Native Ecosystems Council v. Leanne Marten , 883 F.3d 783 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE ECOSYSTEMS No. 16-35571
COUNCIL; ALLIANCE FOR THE
WILD ROCKIES, D.C. No.
Plaintiffs-Appellants, 9:13-cv-00064-BMM
v.
OPINION
LEANNE MARTEN, Regional
Forester of Region One of the
U.S. Forest Service; UNITED
STATES FOREST SERVICE, an
agency of the U.S. Department
of Agriculture; UNITED STATES
FISH AND WILDLIFE SERVICE,
an agency of the U.S.
Department of the Interior,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted November 8, 2017
Portland, Oregon
Filed February 22, 2018
2 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
Before: Ferdinand F. Fernandez, William A. Fletcher,
and Michael J. Melloy,* Circuit Judges.
Opinion by Judge W. Fletcher
SUMMARY**
Environmental Law
The panel affirmed the district court’s summary judgment
order and order dissolving an injunction in an action
challenging the United States Forest Service’s proposed
Lonesome Wood Vegetation Management 2 Project, designed
to reduce the threat to wildlife in a populated area of the
Gallatin National Forest in Montana.
Environmental groups brought suit to enjoin the project,
contending that it violated the Endangered Species Act
(“ESA”), the National Forest Management Act (“NFMA”),
the National Environmental Policy Act, and the
Administrative Procedure Act. The NFMA requires that all
national forests operate under land and resource management
plans, or “Forest Plans.” The district court initially enjoined
the project but eventually granted the Forest Service’s motion
to dissolve the injunction.
*
The Honorable Michael J. Melloy, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 3
In 2000, Canada lynx were listed as a threatened species
under the ESA; and in 2007, the Lynx Amendments were
adopted to govern the management of Canada lynx habitat,
and then incorporated into the forest plans for national
forests, including the Gallatin National Forest.
Concerning plaintiffs’ challenge to an exemption
contained in the 2007 Lynx Amendments to the Gallatin
National Forest Plan, the panel declined to overrule the Forest
Service’s determination that a thesis prepared by Megan
Kosterman – outlining important predictors for overall lynx
reproductive success – did not require the Forest Service to
reevaluate its approval of the project.
Concerning plaintiffs’ contention that the Forest Service
was in violation of the Gallatin National Forest Plan, the
panel rejected the argument that the Forest Service failed to
comply with the obligation to ensure species viability. The
panel also rejected the argument that the Forest Service failed
to comply with its Gallatin Forest Plan obligation to monitor
population trends for two management indicator species.
Finally, the panel also rejected plaintiffs’ challenges
under the National Environmental Policy Act. The panel
concluded that the Forest Service took a “hard look” at the
project, and did not act arbitrarily or capriciously.
4 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
COUNSEL
Rebecca Kay Smith (argued), Public Interest Defense Center,
Missoula, Montana; Timothy M. Bechtold, Bechtold Law
Firm, Missoula, Montana; for Plaintiffs-Appellants.
Jeffrey S. Beelaert (argued), Travis J. Annatoyn, Allen M.
Brabender, and Andrew C. Mergen, Attorneys, Environment
and Natural Resources Division; Jeffrey H. Wood, Acting
Assistant Attorney General; Kathryn Williams-Shuck, United
States Department of the Interior; Alan Campbell, United
States Department of Agriculture; Mark S. Smith, Assistant
United States Attorney; United States Department of Justice,
Washington, D.C.; for Defendants-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
This appeal challenges the United States Forest Service’s
proposed Lonesome Wood Vegetation Management 2 Project
(“Lonesome Wood 2” or “project”), designed to reduce the
threat of wildfire in a populated area of the Gallatin National
Forest in Montana. If implemented, Lonesome Wood 2
would entail thinning just over 2,500 acres of forest land,
including 495 acres of old growth forest. Appellants Native
Ecosystems Council and the Alliance for the Wild Rockies
(collectively, “Council”) brought suit in federal district court
to enjoin the project, contending that it violates the
Endangered Species Act (“ESA”), the National Forest
Management Act (“NFMA”), the National Environmental
Policy Act (“NEPA”), and the Administrative Procedure Act
(“APA”). The district court initially enjoined the project, but
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 5
after twice remanding the case to the Forest Service to
remedy defects in Biological Opinions concerning two listed
species under the ESA, it granted the Forest Service’s motion
to dissolve the injunction. We affirm.
I. Background
In 2005, the Forest Service assessed the risk of wildfire
near Hebgen Lake in the Gallatin National Forest. The Forest
Service concluded that accumulation of fuel in the area posed
a serious risk to the private homes, campgrounds, and
recreational areas near the lake. To mitigate the risk, the
Forest Service developed and approved a project to thin large
trees on about 1,750 acres, including about 495 acres of old-
growth forest; to thin small trees on about 825 acres; to slash
and/or selectively burn on about 325 acres; and to build about
six miles of temporary roads.
The Forest Service issued an Environmental Assessment
for Lonesome Wood 2 in December 2007, followed by a
Decision Notice (“DN”) and Finding of No Significant
Impact (“FONSI”) in April 2008. The Council filed suit
challenging the project in January 2009. Before the district
court could rule, grizzly bears were relisted as a threatened
species under the ESA, resulting in different consultation and
management criteria. The Forest Service withdrew the DN
and FONSI in order to prepare an Environmental Impact
Statement. A Final Environmental Impact Statement
(“FEIS”) was issued in October 2012, and a Record of
Decision (“ROD”) approving the project was issued in
December 2012.
The Council again challenged the project, filing suit in
March 2013 and alleging violations of ESA, NFMA, NEPA,
6 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
and the APA. The parties filed cross-motions for summary
judgment. On December 5, 2014, the district court granted
partial summary judgment to the Council on its ESA claim.
The district court concluded that the United States Fish and
Wildlife Service (“FWS”), in its Biological Opinions
(“BiOps”) evaluating the effect of Lonesome Wood 2 on two
listed species—grizzly bears and Canada lynx—did not
perform a site-specific analysis of the project’s impact.
Rather, FWS relied entirely on the project having satisfied the
criteria for an exemption for fuel-treatment projects near
human habitation, which exempted the project from
otherwise-applicable standards. (We describe the exemption
in detail in Section III.A., infra.) The court enjoined the
project and remanded for preparation of site-specific BiOps.
It granted partial summary judgment to the Forest Service on
the Council’s remaining claims.
On July 1, 2015, FWS submitted new BiOps. On August
31, 2015, the district court again held the BiOps inadequate
because they continued to rely on the project having satisfied
the criteria for the exemption. On April 12, 2016, FWS
submitted a third pair of BiOps. These BiOps specifically
addressed the project’s expected environmental effects. The
BiOp dealing with the lynx concluded that the “the Lonesome
Wood 2 project, as proposed, is not likely to jeopardize the
continued existence of Canada lynx.” On July 7, 2016, the
court concluded that the April 2016 BiOps were sufficiently
site-specific to satisfy the Forest Service’s consultation
obligation under the ESA. The court dissolved the injunction
and allowed the project to proceed.
The Council appealed the district court’s order granting
partial summary judgment to the Forest Service and its later
order dissolving the injunction. We have jurisdiction over the
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 7
entirety of the appeal. See 28 U.S.C. § 1291; Alsea Valley
All. v. Dep’t of Commerce, 358 F.3d 1181, 1184 (9th Cir.
2004).
II. Standard of Review
We review an agency’s compliance with the ESA,
NFMA, and NEPA under the “arbitrary and capricious”
standard of the APA. Defs. of Wildlife v. Zinke, 856 F.3d
1248, 1256–57 (9th Cir. 2017) (ESA); Native Ecosystems
Council v. Tidwell, 599 F.3d 926, 932 (9th Cir. 2010)
(NFMA); Lands Council v. Powell, 395 F.3d 1019, 1026 n.5
(9th Cir. 2005) (NEPA). The APA “requires an agency action
to be upheld unless it is found to be ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.’ ” Zinke, 856 F.3d at 1256–57. “An agency’s action is
arbitrary and capricious if the agency fails to consider an
important aspect of a problem, if the agency offers an
explanation for the decision that is contrary to the evidence,
if the agency’s decision is so implausible that it could not be
ascribed to a difference in view or be the product of agency
expertise, or if the agency’s decision is contrary to the
governing law.” Powell, 395 F.3d at 1026 (internal citations
omitted).
We review summary judgment rulings de novo. Zinke,
856 F.3d at 1256. “We review the validity of a district court’s
order granting dissolution of an injunction for an abuse of
discretion.” N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 889
(9th Cir. 1992). A district court abuses its discretion when it
makes an error of law, which we review de novo. Id.
8 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
III. Discussion
A. Endangered Species Act
The ESA requires federal agencies to ensure that their
actions are not “likely to jeopardize the continued existence
of any endangered species or threatened species,” using the
“best scientific and commercial data available.” 16 U.S.C.
§ 1536(a)(2). The Council challenges an exemption
contained in the 2007 “Lynx Amendments” to the Gallatin
Forest Plan, contending that it is not based on the “best
scientific . . . data available.”
In 2000, after eight years of litigation, Canada lynx were
listed by FWS as a threatened species under the ESA. In
2001, the Forest Service signed a Lynx Conservation
Agreement with FWS under which the Forest Service agreed
not to proceed with any projects that would be “likely to
adversely affect” Canada lynx until its forest plans were
amended. In 2004, the Forest Service issued a Draft
Environmental Impact Statement containing proposed
amendments to forest plans that would protect Canada lynx
habitat. In March 2007, after consultation with FWS under
Section 7 of the ESA, the Forest Service issued an FEIS and
ROD adopting the Northern Rockies Lynx Management
Direction (the “Lynx Amendments”) to govern its
management of Canada lynx habitat. The Lynx Amendments
were then incorporated into the forest plans for the Gallatin
and seventeen other national forests in Idaho, Montana,
Wyoming and Utah.
In 2007, when the Lynx Amendments were adopted, FWS
had designated 1,841 square miles as critical habitat for the
Canada lynx, 1,389 square miles of which were located in the
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 9
Northern Rocky Mountains “critical habitat unit.” None of
the designated critical habitat was located within a national
forest. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.,
789 F.3d 1075, 1077–78 (9th Cir. 2015). Shortly thereafter,
FWS announced that its critical habitat determination had
been “improperly influenced by then deputy assistant
secretary Julie MacDonald and, as a result, may not be
supported by the record, may not be adequately explained, or
may not comport with the best available scientific and
commercial information.” Id. at 1078 (citation and internal
quotation marks omitted).
In 2009, FWS revised its Canada lynx critical habitat
designation upward from 1,841 to 39,000 square miles, more
than 10,000 square miles of which were in the Northern
Rocky Mountain critical habitat unit. Id. A significant
amount of the newly designated Northern Rocky Mountain
critical habitat is located in eleven national forests. Id. In
2015, we affirmed a district court determination that the
designation of Canada lynx critical habitat in these national
forests required reinitiation of Section 7 consultation with
FWS and possible revision of the Lynx Amendments. Id. at
1077. No revision of the Lynx Amendments has yet resulted
from the reinitiation of consultation with FWS.
The Lynx Amendments limit human activity in national
forests in order to protect Canada lynx habitat. However, the
Amendments contain an exemption for Forest Service fuel
treatment projects in the wildland urban interface (“WUI”) if
they satisfy certain criteria. These criteria are that the project
take place within one mile of a human community; that the
totality of such projects affect no more than six percent of
lynx habitat in any three adjoining lynx analysis units within
a particular national forest; and that the totality of such
10 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
projects affect no more than six percent of lynx habitat in the
entirety of any particular national forest. It is uncontested
that Lonesome Wood 2 satisfies the criteria for the WUI
exemption and that the project area is not designated as
Canada lynx critical habitat.
The Council contends that the Amendments’ exemption
from the otherwise-applicable standards for fuel treatment
projects in the WUI is not based on the “best scientific . . .
data available,” in violation of the ESA. The Council argues
that a thesis prepared by Megan Kosterman in December
2014, in partial fulfillment of the requirements for the degree
of Master of Science in Wildlife Biology at the University of
Montana, compels revision or elimination of the WUI
exemption. As summarized in its “abstract,” Ms.
Kosterman’s thesis concludes:
The most important predictors for overall lynx
reproductive success within occupied female
home ranges were the connectivity of mature
forest, intermediate (10–15%) amounts of
young regenerative forest, young regenerating
forest patches with low perimeter-area ratios,
and the adjacency of mature forest to young
regenerating forest types. Female lynx home
ranges that contain greater than 50% mature
forest and approximately 10–15% young
regenerating forest appear to be the optimal
composition of forest structure types. . . .
Incorporating these results into current and
long-term land management plans will
provide a valuable conservation tool to ensure
the persistence of threatened Canada lynx
populations in the western US.
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 11
Megan K. Kosterman, Correlates of Canada Lynx
Reproductive Success in Northwestern Montana, at iii (2014).
The Forest Service responds that it has considered Ms.
Kosterman’s thesis, and has concluded that it does not require
the Forest Service to withdraw its 2012 ROD approving
Lonesome Wood 2. On April 20, 2016, Regional Forester
Leanne Marten wrote a letter to one of the two appellants in
this case:
Thank you for your March 18, 2016 email
correspondence regarding the [Lynx
Amendments] and the 2014 thesis produced
by Megan Kosterman. My staff in the
Regional Office have been fully aware of the
thesis for some time. They have been
working with Ms. Kosterman herself, the US
Fish and Wildlife Service and scientists from
the Forest Service Rocky Mountain Research
Station (RMRS) to understand the relationship
between the 2014 thesis and the [Lynx
Amendments].
While the 2014 thesis provides valuable
new information with potential to inform
changes in Forest Service management of
lynx and lynx habitat, the relationships
between vegetation composition and lynx
reproduction success in NW Montana
described in the thesis are not well enough
understood to determine if, or what, specific
changes in management direction are
warranted.
12 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
Marten praised Ms. Kosterman’s thesis as a “success,” but
pointed out that her classifications of vegetation were
different from the classifications used in the Lynx
Amendments. Ms. Kosterman’s classifications of vegetation
were “deliberately imprecise in order to allow [her] to
correlate lynx demography to habitat in a simple and rough
sense,” which made it difficult to use the thesis in assessing
the efficacy of the Lynx Amendments. In Marten’s words,
“[T]he parameters and metrics used to demonstrate this
relationship do not cross-walk well to the metric standards
provided in the [Lynx Amendments].” Marten provided two
examples of the differences in classification that, in her view,
limited the utility of Ms. Kosterman’s thesis. She then
concluded:
Ms. Kosterman and RMRS scientists are
working to publish her work in a peer
reviewed scientific journal and it should also
be noted that some of the findings in the
original thesis may change through that
process. Please also note that we fully
recognize the importance of this study and its
implication for improved management
direction.
“The [ESA’s] best available data requirement . . .
prohibits an agency from disregarding available scientific
evidence that is in some way better than the evidence it relies
on.” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080
(9th Cir. 2006) (internal quotation marks and alterations
omitted). “The standard does not, however, require an agency
to conduct new tests or make decisions on data that does not
yet exist.” San Luis & Delta-Mendota Water Auth. v. Locke,
776 F.3d 971, 995 (9th Cir. 2014). “The determination of
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 13
what constitutes the ‘best scientific data available’ belongs to
the agency’s ‘special expertise . . . . When examining this
kind of scientific determination, as opposed to simple
findings of fact, a reviewing court must generally be at its
most deferential.’ ” San Luis & Delta-Mendota Water Auth.
v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (quoting
Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103
(1983)).
The Council argues that the conclusions of Ms.
Kosterman’s thesis are fatally inconsistent with the
application of the WUI exemption, in the context of the
specific project approved in Lonesome Wood 2. In light of
the deference that we owe to the agency’s expertise, and in
light of FWS’s site-specific BiOp analyzing the effect of
Lonesome Wood 2 on the Canada lynx, we disagree. We
decline to overrule the Forest Service’s determination that
Ms. Kosterman’s thesis does not require it to reevaluate its
approval of the project.
Ms. Kosterman’s thesis will undoubtedly prove
significant in the consultation process concerning the Lynx
Amendments, including the WUI exemption, that has been
reinitiated and is now underway pursuant to our decision in
Cottonwood. Indeed, Regional Forester Marten
acknowledged this in her letter when she wrote, “[W]e fully
recognize the importance of [Ms. Kosterman’s] study and its
implication for improved management direction.” If the
Forest Service fails to give Ms. Kosterman’s thesis its due in
the reinitiated consultation process, the Council will have an
opportunity, in appropriate proceedings, to challenge that
process and its result.
14 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
B. National Forest Management Act
The National Forest Management Act (“NFMA”) requires
that all national forests operate under “land and resource
management plans,” 16 U.S.C. § 1604(a), or “Forest Plans,”
and that all individual management actions within a forest
unit “be consistent with each forest’s overall management
plan.” Native Ecosystems Council v. U.S. Forest Serv.,
428 F.3d 1233, 1249 (9th Cir. 2005); see also 16 U.S.C.
§ 1604(i). The Council contends that the Forest Service is in
violation of the Forest Plan for the Gallatin National Forest,
and therefore that action under Lonesome Wood 2 may not
proceed.
The Forest Service promulgated the Forest Plan for the
Gallatin National Forest in 1987. Then-governing Forest
Service regulations required the Forest Service “to maintain
viable populations of existing native and desired non-native
vertebrate species in the planning area.” 36 C.F.R. § 219.19
(1987). The Forest Service was also required to “identif[y]
and select[] . . . management indicator species,” defined as
species whose “population changes are believed to indicate
the effects of management activities.” Id. § 219.19(a)(1).
The regulations required the Forest Service to monitor the
management indicator species’ population trends and
“relationships to habitat changes.” Id. § 219.19(a)(6). On
November 9, 2000, these regulations were rescinded and
replaced. See Native Ecosystems Council v. U.S. Forest
Serv., 428 F.3d 1233, 1237 (9th Cir. 2005). If a Forest Plan
incorporates regulations that are later rescinded, the Forest
Service must continue to comply with those regulations until
the Plan is amended. See In re Big Thorne Project, 857 F.3d
968, 974 & n.3 (9th Cir. 2017).
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 15
Under the heading “Goals,” the Gallatin Forest Plan
provides, “The goals for the Gallatin National Forest are: . . .
7. Provide habitat for viable populations of all indigenous
wildlife species and for increasing populations of big game
animals.” Under the heading “Forest-Wide Standards,” the
Plan provides, “ ‘Indicator species,’ which have been
identified as species groups whose habitat is most likely to be
affected by Forest management activities, will be monitored
to determine population change.” The Plan further provides
that the Forest Service will “[d]etermine population trends of
indicator species and relationships to habitat changes,”
specifically citing 36 C.F.R. § 219.19(a)(6). The Council
contends that these provisions of the Forest Plan incorporate
the now-rescinded regulations, and that the Forest Service is
not in compliance with them. See 16 U.S.C. § 1604(i); Native
Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 961
(9th Cir. 2005). The Council further contends that this failure
to comply renders the Forest Service’s approval of Lonesome
Wood 2 unlawful.
Many required actions under Forest Plans are not “final
agency actions” under the APA and therefore are not subject
to free-standing challenges. Neighbors of Cuddy Mountain
v. Alexander, 303 F.3d 1059, 1067 (9th Cir. 2002). Such
actions may be challenged, however, as part of a challenge to
“a specific, final agency action, the lawfulness of which
hinges on these practices.” Id. The Forest Service has not
argued on appeal that alleged violations of the above-
described provisions of the Forest Plan are unconnected to the
lawfulness of Lonesome Wood 2. We regard the failure of
the Forest Service to advance this argument as a tacit factual
concession that Lonesome Wood 2—in particular, its thinning
of just over 2,500 acres of trees—is sufficiently connected to
the alleged violations of the Forest Plan to satisfy the
16 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
relatedness test articulated in Neighbors of Cuddy Mountain.
We therefore proceed to consider whether the Forest Service
has violated the above-described provisions of the Gallatin
Forest Plan.
1. Species Viability
The Council argues that the Forest Service failed to
comply with a Forest Plan obligation to ensure species
viability. The Forest Plan sets a “goal” of “[p]rovid[ing]
habitat for viable populations of all indigenous wildlife
species and for increasing populations of big game animals.”
The Council argues both that the Lonesome Wood 2 project
is incompatible with this goal, and that the goal incorporates
the 1987 regulation requiring USFS “to maintain viable
populations of existing native and desired non-native
vertebrate species in the planning area.” 36 C.F.R. § 219.19
(1987). We disagree with both arguments.
The definitions section of the Forest Plan defines “goal”
as
[a] concise statement that describes a desired
condition to be achieved. It is normally
expressed in broad, general terms and is
timeless in that it has no specific date by
which it is to be completed. Goal statements
form the principal basis from which
objectives are developed.
We apply Auer deference to USFS’s interpretation, adopting
the agency’s interpretation of parts of the Plan that are
“susceptible to more than one meaning unless the
interpretation is plainly erroneous or inconsistent with the
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 17
[Plan].” Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,
565 F.3d 545, 555, 555 n.9 (9th Cir. 2009).
The Forest Service argues that the Forest Plan “goals” are
merely aspirational and thus impose no obligations on USFS.
We are unwilling to go so far. The only indication in the just-
quoted definition that “goals” are only aspirational—that is,
purely optional—is the word “desired.” That word could
conceivably be read to indicate a mere preference. This
reading, however, fits poorly with other parts of the Plan
discussing the relationships among goals, objectives, and
standards. The Plan explains, for example, that “[a]n
objective forms the basis for further planning, to define the
precise steps to be taken and the resources to be used in
achieving identified goals.” (Emphasis added.) Another part
of the Plan explains that the “objectives” listed in the Forest
Plan are “brief summaries” of how the forest is to be
managed, and that “[a] complete understanding of the
management direction can be attained by reading the Forest-
wide goals and standards . . . .” (Emphasis added.) These
and similar passages make clear that the Forest Plan’s “goals”
are not just a wish list that imposes no obligations.
Nevertheless, we hold that Lonesome Wood 2 does not
violate the goal at issue here. First, the Lonesome Wood 2
project is not incompatible with the Forest Plan. The Plan’s
definition of “goals” allows flexibility in the manner and
timing of their achievement. Under the Plan, the Forest
Service fulfills its obligations as long as it does not take
actions incompatible with the stated goal of “[p]rovid[ing]
habitat for viable populations of all indigenous wildlife
species and for increasing populations of big game animals”
in the forest as a whole. We can imagine projects that would
be incompatible with this goal. But the Council does not
18 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
allege, and has offered no evidence to suggest, that Lonesome
Wood 2 is such a project. Second, the goal at issue does not
incorporate the 1987 viability regulation. The goal neither
cites § 219.19 nor tracks its language.
2. Monitoring of Management Indicator Species
The Council further argues that the Forest Service failed
to comply with its Gallatin Forest Plan obligation to monitor
population trends for two management indicator species
(“MIS”). The Plan incorporates the 1987 MIS monitoring
regulation, both mirroring the regulation’s language and
citing the relevant provision. Under the Plan, the Service is
required to “determine population trends of indicator species
and relationships to habitat changes” on a forest-wide basis
every five years with a “moderate” degree of “expected
precision” and “expected reliability.” 36 C.F.R.
§ 219.12(k)(4a–4c).
In 2011, the Forest Service issued a Management
Indicator Species Assessment (“2011 Assessment” or
“Assessment”) for six MIS designated in the Gallatin Forest
Plan—the grizzly bear, bald eagle, elk, wild trout, northern
goshawk, and pine marten. The 2011 Assessment updates
information provided in a previous Forest Service report
covering the 2004–2006 period. The Council contends that
the Forest Service’s monitoring of the goshawk and pine
marten, as described in the Assessment, does not comply with
its MIS obligations under the Forest Plan.
The 2011 Assessment describes the northern goshawk, a
forest raptor, as an “old growth dependent species, dry
Douglas fir sites.” The Assessment recounts that during the
2005 breeding season, the Forest Service conducted a survey
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 19
of goshawks in its Northern Region, comprising thirteen
national forests and grasslands in Idaho, Montana, and the
Dakotas. The survey sampled 114 Potential Sampling Units
(“PSUs”) in the Region, of which ten were located in the
Gallatin National Forest. The survey detected goshawks in
about forty percent of the PSUs overall. It detected goshawks
in two of the ten PSUs in the Gallatin, and found an active
nest in an additional PSU. After 2005, surveys of goshawks
in the Gallatin were performed in connection with specific
projects, and detection data from those surveys were
compiled in 2010. Eighteen sites were resurveyed in 2010,
and goshawks were detected at eight of those sites. The
Forest Service did not initiate the 2010 survey until mid-July
due to the wet and cold weather, so data from that count
should be interpreted cautiously. The 2011 Assessment
concluded that “goshawks are present and distributed across
the Gallatin National Forest, but population trends cannot be
determined from existing data.”
The FEIS for Lonesome Wood 2 recounts that in 2000 a
goshawk was detected in the Trapper Creek drainage, about
3/4 miles southwest of the closest fuel treatment area under
the project. Surveys of the project area were conducted in
2003, 2004, 2007, 2010, 2011, and 2012, but no goshawks
were detected. An “auditory response” was heard on July 15,
2010, but the response was not conclusive because gray jays
can mimic a goshawk call. The FEIS recounts that “inherent
weaknesses exist in surveying for goshawks,” for “nest sites
can be difficult to locate,” and “outside of the breeding
season, goshawks are largely silent.”
The 2011 Assessment described pine marten, a fur-
bearing species, as an “old growth dependent species, moist
spruce sites.” Pine marten are trapped commercially. All
20 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
pine marten pelts are registered and tagged, which allows a
year-to-year count of trapped animals. The statewide
numbers for pine marten pelts during the fifteen years
preceding the Assessment range between 653 and 1,323 per
year. The 2008/09 state-wide number was 844. From 1999
to 2009, 760 pine martens were trapped in the Gallatin
National Forest. Just over 40 were trapped in 1999–2001;
just over 60 in 2002–2004; just under 100 in 2005–2007; and
just over 60 in 2008–2009. The Assessment recounts that the
numbers for the Gallatin “seem to parallel statewide trends.”
Further, the Assessment recounts that the Forest Service “has
cooperated with Wild Things Unlimited . . . to conduct winter
carnivore track and/or camera surveys every year since
1997.” These surveys “showed that pine marten are very
common in the Gallatin and Madison Mountain Ranges[.]”
Citing a 2009 study, the FEIS recounts that the pine
marten population has been “relatively stable or slightly
declining . . . on a statewide basis.” The FEIS recounts
further that pine marten were observed in the project area
along Hebgen Lake Road in 2010. Under the preferred
alternative, pine marten habitat would be reduced in the
project area, “but remaining habitat would continue to
support martens in the analysis area.”
Based on the foregoing, we conclude that the Forest
Service has sufficiently monitored these two MIS to comply
with its obligation under the Forest Plan.
C. National Environmental Policy Act
The National Environmental Policy Act (“NEPA”)
requires agencies to prepare an Environmental Impact
Statement (“EIS”) for any agency action that “significantly
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 21
affect[s] the quality of the human environment.” 42 U.S.C.
§ 4332(C). An EIS complies with NEPA if it shows that the
agency took a “hard look” at the environmental consequences
of its proposed action. Native Ecosystems Council, 418 F.3d
at 960 (quoting Klamath-Siskiyou Wildlands Ctr. v. Bureau
of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004)). “In
reviewing the adequacy of an EIS, we apply the ‘rule of
reason’ standard, which requires ‘a pragmatic judgment
whether the EIS’s form, content and preparation foster both
informed decision-making and informed public
participation.’ ” Id. (quoting California v. Block, 690 F.2d
753, 761 (9th Cir. 1982)). An agency fails to meet its “hard
look” obligation when it “rel[ies] on incorrect assumptions or
data” in drafting an EIS or presents information that is “so
incomplete or misleading that the decisionmaker and the
public could not make an informed comparison of
alternatives.” Id. at 964–65. “It surely follows that the data
the Forest Service provides to the public to substantiate its
analysis and conclusions must also be accurate.” WildEarth
Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920, 926
(9th Cir. 2015). The Council contends that the FEIS for
Lonesome Wood 2 is misleading or inaccurate in several
respects and is therefore deficient.
First, the Council contends that the FEIS provides an
incomplete and misleading description of a 2005 peer-
reviewed article by Susan Patla, “Monitoring Results of
Northern Goshawk Nesting Areas in the Greater Yellowstone
Ecosystem: Is Decline in Occupancy Related to Habitat
Change?,” published in The Journal of Raptor Research, 39 J.
Raptor Res. 324 (2005). The Council complains that while
the FEIS discusses the article, naming Patla and the date of
publication, it neither provides the title nor indicates that the
article was peer reviewed. The Council further complains
22 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
that the FEIS criticizes the Patla article by relying on the
analysis in a memorandum without revealing that the
memorandum was prepared by a Forest Service employee,
was unpublished, and was not peer reviewed. Finally, the
Council complains that the FEIS does not disclose the fact
that the Patla article “found declining goshawk occupancy
and indications that the decline was significantly higher in
logged areas.”
The Forest Service responds that it had no obligation to
provide a more detailed description of the Patla article and
the memorandum. It responds, further, that Patla analyzed
goshawks in a national forest that had significantly different
characteristics from the Gallatin. Finally, it notes that Patla
assessed goshawk occupancy rather than population trends,
noting that she wrote in her article, “I assumed that
occupancy results apply to the target population of known
nesting areas monitored and may not reflect forest-wide
population trends.”
Second, the Council contends that the FEIS misrepresents
the contents of an unpublished report, “Moose Population
Viability Analysis,” prepared by Forest Service employee
Tyler (first name not provided). Tyler recounts in the report
that Kurt Alt, a Montana wildlife program manager, “stated
that moose are in decline [in] the Gallatin Forest, as well as
across Montana. That decline has also been noticed in the
general project area[.]” The Council contends that this
statement is inconsistent with two statements by the Forest
Service citing the Tyler report—a statement in the ROD that
“the moose population is stable at the local and larger scales,”
and a response, during the comment period, that “there is no
evidence that moose are declining, when viewed at larger
spacial scales than the project level.”
NATIVE ECOSYSTEMS COUNCIL V. MARTEN 23
The Forest Service responds that the Council has misread
the Tyler report. The report recites Alt’s view of the moose
population as declining, but then goes on to state Tyler’s own
view, which is generally consistent with the Forest Service’s
statements in the ROD and in its response. Tyler wrote,
“[T]here is no evidence that moose should be considered a
small or declining population at all the appropriate spacial
scales for analysis, that is, at the global or continental level or
across the intermountain west, or [Greater Yellowstone
Area]. This statement is also valid for the Gallatin forest[.]”
Third, the Council points out that the ROD for Lonesome
Wood 2 states that the 2011 MIS Assessment indicated that
the populations of the goshawk and the pine marten in the
Gallatin were “stable to increasing.” A response to a
comment to the Draft EIS also states that the goshawk
population is “stable to increasing.” The Council correctly
notes that these statements are inaccurate. Contrary to the
statements in the ROD and the response, the 2011
Assessment concluded, “[G]oshawks are present and
distributed across the Gallatin National Forest, but population
trends cannot be determined from the existing data,” and that
population “parameters” for the pine marten “indicate a
relatively stable or slightly declining population on a
statewide basis.”
We agree with the Forest Service’s responses to the
Council’s first and second points. The Forest Service did not
act arbitrarily or capriciously in the manner in which it
described and analyzed the Patla article, the internal
memorandum, and the Tyler report.
However, the Council’s third point is well taken. The
Forest Service was flatly wrong in stating that the Assessment
24 NATIVE ECOSYSTEMS COUNCIL V. MARTEN
concluded that the populations of goshawk and pine marten
were “stable to increasing.” This mistake is troubling, given
the importance of MIS monitoring in alerting the Forest
Service and the public to effects of human activity in our
national forests. It does not appear, however, that the mistake
was a significant factor in the Forest Service’s approval of
Lonesome Wood 2. With respect to the goshawk, the Forest
Service determined that the project would not affect forest-
wide population trends, given that goshawk have not been
detected in the project area and that mitigation measures are
specified in the project’s FEIS in order to protect any
goshawk nests that might be discovered in the course of
implementing the project. With respect to the pine marten,
the Forest Service recounted accurately in the FEIS that its
population was “relatively stable or declining on a statewide
basis,” and also determined that the project would not
significantly affect forest-wide population trends. Further, it
does not appear that this mistake prevented the public from
making an informed decision about the likely effects of
Lonesome Wood 2. We do not underestimate the importance
of accurate descriptions of the results of MIS surveys. In the
context of this particular project, however, we conclude that
the Forest Service’s mistake was not inconsistent with its
having taken a “hard look” at the project.
Conclusion
For the foregoing reasons, we affirm the district court’s
summary judgment order and order dissolving the injunction.
AFFIRMED.