Three environmental advocacy groups appealed a decision of the district court granting summary judgment for defendants United States Forest Service and the Forest Supervisor of Umatilla National Forest (collectively Forest Service).[1] The Ninth Circuit reversed the district court on one ground, holding the USFS violated the National Environmental Policy Act (NEPA)[2] by failing to adequately discuss the effects of proposed salvage logging on two roadless areas, but affirmed on two others, holding that the Forest Service complied with the National Forest Management Act (NFMA)[3] in its soil analysis and interpretation of the term "live trees." The Ninth Circuit remanded the case to the district court.

After an August 2005 forest fire burned approximately 51,000 acres in southeastern Washington, including 28,000 acres in the Umatilla National Forest, the Forest Service began preparations for the School Fire Salvage Recovery Project to harvest dead trees located within the national forest. The Forest Service released its final environmental impact statement (EIS) and record of decision (ROD), choosing to allow salvage logging on 9423 acres. The proposed logging was to be performed on portions of two uninventoried roadless areas, the West Tucannon roadless area (4284 acres) and the Upper Cummins Creek roadless area (966 acres).[4] These two roadless areas are adjacent to the Willow Springs inventoried roadless area, which contains more than 12,000 acres. While a lone road separates West Tucannon and Willow Springs, Upper Cummings Creek and Willow Springs are not separated by a road. The three areas together comprise a contiguous roadless area of more than 13,000 acres.

The Forest Service sought to commence logging immediately to prevent loss of a potential $1,547,000 in timber sales, and the plaintiffs filed suit in the United States District Court for the Eastern District of Washington alleging violations of NEPA and NFMA. Plaintiffs had two principal disputes. The first concerned the Forest Service's interpretation of the term "live trees" as used in the Umatilla National Forest Land and Resource Management Plan (LRMP). The LRMP prohibited the harvesting of old growth "live trees," but neither NFMA nor the LRMP defined the term. Plaintiffs contended that dying trees are still alive and logging them would violate the LRMP's prohibition on harvesting old growth live trees. In an earlier appeal, a panel of the Ninth Circuit agreed and reversed the district court's decision.[5] Plaintiffs also contended the discussion of the roadless areas in the EIS was inadequate to meet NEPA requirements. The Ninth Circuit affirmed the district court's decision on this ground, noting the demanding standard of review on appeal from the denial of a preliminary injunction. On remand, the district court issued an injunction prohibiting the cutting of any live tree twenty-one inches or more in diameter at breast height.

As the salvage operation continued, the Forest Service started a new notice and comment process to supplement the EIS with a new definition of "live trees." The June 11, 2007 supplemental EIS (SEIS) amended the prohibition against harvesting old growth timber by adding a new definition of "live trees" that excluded dying trees, using a predictive method known as the "Scott Mortality Guidelines."[6] The Forest Service limited the amendment's geographic and temporal scope by applying it only to the School Fire Salvage Recovery Project. Three months after the issuance of the SEIS, the district court granted summary judgment to the defendants on all claims. Plaintiffs appealed, and the district court issued an injunction pending appeal. The Ninth Circuit reviewed de novo the district court's grant of summary judgment. On appeal, plaintiffs challenged three aspects of the recovery project: the new definition of live trees, the soil analysis in the EIS, and the discussion of the roadless areas in the EIS.

The Ninth Circuit began its analysis by addressing the amended definition of "live trees" provided by the SEIS. First, plaintiffs alleged the amended definition was arbitrary and capricious because it represented a change in policy that was not adequately explained. The Ninth Circuit rejected this contention, concluding that the amendment was not among the "rare instances" in which the agency's action is arbitrary and capricious for failure to provide an adequate explanation.[7] The court relied on Morales-Izquierdo v. Gonzales,[8] which held that an unexplained inconsistency is grounds for finding that an interpretation is an arbitrary and capricious change in policy-but only in the rare instances when an agency provides no explanation at all or when the explanation is so unclear or contradictory that there is doubt as to the reason for the change in direction.[9] Here, the Forest Service explained that the policy change was necessary because the plain text definition of "live trees" frustrated its ability to achieve the purpose of the recovery project. Plaintiffs' disagreement with the merits of the Forest Service's explanation was insufficient to trigger the "rare instances" exception to the rule stated in Morales-Izquierdo. The Ninth Circuit also declined to consider whether the Forest Service decision was properly supported by science, noting that an agency has discretion to rely on the reasonable opinions of its own qualified experts even if a court finds contrary views more persuasive.[10] This principle also applies to challenges to a specific methodology.[11] The court upheld the Forest Service's reliance on the newly developed Scott Mortality Guidelines (which were derived from field testing and practical experience but had not yet been published), finding no legal requirement that a methodology be peer reviewed or published in a credible source.[12]

Second, plaintiffs alleged that the Forest Service was bound to use the common meaning of the term "live trees." The Ninth Circuit disagreed, holding that no statute or precedent suggests that a previously undefined technical term in a forest plan cannot be subsequently clarified. The court noted that "live trees" is not a statutory term and thus is not subject to a Chevron[13] analysis regarding its proper interpretation.

Third, plaintiffs alleged that the Forest Service erred procedurally by concluding that the amendment was not "significant" because it was limited in scope. "Significant" amendments require a lengthy and detailed amendment process; otherwise, a simple notice and comment process is sufficient.[14] The Ninth Circuit rejected plaintiffs' contention that the amendment was "significant" and thus should have been subjected to greater scrutiny, citing the discretion given to the Forest Service in determining such classifications.[15] Similarly, the Ninth Circuit rejected the argument that the Forest Service arbitrarily enacted a site-specific amendment, applicable to this salvage project, rather than a general amendment that would have applied to the entire forest. The court reiterated the deference given to the Forest Service when it uses its expertise to devise a plan specially suited to a site's specific characteristics.[16] In this case, "the Forest Service's decision to limit the scope of the amendment was informed by site-specific characteristics and Forest Service expertise."[17] Here, the Forest Service chose a definition of "live trees" that assesses the effects of a wildfire on the species of trees found in the affected area. Evidence in the record suggested that the chosen designation may not be appropriate to assess trees affected in other ways, such as prescribed burning, flooding, disease, and insect infestation. As such, the Forest Service "articulated a rational connection between the facts found and the choice made" and did not act arbitrarily.[18]

The Ninth Circuit next analyzed plaintiffs' challenges to three aspects of the soil analysis in the EIS. First, plaintiffs alleged that the Forest Service did not conduct an on-the-ground soil analysis as required by precedent.[19] The Ninth Circuit disagreed, noting the fifteen-page soil analysis in the EIS that included several references to field verification and observation. On the ROD, plaintiffs could not show that the Forest Service did not actually perform the required on-the-ground soil analysis. Second, plaintiffs alleged that the Forest Service improperly interpreted the term "severe burning" in a provision of the LRMP that required the Forest Service to plan and conduct land management activities so that reductions caused by "severe burning" are minimized. The EIS interprets this provision and others in the Forest Service Handbook as applying only to prescribed burns, not forest fires; the soil analysis therefore did not account for the burning effects of the forest fire. The Ninth Circuit held that the Forest Service's interpretation was not plainly erroneous or otherwise inconsistent with the language of the LRMP.[20] It is plausible to read the provision as being limited to prescribed burns and not inclusive of naturally occurring effects. Third, the plaintiffs alleged that the Forest Service impermissibly used the "long-term average annual prediction" method rather than the "return period analysis for soil erosion" method. The Ninth Circuit again relied on Inland Empire Public Lands Council v. Schultz,[21] declining to second-guess the methodological choices made by the agency in its area of expertise.[22]

The Ninth Circuit concluded with an examination of plaintiffs' challenges to the roadless area analysis in the EIS. Plaintiffs alleged that the EIS violated NEPA because it did not contain an adequate discussion of the effects of the proposed logging on the roadless character of two substantial roadless areas. Specifically, the plaintiffs alleged the EIS did not comply with the requirement in Smith v. USFS[23] that roadless areas be discussed in the context of their potential for wilderness designation.[24] In Smith, the court held that "the possibility of future wilderness classification triggers, at the very least, an obligation on the part of the agency to disclose the fact that development will affect a 5,000 acre roadless area."[25] Specifically, the size of an uninventoried roadless area must be considered in conjunction with the size of any contiguous inventoried roadless area. Here, the Upper Cummings Creek roadless area contains about 1000 acres of uninventoried land and is contiguous to the Willow Springs inventoried roadless area of approximately 12,000 acres. Applying Smith, the Ninth Circuit held that the Upper Cummings Creek-Willow Springs roadless areas are a single "roadless expanse" that, when analyzed together, contain more than 5000 acres.

The Wilderness Act[26] does not limit the potential for wilderness designation to roadless areas 5000 acres or larger, however. An area is suitable for wilderness designation if it contains at least 5000 acres or if it is of sufficient size "as to make practicable its preservation and use in an unimpaired condition."[27] The West Tucannon roadless area, totaling 4284 acres, falls within this second category. The court thus clarified the rule enunciated in Smith, holding that the Forest Service is required to discuss the effects of proposed logging on roadless areas that are either greater than 5000 acres or of a sufficient size to make the area practicable for preservation under the Wilderness Act. Both roadless areas at issue in this case thus required a discussion of their potential for wilderness designation. The discussion of the roadless areas in the EIS did not meet this requirement because it failed to disclose that Upper Cummings Creek and Willow Springs create a "roadless expanse" larger than 5000 acres or that West Tucannon is of "sufficient size" to trigger the wilderness designation. Thus, the Ninth Circuit reversed the district court's holding that the discussion in the EIS of the effects of the proposed logging in the roadless areas complied with NEPA requirements.

In conclusion, the Ninth Circuit held that the Forest Service violated NEPA because the agency did not adequately discuss the effects of proposed logging on two roadless areas but that the Forest Service's soil analysis and interpretation of "live trees" complied with NFMA.