Nonprofit organizations Lands Council and the Wild West Institute (collectively Lands Council) sought a temporary restraining order and preliminary injunction against the United States Forest Service's (USFS) Mission Brush Project (MBP), which allowed selective logging of 3829 acres of the Idaho Panhandle National Forest (IPNF).[1] Lands Council asserted that the MBP violated the Administrative Procedure Act (APA),[2] the National Forest Management Act (NFMA),[3] the National Environmental Policy Act (NEPA),[4] and Standard 10(b) of the IPNF Forest Plan.[5] The United States District Court for the District of Idaho denied Lands Council's motion, ruling that Lands Council had not 1) demonstrated a likelihood of success on the merits and a possibility of irreparable injury, nor 2) shown that the balance of hardships tipped sharply in its favor. On appeal, a three-judge panel of the Ninth Circuit reached the opposite conclusion with regard to Land Council's NFMA and NEPA claims and remanded for entry of a preliminary injunction.[6]

After reviewing the three-judge panel's decision, an en banc Ninth Circuit panel concluded that the district court did not abuse its discretion, vacated the three-judge panel's decision, and affirmed the district court's denial of Lands Council's preliminary injunction motion. The en banc panel first held that NFMA does not require USFS to always verify its methodology with on-the-ground analysis, overruling Ecology Center, Inc. v. Austin.[7] Instead, USFS must simply support conclusions with studies the agency, in its expertise, deems reliable. The court also overruled the suggestion from Idaho Sporting Congress v. Thomas[8] that habitat could not be used as a proxy for species viability under NFMA, holding that USFS can use habitat as a proxy to establish a species' viability when the disturbance does not reduce suitable habitat in a way that threatens that species' viability. Furthermore, the Ninth Circuit held that USFS satisfied NEPA by conducting a "full and fair discussion" of environmental impacts of the MBP.[9] Finally, the court concluded that Lands Council failed to show that the balance of hardships tipped sharply in its favor.

In 2002, USFS began forest management planning for the Mission and Brush Creek areas of the IPNF, home to old growth trees, as well as a variety of animal and plant species and habitats. Fire suppression, logging, and disease changed the historic composition of the forest from relatively open stands of ponderosa pine and mature Douglas fir stands to the current composition of shade-tolerant younger Douglas firs stands and other mid-to-late successional species that crowd the forest. The court concluded that "[t]he increased density of trees has proven deleterious to the old growth trees" and threatened the area's ecology.[10] Thus, USFS sought to restore the forest to more historic compositions of open ponderosa pine and Douglas fir stands. Additionally, USFS proposed to restore forest health and wildlife habitat, improve water quality and aquatic habitat, and provide for recreation activities.[11]

To accomplish these varied objectives, USFS proposed silvicultural treatments,[12] fuels treatments, and ecosystem burns on portions of the IPNF. USFS planned to perform treatments within 277 acres of old growth stands without harvesting old growth trees and expected the MBP to generate 23.5 million board feet of timber to be sold pursuant to three timber sale contracts.[13]

After publishing a draft environmental impact statement (EIS) and receiving comments, USFS released a FEIS and record of decision (ROD) in June 2004. Lands Council appealed the ROD, and USFS upheld the MBP. However, because of a Ninth Circuit decision addressing a different forest management project in the IPNF,[14] USFS ordered the preparation of a supplemental EIS. After a draft and public comment, USFS issued the supplemental final environmental impact statement (SFEIS) and ROD in April 2006. Lands Council filed an administrative appeal again, and USFS again upheld the MBP.

In October 2006, Lands Council filed suit in district court, moving for a preliminary injunction. After the district court denied its motion, Lands Council timely appealed to the Ninth Circuit, arguing that 1) under NFMA, USFS failed to demonstrate the reliability of the scientific methodology underlying its analysis of the MBP's effect on wildlife and failed to comply with Standard 10(b) of the IPNF Forest Plan's requirement to maintain ten percent old growth throughout the forest, and 2) under NEPA, USFS did not adequately address uncertainty regarding its proposed treatment as a strategy to maintain species viability. Initially, a three-judge panel reversed the district court's decision and remanded for entry of a preliminary injunction.[15] The injunction prohibited USFS from 1) logging fourteen acres of old growth trees in the Haller Down Sale, and 2) taking action in the area of the Mission Fly By Sale.[16] However, the Ninth Circuit subsequently convened en banc to rehear the case and "clarify some of [its] environmental jurisprudence" regarding review of USFS action.[17]

The en banc panel reviewed the district court's denial of Lands Council's motion for abuse of discretion.[18] Using this deferential standard, the Ninth Circuit evaluated whether Lands Council demonstrated either 1) "a likelihood of success on the merits and the possibility of irreparable injury," or 2) "that serious questions going to the merits were raised and the balance of hardships tips sharply in [Lands Council's] favor."[19] To determine whether Lands Council was likely to prevail on the merits of its NFMA and NEPA claims, the Ninth Circuit applied the APA's "arbitrary and capricious" standard.[20] Thus, the abuse of discretion review for the preliminary injunction incorporated the "arbitrary and capricious" standard.

The Ninth Circuit characterized Lands Council's appeal as asking the court "to act as a panel of scientists" in reviewing USFS action.[21] The court admitted that it may have entertained such a broad standard of review in previous NFMA cases; however, the en banc panel sought to correct its jurisprudential inconsistencies by first discussing the language and purpose of NFMA and the court's misconstruction of NFMA in an earlier case, Ecology Center, Inc. v. Austin,[22] before evaluating the Lands Council's claims.

NFMA contains procedural and substantive requirements to guide USFS in managing the National Forest System. Procedurally, NFMA requires USFS to develop a forest plan for each unit of national forest.[23] Once a plan is developed, each subsequent agency action, including site-specific plans, must be consistent with the governing plan and comply with NFMA.[24] NFMA substantively requires USFS to develop guidelines to provide for "diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives."[25] NFMA also requires consistency between the MBP and the IPNF Forest Plan, which requires USFS to manage the habitat of designated "sensitive" species, such as the flammulated owl, in a way that prevents further declines in population.[26] In addition to wildlife viability considerations, the Ninth Circuit stressed USFS must provide for multiple use[27] and "balance competing demands in managing National Forest System lands."[28]

Before addressing Lands Council's appeal, the Ninth Circuit overruled Ecology Center, reasoning that it had misconstrued the requirements of NFMA and disregarded well-established law governing the court's review of agency decision making. In Ecology Center, the Ninth Circuit required USFS to "conduct on-the-ground analysis to verify its soil quality analysis and to establish the reliability of its hypothesis that treating old growth forest is beneficial to dependent species."[29] First, the Ninth Circuit noted that Lands Council v. Powell (Lands Council I),[30] which required on-site spot verification of spreadsheet modeling, was "limited to the circumstances of that case;"[31] thus, when Ecology Center, relying on Lands Council I, imposed a categorical requirement of on-the-ground analysis, it established an overreaching rule. Next, the Ninth Circuit decided that NFMA, the IPNF Forest Plan, and relevant regulations, contrary to the court's holding in Ecology Center, did not require that site-specific plans contain on-site analysis in consideration of wildlife viability. Instead, USFS can use any methodology or evidence to consider wildlife viability that it deems appropriate. Finally, the Ninth Circuit described Ecology Center as an example of the court's failure to grant proper deference to USFS under the APA's arbitrary and capricious standard of review. The court reasoned that it had no "proper role" in assessing the reliability or significance of USFS's project analysis,[32] especially with respect to its predictions[33] or decisions involving a "high level of technical expertise."[34] In overruling Ecology Center, the court held that under its new approach, "[USFS] must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable."[35]

After overruling Ecology Center, the Ninth Circuit addressed Lands Council's NFMA claim under the arbitrary and capricious standard. Lands Council argued that USFS violated NFMA by failing to establish the reliability of the data underlying its analysis of the MBP's effect on wildlife, specifically the MBP's effect on the sensitive flammulated owl and its habitat. USFS had conducted three studies documenting that flammulated owls prefer old growth habitat, as well as a study suggesting that flammulated owls live in old growth habitat even after it has been treated. Additionally, USFS conducted one on-the-ground survey of flammulated owls in an adjacent, treated forest plot and received one flammulated owl response as recent as 2006. Finally, USFS used a habitat suitability model, relying on vegetation characteristics, site visits, and aerial photographs to predict the treatment's effect on flammulated owl habitat. On this record, USFS concluded that the MBP 1) would not decrease suitable habitat in the short-term, even if harvesting resulted in short-term negative effects, 2) would promote the viability of suitable habitat for the flammulated owl in the long-term, and 3) would not cause a loss of species viability or increase the likelihood of listing under the Endangered Species Act (ESA).[36]

Based on the USFS studies and the agency's reasonable assumptions, the Ninth Circuit concluded that USFS did not act arbitrarily and capriciously in determining that the MBP satisfied NFMA and the IPNF Forest Plan regarding species diversity. For example, although the court described USFS's survey for the flammulated owl at a nearby forest plot as "sparse" and "approaching the limits of [the court's] deference,"[37] the court reiterated that on-the-ground analysis was not required, and concluded, nonetheless, that there was sufficient evidence to defer to the USFS. Additionally, the court emphasized that "neither NFMA nor the IPNF Forest Plan require [USFS] to improve a species habitat to prove that it is maintaining wildlife viability."[38] The court accepted USFS's analysis of suitable habitat as a proxy for the viability of the flammulated owl, reasoning that Lands Council's claims echoed arguments made in Inland Empire Public Lands Council v. USFS (Inland Empire).[39] In Inland Empire the Ninth Circuit approved USFS's "habitat viability analyses," which measured suitable habitat as a proxy to estimate a species' population.[40] In this case, the Ninth Circuit noted that USFS similarly documented the quality and quantity of habitat necessary for the flammulated owl, as well as the habitat currently suitable and the estimated habitat suitable after the MBP.

The Ninth Circuit also discussed the effect, if any, a habitat disturbance, such as a timber harvest, had on its review of USFS under the "arbitrary and capricious" standard. The court overruled an earlier case, Idaho Sporting Congress v. Thomas,[41] to the extent it stood for the proposition that habitat could not be used as a proxy approach in the event of an "appreciable habitat disturbance."[42] The Ninth Circuit reasoned that habitat disturbances do not inevitably indicate that a species' viability will be threatened, and thus do not preclude USFS from using the habitat model as a population proxy when a disturbance does not reduce habitat to a point that threatens a species' viability. However, USFS's use of habitat as a proxy may be limited when the record 1) fails to establish a clear relationship between the habitat and the species at issue,[43] 2) fails to describe the types and amounts of habitat necessary to sustain a species' viability,[44] or 3) suggests that the agency used outdated or inaccurate information for its habitat calculations.[45] In the present case, the Ninth Circuit determined that, based on USFS's studies, surveys, and reasonable assumptions, the agency was not arbitrary and capricious in determining that the MBP will maintain a suitable habitat for a viable population of flammulated owls. Thus, the court concluded that the district court did not abuse its discretion in deciding that Lands Council's NFMA claim was unlikely to succeed on the merits.

Next, the Ninth Circuit addressed Lands Council's claim that USFS was currently out of compliance with the IPNF Forest Plan's requirement to maintain at least ten percent of old growth trees throughout the forest. USFS relied on two independent monitoring tools, the National Forest Inventory and Analysis program and the IPNF stand-level old growth map, to calculate the percentage of old growth acreage in the IPNF. Each tool found that the IPNF contained approximately twelve percent of old growth. Lands Council presented its own report that concluded that seventy percent of 3000 acres that USFS claimed to be old growth did not meet USFS's old growth standards, but USFS's expert disputed the report's methods, findings, and credibility. The Ninth Circuit reasoned that an "agency must have discretion to rely on the reasonable opinions of its own qualified experts," when experts advance conflicting views.[46] Thus, the court concluded that USFS did not act arbitrarily and capriciously "in relying on its own data and discounting the alternative evidence offered' by Lands Council."[47]

Lands Council also argued that the MBP would violate the IPNF Forest Plan's requirement to maintain at least ten percent of old growth forest. USFS planned to perform treatments within old growth stands without harvesting old growth trees. Although the court acknowledged that disturbances, other than harvesting, could cause decreases in the old growth percentage, the court held that the MBP does not violate the IPNF Forest Plan's old growth percentage requirement.[48] Thus, the Ninth Circuit ruled that the district court did not abuse its discretion in concluding that Lands Council was not likely to succeed on the merits of its NFMA claim alleging noncompliance with the IPNF Forest Plan.

Prior to addressing Lands Council's NEPA claim, the Ninth Circuit discussed the statutory language and purpose of NEPA, as well as its jurisprudence regarding "uncertainties."[49] The court noted that NEPA and corresponding regulations require agencies undertaking major federal actions to provide "full and fair discussions of significant environmental impacts"[50] but lack any substantive requirement to affirmatively submit every uncertainty in an EIS. The Ninth Circuit acknowledged it had erred when it previously criticized USFS for an EIS's failure to address a project's uncertainties "in any meaningful way"[51] but reaffirmed USFS's duty, under NEPA's regulations[52] and case law,[53] to "acknowledge and respond to public comments that raise significant scientific uncertainties and reasonably support that such uncertainties exist."[54] However, USFS does not have to anticipate questions or respond to uncertainties that are "not reasonably supported by any scientific authority."[55]

The Ninth Circuit held that USFS satisfied NEPA by taking the requisite "hard look" at the environmental impacts of the MBP. Lands Council argued that USFS failed to fully discuss the scientific uncertainty surrounding its strategy for maintaining species viability, referencing two papers that USFS did not discuss. The court reasoned that neither source raised uncertainties about the USFS's methodology. Rather, those papers supported the USFS's proposed treatment of old growth habitat. Lands Council also argued that USFS failed to provide adequate evidence that the MBP will improve the habitat of old growth species and failed to adequately evaluate adverse impacts from logging. In response, the Ninth Circuit concluded that the SFEIS described how the MBP would improve tree vigor and resistance to insects and disease and reduce the risk of stand-replacing fires. Additionally, the court noted the USFS's acknowledgement of potential short-term, negative impacts of treatment, as well as the agency's position that the MBP would enhance species' habitat in the long-term, based on the habitat suitability model. In sum, the court ruled that Lands Council is unlikely to succeed on the merits of its NEPA claim.

Having concluded that the district court did not abuse its discretion in finding Lands Council could not show a likelihood of success on the merits, the Ninth Circuit also agreed that the balance of hardships did not tip sharply in Lands Council's favor, based on a consideration of those affected by an injunction and the public interest.[56] Although the court acknowledged that the balance of harms "usually favors the issuance of an injunction" if an environmental injury is likely,[57] the court declined to adopt a rule that "any potential environmental injury automatically merits an injunction, particularly where . . . the plaintiffs are not likely to succeed on the merits of their claims."[58] The court balanced the threats to the environment with the economic hardships advanced by the intervenors, noting that even though environmental preservation is in the public's interest, the MBP benefited the public interest by 1) decreasing the risk of catastrophic fire, insect infestation, and disease, and 2) aiding the struggling local economy and preventing job loss. Because these considerations countered the possible environmental injury alleged by Lands Council, the Ninth Circuit ruled that the district court did not clearly err in concluding that the balance of harms did not tip in Lands Council's favor.

In summary, the en banc panel of the Ninth Circuit affirmed the district court's denial of a preliminary injunction. First the court held that NFMA does not require USFS to always verify its methodology with on-the-ground analysis, overruling Ecology Center, Inc. v. Austin. Instead, USFS must simply support conclusions with studies the agency, in its expertise, deems reliable. The court also overruled the suggestion from Idaho Sporting Congress v. Thomas that a habitat could not be used as a proxy for species viability under NFMA; the court instead ruled that USFS can use habitat as a proxy to establish a species' viability when the disturbance does not reduce suitable habitat in a way that threatens a species' viability. Furthermore, the Ninth Circuit held that USFS did not fail to conduct a full and fair discussion of environmental impacts under NEPA. Finally, the court concluded that Lands Council failed to show that the balance of hardships tipped sharply in its favor. Based on these conclusions, the Ninth Circuit vacated a three-judge panel's previous decision that granted Lands Council a preliminary injunction and affirmed the district court.