Pacific Rivers Council v. United States Forest Service

Avenue, 4th Floor 2041 Rosecrans Forestry Association; Ameri- California Segundo, El CA 90245 Association; Paper & can Forest Library Quincy Group; Plumas Coun- Tmesys, Defendant-Appellant Counsel for ty; Industry Associa- California Ski Inc. Defendants-intervenors-Appel- tion, Kurt Peterson C. lees. Grignon Margaret Anne No. 08-17565. N. Smersfelt Kenneth L. McClure Brett Appeals, United States Court LLP Reed Smith Ninth Circuit. Ave., Suite 2900 355 South Grand May 2010. Argued and Submitted Angeles, Los CA Filed June WHP Defendant-Appellant Counsel for Health Initiatives

Matthew Oster Emery &

McDermott Will East, Century Park Suite 3800 Angeles,

Los CA 90067 Defendant-Appellant Mede

Counsel for Corporation

America R. O’Hanlon

Neil LLP

Hogan Lovells US Stars,

1999Avenue of Suite Angeles,

Los CA 90067 COUNCIL,

PACIFIC RIVERS

Plaintiff-Appellant,

v. SERVICE;

UNITED STATES FOREST Rey, capacity

Mark in his official as Secretary Agriculture; Dale

Under

Bosworth, capacity as Chief of his Service;

the United States Forest Blackwell, capaci- official

Jack his

ty Regional Forester, Region Service, Defen-

United States

dants-Appellees,

dy, Attorney, Office of the U.S. Sacramen- CA, to, appellees. for the Klise, Michael Thomas Richard Lund- J. LLP, Washing- quist, Moring, Crowell & Rice, ton, D.C., P. & Mor- Steven Crowell CA, Jackson, LLP, Irvine, Michael B. ing, CA, Quincy, intervenors-appellees. for the REINHARDT, Before: STEPHEN A. N. WILLIAM FLETCHER and SMITH, Judges. RANDY Circuit Opinion by Judge WILLIAM A. FLETCHER; by Judge Dissent N.R. SMITH.

ORDER February opinion This court’s filed on (9th reported 668 F.3d 609 Cir.2012), withdrawn, replaced by and is Opinion the attached Dissent. filing opinion, With the of the new Fletcher vote to Judges Reinhardt W. deny petition rehearing for and the petition rehearing Judge for en banc. grant petition N.R. Smith votes to for rehearing petition rehearing and the for en banc.

The full court has been advised of the rehearing en and no petition for banc judge requested of the court has a vote on whether to rehear the matter en banc. Gaffney, Lippe Gaffney Wagner, Brian R.App. Fed. P. 35. CA, Francisco, Naficy, Babak San San petition rehearing peti- for and the CA, Obispo, appellant. Luis for the banc, April filed on rehearing tion for en Huber, Cynthia Pepin, Joan M. U.S. S. 18, 2012, are DENIED. Justice, D.C., Department Washington, rehearing Samford, petitions No further Barclay Department T. U.S. Justice, Denver, CO, rehearing accepted. en banc will be Taylor David Shelle- complaint cific

OPINION Rivers’ is that the 2004 EIS sufficiently analyze does not the environ- FLETCHER, Judge: W. Circuit mental consequences of the 2004 Frame- Neva- The national forests of the Sierra work for amphibians. fish and On cross- (“the Sierras”) home to a da Mountains summary judgment, motions for the dis- fauna, at least 61 array including rich trict granted judgment court summary species species amphibi- and 35 of fish the Forest Service. Ecosystem ans. The Sierra Nevada Pro- ject, study Congress, commissioned timely Pacific appealed grant Rivers concluded in 1996 that their environment judgment. of summary For the reasons severely degraded: aquat- has been “The follow, conclude we the Forest ic/riparian most systems are the altered Service’s in fish the 2004 EIS and in impaired habitats the Sierra.” However, does not with comply NEPA. we The national forests the Sierras are conclude that the Forest Service’s (“the managed under eleven Forest Plans amphibians comply does with NEPA. Plans”). 2001, In January Forest the We part, therefore reverse in affirm in (“Forest United Forest Service Ser- States part, and remand to the district court. vice”) Final Im- issued a Environmental (“2001 EIS”) pact Statement recommend- Background I. ing amendments the Forest Plans the along a Stretching north-south axis for intended, Sierras. The amendments were miles, more than 400 the Sierra Nevada among things, to and repair other conserve Mountains one form continu- longest aquatic riparian ecosystems. the In and ous ranges mountain lower the 2001, January under the administration of states. The Forest manages Service near- Clinton, President the Forest Service ly 11.5 million acres of land under the adopted a of the pre- modified version Forest Plans. Each Forest Plan is a Land ferred alternative recommended the Management Resource Plan parties 2001 EIS. this as refer to the (“LRMP”) promulgated formulated and 2001 Framework. pursuant to the National Manage- Forest 2001, In November under the adminis- (“NFMA”). ment Act See U.S.C. Bush, newly tration of elected President § requires 1604. NFMA the Forest Ser- the Chief of asked for a the Service vice for and to multi- coordinate review of the 2001 In Framework. Janu- forests, ple including uses of the national ary 2004, the Forest Service a Final issued recreation, timber, range, “outdoor water- Supplemental Impact Environmental shed, fish, wildlife and and wilderness.” (“2004 EIS”) recommending Statement 1604(e)(1). § 16 U.S.C. An LRMP significant changes to Frame- adopted pursuant guides to NFMA all adopted

work. The Forest Service management decisions within forests preferred alternative in the EIS. The subject to that LRMP. projects Individual parties refer to this as the 2004 Frame- developed according guiding to the work. principles management goals ex- Plaintiff-Appellant Pacific Rivers Coun- pressed in LRMP. Forestry See Ohio (“Pacific Rivers”) cil brought suit feder- Ass’n, Club, Inc. v. Sierra 523 U.S. challenging al district court 729-31, 118 S.Ct. 140 L.Ed.2d 921 Framework as inconsistent with the Na- (1998). tional Act Environmental Protection (“NEPA”) govern The Forest Plans the eleven na- Proce- Administrative (“APA”). gravamen length dure Act of Pa- that run tional forests a Final EIS Janu- to the est Service released California from Southern Sierras Sequoia, ary, 2001. California-Oregon border —the Stanislaus, Sierra, Humboldt-Toi- Inyo, designated “Modified The 2001 Plumas, Lassen, Tahoe, Eldorado, yabe, preferred alternative. Alternative 8” as Forests, the Lake and Modoc National January In a of Decision issued Record The area Management Basin Unit. Tahoe this al- adopted the Forest Service to more by the Plan amounts encompassed This is the “2001 Framework.” ternative. managed forest land than 5% of the total See http://www.fs. over 200 by the Forest Service. The Forest Service received (National Forests timely appeals. The Chief administrative fed.us/r5/sierra/about/ acres). Service, The forests encompass newly appointed 191 million of the Forest activity, administration, in- substantial economic not re- support incoming did Rather, well logging grazing, as cluding spond directly appeals. to the he comprise dozens recreation. The forests to reevalu- Regional directed the Forester ecosystems. They include icon- complex respect ate the 2001 Framework Whitney, First, such as Mt. ic natural landmarks three fire-related issues. the Chief Lake, Tahoe, giant sequ- Lake and Mono directed him “to re-evaluate the decision oia trees. flexibility ag- possibilities for more Second, gressive fuels treatment.” he di- manage part As of its mandate to rected him “to re-evaluate the decision forests, took national the Forest Service possible based on new information associ- major steps improve the 1990s to Plan,” ated the National Fire a ten- In ecological health of the Sierras. No- year by Congress, fed- strategy developed published the Forest Service vember agencies, eral Indian Tribes and western an prepare a Notice of Intent Environ- fire-adapted ecosystem States to restore (“EIS”) analyz- Impact mental Statement Third, health. he directed him to re-evalu- proposed changes number of to the ing a placed by limitations the 2001 Frame- ate Forest Plans for the Sierras. The Forest Li- Herger-Feinstein Quincy work on the “improve national Service cited the need to brary Group pilot project dealing Forest for five management forest direction broad prevention. with fire (1) problems: conservation of old-forest (2) ecosystems, aquatic, conservation of ri- Regional In Forest- December (3) ecosystems, in- parian, and meadow appointed er Amendment Review (4) buildup, risk of and creased fire fuels Regional Team. Forester non- added (5) weeds, and sus- introduction noxious the issues fire-related issues to identified hardwood forests.” taining In the fire- by the Chief. addition to issues, Team nearly study, In after a decade of related he asked Review proposed “identify opportunities” the Forest a number of three areas: Service first, changes to the Plans to ensure “the to “reduce the unintended and ad- Forest sustainability impacts the 2001 on ecological [of Framework] of the entire Sier- verse second, holders”; ecosystem grazing permit ra to “re- Nevada and the communities impacts the unintended and adverse depend on it.” The Forest Service duce evaluating eight Draft alter- the 2001 on recreation [of Framework] issued a holders”; and, third, to objectives permit users and implementing natives for im- of Intent. Follow- “reduce the unintended and adverse outlined the Notice comment, on local ing public pacts Framework] scientific review and [of agencies, consultation with other the For- communities.” ap- In Service issued of Decision. The Forest Service Chief June proved Draft based on the the Record Of Decision without Supplemental fo- change work of Review Team. The Draft November 2004. This is the comparison cused on a of two alternatives. “2004 Framework.” was the 2001 Framework. “Alternative SI” Both the 2001 and Frameworks are “preferred was the alter- “Alternative S2” terms, in general written than ad- rather proposed native.” Alternative S2 substan- dressing specific logging sites at which the tially logging more and associated activi- logging-related and will take activities ties than the Framework. It also are place. But there substantial differ- grazing proposed to reduce restrictions ences between the and 2004 Frame- by and recreational livestock. commercial appeal works. Relevant this are in authorized changes logging logging- The Draft criticized staff activities, for Washington changes the Forest Office related in grazing Service’s Wildlife, Watershed, Fish, Air and Rare standards commercial and recreational letter complain- Plants. The staff wrote a livestock.

ing that was no there discussion changes log- The most substantial logging logging-related effects of ging logging-related activities. The activities on fish: harvesting Framework allows the Aquatic Riparian: There needs substantially more timber than the 2001

be a the new discussion of effects of Framework. The Framework al- riparian ecosystems, alternatives on the harvesting lowed of 30 million board It is not streams and suffi- salvage per fisheries. year during feet of timber cient to dismiss these effects as within Framework’s and first second decades. impacts of in the range discussed contrast, By the 2004 Framework allows ... without [2001] framework further harvesting of three times amount analysis, proposed given activities salvage timber—90 million board feet S2. [pro- Alternative the treatments If per year during its first and second dec- posed S2] in Alternative will be suffi- The ades. 2001 Framework allowed the effect, their cient to have intended there harvesting of 70 million feet board high is a there be likelihood that will green per during timber first year its dec- direct, significant and measurable indi- per year board ade million feet rect on and cumulative the envi- effects contrast, during By its second decade. ronment, analyzed which need to be harvesting 2004 Framework allows the this disclosed in document. green 4.7 and 6.6 times that amount of added.) (Emphasis The letter also raised per year timber —329 board million feet not adequately concerns that Draft did its during first decade and million analyze impact changed grazing per year during board feet its second dec- environments, riparian standards salvage ade. The totals for timber for the and fisheries. streams million two decades are 600 board feet Framework, 1.8 under the billion The Service issued the 2004 EIS feet adding board under 2004 Framework. January 2004 without the discus- green The totals for timber for the two “riparian ecosystems, sion streams and are 900 million feet fisheries” that the staff letter had said was decades board under Framework, Regional needed. Forester adopted 4.6 billion board shortly under Alternative S2 afterwards a Rec- feet the 2004 Framework. Stated 6,000 differently, compared ord of Decision. Over administrative the 2001 Frame- work, objecting appeals were filed to the Record the 2004 Framework allows har- strategically spatial location of 4.9 billion board of an additional vesting under Alterna- placed area treatments1 feet of billion board feet of timber —1.2 and S2 [the Framework] tives SI board feet of and 3.7 billion salvage timber same, are the but [the Framework] two decades. during its first green timber — they previously are different than con- allows the Framework also The 2004 example, analysis For in the sidered. larger trees than the harvesting of assumption on the EIS] was based [2001 example, the 2001 Framework. For under the area treatments would be Framework, up to 30 inches trees primarily upper on the two- placed2 could harvested breast-height-diameter be slopes, minimizing overlap thus thirds Sierras, but west side the wetter perennial, with RCAs3 associated with 24 inches in the drier east side. only up to intermittent, ephemeral streams. Framework, up trees to 30 the 2004 Under However, longer is no assumption this breast-height-diameter can be inches Consequently, valid. under Alternatives on both the west and east sides. harvested S2, SI and treatments are limited to substantially in- The 2004 Framework result, any geographic position.4 As a acre-age logged. to be the total creases more treatments within RCAs ex- Framework, about 15% Under the 2004 requires that pected.5 Alternative SI subject prescribed fewer acres will be portions of treatment areas be left in an Framework, than under the 2001 burns likely untreated condition.6 It is logged be but about 250% more acres will priorities be riparian areas would Further, “mechanically.” the 2004 under Al- requirement.7 retention to meet this Framework, logging more be conduct- will require ternative S2 does not retention streams than ed close to under of untreated areas within treatment states, Framework. The 2004 EIS units so that fire and fire ef- behavior obfuscating more than the usual amount of effectively fects are reduced within the entire unit.8 bureaueratese: misleading. 1. There is no definitions section in the 2004 4. This sentence is "Treatments” EIS, (i.e., usage apparent logging burning) in the it is EIS. From and under Alternative (the Framework) logging pre- geograph- that “treatments” means SI 2001 are more and/or scribed burns. ically limited than "treatments” under Alter- (the Framework). native S2 2004 English, "placed” 2. In standard means “con- ducted.” 5. sentence translated into En- This standard result, glish: logging burning "As a more and Riparian 3. are Conservation "RCAs” Areas. expected close streams under the 2004 January approv- 2004 Of Decision See Record Framework.” ing ("riparian 2004 conserva- (RCA)”). tion area into En- This sentence translated standard court, In brief to the Forest Service its this glish: requires "The Framework meaning acronym. misstates the of the It logged certain areas not be or burned.” indicates that RCAs are Resource Conserva- ("Re- Response tion Areas. See Brief at 33 7. This sentence into standard En- translated (‘RCAs’)”). source Conservation Areas In the glish: likely "It that under the 2001 Frame- case, the between context of this difference riparian logged work areas would not be “riparian” important. "Ri- and "resource” is burned.” term, parian” precise meaning something is a stream, river, related to the bank of a or other 8. This sentence translated into standard En- term, body general glish: logging of water. "Resource” is a "The 2004 Framework allows burning meaning anything close to streams in order to elim- from natural resource everywhere given 'treatment such as trees to a financial resource such as a inate trees reducing account. unit' as a means of the risk of fire.” bank categorical exclusion of re- “compac- eliminates Framework limited soil The 2001 pack to streams to creational stock and saddle stock areas close project tion” area, 2004 Framework toad-occupied during but the from meadows 5% of season, such no limit on “disturbances” places breeding rearing and allows develop project-based plans areas. managers mitigate effects on the toad. allows substantial- The 2004 Framework new, and recon- ly more construction grazing have also Other restrictions on existing, logging roads than struction of The 2004 di- been reduced. Framework Framework. the 2001 the 2001 Under habitat-protecting restrictions on vides Framework, miles of new roads were to grazing categories into several based on constructed, existing and 655 miles of be impacts grazing permit- the adverse on the reconstructed, during were to be roads greater impact, tee: the adverse Framework, the 2004 first decade. Under habitat-protecting required more effort is are to be construct- 115 miles of new roads part permittee. The 2004 on ed, 1,520 existing miles of roads recon- the effect of the 2004 EIS describes structed, Howev- during the first decade. grazing permittees on 47 Framework Framework, er, the 2001 950 miles under of the “active allot- (amounting 11% decommissioned, com- were to be of roads ments”). Framework, Under the 2001 1,175 miles of old roads pared with regulations impact” had “no adverse on the 2004 decommissioned under are to be any permittee. regulations had a “low also The 2004 Framework Framework. impact” on 11 a “medi- permittees, adverse tempo- an additional 215 miles allows 17, a impact” “high um adverse on adverse (43 temporary miles of roads rary roads “very impact” high and a adverse an addi- year years) for 5 and slates per Framework, impact” on 7. Under the 2004 3,200 of roads for maintenance tional miles (no are, respectively, 14 those numbers (640 year years). for five per miles (low), (medium), impact), adverse under the Finally, grazing restrictions is, a (high), (very high). and 7 That total are reduced 2001 Framework grazing permittees of 14 who had been Framework, Framework. Under the adversely impacted by habitat-protecting (cattle sheep), commercial livestock 2001 Framework are regulations under the (pack livestock well as recreational at all under the adversely impacted by commercial outfit- saddle stock used per- of those 14 2004 Framework. For 3 ters) were to be excluded from meadows mittees, by the 2004 change effected by Yosemite occupied known to be Toads a high is to move from ad- Framework rearing during breeding the toads’ is, to at all—that to impact impact verse no seasons, well as from meadows where regulations requiring from “substan- move (or surveys presence the ab- to determine habitat-protective per- tial” effort the sence) yet not been of Yosemite Toads had no effort regulations requiring mittee to performed. The 2004 Framework allows whatsoever. graze livestock to meadows commercial that the 2004 predicts The 2004 EIS surveys presence to determine the where acreage the annual Framework will reduce yet per- Toads have not been of Yosemite 2001 Further, by wildfires. the the 2004 Framework burned Under formed. prose Agencies employ of clear should writers the Forest Service: "Environ- We remind review, write, impact mental statements shall be written or edit state- or editors to plain language ments!;.]” ... so that decisionmakers § 40 C.F.R. 1502.8. public readily them. and the can understand 1020 (Lands II), 981,

Framework, acreage annual the estimated McNair Council 537 F.3d 64,000 (9th Cir.2008) (en banc) during acres (quoting of wildfires was 987 Earth 63,000 decade, during acres Serv., first Island Inst. v. U.S. Forest 442 F.3d Framework, fifth decade. Under (9th 1147, Cir.2006)), 1156 overruled on acreage annual of wildfires the estimated grounds by v. other Winter Natural Res. decade, 60,000 during

is acres first Council, 7, 365, 555 U.S. 129 S.Ct. Def. 49,000 decade, during the fifth re- acres (2008). L.Ed.2d 18,000 acres sulting in a total reduction reviewing adequacy “In anof over two decades. EIS, employ we rule of reason to deter 2005, May Pacific Rivers filed suit mine whether the EIS contains a reason that the 2004 Framework was alleging ably thorough discussion of significant adopted in violation of NEPA and the aspects probable environmental conse Pacific appeal, APA. On Rivers contends quences.” v. Kern Bureau Land fails to take a “hard (9th Cir.2002) Mgmt., 284 F.3d impact look” at the environmental of the (internal omitted). quotation marks “Once amphibians. 2004 Framework on fish and agency obligation prepare an has an an We conclude that the 2004 EIS does not scope of environ fish, comply respect with NEPA with consequences mental that EIS must be comply respect amphibi- but does appropriate question.... to the action in ans.

If reasonably possible analyze it is II. Standard of Review in an EIS ..., the agency required perform is questions We review de novo of Article analysis.” Id. at 1072. justiciability, including standing. III Port (9th Jones, er v. 319 F.3d Cir.

2003). We also review de novo a district III. Discussion summary court’s judgment decision Standing A. agency complied that an with NEPA. Or.

Natural Desert Ass’n v. Bureau Land argues Forest Service for the first (9th Cir.2008). Mgmt., 531 F.3d appeal time on that Pacific Rivers lacks agency’s Judicial of an compliance review standing III under Article of the Constitu APA, governed by with NEPA is Questions tion. jurisdiction of Article III requires which this court to set aside the any can be raised at time. See Ctr. for agency’s if it “arbitrary, capri action is Biological Diversity Kempthorne, v. cious, discretion, an abuse of or otherwise (9th Cir.2009). F.3d not accordance with law.” (quoting Id. standing To have under Article 706(2)(A)). § 5 U.S.C. III, plaintiff must establish that will reverse a decision “[W]e as arbi- (1) it has “injury suffered fact” trary capricious only if (a) particularized concrete and Congress relied on factors did intend it (b) imminent, actual conjec or consider, ‘entirely failed to consider an (2) hypothetical; tural or injury the important aspect of problem,’ the or of- fairly traceable to the challenged action explanation fered an ‘that runs counter to (3) defendant; likely, it is the evidence the as before or is so opposed implausible merely speculative, that it that the could not be ascribed to a in product injury by difference view or the of will be redressed a favorable ” agency expertise.’ The Lands Council v. decision. Earth, tion, the Inc. v. parties dispute Friends Laidlaw the settled the over Sews., 167, 180-81, Envtl. 528 U.S. 120 that sale. Id. at 1148. appeal, On both (2000). 693, 145 L.Ed.2d 610 To S.Ct. before the Ninth Circuit and before the standing injunctive have to seek relief un- Court, Supreme plaintiffs the continued to III der Article challenge validity the exemption the plaintiff a must show that he is under less, though 250 acres or now there was no suffering “injury threat of in fact” that specific They sale at issue. could make particularized; is concrete and the only general a statement they would imminent, threat must be actual and not visit national forests the future and conjectural hypothetical; or must be might come in contact parcel with a of 250 fairly challenged traceable to the action or acres less on which a salvage-timber defendant; and it likely must be sale had been conducted without an EIS or judicial that a favorable decision will an EA. Id. at 1149-50. prevent injury. or redress the The Supreme Court concluded that Inst., Summers v. Earth Island 555 U.S. chance, only there was a “hardly remote a 1142, 1149, 129 S.Ct. 173 L.Ed.2d 1 likelihood,” that such visits would bring (2009). An organization may sue on behalf plaintiffs into contact with land affected of its members challenged regulations. Id. at 1150. when its members would otherwise have The Court noted that the regulation at standing to sue in right, their own applied issue to all national forest land at germane interests stake are to the (190 acres) million and that the size organization’s purpose, and neither the (250 parcels affected was small acres or claim asserted nor the requested relief less). “Accepting Id. an intention to visit requires participation of individual the National Forests adequate to confer members in the lawsuit. standing to challenge any Government ac- Laidlaw, 181, 120 528 U.S. S.Ct. 693. tion affecting any portion of those forests The Forest Service contends that be- would be tantamount to eliminating the challenges cause Pacific Rivers amend- requirement concrete, particularized in- ments to Land Management and Resource jury in fact.” Id. specific project Plans rather than a under Summers, year One after we held LRMP, allege it has failed to a threat of Society, Wilderness Inc. v. Rey, 622 F.3d a “concrete particularized” injury (9th Cir.2010), plaintiff that a organi- is “actual or imminent.” The Forest Ser- zation standing lacked to challenge vice also contends that Pacific Rivers’ same nationwide specified parts regula- members have not which Forest Service national they forests the Sierras tions at issue in use. Summers. A member of plaintiff organization expressed gen- The heavily Forest Service relies on the eral intention to return to Umpqua Supreme Court’s decision Summers. National Forest for recreational use. Id. plaintiffs challenged Summers na- at 1256. We held that Summers demands regulations tionwide promulgated by the showing general more than a of a intention that exempted Service sales of sal- of returning to a national forest. The vage timber of 250 acres less from member must likely “show[] he is NEPA requirements prepare an EIS or (“EA”). encounter an Umpqua area of the an Environmental Assessment Id. affected at 1147. National Forest in his plaintiffs initially future visits.” Id. challenged specific (emphasis addition, sale of salvage original). timber. After the In district court a preliminary injunc- issued Project member feared that the Ash Creek might objected

in National Forest had in Umpqua standing the district court, inter- plaintiff-organization’s threaten the easily sup- Pacific Rivers could have protecting ests in wilderness lands. Id. plemented Anderson’s declaration with But this fear insufficient to the court found of declarations individual members who “al- standing: obtain The member did not Sierras, enjoy use and specifying par- lege enjoyment any that his future is in ticular particular pat- national forests and way by the threatened Ash Creek Pro- timing terns of use. Given the added). ject.” (emphasis Id. objection standing, Forest Service’s if we were to hold on the current record that Society

Summers and Wilderness Pacific sufficiently Rivers has not estab- substantially different from this case. lished threats of harm to its members who Pacific Rivers introduced into evidence in recreation, use the Sierras for we would the district court a declaration of its Chair man, Bob Anderson. Anderson declares remand to the district court to fur- allow Tahoe, in that he lives South Lake that he ther development of the record. But we Lake, and his own property wife at Mono think development such additional un- they “frequently and that hike and climb necessary. clearly Anderson has stated in Range.” the Sierra Nevada Anderson that he and a number of Pacific Rivers’ declares further that Pacific Rivers has used, members have and will continue to members, over 750 some of whom live in use, the national in in forests the Sierras California. He states: variety places variety and in a ways. My first backpacking trip Sierra Nevada decades, During the first two the 2004 King Mineral area harvesting Framework allows the of ap- during which time I also I plan fished. proximately 4.6 billion board green feet of to continue long these activities as as the timber approximately 1.8 billion board management of Sierra Nevada national salvage feet of harvesting timber. This forests does not prevent doing me from place every will take one of the 11 garnered so. I have great personal so- national forests in the Sierras. The small- lace in knowledge that Sierra Neva- est amount green timber harvesting species da native and the watersheds during the two decades—35 million board that support persist them despite over a feet—will place take in the Lake Tahoe century’s worth impacts grazing, from Management Basin. The Lake Tahoe ba- mining, logging, building, road dam con- relatively sin is small subject and is to the struction, and related activities. The most intensive recreational use of the 11

same is true for the membership of [Pa- by national forests covered Rivers], many in, cific of whom recreate Framework. Anderson lives the Lake throughout, fish and derive much satis- Tahoe greatest faction basin. The amount har- from the Sierra Nevada. vesting billion board feet—will take He specifically writes —1.4 respect place in Plumas National Forest. Har- members: vesting quantities between these two participate [Pacific Rivers] members place amounts will take in each of the activities, recreational such fishing, other nine national forests covered hiking, backpacking, cross-county skiing, 2004 Framework. nature photography, and river and lake boating throughout the Sierra Nevada. Framework, Under the 2004 much of the timber harvesting upper will be two challenged Forest Service Pacific standing slopes. Rivers’ Article III thirds of for the first result that har- time in this court. If vesting the Forest Service likely will therefore be from visible by specific project using harmed a herbi- Significant timber har- distances. great streams, near place also take or- vesting will cides.” Id. at 1352. Members of the spend of forests recreational users where ganization lived next within the The 2004 Framework much of their time. boundaries of the area where herbicides of 115 miles of the construction authorizes previously had been banned would now but 1,520 of reconstruction roads the new permitted, they frequently used the be existing during first roads the miles of area for recreation. Id. at 1353. These Grazing commer- restrictions decade. that members contended their health will livestock be re- and recreational cial adversely recreational interests were af- throughout the Sierras. duced fected the Forest Service’s decision to a connection between There is concrete Id. character- permit herbicide use. We Rivers’ members the interests Pacific injury the “that ized members’ as the risk the the enjoying the forests of Sierras and consequences” of herbicide Lujan See of the Framework. effect “might overlooked[ ] use be as a result Wildlife, 504 U.S. 562- v. Defenders government’s analysis the deficiencies in (1992). 119 L.Ed.2d 351 S.Ct. at under environmental statutes.” Id. members Pa- is little that There doubt (internal omitted). quotation marks into contact Rivers will come cific concrete, a specific That risk constituted areas, implementa- and that affected injury challenge and imminent sufficient to will of the Framework affect tion an EIS herbi- because “unfettered use of enjoyment continued use and their compli- ... cides in the absence NEPA contrast, By regulation forests. will harm to ance cause visitors’ recre- only small and issue Summers affected enjoyment, ational if to their use and not land widely parcels through- scattered health.” Id. States, and the plain- the entire United out any had not shown realistic likelihood tiffs specifically plaintiffs We held that into they would come contact with that specif- a challenge did have to “wait parcels. those project grievance ic when their is with why: plan.” explained overall Id. We two cases in this There are relevant circuit, In Salmon controlling. both River only action could be chal- [I]f Robertson, v. 32 F.3d Citizens Concerned lenged site-specific development at the (9th Cir.1994), held that an envi- we stage, underlying au- had organization standing ronmental escape thorization would forever review. challenge under NEPA to an bring pre-deter- To the that the plan extent million applied to 6 acres of LRMP future, represents mined it a con- forest in the Sierras. Id. at national land must, plaintiffs at some injury crete LRMP challenged allowed 1349-55. standing challenge. That have point, competing of all methods to treat the “use now, point or it is never. ... to meet tim- vegetation [in order] objectives,” delegated the yield ber League v. (quoting Id. Idaho Conservation use district (9th decision to herbicides Mumma, 956 F.2d Cir. Id. at foresters. 1992)). Ltd., Res. Inc. v. Robert See also (9th Cir.1993) (re son, 1300, 1303 35 F.3d standing argument The Forest Service’s jecting, challenge plan, in a to forest essentially River the same in Salmon “point to argument plaintiffs must standing plain- here —that argument as its injury park their precise area of the where standing because failed “to tiff lacked occur”). will that the members would be demonstrate 1024 panel Council, Inc., Another Circuit has recent- 87, Ninth Res. 97, 462 U.S. Def.

ly separate challenge addressed a NEPA 2246, (1983)) 103 S.Ct. 76 L.Ed.2d 437 to the same 2004 Framework issue (internal quotations omitted, and citations our Legacy case. In Sierra Forest v. in original). alteration NEPA is not sub- Sherman, (9th Cir.2011), 646 F.3d 1161 we It does not require agencies stantive. that held that an environmental organization adopt the most environmentally friendly standing challenge had Frame- 2004 Kern, course of action. 284 F.3d at 1066. work. Id. at 1179-80. We noted Ohio Rather, sweeping goals “[t]he ... policy Club, Forestry v. Ass’n Sierra 523 U.S. NEPA are ... through realized a set of 726, 1665, 118 S.Ct. 140 L.Ed.2d 921 ‘action-forcing’ procedures that require (1998), in which Supreme Court held that agencies a take ‘hard look at environ- that Club’s challenge Sierra to an ” consequences.’ mental Robertson v. Me- LRMP under the National Forest Man- Council, thow Valley Citizens 490 U.S. agement unripe Act was as a prudential 332, 350, 1835, 109 S.Ct. 104 L.Ed.2d 351 matter, but did not hold that the Sierra (1989) Club, (quoting Kleppe v. Sierra Club lacked III standing. Article Ohio 390, 20, U.S. 410 n. 96 S.Ct. Forestry, 523 U.S. 118 S.Ct. 1665. (1976)). L.Ed.2d 576 Forestry Court Ohio specifically noted that despite the legal Taking “considerable a “hard look” at environmental distance the adoption between the Plan major consequences federal actions in and the cut, moment when a tree is cludes “considering all foreseeable direct promulgation Plan’s makes nonetheless impacts. indirect Furthermore, a logging likely more in that it a logging ‘hard look’ should involve a discussion of precondition; in its absence logging could impacts adverse not improperly does place.” 730, 118 not take Id. at S.Ct. negative minimize side effects.” N. Alas We held in Sierra Forest Legacy ka Envtl. Ctr. v. Kempthorne, 457 F.3d harm flowing comply from failure to with (9th Cir.2006) (internal quotation NEPA in formulating the 2004 Framework omitted); marks and citations see also Or. was sufficient to standing confer plain Natural Res. Council Fund v. Brong, 492 bring tiff “to a facial NEPA challenge to (9th Cir.2007) (“[GJeneral F.3d Framework, independent from possible statements about effects and some specific implementing projects.” 646 F.3d risk do not constitute a hard look absent a at 1179. justification regarding why more definitive We therefore conclude that Riv- Pacific (inter information could not be provided.”) ers has Article III standing to challenge quotation omitted). nal marks the 2004 Framework under NEPA. Pacific alleges Rivers that the 2004 EIS does not take a hard look at environmental

B. NEPA the 2004 Framework on “The National Policy Environmental Act fish amphibians. For reasons that First, has ‘twin places aims. it upon [a follow, agree we with Pacific Rivers with agency obligation federal] to consider respect fish, but disagree respect every significant aspect of the environmen to amphibians. impact tal a proposed Second, action. ensures will inform the 1. Fish

public that it has indeed envi considered ronmental concerns in its decisionmaking 64-page contained de- ” Kern, process.’ 284 F.3d at tailed (quot of environmental conse- ing Baltimore Gas & Elec. Co. quences v. Natural of the 2001 Framework for indi- conjunction preparation In stark contrast with the of a species of fish. vidual contains the 2004 EIS programmatic-level plan to the such as 219.10(b) (1983) of analysis whatsoever environmental § no LRMP. 36 See C.F.R. Framework for consequences of the 2004 (“A impact draft and final environmental The 2004 EIS species of fish. individual pro- for the prepared statement shall be analysis the incorporates by reference plan according proce- to the NEPA posed contains in the 2001 but contained 219.5(a)(2)(i) dures.”); § see also 36 C.F.R. or different envi- analysis no of additional (2012) (“A plan plan new revision re- consequences ronmental quires preparation of an environmental im- new frame- though Framework even statement.”). The 2004 Framework pact substantially envi- authorizes more work not, LRMP; itself, rather, in an it is an than the ronment-altering activities old amendment to the LRMPs for the Sierras. particular importance, framework. Of may amendments to be so Some LRMPs Framework allows an additional 4.9 they do not insignificant require prep- green salvage feet of and billion board aration of an EIS. But the 2004 Frame- during the first two harvesting timber work is a fundamental revision of the For- decades, it nearer much of conducted est Plans in the Sierras. See C.F.R. streams, to the 2001 Frame- compared (1983) 219.10(f) (requiring § Forest Ser- incorporates by also work. The EIS vice, making “significant change when in biological assessments reference two plan,” procedure to “followthe same (“BAs”) consequences of the 2001 required development approv- and on listed fish under and 2004 Frameworks al of a plan”); forest see also 36 C.F.R. Act. But it nei- Endangered Species 219.5(a)(2)(h) (2012) (“The § appropriate the BAs findings ther summarizes the NEPA documentation for an amendment appendix. nor includes them an [EA], [EIS], may categorical be an an or a contends that The Forest Service exclusion, depending scope on the sufficiently hard look at 2004 EIS takes likely ef- scale of the amendment and its of the 2004 consequences environmental fects.”). ar- The Forest Service does not argu- Framework on fish. It makes two gue required. that an EIS was not But First, points it out that the ments. that, argue the Forest does be- Service Framework is an amendment to each of programmatic cause of the nature of the the Forest Plans in the Sierras. The For- Framework, required it was not its argues that because the Forest est Service LRMPs, perform EIS to an of environmen- reasonably it is not Plans are an possible consequences species for the EIS tal for the individual consequences of environmental of of fish. species. on individual Framework required level of an Second, in- argues that the 2004 EIS’s is different for corporation by reference of the BAs con- wrote in Friends site-specific plans. We cerning consequences Norton, Valley Yosemite v. 348 F.3d 789 Frameworks on listed fish 2001 and 2004 (9th Cir.2003): requirement. We satisfies the hard look agency’s planning manage- An arguments consider these turn. may ment occur at two distinct decisions levels: administrative Required Analysis a. Level in the 2004 EIS (1) “programmatic level” at al- [agency] develops which the here, During the time frame issue management scenarios of an EIS ternative required preparation federal law concerns, public an- in Kern a programmatic plan, RMP responsive costs, alyzes benefits and like the LRMP in before the case us. We of each alternative consequences wrote: [EIS], adopts an an agency may An not avoid obli- plan to [management]

amendable analyze gation an EIS environmen- multiple guide management foreseeably tal arise (2) resources; imple- use an RMP merely saying from that the which in- stage during mentation consequences are or will unclear be ana- projects, specific dividual site lyzed prepared later when an EA is for [management] with the consistent site-specific program proposed pursu- a plan, proposed and assessed. ant to an RMP. purpose of an “[T]he Ctr., Inc. v. For- Ecology United States possibilities is to [EIS] evaluate the in (9th Serv., 922, 923, 2n. est 192 F.3d light contemplated plans current and Cir.1999). EIS for a programmatic An to produce and an informed estimate of plan ... must ‘sufficient detail consequences.... environmental decision-making/ to foster informed but Drafting necessarily an involves [EIS] “site-specific impacts fully need not be degree forecasting.” some City of a evaluated until critical decision has Coleman, v. Davis 521 F.2d act development.” been made to on site (9th Cir.1975) added). (emphasis If an N. Lujan, Alaska Envtl. Ctr. v. 961 F.2d agency analysis were to defer ... of (9th Cir.1992).... 886, 890-91 RMP, environmental in an consequences

Although requires NEPA that promise on a perform compa- based to a [agency] consequences evaluate the analysis in rable connection with later an early stage pro its action at in site-specific projects, no environmental ject’s planning process, requirement consequences would need to ever be ad- (1) by statutory tempered is ‘the com dressed an EIS at the RMP if level reviewing [a court] mand that focus comparable consequences might arise, upon parameters a proposal’s as the scale, but on a smaller from a later site- (2) agency pref defines ‘the them/ specific proposed pursuant action to the erence to defer detailed until a RMP. development crystal concrete proposal an agency obligation Once an has to lized project’s prob the dimensions of a EIS, prepare scope an itsof consequences.’ able environmental consequences environmental in that Block, v. F.2d [California appropriate EIS must be to the action (9th Cir.1982) ]. NEPA question. designed is to Id. at 800-01. postpone analysis an environmental consequence to the possible last moment. Regardless of program whether a Rather, it is designed require such site-specific issue, matic plan at is analysis as soon as reasonably it can be requires analyze NEPA that an EIS envi Ecosystems done. See Save consequences ronmental Our v. proposed of a Clark, (9th 747 F.2d plan it 1246 n. 9 “reasonably possible” as soon as is Cir.1984) (“Reasonable Kern, forecasting to do so. At issue F.3d NEPA, ... things: speculation implicit Kern were two an EIS for a is (“RMP”) reject Management any attempt by agencies Resource Plan we must for Bay the Coos District in Oregon, responsibilities shirk their under (“EA”) Environmental labeling any for a NEPA and all Assessment discussion site-specific project in that ‘crys- district. The of future environmental effects as Kern, mentioned nowhere mentioned Scientists’ inquiry,’” quoting tal ball suggest- Atomic Ener and nowhere Info., Pub. Inc. v. Inst. for Comm’n, 481 F.2d need gy ed environmental (D.C.Cir.1973)). reasonably pos If it is in a if analyzed programmatic EIS not be con analyze the environmental sible “reasonably possible” perform it is RMP, the in an EIS for an sequences analysis. that anal perform required the Forest Service believe that Nor does more analysis may be The EIS ysis. II Lands overruled “reason- Council analysis, subsequent EA than general of Kern. The ably possible” requirement particular out that a may turn nowhere contends that we Forest Service an consequence must be Kern, or that Lands wrongly decided But and the EA. alyzed the EIS both “reasonably Kern’s Council II overruled analysis will not have an earlier possible” requirement. The Forest Ser- effort, guide it will been wasted recognizes vice its brief that Kern re- and, appropri to the extent EA reasonably possible quires perform it to EA the ate, “tiering” by the to permit consequences in analyses of environmental duplica wasteful in order to avoid EIS Appellee’s EIS. See Br. at tion. (“Pacific correctly notes that this 25 Rivers added). (emphasis See also

Id. at 1072 program- held Kern that a [in ] Court has integrate (“Agencies § 1501.2 shall C.F.R. analyze matic should environmental EIS process planning other the NEPA ‘reasonably possi- where consequences to possible time insure the earliest ”). argues The Forest Service under ble.’ environmen- and decisions reflect planning II a court Lands Council owes defer- values, in the delays to later tal avoid of what rea- ence to its determination is con- potential and to head off process, because, view, in flicts.”); sonably possible v. its Mexico ex rel. Richardson New 683, 707-08, Mgmt., 565 F.3d analysis ‘reasonably Bur. Land scientific “[w]hat Cir.2009) (10th (relying on Kern programmatic stage at the is a possible’ respect pro- violation with find NEPA question exper- within the methodological EIS). grammatic But the Forest agency.” tise of the Id. contends that dissenting colleague argues that it need not Our Service nowhere respect pro Kern with we overruled Kern. comply with deci plans our en banc grammatic-level at issue in this case The 2004 EIS II, 537 F.3d 981. in Lands Council sion changes to the 2001 recommends extensive II that Lands Council do not believe We more Framework and even extensive “reasonably possible” re overruled underlying Forest Plans changes to the At -in Lands quirement of Kern. issue prin have described the the Sierras. We site-specific II was an EIS for a Council Briefly, they cipal changes above. include opinion, specif In en banc we project. our billion more board feet of harvesting 4.9 Center, Inc. v. Ecology ically overruled the 2001 Framework timber than under (9th Austin, Cir.2005), cert. 430 F.3d 1057 (6.4 than under the unamend billion more Ecolo County nom. Mineral v. denied sub Plans). They logging include ed Forest Ctr., Inc., 1111, 127 549 U.S. S.Ct. gy that would not burning near streams (2007). holding Our 166 L.Ed.2d under permitted been have II that the Lands Council was They include the construc Framework. at issue was suffi site-specific EIS miles of new roads than tion of 90 more on-the- by studies and ciently supported (115 more the 2001 Framework nowhere under analysis. opinion Our ground analyses than miles under unamended to individualized “federal- nine Plans), more ly and reconstruction threatened fish endangered spe- Trout, than existing miles of roads under the cies”—the Little Kern Golden (1,520 Trout, more than under Framework miles Paiute Cutthroat the Lahontan Cut- Plans). they And Trout, the unamended Forest Sucker, throat the Modoc the War- grazing reduction of restrictions on Sucker, include ner the Shortnose and Lost River by commercial and recreational stock. Suckers, the Valley Central Salm- Chinook on, and the Valley Central Steelhead no what- EIS contains It Trout. then devoted 21 pages indi- soever analyses of 11 vidualized fish “sensitive changes species these on individual fish species” Goose Lake Lamprey, —the promises, the Sierra. The 2004 EIS Salmon, Run Eagle Fall Chinook Lake Riparian, (“Aquatic, Section 4.2.3 Trout, Rainbow the Volcano Golden Creek Ecosystems”), Meadow that it will Trout, Trout, the Goose Lake Redband states, analysis. The such an “Effects Trout, Valley Warner Redband the Goose species dependent of the alternatives on Sucker, Lake the Lahontan Lake Tui riparian, aquatic, and meadow habitats are Chub, Chub, the Goose Lake Tui and the (Section explained elsewhere in this [EIS] Finally, pages Hardhead. devoted 4.3.2).” added.). (Emphasis But analyses individualized of 14 “moderate promise is not fulfilled. Section 4.3.2 con- high vulnerability species” fish pages tains 67 of the environ- —the Brook Lamprey, Kern the Pacific Lam- consequences of mental framework Trout, prey, the Kern River Rainbow the a of species number individual of mam- Sucker, Sucker, mals, Owens the Mountain the amphibians birds and who are de- Chub, Eagle Lake Tui River pendent riparian on Pit Tui and meadow habitats Chub, Hitch, in Sacramento the Sierras. But in Owens nowhere that sec- (or EIS) Dace, Roach, Speckled Pit anywhere tion in River else the 2004 is Roach, Joaquin any Rough San and the Scul- analysis there of species individual of pin. explicit promise fish. The to analyze ef- species dependent

fects “on on ... aquatic analyzed The 2001 EIS the environmen- 4.3.2, habitats” in Section and the absence consequences tal to fish of of each (or any of such in analysis that section eight alternatives identified in the EIS. else), anywhere puzzling. is It possible is See, EIS, 3, e.g., 3, vol. ch. at 262 that the promised analysis absence of the (“Timber harvesting may be conducted in nothing is simple more than a mistake. areas, riparian following guide- different mistake, ifBut a it awas mistake that was lines, 6, 3, 4, under Alternatives specifically brought to the of the attention prohibit Modified 8. Alternatives 3 and 5 Forest Service in by the letter its written zones; building riparian road in Alterna- Washington above, staff. As described negative tive 5 further addresses effects of stated, that letter “There be needs to on roads streams requiring that failed of discussion the effects of the new alter- crossings road and culverts be identified riparian ecosystems, natives streams rehabilitation.”); have priority for see and fisheries.” (same). at also id. striking

In to also described contrast the environmental conse- (“One See, quences 2001 EIS of pages grazing. e.g., contained 64 of detailed id. of analysis factors, of environmental of consequences greatest risk within the control Service, the 2001 Framework on individual fish of the Forest to Forest Service species. pages The 2001 EIS devoted 28 sensitive fish in species the western United why of explanation no the 2004 EIS degradation has been States environment, reasonably possible provide any those re to especially aquatic grazing.”); long term livestock whatsoever of environmental con- sulting analysis from (same). 63, 122 fish, at species also id. for of sequence see individual analysis pro- had been when an extensive particular analyzed also The 2001 EIS There is also no vided EIS. species risks for individual environmental why it was explanation the 2004 EIS Paiute and example, for both of fish. For an exten- “reasonably possible” Trout, “risk factors” Lahontan Cutthroat environmental conse- sive of individual immediate loss included “the mammals, quences species to individual such as specific features fish ... habitat birds, but not cover, amphibians increases use[d] undercut banks changes reasonably possible provide any leading in sedimentation and the loss of capacity, bed spawning whatsoever environmental necessary to maintain vegetation riparian fish in 2004. species to individual For temperature regime[s].” adequate flexibility An in decid agency has Suckers, River risk and Lost Shortnose anal ing perform when “[djecreases in water included factors But an environmental yses. harvest, resulting from timber quality detail to foster “provide must ‘sufficient activities, riparian removal dredging ” decision-making,’ informed Friends of grazing.” For and livestock vegetation, (citation Valley, Yosemite 348 F.3d Steelhead, destruc- Valley “habitat Central omitted), unreasonably and so cannot be a “risk factor.” The was listed as tion” En In the Council on postponed. harvest, that “timber road EIS noted Quality (“CEQ”) established vironmental grazing, livestock building, agriculture, agency practices Force to review Task all steelhead development” “affect[ ] urban Force wrote in under NEPA. The Task For Creek Golden habitat.” Volcano CEQ, “Reli September report its Trout, factors included “increases risk NEPA programmatic ance on documents in changes leading sedimentation public regulatory resulted in and has the loss of capacity, bed spawning NEPA agency programmatic concern that necessary to maintain riparian vegetation game’ a of play documents often ‘shell regime. The risk adequate temperature and where deferred issues will be primarily a result of when factors identified are addressed, agency credibility grazing practices.” undermining and current historic Suckers, factors in- Lake risk The NEPA Task For Goose and trust.” Force, Mod “many fact that of the streams ernizing Implementation cluded the NEPA habitat loss due to experienced (2003), have some http://ceq.hss.doe.gov/ available and other logging, grazing of the effects agency’s An ntf/report/frontmats.pdf. degrade factors that can watersheds.” “reasonably possible” compliance the EIS, in re requirement programmatic a 2001 EIS with re- adequacy of the level of environ sulting appropriate an is at to fish is not at issue. What spect that a “shell analysis, mental ensures of the 2004 EIS. adequacy is the issue appearance game the of such game” or analysis in the 2001 or not the Whether ar review under the is avoided. Judicial (a that is not adequate question EIS was of the bitrary capricious standard us), that an the 2001 EIS shows before Act, 5 Procedure U.S.C. Administrative of analysis consequences of environmental 706(2)(A), in turn ensures that an § species Framework for individual the 2004 its re- improperly does not evade “reasonably possible.” There of fish was above, an sponsibility perform environmental noted Section 4.2.3. of the 2004 EIS analysis analysis when such an is “rea- analysis an of promises the of the “[e]ffects sonably possible.” species dependent alternatives on on aquatic, riparian, and meadow habitats” in cases, appropriate

In level of some the 4.3.2. Section Section 4.3.2 contains a de- in a analysis programmatic environmental analysis tailed the of environmental effects cases, fairly In such our EIS debatable. mammals, on individual species of birds is to obligation expertise defer the of amphibians. But Section 4.3.2. con- the But in this case Forest agency. the no analysis tains of whatsoever individual largely has resolved the Service debate EIS, fish, species us. In the even though its Forest Service fish are the performed an analysis quintessential “species extensive the dependant likely impact of the 2001 environmental aquatic ... habitat[ ].” Framework, pages including of detailed light analysis In of the extensive of the analysis likely impact the on individual consequences environmental on individual contrast, species. fish In stark Forest species EIS, fish and of the analysis performed Service no whatsoever analysis extensive of the environmental likely EIS of impact its 2004 consequences species on individual 2004 Framework on fish. The Ser- mammals, birds, and amphibians provided analysis vice no despite the fact conclude, contrary we to the Framework allows much contention, Forest Service’s it was construction, more logging, burning, road “reasonably possible” to provide some Fi’amework, grazing than analysis of the environmental conse- it despite provided fact that had quences on individual species fish analysis detailed in a EIS 2004 EIS. The failure of EIS to only years three earlier. provide any such ais failure to require We do the Forest Service comply with hard requirement look provide in the 2004 precisely the same NEPA. level of as in its 2001 EIS. We recognize may be appropriate to b. Incorporation by Reference of have fewer than 64 pages anal- detailed Biological Assessment ysis of for in- The Forest Service’s fail-back ar species dividual of fish the 2004 EIS. gument is if that even of envi Indeed, if the Forest Service had ex- consequences ronmental the 2004 plained its entirely omitting reasons for Framework species for individual fish any analysis impact of the “reasonably possible,” the hard-look re fish, on species Framework individual it quirement by is satisfied Biological two

might have been it able show that (“BAs”), by Assessments incorporated ref to postpone reasonable such analysis until erence in disagree. the 2004 EIS. We it site-specific proposal. makes a But the Section 7 of Endangered Species Act explana- Forest Service has provided no requires a (re- agency federal consult Compare § tion. 40 C.F.R. 1502.22 the U.S. Fish and quiring an Wildlife Service agency “always that make (“USFWS”) proposed if a by clear” if it action lacks information to conduct agency “may species analysis). environmental The affect” “listed” Forest Ser- provided 1536(a)(2); § vice has its critical opposite almost an habitat. U.S.C. 402.14(a). explanation, § for it promised analy- such an 50 C.F.R. Pursuant to Sec- 7, sis and then failed to it. As we tion the Forest Service two sent BAs to argument to initiate the consultation The Forest Service’s fails for the USFWS BA, in independently The first sent December three sufficient reasons. process. that the alternatives con- indicated First, nature, depending its material “may in the 2001 affect” the sidered EIS EIS, in should be the text of an should be Trout, Golden California Gold- Little Kern EIS, appendix in an to the or should be Trout, Trout, Pai- en Lahontan Cutthroat incorporated by reference in In the EIS. Trout, Chub, Tai ute Cutthroat Owen’s (1) descending importance: order of Dis- Sucker, Sucker, Lost River Short- Modoc significant cussion of environmental im- Sucker, nose and Warner Sucker. The pacts appear must the text of an EIS. BA, July sent in indicated second (2) § 1502.1. C.F.R. Material in the the alternatives considered any analysis “substantiates fundamental to “may species affect” all of the EIS may appear appendix. an [EIS]” except in the 2000 BA the California listed (3) § may Id. 1502.18. Material incor- be Trout. Golden porated by long reference so as its omis- does not the texts The 2004 EIS include “imped[e] sion from the EIS does not BAs, twice, it refers to them but 1502.21; § public review.” Id. appendix. text and once in an once Forty Questions see also Most Asked Con- First, “Threatened, Section 4.3.1 discusses cerning CEQ’s National Environmental Endangered, Proposed Species.” Policy Regulations, Fed.Reg. Act BAs, states, in respect to the its With (March 1981) (“FAQs”). 18033-34 If entirety: the BAs were intended to serve as the biological for the assessments] [T]he analysis of the environmental conse- and for the con- [2001 EIS] [2004 EIS] fish, quences of the 2004 Framework for thorough analysis tain a more of effects EIS needed do more than evaluating and was used effects [sic] incorporate They them reference. They hereby incor- species. on each analyzed should have been described and porated by reference. in the text of the 2004 and the BAs identify The text does not the individual themselves should have been included species of fish included the BAs. appendix. Second, of the 2004 is a Appendix C formality. not a mere pur- This is

“Consistency compares Review” that pose of an EIS is to inform decisionmakers 2001 and 2004 Frameworks to determine general public and the environmen- supplemental whether proposed tal of a federal ac- analysis is needed in the 2004 With EIS. purpose tion. That if a would be defeated Threatened, “Endangered, respect critical omit- part of the could be fish, Consistency Proposed Species” of appendices. ted from an EIS and its Review concluded: general public. EIS is circulated to the “If

Implementing proposed changes possible,” appendices at all are also in the [2004 considered would EIS] public. circulated to the Id. at 18034 expected produce appreciably be to dif- 25a). (FAQ incorpo- The material that is species ferent results. Effects on these by is not circulated to rated reference the Biological are documented the As- public; only it need be “made available.” EIS], July sessment the [2004. incorporated by Id. Material that is refer- for “briefly ence described” in the must be EIS, 1502.21, § Appendix species body identifies the of fish of the 40 C.F.R. but The by description pur- the 2003 BA. a brief cannot fulfill the covered likely substance of is 2004 Frameworks that are affect of the EIS if the what to pose important part species. of the that incorporated is EIS discusses the analysis. impact grazing, prescribed of livestock fire, mechanical fuels treatments road Second, had they fully if been de- even maintenance. in the 2004 analyzed the scribed satisfied BAs could not have the “hard major One of the differences between The BAs requirement. look” functioned as the 2001 lat- and 2004 Frameworks is the process trigger to the consultation re- emphasis logging, pre- ter’s on rather than 7 of quired Endangered under Section the scribed as a burning, reducing means of They merely Species Act. enumerated the the risk of EIS de- wildfires. species fish may several of “listed” empha- impact changed scribes the the have, the by been affected alternatives con- Yellow-legged Frog. sis on the Foothill It sidered the 2001 and EISs. There posed states that Framework no of the was either BAs of the frog some risk to the prescribed because or which degree manner the alterna- burning often results the destruction or may tives have affected these fish. To the dispersal woody of coarse debris that the degree any analysis performed, was frog By decreasing uses for shelter. performed by the Fish and Wildlife amount of prescribed burning, the 2004 Biological when it prepared Opin- Service Framework will some benefit in response ions BAs. The 2004 EIS However, frog. also EIS reference, form, any makes no to either identifies the of mechanical logging use Biological Opinions. example, a risk. For the frogs sometimes Third, even if the BAs could have satis- parked seek shelter beneath vehicles. requirement, they fied the hard look ap- When logging operations begin any par- on plied only species. one of fish group As day, may ticular' frogs the vehicles crush above, analyzed described sheltered beneath the tires. the environmental for three Similarly, EIS considers the (1) groups: “federally threatened and en- impact changed grazing standards (9 (2) dangered species” species); fish It Yosemite Toad. states that fac- risk (11 species” “sensitive fish species); and tors to the Toad grazing Yosemite from (3) “moderate high vulnerability fish include (14 species” species). analyzed The BAs growth decreased rate of as a tadpoles only species the individual in the first result of increased live- bacteria from They group. nothing said about the indi- matter; mortality stock fecal being- from species vidual in the second and third feces; buried vege- livestock reduced groups. ju- tative hiding metamorphs, cover veniles, adults, which their increases

2. Amphibians vulnerability predation by snakes and The 2004 EIS contains an extensive birds; collapse bur- rodent amphibians. of individual spe- It rows from livestock punching, hoof cifically analyzes species amphibian: six thereby entrapping burying individu- Red-legged Frog, the California the Foot- als that use for hiding burrows cover. Yellow-legged hill Frog, the Mountain Yel- The 2004 low-legged allowing grazing EIS notes Frog, Northern Leopard Frog, yet meadows that have not sur- Frog Cascades and the been Yosemite veyed For species, “may Toad. each the 2004 for Yosemite Toads EIS iden- contribute changes tifies between and the to localized extirpations.” states, further, It that discusses a number “because on- 2004 EIS also the-ground to minimize the activities such timber har- mitigation strategies road, trail, log landing of the 2004 vest and skid and Forest example, prior For would not occur to a Framework. construction decision, Prac- Management site-specific will use “Best Service future Forest and mainte- analyze site-specific for road construction tices” Service will effects practices designing include nance. These allowing of those activities before them.” stream crossings replacement states, further, and stream Id. at 24. The brief still flood; 100-year designing crossings for a that the Forest Service makes a “[w]hen minimize the crossings stream to diversion graz- decision to authorize or reauthorize flow; road avoiding of natural stream and allotment, ing on an it conducts a detailed construction wetlands and meadows. examine analysis, it can NEPA where continuously also The Forest Service will particular proposed grazing, effects of the site-specific if grazing monitor allotments considering ... the allotment’s location breeding Toad changes around Yosemite ..., timing, scope, intensity [and] sites are authorized. The 2004 EIS states proposed grazing.” (emphasis Id. at 40 monitoring that such will allow the Forest deleted). The Forest Service makes simi- mitigate threats to identify to Service lar commitments the 2004 EIS. For the Yosemite Toad. states, example, “Site-specif- the 2004 EIS projects ic decisions will be made on that the Forest

Pacific Rivers contends ... compliance following ap- with NEPA further anal- required to Service plicable public involvement and adminis- changes that are authorized ysis of appeal procedures.” trative 2004 Framework. Pacific Riv- 2004 EIS under the further, “Any from part site-specific contention stems states actions ers’ implement decision under the 2004 taken to direction in the Forest Service’s delegate significant Framework to deci- Amendment require compli- Plan would authority managers to local sionmaking ance with NEPA.” We are confident that example, build, For in a amphibian habitats. proposes when the Forest Service discussing livestock portion roads; of Section 4.2.3 reconstruct decommission meadows, grazing on EIS notes logging prescribed burning conduct a or a changes makes that the new framework operation management; for fuels to allow flexibility design designed to “allow into pack stock saddle stock Yosem- and/or practices address local management [to] meadows; Toad-occupied permit ite However, we are satisfied conditions.” graze near Yosem- commercial livestock Forest Service’s was suf- that the sites; rearing or to breeding ite Toad ficient, process, given stage at this of the pesticides riparian in a conservation use provides significant that the EIS area, fully comply it will with the amphibi- of the environmental effects requirements applicable to such NEPA ans, site-specific projects are not projects. site-specific yet at issue. Conclusion repeatedly

The Forest Service has com- II, In we that we Lands Council wrote complying itself to with NEPA for mitted in an will hold that an has acted site-specific projects proposed that will be arbitrary capricious prepar- manner example, under the 2004 Framework. For “ ‘entirely court, an EIS when it has failed to ing in its brief in this states prob- important aspect consider an NEPA will occur at “additional ” case, In this Br. at lem.’ 537 F.3d at 987. project-level.” Appellee’s See “entirely timing analysis required by to consider” National Service failed of the Forest (NEPA) of consequences the 2004 Policy environmental is not Environmental Act of fish. species on individual Framework capricious arbitrary performed and if it is analysis 64-page the detailed of the Given critical resources before a commitment of likely impact species on individual fish majority an occurs. instead creates EIS, complete lack of such in the the possibil- rule based on unclear “reasonable likely on individual impact the ity” imposes procedures additional not EIS, in of fish and the species by NEPA on Service. required the Forest any explanation lack the EIS rule agencies “leave[s] Such a the uncer- “reasonably per- not to why possible” it is to procedural tain their under duties impact, some level of of such form NEPA, judicial ... involvement invite[s] no choice we have but to conclude the day-to-day the decisionmaking process requisite Service failed to take the Forest ... agencies, litigation.” the invite[s] consequences look” at environmental “hard Club, 390, 406, Kleppe v. Sierra 427 U.S. 2004 Framework for fish. (1976). 2718, 49 96 S.Ct. L.Ed.2d 576 hold that the Forest failed to We Service Second, majority ignores tiering a hard look at take environmental conse- framework created NEPA. Because the on fish in the quences viola- framework, majority ignores such it fails tion of NEPA. We hold that the Forest to site-specific differentiate between a en- did take a Service hard look environ- (“EIS”) impact vironmental statement consequences amphibians mental on a programmatic high- EIS that on focuses EIS, in compliance with NEPA. We policy regu- level decisions. Under NEPA in part therefore reverse and affirm in tiering prece- lations on and Ninth Circuit part, and remand to the court. district dent, programmatic requires EIS less in part, REVERSED AFFIRMED in analysis than a site-specific detailed EIS. part, REMANDED. to Plain- Costs Therefore, agencies are to allowed defer tiff-Appellant. in-depth analysis projects until site-specific Furthermore, agen- have been identified. SMITH, dissenting: N.R. Circuit Judge, given cies wide tiering latitude in the “conclude[s], majority contrary methodology they implement, choose to so contention, Service’s it was long as allows for ‘reasonably possible’ provide some anal- result, decision-making. informed As ysis a high courts owe level of to the deference EIS,” species individual fish methodological agency. choices of the and thus that the agency’s decision majority’s Because the opinion amounts this “as soon as it [was] inappropriate to an and substantial shift ‘reasonably possible’ to do so” arbi- jurisprudence, our NEPA I dissent. must trary capricious. Maj. Op. so, doing In majority two makes funda- I. STANDARD OF REVIEW First, errors: mental it reinvents the arbi- Congress require enacted NEPA to review, trary capricious standard agencies produce they EIS whenever transforming it appropriately from an def- major in a engage signifi- action that could freely allowing erential standard to one cantly affect environment. U.S.C. judgments courts substitute their 4332(2)(C). so, However, § agency. also doing Congress that of In the ma- en- disregards jority long-stand- our acted the Act circuit’s Administrative Procedure ing precedent holding agency’s (APA), that an governs which our of an review

1035 II, APA, choices.” Lands Council 537 logical we actions. Under agency’s F.3d at 991. standard highly deferential employ must Ser- reviewing the Forest of review when Therefore, this we renounced incorrect case. 5 U.S.C. actions this vice’s engaged where we in “fine- jurisprudence 706(2)(A). Forest § Service’s Unless agency assessments of action. grained” “arbitrary, capricious, an abuse action is Id. at 993. We instead observed that this discretion, not in accordance or otherwise proper was not the role for courts. Id. law,” may set it aside. Id. we Rather, proper simply “our role is to en- that the Forest Service made no sure II, a unanimous en

In Lands Council judgment’ that would render ‘clear error decision, explained that “[r]eview banc we ” ‘arbitrary capricious.’ action Id. its stan arbitrary capricious under (quoting Marsh v. Natural Res. Coun- Or. narrow, and we do not substitute dard ‘is cil, 360, 378, 1851, 490 109 S.Ct. 104 U.S. agency.’” for that of the judgment our (1989)). majority relies L.Ed.2d 377 (Lands v. McNair Council Lands Council prior suggest that on cases decided (9th Cir.2008) (en II), 537 F.3d role for courts. Howev- less deferential omitted) banc) (alteration original (quot er, II irrevocably Lands Council has Serv., Inst. v. ing Earth Island U.S. by changed legal landscape setting (9th Cir.2006), abro 442 F.3d by high forth the level deference owed grounds by Winter v. Natu gated on other agency courts to action. Council, 555 U.S. 129 S.Ct. ral Res. Def. (2008)).

365, 172 We also L.Ed.2d Accordingly, agency’s an decision can be ju circuit’s “environmental noted that our “only agency set aside relied on if ha[d], times, away at shifted risprudence Congress factors did not intend it to con- review,” appropriate standard of sider, from the entirely an impor- failed to consider prior to 2008. Id. 988. aspect problem, tant of the or offered an explanation that runs counter to the evi- Although only explic- II Lands Council agency implausi- dence before the or is so Center, Inc. v. itly Ecology overruled ble that it could not be ascribed to a (9th Cir.2005), Austin, F.3d 1057 ex- product agency difference in view or the Ecology Center was a case plaining (internal expertise.” quotation Id. at 987 error, illustrative of this our correction omitted) added); (emphasis marks see also beyond solitary case. We extended Agency, v. U.S. Envtl. Prot. Sierra Club jurisprudence to the shift in our referred (9th Cir.2003). 955, 961 346 F.3d occurring years,” clearly “in recent which majority argues that “the Forest multiple incorrect decisions. alludes II, ‘entirely failed to consider’ envi- 537 F.3d at 988. Our Service Lands Council the deference ronmental correction also dealt with of fish.” “appropriate species our Framework on individual agencies

owed to under “[wjhether id., Maj. But general, Op. rather 1034. standard of review” important aspect has overlooked ‘an just regarding than studies and on-the- ... turns on what a relevant ground analysis, majority argues, problem,’ as the ” ‘important.’ makes previ- substantive statute Maj. Op. We observed Thomas, v. “key by errors” Or. Natural Res. Council ous decisions committed Cir.1996) (9th Mo- (quoting imposing agencies “require- additional F.3d Farm, Ass’n v. State any relevant statute tor Vehicle not found ment[s] Mfrs. Mut., 29, 43, 2856, 77 463 U.S. 103 S.Ct. regulation” showing insufficient (1983)). As below L.Ed.2d 443 discussed agencies and “their methodo- deference First, II, relying require a pro- NEPA is the relevant statute. on Kern Part grammatic reasonably pos- EIS to include analy- require specific NEPA site does not site-specific analysis sible as soon as rea- programmatic at the EIS sis be considered sonably possible the language stretches Rather, encourages NEPA the de- stage. beyond Kern far the from facts of the issues analysis ferral until the of such Kern a programmatic case.2 did deal with ripe analyzing them will be most However, agency the actions at EIS. issue Thus, can- meaningful. the Forest Service sales, site-specific there were timber con- not to an of the aspect have failed consider stituting a critical commitment of re- by following NEPA problem required by (“A plan,’ sources. Id. at 1069 ‘concrete a and de- NEPA’s tiered structure a ‘specific undertaking,’ ‘site-specific analysis. ferring specific Guidelines, program’ incorporating the case], we anticipated previous [a such as addition, though majority pays lip In the us.”). programmatic are now before service to Lands Council II’s deferential specifically in Kern had deferred anal- review, majority the relies on standard of ysis specific to actions future NEPA Manage- Kern v. Bureau U.S. Land analysis. Id. at 1074. Rather than strike (9th Cir.2002) ment, 284 F.3d 1062 to en- this necessarily arbitrary down deferral as gage type “fine-grained” in the same capricious, merely the Kern court analysis that was rebuked in Coun- Lands EA subsequent looked the to see wheth- cil II.1 Specifically, majority the demands sufficiently the EA analyzed er had the that agency the whatever (“The site-specific action. Id. second sen- majority “reasonably the determines is the programmatic [in tence is not an EIS] possible” reasonably “as soon as it can be but analysis, promise rather a of a later However, majori- 1072. done.” Id. at the site-specific analysis performed be ty provide any is support unable to this specific projects connection with ‘within range rule for at two reasons. least the of the Port-Orford-cedar.’ The ” majority attempts argue 1. The the For- view (quoting that erroneous of the law.’ Id. Resort, States, recognizes Flamingo est Service that the correct United Kern is Inc. v. 664 1387, (9th Cir.1982)). Maj. Op. (citing Appellee's rule. 1027-28 F.2d 1391 n. Br. 5 However, 25). merely the Forest Service admitted that Pacific Rivers "correct!]” noting It is also worth that the "as soon as holding in how it articulated of Kern. In reasonably language appears it can be done” paragraph, same Forest Service ar- by to have been created cloth whole court gues that the determination of what in Kern. Id. at is 1072. This also true of given programmatic in a citation, should be EIS is "a language, asserting Kern's with no methodological question expertise within the possible reasonably analyze “[i]f that it is agency.” Appellee’s Br. at 25. Fur- the environmental in an EIS thermore, even if the did ..., Forest Service make required perform is law, question a now, concession about a there is analysis.” language Id. Until this has why "no we reason should make what we yet quoted by subsequent to be a Ninth Cir- decision, think Indeed, would be erroneous be- appellate only cuit case. case the applicable cause the law was not insisted majority "dig up” applies is able to upon by parties.” one of States v. United Maj. rule is from Kern’s the Tenth Circuit. See Miller, 828, (9th Cir.1987) 822 F.2d Op. (citing 1026-27 Mexico ex rel. Rich- New Rice, (quoting Engineering Smith Co. v. Mgmt., v. ardson Bureau Land 565 F.3d (9th Cir.1938)). 707-08, (10th Cir.2009)). F.2d rule has "The Even in Kem, then, repeated variety been in a of circumstances. the context of the facts this govern- by "reasonably possible” Even if a concession is made appears rule to be a ment, by government’s we departure precedent. are not bound from our established ” Analy- of resources.’ v. Sandy-Remote commitment EA for the revised Metcalf (9th Cir.2000). site-specific analysis. Daley, F.3d Area is such sis of that EA has also been This rule is derived from the text of adequacy Burford, We now turn to NEPA v. challenged ONRC. itself. See Conner (9th Cir.1988) (“The F.2d 1446 n. 13 question.”). commitment ‘irreversible irretrievable Thus, support propo- Kern does from of resources’ criterion derived in- EIS must sition that [NEPA], an requires which EIS to include analysis as site-specific as soon any clude ‘any a statement of irreversible and irre- if critical commit- reasonably possible no commitments of resources which trievable have Kern of resources occurred. ments proposed would be involved action Thus, such a rule. inapposite rather to is ”). implemented.’ should it be This rule “reasonably possible” rule to applying the useful, proved explained by has also as EIS that does not contem- programmatic scholars, law because “with- commitments of resources is plate critical knowledge, really out inside can- [courts] it unsupported by holding, Kern’s only not know the status of various initiatives tiering frame- eviscerates the NEPA also under consideration....” James Salzman II. discussed Part work Jr., H. Thompson, and Barton Environ- rule, Second, particularly such a when (3d 2010). Policy mental Law and 328 ed. EIS, constitutes applied to a Thus, provide bright “to line standard” departure a dramatic from this circuit’s “challenging timing prepa- of EIS arbitrary regarding capri- precedent required prep- ration ... courts have long-standing rule has cious review. Our aration of an EIS commence ‘before [an] a full always requires that “NEPA been irreversible and commitment irretrievable site-specific impacts only evaluation ” (quoting of resources.’ Id. at 328-29 En- a ‘critical decision’ has been made to when Fund, vironmental Inc. v. An- Defense when ‘the development ie., act on site — (9th Cir.1979)). drus, 596 F.2d to make an irreversible agency proposes cases, Consequently, multiple commitment of the avail- we have and irretrievable project explained agency’s timing to at a that an of its ability [a] of resources analysis arbitrary capricious Friends Yosemite particular site.’” becomes (9th Norton, Valley only prepared v. 348 F.3d if the NEPA documents are Cir.2003) Block, (quoting v. 690 after an irreversible and irretrievable com- California (9th Cir.1982)). See, F.2d Until mitment of resources has occurred. required we are to defer point, “threshold” e.g., Ecosystems Native Council v. Dom- (9th Cir.2002) methodological agency beck, to the choices of the F.3d regarding timing site-specific (“[T]he of when issue we must decide here is Block, reasonably can be done. prepared whether Federal Defendants F.2d at 761. decision-making the EA too late i.e., process, making after an irreversible majority reg- is correct that NEPA

The and irretrievable commitment of re- “integrate encourage agencies ulations (quoting Metcalf, 214 F.3d at sources.” process planning with other the NEPA 1143)). hand, On the other we have held Maj. possible Op. the earliest time....” 1501.2). agency that an is “free to decide not to § (quoting 40 C.F.R. But analysis] [provide up NEPA until the time interpreted regula- “this court has these spe- its Decision Notice for the” agencies prepare issued requiring tions as documents, cific commitment of resources. Id. at 893 such as ... an NEPA words, In (emphasis original). and irretrievable other any ‘before irreversible omitted)). to con- agency entirely majority’s proposed have failed rule cannot problem of a before a turn aspect arbitrary capricious sider an would review has critical of resources taken commitment keep on its head and allow courts to agen- op- has an place, still leash, because tight on a directing agencies cies portunity point up best, on what based courts view as Accordingly, whether necessary analysis. majority’s illustrated decision “reasonably possible” and was is certainly case. While this there times reasonably possi- provided “as as it is soon I disagree quality would when inquiry ble” whoU/y irrelevant timing of an agency’s and would timing analy- of the agency’s whether the dictating agenda, arbitrary enjoy my own capricious. sis was arbitrary capricious simply provides review cites, courts with no warrant to do so. prece- majority ignores, but dent this critical upholding commitment ease, present In the it is undisputed that See, Maj. e.g., Op. resources threshold. Forest not service has made a critical (citing 1025-26 Friends Yosemite Val- of any commitment of regarding resources 800). ley, majority in- 348 F.3d at site-specific projects. The 2004 Frame- preferred timing stead its own for requires not final “do[es] work authoriza- analysis. Essentially, majority NEPA any tion for and activity,”3 “subsequent range there is a misunderstands wide and full review [of these agency permissible of action between what site-specific projects] contemplated,” actions, courts as hope for ideal Valley, Friends Yosemite 348 F.3d of and fall actions that below a much lower only 801.4 It establishes the standards threshold, becoming arbitrary capri- and and guidelines projects under which future cious. v. See Fox Sta- F.C.C. Television Thus, permitting such must actions occur. tions, Inc., 502, 1800, U.S. 556 129 S.Ct. timing Forest analysis Service’s of has 1810, (2009) (under 173 L.Ed.2d 738 arbi- bright-line not reached the threshold up- review, trary capricious and courts “should by our precedent, held and the Forest ‘uphold a of clarity decision less than ideal decision specific Service’s to defer more path if agency’s may reasonably be analysis regarding arbitrary fish cannot be ” (quoting Transp., discerned.’ Bowman capricious. System, Inc. v. Freight Arkansas-Best Inc., 281, 286, 438, 42 U.S. 95 S.Ct. II. THE FOREST SERVICE APPRO- (1974))); Labs, L.Ed.2d 447 Texas Clinical PRIATELY A UTILIZED TIERED Sebelius, (5th Inc. v. 612 F.3d ANALYSIS STRUCTURE Cir.2010) (“An agency’s need not decision even, be ideal Because is irrelevant whether perhaps, long or correct so the For- arbitrary capricious provided as not so est long reasonably possible Service agency gave analysis reasonably at least amount of minimal consid- as soon as eration possible, to the relevant facts the appropriate as contained issues to review (internal 1) in the quotation actually record.” marks the agency’s are whether use of Dept, Agriculture, analysis only 3. United performed States Forest NEPA need be be- Service, Decision, Record Sierra Nevada "any there is fore irreversible and irretriev- Amendment, Supplemental Forest Plan Final resources," able commitment of and thus the Impact (January Environmental Statement 24 pre-mark Service’s decision trees 2004) Decision], [hereinafter Record of irretrievably did not commit the Forest Ser- specific to a vice of action and was course Bull, 4. See also WildWest Inst. v. 547 F.3d arbitrary capricious). not (9th Cir.2008) (holding arbitrary have a wide of discretion Agencies range was structure tiered 2) the amount how to ti- determining implement and whether their capricious, pro- memorandum, current strategy. in the In a high-level ering engage grammatic Skaer, EIS was sufficient Director of the Office of Frederick broad decision-making regarding Facilitation, informed that “we explained NEPA including fish. affecting species, all policies deliberately stayed pres- from away have tiering criptive guidelines apply how to agency’s anal- use a tiered A. The process tiered be custom so that each can in-depth ysis structure to defer specific to the You designed situation. concrete, site-spe- analysis until have latitude therefore considerable projects planned was were cific utilize tiering approach to im- specific you arbitrary capricious. not plement policy the NEPA mandate of in- methodological decision agency’s decision-making.” of NEPA formed Office in- approach and defer utilize a tiered Facilitation, Tiering Memorandum on site-specific projects depth Project, City, 1-70 Kansas Missouri reasonable, also encour- only but it is (citation Louis, omitted); June St. by the Council on Environmental aged Ctr., Austin, Ecology see also Inc. v. (CEQ) regulations imple- Quality’s5 (9th Cir.2005) (McKeown, F.3d explain regulations NEPA. These menting (“The J., dissenting) nature of this limited encouraged to tier “[ajgencies inquiry imple- underscores the latitude to impact statements their environmental interpretation mentation and that Con- of the repetitive ehminate discussions gress agents.”), intended for its overruled the actual and to focus on same issues II, by grounds on other Lands Council level ripe decision at each issues of for at 991. F.3d 40 C.F.R. environmental review.” a pro- Because the 2004 Framework is (citations omitted) (emphasis § 1502.20 EIS, poli- that grammatic focuses on broad added). term to “the “tiering” refers general goals not make cies and and does coverage general matters in broader (as dis- critical commitments resources (such impact as environmental statements I), cussed Part the Forest Service’s statements)” program policy national or approach to utilize a decision tiered state- subsequently followed “narrower clearly a in-depth analysis more was defer (such analyses environmental as ments or dis- agency’s choice within the reasonable or basinwide statements regional program Thus, long programmat- cretion. so as the statements) in- ultimately site-specific or guidelines to provides ic EIS sufficient dis- corporating by general reference the (as decision-making informed dis- foster solely on the concentrating cussions and II.B), can be nothing in Part more cussed to the subse- specific statement issues agency stage. required of the at this § 1508.28. prepared.” C.F.R. quently this NEPA majority acknowledges explain tiering that is regulations These 1026. Then tiering Maj. Op. framework. analysis the appropriate sequence when our majority promptly disregards policy program, plan, from “a or moves argues “[rjegardless that precedent ... a impact environmental statement site-specific analysis.” whether a or statement or site-specific 1508.28(a). issue, an requires § that plan is at NEPA improvement quality of promote CEQ II was under Title 5. The established charged the task of “formu- § NEPA is the environment.” U.S.C. policies latfing] recommending] national analyze consequences majority that the Forest Service did of a as soon as it is ‘reason- proposed plan provide much analysis detailed in the ably do so.” Id. at 1026. The possible’ EIS as there is no majority argues agency also precedent majority’s for the decision to required perform “appropriate level strike down the Forest Service’s decision analysis” of environmental based on what to defer more in-depth analysis until more majority “reasonably determines was projects concrete have been identified. possible.” majority Id. at 1029. The ob- NEPA also does not impose blanket provided serves that the 2001 Framework requirement on agencies to provide as analysis specific aquatic species. more much analysis majority as the determines 1024-25, majority Id. at 1029-30. The also reasonably possible “as soon as it can agency claims that to explain failed reasonably Maj. be Op. (quot done.” why it less provided of fish Kern, 1072). ing 284 F.3d at To the con 2004 Framework. Id. at 1030. aAs re- trary, regulations the NEPA about tiering sult, majority proves asserts this clearly delayed indicate that analysis is not was able to more in- allowed, only preferable but even in some depth analysis than did. Id. Conse- 1502.20; § instances. 40 C.F.R. see also quently, majority agen- holds that the Block, 690 F.2d at (noting cy’s lesser amount of of fish in the meaningful is more when a “con arbitrary Framework was capri- development crete proposal crystallizes the cious. majority’s Id. at 1033-34. The ar- project’s dimensions of a probable environ guments suffer from at least four flaws. consequences”); mental Ctr. Biological First, example classic of courts this-^s Serv., Diversity v. U.S. Forest 349 F.3d imposing procedures on agen- additional (9th Cir.2003) (NEPA’s 1157, 1166 purpose cies that statutory no basis in have is “to ensure decision-making informed regulatory law. Nowhere in the text of the agency end that the will not act on NEPA, regulations, or its agency is an incomplete information, only to regret its provide a required similar amount of correct.”). decision after it is too late to analysis in the current per- EIS as was majority The is correct that NEPA is previous formed in a EIS. Both the 2001 designed encourage agencies to “inte- and the 2004 Frameworks program- were grate process the NEPA plan- with other matic impact statements. ning at possible the earliest Maj. time.” The Forest voluntarily Service chose to Op. 1501.2). § 1027 (quoting 40 C.F.R. provide in-depth more analysis in the 2001 But, in Friends Valley Yosemite Framework than necessary, but noth- of cases, other we recognized have ing NEPA requires agency pro- NEPA’s encouragement early analysis vide an of equivalent level of analysis for a (1) “tempered by subsequent ‘the long statutory EIS. As com- agency’s as the analysis mand that reviewing [a falls within the upon court] wide zone of rea- focus sonability, proposal’s agency parameters the provide agency need not as the (2) them,’ analysis most ideal defines preference order to ‘the avoid hav- ing its analysis decision struck defer detailed arbitrary down as until a concrete capricious. Dombeck, development proposal See crystallizes 304 F.3d at the di- (“We uphold will project’s the Forest mensions of a probable Service’s environ- ” [provide decision not to analysis NEPA mental consequences.’ 348 F.3d at 800 until a later Block, 761). unless that (quoting date] decision was 690 F.2d at unreasonable.”). While it may irritate the majority ignores tempering this effect. Instead, much essentially analysis quickly it demands as lic’s need to receive majority public’s competing for fish as the deter- need to analysis receive reasonably possible analysis regarding as soon as “actual ripe mines is issues for it, irrespective § agency can decision.” 40 C.F.R. 1502.20.To achieve balance, methodological agencies given this Service’s “wide lati- choosing scope analysis to utilize a tiered tude” in choices and decision analysis stages structure. will occur at different of the tiered analysis structure. Office of NEPA Facili- Second, majority’s argument com- tation, Tiering Memorandum on of the I- analysis the volume of between the paring Project, City, Kansas Missouri to St. Frameworks suffers from 2001 and 2004 Louis, June 2001. apples proverbial comparison or- anges. majority correctly The 2001 Framework contained observes that the many more broad-based rules and clear- level of may depending differ on policies scope Maj. cut that made for easier identifica- of the action. Op. 1020, 1026,-1029-30. tion of The 2004 Framework majori- issues. But then the design approach ty incorrectly calls for a flexible based it upon takes itself to deter- conditions,6 specific scope project, and it leaves critical mine the based on the specific quantity decisions to be made when site and timing un- projects example, majority are identified. For “reasonably possi- determines is “spacial previous der the ble.” Id. at 1028-30. This approach not strategically-placed only location of area treat- ignores the wide latitude the NEPA specifically geo- regulations ments” was limited agencies accord determining graphic “upper location to the two-thirds how to structure their tiered slopes,” whereas the 2004 EIS contains methodology, directly contradicts Su- no such geographic preme limitations. SEIS at Court and Ninth precedent. Circuit Similarly, Kleppe, the 2001 EIS limited com- See U.S. 96 S.Ct. 2718 paction riparian conservation areas to (agencies have discretion to “intelligently areas,” project activity “less than 5% of scope determine the of environmental anal- whereas provides ysis the 2004 Framework specific [they] may and review actions ..., take”); firm numeric “[n]o standard[s] thus Friends Valley, Yosemite (“[A] allowing site-specific evaluations.” reviewing Id. F.3d at 800 court [must] result, As a it is surprising upon proposal’s parameters that the focus as the (alteration easily agency 2001 Framework more lent itself to origi- defines them” in omitted) Block, analysis up more extensive front. nal (quoting 690 F.2d at 761)). Third, majority’s the insistence on re- observes,

quiring the to the amount majority As the it is true that analysis majority appropri- CEQ’s the thinks is the expressed Task Force has con- reasonably possible ate as tiering soon illus- cern that the use of a structure can misunderstanding trates a tiering game” regarding the result in a “shell “when CEQ in regula- framework set forth the where deferred issues will be ad- These regulations pub- Maj. Op. (citing tions. balance the dressed.” 1029-30 culture, Service, general, changes proposed "In the in [the Sierra Nevada Forest designed Amendment, Framework] to meet the Supplemental Plan 1 Final Envi- guidelines intent of the standards and in [the Impact (January ronmental Statement 214 Framework], previous flexibility but allow to 2004) added) (emphasis [hereinafter SEIS] design management practices [to] address lo- (citation omitted). Dept, Agri- cal conditions.” United States Force, Nepa Im- Nepa Modernizing biological Task erence two different assessments (2003), plementation http:// available at analyzing the of the 2004 ceq.hss.doe.gov/ntf/report/finalreport.pdf). species. Maj. EIS on individual fish Op. that, in majority ignores But the the same 1030-31. While the from the bio- discussing potential “shell paragraph this logical likely assessments is insufficient for the Task Force recommends that game,” site-specific NEPA analysis regarding a CEQ problem by creating address the the potential critical commitment of resources whereby programmatic requirements doc- fish, affecting it further that illustrates the “provide would a roadmap, uments ex- Forest promise Service did not break its plaining where and when deferred issues provide at aquatic least some by public regulatory raised and/or species EIS. agencies poten- will be addressed.” This Fourth, majority incorrectly asserts regulatory requiring tial solution of a sim- explanation” there is “no for the For- ple roadmap programmatic analysis for is est Service’s decision to defer more in- markedly majority’s than ap- different depth analysis species. of individual fish proach of imposing novel and unclear See, e.g., Maj. However, Op. 1029-30. judicial requirement, destroying agen- clearly Forest Service explain did its rea- cy’s methodological flexibility and requir- deferring sons for in depth analysis until ing majority whatever thinks site-specific projects more were identified. “reasonably possible” performed to be Specifically, Decision, in its Record of reasonably soon as it can “as be done.” stated, Forest Service majority seems to suggest that the ability Our strategically place fuel inappropriately participat- Forest Service optimum treatments effectiveness game” ed such a “shell this case compromised has been by the set of providing “puzzling” and unfulfilled complicated rules in the Frame [2001 promise perform specific analysis of in- work], The guidelines standards and species. Maj. But, dividual fish Op. 1028. applied [Framework] are at assuming even that the Forest Service was level, stand rather than by land alloca required through any prom- to follow on .... tions Some of the rules are so de ises made the Forest Service they prescribe tailed that down to one any promises. did not break As the ma- allowed, acre what is and require meas jority acknowledges, the Forest Service uring change canopy percent to ten explicitly promised analyze never indi- increments, which is not consistently species; merely vidual fish explained practical with existing measurement “[e]ffects alternatives on tools. This approach limits fine-scale species dependent aquatic, riparian, and ability our significant to make prog meadow habitats” “explained would be ability ress .... strategically [O]ur 207; elsewhere in SEIS.” 1 th[e] SEIS place fuels treatments landscape on the Maj. Op. see also 1030. The Forest Ser- compromised has been by complexi clearly vice promise. delivered on this Spe- ty rules ... -[which more allows] habi of cifically, habitats, aquatic as to Part II.B tat lost to [to be] wildfire.... This deci highlights the Forest Service’s extensive sion is intended to reverse that trend. analysis regarding how various alterna- 8-9; tives would aquatic affect habitats and Record of Decision at Ap- see also corresponding dependent result, species gener- pellee’s Br. at 6. As a the agency Moreover, al. majority notes, as the explained also that the 2004 being EIS was incorporates by Framework implemented ref- to “assure the most efficient duty re- to appropriate government use of has no further consider mitigation ” ”). at .... Record of 23-24. measures ... Decision sources argued not primarily Forest Service The only Not has Forest Service af- analysis be en- more would providing that they that many plan firmed times to en- “there impossible, but rather that tirely gage analysis further detailed when spe- analytic information and was insufficient identified,7 projects cific but we have a ” meaningful analysis.... Ap- for a tools legal duty assume that the agency to will added). Br. at (emphasis pellee’s perform analysis. In Salmon River Therefore, have con- majority should Robertson, v. Concerned we Citizens ob- that it was well within the Forest cluded served that courts should “assume that that the discretion to determine Service’s government will ... agencies comply with analysis of deferring in-depth of benefits obligations their NEPA later stages of meaningful species to more aquatic (9th 32 F.3d development.” informa- outweighed any delays in analysis Cir.1994) Conner, (quoting 848 F.2d at tion. 1448). to a the Forest Service commits site- If programmatic, B. The amount of future, en project without specific analysis high-level was sufficient required in the anal gaging level of NEPA engage in informed decision- a via ysis, might then Pacific Rivers have regarding making policies broad Indeed, likely claim. ble NEPA it is affecting species, including all by majority deficiencies noted the” “[t]he fish. fish) (regarding analysis “are opinion majority the omissions the Service claims that the precisely Forest Forest Ser- to comply “entirely need to correct in order vice failed to consider an impor- will Block, problem” with at fully aspect provid- NEPA” a later time. tant 763; ing analysis F.2d at see also N. Envtl. in-depth regarding Alaska how the (9th Lujan, 961 2004 programmatic Ctr. v. F.2d Cir. Framework would af- 1992) (approving species Maj. EIS that fect of fish. specific Op. II, applica (citing deferred detailed until an 1033-34 Lands Council 537 F.3d 987). here, submitted, a mining permit because the tion But Forest noting “judicial precludes estoppel but Service chose utilize a tiered NEPA that it arguing implement pro- the Park Service from later structure and See, ("This e.g., implement Record of tions Decision at taken direction in the require tim- Decision] does not authorize Forest Plan Amendment would com- [Record any activity pliance specific analy- sales or other An ber with NEPA. Site-spe- completed poten- Sierra Nevada national forests. sis would be assess the projects proposed impacts decisions will be tial cific made on activities on water NEPA, ESA, compliance quality aquatic riparian systems. other en- public following applicable laws would also include an vironmental assess- appeal pro- ment watershed involvement administrative of cumulative effects rela- cedures.”); Agricul- Dept, United of concern States tive to thresholds established for ture, Service, area.”); project analysis Forest Sierra Nevada watersheds Amendment, (“At Supplemental Appellee's project-level, at 49 Plan Final Envi- Br. Statement, Response Impact will the Forest Service consider both the ronmental 2004) (January synergistic proposed Public Comments effects actions within ("Actual project, applicable, and a where as well [hereinafter SEIS] locations as the multiple projects determined miles of roadwork would be cumulative effects of con- Framework, through project-level analy- again planning forming ap- to the where sis.”); site-specific plicable.”). ("Any at ac- Id. scope graded the relevant of “the of all grammatic habitats the Sierra Neva- da,” problem” whether the Forest Service though original is much of the problem informed ‘sufficient detail to foster “providefd] was related to “lower elevation dams and ” sionmaking.’ Friends Yo deci diversions.” 1 SEIS at 3. The EIS ob- at Valley, (quoting semite 348 F.3d greatest served effects on the “[t]he 890-91). at Lujan, 961 F.2d As discussed [a]quatic, [r]iparian and [m]eadow [eco- above, only majority able to claim systems generally will be from either me- by ignoring proper standard otherwise chanical catastrophic fuel treatments or refusing to defer to the of review and wildfires.” at Id. 96. “Fires can have in determining discretion Service’s extraordinary effects on pro- watershed analysis. scope Kleppe, of its See and, consequence, cesses as a significantly (agencies at 96 S.Ct. 2718 have U.S. aquatic organisms influence quali- and the “intelligently discretion to determine the ty aquatic in many ways.” habitats Id. scope of environmental and review (citation omitted). at 208 These effects take”); specific [they] may actions Friends include in riparian shading “reductions (“[A] Valley, Yosemite 348 F.3d at 800 altered streamflows can increase [that] reviewing upon pro- court focus [must] levels,” temperatures stream to extreme posal’s parameters as the defines erosion, “[flooding, surface and mass them”) (alteration omitted) in original loss,” ... wasting vegetation due to 761). Block, (quoting 690 F.2d at The sedimentation, flows, “increases in debris scope in a EIS inputs may and wood occur” as well as considerably can include less detail than in “[e]omplete reorganization.” channel Id. analyzing site-specific project. weighed Forest Service “tradeoffs See, Ltd., Robertson, e.g., Res. Inc. v. potential aquatic between ecosystem and (9th Cir.1993); F.3d Salmon quality impacts water manage- from fuel River, Block, 1357-58; 32 F.3d 690 F.2d (mechanical ment activities treatment and at 761. fire) prescribed and risks associated with Thus, under the Forest Service’s tiered- (citation high severity wildfires.” Id. omit- analysis approach, provides the 2004 EIS ted). It recognized respect that “with high-level guide sufficient standards to fu- aquatic ecosystems, arguments there are on-the-ground ture affecting decisions fish. against for and the use of fuels treatments These generally contemplate standards to reduce the extent severity of future range potential agency relevant action (citation omitted). fires.” Id. pro- After on various habitats viding analysis, this the EIS determined in the Nevada. Sierra The 2004 Frame- “alternatives that lower the risk of fire and work “begins by explaining that cumula- have medium pose levels of treatment tive analyzed effects were in detail for the least risk aquatic system.” and riparian eight alternatives considered Therefore, at 12. Id. in- allowing Appellee’s Framework.” Br. at 50. “It treatments, creased fuels the 2004 Frame- then identifies activities that have oc- work would reduce the anticipated acres Framework, curred” since the 2001 “in- by just burned over 15% from the 2001 cluding soil and water improve- resource Framework. Id. at 98. ments, reductions, hazardous fuels wildfire suppression,” and road construction. Id. recognized Forest Service that this

Specifically approach “pose[d] higher short-term regarding aquatic habitats risks (home to species), aquatic prescribes fish resources because it Framework notes that larger these are one of the most “de- amounts of mechanical treatments greater explained treatment intensities.” Id at just that roads are behind 97, 12, 215. But the Forest Service con- wildfires in potential their effect on mitigated by that this cluded the ex- ecosystems “aquatic quality and water long-term aquatic benefits to habi- pected forested environments.” Id The EIS cit- resulting reducing tats from wildfires. Id. ed discussing studies how “roads can deliv- The Forest Service also asserted its intent er more sediment any streams than any through to reduce short-term threats other human disturbance forested envi- objectives “Aquatic Manage- listed its (citation omitted). ronments.” Id How- Strategy,” management prac- ment best ever, the studies also indicated that “sur- tices, goals “landscape-level related to face erosion from roads can be reduced conditions” and “land allocations” that through improved construction, design, applied during “project would be level practices,” and maintenance and “[pjroper 207, analysis.” Id. at 215. It location, road drainage, surfacing, and cut was reasonable for the Forest Service to fill slope slope impor- treatments are specific analysis more propos- defer (citation tant in limiting effects.” Id omit- aquatic species, al’s effect on because ted). explained The Forest Service “[potential aquatic, treatment effects on proposed “modest reduction overall riparian ecosystems and meadow are miles, improved road conditions,” road amounts, largely a function of types, subsequently adopted in the 2004 Frame- intensities, and locations of treatments and work, were some of “the most important they the standards which imple- aspects reducing aquatic risks to re- at mented.” Id. sources.” Id at 215. Although majority correctly Framework and the 2004 Frame- meadows and improve aquatic habitat con-

[the work], alternatives, the ... Under both facilitating growth ditions of stabi- roads, biological previously as effects lizing vegetation along streams.” 1 SEIS described, would be reduced across the at 214. The 2001 and the 2004 Frame- bioregion....” 1 SEIS at 212. The EIS primarily works differ in that changes to that, further noted under the Frame- heights may utilization and stubble be al- work, there would be a decrease the net lowed the 2004 Framework when cur- (under miles of roads. Id. range “good rent conditions are to excel- Framework, “1175 miles would be decom- (and evaluation]”). lent” after “rigorous! ] missioned and 115 miles of new road would Monitoring Id. requirements under this constructed”). Although be the miles of approach flexible will “minimize!] differ- reconstructed roads would almost double aquatic ecosystems ences in effects on ... may have short-term impacts, recon- between the and 2004 [2001 Frame- would “im- expected structed roads be to Id. works].” prove quality aquatic water habi- Thus, after recognizing general im- tat. ...” Id. pact that various proposals could on have provided The 2004 EIS also analysis of the environment and the measures that the effects to watersheds from on-the- mitigate could pro- those effects ground activity that the Forest Service grammatic the Forest Service rea- might permit under the Framework. The sonably deferred the detailed that, explained Framework as a broad- site-specific projects. future Based on this policy, projects based future should remain analysis, the Forest clearly Service did not protective of wildlife but strive for more “entirely an important fail[ ]” consider effective reduction of hazardous fuels. aspect programmatic analysis re- See, e.g., 6, 9, 36, Appellee’s Br. at 54. It quired informed decision-mak- also identified activities have occurred ing. majority may preferred have Framework, since the 2001 including soil specific analysis more about individual fish and water resource improvements, hazard- species, preference justi- but such reductions, ous fuels suppression, wildfire fiable reason under NEPA to disregard and road construction. Id. at 50. Based agency’s arbitrary and ca- information, on this it analyzed combined pricious. synergistic effects of the elements aquatic ecosys- 2004 Framework on III. CONCLUSION tems species, explaining that the 2001 and 2004 expected Frameworks are agency clearly “rel[y] did not on effects, have similar because both alterna- Congress factors did not intend to con- required tives are quality meet soil sider” when it utilized the tiered methodol- standards. at Id. 47-48. ogy encouraged by CEQ regulations for implementing NEPA. Lands Council

Similarly, the EIS addressed im- II, 537 F.3d at 987. The Forest Service pacts of grazing with sufficient detail to “entirely also did not fail[ ] consider an satisfy NEPA on programmatic level. important aspect” of high policies level construction, As with logging and road programmatic set forth their EIS. Id. Framework calls for a approach flexible conditions, Lastly, agency clearly did not offer an specific based than a rather explanation full-scale for their stage. this The same implausible” standards will continue to be in effect that is “so that it cannot “be expected “are to reduce erosion of ascribed to a difference in view or the product agency expertise.” Id. Because only agency’s

we can overturn an action if committed one of these arbi- errors, capricious

trary and because case,

no error such occurred this I appropriately

would defer to the Forest reasonable

Service’s decision and affirm. DISTRICT,

ANCHORAGE SCHOOL

Plaintiff-Appellee,

v.

M.P., disability a student with

M.P., parent, his Defendants-

Appellants.

No. 10-36065.

United States Appeals, Court of

Ninth Circuit.

Argued and Submitted Oct. 2011. July

Filed notes that, The Forest Service determined be- anticipates that the 2004 Framework con- many cause details of on-the-ground actual forests, siderably logging more in the unknown, yet activities were a more de- majority ignores the fact that much of that tailed appropriately would be con- may logging example, never occur. For specific projects ducted when were identi- 214 million board feet were offered for example, fied. For explained the EIS 2000-2002, average on FY sale between “actual locations and miles of roadwork only actually but 118 million were sold— be determined through project-level [will] approximately 55%. at Id. 174-75. Simi- planning and analysis.” SEIS at 66. larly, only 58% of the fuel pro- treatments Changing the location of a proposed road jected under the 2001 Framework were by just a few hundred feet could make a out in years carried the first three substantial impact difference it had Id; Appellee’s Framework. Br. at 22-23. riparian areas A and on fish. different Therefore, reasonably the Forest Service might significantly location have different concluded that it would be inefficient to vegetation, type, soil and topography. perform detailed of the impact Changing the location could even place a that may place, activities never take completely road drainage different EIS contains sufficient basin, potentially impacting entirely differ- probable consequences of increased See, species ent e.g., Biological fish. management fuel lev- Assessment for July SNFPA SEIS el. (Paiute 30, 2003 cutthroat trout only found The 2004 Framework identified roads as streams). in 14.5 miles of another “critical component” of the risk aquatic species, explained and benefit “tradeoffs” to The EIS manage- “road which include fish. 1 at 209. vary substantially SEIS The ment does not between

Case Details

Case Name: Pacific Rivers Council v. United States Forest Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 20, 2012

Citation: 689 F.3d 1012

Docket Number: 08-17565

Court Abbreviation: 9th Cir.