FOREST GUARDIANS and Carson Forest Watch, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.
No. 06-2306.
United States Court of Appeals, Tenth Circuit.
Aug. 26, 2009.
579 F.3d 1114
VI
For the foregoing reasons, the judgment of the district court is AFFIRMED in all respects save its entry of judgment in favor of Britt Paulk on the contractual indemnification claim. As to that claim, the judgment of the district court is REVERSED, and the case is REMANDED with directions to enter judgment in favor of North American and reinstate the jury‘s award.
error nonetheless to enter judgment in favor of Britt Paulk to prevent a double recovery by North American. Rather, in a case of double recovery, a district court “should reduce the judgment by the amount of the duplication” but not enter judgment in favor of the defendant. Morrison Knudsen Corp., 532 F.3d at 1079.
David C. Shilton, Attorney, Environment & Natural Resources Division, Department of Justice (Ronald J. Tenpas, Assistant Attorney General; Andrew A. Smith and Mark R. Haag, Attorneys, Environment & Natural Resources Division, Department of Justice; Kathryn Toffenetti and Mary Ann Joca, Office of General Counsel, U.S. Department of Agriculture, with him on the brief), Washington, D.C., for Defendant-Appellee.
Before McCONNELL, SEYMOUR, and HOLMES, Circuit Judges.
Plaintiffs-Appellants Forest Guardians and Carson Forest Watch (collectively “Forest Guardians“) challenge the United States Forest Service‘s approval of a timber sale and restoration project in New Mexico‘s Carson National Forest, claiming violations of the National Forest Management Act (“NFMA“),
I. BACKGROUND
As part of the National Forest System, the Carson National Forest is maintained under a land and resource management plan (the “Carson Forest Plan“), pursuant to the NFMA,
To implement the Carson Forest Plan, the USFS approves plans and projects for specific areas of the Carson National Forest. See Ohio Forestry Ass‘n v. Sierra Club, 523 U.S. 726, 735 (1998). Such projects must be consistent with the applicable forest plan. Utah Envtl. Cong. v. Bosworth (UEC III), 443 F.3d 732, 737 (10th Cir. 2006) (citing the NFMA “consistency clause,”
After the USFS undertook an updated forest-wide MIS assessment and sought comments, the revised A/C Project was approved in April of 2004 in a Record of Decision (the “ROD“). On July 12, 2004, Forest Guardians filed an administrative appeal of the USFS‘s final approval of the A/C Project; that appeal was rejected in August of 2004. Forest Guardians then filed this action in federal district court alleging that the USFS‘s approval of the A/C Project violated the NFMA, the National Environmental Protection Act (“NEPA“),3 and USFS regulations. The district court denied relief and affirmed the USFS‘s approval of the A/C Project. Forest Guardians now appeals.
II. DISCUSSION
A. Standard of Review
Because the NFMA does not provide a private right of action, we review the USFS‘s approval of the A/C Project as a final agency action under the Administrative Procedure Act (“APA“),
While administrative agencies generally are afforded a presumption of regularity, an agency‘s decision will nonetheless be arbitrary and capricious if the agency entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Furthermore, we must determine whether the disputed decision was based on consideration of the relevant factors and whether there has been a clear error of judgment. Deference to the agency is especially strong where the challenged decisions involve technical or scientific matters within the agency‘s area of expertise. Id. (alterations, citations, and internal quotation marks omitted).
B. Approval of the A/C Project and Administrative Exhaustion
1. Forest Guardians’ Failure to Exhaust
In 1982, the USFS revised its planning regulations (“the 1982 Rules“),
As thoroughly explained by the district court, Forest Guardians had argued to the agency that the 1982 Rules were applicable to the USFS‘s evaluation and approval of the A/C Project. J.App. at 79, 83. Forest Guardians adopted the same position in its initial filings with the district court. See Aplt. Opening Br. Attach. at 31. Now, on appeal, Forest Guardians does not dispute the district court‘s contrary, accurate conclusion that the 2000 BAS standard, rather than the 1982 Rules, applies to the A/C Project; “any projects proposed during the transition period must conform with the best available science standard set forth in the 2000 transition provisions.” See UEC III, 443 F.3d at 746-47 (concluding, based on the USFS‘s interpretive rule adopted in 2004, that “during the transition period between November 2000 and promulgation of a final rule, the Forest Service should use the ‘best available science’ under § 219.35(a) for project decisions” (internal quotation marks omitted)).4 Rather, Forest Guardians’ primary argument is directed toward the USFS‘s alleged failure to consider and apply the BAS standard in evaluating the project and the inequity of expecting Forest Guardians to present arguments regarding the BAS standard during the administrative appeal process.
We previously have explained why the applicability of the 1982 Rules versus the 2000 BAS standard can be an important distinction in the evaluation of forest plans:
Deciding whether the 1982 regulations apply to the Project . . . is important because the 1982 regulations and the 2000 transition provisions contain key differences governing species monitoring. The 1982 rules, for example, require the Forest Service to monitor the “population trends of the management indicator species” and determine “relationships to habitat changes.”
36 C.F.R. § 219.19(a)(6) . And we have held that these obligations apply to project level as well as plan level management actions. Conversely, the 2000 transition provisions contain no such explicit language governing monitoring but merely require “the responsible official to consider the best available science in implementing” a forest plan.36 C.F.R. § 219.35(a), (d) (2001) ; 65 Fed.Reg. 67,514, 67,579 (Nov. 9, 2000).
UEC III, 443 F.3d at 744-45 (alterations and citation omitted); see also UEC II, 439 F.3d at 1190 (quoting Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 117 (2d Cir.2005), for the proposition that “the standards of the 1982 Rules and the 2000 Transitional Rule are—at least—distinct“); Sierra Club v. Wagner, 555 F.3d 21, 25 (1st Cir.2009) (“One might think from the name that ‘best available science’ is an unexceptionable standard, but according to [the plaintiff], the 1982 rules provided a set
Forest Guardians asserts that the USFS failed to properly apply the 2000 BAS standard in planning and approving the A/C Project. Forest Guardians further argues that the A/C Project‘s approval would be affected by the “key differences” between that standard and the 1982 Rules. Cf. Wagner, 555 F.3d at 25-26 (finding that the plaintiff had forfeited its argument regarding the applicability of the 1982 Rules when it had neither raised the argument to the district court nor explained “whether or how the allegedly more rigorous standards of the 1982 rules would likely have altered the Forest Service‘s ultimate evaluation of the two projects“). The district court, however, determined that because Forest Guardians failed to raise the BAS argument during the administrative appeal process—instead arguing that the 1982 Rules applied—Forest Guardians failed to exhaust this claim, as is necessary for judicial review. The district court found that it lacked subject matter jurisdiction over the BAS argument. We review de novo the district court‘s jurisdictional conclusion. Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 724 (10th Cir.1996).
Plaintiffs must exhaust available administrative remedies before the USFS prior to bringing their grievances to federal court.
The courts of appeals are split as to whether
Section 6912(e) does not contain any explicit exceptions to the exhaustion requirement. However, judicially created exhaustion doctrines are “subject to numerous exceptions,” McKart v. United States, 395 U.S. 185, 193 (1969), and several circuits have extended these exceptions to
Forest Guardians argues that it would have been futile to present its BAS challenge to the agency, because the USFS already had adopted the position that the A/C Project complied with the 2000 BAS standard when Forest Guardians filed its administrative challenge, i.e., the USFS had predetermined the issue before it. See Frontier Airlines, Inc. v. Civil Aeronautics Bd., 621 F.2d 369, 370-71 (10th Cir.1980) (excusing a statutory exhaustion requirement because that statute‘s “reasonable grounds” exception was met and the question was one of pure statutory interpretation). But despite the USFS‘s perceived stance on that issue, exhaustion of the BAS argument would not have been “futile” in the sense in which courts have applied this exhaustion exception. Specifically, there is no argument that: the USFS lacked the authority or the ability to resolve the challenge to the project approval, see McBride Cotton & Cattle Corp., 290 F.3d at 982; Ace Prop. & Cas. Ins. Co., 440 F.3d at 1000-01; this is purely a question of statutory interpretation, see Frontier Airlines, 621 F.2d at 371; or the court would not benefit from allowing the USFS to develop a full administrative record on the issue for our review, see Ace Prop. & Cas. Ins. Co., 440 F.3d at 1000-02; see also Salfi, 422 U.S. at 765 (“Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.“). Thus, assuming arguendo we could excuse
Forest Guardians further argues that administrative exhaustion of the BAS argument should not be required because it would be unfair to require exhaustion of a claim that it did not know that it had at the time it filed its administrative appeal. Forest Guardians reasons that when it filed its appeal with the USFS in July 2004, Tenth Circuit case law indicated that the 1982 Rules would be applicable to the A/C Project. Forest Guardians points to Utah Environmental Congress v. Bosworth (UEC I), 372 F.3d 1219 (10th Cir. 2004), which was issued on June 23, 2004. Related decisions in this circuit dealing
It is not inequitable to require Forest Guardians to have made an argument about the 2000 BAS standard in July 2004, even if there was some confusion as to the proper standard. Forest Guardians’ reliance on Bowen v. City of New York, 476 U.S. 467, 482-87 (1986), for the proposition that exhaustion would be unfair, is misplaced. In Bowen, the Supreme Court waived the administrative exhaustion requirement because plaintiffs had been subjected to an “unrevealed policy that was inconsistent in critically important ways with established regulations.” Id. at 485. Here, by contrast, the published federal regulation in effect on the date Forest Guardians filed its administrative appeal indicated that during the transition period beginning November 9, 2000, “the responsible official must consider the best available science in implementing and, if appropriate, amending the current plan.”
Therefore, because Forest Guardians did not argue during the administrative process that USFS failed to consider and apply the 2000 BAS standard when it implemented the A/C Project, we conclude that Forest Guardians failed to adequately present the BAS argument in its administrative appeal and thus has forfeited it. See Forest Guardians, 495 F.3d at 1171; cf. Utah Envtl. Cong. v. Troyer (UEC IV), 479 F.3d 1269, 1288, 1292 (10th Cir.2007) (McConnell, J., dissenting in part) (“At no point has plaintiff UEC argued that the projects violated the ‘best available science’ standard. . . . If UEC had argued that the decisions in question were deficient under the ‘best available science’
2. The Inapplicability of Chenery
The Supreme Court‘s decision in SEC v. Chenery Corp. stands for the proposition that a reviewing court may not affirm an agency decision based on reasoning that the agency itself never considered. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). The Partial Dissent characterizes our decision as holding: “Forest Guardians is barred from challenging the Agua-Caballos project on the ground that the agency changed its rationale when the project was challenged in court.” See Partial Dissent at 1131. The Partial Dissent thus suggests that our holding bars Forest Guardians from raising a Chenery challenge.
We respectfully disagree. Chenery is largely inapposite, and the Partial Dissent‘s misguided reliance on its analytic rubric results in an incorrect interpretation of our holding. Forest Guardians’ appeal does not center on the district court‘s failure to apply Chenery. Instead, it has presented a merits challenge based upon the purported failure of the USFS to consider and apply the 2000 BAS standard; it has contended that this failure effected a NFMA violation. It raises Chenery in an effort to bolster its merits argument—specifically, to prevent the USFS from defending the project on the basis of the 2000 BAS standard. Aplt. Opening Br. at 44-45 (noting that it was “undisputed” that “the USFS consistently applied the 1982 NFMA regulations throughout the planning and decision-making processes for the A-C project” and, consequently, “there can be no doubt that the USFS‘s A-C project decision must be vacated pursuant to the Chenery rule“).
Chenery probably would have been directly at issue if (1) the district court—instead of resolving the matter on exhaustion grounds—had reached the merits of the USFS‘s argument that the USFS in fact properly applied the 2000 BAS standard and endorsed this view; and (2) we then subsequently affirmed on that basis. But that is not the situation here. The district court did not reach the merits. See Aplt. Opening Br. Attach. at 39 (“The Plaintiffs failed to exhaust the administrative process, and because exhaustion of the administrative process is mandatory, the Court will not address the merits of the Plaintiffs’ claims that the USFS did not apply the ‘best available science’ standard“); see also Aplt. Opening Br. at 32-33 (recognizing that the district court did not reach the merits). As noted above, we also have expressly declined to reach the merits and do not affirm on that basis. In other words, we do not uphold the USFS‘s decision on reasoning that was never presented to and considered by the agency—which would run afoul of Chenery.
Like the district court‘s, ours is an exhaustion ruling. And it bears underscoring that this ruling relates to Forest Guardians’ merits argument concerning the 2000 BAS standard; beyond that, we do not stray. Therefore, we need not quarrel with the Partial Dissent‘s assertion that “a Chenery claim is never barred for failure to exhaust administrative remedies,” Partial Dissent at 1132, because our exhaustion ruling does not relate to any purported Chenery claim by Forest Guardians.
The exhaustion and Chenery doctrines involve distinct but related inquiries. “The exhaustion doctrine furthers this [Chenery] principle by ensuring that an agency always has an opportunity to justify its action.” Etelson v. Office of Pers. Mgmt., 684 F.2d 918, 925 n. 9 (D.C.Cir. 1982); cf. Skubel v. Sullivan, 925 F.Supp. 930, 944 (D.Conn.1996) (reflecting a relationship between Chenery and exhaustion by noting that the agency defendants’ “substantive arguments . . . in their briefs technically fall into the category of impermissible post-hoc rationalizations” under the Chenery principle, but presuming that the agency defendants would have raised the arguments in a denial of a petition for rulemaking “given that this Court has excused the plaintiffs’ failure to exhaust their remedies by petitioning for rulemaking“), aff‘d as modified on other grounds sub nom. Skubel v. Fuoroli, 113 F.3d 330, 335 (2d Cir.1997) (“[W]e find that the district court properly exercised its discretion in excusing plaintiffs’ failure to exhaust their administrative remedies.“). The exhaustion doctrine, however, is independently operational and may in fact eliminate the need for further inquiry into a possible Chenery problem. For instance, it seems quite clear as a matter of logic that if the agency rationale that is alleged to be late-blooming as contemplated by Chenery relates to a claim that a plaintiff has not exhausted and the agency asserts exhaustion as a defense, then this would be at least one situation where application of the exhaustion doctrine might well negate the
In large part, our disagreement with the Partial Dissent relates to the framing of the question in light of the two distinct inquiries (i.e., concerning exhaustion and Chenery). As the Partial Dissent would have it, the question is the following: whether the district court may affirm the USFS on a substantive rationale that the USFS did not raise before the agency. The Partial Dissent suggests that our holding prevents Forest Guardians from raising the Chenery problem to bar this district court action. We respectfully submit that the Partial Dissent is asking the wrong question and that doing so leads it to incorrectly interpret the effect of our holding. Generally, the question is whether—possessing adequate notice of a claim for relief, i.e., the possible applicability of the 2000 BAS standard and USFS‘s purported failure to consider and apply it—Forest Guardians is precluded from pursuing that claim in federal court, when Forest Guardians failed to raise the claim before the administrative agency. Under this framing of the question, there is no Chenery problem. The district court simply answered the question in the affirmative through a straightforward application of exhaustion principles, and we affirm on the same basis. These exhaustion rulings do not relate to any purported Chenery claim of Forest Guardians, and neither the district court nor we reach the merits of the BAS argument. For the foregoing reasons, we believe that our exhaustion holding is sound and respectfully disagree with the approach of the Partial Dissent.
C. 16 U.S.C. § 1604(g)(3)(B)
Forest Guardians next asserts that the A/C Project runs counter to the Carson Forest Plan and the NFMA‘s substantive obligation to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.”
Forest Guardians’ basic argument is that the A/C Project violates the NFMA
The Carson Forest Plan itself specifically had been developed with favorable effects on the Abert‘s squirrel in mind: “By creating a diversity of stand conditions and providing juxtaposition of stands over time and space, suitable habitat components of Abert[‘s] . . . squirrels will be maintained over time.”11 J.App. at 137. Numerous planning documents and the ROD show the extensive analysis undertaken in connection with the A/C Project and reflect the USFS‘s rationale for its conclusion that the A/C Project is compliant with the Carson Forest Plan and the NFMA, including with regard to the Abert‘s squirrel. In its 2003 forest-wide MIS assessment, for example, the USFS collected and assessed data on the Abert‘s squirrel, including the effects of various management activities on its habitat types, its habitat trends, and quantitative population trend data and viability. The assessment noted that while “[i]ndiscriminate logging can degrade Abert‘s squirrel habitat,” and “historic heavy harvesting” and fire suppression have resulted in a less diverse habitat in certain vegetation structural stages, the current habitat condition for the Abert‘s squirrel “is poor to fair, but in a slight upward trend.” J.App. at 201.
The 2003 Supplement to the Final Environmental Impact Statement for the project considered the findings of that 2003 MIS assessment—including an extensive, Abert‘s-squirrel-specific examination of environmental factors, habitat conditions and trends, population trend and viability, and effect of proposed activities—and determined that, over the long term, implementation of any of the proposed alternatives for the A/C Project “would either maintain or improve habitat conditions and populations for [MIS].” Id. at 215. Also used in the planning process was the 2004 Final Supplement to the Final Environmental Impact Statement for the A/C Project. This report explained that twelve years of environmental analysis had gone into the A/C Project, extensively described habitat and population developments for the Abert‘s squirrel, and reported that the project “would maintain an upward trend for Abert‘s squirrel quality habitat across the Carson National Forest.” Id. at 247, 248-50. Thus, the ROD concluded that the A/C Project would “contribute to improving or maintaining [MIS] habitat and sustaining their populations on the Carson National Forest.” Id. at 292. The ROD prescribed that prior to implementation of activities within squirrel habitats, stands within those habitats would be reevaluated for Abert‘s squirrel activity and treatments would be deferred within high-activity areas. Id. at 291.
We grant considerable discretion and deference to federal agencies on matters that require a high level of technical or scientific expertise. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 (1989); UEC III, 443 F.3d at 739. Although Forest Guardians alleges that the evidence shows that there has been a decline in the Abert‘s squirrel population, that the population is below optimal levels, and that the decline was caused at least partly by USFS timber sales, we do not find that it has demonstrated that the agency‘s A/C Project decision runs counter to the evidence. Specifically, none of the evidence pointed to by Forest Guardians sufficiently supports its proposition that if “the USFS has authorized destruction of some of the Abert‘s squirrel remaining habitat” then it follows that “the A-C project decision violates the USFS‘s statutory duty” under the NFMA. Aplt. Opening Br. at 55. Forest Guardians points to isolated statements—contained in a 2003 report from a monitoring program initiated by the USFS—that note some declines in the Abert‘s squirrel population densities within the Carson National Forest and conclude that logging and “intensive, widespread thinning” can have an adverse effect on the habitat and population of that species. J.App. at 229-30, 238. The report also opines that compared to previous estimates, the squirrel densities observed were extremely low after a major decline in 2002.
This same report, however, concluded that its density estimates might be artificially low due to the timing of the monitoring and that climate related factors
We find that the USFS‘s approval was not arbitrary and capricious and its explanation did not run counter to the evidence before it. It was rational for the agency to conclude that the A/C Project was consistent with the mandates of the NFMA and the Carson Forest Plan, including in its effect on the Abert‘s squirrel. The USFS did not violate the NFMA‘s statutory requirement to provide for species diversity by approving the A/C Project.
D. 16 U.S.C. § 1604(i)
Finally, Forest Guardians contends that the A/C Project is not consistent with the Carson Forest Plan‘s monitoring requirements and therefore violates the NFMA “consistency provision.”12
Forest Guardians asserts that the USFS failed to comply with the monitoring
While the Carson Forest Plan monitoring program does outline that MIS should be monitored, there is nothing in the program that conditions approval of any individual project—such as the A/C Project—on fulfillment of these monitoring goals. Indeed, the monitoring program appears to contemplate monitoring being conducted on a forest-wide, rather than project-wide, level, and, further, being “at best tentative and exploratory.” J.App. at 149. The Carson Forest Plan is distinguishable from those in cases where we have found a showing of “the required nexus” between the monitoring and the project. In UEC V, for example, the forest plan prescribed that if certain conditions were revealed during the monitoring process, then further evaluation or a change in management direction could occur. Id. at 1133. In other words, that plan laid out a specific standard that made the monitoring requirements a condition precedent to management activities. Id. at 1134. In UEC II, we found that a project approval by the USFS did not satisfy the monitoring provisions of the applicable forest plan with regards to the Mexican spotted owl. UEC II, 439 F.3d at 1194. In that case, however, the forest plan contained species monitoring requirements designed to ensure that no decrease to any threatened, endangered, or sensitive animals resulted from “management activities.” Id. That plan included a requirement that this “no decrease” standard be met, as demonstrated by the monitoring of the Mexican spotted owl. Id.
Forest Guardians has not pointed to any similar language demonstrating a connection between the Carson Forest Plan‘s monitoring program and the A/C Project, i.e., “no showing has been made that the applicable Forest Service regulations and directives conditioned approval” of the A/C Project “on the successful monitoring of [MIS] at either a forest-wide or project level” or on the meeting of a certain standard. UEC III, 443 F.3d at 750. Thus, we agree with the district court that Forest Guardians has no cognizable claim regarding USFS‘s alleged failure to comply with the monitoring requirements of the Carson Forest Plan.13
E. Requests to Supplement the Record
Judicial review generally focuses on the administrative record in existence at the time of the agency‘s decision.
III. CONCLUSION
The judgment of the district court is AFFIRMED. Forest Guardians’ pending motions to supplement the administrative record and to file a supplemental appendix are DENIED, to the extent that the documents were not included within the administrative record, and otherwise GRANTED.
MCCONNELL, Circuit Judge, dissenting with respect to Section IIB:
I agree with the majority‘s analysis in all other respects, but cannot agree with its conclusion, in Section IIB, that Forest Guardians is barred from challenging the Agua-Caballos project on the ground that the agency changed its rationale when the project was challenged in court.
Under the Supreme Court‘s seminal administrative law decision, SEC v. Chenery Corp., 318 U.S. 80, 87 (1943), courts may not affirm an administrative action on grounds different from those employed by the agency. In this case, the Forest Service approved the Agua-Caballos project under the 1982 rules, and supported the project throughout the administrative appeals process on the basis of those rules. It did the same when Forest Guardians challenged the decision in federal court and requested a preliminary injunction. In its brief opposing the preliminary injunction, however, the Forest Service for the first time suggested that the appropriate standard was in fact not the 1982 rules but the “best
The majority holds that Forest Guardians may not object to the agency‘s change of rationale because it did not raise this particular argument before the agency during the administrative appeal process. In my opinion, however, a Chenery claim is never barred for failure to exhaust administrative remedies. It is not logically possible for a Chenery claim to arise during the administrative process, because at that stage the shift in rationale has not yet occurred. Only when the agency offers a new rationale in district court or the district court affirms on the basis of a new rationale does the Chenery problem arise.2
By faulting Forest Guardians for failing to raise the “best available science” standard during the administrative process, when the agency had not invoked that standard to support the proposed project, the majority misconceives the relation between exhaustion and Chenery claims. Exhaustion and Chenery are related in that each encourages arguments to be raised at the administrative level—exhaustion requires this of plaintiffs, and Chenery requires this of agencies. Here, it was the agency that failed to raise the “best available science” standard at the appropriate time, and yet we are removing the teeth from Chenery by using exhaustion to prevent the plaintiffs from calling them on it.
Because it is logically impossible for parties to raise a Chenery issue during the administrative process, the majority‘s holding effectively gives a green light to Chenery violations, so long as agency lawyers are quick-witted enough to plead lack of exhaustion. Upon discovery that the agency‘s rationale will not hold up in court, the lawyers offer a new one. When the plaintiff raises a Chenery objection, the agency lawyers cry, “no exhaustion.” It should work every time.
Deciding whether to excuse exhaustion is an “intensely practical” inquiry that should “be guided by the policies underlying the exhaustion requirement.” Bowen v. City of New York, 476 U.S. 467, 484 (1986). Those policies include allowing an agency “an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.” Id. at 765. Those concerns are not present here. There is no suggestion that Forest Guardians was withholding its Chenery claim so as to avoid agency review. The issue simply did not arise until the parties were before the district court. Nor do we need agency expertise when the issue is a straightforward legal one of whether an agency has changed the justification for its decision. Whether the forest project satisfies the “best available science” standard requires expertise; whether agency lawyers shifted their ground in district court does not.
The issue is not, as the majority seems to think, whether Forest Guardians could have anticipated that the 2000 transitional rules might be held to apply to the project. That may well be so. But the agency did not rely on the 2000 transitional rules when it approved the Agua-Caballos project. It relied on the 1982 regulations. Forest Guardians explained during the administrative process why it believed the agency action was unjustified under those 1982 regulations. It was not Forest Guardians’ obligation to put forward or to counter alternative rationales that might support the agency action. And once in court, Forest Guardians could expect that, under Chenery, the Forest Service would be limited to defending the project on the basis of the administrative rationale.
Our holding is even stranger when considered in light of some of our other prece-
standard.” Clerk‘s Minutes of Jul. 19, 2006 Status Conf. at 2. This would be an issue for the district court to address while considering the merits of the Chenery claim; it is not a reason to bar the claim for a failure to exhaust.
With all respect, I think we have gotten it backwards. Chenery claims are not subject to the requirement of exhaustion, but they are forfeited if not raised on appeal.
I agree with the majority‘s resolution of Forest Guardians’ other claims, but I cannot join its holding in Section II.B regarding the exhaustion requirement. I would remand to the district court for consideration of the Chenery claim on the merits.
Richard FAIRCHILD, Petitioner-Appellant, v. Randall G. WORKMAN, Warden,* Oklahoma State Penitentiary, Respondent-Appellee.
No. 06-6327.
United States Court of Appeals, Tenth Circuit.
Aug. 31, 2009.
Marty Sirmons.
Notes
Notwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against—
- the Secretary;
- the Department; or
- an agency, office, officer, or employee of the Department.
The Forest Plan was adopted in 1986, and at that time the USFS planned timber projects going forward beginning in 1987. See AR 000597-000599. If the USFS had intended the Monitoring Plan requirements to
Aplt. Opening Br. Attach. at 41. Unfortunately, the referenced pages of the administrative record were not included in the parties’ appendices, so we cannot verify this reasoning. Forest Guardians has not disputed this portion of the district court‘s opinion, however. Cf. Ecology Ctr., 451 F.3d at 1192 n. 3 (relying on the excerpt of the document provided and assuming there were no relevant provisions within the portion not provided).be condition precedents to site-specific project approval, then the USFS would have planned on being non-compliant and in violation of NFMA‘s consistency requirements the year after the Forest Plan was adopted, because it would have been impossible at that point to have five years of baseline MIS monitoring. Such an intention would have been inconsistent with the way the Forest Plan was set up.