FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEAGUE OF WILDERNESS DEFENDERS-
BLUE MOUNTAINS BIODIVERSITY
PROJECT; CASCADIA WILDLANDS
PROJECT; SIERRA CLUB,
Plaintiffs-Appellees,
v.
JOHN P. ALLEN, in his official
capacity as Forest Supervisor of No. 09-35094
the Deschutes National Forest;
UNITED STATES FOREST SERVICE, an D.C. No.
6:07-cv-06283-HO
administrative agency of the OPINION
United States Department of
Agriculture,
Defendants-Appellants,
and
INTERFOR PACIFIC, INC.; AMERICAN
FOREST RESOURCE COUNCIL,
Defendant-Intervenors.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted
March 3, 2010—Portland, Oregon
Filed August 13, 2010
Before: Richard A. Paez, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
11553
11554 LEAGUE OF WILDERNESS v. ALLEN
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Paez
11556 LEAGUE OF WILDERNESS v. ALLEN
COUNSEL
Daniel Kruse (argued), Cascadia Wildlands Project; Christo-
pher Winter and Ralph Bloemers, Crag Law Center; Attor-
neys for plaintiffs-appellees League of Wilderness Defenders-
Blue Mountains Biodiversity Project, et al.
John C. Cruden, Acting Assistant Attorney General; E. Ann
Peterson, David Glazer, and David C. Shilton (argued), Attor-
neys, U.S. Department of Justice, Environment & Natural
Resources Division; and Jocelyn B. Somers, Office of the
LEAGUE OF WILDERNESS v. ALLEN 11557
General Counsel, U.S. Department of Agriculture (Of Coun-
sel); Attorneys for defendants-appellants John P. Allen, et al.
Julie A. Weis and Scott W. Horngren (argued), Haglund Kel-
ley Horngren Jones & Wilder, LLP, Attorneys for defendant-
intervenors Interfor Pacific, Inc. and American Forest
Resource Council.
OPINION
M. SMITH, Circuit Judge:
The League of Wilderness Defenders-Blue Mountains Bio-
diversity Project, Cascadia Wildlands Project, and the Sierra
Club (collectively, the Conservation Groups, or Groups)
brought suit against John Allen, Forest Supervisor of the Des-
chutes National Forest, and the U.S. Forest Service (collec-
tively, the Forest Service), alleging that the Five Buttes
Project (Project) violates the National Forest Management
Act (NFMA) and the National Environmental Policy Act
(NEPA). The district court agreed, and granted summary
judgment and an injunction in favor of the Conservation
Groups. The Forest Service appeals.
We reverse, vacate the injunction, and remand with direc-
tions to the district court to grant summary judgment in favor
of the Forest Service.
FACTS AND PRIOR PROCEEDINGS
1. The Northwest Forest Plan
The NFMA, 16 U.S.C. §§ 1600-1614, describes the statu-
tory framework and requirements under which the Forest Ser-
vice must manage National Forest System lands. The NFMA
requires the Forest Service to develop a forest plan for each
11558 LEAGUE OF WILDERNESS v. ALLEN
unit of the forest system, id. § 1604(a), and all subsequent
agency actions must be consistent with the governing plan, id.
§ 1604(i). As required by the NFMA, the Forest Service
developed the Northwest Forest Plan (NWFP) to protect and
enhance old-growth forest ecosystems in the Pacific North-
west and Northern California that serve as habitats for numer-
ous species. See Record of Decision for Amendments to
Forest Service and Bureau of Land Management Planning
Documents Within the Range of the Northern Spotted Owl,
Summary, April 13, 1994, available at http://www.reo.gov/
library/reports/newroda.pdf (FS ROD). The endangered
northern spotted owl (spotted owl) is an indicator species for
the Deschutes National Forest, which lies within the NWFP
area. As an indicator species, the spotted owl is a “bellwether
. . . for the other species that have the same special habitat or
population characteristics.” Inland Empire Pub. Lands Coun-
cil v. Schultz, 88 F.3d 754, 762 n.11 (9th Cir. 1996).
2. The Davis Late Successional Reserve
In order to balance environmental and economic needs, the
NWFP designates certain forest areas for logging and reserves
other areas, called late successional reserves (LSRs), for con-
servation. Specifically, the NWFP created the Davis LSR to
“protect and enhance conditions of late-successional and old-
growth forest ecosystems, which serve as habitat for late-
successional and old-growth related species including the
northern spotted owl.” Except as otherwise permitted by law,
commercial logging activities are prohibited in LSRs.
Wildfire and other disturbances occur frequently within the
Davis LSR. Most notably, in 2003, a major fire in the Davis
LSR (the Davis fire) burned approximately 21,000 acres of
forest, including 3,736 acres of spotted owl nesting, roosting,
and foraging (NRF) habitat, approximately 16,000 of which
suffered near complete tree mortality. In all, the Davis fire
burned twenty-four percent of the Davis LSR. In response to
the Davis fire, the Forest Service revised its Davis LSR
LEAGUE OF WILDERNESS v. ALLEN 11559
assessment to reflect the “immediate need” to “reduc[e] the
risk of large-scale loss in a portion of the existing late and
old-structure stands that are susceptible to insect attack and/or
wildfire.” The objective of the Forest Service’s Project is to
reduce that risk, in part, by thinning some of the trees in the
Davis LSR. Objection to this logging component of the Proj-
ect is the gravamen of the Conservation Groups’ complaint.
3. The Five Buttes Project
a. Purpose and Scope
The Forest Service is tasked with developing area-specific
projects to fulfill the NWFP’s goals. The projects generally
describe planned management and treatment activities in the
relevant areas of the National Forest System lands. Treatment
activities, or silviculture, include commercial thinning, regen-
eration cuts, salvage harvesting, and other activities intended
to improve forest health.
The Project was designed in part to address the need identi-
fied in the updated Davis LSR assessment to reduce risks to
the LSR from fire and disease. The Project covers approxi-
mately 160,000 acres (including the 48,900-acre Davis LSR)
and authorizes management treatments, including commercial
logging, across approximately 5,522 acres. It authorizes com-
mercial logging in 618 acres of NRF habitat in the Davis LSR.1
1
The Five Buttes Record of Decision clarifies that the commercial bene-
fit that the sale of harvested timber will bring to the local economy is
merely “attendant” to the primary goal of lessening “the risk that distur-
bance events . . . will lead to large-scale loss of forest.” Five Buttes Record
of Decision, 9, 11, June 2007, available at https://scholarsbank.uoregon.
edu/xmlui/handle/1794/7069/ (Five Buttes ROD) (last visited July 30,
2010). Cf. Siskiyou Reg’l Educ. Project v. Goodman, 219 F. App’x 692,
695 (9th Cir. 2007) (“The fact that there may be some incidental economic
benefit from the recovery project’s sale of burned trees is not contrary to
and does not overshadow the NWFP’s primary goals of forest protection
and restoration.”). If commercial logging was the sole purpose of the proj-
11560 LEAGUE OF WILDERNESS v. ALLEN
The Project’s prescribed treatments differ depending on
whether they are to occur within spotted owl habitat or home
ranges. Within spotted owl home ranges, treatments would be
“less intense or not done at all,” while NRF habitat outside the
home range would be treated depending on vegetation type
and crown fire potential. The Project is structured so that no
spotted owls will be directly harmed. Five Buttes Project
Environmental Impact Statement 391 (EIS) (“There is no
commercial thinning of NRF habitat proposed within an occu-
pied spotted owl home range.”). The stated goal of the Project
is to accelerate the development of large trees and NRF habi-
tat to promote the objectives of the Davis LSR.
b. Environmental Impact Statement and Record of
Decision
As required by NEPA, 42 U.S.C. § 4321 et seq., the Forest
Service prepared a draft Environmental Impact Statement
(EIS) for the Project that describes its expected environmental
impacts. Id. § 4332(2)(C). The Forest Service circulated a
draft EIS, received comments from the public, and eventually
issued a final EIS and a record of decision (ROD). In creating
the EIS, the Forest Service conducted computerized simula-
tions to determine the effects of wildfires on the Project area
under three different treatment scenarios (A, B, and C) and to
evaluate what level of treatment, if any, was needed to protect
and preserve the Davis LSR.
ect, we would agree with Judge Paez that the NWFP had been flouted. See
Seattle Audubon Soc’y v. Evans, 771 F. Supp. 1081, 1096 (W.D. Wash.
1991) (granting an injunction against sale of purely commercial logging
rights in spotted owl habitat because the Forest Service had acted under
the mistaken belief that it did not have to comply with the NFMA at all).
The district court in Seattle Audubon Soc’y distinguished that case as “not
the usual situation in which the court reviews an administrative decision
and, in doing so, gives deference to agency expertise.” Id. at 1096. Here,
on the other hand, the Forest Service’s primary objective is preservation
of the LSR, and it spent approximately three years doing the analysis nec-
essary to comply with the NFMA.
LEAGUE OF WILDERNESS v. ALLEN 11561
Alternative A, or “No Action,” described the expected
effects of fire and disease on the Project area if no additional
thinning or fuels treatments are implemented. In other words,
it modeled the effects of “allow[ing] current processes to con-
tinue, along with associated risks and benefits, in the [Project]
area.”
Alternative B involved the most intensive treatments. It cal-
led for management activities across 5,522 acres and commer-
cial harvesting of around 18.9 million board feet of lumber.
This alternative proposed the greatest amount of commercial
thinning within spotted owl NRF habitat (2,822 acres).
The Forest Service ultimately adopted Alternative C, which
includes some treatments within the Davis LSR. Alternative
C was developed to address landscape-scale fire prevention
and retention of spotted owl habitat. It would “strategically
place fuels treatments on the landscape to coordinate with
past treatments to create and maintain fuel modifications
around identified habitats.” This alternative calls for manage-
ment of 7,798 acres and would harvest around 14.4 million
board feet of lumber. It proposes commercial thinning on
2,023 acres of NRF habitat and would not involve treatment
within any occupied spotted owl territory, but “habit modifi-
cation would occur within unoccupied home ranges and could
affect the ability of new owls to locate and establish a territo-
ry.” Under this alternative, “thinning would generally only
remove trees less than 21 inches in diameter and less than 5
percent of all trees removed would exceed 21 inches in diam-
eter.” Harvesting of trees larger than twenty-one inches
“would only occur to meet basal area objectives or to lessen
disease spread.”
The EIS states that Alternative C would reduce average
burn probability by 40 percent over Alternative A, and that it
“protects owl home ranges the best.” The Forest Service esti-
mates that, if no preventative action is taken, the risk of large-
scale loss of late-structure forest is extremely high, and the
11562 LEAGUE OF WILDERNESS v. ALLEN
risk of a Davis-like problem fire is moderate to high. EIS 84
(“Due to current fuel loadings . . . much of the landscape is
classified as moderate to high risk of experiencing a Problem
Fire similar to the Davis Fire.”); see also EIS 359 (describing
the risk of large-scale loss of large trees and late structure for-
est as “extremely high”).2 On appeal, the Conservation
Groups contest this characterization, stating that “when the
Forest Service considered all relevant factors, including igni-
tion sources and location, it concluded that another large fire
in the Five Buttes Project area was highly unlikely.” They cite
the Ager study, see infra pages 11572-74, for evidence that
“conditions for a large wildfire event are rare within the study
area.”3
In response to public concerns regarding the long-term
effects on spotted owl habitat, the Forest Service stated that
“[b]ased on modeling, the return to NRF conditions will take
2-5 decades depending on the thinning intensity prescribed.
. . . There is no commercial thinning of NRF habitat proposed
2
The dissent misreads these two assessments as “inconsistent.” Dissent
at 11593. The Forest Service’s assessment is more nuanced than the dis-
sent cares to admit: the risk of a large-scale loss of late-structure forest is
extremely high, and the risk of a wholly devastating Davis-like fire is
moderate to high. There is no inconsistency. Regardless, as described
below, the NWFP does not require a specified level of risk for logging to
take place. Our colleague’s lengthy complaint about the syntax of risk is
a distraction: the Forest Service determined, after extensive review and
modeling, that the risk of disturbance was great enough to meet the three
NWFP requirements for stand treatments. The question is whether that
review and modeling met the APA’s extremely deferential standard;
whether that risk is labeled “high” or “extremely high” is ultimately irrele-
vant and, as Judge Paez himself notes, “meaningless.” Dissent at 11592.
3
As discussed more fully below, the Ager study was not conducted to
assess the Project, see infra pages 11572-74, and was published after the
administrative record was closed and the Forest Service had made its deci-
sion. Accordingly, we find the Ager study to be of little use in evaluating
the risk of fire within the Project area, and of no use in determining what
the Forest Service knew about that risk at the time the Forest Service made
its decision.
LEAGUE OF WILDERNESS v. ALLEN 11563
within an occupied spotted owl home range; all other thinning
within these areas would be small-diameter (3 inches or less)
and stands would remain in NRF condition following activi-
ties.”
In response to comments opposing the harvest of larger
trees, the Forest Service stated that the modeling had “deter-
mined that small-diameter thinning alone . . . in most places,
would not change the vegetation and fuels structure enough to
reduce fire risk,” and would not solve the problem of over-
competition among larger trees. Also, limited harvest of larger
trees would only take place outside NRF habitat, so that these
areas would remain in NRF condition.
The EIS also contains a table and description of past, pres-
ent, and reasonably foreseeable future actions in an effort to
analyze the cumulative impact of the Project. Additionally,
cumulative impacts are discussed in detail throughout the EIS
in relation to each affected area, type of vegetation, or animal.
See, e.g., EIS 66-70 (discussing the existing conditions of
vegetation to create baseline); EIS 90 (discussing the cumula-
tive effects of past fires and past and future fuels treatments);
EIS 117 (discussing cumulative impacts on spotted owls).
On June 8, 2007, the Forest Supervisor for the Deschutes
National Forest signed the ROD, which adopted Alternative
C with minor modifications and incorporated the EIS analy-
sis. The ROD incorporates and responds to public concerns,
and outlines the Forest Service’s final decision on the Project.
It also reports the results of the computerized simulations and
explains the Forest Service’s decision to adopt Alternative C.
4. Independent Review and Approval by Outside
Agencies
The NWFP requires the Regional Ecosystem Office (REO)4
4
The REO provides staff and support to the Regional Interagency Exec-
utive Committee, which is “composed of Regional Directors from the var-
11564 LEAGUE OF WILDERNESS v. ALLEN
to review Forest Service projects to ensure consistency with
the NWFP. Here, the REO concluded that Alternative C was
consistent with the NWFP, stating that the “proposed treat-
ment in the LSR meets the objectives for managing LSRs,”
especially because “[t]reatments are placed on the landscape
to alter fuel profiles in strategic locations such that it mini-
mizes the likelihood of loss of valuable late- and old-structure
habitat.” The REO also found that the proposed treatments
“will result in a balanced mix of multi-story stands that are
more . . . conducive to late-successional species, with single
story stands that are more resilient and less susceptible to
loss,” and that “[t]reatments will focus on retaining the late
and old structure components that are both desirable for late-
successional species and adapted to the local fire regimes.”
Although not required to do so, out of an abundance of cau-
tion, the Forest Service also requested formal review of the
Project by the United States Fish and Wildlife Service (FWS).
The FWS conducted an extensive empirical analysis and pub-
lished an eighteen-page opinion stating that “the [Project] is
not likely to jeopardize the continued existence of the spotted
owl” because the NWFP “provides a well distributed set of
reserves which protect suitable habitat across the range of the
spotted owl,” and because “no suitable habitat will be
removed within spotted owl home ranges or core areas.” It
concluded that spotted owl “home ranges will be maintained
through fire risk reduction and stand density treatments” and
that the short-term loss of some spotted owl habitat was justi-
fied by the “long-term benefits to owl habitat across the land-
scape by reducing fuel loads, strategic placement of
treatments that reduce the risk of [fires], and reducing tree
ious land management, regulatory, research, and other relevant agencies
in the Federal government located [in the Northwest]” and “serves as the
senior regional entity to assure the prompt, coordinated, and successful
implementation of the [NWFP] at the regional level.” Regional Intera-
gency Executive Committee, http://www.reo.gov/riec/index.htm#who (last
visited July 28, 2010).
LEAGUE OF WILDERNESS v. ALLEN 11565
stocking densities to promote development of large trees in
the future.”
5. Prior Proceedings
The Conservation Groups brought suit against the Forest
Service, alleging that the Project calls for logging within the
Davis LSR that does not comply with the NWFP. The Con-
servation Groups also claimed that the Forest Service’s EIS
violates NEPA because the EIS does not adequately consider
cumulative effects and does not respond to opposing views
regarding logging and the prevention of catastrophic fires.
Regarding the NFMA challenge, the district court recog-
nized that “[r]isk reduction activities are permitted in LSRs
under limited circumstances.” However, in light of statements
in the ROD recognizing possible negative effects on the LSR
and spotted owls, the court found that “[t]he findings in the
ROD are not strong enough to meet” the NWFP requirement
that commercial thinning projects focused on older stands
must “clearly result in greater assurance of long-term mainte-
nance of habitat.”
With respect to the NEPA claim, the district court found
that the cumulative impact discussion in the EIS was deficient
for lack of detailed, quantitative information about past proj-
ects. League of Wilderness Defenders-Blue Mountains Bio-
diversity Project v. Weldon, No. 07-6238-HO, 2008 WL
4279807, at *4 (D. Or. Sept. 11, 2008) (District Court Order)
(“[T]hese [past] projects have not been quantified with time,
place, and scale data.”). The court also found that the Forest
Service’s use of an “aggregate effects” approach was “in con-
tradiction to current Ninth Circuit law.” Id. at *5. The court
declined to reach the Conservation Groups’ second NEPA
claim regarding disclosure of opposing scientific opinions. Id.
The district court granted summary judgment in favor of
the Conservation Groups, enjoined the Forest Service from
11566 LEAGUE OF WILDERNESS v. ALLEN
any additional logging, and remanded to the Forest Service
for preparation of a new ROD that complies with the NFMA
and NEPA.5 The Forest Service appeals the district court’s
final judgment.
STANDARDS OF REVIEW AND JURISDICTION
Under the Administrative Procedure Act (APA), a review-
ing court can only reverse an agency decision if that decision
was “arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law.” 5 U.S.C. § 706(2)(A). To
address what had been a gradual divergence from this highly
deferential standard by our court, we recently went en banc
and unanimously held that:
Review under the arbitrary and capricious standard
is narrow, and [we do] not substitute [our] judgment
for that of the agency. Rather, we will reverse a deci-
sion as arbitrary and capricious only if the agency
relied on factors Congress did not intend it to con-
sider, 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 differ-
ence in view or the product of agency expertise.
Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)
(en banc) (internal quotation marks and citations omitted)
(alterations in original). This deference is highest when
reviewing an agency’s technical analyses and judgments
involving the evaluation of complex scientific data within the
agency’s technical expertise. Id. at 993.
5
The district court permitted Interfor Pacific and American Forest
Resource Council (collectively, Intervenors) to intervene in the remedial
phase. The court granted Intervenors’ motion to modify and limit the
injunction to permit removal of remaining downed logs and other limited
actions to protect the area. Intervenors are parties in this appeal.
LEAGUE OF WILDERNESS v. ALLEN 11567
For NEPA claims, “[w]e employ a rule of reason [standard]
to determine whether the [EIS] contains a reasonably thor-
ough discussion of the significant aspects of the probable
environmental consequences.” Ctr. for Biological Diversity v.
U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003) (inter-
nal quotation marks omitted) (second alteration in original).
We must ensure “that the agency has taken a ‘hard look’ at
the environmental consequences of the proposed action,” id.
(quoting Churchill County v. Norton, 276 F.3d 1060, 1072
(9th Cir. 2001)), and we must uphold the agency decision as
long as the agency has “considered the relevant factors and
articulated a rational connection between the facts found and
the choice made,” Selkirk Conservation Alliance v. Forsgren,
336 F.3d 944, 953-54 (9th Cir. 2003) (quoting Wash. Crab
Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.
1990)).
We review the district court’s grant of summary judgment
de novo, Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th
Cir. 2003), and its grant of injunctive relief for abuse of dis-
cretion, Rolex Watch, U.S.A., Inc. v. Michel Co., 179 F.3d
704, 708 (9th Cir. 1999). We have jurisdiction under 28
U.S.C. § 1291.
DISCUSSION
I. Compliance with the NFMA and the NWFP
[1] The NWFP requires LSRs to be managed to “protect
and enhance conditions of late-successional and old-growth
forest ecosystems.” NWFP 8. The NWFP has “[g]uidelines to
reduce risks of large-scale disturbance,” which provide that
“[s]ilvicultural activities aimed at reducing risk shall focus on
younger stands in [LSRs],” and “the scale of . . . treatments
should not generally result in degeneration of currently suit-
able owl habitat or other late-successional conditions.” To
avoid degeneration, “logging and other ground-disturbing
activities are generally prohibited” in LSRs. Or. Natural Res.
11568 LEAGUE OF WILDERNESS v. ALLEN
Council Fund v. Brong, 492 F.3d 1120, 1126 (9th Cir. 2007)
(quoting Seattle Audubon Soc’y, 871 F. Supp. at 1304-05).
[2] However, the NWFP permits logging activities in LSRs
if: “(1) the proposed management activities will clearly result
in greater assurance of long-term maintenance of habitat, (2)
the activities are clearly needed to reduce risks, and (3) the
activities will not prevent the [LSRs] from playing an effec-
tive role in the objectives for which they were established.”
Standards and Guidelines for Management of Late-
Successional and Old-Growth Forest Related Species within
the Range of the Northern Spotted Owl C-13 (April 13, 1994)
[hereinafter NWFP S. & G.]. The NWFP acknowledges that
some logging “may reduce the quality of habitat for late-
successional organisms” and that “managers need to seek a
balanced approach that reduces the risk of fire while protect-
ing large areas of fire-prone late-successional forest.” NWFP
S. & G. B-7.
Our highest deference is owed to the Forest Service’s tech-
nical analyses and judgments within its area of expertise,
Lands Council, 537 F.3d at 993; nonetheless, our dissenting
colleague would have us halt the Forest Service’s Project
because he does not like the Forest Service’s approach to
solving the problems addressed. We went en banc to foreclose
precisely this type of second-guessing of the Forest Service.
See id. at 988 (noting that “in recent years, our environmental
jurisprudence has, at times, shifted away from the appropriate
standard of review and could be read to suggest that this court
should” “act as a panel of scientists that instructs the Forest
Service” how to perform its expert duties). The Forest Service
thoroughly considered various reasonable approaches to “pro-
tect and enhance conditions” of the LRSs, NWFP S. & G. at
C-11, and offered a plan that does not “run[ ] counter to the
evidence before the agency or is so implausible that it could
be not ascribed to a difference in view or the product of
agency expertise,” Earth Island Inst. v. U.S. Forest Serv., 442
F.3d 1147, 1156 (9th Cir. 2006), abrogated on other grounds
LEAGUE OF WILDERNESS v. ALLEN 11569
by Winter v. Natural Re. Def. Council, Inc, 129 S. Ct. 365
(2008). Far from conflicting with the protection of LSRs,
carefully controlled logging is a tool expressly authorized by
the NWFP for long-term LSR maintenance.
[3] Our dissenting colleague simply articulates a different
point of view, and an extreme one at that. He begins by
implying that the law provides that under no circumstances
can any old growth timber be cut from an LSR. Dissent at
11586-87. Eventually, however, our colleague reluctantly
admits that is simply not the case. Dissent at 11587-88
(“[T]he NWFP . . . recognize[s] that in some LRSs [including
the Davis LSR], stand management that includes older trees
may be considered.”). Thus, it is clear that the limited logging
of LSR trees of all types and ages is permissible if such log-
ging complies with the three NWFP requirements previously
described. There is no dispute that the Forest Service correctly
identified that standard. The question, then, is not whether
such logging within the LSR is generally permitted, but
whether the Forest Service’s determination that the NWFP
requirements for cutting some trees in an LSR were met was
arbitrary or capricious. We now turn to that analysis.
After the Davis fire, the Forest Service determined that log-
ging was necessary to protect the Davis LSR from future fires
and that the Project met the three NWFP criteria for logging
within LSRs. It noted that in the previous five years, “approx-
imately 16,654 acres of NRF habitat ha[d] been lost mostly
due to wildfires.” The Project, in comparison, calls for thin-
ning only 618 acres of NRF habitat. This would leave 93 per-
cent of existing NRF habitat and 96 percent of spotted owl
critical habitat in the Davis LSR. The Project would reduce
fire risks by 40 percent over Alternative A (the no action
alternative). Wildfire accounted for 75 percent of the
disturbance-caused loss of spotted owl habitat between 1994
and 2003.
After a lengthy and thorough discussion of the alternatives
considered, the Forest Service concluded that:
11570 LEAGUE OF WILDERNESS v. ALLEN
Alternative C best responds to the issue of impacts
to the northern spotted owl because [1] Alternative
C would alter fewer acres of NRF habitat than Alter-
native B; [2] Alternative C would maintain at least
three areas of habitat that are available for immediate
occupancy by dispersing or relocating spotted owls;
and [3] Alternative C provides the best strategy for
risk reduction and long-term maintenance of spotted
owl habitat on the landscape.
According to the Forest Service’s modeling, “in Alternative
C, fires appear to have the least travel times and protect [spot-
ted] owl home ranges the best.”6 After comparing the alterna-
tives, the Forest Service determined that this plan would
“clearly result in greater assurance of long-term maintenance
of habitat,” given the high threat of another catastrophic wild-
fire. In fact, it found that the “[p]roposed activities would not
only reduce risk of large-scale disturbance, but would acceler-
ate the ability of the Davis LSR to play a role for which late-
successional reserves were established.” The Conservation
Groups challenge the Forest Service’s conclusions on three
grounds.
First, the Conservation Groups allege that the Forest Ser-
vice knew that the Project would not clearly result in greater
assurance of long-term maintenance of habitat. There are two
6
The dissent is mistaken that “[t]he three alternatives (A, B, and C) are
not compared with either a decision not to log in the LSR or to thin only
small trees.” Dissent at 11596. Alternative A is the no logging alternative.
See FS ROD at 13 (“Alternative A—No Action[:] The purpose of this
alternative is to allow current processes to continue, along with associated
risks and benefits[.] . . . Under the No Action alternative, . . . [n]o addi-
tional thinning or fuels treatments would be implemented to accomplish
project goals. . . . In Alternative A (no action), no risk reduction activities
would occur; therefore, the potential remains for large-scale loss of north-
ern spotted owl habitat, similar to the scale seen in the Davis Fire of 2003.
These disturbance events are expected to increase the potential to become
more frequent and larger in scope than at present.”). The Forest Service
also considered the option to thin only small trees. See infra p. 11574.
LEAGUE OF WILDERNESS v. ALLEN 11571
related problems with this position. The Conservation Groups
rely heavily on a section of the EIS labeled “Issues” to sug-
gest that the Forest Service knew that the treatments would
have long-term detrimental effects on spotted owl habitat.
This section states: “These activities may reduce the quality,
effectiveness, and the distribution of habitat available to the
northern spotted owl in the planning area for the short- and
long-term as well as directly, indirectly and/or cumulatively.”
However, this excerpt is simply a republication of potential
issues identified by the public and the Forest Service; it is not
a finding made by the Forest Service and is not, as the Con-
servation Groups allege, evidence that the Forest Service
“specifically determined” that such damage would actually
occur.
[4] More to the point, however, there is no dispute that the
Forest Service knew of (and acknowledged) possible detri-
mental effects to the spotted owl. Specifically, it stated that
“[i]n those units proposed for commercial timber harvest the
conversion of existing NRF habitat to a foraging and dispersal
condition is expected to be at least a short-term effect.” The
Forest Service also estimated that “[b]ased on modeling, the
return to NRF conditions will take 2-5 decades depending on
the thinning intensity prescribed.”7 The Conservation Groups’
statement of harms obfuscates the issue, which is not how
long the harms might last but whether the benefits will out-
weigh the costs in the long-term.
[5] Thus, the Forest Service’s alleged admissions about
possible harms actually describe the balancing of risks that
the Forest Service was required to undertake. Such balancing
is entirely appropriate under the NWFP, which states that
treatments in LSRs “may reduce the quality of habitat for late-
7
The Conservation Groups vigorously argued that two to five decades
is an intolerably long time, but ultimately conceded at oral argument that
twenty to fifty years is a comparatively short span of time for forests that
have been in existence for thousands of years.
11572 LEAGUE OF WILDERNESS v. ALLEN
successional organisms,” and that “managers need to seek a
balanced approach that reduces risk of fire while protecting
large areas of fire-prone late-successional forest.” NWFP B-8
(emphasis added). After detailing possible detrimental effects,
the Forest Service made clear that those effects were limited
and relatively short-term and, most importantly, would be out-
weighed by the overall improvement and continued viability
of spotted owl NRF habitat. Indeed, it seems that avoiding
detrimental effects altogether was impossible, because the
Forest Service found that “[a]ll alternatives, including passive
management, [m]ay affect, and are likely to adversely
affect[,] the northern spotted owl.” Five Buttes ROD 13.8
Second, the Conservation Groups argue that the Forest Ser-
vice failed to consider a study published by Forest Service
scientists examining the Forest Service’s forest treatment and
fire models. See Alan A. Ager, et al., Modeling Wildfire Risk
to Northern Spotted Owl (Strix Occidentalis Caurina) Habitat
in Central Oregon, USA, 246 Forest Ecology & Mgmt. 45
(2007) (the Ager study). Unlike past studies, the Ager study
examined the possibility of risk reduction without treatments
within spotted owl territory. Id. at 54.
As an initial matter, the Ager study was published after the
administrative record was closed and the Forest Service had
made its final decision, and well after the Forest Service
developed the Project. Its relevance to what the Forest Service
8
The dissent argues that the Forest Service’s assessment of risk is
“skewed by its focus on one lone variable—reduction in fire risk.” Dissent
at 11594. But that is clearly not accurate. We agree with the dissent that
the absurd result of bulldozing the LSR could be justified by an approach
that values only fire risk reduction. But the Forest Service did not choose
such a “nonsensical” scenario precisely because it was concerned with
long-term forest preservation, not simply reduced fire risk. In fact, the For-
est Service chose Alternative C, which cut more LSR trees than Alterna-
tive A (the no-cutting alternative) but fewer LSR trees than Alternative B.
This choice was made after a careful balancing of the risks and benefits
of the treatments.
LEAGUE OF WILDERNESS v. ALLEN 11573
knew about the viability of risk-reduction exclusively outside
of spotted owl territory is tenuous at best. Second, the Ager
study was intended as a general examination of modeling
capabilities, not as a means of determining an appropriate
course of action for the Project. Ager Study 46 (“In this paper,
we describe a wildfire risk analysis system for quantifying
potential wildfire impacts on spotted owl habitat and measur-
ing the efficacy of landscape fuel treatment on reducing
risk.”). The study estimated that, by logging 20 percent of the
forest area outside spotted owl habitat, the Forest Service
could reduce the average burn probability by 44 percent. Ager
Study 50, Table 1. Alternative C, which includes logging in
some unoccupied spotted owl habitat, would reduce burn
probability by 40 percent. Thus, the Conservation Groups use
the Ager study as a strawman because the study did not deter-
mine if it was possible, let alone desirable, to log 20 percent
of the Project Area. Alternative C, in comparison, treats less
than 6 percent of the Project Area with almost the same
reduction of burn probability.
In fact, the Ager study itself acknowledges that “allowing
treatments within spotted owl habitat in the present study
would have substantially decreased the expected habitat loss
at a given treatment intensity.” Ager Study 55 (emphases
added). Because the Forest Service is tasked with developing
a viable plan that will clearly result in the long-term mainte-
nance of spotted owl habitat, we fail to see how the Ager
study, which deals with general modeling capabilities and
experimental risk-reduction approaches, contradicts the Forest
Service’s practical determination that some logging in the
Davis LSR was clearly necessary to retain long-term forest
and species health.
Finally, the Conservation Groups claim that it was not
clearly necessary to cut larger diameter trees. The Groups
raised this issue with the Forest Service after reviewing the
draft EIS, and the Forest Service actively considered the alter-
native of thinning only small diameter trees by conducting
11574 LEAGUE OF WILDERNESS v. ALLEN
additional modeling. The Forest Service found that “modeling
of fire behavior and vegetation indicated that small diameter
thinning by itself would not considerably change the expected
fire behavior on a landscape scale.” In the ROD, the Forest
Service also explained that “[r]eduction of competition
between trees in overstocked sites through commercial thin-
ning is a hedge against epidemic loss of the larger trees to
insect and disease.” Thus, the Forest Service determined that
cutting some9 larger diameter trees was clearly necessary and
met the NWFP standard.
[6] In sum, the Conservation Groups have not demon-
strated that the Forest Service made a clear error of judgment
in determining that the proposed treatments conformed with
the NWFP, or that the decision to implement Alternative C
was arbitrary or capricious.10 See Lands Council, 537 F.3d at
993 (holding that the proper role for a reviewing court “is
simply to ensure that the Forest Service made no clear error
of judgment that would render its action arbitrary and capri-
cious” (internal quotation marks omitted)).
We agree with the dissent’s sentiment regarding the “im-
portance of a[n] LSR in fulfilling the objectives of the
NWFP.” Dissent at 11582. We differ from the dissent, how-
ever, in our view that no member of the panel is better
equipped than the experts at the Forest Service to determine
how best to fulfill those objectives. That task goes to the very
heart of the Forest Service’s expertise. Indeed, where the For-
est Service has determined that stand treatments are clearly
needed to reduce risks, will clearly result in greater assurance
of long term maintenance of habitat, and will not prevent the
LSR from playing the role for which they were established,
9
A majority of the trees to be cut under the Project are smaller diameter
trees.
10
Importantly, the Conservation Groups do not challenge the modeling
techniques or quantitative results used by the Forest Service, and our inde-
pendent review of those matters gives us no reason to doubt their validity.
LEAGUE OF WILDERNESS v. ALLEN 11575
NWFP S. & G. at C-13, we should be loathe to second guess
their efforts absent some glaring error, oversight, or arbitrary
action, lest we be the ones who upset the LSR’s “ancient and
intricate process . . . because we do not fully understand [its]
inner workings,” Dissent at 11582.
[7] As the Conservation Groups conceded at oral argu-
ment, the district court’s holding that “[t]he findings in the
ROD are not strong enough to meet” the NWFP standard does
not accord the Forest Service proper deference. Because we
find that the Project does not reflect any clear error in judg-
ment by the Forest Service, we reverse the district court and
hold that the Project does not violate the NFMA.
II. Compliance with NEPA
The Conservation Groups also allege that the Forest Ser-
vice violated NEPA because, first, the EIS’s cumulative
impact methodology was deficient and, second, the EIS failed
to adequately deal with opposing views on the impact and
efficacy of thinning larger trees. We disagree.
We note first that NEPA does not impose substantive
requirements—it “exists to ensure a process,” Inland Empire
Pub. Lands Council, 88 F.3d at 758, and “aims to make cer-
tain that ‘the agency . . .will have available, and will carefully
consider, detailed information concerning significant environ-
mental impacts,’ and ‘that the relevant information will be
made available to the [public],’ ” Lands Council, 537 F.3d at
1000 (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349 (1989)).
A. Cumulative Impact
[8] NEPA requires federal agencies proposing “major Fed-
eral action[ ] significantly affecting the quality of the human
environment” to prepare a detailed EIS on the proposed
action, including an analysis of alternatives and a discussion
11576 LEAGUE OF WILDERNESS v. ALLEN
of the significant environmental impacts. 42 U.S.C.
§ 4332(2)(C). An EIS must include a detailed statement on:
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented, (iii)
alternatives to the proposed action, (iv) the relation-
ship between local short-term uses . . . and enhance-
ment of long-term productivity, and (v) any
irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.
Id.
[9] The Council on Environmental Quality (CEQ), a body
created by NEPA, “promulgated regulations to promote com-
pliance with the ‘action-forcing’ requirements of NEPA . . . .
Although initially advisory in nature, the regulations were
made binding on the administrative agencies by Executive
Order No. 11991, 3 C.F.R. § 124.” Churchill County, 276
F.3d at 1072 n.7. The CEQ regulations require an EIS to
assess the “cumulative impact” of a proposed action, defined
as the “impact on the environment which results from the
incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions.” 40 C.F.R.
§ 1508.7. Our role in reviewing an EIS is “to ensure that the
agency has taken a ‘hard look’ at the potential environmental
consequences of the proposed action.” Klamath-Siskiyou
Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993
(9th Cir. 2004) (quoting Churchill County, 276 F.3d at 1072).
In 2005, the CEQ issued a memorandum advising agencies
that they “are not required to list or analyze the effects of indi-
vidual past actions unless such information is necessary to
describe the cumulative effect of all past actions combined.”
James L. Connaughton, Chairman, CEQ, Guidance on the
Consideration of Past Actions on Cumulative Effects Analysis
LEAGUE OF WILDERNESS v. ALLEN 11577
2 (June 24, 2005), available at http://gc.energy.gov/NEPA/
nepa_documents/TOOLS/GUIDANCE/Volume1/4-11.2_
cumulative_effects_june24-05.pdf (CEQ Memorandum) (last
visited July 30, 2010). This interpretation of the cumulative
impact requirement is referred to as the “aggregate effects”
approach. CEQ Memorandum 2. The “CEQ’s interpretation
of NEPA is entitled to substantial deference.” Andrus v.
Sierra Club, 442 U.S. 347, 358 (1979).
[10] The district court determined that the EIS’s cumula-
tive impact analysis was deficient for lack of detailed, quanti-
tative information about past projects. District Court Order,
2008 WL 4279807, at *4 (“[T]he [past] projects have not
been quantified with time, place, and scale data.”). This “time,
place, and scale” language comes from Lands Council v.
Powell, 395 F.3d 1019, 1028 (9th Cir. 2005), which held that
a cumulative effects analysis violated NEPA because it failed
to provide “adequate data of the time, type, place, and scale
of past timber harvests.” See also Brong, 492 F.3d at 1133.
However, soon after the district court issued its decision, and
well after Powell and Brong were decided, we held that the
CEQ’s aggregate effects approach—which does not necessar-
ily require specific time, place, and scale data—is not plainly
erroneous or inconsistent with NEPA. See League of Wilder-
ness Defenders–Blue Mountains Biodiversity Project v. U.S.
Forest Serv., 549 F.3d 1211, 1217-18 (9th Cir. 2008); accord
Ecology Ctr. v. Castaneda, 574 F.3d 652, 666 (9th Cir. 2009)
(confirming that “the Forest Service may aggregate its cumu-
lative effects analysis pursuant to 40 C.F.R. § 1508.7” (inter-
nal quotation marks omitted)).
The Forest Service explicitly relied on the CEQ Memoran-
dum in creating its cumulative impact analysis. Specifically,
the EIS noted that it was permissible to “focus[ ] on the cur-
rent aggregate effects of past actions without delving into the
details of individual past actions.” It then provided a table list-
ing past, present, and foreseeable future projects, followed by
11578 LEAGUE OF WILDERNESS v. ALLEN
a detailed description of the relevant activities and the status
of the projects.
[11] The Conservation Groups assert that, apart from not
meeting the formalistic requirements that were erroneously
imposed by the district court, the table does not contain
enough detailed information about cumulative impact. How-
ever, this ignores the lengthy discussion of cumulative impact
that follows in the EIS. With regard to the spotted owl, the
EIS contains a thorough twenty-three-page discussion of pre-
vious declines, trends, and threats to the spotted owl popula-
tion and habitat. It discusses each of the activities listed in the
table to “assess whether, in combination with the Five Buttes
Project, there would be overlap of time and space.” The EIS
then describes possible overlapping effects from other proj-
ects and natural disasters such as wildfires, mushroom har-
vesting, and planned vegetation projects, and conducts a
similar analysis with regard to soil quality, fires, fuels, and
other species. This analysis fully complies with the require-
ment that the EIS consider aggregate effects of past, present,
and future actions, and the Conservation Groups have not
pointed to any past action or effect that was not considered.
In fact, the inclusion of additional, unnecessary data in the
EIS would run contrary to the purpose of NEPA, as “NEPA
documents must concentrate on the issues that are truly signif-
icant to the action in question, rather than amassing needless
detail.” 40 C.F.R. § 1500.1(b).
The aggregate effects approach is not, as the district court
held, “in contradiction to current Ninth Circuit law.” See
League of Wilderness Defenders, 549 F.3d at 1217-18; Cas-
taneda, 574 F.3d at 666. The EIS’s cumulative impact analy-
sis was consistent with the CEQ guidelines and adequately
considered cumulative effects of past, present, and reasonably
foreseeable future projects in compliance with NEPA.
B. Opposing Views
The Conservation Groups also assert that the Project’s EIS
failed to consider opposing scientific views on the impact of
LEAGUE OF WILDERNESS v. ALLEN 11579
thinning. They claim that the Project record “contains vol-
umes of scientific information that counsel against logging
large trees from older forests and that establish that there is,
at a minimum, uncertainty as to whether the proposed treat-
ment of older forests will have the desired effect of reducing
the risk of natural disturbances.”
[12] An EIS must contain “a reasonably thorough discus-
sion of the significant aspects of the probable environmental
consequences.” Ctr. for Biological Diversity, 349 F.3d at
1166 (internal quotation marks omitted). A proper NEPA
analysis “foster[s] both informed decision-making and
informed public participation.” Churchill County, 276 F.3d at
1071 (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.
1982)). Significantly, the Forest Service is only required to
“acknowledge and respond to comments by outside parties
that raise significant scientific uncertainties and reasonably
support that such uncertainties exist.” Lands Council, 537
F.3d at 1001 (emphasis added).
[13] Here, the Conservation Groups incorrectly claim that
the Forest Service failed to consider the view that priority
should be given to cutting smaller trees. In fact, the Forest
Service subscribes to that view, and the majority of tree
removal is aimed at smaller trees. EIS 410 (“[T]he greatest
density of trees that will be removed is in the smaller size
classes, contributing to the greatest risk reduction.”). The EIS
also explains that cutting small trees alone is not sufficient
because “reduction of the smaller size classes, in general,
does not contribute to reduction of crown bulk density,”
which is important in preventing crown fires. The Forest Ser-
vice also concluded that the removal of larger trees is required
to reduce susceptibility to insect infestation and disease. In the
EIS and ROD, the Forest Service addressed each of the Con-
servation Groups’ suggestions and concerns, even conducting
additional modeling to determine if thinning only smaller
trees might be feasible.
11580 LEAGUE OF WILDERNESS v. ALLEN
The Conservation Groups also describe two additional
opposing views they feel were not taken into consideration.
First, they claim that logging older trees would increase the
risk of fire because of debris. This issue was adequately
addressed and rebutted. The Forest Service stated that debris
generated from the cutting would be removed, and the EIS
established a maintenance schedule (burning every eight-to-
twelve years, hand piling and disposal every fifteen-to-twenty
years) for thinned areas to prevent dangerous build-up of lad-
der fuels. Finally, the Conservation Groups raised concerns
about roads that would be built, but the Forest Service
explained that the roads would be temporary, barricaded when
not in use, and subsoiled to facilitate their return to vegetative
productivity.
[14] We also note that the REO and the FWS conducted
extensive independent reviews of the Project and found it to
be consistent with NEPA. See supra Section 4; cf. Ctr. for
Biological Diversity, 349 F.3d at 1161, 1169 (holding that
Forest Service failed to consider opposing views where the
FWS challenged the Forest Service’s scientific conclusions).
We hold that the Forest Service adequately considered and
responded to alternative views about the Project’s potential
environmental consequences.
***
The Forest Service adequately considered the cumulative
impact of past, present, and foreseeable future actions and
sufficiently considered and responded to opposing scientific
views. Therefore, we hold that the Forest Service complied
with NEPA and took the requisite “hard look” at the environ-
mental impacts of the Project.
CONCLUSION
For the foregoing reasons, we REVERSE, VACATE the
injunction, and REMAND to the district court for entry of
summary judgment in favor of the Forest Service.
LEAGUE OF WILDERNESS v. ALLEN 11581
PAEZ, Circuit Judge, dissenting:
I respectfully dissent.
Today, in direct conflict with the North West Forest Plan’s
(NWFP) Standards and Guidelines, the majority reverses a
grant of summary judgement to the League of Wilderness
Defenders, vacates a limited injunction, and permits logging
of large trees on 618 acres in the protected Davis Late Succes-
sional Reserve (or LSR). The Davis LSR provides habitat for
the threatened northern spotted owl. The U.S. Forest Service
argues that the project is necessary to ensure the long-term
survival of the Davis LSR and to reduce risks from wildfire
and insect infestation. The Forest Service, however, gives no
meaningful (or consistent) assessment of the actual risk to the
Davis LSR of destruction by wildfire or insect infestation.
Therefore, any reduction in the risk of destruction by wildfire
or bug kill is never weighed as required by the NWFP against
the sure cost of cutting inside this ancient forest. Nonetheless,
the majority holds that the Forest Service decision to approve
this project is consistent with the NWFP’s Standards and
Guidelines. Because I agree with the district court that the
Five Buttes Project does not comport with the NWFP and
therefore is in violation of the National Forest Management
Act (NFMA), I would affirm the district court’s summary
judgment ruling on this issue and the related grant of injunc-
tive relief.1
I. Background
As part of the Five Buttes Project, the Forest Service plans
to log 618 acres of large trees in protected old-growth forest,
which provides habitat for the endangered northern spotted
1
I agree, however, with the majority’s conclusion that in approving the
Five Buttes Project, the Forest Service did not violate the National Envi-
ronmental Policy Act. Because I believe the injunction should remain in
force, I respectfully dissent.
11582 LEAGUE OF WILDERNESS v. ALLEN
owl. Old-growth forest is the end result of an ancient and
intricate process. Its ecosystem is rich and complex, and
because we do not fully understand the inner workings of the
relationships between the plants and species that inhabit them,
human harm to old-growth forests remains irreversible. In the
words of John Muir, a preservationist and the man largely
credited for the creation of Yosemite National Park:
It took more than three thousand years to make some
of the trees in these Western woods,—trees that are
still standing in perfect strength and beauty . . . . God
has cared for these trees, saved them from drought,
disease, avalanches, and a thousand straining, level-
ing tempests and floods, but he cannot save them
from fools,—only Uncle Sam can do that.
John Muir, American Forests, Atlantic Monthly, Aug. 1897,
at 145, 157.
A tremendous amount of scientific study, litigation, and
effort on all sides of the issue has brought management of the
Pacific Northwest’s forests to the delicate balance it enjoys
today. In 1994, in a historic step in Uncle Sam’s effort to pre-
serve and protect the viability of ancient forests in the Pacific
Northwest, the Secretaries of the Interior and Agriculture
adopted the NWFP. At the heart of the NWFP are areas of
Pacific Northwest old-growth forest designated as Late Suc-
cessional Reserves. These LSRs serve as refuges for the
threatened northern spotted owl and preserves of the old-
growth ecosystem. Except in extreme cases where logging is
imperative to save a LSR itself, logging in a LSR is forbid-
den.
My disagreement with the majority centers on my under-
standing of the importance of a LSR in fulfilling the objec-
tives of the NWFP. In order to appreciate the gravity of
logging 618 acres of the Davis LSR, in my view, it is neces-
sary to understand the titanic effort that went into creating the
LEAGUE OF WILDERNESS v. ALLEN 11583
NWFP and its protections. Therefore, I begin with a brief dis-
cussion of the background of the NWFP.
The NFMA of 1976 is the primary statute governing the
administration of national forests. See 16 U.S.C. § 1600 et
seq. The NFMA requires the Secretary of Agriculture to
develop a management plan for each unit of the National For-
est System. Id. § 1604(a). Each management plan must bal-
ance economic, recreation, and wildlife interests in a
sustainable way and set standards and guidelines specifying
how the forest shall be managed. Id. § 1604(e).
The forests of the Pacific Northwest are afforded an addi-
tional level of management and protection under the NFMA.
This added protection—the NWFP—is a “comprehensive
response to a long and bitter legal battle over the scope of log-
ging in old-growth forests, home to the endangered spotted
owl.” Or. Natural Res. Council Fund v. Brong, 492 F.3d
1120, 1126 (9th Cir. 2007).
In 1991, the Seattle Audubon Society along with other
environmental groups challenged a proposal by the Forest
Service to log northern spotted owl habitat in national forests
located in Washington, Oregon, and Northern California. See
Seattle Audubon Soc’y v. Evans, 771 F. Supp. 1081, 1083
(W.D. Wash. 1991).2 In that case, the Audubon Society
argued that by permitting logging in northern spotted owl
habitat areas without assuring that a viable population of the
species would be preserved, the Forest Service violated the
NFMA and its regulations. Id. The district court agreed. Id. at
1096. Although the court recognized that “[a]ny reduction in
federal timber sales will have adverse effects on some timber
2
In Seattle Audubon Society v. Evans, the Forest Service argued that it
was not required to comply with the NFMA. The district court soundly
rejected that argument. 771 F. Supp. at 1086. The case is relevant here
solely for the purpose of recounting the events that led up to the adoption
of the NWFP in 1994.
11584 LEAGUE OF WILDERNESS v. ALLEN
industry firms and their employees,” it explained that “the
loss of old growth forest is permanent” and concluded that
“the public interest and balance of equities require the issu-
ance of an injunction” against logging in northern spotted owl
habitat. Id. In granting the injunction, the district court made
findings of fact with respect to old growth forests. See id. at
1088-89. Those findings, apropos to the case at hand, address
the importance and scarcity of old growth forests:
1. The fate of the spotted owl has become a battle-
ground largely because the species is a symbol of the
remaining old growth forest. . . .
2. An old growth forest consists not just of ancient
standing trees, but of fallen trees, snags, massive
decaying vegetation, and numerous resident plant
and animal species, many of which live nowhere
else.
3. A great conifer forest originally covered the
western parts of Washington, Oregon, and Northern
California, from the Cascade and Coast mountains to
the sea. Perhaps ten percent of it remains. The spaces
protected as parks or wilderness areas are not enough
for the survival of the northern spotted owl.
4. The old growth forest sustains a biological com-
munity far richer than those of managed forests or
tree farms. As testified by Dr. William Ferrell, a for-
est ecologist:
The most significant implication from our new
knowledge regarding old-growth forest ecology is
that logging these forests destroys not just trees, but
a complex, distinctive, and unique ecosystem.
5. The remaining old growth stands are valued also
for their effects on climate, air, and migratory fish
runs, and for their beauty.
LEAGUE OF WILDERNESS v. ALLEN 11585
Id. (internal citations omitted).
In response to Seattle Audubon Society v. Evans, over a
dozen other lawsuits, and two other injunctions involving tim-
ber harvesting in spotted owl habitat (i.e. Pacific Northwest
old growth forests), in April 1993, President Clinton con-
vened the Forest Conference in Portland, Oregon. See Record
of Decision for Amendments to Forest Service and Bureau of
Land Management Planning Documents Within the Range of
the Northern Spotted Owl, Summary, April 13, 1994, avail-
able at http: //www.reo.gov/library/reports/newroda.pdf
[hereinafter Record of Decision]. At the Forest Conference,
President Clinton asked:
How can we achieve a balanced and comprehensive
policy that recognizes the importance of the forest
and timber to the economy and jobs in this region,
and how can we preserve our precious old-growth
forests, which are part of our national heritage and
that, once destroyed, can never be replaced?
Id. at 2. Following the Conference, President Clinton estab-
lished the Forest Ecosystem Management Assessment Team
(FEMAT) to make recommendations to the Secretaries of
Agriculture and Interior and to assist in their joint develop-
ment of a forest management plan for the federal forests in the
Pacific Northwest. See Seattle Audubon Soc’y v. Moseley, 80
F.3d 1401, 1404 (9th Cir. 1996) (per curiam). “After review-
ing 48 possible strategies, FEMAT narrowed the field to ten
alternatives and assessed each in a single environmental
impact statement (“EIS”) prepared jointly by the Forest Ser-
vice and Bureau of Land Management (“BLM”).” Id. In April
1994, the Secretaries of the Interior and Agriculture adopted
Alternative 9 and issued the Record of Decision for Amend-
ments to Forest Service and Bureau of Land Management
Planning Documents Within the Range of the Northern Spot-
ted Owl, commonly known as the Northwest Forest Plan (or
NWFP). Record of Decision at 1; Moseley, 80 F.3d at 1404.
11586 LEAGUE OF WILDERNESS v. ALLEN
The NWFP divided the approximately 24.5 million acres of
federal land within the northern spotted owl’s range into sev-
eral hierarchical allocations designated by the type of land use
in each allocation. Brong, 492 F.3d at 1126; Northwest Forest
Plan Standards and Guidelines (NWFP S & Gs) at A-1, A-7,
B-1. Adherence to this hierarchy is the fundamental means by
which the NWFP achieves its goal of protecting and enhanc-
ing habitat for late-successional and old-growth forest-related
species. Brong, 492 F.3d at 1126. Six of the allocations are
“reserve areas in which logging and other ground-disturbing
activities are generally prohibited.” Seattle Audubon Soc’y v.
Lyons, 871 F.Supp. 1291, 1304-05 (W.D. Wash. 1994), aff’d,
Moseley, 80 F.3d 1401. At the top of the hierarchy—the most
protected designation—is that of Late Successional Reserve.
As we noted in Brong, “LSRs lie at the heart of the NFP’s
ecosystem-based conservation strategy for the northern spot-
ted owl and other endangered species.” 492 F.3d at 1126.
The NWFP Standards and Guidelines set forth the purpose
of LSRs and explain the basis for their heightened protection
as follows:
[LSRs] represent a network of existing old-growth
forests that are retained in their natural condition
with natural processes, such as fire, allowed to func-
tion to the extent possible. The reserves are designed
to serve a number of purposes. First, they provide a
distribution, quantity, and quality of old-growth for-
est habitat sufficient to avoid foreclosure of future
management options. Second, they provide habitat
for populations of species that are associated with
late-successional forests. Third, they will help ensure
that late-successional species diversity will be con-
served.
Late-successional forest communities are the result
of a unique interaction of disturbance, regeneration,
LEAGUE OF WILDERNESS v. ALLEN 11587
succession, and climate that can never be recreated
in their entirety through management. . . .
The objective of Late-Successional Reserves is to
protect and enhance conditions of late-successional
and old-growth forest ecosystems, which serve as
habitat for late-successional and old-growth related
species including the northern spotted owl.
NWFP S & Gs at B-4, B-5, C-11.
Pursuant to the NWFP’s goals and objectives, trees within
a LSR are almost chainsaw-untouchable. “[T]he NFP makes
programmed ‘stand management’ activities, such as logging,
impermissible in LSRs.” Brong, 492 F.3d at 1126. “Late-
successional reserves are to be managed to protect and
enhance old-growth forest conditions,” and, therefore, “[n]o
programmed timber harvest is allowed inside the reserves.”
Record of Decision at 8.
The Standards and Guidelines make an exception to the ban
on logging within LSRs to permit limited logging of younger
stands. NWFP S & Gs at C-12. The stated purpose of the
younger-stand exception is to reduce the risk of large-scale
disturbances. Id. “Large-scale disturbances are natural events,
such as fire, that can eliminate spotted owl habitat on hun-
dreds of thousands of acres.” Id. “Risk reduction efforts are
encouraged where they are consistent with the overall recom-
mendations of these guidelines.” Id. at C-13. Specifically, log-
ging activities “aimed at reducing risk shall focus on younger
stands in Late-Successional Reserves,” and “should not gen-
erally result in degeneration of currently suitable owl habitat
or other late successional conditions.” Id. (emphasis added).
Above and beyond the limited exception permitting logging
of younger trees in LSRs to reduce the risk of large-scale nat-
ural disturbances, the NWFP Standards and Guidelines recog-
nize that in some LSRs east of the Oregon and California
11588 LEAGUE OF WILDERNESS v. ALLEN
Cascades, stand management that includes older trees may be
considered. Id. Under the NWFP’s Standards and Guidelines,
however, any old-growth management within a LSR must
comply with three requirements.
While risk-reduction efforts should generally be
focused on young stands, activities in older stands
may be appropriate if: (1) the proposed management
activities will clearly result in greater assurance of
long term maintenance of habitat, (2) the activities
are clearly needed to reduce risks, and (3) the activi-
ties will not prevent the Late-Successional Reserves
from playing an effective role in the objectives for
which they were established.
Id.
In accord with the NFMA, the NWFP Standards and
Guidelines are incorporated into the Deschutes Forest Plan
and are enforceable against the Forest Service with respect to
projects in the Forest. 16 U.S.C. § 1604(c); see also Or. Natu-
ral Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th
Cir. 2007); Brong, 492 F.3d at 1131.
Here, the Five Buttes Project authorizes commercial log-
ging in 2023 acres of old-growth forest habitat and non-
commercial fuels treatments in approximately 8000 acres in
the Deschutes National Forest. Over 600 acres of the project’s
commercial logging operation will take place in the Davis
LSR, currently viable nesting-roosting-foraging (NRF) habitat
of the northern spotted owl. The stated purpose of this project
is two-fold: first, to “lessen the risk that disturbance events
such as insect, disease, and wildfire will lead to large-scale
loss of forest;” and, second, “to contribute to the local and
regional economies by providing timber and other wood fiber
products.” Five Buttes Record of Decision, 7, June 2007,
available at https://scholarsbank.uoregon.edu/xmlui/
bitstream/handle/1794/7069/Five_Buttes_Project_Record_of_
LEAGUE OF WILDERNESS v. ALLEN 11589
Decision.pdf?sequence=1 [hereinafter Five Buttes Record of
Decision].
The Forest Service argues and the majority agrees that the
Five Buttes Project is consistent with the NWFP’s Standards
and Guidelines’s three criteria for logging old-growth trees in
a LSR. I disagree. While we cannot “ ‘substitute [our] judg-
ment for that of the agency,’ ” here, the Forest Service has
“ ‘failed to consider an important aspect of the problem’ ”
and, thus, has acted arbitrarily and capriciously. Lands Coun-
cil v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)
(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 Re. Def. Council, Inc, 129 S. Ct. 365
(2008).
II. Compliance with the NWFP’s Standards and
Guidelines for protected old-growth management
A. Clearly results in greater assurance of long term
maintenance of habitat
The first requirement under the NWFP Standards and
Guidelines is that a proposed stand management project
within a LSR, such as the Five Buttes Project at issue here,
clearly result in greater assurance of long-term maintenance
of habitat. NWFP S & Gs at C-13. Here, although the Forest
Service acknowledges the negative effects associated with
logging 618 acres of protected old-growth forest in northern
spotted owl territory, the Forest Service summarily concluded
that any loss is clearly outweighed by the benefit from
reduced fire risk. There are two problems with this conclu-
sion. First, the Forest Service never explains its assumed risk
of fire; nor, as the majority itself notes, is the Forest Service
consistent as to what the actual risk would be of another
Davis-type fire in the Deschutes National Forest. Second, the
agency focuses almost entirely on one lone variable to mea-
sure stand management success—fire risk reduction. As
11590 LEAGUE OF WILDERNESS v. ALLEN
Plaintiffs argued, “[r]educing risk of habitat loss from wildfire
or other natural disturbances . . . is not an objective in itself.”
Plaintiffs’s Reply Br. at 32. By assessing benefits without
considering the potential costs, the Forest Service “fail[s] to
consider an important aspect of the problem” and impermiss-
ibly skews the comparison of management alternatives in
favor of logging. McNair, 537 F.3d at 987.
The Forest Service recognizes that the Five Buttes Project
will have potential long-term negative effects. The first such
effect identified in the Record of Decision is that:
The sivicultural and fuels treatments [i.e. logging]
proposed would reduce stem density, overall canopy
cover, and may reduce the amount of down wood
that provides prey base habitat. These activities may
reduce the quality, effectiveness, and the distribution
of habitat available to the northern spotted owl in the
planning area for the short- and long-term as well as
directly, indirectly and/or cumulatively. Conse-
quences of active management may have a negative
impact on the northern spotted owl and its ability to
establish and maintain breeding territories, find suf-
ficient prey base habitat, and disperse across the
landscape.
Five Buttes Record of Decision at 12. The Forest Service also
recognizes that following completion of the Five Buttes Proj-
ect and its related logging activities, the Davis LSR will take
up to fifty years to return to previous conditions. Five Buttes
Project Environmental Impact Statement, Appendix D at 391.
Furthermore, during those years, the Davis LSR “will be con-
verted to foraging or dispersal habitat” and will no longer be
suitable for nesting and roosting by the spotted owl.3 Id. The
3
Northern spotted owl habitat is generally assessed for its nesting-
roosting-foraging (NRF) capacity. The proposed project will eliminate the
nesting and roosting capacities for 618 acres of current habitat.
LEAGUE OF WILDERNESS v. ALLEN 11591
majority points out that the Five Buttes Project is structured
so that no spotted owl will be directly harmed. This is small
consolation given that we have long recognized that “the con-
tinued existence of” an endangered or threatened species, like
the spotted owl, requires not just protection from direct harm
but also protection of habitat. 16 U.S.C. § 1536(a)(2); see Gif-
ford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378
F.3d 1059, 1063 (9th Cir. 2004).
The Forest Service justifies these short and long-term
harms because the proposed management plan, according to
a burn probability mapping computer simulation, would
reduce the risk of another large crown fire occurring in the
Davis LSR by 40 percent over the no action alternative.
The Forest Service, however, never explains the basis for
its assigned current risk of fire. The Forest Service character-
izes that risk as moderate to high, but never offers a meaning-
ful rational for that assessment, explanation for how it arrived
at that level of fire risk, or, most importantly, some explana-
tion for what it actually means to conclude that the risk of a
fire is moderate to high. Without any indication of how likely
a fire is when the risk level is moderate to high, it is not possi-
ble, for example, to tell whether another Davis-type fire in the
next decade on the Davis LSR is imminent, likely, or merely
possible. A moderate to high risk may coincide with a 70 per-
cent chance of a large-scale fire in the next decade. Or, a
moderate to high risk may mean there is a mere 10 percent
chance of another large-scale fire in the next decade.
Without such an actual assessment, the Forest Service can-
not weigh the Five Buttes Project’s costs and benefits as
required by the NWFP. The Forest Service selected Alterna-
tive C for its relative risk reduction. A calculation of relative
risk reduction is sufficient to compare the three treatments
against one another and to assess their relative worth as to fire
reduction. Of the three treatments considered, Alternative C
promises the greatest relative reduction in the risk of fire.
11592 LEAGUE OF WILDERNESS v. ALLEN
Therefore, if the Forest Service were only considering fire
reduction, C would be the clear winner. Fire risk reduction,
however, is not the only variable at play. The cost of the pro-
posed project is 20-50 years during which 618 acres of NRF
spotted owl habitat will be downgraded to only foraging habi-
tat. The Forest Service must weigh the benefit of a 40 percent
reduction in the risk of fire against the definite cost of the
Five Buttes Project. Without some indication of what the
actual risk of a fire is, that is, how likely a fire currently is,
the value of any relative reduction in that risk is meaningless,
and the true benefit of Alternative C remains unknown and,
therefore, impossible to weigh against the known cost.4
In sum, the value of a 40 percent reduction in fire risk is
meaningless without some studied consideration and quantifi-
able assessment of the current risk of a fire. Put simply, the
benefit of the Five Buttes Project and its associated 40 percent
reduction in fire risk will be greater if the current risk of a fire
is 70 percent and it will be less if the current risk is 10 per-
cent. That difference matters because the value of that benefit
must still be weighed against the costs of the project. The For-
est Service fails to offer any assessment in concrete terms of
the current fire risk, and, therefore, the Forest Service fails to
weigh the relative costs and benefits of the Five Buttes Project
as required by the NWFP.
4
For example, the Agar Study, cited by the majority, Majority Op. at
11572, notes that the natural fire return interval varies on the Deschutes
National Forest depending on the type of vegetation and elevation. Alan
A. Ager, et al., Modeling Wildfire Risk to Northern Spotted Owl (Strix
Occidentalis Caurina) Habitat in Central Oregon, USA, 246 Forest Ecol-
ogy & Mgmt. 45, 46 (2007). According to that study, old growth ponder-
osa pine forests in the Deschutes have a natural fire return interval of 4-11
years, whereas higher elevation mesic mountain hemlock forests have nat-
ural fire return intervals in the range of 50-200 years. Id. Without ques-
tion, humans have altered the natural fire return intervals, and a large
percentage of today’s wildfires are due to human not natural causes. The
Forest Service, however, makes no attempt to offer a reasoned prediction
or assessment of the current likelihood of fire—natural or human caused—
in the Davis LSR.
LEAGUE OF WILDERNESS v. ALLEN 11593
Despite the fact that the Forest Service never conducted a
meaningful assessment of actual fire risk, the Forest Service
in the final EIS asserts that there is a risk of another large-
scale fire. The Forest Service, however, is inconsistent in its
characterization of that risk. The EIS characterizes the risk of
“a Problem Fire similar to the Davis Fire” as “moderate to
high.” Later, the EIS characterizes the “risk of more large-
scale loss of large trees and late-structure forest [due to fire]”
as “extremely high.”5
The majority accepts these two characterizations as consis-
tent. In my view, there is a difference between a “moderate
to high” and an “extremely high” risk. Furthermore, that dif-
ference matters. If the risk of a fire is only moderate, then it
is unlikely that the Forest Service could justify destroying 618
acres of existing old-growth forests to prevent the merely
moderate threat. This is particularly true since forests east of
the Cascades have a natural fire cycle and are, by the NWFP’s
own Standards and Guidelines, to be “retained in their natural
condition with natural processes, such as fire, allowed to
function to the extent possible.” NWFP S & Gs at B-4.
Even if we assume the worst case scenario and that the risk
of another fire like the Davis Fire is “extremely high,” the
Forest Service has an obligation to explain and weigh that risk
against the proposed alternative—certain destruction. While it
may be generally accepted that wildfire is a common occur-
rence in eastern Oregon, as discussed above, no numerical
measure is given in the record of the frequency of fire in the
Deschutes National Forest. To pick Alternative C because it
is 40 percent less likely to result in a crown fire when there
5
The majority distinguishes between “the risk of a large scale loss of
late-structured forest” and “the risk of a wholly devastating Davis-like
fire.” Majority Op. at 11562 n.2. The Davis fire was a fire that caused the
“large scale loss of late-structured forest.” Any distinction the majority
attempts to make between the risk of “a large scale loss of late-structured
forest” due to a fire and the risk of “a wholly devastating Davis-like fire”
is irrelevant.
11594 LEAGUE OF WILDERNESS v. ALLEN
is a fire without a determination that includes the actual num-
ber of ignitions per year in the forest or some actual evalua-
tion of the risk of fire unjustifiably weighs fire prevention
above-and-beyond all other factors. The NWFP’s Standards
and Guidelines specifically require a “greater assurance” of
long-term maintenance. NWFP S & Gs at C-13. Greater is a
relative term that requires comparison. Without quantifying
actual risk a comparison is not possible. The Forest Service’s
conflicting statements of fire risk, in my view, are arbitrary,
and its failure to comply with the NWFP Standards and
Guidelines’ requirement that it compare costs and benefits is
capricious.
The majority states that Plaintiffs misstate the issue when
they identify the Five Buttes Project’s associated harms. The
majority suggests that the issue is, rather, not how long the
harms will last, but whether the benefits outweigh the costs in
the long-term. The problem is that the Forest Service has not
sufficiently assessed the benefits to determine whether they
outweigh the known costs. Not only is the record lacking any
indication of what the actual reduction in fire risk will be in
concrete terms, there is also no assessment nor consideration
of how long the treatment under Alternative C will continue
to reduce the risk of fire. If, following that treatment, fire risk
conditions are predicted to return to their current levels in 20
years, then the cost of losing protected NRF habitat for 20-50
years would hardly be worth the 20 year benefit. No such
analysis is found in the record, and for this reason as well, the
Forest Service failed to weigh the costs and benefits and
assure greater long-term maintenance of the Davis LSR.
Second, the Forest Service’s assessment of successful man-
agement is skewed by its focus on one lone variable—
reduction in fire risk. Normally we refrain from reviewing an
agency’s scientific methodology and defer to the agency’s
expertise. See McNair, 537 F.3d at 993. Basic flaws in reason-
ing and faulty science warrant no such deference. See Earth
Island Institute v. Hogarth, 494 F.3d 757, 763-64 (9th Cir.
LEAGUE OF WILDERNESS v. ALLEN 11595
2007). The Forest Service for purposes of the Five Buttes
Project not only assumes an unexplained and inconsistent risk
of fire, it also looks at only one variable as its measure of suc-
cessful management. The problem with this sort of science is
that it can lead, and does so here, to a nonsensical result.
Namely, the Forest Service can justify commercially logging
618 acres of spotted owl habitat in the Davis LSR for the
stated purpose of preserving the forest.
To illustrate, consider the following example. Assume that
the Forest Service considered a fourth alternative, Alternative
D, and that Alternative D called for bulldozing all 618 acres
of the affected LSR old growth. Surely clear cutting the forest
—so there are no trees whatsoever—is unlikely to “clearly
result[ ] in greater assurance of long term maintenance of hab-
itat.” Clear cutting, however, would leave no trees, and so the
likelihood that a fire would either start or spread would be
drastically reduced. In fact, there would be zero risk of a
crown fire. Therefore, despite the fact that the area would no
longer be viable for nesting or roosting, of the alternatives
presented and using the Forest Services’ parameters to mea-
sure success—i.e., the greatest success tied to the greatest
reduction in risk of fire—we get the nonsensical result that
bulldozing the Davis LSR would be the optimal management
plan because it would assure maximum reduction in the risk
of a fire.6
6
The majority suggests that because Alternative C involves cutting
fewer Davis LSR trees than Alternative B, this disproves this bulldozing
hypothetical. The majority is mistaken. Alternative C may cut fewer Davis
LSR trees and fewer trees for commercial harvest, but Alternative C still
cuts down the most trees total of the three alternatives. Alternative B
reduces fuels (i.e. cuts trees) on 5,522 acres and Alternative C cuts trees
on 7,798 acres (4,235 acres for “commercial harvest” and 3,563 acres for
reasons other than commercial harvest). See Five Buttes Environmental
Impact Statement (EIS), 49 Table 2-3, June 2007, available at
https://scholarsbank.uoregon.edu/xmlui/bitstream/handle/1794/7061/Five_
Buttes_Project_EIS.pdf?sequence=1=1. Furthermore, the majority misses
the point. The point is that the alternatives were weighed for their relative
11596 LEAGUE OF WILDERNESS v. ALLEN
The Forest Service does suggest and offer for comparison
three alternatives (A, B, and C). All three, however, are con-
sidered primarily for their relative ability to reduce the risk of
fire. These options not only assume a fire, they assume that
the paramount benefit is the reduced risk of fire. Framing the
issue this way ignores all of the other important purposes that
LSRs serve. As noted above, the reserves provide habitat for
populations of species that are associated with late-
successional forests and they help ensure that late-
successional species diversity will be preserved. LSRs also
affect the regional climate, air, and migratory fish runs.
In short, the Forest Service conflates reducing the risk of
fire and “long-term maintenance of habitat.” While it is true
that a fire would destroy the habitat, it is equally true that log-
ging inside a LSR destroys it. These harms are never bal-
anced, and so the “greater” effectiveness of the proposed
action remains an illusive goal.
Finally, the Forest Service fails to fully consider important
alternatives. The three alternatives (A, B, and C) are not com-
pared with either a decision not to log in the Davis LSR or to
thin only small trees. The majority claims that Alternative A
“is the no logging alternative.” Majority Op. at 11570 n.6.
The majority, however, confuses a decision not to log in the
Davis LSR with Alternative A, a decision not to log at all. The
Five Buttes Project covers 160,000 acres and, as the majority
notes, “authorizes management treatments, including com-
mercial logging, across approximately 5,522 acres,” and
“commercial logging in 618 acres of NRF habitat in the Davis
LSR.” Id. at 11559. A decision not to log in the Davis LSR
reduction of fire risk above and beyond all other considerations. As Plain-
tiffs point out in their reply brief, such an approach amounts to “an assess-
ment of the benefits without consideration of the potential costs,” and “[i]f
a showing of risk reduction could satisfy the [NWFP] standard, then the
standard would have no meaning . . . .” Plaintiffs’s Reply Br. at 17.
LEAGUE OF WILDERNESS v. ALLEN 11597
would affect a small fraction of the current Five Buttes Proj-
ect, namely the acres to be logged in the Davis LSR. Alterna-
tive A, on the other hand, would affect all 160,000 acres of
the Five Buttes Project area and would stop commercial log-
ging on the 618 acres in the Davis LSR and the 5,522 acres
outside the LSR. Alternative A, not to log at all, is distinct
from a decision not to log within the Davis LSR.
The Forest Service discounts the option to either (1) not log
in the Davis LSR or (2) to thin only small trees because, the
Forest Services concludes, these two options would not
change fire behavior and would not reduce the spread of fire.
Here, the Forest Service focuses on the likelihood, under
these two conditions, that a fire will turn into a specific type
of fire, namely a crown fire. The Forest Service does not
report, however, what the reduction in the likelihood of fire
would be under either of these scenarios. While a treatment
of ladder fuels may not prevent crown fires, it may substan-
tially reduce fire ignitions, perhaps even below the levels of
Alternative C, while simultaneously permitting the 618 acres
of the Davis LSR to continue to serve as NRF habitat. With-
out an analysis of the reduction in fire risk—the variable the
agency has put above all others—and a consideration of
actual risk, the Forest Service has not fully considered and
compared of the benefits and costs of either not logging in the
Davis LSR or logging only smaller stands.
The majority states that the Forest Service’s decision to cut
large trees was “clearly necessary” based on the Forest Ser-
vice’s assertion that “commercial thinning is a hedge against
epidemic loss of the larger trees to insect and disease.” Aside
from this bald statement, the Forest Service offers no study or
observational findings or even causal explanation to support
its conclusion that fewer large trees decreases the likelihood
of bug infestation or kill.
In sum, the Forest Service’s failure to consider the complex
variables involved in forest management and its fixation on
11598 LEAGUE OF WILDERNESS v. ALLEN
reduced risk of fire results in an unconsidered analysis that
fails to meet the requirements of the NWFP. Because the For-
est Service did not look to quantifiable variables nor make a
reasonable prediction of actual current risk of a fire, it “en-
tirely failed to consider an important aspect of the problem”
and, therefore, acted arbitrarily and capriciously in finding
that the Five Buttes Project would clearly result in greater
assurance of long term maintenance or habitat. McNair, 537
F.3d at 987.
B. Clearly needed to reduce risks
In a related error, the Forest Service fails to establish that
the Five Buttes Project is clearly needed to reduce risks. In the
one page section of the EIS discussing adherence to the three
NWFP’s Standards and Guidelines’s requirements for logging
within LSRs, under the heading “the activities are clearly
needed to reduce risks,” the Forest Service offers the follow-
ing analysis and justification for the project:
The project area also includes the 21,000—acre
Davis Fire of 2003; many thousands of acres of late
successional habitat and large trees were lost in this
fire. Vegetation management activities are needed
because vegetative conditions are such that risk of
more large—scale loss of large trees and late—
structure forest is extremely high. For instance,
existing overstory ponderosa pine and Douglas—fir
can not compete with true fir in overcrowded condi-
tions. The trend in these forests is for the large—tree
component to decline due to overcrowding from and
competition with younger, smaller trees.
Five Buttes Project Environmental Impact Statement 359
(EIS). These four sentences mark the entirety of the EIS’s dis-
cussion of why the Five Buttes Project is “clearly needed to
reduce risks.” The reasoning is unsupported and conclusory.
Without determining the likelihood of another large fire, the
LEAGUE OF WILDERNESS v. ALLEN 11599
Forest Service relies on the relatively recent 2003 Davis Fire
to justify fire risk reduction at any cost:
Although there is no way to predict the severity or
timing of these events, the 21,000-acre Davis Fire of
2003 resulted in the loss of at least 5,090 acres of
[nesting-roosting-foraging habitat]. Since vegetation
conditions similar to those associated with the Davis
Fire still exist on the landscape and would not
change under Alternative A, the risk of another
large-scale fire like the Davis Fire is high.
EIS at 108.
The aftermath of the Davis Fire may have left lingering
concerns that another large fire is inevitable, but the Forest
Service has an obligation under the NWFP’s Standards and
Guidelines to be sure that the proposed management activities
are clearly needed to reduce the risk of fire or insect infesta-
tion. To assume another Davis type fire will occur based on
the 2003 Davis fire alone is unsound. By that reasoning, the
fact that the old-growth trees that the Five Buttes Project
intends to log are over a hundred years old and have not
burned in all that time proves that a large fire will not occur
for another hundred years.
Here, at the very least, the Forest Service should have fac-
tored into its decision-making process (1) the frequency of
major fires in the Deschutes National Forest and (2) the num-
ber of actual ignitions each year. Instead, the Forest Service
relies on a computer simulation that uses 500 ignitions and
locates starts on top of owl habitat.7 Of course the result
7
The Forest Service relied on a computer simulation to predict the
reduction in fire risk of the three alternatives. That computer simulation
itself assumes a fire. And, in looking at fire behavior, the Forest Service
pre-ordains its results by hand selecting ignition points. “The ignition
points were chosen in key locations, such as occupied owl home ranges
. . . to display potential effect[s] on fire behavior.” EIS at 91.
11600 LEAGUE OF WILDERNESS v. ALLEN
seems apocalyptic. But it is not grounded in any actual infor-
mation about fire frequency on the Deschutes or the likeli-
hood of another Davis-type fire.
Finally, the final two sentences of the four sentence expla-
nation for how the Five Buttes Project will “clearly reduce
risk” are entirely non-responsive to the question of risk reduc-
tion and seem to weigh against, not in favor of, harvesting
old-growth trees to reduce fire. That is, if the natural trend is
for the large tree component to decline, why is the agency in
a rush to cut large trees? The natural forest process appears
to result in a reduction of large-tree density and, thereby,
decreases the likelihood of a crown fire all on its own.
Without providing a basis for the level of assumed fire risk,
it is impossible to say that a 40 percent reduction in risk justi-
fies the guaranteed risk of commercial logging: the destruc-
tion of 618 acres of owl habitat for 20-50 years. Logging
within late-successional forests inside a LSR is permitted only
where the proposed logging is not just needed, but rather
clearly needed to reduce risks. The NWFP’s Standards and
Guidelines squarely place the burden on the Forest Service to
establish that an exception to the general prohibition on log-
ging applies. See Brong, 492 F.3d at 1120. The Forest Service
in the present case has not carried that burden.
Despite the majority’s accusation to the contrary, I am well
aware that it is not our role to ”second-guess” the Forest Ser-
vice’s approach. The Forest Service’s approval of the Five
Buttes Project is given considerable deference. As the
Supreme Court has pointed out in another context, however,
“the principle has its limits. Deference does not mean acquies-
cence.” Presley v. Etowah County Comm’n, 502 U.S. 491,
508 (1992). Here, the Forest Service has approved a LSR
treatment project that does not, in my view, comply with the
NWFP’s Standards and Guidelines’s three criteria for logging
old-growth trees in a LSR. The Forest Service’s conclusion to
the contrary suffers from basic flaws in the agency’s
LEAGUE OF WILDERNESS v. ALLEN 11601
reasoning—such as, for example, a failure to (1) weigh the
costs alongside the benefits of the proposed action, (2) calcu-
late the actual value of the estimated benefit of Alternative C,
and (3) consider an alternative treatment plan that would not
include logging inside the Davis LSR—and the agency’s
approval of the Five Buttes Project is therefore “arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.” 5 U.S.C. § 706(2)(A).
C. Will not prevent the Late-Successional Reserves from
playing an effective role in the objectives for which
they were established
Under the NWFP, logging in LSRs in the eastern Cascades
for the purpose of reducing the risk of fire must not prevent
the LSR from “playing an effective role in the objectives for
which they were established.” The NWFP lays out the objec-
tives of LSRs as follows:
[t]he objective of Late-Successional Reserves is to
protect and enhance conditions of late-successional
and old-growth forest ecosystems, which serve as
habitat for late-successional and old-growth related
species including the northern spotted owl. These
reserves are designed to maintain a functional, inter-
acting, late-successional and old-growth forest
ecosystem.
NWFP S & Gs at C-9. In the NWFP’s Record of Decision, the
Forest Service explains that reserves are “designed to main-
tain and enhance late-successional forests as a network of
existing old-growth forest ecosystems . . . .” Record of Deci-
sion at B-4. “Until more experience and knowledge about
active management to produce late-successional ecosystems is
gained, sustaining late-successional ecosystems in the land-
scape will be best accomplished through retention of existing
areas of late-successional forest.” Id. at B-4. And finally, “the
scale of salvage and other treatments should not generally
11602 LEAGUE OF WILDERNESS v. ALLEN
result in degeneration of currently suitable owl habitat or
other late-successional conditions.” Id. at C-13.
Here, the Five Buttes Project fails to adhere to any of these
guiding principles: it neither retains existing areas of late-
successional forest nor does it assure that the Davis LSR will
not be reduced from suitable to unsuitable owl habitat.
In order to serve as habitat for the northern spotted owl, the
Davis LSR must provide nesting, roosting, and foraging. The
Forest Service points to the fact that logged areas would “re-
main suitable for foraging and dispersal habitat” after treat-
ment. This is misleading because habitat for the spotted owl
is not considered “suitable” by definition unless it supports
nesting, roosting, and foraging. As stated in the Five Buttes
Project final EIS, NRF stands within the project “will be con-
verted to foraging or dispersal habitat for several decades,”
and, therefore, render that habitat unviable for the owl. The
impact of the Five Buttes Project is compounded by its wide
reach—more than 600 acres—and by the fact that the habitat
will not be suitable for owls again for as many as fifty years.
The Five Buttes Project is unlike any other where a federal
court in this circuit has upheld a decision by the Forest Ser-
vice to allow logging in a LSR. All other such cases have
involved minimal acreage, have avoided northern spotted owl
habitat all together, or have been in response to a fire and in
a LSR that has already burned and was, therefore, no longer
suitable owl habitat. See, e.g., Siskiyou Reg’l Educ. Project v.
Goodman, 2005 WL 2083011 (D. Or. July 29, 2005) (uphold-
ing logging project in a LSR after a fire where no green trees
would be logged and salvage would not occur “in LSR-
classified lands presently supporting late-successional habi-
tat”), aff’d, Siskiyou Reg’l Educ. Project v. Goodman, 219
Fed.Appx. 692 (9th Cir. 2007); Cascadia Wildlands Project
v. Goodman, 393 F. Supp. 2d 1041, 1049 (D. Or. 2004)
(refusing to enjoin a logging project in a LSR that followed
a fire and was “confined to areas with 100% tree mortality,
which no longer function as owl habitat”).
LEAGUE OF WILDERNESS v. ALLEN 11603
The Forest Service only briefly addresses the long term
degradation of the affected area. See Five Buttes Record of
Decision at 19-20. This discussion, however, highlights the
destruction rather than demonstrating that the Davis LSR will
continue to “play an effective role” in maintaining owl habi-
tat. The Forest Service states that it hopes to manage “60 per-
cent of the remaining unburned area . . . maintaining at least
25 percent in NRF.” By implication, the Forest Service
intends to render 75 percent of the remaining unburned Davis
LSR area unsuitable for NRF.
Furthermore, in the EIS, rather than address the failure to
meet the Davis LSR’s objectives, the Forest Service re-
characterizes the objectives of the Davis LSR, stating that:
“[a] main goal within the LSR is to minimize the likelihood
of an active crown fire event.” The Forest Service entirely
fails to look at the long-term degradation of habitat that is
expected to result from the proposed logging. Reducing risk
of habitat loss from wildfire or other natural disturbances may
be one strategy to achieve the main objective—to protect and
enhance the conditions of LSR ecosystems—but it is not an
objective in itself. Here, the Forest Service uses risk-reduction
as a justification for habitat degradation rather than a strategy
to prevent habitat degradation.
By unnecessarily causing long-term degradation and modi-
fication of over 600 acres of existing suitable habitat for the
northern spotted owl within the Davis LSR, the Five Buttes
Project will “prevent the Late-Successional Reserve[ ] from
playing an effective role in the objectives for which [it was]
established.” Furthermore, the planned Five Buttes Project
will “result in degeneration of currently suitable owl habitat”
in violation of the NWFP’s Standards and Guidelines. NWFP
S & Gs at C-13. The Five Butts Project is plainly inconsistent
with the NWFP’s directives regarding LSRs. As a result, the
Forest Service’s approval of the plan to log 618 acres of old-
growth forest in the Davis LSR violates the NFMA.
11604 LEAGUE OF WILDERNESS v. ALLEN
III. Conclusion
“[The Northwest Forest Plan] is not an ordinary govern-
ment land management strategy; instead, the history and care
in its creation bespeak the massive effort that led to its birth.”
Gifford Pinchot Task Force, 378 F.3d at 1068. The NWFP
amended the forest plans for nineteen national forests, includ-
ing the Deschutes National Forest, and it is “the culmination
of an unprecedented effort in public land management.”
Record of Decision at Summary.
One of the primary accomplishments of the NWFP was the
creation of a system of old-growth reserves, LSRs. The
NWFP allows some limited treatment of these old and irre-
placeable stands, but these activities are subject to three addi-
tional requirements: they must clearly result in greater
assurance of long-term maintenance of habitat; they must be
clearly needed to reduce risks; and they must not prevent a
LSR from playing an effective role in the objectives for which
it was established. The Five Buttes Project violates each of
these three Standards and Guidelines and is contrary to the
clear language of the NWFP.
I would affirm the district court’s grant of summary judg-
ment in favor of Plaintiffs on their NFMA claim and its nar-
rowly tailored injunction. I, therefore, respectfully dissent.