The Environmental Protection Information Center (EPIC) sued the United States Forest Service (FS) for failing to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA)[1] and for preparing an inadequate Environmental Assessment (EA) for the proposed Knob Timber Sale in the Klamath National Forest. In addition, EPIC argued that the project violated the National Forest Management Act (NFMA).[2] EPIC claimed (1) an EIS should have been prepared or, alternatively, the EA was inadequate because the project was likely to significantly affect the northern spotted owl and its critical habitat; (2) an EIS was necessary because the project was likely to have significant, short-term, and "uncertain" adverse impacts on the watershed;" (3) the EA was inadequate because it failed to consider the cumulative impact of the Meteor Timber Sale on the project; (4) the EA was inadequate because the FS relied on mitigation measures in its EA to downplay the adverse effects of the project; (5) the EA was inadequate because it did not consider a reasonable range of alternatives; (6) the EA was inadequate because it failed to disclose short-term increases in fire risk and did not demonstrate how the project would meet the overall goal of reduced fire risk; and (7) the FS failed to meet its duty under NFMA to "provide for diversity of plant and animal communities."[3] The Ninth Circuit denied all of EPIC's claims and affirmed the district court's award of summary judgment to the FS.
In October 2002, the FS issued an EA for the Knob Timber Sale (the Project), a vegetation management project in which 578 acres of timber would be harvested from twenty-seven units in the Salmon River Ranger District of the Klamath National Forest. The purpose of the project was "to maintain stand health by leading stands into a resilient condition where they can provide a sustained yield of wood products and reduce their risk to potential catastrophic fire."[4] After formal consultations with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS),[5] the FS identified two key issues in its final EA: (1) the Project's effects on "critical habitat" for the northern spotted owl, a threatened species, and (2) the effects on the watershed from erosion and slope failure that might be triggered by timber harvest, fuel reduction, and road activities. The FS then issued a Finding of No Significant Impact (FONSI) and selected the alternative it believed had the best potential to achieve the Project's purposes, as well as long-term benefits and minor short-term adverse effects for the northern spotted owl and watershed health.
EPIC filed suit in district court claiming that the FS violated NEPA by failing to prepare a required EIS and by preparing an inadequate EA. Further, EPIC claimed that the FS violated NFMA. The district court granted summary judgment to the on all claims.
The Ninth Circuit reviewed the district court's decision de novo[6] and reviewed the agency's actions under the arbitrary and capricious standard of the Administrative Procedure Act (APA).[7] That standard requires the court to determine "whether the agency has taken a hard look at the consequences of its actions, based [its decision] on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project's impacts are insignificant."[8]
The Ninth Circuit first reviewed the statutory background behind EPIC's NEPA claims. Under NEPA, the agency first prepares an EA. If it determines that the action will have a significant impact,[9] it must prepare an EIS.[10] If the agency determines that there will be no significant impact, it issues a FONSI.[11] The "significance" of an action depends on the project's "context" or scope and the "intensity" or severity of the impact.[12] There are ten factors for evaluating intensity,[13] four of which were applicable to the case according to EPIC. The court addressed EPIC's assertion that the EA was inadequate with its analysis of the EIS.
The court then examined EPIC's argument that the Project would harm the northern spotted owl[14] and its "critical habitat."[15] The 578 acre Project consisted of 125 acres that had been designated critical habitat and which were available for timber production as "matrix" lands under the Northwest Forest Plan (NFP).[16] Of those 125 acres, the Project would remove fourteen acres of nesting habitat, degrade fifty-one acres of "high" quality nesting habitat to "moderate" quality nesting habitat, and leave the remaining sixty acres that were not suitable for nesting or roosting for dispersal habitat. EPIC's claim was based on six arguments. First, EPIC asserted that the Project affected the owl significantly because it could destroy three nesting sites and remove "most if not all" nesting habitat from two critical habitat units. The court held these effects were not significant because the agency must only consider the adverse effects on the species and not on particular individuals.[17] The court held that the FWS's determination that the potential taking of three nests was permissible under the ESA was not arbitrary and capricious.
Second, EPIC argued that an EIS was required because the effects on the spotted owl were too uncertain. The Ninth Circuit dismissed this argument, stating that EPIC based its contention on an incomplete reading of the FWS Biological Opinion (BiOp). The BiOp stated that the distribution of the effects of the Project could not be "accurately described" without additional information. However, the BiOp went on to say density of the owls "should be roughly constant" and that, therefore, the magnitude of the overall effects "should not be substantially different" than FS estimated.[18]
Third, EPIC alleged that the EA failed to disclose a concern for increased fire risk in a critical habitat unit, CA-22. The court disagreed, pointing to sections of the EA that stated that there would be short-term increased fire risk in all units which would be reduced over the long term and that the CA-22 unit already had a low fire risk that would only increase over the next five to ten years if it implemented the "no action" alternative. Therefore, the court held the EA adequately disclosed and evaluated fire risk, so that was not grounds for an EIS.
Fourth, EPIC argued that the EA does not consider habitat connectivity, which is important for dispersal habitat linking the late successional reserves (LSRs). The Ninth Circuit determined that both the EA and the underlying FWS BiOp addressed connectivity and concluded that FS would maintain connectivity as necessary to protect the critical habitat. Therefore, the EA was not deficient and an EIS was not required.
Fifth, EPIC complained that FS improperly relied on the FWS conclusion that the project would not "jeopardize" the northern spotted owl, for the FS is required to prepare an EIS if the Project "may adversely effect" the species. The court conceded that NEPA and the ESA have different standards, but said that FS was not required to disregard the FWS findings. Furthermore, FS did not rely merely on the conclusion of the BiOp, but also on its underlying analysis and other sources, when it concluded that the potential effects on spotted owls "will not be significant." Finally, that court stated that an EIS is not required for just "any impact," but only when that effect has reached a certain level of intensity.[19]
Sixth, and finally, EPIC relied on Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service to argue that FS improperly relied on the LSRs to diminish the Project's impact on critical habitat.[20] However, the Ninth Circuit distinguished the current case because, unlike in Gifford Pinchot where the FWS treated LSRs as a substitute for critical habitat, this BiOp contains discussion of LSRs as well as "significant analysis of the Project's effect on critical habitat that is independent of the LSR discussion."[21] Even if the BiOp was similarly flawed, the court held that FS did not rely exclusively on this document or its finding of "no adverse modification." The court concluded that because FS did not use the LSRs has a "substitute" for critical habitat, the FS took the necessary "hard look" at the Project's effects on critical habitat and adequately explained why the impacts were not significant. Therefore, the EA was adequate and an EIS was not required.
The Ninth Circuit then turned to EPIC's three claims regarding the Project's impacts on the watershed. First, EPIC claimed that an EIS was necessary because the Project would have significant, short-term impacts that were "uncertain." EPIC had based this claim on the use of the word "immeasurable" in the EA, but the court pointed out that when read in context it meant "effects would be so negligible that they could not be measured."[22] Second, EPIC asserted that the EA did not include the required "hard look" at watershed impacts, failed to include high-quality information, and focused disproportionately on long-term impacts. The Court rejected these claims, indicating that the fifteen-page analysis of watershed impacts fulfilled the hard look requirement and that the EA had a "reasoned evaluation" of short-term effects "throughout the analysis."[23] Furthermore, because the EA determined that these short-term impacts would be "minor" and "negligible," no EIS was required.
Third, EPIC claimed that the EA's analysis was flawed because it did not adequately address the Project's cumulative impacts. The agency is required to consider "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts."[24] However, the Ninth Circuit determined that the EA's cumulative effect analysis was sufficient because the entire analysis was based on a "cumulative watershed effects" (CWE) model,[25] and that model was applied on a project and watershed scale with "a significant amount of quantified and detailed information." Therefore, there was no need for an EIS.
The court next addressed EPIC's claim that the EA's overall analysis of cumulative impacts was flawed because the FS failed to consider the impacts of the Meteor Timber Sale.[26] The agency must include in its cumulative effects analysis projects that are "reasonably foreseeable."[27] The court determined that, "because the parameters of the Meteor project were unknown at the time of the EA, it was not arbitrary and capricious for [the FS] to omit the project from its cumulative [effects] analysis." Furthermore, even if the EA was flawed, the FS adequately remedied this error by discussing the Meteor project in its comment response.[28]
EPIC also criticized the FS's reliance on mitigation measures to minimize the adverse effects of the Project. Relying on National Parks & Conservation Ass'n v. Babbitt (National Parks),[29] EPIC argued that because "the EA provide[d] no data supporting the efficacy of its mitigation measures[,]" an EIS was required. However, the court distinguished this case from National Parks "because instead of analyzing potential impacts . . . and then developing a plan to mitigate those adverse effects, the Project incorporates mitigation measures throughout the plan" and analyzes the Project's effects with those measures in place. In addition, the EA contained very specific information on how the FS would minimize effects on wildlife or watershed and also contained monitoring provisions to ensure future compliance. These facts convinced the court that the FS took "the requisite 'hard look' at the Project's environmental consequences, and [that] it was not arbitrary and capricious" to issue the FONSI.
The Ninth Circuit then rejected EPIC's complaint that the FS failed to consider a reasonable range of alternatives. Citing an earlier decision, the court held that "an agency's obligation to consider alternatives under an EA is a lesser one than under an EIS"[30] and that in this case the agency's detailed consideration of three alternatives[31] and rejection of six others[32] constituted a reasonable range of alternatives.
In addition, EPIC argued that the EA did not include adequate disclosures of short-term increases in fire risk and that the EA did not show that the Project would meet the goal of reducing fire risk. The court rejected both of these arguments. The EA adequately discussed the risk of fire in critical spotted owl habitat and contained a general section on fire risk, and thus "clearly disclose[d] both the risk and the steps that will be taken to minimize that risk."[33] With regards to whether the Project would meet the agency's stated goal, the court deferred to the agency's "informed discretion"[34] in the face of scientific controversy.[35]
EPIC also claimed that the FS failed to comply with its NFMA obligations by improperly relying on habitat quality instead of studying the actual abundance of individual "management indicator species" (MIS). NFMA requires the FS to "provide for diversity of plant and animal communities."[36] The FS regulations interpret this to require that "[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area."[37] MIS are used as indicators of the effect of management activities[38] and therefore the FS "prepared a site-specific assessment of the effects of the Project on habitats for sixteen designated MIS." That study concluded that there would be minor effects.
As it had done in the past,[39] the court endorsed this analysis of quality and quantity of habitat rather the actual MIS population, or so-called proxy on proxy methodology, "absent some indication in the record that USFS's underlying methodology is flawed."[40] Here, EPIC did not allege any specific deficiency, but relied on a general statement in the Klamath Forest 2000 monitoring report about MIS monitoring difficulties. The court determined that this statement did not undermine the site-specific MIS studies and that monitoring difficulties would not make habitat-based analysis unreasonable "so long as the analysis uses all the scientific data currently available."[41] Therefore, it was not arbitrary and capricious for FS to conclude that the Project complied with NFMA and FS regulations.
Conclusion
The court found that the EA included "detailed and adequate consideration of information from a wide range of sources" and that the FONSI was not arbitrary and capricious. The Ninth Circuit affirmed the district court's grant of summary judgment on the NEPA claims. The court also determined that because the record revealed no serious flaws in FS's habitat proxy methodology, the agency complied with NFMA. The Ninth Circuit affirmed the district court's grant of summary judgment on the NFMA claims.
[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).
[2] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).
[3] Id. § 1604(g)(3)(B).
[4] Envtl. Prot. Info. Ctr. v. U.S. Forest Serv. (EPIC), 451 F.3d 1005, 1008 (9th Cir. 2006).
[5] Such consultations are required under Section 7 of the Endangered Species Act. Endangered Species Act of 1973, 16 U.S.C. § 1536 (2000).
[6] Native Ecosystems Council v. U.S. Forest Serv. (Native Ecosystems), 428 F.3d 1233, 1238 (9th Cir. 2005).
[7] Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2000).
[8] EPIC, 451 F.3d at 1009 (internal quotations and citations omitted).
[9] NEPA requires an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (2000).
[10] 40 C.F.R. § 1508.11 (2000).
[11] 40 C.F.R. § 1508.13 (2000).
[12] 40 C.F.R. § 1508.27 (2000).
[13] 40 C.F.R. § 1508.27(b) (2000).
[14] The northern spotted owl was listed as a threatened species under the Endangered Species Act in 1990. 55 Fed. Reg. 26,114 (June 26, 1990).
[15] FWS delineated the owl's critical habitat in 1992. Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Northern Spotted Owl, 57 Fed. Reg. 1796 (Jan. 15, 1992) (to be codified at 50 C.F.R. pt. 17).
[16] The Northwest Forest Plan withdrew 8.8 million acres from potential harvesting and designated 7.4 million acres of forest as "late successional reserves" (LSRs), of which 70% overlap with the owl's critical habitat and are generally unavailable for timber harvest. The remaining 5.5 million acres are matrix lands available for timber harvest subject to certain standards under the NFP. Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1064 (9th Cir. 2004).
[17] EPIC, 451 F.3d 1005, 1010 (9th Cir. 2006) (citing Native Ecosystems, 428 F.3d 1233, 1240 (9th Cir. 2005)).
[18] Id. at 1011.
[19] Intensity focuses on the "degree to which an action may adversely affect" a threatened species or critical habitat. EPIC, 451 F.3d at 1012 (citing Native Ecosystems, 428 F.3d at 1240 (rejecting need for EIS despite FONSI's acknowledgement of project's impact on individual goshawks and their habitat)).
[20] Gifford Pinchot, 378 F.3d at 1069-76.
[21] EPIC, 451 F.3d at 1012.
[22] Id. at 1013.
[23] Id.
[24] 40 C.F.R. § 1508.27(b)(7) (2000).
[25] The court referenced a previous decision refusing to question this methodology and deferring to the agency's expertise in developing it. Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir. 1993).
[26] Initially, the Meteor and Knob timber sales were part of a larger project, "Comet," that was abandoned. When the FS issued the EA for Knob, it had just proposed Meteor, which included units in the original Comet project. EPIC, 451 F.3d 1005, 1014 (9th Cir. 2006). See Kern v. BLM, 284 F.3d 1062, 1075 (9th Cir. 2002) (holding that it is not appropriate to defer consideration of cumulative effects when meaningful consideration can be given at that time); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1215 (9th Cir. 1998) (holding that when impractical, courts do not require the government to do analysis without enough information for meaningful consideration (quoting Inland Empire Pub. Lands Council v. USFS, 88 F.3d 754, 764 (9th Cir. 1996)).
[27] 40 C.F.R. § 1508.7 (2006).
[28] The FS noted in its comments that the Meteor project was similar to the Knob project and concluded that, therefore, it "would have similar minor or negligible watershed effects." Id.
[29] 241 F.3d 722, 733-35 (9th Cir. 2001) (holding that an EIS was required where the effectiveness of proposed mitigation measures was too uncertain).
[30] Native Ecosystems, 428 F.3d 1233, 1246 (9th Cir. 2005).
[31] The FS considered a "no-action alternative, the proposed Project alternative, and a third alternative that was similar to the Project but did not log" in any critical owl habitat. EPIC, 451 F.3d at 1016.
[32] The court found that the FS's rejection of the six alternatives because they were not tied to the stated purpose of the Project was consistent with NEPA. See Native Ecosystems, 428 F.3d at 1247 ("Alternatives that do not advance the purpose of the [ ] Project will not be considered reasonable or appropriate.").
[33] EPIC, 451 F.3d at 1016.
[34] Id. at 1017.
[35] See Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1160 (9th Cir. 2006) (holding that "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own experts" and that the "courts must defer to the informed discretion of the responsible federal agencies").
[36] 16 U.S.C. § 1604(g)(3)(B) (2000).
[37] 36 C.F.R. § 219.19 (2000).
[38] See 36 C.F.R. § 219.19(a)(1) (2000) (MIS species are monitored because "population changes are believed to indicate the effects of management activities").
[39] Compare Inland Empire Public Lands Council, 88 F.3d 754, 761 (9th Cir. 1996) (assumption that maintaining habitat maintains species is "eminently reasonable"), and Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1154 (9th Cir. 1998) ("We agree that using habitat as a proxy for population is not arbitrary and capricious."), and Gifford Pinchot Task Force, 378 F.3d 1059, 1066-67 (9th Cir. 2004) (approving habitat proxy method for northern spotted owl under the ESA), and Native Ecosystems Council, 428 F.3d 1233, 1251 (9th Cir. 2005) ("The record does not demonstrate any flaws in the methodology used by the Forest Service to identify goshawk habitat"), with Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 972 (9th Cir. 2002) (concluding reliance on habitat existence arbitrary and capricious where forest monitoring report indicated that, because of various invalid assumptions, "the Forest Service's methodology does not reasonably ensure viable populations of the species at issue"), and Lands Council v. Powell, 395 F.3d 1019, 1036 (9th Cir. 2005) ("The record here shows that the proffered data is about fifteen years old, with inaccurate canopy closure estimates, and insufficient data on snags."), and Earth Island Institute, 442 F.3d 1147, 1175-76 (9th Cir. 2006) (rejecting use of habitat monitoring where forest plan required population monitoring and where there was no indication USFS consulted current studies or identified methodology in determining suitable habitat).
[40] EPIC, 451 F.3d 1005, 1017 (9th Cir. 2006).
