UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant, v. Dale BOSWORTH, as Chief of the Forest Service; United States Forest Service; Mary Erickson, Supervisor of the Fishlake National Forest, Defendants-Appellees.
No. 03-4080.
United States Court of Appeals, Tenth Circuit.
June 23, 2004.
372 F.3d 1219
Mark R. Haag (Elise Foster, United States Department of Agriculture; Thom-
Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
At issue is the extent of the United States Forest Service‘s obligations under its regulations to monitor management indicator species before approving forest management activities. Finding the Forest Service‘s monitoring efforts sufficient, the district court affirmed the Record of Decision authorizing the Monroe Mountain Ecosystem Restoration Project. Exercising jurisdiction pursuant to
I
Monroe Mountain, part of the Fishlake National Forest approximately 140 airline miles south of Salt Lake City in Central Utah, is the center of the Monroe Mountain Ecosystem Restoration Project (the “Monroe Project“). The Monroe Project area covers approximately 50,000 acres, consisting of forest (primarily fir occasionally mixed with aspen) and non-forest (grass and sagebrush) land.
As part of the National Forest System, the Fishlake National Forest is maintained under a Forest Management Plan (the “Fishlake Forest Plan“), pursuant to the National Forest Management Act (“NFMA“),
To execute specific Forest Management Plans, the Forest Service proposes individual projects. See, e.g., Ohio Forestry Assoc., Inc. v. Sierra Club, 523 U.S. 726, 729-730, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (describing the steps involved in proposing and adopting a site-specific action under the Wayne National Forest‘s Management Plan); Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1168 (10th Cir.1999) (“The Forest Service implements the Forest Plan by approving ... or disapproving particular projects....“). Individual projects must comply with the NFMA‘s enacting regulations.
In 1997, a Forеst Service Interdisciplinary Team considered portions of Monroe Mountain for “immediate ecosystem restoration treatment.” (Administrative Rec-
Proposing several actions to meet the specific objectives of the Monroe Project, the selected alternative includes timber harvesting, prescribed burns, and sagebrush treatments to Monroe Project land outside of Inventoried Roadless Areas (“IRAs“).2 Action within IRAs was limited by the plan to prescribed burning. The Forest Service‘s Record of Decision found that the selected alternative met the six objectives of the Project by: (1) converting over 2,500 acres of mixed conifer/aspen stands to aspen stands, thus restoring an abundance of aspen to the forest; (2) increasing riparian resiliency by improving understory vegetation and decreasing sediment production; (3) treating 2,645 acres of mixed conifer/aspen stands to reduce fuel, thereby decreasing the risk of intense wildfires; (4) reducing the density of 248 acres of spruce/fir stands, thereby decreasing the risk of epidemic spruce beetle infestation; (5) converting over 1,300 acres of sagebrush into grass/forb areas, creating more habitat for livestock and wildlife; and (6) producing approximately 8.7 million board feet of timber, thus supporting the local economy. Slightly under 5,000 of the 50,000 Monroe Project area acres were subject to treatment under the selected alternative.
Following the Forest Supervisor‘s authorization of the Monroe Project, Utah Environmental Congress (“UEC“) filed suit in district court, alleging the Forest Service‘s authorization of the Monroe Project violated NEPA, the NFMA, the Administrative Procedure Act (“APA“), and various Forest Service regulations. In March 2003, the district court found in favor of the Forest Service on all claims. UEC appeals, raising two primary allegations of error: (1) that the Forest Service‘s failure to monitor Management Indicator Species (“MIS“) renders its authorization of the Monroe Project violative of the NFMA, the NFMA‘s implementing regulations, and the Fishlake Forest Plan; and (2) that the Forest Service‘s “revalidation” of roadless areas during the Monroe Project development, which resulted in some previously labeled roadless areas no longer being categorized roadless, was illegal be-
II
A
We first address the Forest Service‘s Management Indicator Species (“MIS“) monitoring.3 Judicial review of agency action under
When reviewing an agency‘s interpretation of its own regulations, we defer to the agency‘s view, unless it is “unreasonable, plainly erroneous, or inconsistent with the regulation‘s plain meaning.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir.1993) (citation omitted). In the context of technical or scientific matters particularly, judicial deference to agency decisions is appropriate, Wyoming v. United States, 279 F.3d 1214, 1240 (10th Cir.2002), and choices of suitable scientific methodology are entrusted to the agency, Custer County Action Assn. v. Garvey, 256 F.3d 1024, 1036 (10th Cir.2001).
In the instant case, UEC argues that the district court erred when it found that “[f]or each of the five MIS at issue [in this case], the Forest Service has collected appropriate quantitative population data or has a valid reason for not collecting such data.” Utah Environmental Congress v. Bosworth, et al., No. 2:01-CV-00316PGC, slip op. at 18 (D.Utah Mar. 27, 2003) (“Dist.Ct.Order“). On appeal UEC maintains that the Forest Service did not (1) collect appropriate quantitative data and (2) improperly relied on habitat trends rather than actual species population trends. As a result, UEC argues, the Forest Service‘s decision to authorize the Monroe Project was arbitrary and capricious.
1
The Fishlake Management Plan subdivided the Fishlake National Forest into nineteen separate Management Areas, each with its own management practices. The Monroe Project covers six different Management Areas within the Fishlake National Forest; however, ninety-two percent of the Monroe Project area is within Management Area 4B. Area 4B is designated “Habitat for Management Indicator Species,” which indicates that priority should be given to managing the lands in accordance with the habitat needs of MIS. (1 AR Doc. 460 at S-9.) To this end, the Forest Service is required to “estimate the effects of eаch [management]
Two groups of indicator species are utilized in the Fishlake Management Plan; one group serves as “ecological indicators,” (2 AR Doc. 544 at II-27), and the other “represent[s] species of high interest.” (Id.) Goshawk, cavity nesters, riparian dependent guild, sage nesters, macroinvertebrates, and resident trout, each selected for their sensitivity to habitat change and representative characteristics, were chosen as ecological indicator MIS in the Fishlake Forest Management Plan. They were specifically selected to ensure that species with special habitat needs are adequately considered in forest management activities. Elk, mule deer, and Bonneville cutthroat trout were selected as high interest species MIS. These high interest species were selected because of their threatened, endangered, or sensitive status, or because of high public interest in the species.
2
UEC argues that the Forest Service authorized the Monroe Project without the relevant MIS population data-here, the effect of management activities on several MIS-in violation of the APA, the NFMA, the NFMA‘s implementing regulations, and the Fishlake Forest Plan. In support of this argument, UEC claims that the MIS population data was deficient because the Forest Service used habitat trend modeling as a proxy for actual population surveys, rather than actual quantitative data, which they argue is required by
Accordingly, as a preliminary matter, we must determine whether
3
Having so concluded, we consider UEC‘s argument that
Dombeck addressed a challenge to the Forest Service‘s decision to allow the Vail ski resort to expand. 185 F.3d at 1165-1167. Colorado Environmental Coalition, among others, appealed, arguing that the Forest Service failed to properly analyze the effects of the proposed expansion on the Canada lynx populations in the area. Id. at 1165. The Coalition argued that the Forest Service was required to collect actual population data on the lynx before moving forward with the expansion; the Forest Service maintained that habitat data could be substituted in cases where actual population data was unavailable and where actual data would not enhance the Forest Service‘s analysis because the proposed action would not result in species loss. Id. at 1168. We were careful to note in Dombeck that “the population inventory requirements of
Moreover, our reasoning in Dombeck rested on the observation that the “regulatory language clearly presupposes the ascertainable presence of a species’ population within a given planning area.” Id. at 1169. In the case of the Vail expansion project, “despitе good faith efforts to confirm the presence of lynx, no one has seen an actual lynx in the project area in over twenty-five years....” Id. Because we concluded that Congress could not have intended to require the Forest Service to collect quantitative population data “where no population exists,” id. at 1170, the Forest Service‘s use of habitat analysis information to examine the effects of the Vail expansion with an eye toward preserving the potential for a viable lynx population in the area in the future was all that was required under the regulations. Id. Additionally, we noted our agreement with the Ninth Circuit that the Forest Service should use actual population data when such data is available. Id. at 1170 n. 9 (citing Inland Empire, 88 F.3d at 761 n. 8). We are therefore unconvinced that Dombeck supports the Forest Service‘s interpretation that habitat information alone is sufficient to fulfill its obligations under
In keeping with thе reasoning of the Eleventh Circuit and the district courts of this circuit, we conclude that
Our reading of the requirements of
B
Having determined that
1
With respect to the northern goshawk, UEC maintains that although the Forest Service has gathered population data in the Monroe Project area, the Forest Service has not gathered forest-wide data. Because the Forest Service lacks a forest-wide context in which to place its project population data, UEC argues, it cannot measure the impact of any change in northern goshawk habitat in the project area on the diversity of the entire Fishlake Forest. See Martin, 168 F.3d at 7 (holding that NFMA regulations “require the Forest Service to gather quantitative data on MIS and use it to measure the impact оf habitat changes on the Forest‘s diversity“). Conversely, the agency maintains that it documented eleven goshawk territories in the Fishlake Forest, and therefore that completion of a forest-wide survey is
The Forest Service conducted the following surveys: (1) helicopter surveys of the nesting and foraging habitat for the goshawk on Monroe Mountain in 1999 and 2000; (2) goshawk surveys, relating to active nests and territories, two years prior to any proposed timber sale in the Fishlake Forest; and (3) a goshawk survey in the 1994 Burnt Flat Analysis. In addition, the Forest Service mapped documented goshawk territories on Monroe Mountain and compiled goshawk flight data as well as numerous completed goshawk monitoring forms dating from 1999 to 2000. Finally, the Forest Service relied upon information and data received from an interagency Goshawk Conservation Strategy group which concluded that “the current goshawk population is viable in the State of Utah.” (5 AR at 2301.)
In finding that the NFMA does not necessarily require context data, the district court reasoned that because the NFMA requires that the Forest Service maintain viable populations of MIS, if the Forest Service is able to determine viability on the basis of the data gathered in the Monroe Project area, then it is not required to gather forest-wide data. We conclude that forest-wide data is not required if the Forest Service can determine the viability of the MIS at issue without a forest-wide survey. We also conclude, based on the data in the administrative record, that the Forest Service‘s monitoring of the goshawk fulfilled its obligations under
2
As to the Bonneville cutthroat trout, the Forest Service relied on a Biological Opinion which indicates that the trout were “cursor[ily] check[ed]” (5 AR at 2221) in 1999 after being reintroduсed to Manning Creek in 1996. UEC argues that this Biological Opinion data is insufficient for two reasons: first, because the check was cursory and second, because
The Forest Service also contends that quantitative data on the Bonneville cutthroat trout had been collected annually at Manning Meadow Reservoir (also in the Monroe Project area) because the Reservoir operates as Bonneville cutthroat trout brood stоck habitat for Utah‘s sportfishing stock program. Six years following the reintroduction of 714 Bonneville cutthroat trout to the Reservoir, the sportfishing stock program collected over 100,000 eggs from the brood stock. Manning Creek is stocked from eggs taken from Manning Reservoir. Even though this data is somewhat limited, on balance, we agree with the district court that the Forest Service has collected adequate, appropriate quantitative population data in regards to the Bonneville cutthroat trout in support of its decision to approve the Monroe Project.
3
Turning to the southwest or southwestern willow flycatcher, a small bird on the Endangered Species list located within the proposed project area, the Monroe Project Biological Assessment concludes that the project would create “no direct adverse еffects on southwest willow flycatcher or their habitat.” (5 AR at 2288.) However, no quantitative data on the southwestern willow flycatcher, either within the Project area, or within the Fishlake National For-
Despite the absence of actual data in the record, the effects analysis in the FEIS concludes that the current management of the Monroe Project area could harm the southwestern willow flycatcher‘s habitat. While annual monitoring оf the southwestern willow flycatcher‘s presence, abundance, and nesting is sufficient to meet the Forest Service‘s obligations under the Fishlake Forest Plan and
4
Our review of the record regarding sage grouse and sage nesters leads to a similar conclusion. In its brief, the Forest Service acknowledges that “[s]age grouse are potentially present,” “unconfirmed sightings” of sage grouse have been made, and habitat suitable for the sage grouse is present in the Monroe Project area. (Appellees’ Br. at 23.) Because, however, the Monroe Project is anticipated to “alter only two or three percent of the sagebrush habitat,” the Forest Service concluded that the Monroe Project “will not threaten the viability of the sage nesters.” (Appellees’ Br. at 48-49.)
As to its monitoring obligations, the Forest Service directs our attention to the Burnt Flat Analysis, which included an analysis of a survey of the sage nesters (the guild to which the sage grouse be-long). The Burnt Flat Analysis, conducted in 1994, surveyed thirty-seven different species of birds, yet reviewing the Burnt Flat Analysis included in the record, we discovered no quantitative data regarding either the sage grouse, or the sage nester guild specifically.
As a final matter, notably, the district court determined that because there “have been no known sightings of ... Sage Nesters on Monroe Mountain,” the Forest Service could not collect hard population data, and relying in part on Dombeck, the court refused to interpret the language of the NFMA to require the impossible. (Dist. Ct. Order at 19.) Although we agree with the district court that where impossible, the Forest Service is not required by the applicable statutes and regulations to collect population data, we part with the district court‘s further reasoning that when faced with “difficult-to-count” species, the Forest Service may reasonably disregard its obligation to obtain quantitative data and choose to allocate its resources elsewhere. (Id.) This extension of the reasoning of Dombeck is troublesome in this context, where the Fishlake Forest Plan specifically states that the MIS selected for the plan were chosen, in part, due to “[r]elative ease of monitoring.” (2 AR Doc. 544a at II-27.) Moreover, because MIS, if they are to serve their purpose as a class representative in the Fishlake Forest Plan, should generally not be difficult-to-count species, and because the Forest Service did not argue to us that the sage grouse and sage nesters are reclusive and hard to track, we decline to follow the reasoning in Inland Empire, 88 F.3d 754, 763 n. 12 (9th Cir.1996) (finding that the MIS at issue was a “reclusive species” and there was no “technically reliable and cost-effective method of counting individual members of the species“).
Of course, not all MIS designated in the Fishlake Forest Plan are necessarily
5
Finally, we address the Forest Service‘s monitoring of the cavity nesters. The district court stated that there “have been no known sightings of Cavity Nesters ... on Monroe Mountain.” (Dist. Ct. Op. at 19.) The Forest Service, however, does not assert on appeal that there have been no sightings of cavity nesters, nor does it direct this court to record reference where we might locate evidence to support the district court‘s conclusion. Rather, to support its monitoring of the cavity nesters, the Forest Service relies upon the aforementioned Burnt Flat Analysis from 1994 and additional studies of the three-toed woodpecker, a member of the Cavity Nester guild, as evidence of its monitoring of this MIS guild. Reviewing the three-toed woodpecker information in the record, we arrive at a brief discussion in the Biological Evaluation on Sensitive Species of the effects of the Monroe Project on the woodpecker that observes prey abundance, soil, water, and air quality changes resulting from the project could indirectly effect the three-toed woodpecker. For example, the Biological Evaluation speculates that tree harvesting could result in woodpecker relocation, possibly causing a compression of the woodpeckers in one area. Also included is a map indicating the “Cavity, Feed & Nest Tree Locations” of the three-toed woodpecker in the Fishlake National Forest as of the summer of 2000. (5 AR at 2234.) The Biological Evaluation concludes that individual woodpeckers and woodpecker territory may be affеcted by the Monroe Project, however those effects will not lead to a loss of population viability for the three-toed woodpecker, and that the Monroe Project should result in a increased availability of snag trees, which is cavity nester habitat.
Our review of the record reveals no quantitative data for either the cavity nester guild or the three-toed woodpecker species; the woodpecker map is apparently based on actual data collected, and the FEIS observes that “nest building activity” for the three-toed woodpecker in the Monroe Project area has been observed. (2 AR Doc. 485 at III-68.) While the Forest Service contends that “woodpecker survey work ... [and] a graduate study on three-toed woodpecker distribution” have been completed, the record citation is to a letter asserting this information has been collected, not to actual data. (5 AR at 2205.) It appears that hard quantitative data-at least sufficient to create the woodpecker map-was collected on the three-toed woodpecker; nevertheless, quantitative data sufficient to determine population trends of the three-toed woodpecker was absent from the record before us. Accordingly, we determine that the Forest Service‘s monitoring of the cavity nester guild, through its monitoring and evaluation of the three-toed woodpecker, was insufficient to comply with the requirements of
III
We now turn to UEC‘s claim that the Forest Service illegally “revalidated” road-
In conjunction with the Monroe Project, the Forest Service changed the boundaries of certain IRAs within the project area. UEC argues that the Forest Service‘s approval of the Monroe Project was unlawful because it depended upon an “illegal and improper ‘revalidation’ of the boundaries of the roadless areas in the Monroe Mountain project area.” (Appellant‘s Br. at 16.) Aсcording to UEC, the roadless area inventory may be modified only at the forest planning level, and thus the Forest Service‘s approval of the Monroe Project, which UEC argues was based on the revalidation of the IRA boundaries, was arbitrary and capricious. Assuming that UEC is correct that the Forest Service may only redraw IRA boundaries at a forest plan level, nonetheless, UEC has failed to identify any applicable limitation on the Forest Service‘s discretion to undertake the proposed Monroe Project management activities within the IRAs regardless of the Forest Service‘s revalidation. See infra Part I (outlining the proposed management activities).
Nothing in
Although UEC directs our attention to the Draft Inter-Mountain Region Planning Desk Guide, the Guide merely contains guidelines for implementing
IV
Because we conclude that the Forest Service has not complied with its duties under Forest Service regulations to monitor several of the relevant management indicator species, we conclude that the Forest Service‘s authorization of the Monroe Project was arbitrary and capricious. We REVERSE the district court‘s order affirming the Forest Service Record of Decision authorizing the Monroe Project and REMAND for further proceedings in compliance with this ruling.
BALDOCK, J., Circuit Judge, Concurring.
I concur fully in parts I, II.A., II.A.1., II.A.2., II.B., and III of the Court‘s opinion. I do not, however, join part II.A.3. of the opinion. Unlike the Court, I find it unnecessary to delve into the arduоus task of interpreting