*1 to vacate directions court with the district him. and resentence sentence
Montague’s gov- Montague and Although both whether us to decide ask ernment justice en- court’s obstruction district ruling on that our proper, was hancement prema- juncture “would be at this question at worst.” unnecessary ture best Coumaris, v. United States (D.C.Cir.2005). for re- remand Our require of Booker will sentencing light Montague’s court to reassess the district any If fur- current law. sentence sen- Montague’s review appellate ther occur, occur after it should tence will sentencing has exercised court district on remand. discretion convictions, Montague’s AFFIRM We the district the case to and REMAND Montague’s to vacate court with directions light him in and resentence sentence Booker.
UTAH ENVIRONMENTAL
CONGRESS, Plaintiff-
Appellant,
v. BOSWORTH, of the For- as Chief Dale Service; Forest Ser- United States Mary Erickson, Supervisor of vice; Forest; Marvin the Fishlake National Turner, Ranger, Defen- District Loa
dants-Appellees. 03-4251.
No. Appeals, States Court United Tenth Circuit. Aug.
risdiction under 28 U.S.C. we re- the judgment verse below and remand to the district court with va- instructions to approval cate the Forest Service’s project. Intervening precedent circuit re- quires agency to collect quantitative population data on actual populations authorizing before
rules the Forest Service uses. Novack, (Ray Vaughan, H.
Stephen *4 I. BACKGROUND AL, Wildlaw, him Montgomery, on briefs), Appalachian Wildlaw Southern The Thousand Community Lakes For- Office, Asheville, NC, Plaintiff-Appel- for (“the estry Project Project”) Initiative lant. Utah, in Wayne located County, on the (Thomas Sansonetti, Haag Mark K. As- 1.5-million-acre Fishlake National Forest. General; Attorney sistant and David C. A representatives, collaboration of timber Braden, Myesha and K. Shilton Environ- environmentalists, politicians, and federal Division, ment & Natural Resources De- (1) managers Project land undertook the Justice, D.C., partment Washington, “to reduce the overall stand densities of brief), with him on the Environment & [spruce aspen] and stands that are at Division, Department Natural Resources highest [spruce risk of infesta- beetle] Justice, D.C., Washington, for Defen- tion, maintaining while a appear- forested dants-Appellees. (2) provide ance” and “to products to resource dependent industries in an eco- HENRY, EBEL and Before Circuit nomically feasible manner.” Administra- WHITE, Judges, and Judge.* District (“1 AR”) tive Record vol. Project encompasses timber harvests HENRY, Judge. Circuit acres, on 219 with approximately one-half In October the Forest ap- mile of road re-construction post- and proved timber-harvesting treatment activities to minimize erosion Utah’s Fishlake National Forest. Utah and the use of authorized vehicles. No (“UEC”), Congress Environmental an en- new road building is involved. The Pro- organization, petition vironmental filed a (removal ject salvage would use of unheal- review, for and the district court dis- trees), (removal thy sanitation of dead petition missed the and affirmed the trees excess of resource for needs habi- ject’s alleges ap- authorization. UEC on (removal tat), and thinning commercial (1) peal that the Forest Service did densities). reduce overall stand properly select and monitor Manage- (“MIS”) Species ment Indicator The Forest Service manages the Fish- used to determine manage- the effects of lake National Forest at two different lev- ment activities on species, level, other and “At els. the first the Forest Service did not consider a range Plan, reasonable of develops the Forest [which is] project. ju- broad, alternatives to the Exercising document, programmatic accompa- * White, homa, sitting by designation. Honorable Ronald A. United States Judge District for the Eastern District of Okla- Impact brought appeal, State- UEC an administrative by an Environmental nied public process review conducted ment the Forest Service issued a Final De- the National Environ- in accordance with February cision in 2002 that affirmed the Policy mental Act Colorado [‘NEPA’].” AR ranger. district Dombeck, v. Envtl. Coalition challenged the Forest Service’s (10th Cir.1999); 1167-68 U.S.C. approval of the in federal district end, § 1604. To this the Forest Service court. In September the district the Fishlake National Forest Plan adopted court petition dismissed UEC’s for review Plan”) (the “Forest in 1986 to maintain the agency’s and affirmed the Decision Notice part Fishlake National Forest. As of its appeals FONSI. UEC now the For- responsibilities, substantive est approval Service’s of the on diversity plant “provide Plan must rejected two of grounds the three and animal communities based on the suit- alleges district court. UEC that the For- ability capability specific land Service, (1) properly did not select and multiple-use area order meet overall Management monitor certain Indicator objectives.” 1604(g)(3)(B). 16 U.S.C. Species and did not consider a reason- level, “the At the second *5 range management able of alternatives.1 by approving the Forest Plan implements (with modification) disap- or or without II. STANDARD OF REVIEW as the proving particular projects,” such Community Forestry Ini- Thousand Lakes independent take “an We review of the Dombeck, Project. tiative 185 F.3d at agency’s by action” and are not bound the subject projects 1168. Individual are also findings legal district court’s factual or comply to and must the For- NEPA with Commodity conclusions. Olenhouse v. Manage- est Plan and the National Forest 1560, 1569 16, 1577 42 n. Corp., Credit F.3d (“NFMA”). 1604(i). ment Act 16 U.S.C. (10th Cir.1994). n. 27 the For We review est Service’s decision under the Adminis 1999, In November the Forest Service trative Act agen Procedures and set aside began preparing an Environmental As- cy “arbitrary, capricious, action if it is an (“EA”) Project. For- sessment discretion, of not in abuse otherwise Project’s poten- examined the est Service accordance with law.” 5 U.S.C. wildlife, soils, tial to impact vegetation, and 706(2)(A). to an give We deference resources, Biologi- prepared other agency’s interpretation, “especially when Biological cal Assessment and Evaluation interpretation involves of questions impacts plant of to sensitive and animal Dombeck, 2001, methodology.” scientific 185 species. May In the Forest Service addition, agency, at Project, “[t]he F.3d published its EA for the and in court, 2001, reviewing not the is entrusted with ranger October the district issued a (“FONSI”) finding significant impact responsibility considering of no the vari Project. of scientific evaluation and the- approving and Decision Notice ous modes argued, 1. UEC also the district court tice to the court about waived claims. UEC before briefs, appellate and in its that the could filed a motion to withdraw the have (i.e., redrew) improperly revalidated issue, pursuant revalidation to Fed. R.App. P. boundaries for inventoried roadless areas. 27. Such assists the court obviat- notice argument, At oral UEC waived this third ar- ing prepare issues found to our need to later gument. litigants we While understand that abandoned, be and allows us to utilize limit- argu- legal strategies up often refine to oral effectively. judicial ed resources ment, encourage prompt we nonetheless no- 1110 one
ory
choosing
appropriate
for The Forest Service
considered au-
City Bridge
given
circumstances.”
under
thorization
the “1982
FAA,
448,
Cir.
ton v.
rule,”
place
regulations
prior
those
to
2000)
marks
internal cita
(quotation
See
2000 amendments.
36 C.F.R.
omitted),
approval
cited
in Cus
tion
(1999).
§ 219.19
Garvey,
Ass’n v.
County
ter
Action
28(j)
In a
filed
Rule
letter
one week
(10th Cir.2001).
1024, 1036
“[T]he
argument,
before oral
the Forest Service
empowered
substitute its
court is not
Department’s
publica-
informed us of
that of the
judgment
agency.”
for
Citi
interpretative
tion
an
rule
September
Volpe,
Preserve Overton Park v.
zens to
58,055
29, 2004);
Fed.Reg.
(Sept.
2004. 69
416,
91 S.Ct.
28 L.Ed.2d
U.S.
R.App.
(1971).
28(j).
see also
P.
The interpre-
Fed.
tative
explained
regula-
rule
that the 2000
III. APPLICABLE FOREST
tions rendered the 1982 rule inoperative
REGULATIONS
SERVICE
for project-specific decisions made after
proceed
separate
UEC’s
Before we
The interpretative
November
briefly
rele-
challenges, we
describe the
that, during
rule
clarified
transition
at issue. Forest Service
regulations
vant
period
between November
require-
regulations implement NFMA’s
rule,
mulgation of a final
the Forest Ser-
government
address how
ment
vice
“best available
should use the
science”
provide
plant
for
and animal
plans
219.35(a)
decisions. 69
(1999).
diversity. 36 C.F.R.
58,056.
Fed.Reg.
rules replaced
New
Agriculture (“Department”)
Department
regulations
January
the 2000 planning
*6
substantially
regulations
amended the
(Jan.
2005).
5,
2005.
Fed.Reg.
See 70
1023
67,-
Fed.Reg.
in
2000. 65
issue November
(Nov.
2000).
9,
regulations
568
2000
however,
conclude,
that
the
We
provision
initially
a transition
included
provisions
regula
transition
of the 2000
to project deci-
delayed
application
their
Project’s
tions do
apply
not
to the
authori
until November
See 36 C.F.R.
sions
zation, and we review Forest Service obli
(2001).
219.35(d)
§
Department
sub-
First,
gations under the 1982rule instead.
to the 2000
sequently proposed revisions
the
at oral argument
Forest Service stated
regulations
pe-
the
and extended
transition
apply
it
the
“elected” to
1982 rule
to
application
project
riod for their
deci-
Project.
when it
the
approved
See 36
219.35(d) (2004);
§
36 C.F.R.
sions. See
219.35(b) (2001);
Aple’s
C.F.R.
see also
2003);
53,294
10,
(Sept.
68
67
Fed.Reg.
(“The
Br. at 8
2
promul
n.
(Dec. 2002).
6,
72,770
Under the
Fed.Reg.
gated
Plan and
the
Forest
decided to
[]
9,
from
provisions,
November
transition
undertake the Thousand Lakes
un
2000,
promulgation
plan-
until the
of final
rule.”)
the
planning
(emphasis
der
1982
ning regulations, the Forest
was
Service
added).
Forest
While the
Service now
to “consider the
available
directed
best
required
it
contends that was
to com
in
implementing”
plan.
science
36
rule,
it
ply
the 1982
nonetheless exer
(d)
219.35(a),
(2004).
C.F.R.
When
apply
cised its
to
1982 rule
discretion
Forest Service issued
Decision Notice
issuing
when
its Decision Notice and Final
in
2001 and filed its
brief
appellate
October
choice of
agency’s
Decision. The
method
2004,
in
May
con-
this court
it did not
ology is entitled to deference. See Custer
provisions
tend that the transition
of
Ass’n,
applied
Project. County
2000
to
1111 Thus, Second, involving multiple grounds apply in another case we have to project, we treat Fishlake National Forest the 1982 rule and its attendant reliance on rule, than the 1982 rather the transition ed analysis to our review of the 219.35(a), regula of provision “[t]he authorization. Regula- Code of Federal disputed time of the tions in effect at the (unless noted) tions citations otherwise re- decisions” made Decem fer to 1999 of edition Part the last Bosivorth, Cong. Envtl. v. ber Utah published publication edition before the (10th Cir.2004) 1219, 1221 n. 1 372 F.3d amendments. (“UEC ”). While we now have bene Department’s post explana fit of the hoc IV. ANALYSIS applicable regulations tion of the since we UEC claims that the Forest Service act- I, interpretative rules “do not issued UEC arbitrarily, capriciously, contrary ed to have the force and effect law and are failing law to select monitor adjudicato weight not accorded that Management Species Indicator fail- ry Guernsey v. Mem’l process.” Shalala 87, 99, ing to consider a range reasonable Hosp., 514 U.S. S.Ct. (1995). ject
L.Ed.2d 106 Because we review alternatives. for an the Forest Service’s authorization discretion, logical abuse of review A. monitoring Selection and MIS un- that discretion based on the 1982 rule der 36 C.F.R. was, according place when viability, To assess habitat authorized. But see the discretion was a project’s Service estimates effect on cer- Forest Watch v. United States Forest representative tain species. (2d Cir.2005) (cit Serv., Fish and wildlife habitat shall be man- ing proposition I for the “that the aged populations to maintain viable purpose of determin relevant date for the existing native and desired non-native ing applies which rule is the date the final species planning in the area. vertebrate made,” agency decision was while conclud provisions 2000 transitional ing decision, govern August an (a)(1) In order to estimate the effects of *7 despite application the Forest Service’s of [management] each alternative on fish project’s approval). the 1982 rule to the populations, and certain verte- wildlife Third, the Forest Plan identifies several species pres- brate invertebrate and/or in specifies “Implementation” MIS and its ent the area shall be identified and chapter “Popu- Forest Service use management spe- selected as indicator monitoring.
lation Trends” for MIS
1 AR
for their selection
cies and
reasons
(Forest
11-30,
Plan at
000157
11-29 to
V-
species
will be stated. Those
shall be
6);
I,
(Baldock,
UEC
Pub. Lands ine, Service, n. 11 of 88 F.3d 762 Service’s selection “eco- Cir.1996), logical guilds indicator” interest” proxy “high and serve as “a for deter- and Rather, Project. challenges for the management effects of activi- mining the groups the chosen MIS within these species.” other Forest Guardians ties on Serv., species. Forest v. United States (D.N.M.2001). F.Supp.2d recent decision in I Our UEC addressed require “[p]opulation regulations obligations the Forest Service’s MIS spe- indicator management
trends of another regard to the Fishlake relationships cies will be monitored and Forest, impor- National and it resolves two changes determined.” 36 C.F.R. habitat First, tant issues here. UEC makes 219.19(a)(6). addition, § “[inventories regulations anticipate appli- clear that “the quantitative making pos- include data shall cation of 219.19 to level as well diversity in the evaluation of terms of sible plan level actions.” 372 management prior present and conditions.” Id. at 1225. As we noted UEC this § 219.26. approach is consistent with other circuits. Martin, See Sierra Club v. diversity provisions
To meet the under (11th Cir.1999) “that the (recognizing reg- 219.19, designates Plan two refer to ulations the formulation of Forest categories “ecological MIS: indicator” than specific projects pro- Plans rather ecologi- “high species. interest” posed already under enacted Forest Plan” species groups cal indicators include five that “the planning process but does not sage-nester species: and one individual approval” with the end Forest Service’s guild, riparian guild, cavity-nester guild, throughout “continuefs] the Plan’s ex- trout, macro-invertebrates, resident istence”); Inland Empire Pub. Lands group is a goshawk. “guild” northern A Council, (“Because 88 F.3d at n. 6 any species exploits the same class of contained district within the boundaries of way. environmental resources the same having plan a forest would be an ‘area ecological The Forest indi- Service selects ... plan,’ covered ... would (1) criteria: species according cator to five be a planning governed by also area [] (2) “affinity type,” the vegetation “life 219.19.”) Regulation (quoting C.F.R. (3) cycle keyed vegetation type,” to a 219.3). Thus, the Forest Service’s obli- “[sjensitivity change,” “[r]el- to habitat gations apply to the Pro- i.e., easily monitoring, recog- ative ease of ject. numbers,” adequate nized and be- “[sjomewhat ing representative other Second, we decided in IUEC that species vegetation which the same use “actual, quan the Forest Service must use *8 (Forest
type.” 1 AR 000157 Plan’s Final population titative data” to meet MIS mon Impact Environmental Statement obligations § itoring under 219.19. 372 (“FEIS”) 34). at III— at 1226. effectuate its “[T]o MIS elk, “High monitoring language interest” include duties MIS mule under the of trout, deer, Ryd- regulations, Bonneville cutthroat and the Forest Service must berg’s gather quantitative milkvetch. The Forest on actual Service data MIS “high populations chose interest” MIS “because of that it to estimate allows threatened, endangered, any their or of management sensitive effects activities status, trends, importance, population social or the animal and economic or on de high public manage- at III—36. relationship interest.” Id. UEC termine the between population along and trend been documented ment activities the road and the 1227; Martin, additional Id. at see also disturbance would involve changes.” 219.19(a)(6) § (examining sagebrush at 6 .01% less total available Mountain, on concluding implicit that that habitat Thousand Lakes and “[i]t [ef- sage nesting species it population expect- fects] data must be collected before [are] ed to be minimal relationship implement- monitored and its de- as result of can be termined”). ing Proposed Prior to Action.” Id. that it Service contended need not conduct sage grouse Because no were document- planning “head-counts” of MIS in a area area, Project ed within the UEC contends pro- because it had discretion to assess a that the Forest improperly Service select- data,
ject’s using effects on MIS habitat sage-nester ed an for the guild. MIS data, generally or both. See population logic position of this support finds Orlemann, Note, the Proposed Andrew Do § 219.19. The identify Forest Service must Regulations Protect Biodi- and select “certain vertebrate in- and/or ” versity? Analysis Continuing An species present vertebrate in the area “to ” Analysis, Viability Viability “Habitat estimate the effects of each alternative on 20 J. LANDRESOURCES&Envtl. L. 360- populations,” fish and wildlife and it must (2000) (describing split among fed- also state “the reasons for their selection.” adequacy eral as to the of habitat circuits 219.19(a)(1) added). § (emphasis 36 C.F.R. 219.19). analysis viability “These shall be [MIS] selected because mind, changes their are believed to requirements in With these we of management indicate the effects activi- to the challenges examine UEC’s (1) ties.” Id. monitoring sage-nester Service’s (2) (3)
guild, riparian guild, cavity-nester plain language requires of 219.19 (5) (4) guild, goshawk, northern and Mexi- that selected MIS have some documenta- spotted can owl. presence contemplated tion of a within the First, recognized area. we Sage-nester guild: sage grouse as “clearly Dombeck that 219.19 presup- MIS poses presence a spe- ascertainable given planning
UEC first maintains that the For cies’ within a pres did not at 1170. Noting Service determine the area.” 185 F.3d UEC I’s sage Project applies ence of nesters in the area conclusion that at the level, ject explain why regulations’ did not chose the it follows that sage grouse guild’s representa requirement “present sole to select in the MIS concluded, apply tive. The Forest based area” should also to the level. Second, it July survey unpub choosing on a 2000 field is axiomatic data, telemetry sage actually “present [project] radio in the area” lished grouse present appropriately regula- are not in the area. most advances the goal diversity 1 AR 2 AR 001247. It and best meets the also tions’ popula- I directive to monitor MIS photos vegetation mapping used aerial gather inventory no tion data. to conclude includes trends Dombeck, logically EA did sagebrush habitat. The noted the “Forest Service *9 lynx rare and as a road reconstruction would occur not select the elusive Species” along existing through “potential Management an road Indicator because lynx population 1 AR is no data sage nesting simply habitat.” 000079. “there However, not to the Forest Service.” 185 F.3d sage “because nesters have available
1114
Houck,
A.
regulations
population
Oliver
On the
to collect
data.” Id.
at
also
1169. See
at 1229.
Biodiversity
Ecosystem
Man-
Law of
agement, Minn.
L.Rev.
must
Forest Service
select
only
not
that diversi-
(“Congress intended
guild
appropriate
within each
an
MIS
in forest
ty
planning, but
be ‘considered’
present
is
area.
project
Selecting
the
achieved.”).
that it be
few)
(or
acceptable
one
or two
MIS
previously
has not
addressed
This court
actually present
project
in a
area cannot
an
the
Service’s selection of MIS
Forest
satisfy
monitoring obligations
the overall
popula-
or unconfirmed
with no confirmed
Martin,
§of
219.19.
at 7
See
I,
area.
In
the
project
tion in a
UEC
(concluding that the Forest Service violat
acknowledged
sage
Forest Service
§§
ed
219.19 and 219.26 because it “ha[d]
grouse
present, referenced
potentially
are
population
no
for half of the
data
MIS
sightings” in
project
the
“unconfirmed
reliably
the
and thus [could not]
Forest
area,
quantitative
no
data to
provided
but
gauge
impact
projects
the
of the timber
on
sage grouse’s presence. 372
confirm the
Here,
species”).
these
the Forest Service
determined in
F.3d at
We
UEC
selected
ecological
indicator
ac
MIS
comply
Forest Service did not
the
criteria,
cording
including
to several
the
219.19,
addressing
§with
without
monitoring.”
ease of
1 AR
“[r]elative
an
priety
sage grouse’s
of the
selection as
(FEIS
III-34).
at
The Forest Plan
I, “despite
unconfirmed
MIS.
specifically
sage-nester
notes that
sage grouse
sightings
[ ]
within
“[ijncludes
guild
sage dependent species,
area,
the record
no at-
reflected]
[i.e.,]
thrasher,
sage
vesper sparrow, sage
to confirm the
tempt by the Forest Service
(on
basis)
sparrow,
by
etc.
a case
case
at
presence
this MIS.” Id.
dependent
proposed project
upon
or man
agement activity.” Id. at III—34 to III—35.
plain reading
Under
I,
Even
we conclude that the
with its discretion to select an
MIS
an
based
proposed project,
Service must select
MIS with some
on the
“present
[project]
sage-
evidence that
is
in the
Service erred when it selected a
any
area.” The Forest Service must then col nester
with no documentation
data,”
“actual,
population
Project
First,
quantitative
presence
lect
within the
area.
population
id. at
to monitor
trends
neither the Forest Service’s 2000 field sur-
vey nor
relationships
telemetry
and to determine
to habitat
its radio
data document-
219.19(a)(6).
sage
It
changes.
grouse
36 C.F.R.
ed
in the
See
area. Sec-
confirm,
“good
ond, a
must also
with
faith ef
National Forest breeding
Fishlake
forts,”
presence
survey
selected MIS bird
route and the United States
Geological
at
Survey’s
within a
area. UEC 372 F.3d
bird
trends
representative
“pres
provide
quantitative
1230. If no MIS
is
also
data
sage
no
on
area,”
grouse
ent
[project]
in the
the Forest Ser
in or near the
area. 2 AR
Third,
001326-30,
good-faith
vice must
efforts to con
001335-49.
show
while not
dispositive,
firm
explain
sage grouse
the absence of selected
was consid-
may
rejected
It
that the
ered but ultimately
MIS.
be
Forest Service
as an
inMIS
guild,
larger
1 AR
improper
pre
selected an
or actions
Forest Plan.
(FEIS
30)
viously
may
sage grouse
have
significant
(listing
taken
had a
as a
III—
“Species
effect on the chosen
But Not
deleterious
MIS.
Considered
Selected for
MIS,”
impossible,
an
“[W]here
estimated
“Unknown”).
applicable
required
statutes
*10
sum,
provides
including
Ranger District,
the Forest
nei-
areas of the Loa
Service
sage grouse popula-
ther evidence of the
conducted since 1994. AR 001336. How-
single sighting
ever,
the Pro-
tion nor even
we cannot
surveys
assess these field
ject
note that
does not
area. We
they
because
are not
the administrative
finding
vir-
contest the Forest Service’s
record. See UEC
3. three-toed Riparian guild: 2. Southwestern wil- ivoodpecker and owl as flamulated flycatcher low as MIS regarding Similar to its contentions The Forest Service selected two sage grouse arguments are that the UEC’s woodpecker species, the three-toed and the quanti- has not collected owl, represent cavity flamulated tative data on the Southwestern guild. woodpecker nester The three-toed flycatcher adequate- willow has not spruce aspen lives in relies habitat and ly why explained it chose this MIS for the spruce on a primary beetles as food EA, riparian guild. According to the wil- source; prey fluctuates with flycatchers low were observed in the 1990s 1 AR 2 AR abundance. in thick eight willow stands air miles spruce owl on flamulated also feeds area. 1 AR northwest objective primary beetles. The 000069; (Project’s 2 AR see also is to reduce “the overall stand densities of However, Biologist Report). EA con- highest at the risk of the stands are potential cluded that no occurs in habitat 1 AR spruce infestation” of bark beetles. “[bjased because, area on field surveys, flycatchers no willow had been auditory surveys detected documented on Visual the Thousand Lakes woodpeckers on Thousand Lakes Moun- Mountain.” AR 000069. The Forest flycatcher during nesting pairs Service also references formal tain but were surveys Forest, in the Fishlake National 1 AR EA con- not located. 000151. The *11 treatment on the proposed “the acres Mountain. Based administrative
eluded that
approximately
record,
2%
total
represent
the
the
Forest Service selected
for
spruce/aspen habitat
the
available
flamulated owl
despite having
as an MIS
woodpecker on Thousand Lakes
three-toed
any presence
no documentation of
in the
Direct and indirect effects to
Mountain.
Project area.
Forest
The
Service there-
woodpecker are therefore
the three-toed
erred
not satisfy
fore
because
did
the
population
to cause a loss of
expected
not
to
requirement under
select an
” 1 AR
also ac-
viability....
000075. We
“present in
the area.”
pronounce-
knowledge
Service’s
populations
trends”
the
ment of “stable
4. Northern goshawk
cavity nesters,
including the
eighteen
UEC next maintains that the For
woodpecker,
on a
based
breed-
three-toed
satisfy
est Service did not
its MIS moni
County.
survey Wayne
AR
ing bird
the
toring
goshawk.
for
northern
However,
do not find suffi-
001348.
we
monitoring
Forest Service collected
data
the
quantitative
cient
data on
three-toed
(1) four
through
surveys
aerial
Pro
the
in the administrative record
woodpecker
(2)
ject area in
ground surveys in
population trends or to forecast
determine
(3)
and
surveys
and
additional
Project’s
effects
its
via-
the
on
a
and
statewide habitat assessment con
we
that the Forest
bility. Nor do
conclude
ducted between
and 2000. 2
AR
good-faith
demonstrated
ef-
Service has
001234-45, 001279, 001364-65, 001369.
woodpecker’s
the
forts to confirm
absence
UEC relied
on the same
part
popula-
Project
Accordingly,
area.
the For-
the
concluding
tion data when
that the Forest
has not
monitoring
est Service
met MIS
actions
adequate.
Service’s
were
372 F.3d
219.19 with re-
responsibilities
that,
agree
at 1227-28. We
with UEC I
woodpecker.
spect to the three-toed
record,
based on the administrative
owls,
flamulated
the Forest Ser-
As to
Forest Service fulfilled its
219.19 MIS
study
study
a 1991
and 1992
that
vice cites
monitoring
respect
to the northern
the owls in mixed conifers
detected
one
goshawk.
Project
and 2.5
east of the
mile west
miles
recognized
AR 000075.
EA
area. 1
endangered
species:
Threatened and
Project’s
har-
proposed salvage
Mexican spotted owl
potential nesting
remove
habi-
vest would
finally
contends that
“[wjhether
owl,
tat
concedes
properly
Service did not
monitor
logging
these owls would tolerate selective
owl,
spotted
the Mexican
a
threatened
breeding
a
during the
season near
nest
species.2
endangered
Regulations imple
1 AR
The For-
site is unknown.”
menting
diversity
pro
NFMA’s
mandate
est Service contends that the
im-
“[e]ndangered
vide
pact
threatened
owl will minimal because
on the
be
plant and animal species identified on state
vegetation
area’s
is not
planning
and Federal
habitat and
lists for the
area”
preferred
owl’s
percentage
should
appropri
area constitutes
small
be selected as MIS where
219.19(a)(1).
habitat on
available
Thousand Lakes
ate. 36 C.F.R.
The Forest
addressed,
vaguely
opening
2. UEC also
asserts in its
brief
Ambus
is waived. See
v. Gran
adequately
Educ.,
that the Forest
did not
ite Bd.
1558 n. 1
collect
data monitor
Utah
(10th Cir.1992),
grounds
on other
on
modified
eagle,
prairie dog,
peregrine
bald
falcon.
Cir.1993).
reh'g,
environmental of alterna 6. Conclusion rejected good tives it has in faith as too remote, impractical ... or in speculative, has not met its obli- The Forest Service true that effective.” Id. “While defen moni- gations under 219.19 to select and reject dants could alternatives that did not respect sage-nester tor to the project, and need of the purpose meet the guild, cavity-nester guild, guild, riparian they project could not define the so nar spotted owl. Mexican
rowly that it foreclosed a reasonable con Davis, B. alternatives Consideration sideration of alternatives.” ofNEPA (internal quotation at 1119 marks UEC next contends omitted). arbitrarily when the Forest Service acted designed improve “to formally EA considered two was or maintain conditions in order to alternatives: no-action alternative and habitat ecosystem proposed promote long-term action. Under health the modified wildlife, NEPA, and fish.” 1 agencies prepare people, federal an EIS the benefit of FONSI). (Decision AR they propose “major Federal ac Notice when primary objective is to reduce densi- significantly affecting quality of The tion[ ] spruce stands that are at aspen the human environment.” U.S.C. ties 4332(2)(c). infestation, “Agencies prepare spruce need not most risk of beetle EIS, however, they initially pre maintaining appearance. a full if while a forested and, objective, pare secondary the less detailed based on Under the [EA] I that binding holding resource-dependent enter- local supply will activities in addi- applies in an level materials “economi- raw prises with development, adoption and revi- Id. tion to manner.” cally feasible plan of the forest itself. The district sion the Forest Service argues court here would no doubt have ruled dif- by defining project’s NEPA violated ferently if it could have divined narrowly only possi- that the objectives so must ject management level activities proposed alternatives were the ble *13 § strictly procedures. adhere to 219.19 action. It also contends that the or no divination, however, possi- a was not Such could have addressed the I opinion implicitly As the UEC ble. infestation in non-commer- spruce beetle concedes, holding compelled by its was that considered alternatives ways cial language regulation. of the the actual roadless areas. Accord- not revalidate did Service, § a non-commer- does the term ing to the Forest Nowhere 219.19 pro- explicit language achieve neither of “project” appear. cial alternative would dual ject objective. “planning Given the that mentions the section Indeed, to objectives agency’s and the discretion I mentions that even area.” UEC objectives, Airport Neigh- that plaintiff chose those see the that case conceded “ Alliance, development § at applies bors to the range a management plans opposed examined reasonable forest as Service arbitrarily act and did not level Utah En- specific project actions[J” alternatives Bosworth, only the no-action al- Congress when it considered vironmental v. Cir.2004). ac- proposed ternative and the modified UEC I’s analysis mentions: that NFMA tion. also activities “requires management resource CONCLUSION V. Id., plan,” at consistent with the forest be and, supplied); (emphasis 1224-25. order the district court’s We REVERSE “contemplates application § 219.27 the of the affirming authorization plan § as well as 219.19 to level in- the district court with REMAND to Id., at 1225 management actions.” level to VACATE the Forest Ser- structions These two factors (emphasis supplied). Project.3 of the approval vice’s I’s final formed the foundation UEC regulations as a whole conclusion WHITE, Judge. District § 219.19 to “anticipate” application concurring opin- I offer this respectfully plan management as level ject level as well impact of the interven- highlight ion to actions. court’s ing precedent circuit on the district Thus, regula- according to ren- UEC Admittedly, opinion decision. its fi- “anticipate” “contemplate” from the now tions today logically dered follows surveying proposed project.” regula- of a January or In the 2005 Forest Service 219.14(f) (2005); tions, § also 70 Fed. C.F.R. see final rule MIS are not included ("clarifying] Reg. that MIS monitor- at 1052 specifically mentioned in the transi- but are appropriate at the Fed.Reg. ing 219.14] is provision [under at tion at 219.14. See specific places appropriate to the plans times and For that use older data, required individual species, and is not within specify MIS 1982 rule and areas”). activity We not ad- do provision "requires population or the transition agency apply the surveys whether the should monitoring for the dress or provision dur- gives 1982 rule or the new transition Responsible Official dis- [MIS]” but monitoring ing proceedings. "[s]ite-specific further cretion to conduct goals Unfortunately, of 219.19.This is hard- vances the of NFMA. interpretation nal firm foundation for the conclusion I that in ly finding interpre- believe the best only legally tation, interpretation I’s panel UEC I UEC substituted its Indeed, nowhere does permissible one. judgment for that appropriate of the deci- interpretation I state that UEC interpretation sion-maker. of the only legally permissible § 219.19 is the deference, given Forest Service must be Furthermore, nowhere does one. “especially interpretation when the in- exactly how the Forest Service’s explain questions volves of scientific methodology.” regulation was arbi- interpretation Dombeck, at 1169-70.
trary capricious. disagreement interpretation A about the course, say that is not to
Of regulation of a Forest might hard- illogical of 219.19 is interpretation I’s ly justify concurring opinion, seem to Likewise, because that sec- unreasonable. when, now, especially the Forest Ser- ambiguous regard tion is best with *14 adopted planning regulations. vice has new issue, interpretation of the present Thus, particular interpretive this issue is is also neither unreasonable unlikely to be reviewed future cases. short, illogical. level actions here, however, The issue of consequence is certainly may still be “consistent” with the merely involving proper interpre- one whole, plan requiring without forest regulations, proper tation of but rather the imposition proce- wholesale separation powers. separation That A project. dures onto each discrete agency’s breached when an reasonable in- ject may certainly be “consistent” with the terpretation regulation of a is set aside in plan when the Forest Service as- seemingly imposed by favor of a better one through project’s sesses a effects on MIS judiciary. information, population the use of habitat But for the I intercession information, or a combination of the two. affirm court. would the district The obli- Additionally, forget let us not decisis, however, gations compel of stare Dombeck, emphasized this Court that a respectfully me to concur the result “practical” interpretation regula- today. tions must be taken “consistent with the objectives in- multiple overall use and the flexibility
herent of the National Forest Management Act.” Colorado Envtl. Coali- Dombeck,
tion v. Cir.1999). forget that Let us also not America, UNITED STATES acres, entails issue here Plaintiff-Appellant, 15,000 or 1.46% of the entire acre Thou- v. Therefore, sand Lakes Mountain area. VALLEJOS, Defendant-Appellee. Eddie case, cases, this even if not in all interpretation of 219.19 Service’s No. 04-2216. imminently and its actions seem reason- Appeals, States Court of United able. Tenth Circuit. controlling interpretation The now Aug. may 219.19 in be the inter- best doubt, pretation. panel believed No interpretation effectively most ad-