
before
“arbitrary and
environmental decisions:
Moun
Neighbors
Cuddy
place.”
takes
of
look,”
second
and “no
tain,
capricious,”
Te
“hard
1380(quoting City
137 F.3d at
of
1308,
easy to
These standards are
guessing.”1
915 F.2d
Springs
Clough,
v.
nakee
evidentiary
issue:
We do not reach
explains
18.
''[w]alk
final EIS
that a
17. The
discre-
abused its
through
proposed
and burn
whether-the district
harvest
court
expert dec-
.imple-
excluding the extra-record
prior
completed
will be
to the
tion.in
units
that,
in the
of
disturbing
We note
course
any ground
of
activities
larations.
mentation
remand,
preparation
EIS
activity
through
of a new
The walk
will
in the
units.
any
may
parties
the declarations
identify
percent
the activ-
submit
occurrence
of
as
included
compac-
relevant information
rutting,
other
ity
displacement,
area with
tion,
part of the
record.
high
severity, depth
organic mat-
administrative
burn
of
ter,
slumping.” (emphasis
pedestaling, and
See,
Cuddy
v.
added).
e.g., Neighbors
Mountain
Similarly, throughout
discussion
its
1372,
(9th
Serv.,
F.3d
1376
repeatedly
Forest
137
Project's impacts, the
U.S.
EIS
1998)
Ser
(noting that we review Forest
verify”
it
Cir.
that it
conclusions
*15
where we sit at the table with Forest
does record review mean that'we abdicate
Service scientists
second-guess
and
the mi-
obligation
our
agency’s
scrutinize the
nutiae of the decisionmaking process.
data,
underlying
assumptions, and conclu-
court,
sions. As a reviewing
play
we
My
concern is perhaps best illustrated in
critical role in
process
the review
and we
majority’s
the
application of Lands Coun-
been,
have not
shy in letting the U.S. For-
cil to the
quality
soil
analysis issue.
In
est Service know where it has
Council,
fallen short Lands
we addressed the Forest
as a matter of law
process.2 However,
analysis
Service’s
of disturbed soil condi-
the majority’s extension of Lands Council
in
tions
a watershed restoration
in
project
Powell,
(9th
v.
Cir.2004),
projects); Sporting Cong., Idaho Inc. v. Thom was capricious, and violated as, 1146, (9th Cir.1998) 137 F.3d (noting NEPA, because it was based on a clear misin- that courts should guess not "second an [] terpretation of data on markеt demand for the agency’s and, scientific conclusions” for that timber); Thomas, Sporting Cong. Idaho reason, requiring hard discourage data to sec F.3d at 1154(holding that a Forest Service guessing). ond plan violated NEPA because it had failed to take a "hard look” at the environmental ef- e.g. See Natural Res. Council v. U.S. Def. sale). proposed fects of the timber Serv., (2005) (hold- Forest quali- Council, rejected being poor too few of the For- them for we Lands characterization, methodolo- ty.3 Resting choice of scientific on this Service’s the est test soil in not walk or because did gy rejects Forest majority- Service’s soil Id. We concluded activity area. analysis ground “nearly on the that it was reliance on the Service’s the “Forest lacking to the in identical” one we found models, unaccompanied on- spreadsheet Lands Council. predic- of the model’s spot verification site compliance Council makes Lands with
tions, Id. at 1035. Given NFMA.” violated moving target. and NEPA a If NFMA in record and circumstances specific Lands to require one reads Council on-site may this resolution have Lands case, every analysis respeсtfully in which I abstract, But in the perfect made sense. case, suggest over-reading an compare the record ability without here, comply Council the record circumstances here with dic- Lands legal to conclude says, there is no basis majority tate. Yet the now without analysis where requires NFMA an on-site in the a chal- support record absent basis to there a reasonable scientific lenge the adminis- by Ecology Center at modeling. uphold legitimacy level, analysis trative that the on-site impose this substantive NFMA does not possess and that we do not insufficient and it cannot derived from requirement, if inspec- information to know the enough parameters of NEPA. procedural judgment, qualified. tors From this were only left conclude that not does are of Lands Council makes Application rules, appeals bright-line set court Here, specific in this case. even less sense on-site, requiring such an walk the ter- as exactly Service conducted ritory inspection, it also assesses the but lacking in analyses kind on-site found quality of that detail and —even samples activity Council—soil Lands contrary scientific evidence absence activity lists five areas areas. The record *16 page after of the Page the record. sample in soil transects de- surveyed analysis, on field record contains details walkthrough of number of activ- tails the representative sam- following such as the ity majority concedes that areas. form: ple criticizes of an evaluation analyses these on-site exist but reports; ... we do not (finding these know Op. at n. 11 the Forest canee of 3. See persons conducting qualifications soil "did not cover vast Service's transects areas; review, methodology activity only uti- majority a few were field see, ...”). coincidence”); joke, paraphrase To an old e.g., lized. id. crossed (“The por- and the provides majority found the food terrible little information that record signifi- reliability tions small. us to assess enables view, In my it is not our role to criticize pass scramble and judgment on the inves- because, this evaluation for example, tigator’s notes, field as in following form does not list the qualifica- evaluator’s excerpt, which are summarized and inte- tions. Nor are we in a position grated to un- into the FEIS: *17 beyond analyses quality on-site soil а credible vice’s Ecology
Had Center offered arbitrary capricious methodology traditional critique of scientific standard; verify that for to deter- asks us to only some other basis us provided judg- That sampling. mine whether the Forest Service’s such on-site there is an we capricious, ment was four times that the opinion stated just But position. be in a would different on-site any to conduct had failed our supposed substitute as we are say that the analysis did—it Service, of the Forest judgment enough of them.4 to conduct failed rely can on-in the absence neither soil “on-site majority now extends arguments Center’s doctrine, by Lands analysis” initiated evidence— filed expert or in its declaration its briefs abandoning reasoning. its while process. review the administrative plausibly Although after could on-site *18 to be a as in such manner to be conducted not us Council does direct Lands majority’s arbitrary capricious, the and sufficiency of the Forest Ser- the assess models, by spot verifi- 1034(''The unaccompanied on-site did not id. at Forest Service 4. See NFMA.”); ..., (The walk, test, "soils activity id. cation violated the land in the much less entirely with ("The area.”); analysis was on the model predictions of the based id. at 1035 ....”) (emphasis add- inspection on the no on-site ... not verified with model were ("[T]he ed). spreadsheet analysis.”); id. ground 1076
justification project finding supported by to data. for this be observational There is evidence, capricious imports bright- a record based on direct observa- analysis tion, line rule individualized where is produces treatment and pre- appropriate. serves habitat for old-growth dependent species.5
More in Council importantly, Lands we did purport general to create a rule majority The applies Lands Council to requiring verification for all scienti- on-site prohibit the Forest from inferring Service fic hypotheses adopted by the Forest Ser- simply treating old-growth that because regardless vice of context. We did not preserves creates for dependent habitat even rule all adopt requiring analy- a soil species does mean that such treatment by ses to sampling. be verified on-site will species. Op. not harm the at specific Our the decision was to facts of (claiming just Forest Service “as- Council, that case. Lands See F.3d at species’ viability sumes that a is main- (“Under the circumstances this long requisite tained so as the amount of case, ... the Forest Service’s methodolo- maintained”). species habitat In reliable, gy, to required hy- conclusion, reaching majority ac- pothesis prediction of the model be knowledges and then dismisses without ex- observation.”) (emphasis verified with add- planation very says record evidence it ed). the Forest failed to provide here, Service — Nevertheless, generalizes the majority direct species observation certain seen hypothesis” principle “unverified artic- old-growth in foraging after areas treat- ulated in beyond Lands Council the soil ment.6 to findings context other scientific by made In doing, the Forest Service. so Applying Lands Council the old- majority dangers growth demonstrates the is inappropriate yet issue for an- extending a panel reference —abstracted from a other The reason. assumes that Al- single, technically detailed, fact-specific de- ternative which thinning, involves sal- cision—to factual vage, disrupts unrelated contexts. For and regeneration, a stable example, claim, regаrding old-growth quo “through process.” status an invasive the majority Op. reverses the Forest at Yet quo any- Service’s 1064. the status judgment “[hjere, because in thing as Lands but pres- stable. The Forest Service Council, Forest Service’s conclusion ents uncontested evidence that the failure that treating old-growth forest is old-growth beneficial treat risks the very areas to dependent species Center, is predicated on an harms feared even hypothesis.” unverified at Op. though 16039. provided has no evidence to sup- is, The hypothesis however, port Service Op. such a claim. at 1064 (“Ecology report by 5. For a example, proxy population Forest Service for ... trends.” Lands scientists Council, utilized historic and stand structure F.3d Lands plan research to for treatment that would rejected proxy-on-proxy approach for plants species. enhance habitat for measuring population old-growth in trends scientists found that treated have areas nest- forest because habitat data the Forest ing opportunities foraging cavity nest- old, years offered "fifteen ing species pileated woodpeckers. such as estimates, canopy inaccurate closure and in- snags.” majority sufficient data Id. The majority acknowledge 6. The fails to that we identify any “have, cases, problems using does not such appropriate allowed For- proxy-on-proxy approach est studying population avoid this case. [species] by using trends Op. ... habitat as a See at 1064. *19 pro- determining that such is safe that the treatment proof offer does not Center dependent species.” and effective for See the harms' causes treatment posed Op. commenting fears_”). fact, at Without the the record reveals In obvious differences between humans and old-growth treat areas that failure to the (and in fact the im- acknowledging trees loss of old in “considerable could result environment), portance of to our this both predation,” from bark beetle growth trees degree to which analogy underscores the specific risk ... habitat put which “at will majority inserts into the internal itself that are many species for wildlife niches judgments of the Forest Service. The growth open more old- adapted to the process FDA a dictates substantive and Old-grоwth areas “are forest character.” specific action in administrative course of major such as now risk for disturbances require- terms of clinical trials and other high'-se- epidemics and insect and disease as a prelude approval ments to verity fires.” Inaction or replacing stand and drugs medical devices. Neither species Ecology Cen- delay threatens NEPA nor NFMA that function in serve protect. ter to seeks import the environmental context. To Forest Service’s No one contests the FDA notion of clinical trials from the con- “provide will di- conclusion that treatment text to soil in federal forests is a sampling infestation or rect of bark beetle reduction leap too far. Faced with risk infestation.” of future no Apparently longer simply deter- may uncontroverted evidence that inaction mine whether the Forest Service’s meth- areas, majority still old-growth harm odology through involves a “hard look” produce requires the Forest to data,” use are called of “hard but now old-growth treating more evidence fine-grained upon judgments to make its species harm before it dependent will not conclusion, reaching worth. old-growth save will allow Service to firmly majority aim at two estab- takes dangers. areas from Under these other precedent lines of administrative lished agree that circumstances, I cannot First, contrary to law. this view is to decision treat old- Forest Service’s agency de- principle basic we reverse arbitrary capricious. and growth areas was only they arbitrary capri- if are and cisions Indeed, had Forest Service taken the does not cious. This standard of review may well majority’s approach, its decision (or soil, literally dig us to in the dirt direct arbitrary capricious have and been were), fingernails dirty our and get as it aspect “failing] important to consider an analysis. Yet the agency’s flyspeck Council, 395 problem.” See Lands [the] majority exactly by rejecting the does F.3d at 1026. Service’s soil field checks I think it to analo- appropriate Nor do and observations and historical data its process to the gize the Forest Service majority’s old-growth forests. The treated wholly regime separate inapposite be with our rationale cannot reconciled Drug the Fоod and Administration requiring agen- to an law “[d]eference case (“FDA”). majority that “it cy’s experience,” writes expertise technical capricious for be a in- particularly respect questions would “with drug a mat- pharmaceutical company volving engineering to market and scientific Alpine first Land & general population without con- United States v. ters.” Co., 207, Cir. just trial” as the Forest Reservoir ducting clinical 1989). Dist. v. also Westlands Water permitted cannot “treat more See Interior, F.3d Dept. U.S. without first old-growth more forest *20 871(9th Cir.2004) (reversing a district that certain alternatives vio-
court decision inadequate NEPA defer-
lated because agency’s expertise).
ence majority’s analysis
Because cannot squared the deferential review re- us, I
quired respectfully dissent. CAMACHO,
Rita behalf herself similarly situated,
and all others
Plaintiff-Appellee, INC.,
BRIDGEPORT FINANCIAL
Defendant-Appellant,
Ray Lewis, Harbridge, Christina
Defendants.
No. 04-17126. of Appeals,
United Court States
Ninth Circuit.
Argued and Submitted Nov. 12, 2005.
Filed Dec. notes "will APA National having and the regarding vice actions under soil conditions reached they Management if Act to determine re- "qualified specialists” soil conduct "field capricious”); Idaho activity "arbitrary and eval- were units "to proposed views” of the Rittenhouse, F.3d Cong., prior Sporting Inc. percent uate the detrimental condition (9th Cir.2002) 957, (requiring a "hard any ground disturbing activities.” articulate, but is more difficult to know pricious” review for a demanding more when we have standard, crossed the line from re- I respectfully dissent. viewer to case, decisionmaker. In this we project under review is designed to gone have too far. address the aftermath of the Lolo National Forest wildfires in Montana in 2000 As in Neighbors summarized Cuddy through selected thinning of smaller tim- Service, Mountain v. United States Forest ber, timber, salvage prescribed burning Cir.1998), and regeneration of thousands of acres. agency review actions “to determine if The administrative record this case is they were capricious, an abuse huge page 1900+ Final Environmental —a discretion, or not in accordance with Impact (FEIS), Statement 150 detailed law.” The limited nature of inquiry 20,000 maps and pages of background in- underscores the latitude in implementation formation. The majority highlights only and interpretation that Congress intended record, parts of this qualifica- criticizes the agents. for its This latitude does not re- tions of the Forest personnel, Service’s lieve us duty of our to insure that and questions various scientific judgments. agency look,” took a “hard required as In faulting the Forest quality Service’s soil under the National Environmental Policy analysis and concluding that old-growth (“NEPA”), Act or' to insure compliance forest will impaired, not be majority plans with forest under the National For- changes our posture of review to one (“NFMA”). Management est Act Nor