Selkirk Conservation Alliance, Sierra Club, Kettle Range Conservation Group, Idaho Conservation League, and Pend Oreille Environmental Team (collectively Selkirk) brought action against Harv Forsgren in his official capacity as Regional Forester of the Pacific Northwest region, other United States Forest Service (USFS) and United States Fish and Wildlife Service (FWS) officials, and Stimson Lumber Company (collectively Stimson), alleging that USFS and FWS violated the Endangered Species Act (ESA)[1] and the National Environmental Policy Act (NEPA)[2] by granting a road-building easement (Stimson project) through the Colville National Forest. The district court granted summary judgment in favor of USFS and FWS, and Selkirk appealed. The Ninth Circuit reviewed the actions of USFS and FWS under the Administrative Procedure Act (APA),[3] found that the agencies did not act in an arbitrary and capricious manner in approving the Stimson project, and affirmed the district court's summary judgment in favor of Stimson.

Stimson Lumber Company owns six plots of land within the Colville National Forest, five of which are completely surrounded by the National Forest. The remaining plot is logically accessible only through national forest land. Stimson sought an easement from USFS under 16 U.S.C. section 3210(a)[4] to build roads into the area to facilitate a logging operation. The Stimson project was located in an area of critical habitat for area grizzly bear (Ursus arctos horribilis), which are listed as threatened under the ESA. Once the parties discerned that there was a listed species in the proposed development area, USFS followed the consultation requirement of the ESA by consulting with FWS, and FWS issued a draft biological opinion that indicated that the Stimson project would jeopardize area grizzly bear. FWS put the biological opinion on hold while Stimson's predecessor in interest began working with USFS and FWS to create an agreement that would allow the development by incorporating measures designed to protect the endangered species in the area. In 1997, after two years of meetings and research, the agencies and Stimson entered into the conservation agreement. FWS released its final biological opinion after the 1997 conservation agreement was reached; this opinion indicated the proposed action would not jeopardize the grizzly bears in the area. Selkirk issued five challenges to the agencies' decision to grant the easement under the ESA and NEPA. Selkirk argued that the reliance of both agencies on the conservation agreement as a sufficient mitigation measure violated the ESA, and challenged the 2001 Biological Opinion for failure to consider reasonably foreseeable activities. Under NEPA, Selkirk challenged the geographical scope, temporal scope, and the cumulative impact analysis of the environmental impact statement (EIS).

The ESA requires agencies to use the "best scientific and commercial data available" in evaluating whether a government action will jeopardize endangered species.[5] The Ninth Circuit found that FWS and USFS properly followed the ESA in relying on the conservation agreement as a mitigation measure. The Ninth Circuit cited Friends of Endangered Species, Inc. v. Jantzen[6] and Edwardsen v. United States Department of the Interior[7] for the principle that agencies may act in compliance with environmental laws even if they rely on private agreements as mitigation measures. Selkirk, argued that even if FWS could consider the conservation agreement, it failed its duty to rely on the best science by finding the agreement mitigated adverse effects on grizzly bear. The Ninth Circuit noted that the agencies conducted meetings, did research, consulted with each other and with the developer, and considered mitigation. The Ninth Circuit concluded that the agencies' reliance on the conservation agreement as the best available scientific data was valid because the agencies "conducted a reasonable evaluation of the relevant information and reached a conclusion that, although disputable, was not 'arbitrary and capricious.'"[8]

The Ninth Circuit also held that FWS did not violate the ESA in issuing its 2001 biological opinion. Selkirk challenged this biological opinion as inadequate because it relied on the conservation agreement for consideration of cumulative effects and did not consider future activities that Stimson might undertake. The Ninth Circuit again deferred to the agency expertise of FWS. In its biological opinion, FWS addressed mitigation measures in the conservation agreement and incorporated that agreement as part of the Stimson project. Determining that the ESA does not require the agency to use a particular means of assessing cumulative impacts, the Ninth Circuit held that FWS did not act in an arbitrary and capricious manner by using the conservation agreement as the best scientific and commercial data available.

The Ninth Circuit next addressed Selkirk's three challenges to the EIS and decided that USFS properly followed NEPA in issuing the EIS for the Stimson project. NEPA requires agencies to submit an EIS before taking "major federal action" that "significantly [affects] the quality of the human environment."[9] Selkirk challenged the EIS as inadequate for 1) failing to adequately consider cumulative impacts because the physical area which the EIS analyzed left out adjacent projects by Stimson in the Idaho Panhandle National Forest (IPNF) and other areas, 2) failing to consider possible future logging activity by Stimson, and 3) adopting the shortest temporal scope of the EIS which had been identified as sub‑optimal by USFS scientists.

In considering geographical scope of the EIS, the Ninth Circuit cited Kleppe v. Sierra Club[10] for the premise that the court must defer to agency judgment, but noted that Kern v. United States Bureau of Land Management[11] requires the agency to "'consider cumulative impacts in determining the scope of an EIS.'"[12] Thus the court could not blindly defer to the agency, but instead must analyze whether the agency considered cumulative impacts when deciding what geographic area the EIS will encompass. The Ninth Circuit concluded that, under the rule of Kleppe and Kern, USFS adequately considered cumulative impacts because USFS rationally explained its decision to exclude the IPNF from the scope of assessment. While it initially considered using a larger area including the IPNF for the EIS, USFS determined that using such a large area for the analysis might artificially minimize the predicted impact of the Stimson project, and thus chose the smaller geographical scope. The Ninth Circuit distinguished Selkirk's cumulative impacts argument from two recent Ninth Circuit cases in which the court decided that USFS had erred in its choice of geographic area for analysis, Native Ecosystems Council v. Dombeck (Native Ecosystems)[13] and Idaho Sporting Congress v. Rittenhouse (ISC).[14] The Ninth Circuit held that Selkirk was distinguishable from Native Ecosystems and ISC because in Selkirk USFS "did 'provide support for' and 'justify' its decision" regarding the choice of geographic area, which USFS had not done in either Native Ecosystems or ISC.[15] For example, in Native Ecosystems, the Ninth Circuit held that USFS should have considered a nearby sheep grazing area that was also an area where many grizzly bear died when setting the scope of its EIS. The Ninth Circuit contrasted this "population sink" with the IPNF in Selkirk on the basis that the IPNF was
not known as a place where grizzly bear tend to die and thus was substantially different from the population sink in Native Ecosystems.

The Ninth Circuit next addressed Selkirk's concern that USFS failed to contemplate the impact of future Stimson activities in the EIS and determined that reliance on Stimson's compliance with the conservation agreement made analysis of every possible future operation unnecessary. Selkirk argued that the EIS failed to include all of Stimson's planned development concerning forest practices applications. The Ninth Circuit noted that the EIS presumed perpetual logging on all Stimson land and included analyses of most pending forest practice applications along with the effects of the conservation agreement. Because USFS had exhaustively considered the effects of the conservation agreement and had considered most of Selkirk's planned development, the Ninth Circuit did not require it to "list, map, and discuss every pending Stimson harvest plan."[16] The court held that what USFS had considered for purposes of the EIS constituted a reasonable evaluation of foreseeable consequences.

Finally, the Ninth Circuit addressed Selkirk's concern about the temporal scope of the EIS. After considering a three, five, and ten year scope, USFS chose a three year scope for the EIS. The court held this decision was not arbitrary or capricious because it was rationally based on the fluctuating nature of the Washington State forest management rules at the time the EIS was drafted. Although the court found that the temporal scope for the EIS was a hard choice, it deferred to the not unreasonable decision of USFS, the expert agency in this field.

In closing, the Ninth Circuit noted that environmental statutes such as the ESA and NEPA create a balance between preservation of the environment and protection of private property by delineating specific requirements for federal agency action and concluded that USFS and FWS complied with these requirements. The Ninth Circuit noted it had faith in the enforcement of the conservation agreement and affirmed the district court's grant of summary judgment against Selkirk.