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Earth Island Institute v. United States Forest Service

September 20, 2012

EARTH ISLAND INSTITUTE; CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES FOREST SERVICE;
NANCY GIBSON, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR THE LAKE TAHOE BASIN MGT. UNIT, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding D.C. No. 2:11-cv-00402-GEB-DAD

The opinion of the court was delivered by: N.R. Smith, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted May 14, 2012-San Francisco, California

Before: Stephen Reinhardt, Richard R. Clifton, and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

OPINION

Under the National Forest Management Act ("NFMA"), an agency's project is required to comply with 1982 viability requirements only to the extent they have been incorporated in the relevant forest plan. Earth Island Inst. v. Carlton, 626 F.3d 462, 470 (9th Cir. 2010). Here, we conclude that the Lake Tahoe Forest Plan did not require the Forest Service to demonstrate at the project level that the Angora Fire Restoration Project ("Angora Project") would maintain viable population levels of management indicator species, including the black-backed woodpecker. Therefore, the Forest Service's analysis of the Angora Project's impact on the black-backed woodpecker's habitat was not arbitrary and capricious under NFMA.

The National Environmental Policy Act ("NEPA") requires an Environmental Assessment ("EA") to comply with certain procedural requirements to ensure that agencies will make informed decisions about the environmental effects of proposed federal actions and to make this information available to the public. Ecology Center v. Castaneda, 574 F.3d 652, 656-57 (9th Cir. 2009). Here, because the Forest Service did not fail to (1) ensure the scientific integrity of the final EA, (2) properly respond to dissenting scientific opinion, (3) properly consider proposed alternatives to the Angora Project Environmental Assessment, and (4) take the requisite "hard look" at the impacts of the Angora Project, we also conclude that the Forest Service's analysis of the Angora Project's environmental effects was not arbitrary and capricious under NEPA. Accordingly, we AFFIRM the district court.

I. FACTS AND PROCEDURAL HISTORY

The Forest Service designed the Angora Project in response to damage caused by the Angora Fire, which consumed over 3,100 acres of land. The Forest Service's Lake Tahoe Basin Management Unit ("LTBMU") manages the affected National Forest System land. The LTBMU developed the Angora Project pursuant to the LTBMU Forest Plan in an effort to balance the ecological needs of restoring the ecosystem and protecting area residents and visitors from falling trees and future fires. Project activities include the removal of certain live and dead trees from portions of the forest. The Forest Service determined that, if no action was taken, surface fuels would accumulate as dead and damaged trees fall, increasing the risk of another harmful fire that would threaten both local communities and the forest ecosystem.

Before implementing the Angora Project, the Forest Service prepared an EA and solicited public comment on the EA. The EA discussed the impact of the Angora Project on various species, including black-backed woodpeckers. The EA also responded to some concerns raised in the comments and assessed a "no-action" alternative and the preferred alternative that the Forest Service determined would best reduce fuel loads and the severity of future fires. The Forest Service also briefly considered an option submitted by Earth Island Institute that would limit removal of standing dead trees ("snags") to those greater than 16 inches in diameter. However, the Forest Service dismissed this alternative, because the agency concluded that this alternative would not effectively accomplish the Forest Service's goals.

Subsequently, the Forest Service issued a Decision Notice and a Finding of No Significant Impact ("FONSI"), and it approved the proposed project with some modifications. The decision authorized the removal of snags and downed trees and the thinning of live trees on approximately 1,411 acres. The remaining burned area, consisting of approximately 1,168 acres, would be left untreated to provide habitat diversity in the forest.

The Angora Project also creates twelve "wildlife snag zones" within the treated areas that would be subject to limited or no snag removal in order to address further concerns about providing habitat for species such as the black-backed woodpecker. The agency determined that about half of the habitat that is suitable for black-backed woodpecker habitat in the relevant area would be retained. The Forest Service concluded that the Project would not "lead to a change in the distribution of black-backed woodpecker[s] across the Sierra Nevada bioregion."

Earth Island Institute and Center for Biological Diversity ("Plaintiffs") filed suit over the Angora Project in 2011, alleging noncompliance with NFMA and NEPA. The district court granted summary judgment in favor of the Forest Service on all claims. Plaintiffs timely appealed the decision. The district court and we both denied Plaintiffs' motions for an injunction pending appeal.

II. STANDARD OF REVIEW

The Forest Service is "entitled to deference to [its] interpretation of [its] own . . . Forest Plans[,]" unless the interpretation "is plainly inconsistent with [a Forest Plan]." Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005) (internal quotation marks omitted).

"Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the Administrative Procedure Act ('APA')." Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). "Under the APA, [a court] may set aside an agency decision if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Id. (quoting 5 U.S.C. § 706(2)(A)).

In Lands Council II, we explained that "[r]review under the arbitrary and capricious standard 'is narrow, and we do not substitute our judgment for that of the agency.' " Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (alterations in original omitted) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006)), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). Accordingly, an agency's decision can be set aside only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Id. (emphasis added) (internal quotation marks omitted).

We conduct a de novo review of a district court's grant of summary judgment. Lands Council v. Powell, 395 ...


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