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.
April 21, 2011.
641 F.3d 423
As for the rape conviction, Ellis argues that the record does not support the district court‘s determination that the rape was especially brutal. We disagree; while the description of the rape in the PSR is brief, we cannot say the district court‘s conclusion was unreasonable, or that the district court relied on “clearly erroneous facts.” Carty, 520 F.3d at 993. Moreover, given the overall reasonableness of the sentence, as explained below, and the district court‘s conclusion that even “[w]ithout reference to the guideline range” it would have imposed a sentence of 151 months, any error in relying on the rape conviction would be harmless. See Mohamed, 459 F.3d at 987 (“If we were to declare the sentence reasonable, then the erroneous departure would be harmless.“).
Ultimately, though, Ellis‘s point-by-point objections to the reasons the district court gave for “departing” upward are beside the point. The question for our purposes is whether a moderately above-Guidelines sentence for a defendant who commits seven bank robberies, after serving prison time for rape and armed robbery, is reasonable under the broad discretion afforded the district court. See United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006). Here, the court deviated only 30 and 16 months from the high end of the PSR and its own Guidelines ranges, respectively, neither of which we would deem “major.” See Carty, 520 F.3d at 992. We conclude that the district court‘s characterization of Ellis‘s seven armed bank robberies as “serious[]” offenses that traumatized their victims and its emphasis on the need to provide “just punishment,” to deter criminal conduct generally, and to “protect[] the public from further crimes of this individual” reflected a “rational and meaningful consideration of the factors enumerated in
AFFIRMED.
Before BRISCOE, Chief Judge, and SEYMOUR, TACHA*, KELLY, LUCERO, MURPHY, HARTZ, O‘BRIEN, TYMKOVICH, GORSUCH, HOLMES, and MATHESON**, Circuit Judges***.
ORDER
On March 8, 2010, this court entered an order granting the appellants’ petition for en banc rehearing. Having now considered the parties’ briefs and heard oral argument on the matter, the court has voted unanimously to vacate the March 8, 2010 order granting en banc rehearing as improvidently granted. As a result, that order is vacated.
The case is referred back to the original panel for action on the petition for panel rehearing. The remaining members of the original panel, who are in agreement on the matter,
ORDER ON PETITION FOR REHEARING
This matter is before the court on Forest Guardians and Carson Forest Watch‘s petition for rehearing. The panel has voted to grant a limited rehearing to modify some of the language in our panel opinion. The court‘s opinion filed on August 26, 2009, is withdrawn and an amended opinion is attached to this order.
Before SEYMOUR and HOLMES, Circuit Judges.****
OPINION
PER CURIAM.
Plaintiffs-Appellants Forest Guardians and Carson Forest Watch (collectively, “Forest Guardians“) challenge the approval by the United States Forest Service (“USFS“) 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“), and the USFS‘s regulations. The district court denied relief. The court declined to address the merits of Forest Guardians’ NEPA claim because it found those claims had not been administratively exhausted. Similarly, the court declined to reach the merits of Forest Guardians’ NFMA regulatory claim. Regarding that claim, after determining that the USFS‘s 2000 transition regulations applied to the A/C Project, the court held that Forest Guardians had not administratively exhausted any claim that the USFS failed to consider the 2000 regulations. Finally, the district court held that the USFS had not violated either the NFMA‘s consistency provision or its substantive provision. Forest Guardians now appeals.3
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. (citations omitted) (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 (Dist. Ct. Mem. Op. & Order, filed Aug. 22, 2006). 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 transition provisions and their BAS standard, rather than the 1982 Rules, apply 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.” UEC III, 443 F.3d at 747; see id. at 746 (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” (quoting UEC II, 439 F.3d at 1189) (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 transition provisions and their 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).
Forest Guardians asserts that the USFS failed to consider or 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 district court concluded that
The courts of appeals are split as to whether
Forest Guardians argues that it would have been futile to present its BAS challenge to the agency because the USFS has already adopted the position in federal court that it considered and applied the BAS standard of the 2000 regulations to the A/C Project decision. See Frontier Airlines, Inc. v. Civil Aeronautics Bd., 621 F.2d 369, 370-71 (10th Cir. 1980) (excusing a statutory exhaustion requirement under agency‘s “reasonable grounds” exception because, inter alia, the agency “in this Court [wa]s adamant in its belief that it does have the authority to” take the challenged action). But despite the USFS‘s perceived stance on that issue, exhaustion of the BAS argument would not have been “futile” in the sense that 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 with the application of the 1982 Rules and the 2000 BAS standard were not released until after the administrative appeal was decided in August 2004. It is true that in UEC I, we applied the 1982 Rules under the stated rationale that they were the regulations in effect in December 2000, the time of the USFS decision at issue. UEC I, 372 F.3d at 1222 n. 1. We also noted, however, that the regulations had changed in 2000. Id. In addition, Judge Baldock‘s concurrence observed that “the Forest Service‘s adoption of new planning regulations effectively moots the issue [of interpreting the 1982 Rules] in future cases.” Id. at 1232 n. 1 (Baldock, J., concurring). Accordingly, even though the 1982 Rules were applied in UEC I, that same case provided Forest Guardians—pre-administrative appeal—with notice that the 1982 Rules would not necessarily apply to the A/C Project.
It is not inequitable to require Forest Guardians to have made an argument
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’ standard, the Forest Service would have been able to respond, and the district court would have been able to make appropriate findings.“). Therefore, we do not reach the merits of Forest Guardians’ BAS claim.8
The Supreme Court‘s decision in SEC v. Chenery Corporation stands for the proposition that a reviewing court may not affirm an agency decision based on reasoning that the agency itself never considered in its administrative proceedings. See SEC v. Chenery Corporation, 318 U.S. 80, 87 (1943). Forest Guardians contends that affirmance of the district court‘s order would violate Chenery because we would be upholding the USFS‘s decision when it “did not consider or mention—let alone apply—the controlling ‘best available science’ standard of the 2000 regulations when it planned and authorized the Agua-Caballos timber sale project.” Pl-Aplt‘s Amended Reply Br. at 1.
We disagree. Even assuming, arguendo, that the practical effect of the district court‘s decision was to permit USFS to prevail on the merits against Forest Guardians based on the BAS standard, we conclude that this outcome would not contravene Chenery. To be sure, the USFS approved the A/C Project under the 1982 Rules. But it could also approve the project at the same time as representing the best available science. And our review of the record shows that the USFS did just that.
In Chenery, managers of the Federal Water Service Corporation (“Federal“) sought approval of a corporate reorganization plan by the Securities and Exchange Commission (“SEC“). Chenery, 318 U.S. at 82. The plan provided that the company‘s class B common stock would be surrendered for cancellation, and that its preferred and class A common stock would be converted into common stock of a new corporation. Id. at 84. While the plan was pending, several officers, directors, and controlling stockholders of Federal (collectively, “respondents“) purchased over 12,000 shares of preferred stock in the new company. Id. Aware of this development, the SEC approved of Federal‘s reorganization plan only upon the condition that the preferred stock that the respondents acquired would not be permitted to share on parity with other preferred stock, reasoning that respondents, as managers of Federal, were fiduciaries who were obligated under their “duty of fair dealing” to refrain from trading in the securities of the corporation while the reorganization plan was pending. Id. at 85. In reaching this conclusion, the SEC‘s “opinion plainly show[ed] that ... [its] decision was explicitly based upon the applicability of principles of equity announced by courts.” Id. at 87. The respondents
On appeal, the SEC defended its decision under the court-announced equitable principles. Id. at 88-89. Additionally, however, it offered an alternative justification for its decision: even if the court declined to uphold its decision on equitable grounds, “the order should nevertheless be sustained because the effect of trading by management is not measured by the fairness of individual transactions between buyer and seller, but by its relation to the timing and dynamics of the reorganization which the management itself initiates and so largely controls.” Id. at 90 (internal quotation marks omitted).
In addressing the SEC‘s arguments, the Court first rejected its reliance upon principles of equity, concluding that, contrary to the SEC‘s determination, “courts do not impose upon officers and directors of a corporation any fiduciary duty to its stockholders which precludes them, merely because they are officers and directors, from buying and selling the corporation‘s stock.” Id. at 88. Next, the Court suggested that the SEC‘s alternative argument potentially could have supported its decision. Id. 90-92. However, it explicitly declined to consider the merits of that argument, concluding that the SEC‘s “action must be judged by the standards which the Commission itself invoked.” Id. at 89 (emphasis added). Because the SEC‘s alternative argument was not “[that] upon which its action was based,” the Court held that its decision could not be sustained on that ground. Id. at 92.
Therefore, in Chenery, the Supreme Court endeavored to preclude agencies from fashioning post-hoc justifications for their actions. See, e.g., Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (“[T]o the extent a harmless-error determination rests on ... matters not considered by the [administrative law judge], it risks violating the general rule against post hoc justification of administrative action recognized in SEC v. Chenery and its progeny.” (citation omitted)); NLRB v. Indianapolis Mack Sales & Serv., Inc., 802 F.2d 280, 285 (7th Cir. 1986) (“The [agency‘s] appellate counsel cannot fill in the holes in the agency‘s decision....“).
In complying with the Chenery principle, we must “look to the [agency‘s] opinion” in order to “ascertain the precise basis of its determination.” 318 U.S. at 87. In other words, we must thoroughly examine the administrative record to ensure that the agency‘s proffered justifications for its decision reflect the reasoning upon which it actually relied. And our prior cases involving the 2000 transitional rules did exactly that, examining the USFS‘s decisions and the underlying documents to ascertain whether the agency made reference to the 2000 rules or to the BAS standard. Compare UEC IV, 479 F.3d at 1287 (“Although we have concluded that the Forest Service was bound to apply the best available science standard ... it is obvious from the record on appeal that the Forest Service failed to do so.“), and UEC V, 483 F.3d at 1136 (“In this case, there is no evidence that the Forest Service utilized the ‘best available science’ standard.... Indeed, the ROD approving the project never used the phrase ‘best available science,’ much less considered the substantive quality of the science utilized in approving the project.“), with Utah Envtl. Cong. v. Russell (UEC VI), 518 F.3d 817, 830 (10th Cir. 2008) (“Although the Forest Service did not specifically cite the 2000 regulation requiring application of the best available science standard in its Decision Notice,
As in UEC VI, our examination of the record before us reveals that, even though the USFS did not explicitly cite the 2000 transitional rules in the ROD pertaining to the A/C Project, it considered and relied upon what it believed to be the BAS when it approved the Project.9 See UEC VI, 518 F.3d at 830. More specifically, we conclude that the record in this case is far from “barren,” see Chenery, 318 U.S. at 93, of any indication that the USFS applied the BAS standard.
As the district court recognized, the A/C Project ROD explicitly stated that the USFS was relying upon the “best available scientific information” when it approved the A/C Project. See J.App. at 87 (“The monitoring plan, like the EIS, is based on the best available scientific information at this time, some of which is referenced in the EIS.” (emphasis added) (quoting J.App. at 291 (A/C Project ROD, dated May 2004))). As the A/C Project ROD explains, the Project was designed to comply with the Carson Forest Plan, as well as the amendments to that Plan. Id. at 298. In the ROD regarding the 1996 Amendment to the Carson Plan, the USFS ob-
served that it had employed “[t]he best available scientific data and information on habitat needs for goshawk and Mexican spotted owl ... to develop and evaluate the proposed action and alternatives,” Aplee. Supp.App. at 432 (1996 Amendment ROD) (emphasis added), and recognized that the “Management Recommendations for Northern Goshawk in the Southwestern U.S. [(Reynolds, et al. 1992)]” (“Reynolds Report“), was the “best known information on northern goshawk management in [the] Region,” id. at 428 (emphasis added); see also id. at 426 (“There was no compelling proof that other information or recommendations offered were better than the science my resource specialists used.” (emphasis added)). The Reynolds Report is then cited in the A/C Project ROD, see J.App. at 293, in the Final Environmental Impact Statement to the Agua/Caballos Project (“FEIS“), see Aplee. Supp.App. at 449, 480, in the subsequent Final Supplement to the Final Environmental Impact Statement for the Agua/Caballos Proposed Projects (“FSFEIS“), see Aplee. Supp.App. at 480, 492, 524, and in the Management Indicator Species Assessment for the Carson National Forest (“MIS“), see J.App. at 199, 206.10 Since the A/C Project implemented
Moreover, the record contains evidence that the USFS also considered what Forest Guardians proffered as the “best available science” when it approved the A/C Project. In its supplemental brief addressing this court‘s inquiry regarding evidence of the BAS standard in the administrative record, Forest Guardians criticized the USFS‘s reliance upon the Reynolds report, contending that Dr. Jennifer Frey‘s 2003 Monitoring Report (“Frey Report“), J.App. at 227-45, and Dr. Norris Dodd‘s Management Guidelines (“Dodd Guidelines“) represented the “best available science” at the time that the A/C Project was approved. See Aplt. Supp. Br. at 2-4, 6. Both the Frey Report and the Dodd Guidelines, however, are referenced repeatedly throughout the FSFEIS. See Aplee. Supp.App. at 496, 503, 518. Furthermore, the USFS actually relied upon these documents, concluding that “[s]urveys for Abert‘s squirrel activity areas in stands identified for treatment in the Agua/Caballos analysis area [would] be based on Dodd and Frey.” Id. at 503 (emphasis added). In sum, in formulating and finalizing the A/C Project ROD, the USFS considered the “best available science” as the substance of that term was understood in this case by the USFS and by Forest Guardians.
It should not be very surprising that the USFS relied upon the BAS to ensure that the A/C project complied with the 1982 Rules. Operating under the 1982 Rules, the USFS was required to rely on scientific evidence offered by experts who had studied the particular species that the Project impacted. For example, the 1982 Rules required an interdisciplinary scientific approach in creating forest plans and implementing the goals of the regulations and the plans. See
(a) A team representing several disciplines shall be used for regional and forest planning to insure coordinated planning of the various resources. Through interactions among its members, the team shall integrate knowledge of the physical, biological, economic and social sciences, and the environmental design arts in the planning process....
....
(b) In appointing team members, the responsible line officer shall determine and consider the qualifications of each team member on the basis of the complexity of the issues and concerns to be addressed through the plan. The team shall collectively represent diverse specialized areas of professional and technical knowledge applicable to the planning area, and the team members shall have recognized relevant expertise and experience in professional, investigative, scientific, or other responsible work in speciality areas which they collectively represent. The team may consist of whatever combination of Forest Service staff and other Federal government personnel is necessary to achieve an interdisciplinary approach. The team is encouraged to consult other persons when required specialized knowledge does not exist within the team itself.
(a) Each alternative shall establish objectives for the maintenance and improvement of habitat for management indicator species selected under paragraph (g)(1) of this section, to the degree consistent with overall multiple use objectives of the alternative. To meet this goal, management planning for the fish and wildlife resource shall meet the requirements set forth in paragraphs (a)(1) through (a)(7) of this section.
On the basis of available scientific information, the interdisciplinary team shall estimate the effects of the changes in vegetation type, timber age classes, community composition, rotation age, and year-long suitability of habitat related to mobility of management indicator species. Where appropriate, measures to mitigate adverse effects shall be prescribed.
Therefore, this is not a situation where USFS‘s consideration of the BAS would have involved a dramatic shift in the methodology it employed under the 1982 Rules. In contrast, the alternative arguments that the SEC advanced in Chenery were completely different. See Chenery, 318 U.S. at 92-93 (contrasting the SEC‘s argument in agency proceedings, where “it purported merely to be applying an existing judge-made rule of equity,” with its additional argument before the Court, where it “rel[ied] upon ‘its special administrative competence‘“). Furthermore, while the 2000 transitional rules eliminated the need for site-specific projects to jump through the procedural hoops of the 1982 Rules regarding monitoring during the transitional period, as UEC III makes clear, the USFS was obliged to evaluate the environmental impact on the habitat of relevant species of proposed site-specific projects on the basis of the scientific information available, under the new BAS requirement. See UEC III, 443 F.3d at 746-47.
The USFS still had to comply of course with the dictates of specific forest plans, which often included monitoring requirements. The Carson Plan under which the A/C Project operated embodied extensive monitoring requirements. The “Monitoring Plan,” J.App. at 138, indicates the monitoring method, frequency, expected precision/reliability, and other outputs that the Carson Forest Plan requires, see id. at 602. It further explains that the “population and habitat trends of management indicating species” and the “[p]opulation and habitat trends of State and Federally listed plants and animals and sensitive species” will be the “[i]tems [m]onitored,” id. at 602.
However, the fact that the USFS felt obliged under the Carson Forest Plan to endeavor to clear the procedural hurdles set out in the 1982 Rules is immaterial to the Chenery question—that is, the question of whether the district court was required to vacate the agency decision because it failed to apply the BAS standard. As to that question, the relevant inquiry is whether “the agency considered the best available science,” even though it “did not specifically cite the 2000 regulations requiring appli-
In sum, we conclude that, even though it did not explicitly cite the 2000 transitional rules in formulating and finalizing the A/C Project, the USFS did exactly what the plain language of those rules directed it to do: “consider the best available science in implementing and, if appropriate, amending the current plan.”
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 substantive requirement to provide for diversity because, even though population levels for the Abert‘s squirrel are below the USFS‘s minimum viable population threshold and are declining, the A/C Project calls for the destruction of additional squirrel habitat, which will lead to further decline in population.12 The case that Forest Guardians cites for the proposition that the NFMA mandates the maintenance of minimum viable populations of certain species as part of the USFS‘s
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.”14 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 suppres-
sion 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.
This thorough assessment concluded that in contrast to historical practices, “[m]ore recent management has tended to focus on thinning from below” and “group selections across the Forest“—practices that “enhance[] Abert‘s squirrel habitat” and “that in turn should assure its survival.” Id. at 202. Examining various sources of data, the MIS assessment concluded that the Abert‘s squirrel population in the Carson National Forest is “stable, but likely lower than potential” and they are “in no danger of extinction.” Id. at 204. Overall, the USFS concluded, “the Carson National Forest is sustaining viable populations of Abert‘s squirrel. Continued implementation of prescribed burning and thinning should continue to improve the squirrel‘s habitat.” Id.
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
We grant considerable discretion and deference to federal agencies on matters that require a high level of technical or scientific expertise. Marsh v. Or. Natural 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 may account for some of the decline. “Though a party may cite studies that support a conclusion different from the one the Forest Service reached, it is not our role to weigh competing scientific analyses.” Castaneda, 574 F.3d at 659. Running throughout Forest Guardians’ argument appears to be the general assumption that any timber harvesting equates to negative effects on the Abert‘s squirrel habitat and population. Without more, Forest Guardians’ sparse evidence and its unproven proposition cannot defeat the USFS‘s contrary conclusion. See J.App. at 202 (“Management practices of thinning from below and group selections across the Forest enhance[] Abert‘s squirrel habitat[, which] in turn should assure its survival.“); cf. Lands Council v. McNair, 537 F.3d 981, 997 (9th Cir. 2008) (“A habitat disturbance does not necessarily mean that a species’ viability will be threatened.“), abrogated in part on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), as recognized by Am. Trucking Ass‘ns v. City of Los Angeles, 559 F.3d 1046, 1052 & n. 10 (9th Cir. 2009).
We find that the USFS‘s approval was not arbitrary and capricious and its explanation did not run counter to the evidence
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.”15
Forest Guardians asserts that the USFS failed to comply with the monitoring requirements and methodologies of the Carson Forest Plan, including the requirement to acquire five years of baseline data, and thus the approval of the A/C Project is inconsistent with the plan. Cf. UEC III, 443 F.3d at 749 (“In essence, [the plaintiff] argues that the Forest Plan requires the collection of ... data as a condition precedent to the approval of the ... [p]roject.“). Regardless of whether the A/C Project‘s monitoring is deficient, however, no cognizable claim regarding this alleged failure exists, because the project‘s approval was not conditioned upon meeting monitoring requirements. This court has clarified that while a forest plan‘s forest-wide monitoring program does not constitute final agency action, “we may review a monitoring program to the extent it bears on the approval of a particular project.” Id. “[I]f a project‘s approval is conditioned upon the fulfillment of certain monitoring obligations, a plaintiff may bring a claim of deficient monitoring. Without such a relationship, a claim of deficient monitoring simply is not cognizable.” Id. at 750; see also UEC V, 483 F.3d at 1134 (noting that
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. UEC V, 483 F.3d 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.16
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED. Forest Guardians’ pending motions to supplement the administrative record and to file a supplemental appendix are GRANTED.