Greenpeace, Inc. v. Forrest Cole , 445 F. App'x 925 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREENPEACE, INC.; CASCADIA No. 10-35567
WILDLANDS PROJECT,
D.C. No. 3:08-cv-00162-RRB
Plaintiffs - Appellants,
v. MEMORANDUM *
FORREST COLE, Tongass National
Forest Supervisor; BETH PENDLETON,
Alaska Regional Forester; UNITED
STATES FOREST SERVICE, an agency
of the U.S. Department of Agriculture,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted May 3, 2011
Anchorage, Alaska
Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.
Appellant-Plaintiffs Greenpeace, Inc., and Cascadia Wildlands Project
(“Greenpeace”) brought this Administrative Procedure Act challenge under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
National Forest Management Act of 1976 (“NFMA”) and the National
Environmental Policy Act of 1969 (“NEPA”), contesting the United States Forest
Service’s (“USFS”) approval of four timber logging projects in the Tongass
National Forest: Scott Peak, Overlook, Traitors Cove, and Soda Nick (“the
projects”). The district court granted summary judgment in favor of Defendants on
all claims raised before it.1 We reverse in part, vacate in part, and remand.2
NFMA requires that National Forest System lands must be managed
“consistent with the land management plans.” 16 U.S.C. § 1604(i); Lands Council
v. McNair, 537 F.3d 981, 989 (9th Cir. 2008) (en banc), overruled in other part as
recognized by Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 &
n.10 (9th Cir. 2009). Although NFMA “does not specify precisely how the
[USFS] must demonstrate that it has met the objectives of the pertinent forest
plan,” Earth Island Inst. v. Carlton, 626 F.3d 462, 470 (9th Cir. 2010) (internal
quotation marks omitted), at the least, USFS must “explain the conclusions it has
drawn from its chosen methodology, and the reasons it considers the underlying
1
We review de novo the district court’s resolution of cross-motions for
summary judgment. See Bader v. N. Line Layers, Inc., 503 F.3d 813, 816 (9th Cir.
2007).
2
Because the parties are familiar with the facts, we recount them here only
as necessary.
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evidence to be reliable.” Id. (internal quotation marks omitted). If USFS has
explained itself adequately, “[w]e will conclude that the [USFS] acts arbitrarily and
capriciously only when the record plainly demonstrates that the Forest Service
made a clear error in judgment in concluding that a project meets the requirements
of the NFMA and relevant Forest Plan.” Id. (internal quotation marks omitted);
see also Lands Council, 537 F.3d at 987.
We do not think that USFS has adequately explained its decision to approve
the four logging projects in the Tongass. The 1997 Tongass Land Managment
Plan (the “TLMP”) requires that USFS manage the Tongass so as “to maintain
viable populations” of the Sitka black-tailed deer (“deer”) and the Alexander
Archipelago wolf (“wolf”), two local species identified as “management indicator
species.” See 1997 TLMP Table 6-1, 6-15 (Sitka black-tailed deer); 1997 TLMP
WILD112.XI (Alexander Archipelago Wolf). Specifically, the TLMP requires
USFS to “[p]rovide the abundance and distribution of habitat necessary to maintain
viable populations of existing native and desirable introduced species well-
distributed in the planning area.” Id. at WILD112.II.B. The TLMP instructs USFS
to do this by, among other things, “[p]rovid[ing] sufficient deer habitat capability
to first maintain sustainable wolf populations, and then to consider meeting
estimated human deer harvest demands.” Id. at WILD112.XI.A.3.
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We cannot follow the reasoning USFS used to approve the projects. USFS
used a Deer Model to estimate how many deer could live on the land affected by
the projects after the projects’ conclusion. The Deer Model has two components at
issue on appeal: (1) a habitat suitability index score (“HSI”); and (2) the Deer
Multiplier, a constant representing “maximum long-term carrying capacity,” U.S.
Dep’t of Agric., Forest Serv., Tongass Land Management Plan Revision Final
Environmental Impact Statement at 3-367 (1997). Multiplied together, these
numbers represent the “theoretical maximum number of deer that an area can
support over the long term.” U.S. Dep’t of Agric., Forest Serv., Scott Peak Final
Environmental Impact Statement at 3-45 (2005).
For reasons not entirely clear from the record, at different times, USFS used
different HSI ranges—one with a maximum value of 1.0, and a second with a
maximum value of 1.3. Similarly, USFS used different figures for its Deer
Multiplier. It variously estimated the maximum carrying capacity of a square mile
at 75, 100, and 125. Given the variations in the HSI and the Deer Multiplier, the
maximum carrying capacity (HSX x Deer Multiplier) could have ranged from a
low of 75 (1.0 x 75) to a high of 162 (1.3 x 125). Ultimately, USFS reduced the
Deer Multiplier to 100 but maintained the maximum HSI at 1.3.
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USFS has failed to explain how it ended up with a table that identifies 100
deer per square mile as a maximum carrying capacity, but allows 130 deer per
square mile as a potential carrying capacity. “The agency is obligated to articulate
a rational connection between the facts found and the choices made,” which the
agency has not done here. Pac. Coast Fed’n of Fisherman’s Ass’ns v. U.S. Bureau
of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005) (internal quotation marks and
brackets omitted). Because deer are a management indicator species, the
calculation or miscalculation of the logging areas’ deer-carrying capacity affects all
four projects. Accordingly, we reverse and remand on the NFMA claims.3
In light of the remand on the NFMA claims, it is premature to decide
whether USFS met its NEPA obligations to discuss responsible opposing views
3
We have similar questions about USFS’s use of VolStrata data, which
identifies total timber volume and not forest structure, to approve the projects,
where forest structure—and not total timber volume—is relevant to the habitability
of a piece of land. USFS itself has recognized the limitations in the VolStrata data.
See U.S. Department of Agriculture, Forest Service, Tongass Land and Resource
Management Plan Draft Environmental Impact Statement Plan Amendment at 3-
113 (2007) (“Differences in forest structure are more useful because timber volume
may be misleading when describing wildlife habitat.”). Because we must remand
to the agency to re-examine its Deer Model, we need not decide whether the use of
the VolStrata data was arbitrary and capricious. We anticipate that, in reviewing
the proposed projects, USFS will use the best available data and that it will either
use a different data set or explain why the VolStrata data still represent the “best
available science,” as is required for at least the Traitors Cove and Soda Nick
projects. See 36 C.F.R. § 219.35(a)(2000).
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and to respond to comments in the Scott Peak and Traitors Cove environmental
impact statements (“EIS”). See 40 C.F.R. § 1502.9(b), § 1503.4; see also Nat’l
Wildlife Fed’n v. FERC, 801 F.2d 1505, 1515 (9th Cir. 1986) (declining to reach
plaintiffs’ NEPA claims because they may become moot subsequent to agency
action taken upon remand).4 We expect that, on remand, USFS will determine
whether its new Deer Model analyses require it to supplement its NEPA
documents. See 40 C.F.R. § 1502.9(c)(1) (An agency “[s]hall prepare supplements
to . . . [EISs] if: (i) The agency makes substantial changes in the proposed action
that are relevant to environmental concerns; or (ii) There are significant new
circumstances or information relevant to environmental concerns and bearing on
4
Greenpeace’s opposing viewpoint and comments claims are brought under
40 C.F.R. § 1502.9(b) and § 1503.4, which govern EISs and not environmental
assessments (“EAs”). Because USFS completed EAs—and not EISs—for the
Overlook and Soda Nick projects, USFS is not under an obligation to comply with
§ 1502.9(b) and § 1503.4 for those projects. Greenpeace alleges that 40 C.F.R. §
1508.27(b)(4) imposes requirements for EAs similar to those for EISs in §
1502.9(b) and § 1503.4 by requiring USFS to consider in an EA “[t]he degree to
which the effects on the quality of the human environment are likely to be highly
controversial.” But none of the cases cited by Greenpeace stands for the
proposition that § 1508.27(b)(4) is to EAs what § 1502.9(b) and § 1503.4 are to
EISs; rather, they discuss whether the defendant agencies erred in not preparing
EISs. See Anderson v. Evans, 371 F.3d 475, 489 (9th Cir. 2004); Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998);
Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992). Because the
issue of whether USFS should have prepared EISs for the Overlook and Soda Nick
projects in lieu of or in addition to EAs is not before us on appeal, Greenpeace’s
cited cases are inapposite, and we do not address § 1508.27(b)(4).
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the proposed action or its impacts.”). We further expect that USFS will “discuss . .
. in the final statement any responsible opposing view,” id. § 1502.9(b), and will
“make available to the public high quality information, including accurate
scientific analysis, expert agency comments and public scrutiny, before decisions
are made and actions are taken,” W. Watersheds Project v. Kraayenbrink, 632 F.3d
472, 492 (9th Cir. 2011) (internal quotation marks omitted). Accordingly, we
vacate the district court’s judgment on the NEPA claims.
We reverse in part, vacate in part, and remand to the district court with
instructions to remand to the agency for further action.
REVERSED IN PART, VACATED IN PART, AND REMANDED.
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