Utah Environmental Congress v. Bosworth

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 24, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UTAH ENVIRONMENTAL
CONGRESS,

Plaintiff-Appellant,
v. No. 03-4251
DALE BOSWORTH, as Chief of the
Forest Service; UNITED STATES
FOREST SERVICE; MARY
ERICKSON, as Supervisor of the
Fishlake National Forest; MARVIN
TURNER, Loa District Ranger,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 02:02-CV-00321 PGC)

Stephen H. Novack, (Ray Vaughan, Wildlaw, Montgomery, Alabama, with him on
the briefs), Wildlaw Southern Appalachian Office, Asheville, North Carolina, for
Plaintiff-Appellant.

Mark K. Haag (Thomas Sansonetti, Assistant Attorney General; and David C.
Shilton and Myesha K. Braden, Environment & Natural Resources Division,
Department of Justice, Washington, D.C., with him on the brief), Environment &
Natural Resources Division, Department of Justice, Washington, D.C., for
Defendants-Appellees.
Before EBEL and HENRY, Circuit Judges, and WHITE, District Judge. *

HENRY, Circuit Judge.

ORDER ON PETITION FOR REHEARING

This matter is before the court on Appellees’ petition for rehearing. The

panel has voted to grant a limited rehearing to modify some of the language in our

panel opinion. The court’s opinion filed on August 19, 2005 is withdrawn, and an

amended opinion is attached to this order.

OPINION

In October 2001, the Forest Service approved a timber-harvesting project in

Utah’s Fishlake National Forest. Utah Environmental Congress (“UEC”), an

environmental organization, filed a petition for review, and the district court

dismissed the petition and affirmed the project’s authorization. UEC alleges on

appeal that the Forest Service (1) did not properly select and monitor the

Management Indicator Species (“MIS”) that it used to determine the effects of

management activities on other species, and (2) did not consider a reasonable

*
The Honorable Ronald A. White, United States District Judge for the
Eastern District of Oklahoma, sitting by designation.

2
range of alternatives to the project. Exercising jurisdiction under 28 U.S.C. §

1291, we reverse the judgment below and remand to the district court with

instructions to vacate the Forest Service’s approval of the project. After the

district court rendered its decision, our court decided Utah Environmental

Congress v. Bosworth, 372 F.3d 1219 (10th Cir. 2004) (“UEC I”). This

intervening circuit precedent required the agency to collect quantitative

population data on actual MIS populations before authorizing a project under the

1982 planning regulations, which the Forest Service used here.

I. BACKGROUND

The Thousand Lakes Community Forestry Initiative Project (“the Project”)

is located in Wayne County, Utah, on the 1.5-million-acre Fishlake National

Forest. A collaboration of timber representatives, environmentalists, politicians,

and federal land managers undertook the Project (1) “to reduce the overall stand

densities of the [spruce and aspen] stands that are at the highest risk of [spruce

beetle] infestation, while maintaining a forested appearance” and (2) “to provide

forest products to resource dependent industries in an economically feasible

manner.” Administrative Record vol. I, at (“1 AR”) 000044. The Project

encompasses timber harvests on 219 acres, with approximately one-half mile of

road re-construction and post-treatment activities to minimize erosion and the use

3
of authorized vehicles. No new road building is involved. The Project would use

salvage (removal of unhealthy trees), sanitation (removal of dead trees in excess

of resource needs for habitat), and commercial thinning (removal to reduce

overall stand densities).

The Forest Service manages the Fishlake National Forest at two different

levels. “At the first level, the Forest Service develops the Forest Plan, [which is]

a broad, programmatic document, accompanied by an Environmental Impact

Statement and public review process conducted in accordance with the National

Environmental Policy Act [‘NEPA’].” Colorado Envtl. Coal. v. Dombeck, 185

F.3d 1162, 1167-68 (10th Cir. 1999); 16 U.S.C. § 1604. To this end, the Forest

Service adopted the Fishlake National Forest Plan (the “Forest Plan”) in 1986 to

maintain the Fishlake National Forest. As part of its substantive responsibilities,

the Forest Plan must “provide for diversity of plant and animal communities

based on the suitability and capability of the specific land area in order to meet

overall multiple-use objectives.” 16 U.S.C. § 1604(g)(3)(B).

At the second level, “the Forest Service implements the Forest Plan by

approving (with or without modification) or disapproving particular projects,”

such as the Thousand Lakes Community Forestry Initiative Project. Dombeck,

185 F.3d at 1168. Individual projects are also subject to NEPA and must comply

with the Forest Plan and the National Forest Management Act (“NFMA”). 16

4
U.S.C. § 1604(i).

In November 1999, the Forest Service began preparing an Environmental

Assessment (“EA”) of the Project. The Forest Service examined the Project’s

potential impact to wildlife, soils, vegetation, and other resources, and it prepared

a Biological Assessment and Biological Evaluation of impacts to sensitive plant

and animal species. In May 2001, the Forest Service published its EA for the

Project, and in October 2001, the district ranger issued a finding of no significant

impact (“FONSI”) and a Decision Notice approving the Project. UEC brought an

administrative appeal, and the Forest Service issued a Final Decision in February

2002 that affirmed the district ranger. 1 AR 000032.

UEC challenged the Forest Service’s approval of the Project in federal

district court. In September 2003, the district court dismissed UEC’s petition for

review and affirmed the agency’s Decision Notice and FONSI. UEC now appeals

the Forest Service’s approval of the Project on two of the three grounds rejected

by the district court. UEC alleges that the Forest Service (1) did not properly

select and monitor certain Management Indicator Species and (2) did not consider

a reasonable range of management alternatives. 1

1
UEC also argued, before the district court and in its appellate briefs, that
the Forest Service improperly revalidated (i.e., redrew) boundaries for inventoried
roadless areas. At oral argument, UEC waived this third argument. While we
understand that litigants often refine legal strategies up to oral argument, we
(continued...)

5
 II. STANDARD OF REVIEW

We take “an independent review of the agency’s action” and are not bound

by the district court’s factual findings or legal conclusions. Olenhouse v.

Commodity Credit Corp., 42 F.3d 1560, 1569 n.16, 1577 n.27 (10th Cir. 1994).

We review the Forest Service’s decision under the Administrative Procedures Act

and set aside agency action if it is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We give

deference to an agency’s interpretation, “especially when that interpretation

involves questions of scientific methodology.” Dombeck, 185 F.3d at 1170. In

addition, “[t]he agency, not the reviewing court, is entrusted with the

responsibility of considering the various modes of scientific evaluation and theory

and choosing the one appropriate for the given circumstances.” City of Bridgeton

v. FAA, 212 F.3d 448, 459 (8th Cir. 2000) (quotation marks and internal citation

omitted), cited with approval in Custer County Action Ass’n v. Garvey, 256 F.3d

1024, 1036 (10th Cir. 2001). “[T]he court is not empowered to substitute its

judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe,

1
(...continued)
nonetheless encourage prompt notice to the court about waived claims. UEC
could have filed a motion to withdraw the revalidation issue, pursuant to F ED . R.
A PP . P. 27. Such notice assists the court by obviating our need to prepare issues
later found to be abandoned, and allows us to utilize limited judicial resources
effectively.

6
401 U.S. 402, 416 (1971).

III. APPLICABLE FOREST SERVICE REGULATIONS

Before we proceed to UEC’s separate challenges, we briefly describe the

relevant regulations at issue. Forest Service regulations implement NFMA’s

requirement that the government address how forest plans provide for plant and

animal diversity. Rules enacted in 1982 required the Forest Service to identify

and select MIS “to estimate the effects of each [management] alternative on fish

and wildlife populations.” 36 C.F.R. § 219.19(a)(1) (1999). The Department of

Agriculture (“Department”) substantially amended the 1982 regulations in

November 2000, see 65 Fed. Reg. 67,568 (Nov. 9, 2000), and followed those

somewhat confusing amendments with a bewildering series of transitional rules.

First, the 2000 regulations included a transition provision that initially delayed

the application of its substantive provisions to project decisions until November

2003. See 36 C.F.R. § 219.35(d) (2001). The Department subsequently proposed

revisions to the 2000 regulations and further extended the transition period for

applying the substantive provisions to project decisions. See id. (2004); 68 Fed.

Reg. 53,294 (Sept. 10, 2003); 67 Fed. Reg. 72,770 (Dec. 6, 2002). New rules

replaced the 2000 planning regulations in January 2005. 70 Fed. Reg. 1023 (Jan.

5, 2005). The 2005 rules include yet another transition provision with directions

7
for the application of MIS. 36 C.F.R. § 219.14(f) (2005); 70 Fed. Reg. at 1048,

1052; see generally Silverton Snowmobile Club v. United States Forest Serv., 433

F. 3d 772, 785 n.4 (10th Cir. 2006) (describing how “[t]he regulations which

implement the NFMA have been frequently amended”).

Under the transition provisions, from November 9, 2000, until the

promulgation of final planning regulations, the Forest Service was directed to

“consider the best available science in implementing” a forest plan. 36 C.F.R. §

219.35(a), (d) (2004). When the Forest Service issued its Decision Notice in

October 2001 and filed its appellate brief in this court in May 2004, it did not

contend that the transition provisions of the 2000 regulations applied to the

Project. The Forest Service only considered authorization of the Project under the

“1982 rule,” those regulations in place prior to the 2000 amendments. See 36

C.F.R. § 219.19 (1999).

In a Rule 28(j) letter filed one week before oral argument, the Forest

Service informed us of the Department’s publication of an interpretative rule in

September 2004. 69 Fed. Reg. 58,055 (Sept. 29, 2004); see also F ED . R. A PP . P.

28(j). The interpretative rule explained that the 2000 regulations rendered the

1982 rule inoperative for project-specific decisions made after November 9, 2000.

The interpretative rule stated that, during the transition period between November

2000 and promulgation of a final rule, the Forest Service should use the “best

8
available science” under § 219.35(a) for project decisions. 69 Fed. Reg. at

58,056.

Significantly, and thankfully, the Forest Service now concedes on appeal

that it has waived any argument that the 2000 regulations apply. See Aples’ Pet.

for Panel Reh’g at 6-7 (“Because we did not raise the issue of the 2000 rule until

we filed our 28(j) letter, this Court may reasonably conclude that the government

has in this case waived any argument that the 2000 rule applies.”). We appreciate

the candor of the agency’s concession in light of its oral arguments and

briefing–both on appeal and in the district–under the 1982 rule. Indeed, as the

Second Circuit has noted, “the standards of the 1982 Rules and the 2000

Transitional Rule are–at least–distinct.” Forest Watch v. United States Forest

Serv., 410 F.3d 115, 117 (2d Cir. 2005). Like the Second Circuit’s case, “nothing

in the record explains what ‘best available science’ entails.” Id.; see also id.

(“declin[ing] to decide whether work done by the agency under one regime

satisfies the demands of another”).

Thus, we review the Forest Service’s obligations under the 1982 rule, and

Code of Federal Regulations citations used in this opinion (unless otherwise

noted) refer to the 1999 edition, which is the last published edition before the

2000 amendments.

9
 IV. ANALYSIS

UEC claims that the Forest Service acted arbitrarily, capriciously, and

contrary to law by (1) failing to select and monitor Management Indicator Species

appropriately and (2) failing to consider a reasonable range of project

alternatives.

A. Selection and monitoring of MIS under 36 C.F.R. § 219.19

To assess habitat viability, the Forest Service estimates a project’s effect on

certain representative species.

Fish and wildlife habitat shall be managed to maintain viable
populations of existing native and desired non-native vertebrate species
in the planning area.

....

(a)(1) In order to estimate the effects of each [management] alternative
on fish and wildlife populations, certain vertebrate and/or invertebrate
species present in the area shall be identified and selected as
management indicator species and the reasons for their selection will be
stated. Those species shall be selected because their population
changes are believed to indicate the effects of management activities.

36 C.F.R. § 219.19. “[A]rea” in subsection (a)(1) refers to a “planning area,” a

term mentioned several times in § 219.19. See id. § 219.3 (defining “planning

area” as “[t]he area of the National Forest System covered by a regional guide or

forest plan”).

MIS are analogous to the famed canaries once used to monitor air in coal

mines. They are a “bellwether” “for other species that have the same special

10
habitat needs or population characteristics,” Inland Empire Pub. Lands Council v.

Schultz, 88 F.3d 754, 762 n.11 (9th Cir. 1993), and serve as “a proxy for

determining the effects of management activities on other species.” Forest

Guardians v. United States Forest Serv., 180 F. Supp. 2d 1273, 1281 (D.N.M.

2001). The regulations require that “[p]opulation trends of the management

indicator species will be monitored and relationships to habitat changes

determined.” 36 C.F.R. § 219.19(a)(6). In addition, “[i]nventories shall include

quantitative data making possible the evaluation of diversity in terms of its prior

and present conditions.” Id. § 219.26.

To meet the diversity provisions under § 219.19, the Forest Plan designates

two categories of MIS: “ecological indicator” and “high interest” species. The

ecological indicators include five groups of species and one individual species:

the sage-nester guild, riparian guild, cavity-nester guild, resident trout, macro-

invertebrates, and northern goshawk. A “guild” is a group of species that exploits

the same class of environmental resources in the same way. The Forest Service

selects ecological indicator species according to five criteria: (1) “affinity for the

vegetation type,” (2) “life cycle keyed to a vegetation type,” (3) “[s]ensitivity to

habitat change,” (4) “[r]elative ease of monitoring, i.e., easily recognized and

adequate numbers,” and (5) being “[s]omewhat representative of other species

which use the same vegetation type.” 1 AR 000157 (Forest Plan’s Final

11
Environmental Impact Statement (“FEIS”) at III-34).

“High interest” MIS include elk, mule deer, Bonneville cutthroat trout, and

Rydberg’s milkvetch. The Forest Service chose “high interest” MIS “because of

their threatened, endangered, or sensitive status, social or economic importance,

or high public interest.” Id. at III-36. UEC does not challenge, and we need not

examine, the Forest Service’s selection of “ecological indicator” and “high

interest” MIS guilds for the Project. Rather, UEC challenges the chosen

representatives within these MIS guilds.

Our recent decision in UEC I addressed the Forest Service’s MIS

obligations with regard to the Monroe Project, another project in the Fishlake

National Forest, and that decision resolves two important issues here. First, UEC

I makes clear that “the regulations anticipate application of § 219.19 to project

level as well as plan level management actions.” 372 F.3d at 1225. As we noted

in UEC I, this approach is consistent with other circuits. See Sierra Club v.

Martin, 168 F.3d 1, 6 (11th Cir. 1999) (recognizing “that the regulations refer to

the formulation of Forest Plans rather than to specific projects proposed under

already enacted Forest Plan” but that “the planning process does not end with the

Forest Service’s approval” and “continue[s] throughout the Plan’s existence”);

Inland Empire Pub. Lands Council, 88 F.3d at 760 n.6 (“Because any district

contained within the boundaries of a forest having a plan would be an ‘area . . .

12
covered by a . . . forest plan,’ it would . . . also be a planning area governed by

Regulation 219.19.”) (quoting 36 C.F.R. § 219.3). Thus, the Forest Service’s

obligations under § 219.19 apply to the Project.

Second, we decided in UEC I that the Forest Service must use “actual,

quantitative population data” to meet MIS monitoring obligations under § 219.19.

372 F.3d at 1226. “[T]o effectuate its MIS monitoring duties under the language

of its regulations, the Forest Service must gather quantitative data on actual MIS

populations that allows it to estimate the effects of any forest management

activities on the animal population trends, and determine the relationship between

management activities and population trend changes.” Id. at 1227; see also

Martin, 168 F.3d at 6 (examining § 219.19(a)(6) and concluding that “[i]t is

implicit that population data must be collected before it can be monitored and its

relationship determined”). Prior to UEC I, the Forest Service contended that it

need not conduct “head-counts” of MIS in a planning area because it had

discretion to assess a project’s effects on MIS using habitat data, population data,

or both. See generally Andrew Orlemann, Note, Do the Proposed Forest Service

Regulations Protect Biodiversity? An Analysis of the Continuing Viability of

“Habitat Viability Analysis,” 20 J. L AND R ESOURCES & E NVTL . L. 357, 360-374

(2000) (describing the split among federal circuits as to the adequacy of habitat

viability analysis under § 219.19).

13
 With these requirements in mind, we examine UEC’s challenges to the

Forest Service’s monitoring of the (1) sage-nester guild, (2) riparian guild, (3)

cavity-nester guild, (4) northern goshawk, and (5) Mexican spotted owl.

1. Sage-nester guild: sage grouse as MIS

UEC maintains that the Forest Service (1) did not determine the presence of

sage nesters in the Project area and (2) did not explain why it chose the sage

grouse as the guild’s sole representative. The Forest Service concluded, based on

a July 2000 field survey and unpublished radio telemetry data, that sage grouse

are not present in the Project area. 1 AR 000079; 2 AR 000773, 001247. It also

used aerial photos and vegetation mapping to conclude that the Project includes

no sagebrush habitat. The EA noted that the Project’s road reconstruction would

occur along an existing road through “potential sage nesting habitat.” 1 AR

000079. However, “because sage nesters have not been documented along the

road and the additional disturbance would involve only .01% or less of total

available sagebrush habitat on Thousand Lakes Mountain, [effects] to sage

nesting species [are] expected to be minimal as a result of implementing the

Proposed Action.” Id.

We first look to our treatment of the Forest Service’s sage grouse

monitoring in UEC I, as the same Forest Plan and regulations governed the

agency’s responsibilities for that project. In UEC I, the Forest Service

14
acknowledged that sage grouse were “potentially present” and referenced

“unconfirmed sightings” in the Monroe project area. 372 F.3d at 1229. We also

recognized “that the MIS selected for the plan were chosen, in part, due to

relative ease of monitoring.” Id. (internal quotation marks and brackets omitted).

While “not all MIS designated in the Fishlake Forest Plan are necessarily present

within [a project] area,” the Forest Service must show “good faith efforts to

confirm the absence or presence of an MIS species” under § 219.19. Id. at 1229-

30 (internal citation and quotation marks omitted). In UEC I, “the record

reflect[ed] no attempt by the Forest Service to confirm the presence” of the sage

grouse, and we therefore concluded that the agency did not comply with § 219.19.

Id. at 1230.

The Thousand Lakes Project on this appeal is governed by the same Forest

Plan as in UEC I, and the Forest Service similarly selected the sage grouse in part

due to its “[r]elative ease of monitoring.” 1 AR 000157 (FEIS at III-34). The

agency provides no evidence of any sage grouse population or even a single

sighting in the Project area. Importantly, however, UEC does not contest the

Forest Service’s finding of virtually no sagebrush habitat within the Project area.

Based on the Forest Service’s field survey, aerial photos, and vegetation mapping,

we conclude that the agency has demonstrated good-faith efforts to confirm the

absence of the MIS guild representative from the Project area. Accordingly, the

15
Forest Service need not collect population data of the sage-nester guild for this

project. See UEC I, 372 F.3d at 1230 (“[W]e do not require the Forest Service to

attempt to track a species where no population exists.”) (internal quotation marks

omitted).

2. Riparian guild: Southwestern willow flycatcher as MIS

Similar to its contentions regarding the sage grouse are UEC’s arguments

that the Forest Service (1) has not collected quantitative population data on the

Southwestern willow flycatcher and (2) has not adequately explained why it chose

this MIS representative for the riparian guild. The Southwestern willow

flycatcher is an endangered species. Under the Forest Plan, the agency is

responsible for annual visual reconnaissance and reporting for endangered

species. See 1 AR 000157 (Forest Plan at V-6).

According to the EA, willow flycatchers were observed in the 1990s in

thick willow stands eight air miles northwest of the Project area. 1 AR 000069;

see also 2 AR 000768 (Project’s Biologist Report). However, the EA concluded

that no potential habitat occurs in the Project area because, “[b]ased on field

surveys, no willow flycatchers had been documented on the Thousand Lakes

Mountain.” 1 AR 000069. The Forest Service references formal flycatcher

surveys in the Fishlake National Forest, including areas of the Loa Ranger

District, conducted since 1994. 2 AR 001336. However, we cannot assess these

16
field surveys because they are not in the administrative record before us. See

UEC I, 372 F.3d at 1227 (instructing courts to examine the Forest Service’s

approval of a project “based on the administrative record”).

Given the absence of quantitative data in the record and the agency’s

failure to satisfy the Forest Plan’s monitoring requirements for an endangered

species, we come to the same conclusion as we did in UEC I for this species:

“While annual monitoring of the southwestern willow flycatcher’s presence,

abundance, and nesting is sufficient to meet the Forest Service’s obligations

under the Fishlake Forest Plan and § 219.19, because we find no such data in the

record, we are unable to conclude that the Forest Service fulfilled its obligations

under § 219.19 in monitoring this MIS.” Id. at 1229.

3. Cavity-nester guild: three-toed woodpecker and flamulated owl as

MIS

The Forest Service selected two species, the three-toed woodpecker and the

flamulated owl, to represent the cavity-nester guild. The three-toed woodpecker

lives in spruce and aspen habitat and relies on spruce beetles as a primary food

source; its population fluctuates with prey abundance. 1 AR 000073; 2 AR

001250. The flamulated owl also feeds on spruce beetles. The Project’s primary

objective is to reduce “the overall stand densities of the stands that are at the

highest risk of infestation” of spruce bark beetles. 1 AR 000044.

17
 Visual and auditory surveys detected woodpeckers on Thousand Lakes

Mountain during 2000, but nesting pairs were not located. Id. at 000151. The EA

concluded that “the proposed treatment acres represent approximately 2% of the

total available spruce/aspen habitat for the three-toed woodpecker on Thousand

Lakes Mountain. Direct and indirect effects to the three-toed woodpecker are

therefore not expected to cause a loss of population viability . . . .” Id. at 000075.

We also acknowledge the Forest Service’s pronouncement of “stable trends” in

the populations of eighteen cavity nesters, including the three-toed woodpecker,

based on a breeding bird survey in Wayne County. 2 AR 001348. However, we

do not find sufficient quantitative data on the three-toed woodpecker in the

administrative record to determine population trends or to forecast the Project’s

effects on its population viability. Accordingly, the Forest Service has not met its

MIS monitoring responsibilities under § 219.19 with respect to the three-toed

woodpecker.

As to flamulated owls, the Forest Service cites a 1991 study and 1992 study

that detected the owls in mixed conifers one mile west and 2.5 miles east of the

Project area. 1 AR 000075. The EA recognized that the Project’s proposed

salvage harvest would remove potential nesting habitat for the owl, and concedes

“[w]hether these owls would tolerate selective logging during the breeding season

near a nest site is unknown.” Id. at 000076. The Forest Service contends that the

18
Project’s impact on the owl will be minimal because (1) the Project area’s

vegetation is not the owl’s preferred habitat and (2) the Project area constitutes

only a small percentage of available habitat on Thousand Lakes Mountain.

However, in light of the paucity and staleness of quantitative data on the

flamulated owl in the record, the Forest Service has not satisfied its obligations

under § 219.19 for this species.

4. Northern goshawk as MIS

UEC next maintains that the Forest Service did not satisfy its MIS

monitoring for the northern goshawk. The Forest Service collected monitoring

data through (1) four aerial surveys of the Project area in 2000, (2) ground

surveys in 2000 and 2001, and (3) additional surveys and a statewide habitat

assessment conducted between 1998 and 2000. 2 AR 001234-45, 001279,

001364-65, 001369. UEC I relied in part on the same population data when

concluding that the Forest Service’s actions were adequate. 372 F.3d at 1227-28.

We agree with UEC I that, based on the administrative record, the Forest Service

fulfilled its § 219.19 MIS monitoring with respect to the northern goshawk.

5. Threatened and endangered species: Mexican spotted owl

UEC finally contends that the Forest Service did not properly monitor the

19
Mexican spotted owl, a threatened and endangered species. 2 The Forest Plan

mandates that the Forest Service annually monitor by visual reconnaissance any

threatened, endangered, and sensitive animals in the Fishlake National Forest to

ensure “no decrease attributed to management activities.” 1 AR 000157 (Forest

Plan at V-6).

The Forest Service conducted a Thousand Lakes Mountain survey for the

Mexican spotted owl between 1991 and 1994, and no breeding pairs were

documented at that time. Id. at 000070. Surveyors detected a single female in

June and July 1991. Because only single birds were detected, the Forest Service

concluded that “incidental use by non-breeding individuals was occurring.” Id.

Due to the “incidental use,” the EA reported that “[e]ffects to the Mexican spotted

owl as a result of the Proposed Action [are] expected to be minimal.” Id. at

000071. However, without more regular and complete quantitative data to

monitor population trends, the Forest Service has not satisfied the monitoring

provisions of the Forest Plan with respect to the Mexican spotted owl. See 16

U.S.C. § 1604(i).

2
UEC also vaguely asserts in its opening brief that the Forest Service did
not adequately collect population data to monitor the Utah prairie dog, bald eagle,
and peregrine falcon. An issue mentioned in a brief on appeal, but not addressed,
is waived. See Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1 (10th Cir.
1992), modified on other grounds on reh’g, 995 F.2d 992 (10th Cir. 1993).

20
 6. Conclusion

Accordingly, the Forest Service has not met its obligations under § 219.19

for the riparian guild and cavity-nester guild, and the agency has not complied

with the Forest Plan as to the Mexican spotted owl.

B. Consideration of NEPA alternatives

UEC next contends that the Forest Service acted arbitrarily when the

Project’s EA formally considered only two alternatives: a no-action alternative

and the modified proposed action. Under NEPA, federal agencies prepare an EIS

when they propose a “major Federal action[] significantly affecting the quality of

the human environment.” 42 U.S.C. § 4332(2)(c). “Agencies need not prepare a

full EIS, however, if they initially prepare the less detailed [EA] and, based on the

EA, issue a [FONSI], concluding that the proposed action will not significantly

affect the environment.” Pennaco Energy, Inc. v. Dep’t of Interior, 377 F.3d

1147, 1150 (10th Cir. 2004) (internal quotation marks omitted); see also 40

C.F.R. §§ 1501.4, 1508.9. “A properly drafted EA must include a discussion of

appropriate alternatives to the proposed project.” Davis v. Mineta, 302 F.3d

1104, 1120 (10th Cir. 2002).

We review the Forest Service’s actions only to “insure that the agency has

taken a ‘hard look’ at environmental consequences.” Kleppe v. Sierra Club, 427

U.S. 390, 410 n.21 (1976). “In deciding whether the [agency] acted arbitrarily by

21
not considering certain alternatives, we remain mindful that an agency decision

concerning which alternatives to consider is necessarily bound by a rule of reason

and practicality.” Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426,

432 (10th Cir. 1996). “[A]n agency need not analyze the environmental

consequences of alternatives it has in good faith rejected as too remote,

speculative, . . . impractical or ineffective.” Id. “While it is true that defendants

could reject alternatives that did not meet the purpose and need of the project,

they could not define the project so narrowly that it foreclosed a reasonable

consideration of alternatives.” Davis, 302 F.3d at 1119 (internal quotation marks

omitted).

The Project was designed “to improve or maintain habitat conditions in

order to promote long-term ecosystem health for the benefit of people, wildlife,

and fish.” 1 AR 000136 (Decision Notice and FONSI). The primary objective is

to reduce densities of aspen and spruce stands that are at most risk of spruce

beetle infestation, while maintaining a forested appearance. Under the secondary

objective, the Project will supply local resource-dependent enterprises with raw

materials in an “economically feasible manner.” Id.

UEC argues that the Forest Service violated NEPA by defining the project’s

objectives so narrowly that the only possible alternatives were the proposed

project or no action. It also contends that the Forest Service could have addressed

22
the spruce beetle infestation in non-commercial ways and considered alternatives

that did not revalidate roadless areas. According to the Forest Service, a non-

commercial alternative would achieve neither project objective. Given the

Project’s dual objectives and the agency’s discretion to chose those objectives,

see Airport Neighbors Alliance, 90 F.3d at 432, the Forest Service examined a

reasonable range of alternatives and did not act arbitrarily when it considered

only the no-action alternative and the modified proposed action.

V. CONCLUSION

We REVERSE the district court’s order affirming authorization of the

Project and REMAND to the district court with instructions to VACATE the

Forest Service’s approval of the Project. We do not address whether the agency

should apply the 1982 rule or the 2005 rule’s transition provision during further

proceedings.

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UEC v. Bosworth, 03-4251

WHITE, District Judge, Concurring.

I respectfully offer this concurring opinion to highlight the impact of the

intervening circuit precedent on the district court’s decision. Admittedly, the

opinion rendered today follows logically from the now binding holding in UEC I

that §219.19 applies directly to project level activities in addition to the

development, adoption and revision of the forest plan itself. The district court

here would no doubt have ruled differently if it could have divined that project

level management activities must strictly adhere to §219.19 procedures. Such a

divination, however, was not possible. As the opinion in UEC I implicitly

concedes, its holding was not compelled by the actual language of the regulation.

Nowhere in §219.19 does the term “project” appear. The explicit language

of that section mentions only the “planning area.” Indeed, UEC I mentions that

even the plaintiff in that case conceded that Ҥ219.19 applies to the development

of Forest Management Plans, as opposed to specific project level actions[.]” Utah

Environmental Congress v. Bosworth, 372 F.3d 1219, 1224 (10 th Cir. 2004). UEC

I’s analysis also mentions: (1) that NFMA requires “resource management

activities be consistent with the Forest Plan,” Id., at 1225. (emphasis supplied);

and, (2) that §219.27 “contemplates the application of §219.19 to management
activities[.]” Id., at 1225 (emphasis supplied). These two factors formed the

foundation for UEC I’s final conclusion that the regulations as a whole

“anticipate” application of §219.19 to project level as well as plan level

management actions. Id.

Thus, according to UEC I, the regulations “anticipate” and “contemplate”

its final interpretation of §219.19. This is hardly a firm foundation for the

conclusion that UEC I’s interpretation is the only legally permissible one. Indeed,

nowhere does UEC I state that its interpretation of §219.19 is the only legally

permissible one. Furthermore, nowhere does UEC I explain exactly how the

Forest Service’s interpretation of the regulation was arbitrary and capricious.

Of course, that is not to say that UEC I’s interpretation of §219.19 is

illogical or unreasonable. Likewise, because that section is ambiguous at best

with regard to the present issue, the interpretation of the Forest Service is also

neither illogical or unreasonable. In short, project level actions may certainly still

be “consistent” with the forest plan as a whole, without requiring wholesale

imposition of §219.19 procedures onto each discrete project. A project may

certainly be “consistent” with the forest plan when the Forest Service assesses a

project’s effects on MIS through the use of habitat information, population

information, or a combination of the two.

In Dombeck, this Court emphasized that a “practical” interpretation of the

2
regulations must be taken “consistent with the ‘overall multiple use objectives’

and the ‘inherent flexibility’ of the National Forest Management Act.” Colorado

Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1171 (10 th Cir. 1999) (quoting

Seattle Audubon Soc’y v. Mosely, 80 F.3d 1401, 1404 (9 th Cir. 1996)). The

project at issue here entails only 219 acres, or 1.46% of the entire 15,000 acre

Thousand Lakes Mountain area. Therefore, in this case, even if not in all cases,

the Forest Service’s interpretation of §219.19 and its actions seem imminently

reasonable.

The now controlling interpretation of §219.19 in UEC I may be the best

interpretation. No doubt, that panel believed that its interpretation most

effectively advances the goals of NFMA. Unfortunately, I believe that in finding

the best interpretation, the UEC I panel substituted its judgment for that of the

appropriate decision-maker. The interpretation of the Forest Service must be

given deference, “especially when that interpretation involves questions of

scientific methodology.” Dombeck, at 1170 (citation omitted).

A disagreement about the interpretation of a Forest Service regulation

might hardly seem to justify a concurring opinion, especially when, as now, the

Forest Service has adopted new planning regulations. Thus, this particular

interpretive issue is unlikely to be reviewed in future cases. The issue of

consequence here, however, is not merely one involving proper interpretation of

3
regulations, but rather the proper separation of powers. That separation is

breached when an agency’s reasonable interpretation of a regulation is set aside in

favor of a seemingly better one imposed by the judiciary.

But for the intercession of UEC I, I would affirm the district court. The

obligations of stare decisis, however, compel me to concur respectfully in the

result today.

4