F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
June 29, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
THE ECOLOGY CENTER, IN C., a
non-profit M ontana corporation, THE
AQ UA RIUS ESCALA NTE
FO UNDATION, a non-profit Utah
corporation, No. 05-4101
Plaintiffs - Appellants,
v.
UNITED STA TES FO REST
SERVICE, an agency of the U.S.
D epartm ent of A griculture; U TAH
EN VIRO NM EN TA L CONGRESS;
ROBERT A. RUSSELL, Forest
Supervisor, Dixie N ational Forest;
STEPH EN R. ROBERTSO N, Acting
Forest Supervisor, Dixie National
Forest; DALE BOSW ORTH, Chief of
the Forest Service,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:03-CV-589-TS)
Thomas J. W oodbury, Forest Defense, P.C., M issoula, M T, for Plaintiffs-
Appellants.
M ichael T. Gray, United States Department of Justice, Environmental & Natural
Resources Division, W ashington, D.C., (M ark Haag, Department of Justice,
Environment & Natural Resources Division, W ashington, D.C.; Kelly A. Johnson,
Acting Assistant Attorney General, Department of Justice, W ashington D.C.; and
Elise Foster, United States D epartment of Agriculture, W ashington, D.C., with
him on the brief), for Defendants-Appellees.
Before H E N RY, EBEL, and T YM KOVICH, Circuit Judges.
H ENRY, Circuit Judge.
Plaintiffs Ecology Center and the A quarius Escalante Foundation (together,
“Ecology Center”) filed a complaint in the United States District Court for the
District of Utah. Ecology Center sought declaratory and injunctive relief to stop
the Griffin Springs Resources M anagement Project (“the Project”), which would
allow logging in the Griffin Springs area. Ecology Center claimed that the
Project’s Record of Decision did not comply with the National Environmental
Policy Act (“NEPA ”), 42 U.S.C. §§ 4321-4370f; the National Forest M anagement
Act of 1976, 16 U.S.C. § 1600-1614; and the Administrative Procedures Act, 5
U.S.C. §§ 701-706. The district court found the Forest Service’s approval of the
Project neither arbitrary nor capricious and dismissed the complaint. Ecology
Center timely appealed.
For the reasons stated below, we affirm in part, reverse in part, and remand
in part.
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I. BACKGROUND
A. Statutory and Regulatory Framew ork
1. NEPA’s procedural requirements
NEPA established a “national policy [to] encourage productive and
enjoyable harmony between man and his environment,” and was intended to
reduce or eliminate environmental damage and promote “the understanding of the
ecological systems and natural resources important to” the United States. 42
U.S.C. § 4321. “N EPA itself does not mandate particular results” in order to
accomplish these ends. Robertson v. M ethow Valley Citizens Council, 490 U.S.
332, 350 (1989). Rather, NEPA imposes procedural requirements on federal
agencies with a particular focus on requiring agencies to analyze the
environmental impact of their proposals and actions. See id. at 349-53.
NEPA requires that federal agencies prepare an environmental impact
statement (“EIS”) for certain major federal actions significantly affecting the
quality of the human environment. The EIS must include a
detailed statement by the responsible official on--(i) the environmental
impact of the proposed action, (ii) any adverse environm ental effects
which cannot be avoided should the proposal be implemented, (iii)
alternatives to the proposed action, (iv) the relationship between local
short-term uses of man’s environment and the maintenance and
enhancement 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.
42 U.S.C. § 4332(2)(C).
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2. National Forest M anagement Act’s requirements
The National Forest M anagement Act of 1976 requires the Secretary of
Agriculture to “develop, maintain, and, as appropriate, revise land and resource
management plans for units of the National Forest System.” 16 U.S.C. § 1604(a).
The Forest Service, which manages the national forest system, develops land and
resource management plans pursuant to the National Forest M anagement Act.
The National Forest M anagement Act also requires that forest plans “provide for
diversity of plant and animal communities based on the suitability and capability
of the specific land area.” Id. § 1604(g)(3)(B).
The Project is located in the Dixie National Forest in Utah. M anagement
activities of the D ixie National Forest are governed by the D ixie National Forest
Plan (“the Plan”), adopted in 1986. The Plan includes both a habitat approach
(which incorporates habitat management recommendations to preserve and
maintain suitable habitat) and a population trend monitoring approach (which
includes species population assessments) for insuring the viability of old growth
species in compliance with the National Forest M anagement Act. See 16 U.S.C. §
1604(f)(1). For individual management actions within a forest, all relevant
resource plans, contracts, and permits must be consistent with a forest’s overall
land management plan. Id. § 1604(i).
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B. The Dixie National Forest Plan
As the Forest Service points out, the Plan imposes several obligations on
the forest, with specific instructions for protecting the northern goshawk. It is
undisputed that the Forest Service considers the northern goshawk a sensitive
species. The duty to ensure viable populations “applies with special force to
sensitive species.” Inland Empire Pub. Lands v. U.S. Forest Serv., 88 F.3d 754,
759 (9th Cir. 1996) (internal quotation marks omitted).
The Plan’s requirements of particular relevance to this appeal are:
1. establishing the northern goshawk as a management indicator species
(“M IS”), Aplts’ App. at A-16; 1
2. imposing forest-wide ongoing monitoring obligations for M IS,
including the northern goshawk, id.;
3. requiring annual nest surveys for goshawks, if the population is near
the minimum level, and nest surveys every two to five years in
project areas, id.;
4. requiring “further evaluation” if there is a ten percent decline in the
estimate forest-wide goshawk population size over a three-year
1
The National Forest Management Act regulations require the Forest Service to
identify management indicator species that will be monitored because the species’
“population changes are believed to indicate the effects of management activities.” 36
C.F.R. § 219.19(a)(1) (2000). “Population trends of the management indicator species
will be monitored and relationships to habitat changes determined.” Id. § 219.19(a)(6).
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period “and for loss of important habitat components,” id.;
5. requiring annual monitoring by means of a “[v]ariable strip transect,”
which involves the use of a linear transect of a predetermined
distance, id.; and
6. incorporating the requirements of the Utah Northern Goshawk
Conservation Strategy and Agreement for the M anagement of [the]
Northern Goshaw k Habitat in Utah (the “Conservation Strategy”),
which also imposes annual population monitoring requirements, id. at
A-33 to A-51.
The purpose of the Conservation Strategy
is to attain the goal of long-term conservation of the northern goshawk,
its habitat and associated species throughout U tah through proactive
management. Conservation of the N orthern goshawk and its habitat
will require improving degraded habitat conditions, maintaining and/or
expanding populations. . . . A chievement of the desired habitat
conditions contained within the strategy will provide that habitat is
available to sustain viable goshawk populations in the State of Utah.
Id. at A -49.
The Conservation Strategy states, “w hen developing site specific
prescriptions . . . the management recommendations for the northern goshawk in
the Southwest United States (Reynolds et al. 1992) should be used.” Id. at A -35.
These recommendations are contained in a 1992 Forest Service report titled
“M anagement Recommendations for the N orthern Goshaw k in the Southw estern
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United States” (the “Reynolds Report”). Id. at A-52. The Reynolds Report’s
recommendations “represent the best available scientific information for forming
the development of site prescriptions and should be considered a component of
[the Conservation Strategy].” Id. at A-38 to A-39.
The Reynolds Report lists several “management recommendations” for the
three types of goshawk habitat: nest areas, post-fledgling family areas, and
foraging areas. Should there be logging, the Conservation Strategy
recommends the thinning of understory trees rather than thinning from above. Id.
at A-58. Specifically, the Plan seeks to maintain “[f]unctioning forested
landscapes [to] provide habitat for the northern goshawk and its prey to support a
viable population of goshawks in Utah.” Aples’ Supp. App. vol. I, at 8443.
The Conservation Strategy acknowledges that “[w]here site specific
conditions differ from those described [in the Reynolds Report], the [Forest
Service] must interpret and document [its] own specific value based on local data
. . . using the 1992 habitat evaluation process [set forth in the Reynolds Report].”
Aplts’ App. at A-39.
In discussing the northern goshaw k habitat, the Reynolds Report describes
six vegetation structural stages (“VSS”) of southwestern forests. Those structural
stages range from VSS 1–in which a forest is dominated by grasses, forbs and
shrubs–to VSS 5 (a “mature forest”) and VSS 6 (an “old forest”). Id. at A-59.
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The report states that desired forest conditions for sustaining northern goshawks
and their principal prey species require twenty percent of VSS 6, such as older
spruce-firs in the post-fledgling goshawk area and foraging area.
In 1982, when the Plan w as adopted, the Forest Service estimated that there
were 68 pairs of northern goshawks in the Dixie National Forest. The minimum
viable population was established at 40 pairs. Id. at A-17. All parties agree that
according to the most recent assessment in 2002, the goshawk population hovered
at 20-30 pairs. Id. at A-70.
C. The Griffin Springs Project
During 1994, the Forest Service first reviewed the possibility of
implementing the Griffin Springs Project to allow commercial logging in the area.
The Project area encompasses 11,835 acres located within the Escalante River and
East Fork of the Servier River w atershed. Id. at A-18.
The Project area’s forest type consists primarily of Englemann
spruce/subalpine fir, “with a strong component of aspen. Other vegetation types
represented include sagebrush and mixed conifer.” Id. The Forest Service
determined that the area at issue contained high stand densities that contribute to
declining tree growth and vigor, reduced aspen presence, and bark beetle
infestations. Id. at A-22.
The Project’s January 2002 EIS studied five alternatives to address these
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concerns, including a no-action alternative. After the Forest Service completed
the EIS, it issued a Life History and Analysis of Endangered, Threatened,
Candidate, Sensitive, and M anagement Indicator Species of D ixie National Forest
Report (the “Life History Report”) in September 2002. The Forest Service then
determined a Supplemental EIS (“SEIS”) was required to consider the information
provided in the Life History Report. On M arch 27, 2003, the Forest Supervisor
selected Alternative 4 and issued a Record of Decision.
Alternative 4 outlines the following actions. W ithin the 669 acres of aspen,
112 acres will be subject to clear-cut logging, taking place in various “patches.”
Aples’ Supp. App. vol. III, at 848. After the logging, prescribed fire techniques
will be applied. W ithin the 8,030 acres of Englemann spruce/sub-alpine fir forest,
approximately 3,307 acres would be subject to an “intermediate” level of
comm ercial logging. Trees will be individually selected to “reduce stand
densities while maintaining a variety of tree sizes.” Id.
There will also be clear-cutting in 440 acres of the 3,307 acres of spruce/fir
that are “stocked with scattered aspen clones.” Id. In certain areas and for a
period as long as seven years, trees that are infested with spruce beetles or that
have been recently killed will be removed. There will be 88 acres of planting of
Engelmann spruce seedlings. Finally, approximately seventeen miles of road
would undergo reconstruction, and thirty-three miles of road would undergo
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maintenance.
Despite the unchallenged status of the Reynolds Report as the best
available science, the Forest Service relied on a study titled “Characteristics of
Old-G rowth Forests in the Intermountain Region” for certain calculations.
According to the Forest Service, the Reynolds Report did not address all of the
Project area’s habitat attributes, and the intermountain region report represented
better local data. See Aples’ Br. at 26. The Forest Service maintains that the
Project will create more goshawk habitat than currently exists. Although some
foraging goshawks will be displaced, this displacement is not considered
significant, according to the SEIS.
Similarly, the Forest Service looked to a study titled “The N orthern
Goshawk in Utah: Habitat Assessment and M anagement Recommendations” for
its assertions that goshawks can breed successfully in the wake of clear-cutting,
rather than following the Reynolds Report’s requirement of twenty percent VSS
6. A ccording to the Forest Service, the Project will actually improve goshawk
habitat and viability over time. Aplts’ Supp. App. at 39-44. The Record of
Decision concludes that the project “will not negatively effect [sic] any of the
M IS species that occur within the [P]roject area.” Aplts’ App. vol. III, at 850.
Here, Ecology Center filed a complaint seeking review of the Griffin
Springs Project, contending that the SEIS does not conform with either NEPA or
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the National Forest M anagement Act. Ecology Center maintained first that the
Forest Service had not disclosed sufficient data pursuant to NEPA to demonstrate
how the Griffin Springs Project was consistent with the Forest Plan. Second,
Ecology Center argued that the Forest Service had failed to collect appropriate
quantitative data regarding the northern goshawk and old growth species, in
violation of the National Forest M anagement Act, which requires compliance with
the Forest Plan. In response, the Forest Service filed a motion to dismiss the
complaint, which the district court granted.
For the reasons stated below, we affirm the district court’s grant of the
Forest Service’s motion to dismiss the NEPA claim. However, we reverse the
district court’s dismissal of the National Forest M anagement Act claim and direct
the district court to remand the case to the Forest Service for the limited purpose
of allow ing the agency to review the Project pursuant to the appropriate rules.
II. D ISC USSIO N
A. Standard of Review
Under the APA, we will set aside a final agency action “only if it is
arbitrary, capricious, otherwise not in accordance with law, or not supported by
substantial evidence.” Am. Colloid Co. v. Babbitt, 145 F.3d 1152, 1154 (10th Cir.
1998). Our review is “highly deferential.” Valley Cmty. Pres. Comm’n v. M ineta,
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373 F.3d 1078, 1084 (10th Cir. 2004). Our duty is “to ascertain whether the
agency examined the relevant data and articulated a rational connection between
the facts found and the decision made.” Cliffs Synfuel Corp. v. Norton, 291 F.3d
1250, 1257 (10th Cir. 2002) (internal quotation marks omitted). W e must
determine whether the agency’s decision was “based on a consideration of the
relevant factors and whether there has been a clear error of judgment.” M arsh v.
Oreg. Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quotation marks
omitted).
W hile our review is deferential, our inquiry must “be searching and
careful.” Id. (internal quotation marks omitted). Courts defer to the evaluations
of agencies w hen the evidence presents legitimately conflicting, qualified views
because “an agency must have discretion to rely on the reasonable opinions of its
own qualified experts even if, as an original matter, a court might find contrary
views more persuasive.” Id. However, the agency action may be overturned
if the agency has relied on factors w hich Congress has not intended it
to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.
M otor Vehicle M frs. Ass’n v. State Farm M ut. Auto. Ins. Co., 463 U.S. 29, 43
(1983); see Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 644 (10th Cir.
1990) (applying this standard of review).
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B. The NEPA Claim
Ecology Center first contends that the Forest Service failed to take a hard
look at many critical issues concerning the potential adverse environmental
impacts of the Project. In addition, argues Ecology Center, the Final EIS and
SEIS are based on a variety of expert conclusions that lack any credible hard
quantitative data necessary to inform the public and the courts of the basis for
these conclusions.
W e disagree with Ecology Center’s assertions. It is useful to recall
NEPA’s twin aims:
First, it places upon an agency the obligation to consider every
significant aspect of the environmental impact of a proposed action.
Second, it ensures that the agency will inform the public that it has
indeed considered environmental concerns in its decisionmaking
process. Congress in enacting NEPA , however, did not require agencies
to e lev a te e n v iro n m e n tal co ncerns ov er othe r a p p ro p ria te
considerations. Rather, it required only that the agency take a hard look
at the environmental consequences before taking a major action.
Baltim ore G as & Elec. C o. v. N RDC, 462 U.S. 87, 97 (1983) (internal quotation
marks and citations omitted); see Sierra Club v. Hodel, 848 F.2d 1068, 1088 (10th
Cir. 1988) (noting these twin aims of N EPA).
The Forest Service’s EIS and SEIS satisfy the “hard look” requirement.
Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1022
(10th Cir. 2002) (“W hen a government agency prepares to take an action
‘significantly affecting the quality of the human environment,’ this ‘hard look’ at
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potential environmental impacts is accomplished through an EIS.”) (citing 42
U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4) (internal quotation marks omitted)
(emphasis added). The Forest Service has “discuss[ed] the purpose and need for
the proposed action, environmental impacts resulting from the actions,
unavoidable adverse environmental impacts, alternatives to the proposed action,
the relationship between short-term uses and long-term productivity, and the
amount of resources that must be devoted to the proposed action.” Id. (citing 42
U.S.C. § 4332(2)(C)(i)-(v); 40 C.F.R. § 1502.10). There is no suggestion that the
Forest Service failed to solicit comments, or failed to consider the other
alternatives in the EIS. See 42 U.S.C. § 4332(2)(C)(i)-(v); 40 C.F.R. §§ 1501.7,
1502.10. The Forest Service engaged in the notice and comm ent process, and,
after it prepared the Life History Report, it deemed the EIS incomplete. See 40
C.F.R. § 1502.9(b). It then prepared an SEIS to consider and incorporate the Life
History Report’s conclusions. See id. § 1502.9(c)(1).
“W e apply a rule of reason standard (essentially an abuse of discretion
standard) in deciding whether claimed deficiencies in a [final] EIS are merely
flyspecks, or are significant enough to defeat the goals of informed decision
making and informed public comment.” Utahns for Better Transp. v. U.S. Dep’t
of Transp., 305 F.3d 1152, 1163 (10th Cir. 2002). The hard look requirement was
satisfied through the EIS and SEIS. Here, Ecology Center unpersuasively
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attempts to equate the lack of a “hard look” w ith a lack of “hard data.” Because
the Forest Service has conformed with NEPA’s procedural requirements, we “will
not second-guess the wisdom of the ultimate decision.” Id. Accordingly, we
affirm the district court’s grant of the Forest Service’s motion to dismiss the
NEPA claim.
C. The National Forest M anagement Act claim
Ecology Center’s more substantive concerns emanate from the National
Forest M anagement Act. Ecology Center identifies a variety of shortcomings in
the Record of Decision, and concludes that it failed to comply with the Dixie
National Forest Plan. In particular, Ecology Center notes the Forest Service’s
failure to maintain the Forest Plan’s recommended requirements for the northern
goshawk’s habitat. In addition, according to Ecology Center, the Record of
Decision makes no reference to the annual monitoring requirements for the
northern goshawk, as required by the Forest Plan. Finally, the Forest Service has
not explained why it will not follow the Conservation Strategy’s preferred
recommendation to thin the understory trees. Aplts’ App. at A-58. Although the
arguments raised by Ecology Center raise concerns, for the reasons explained
below, we need not reach them in this opinion.
1. The 2000 Transitional Regulations Apply
Forest plans may require particular standards to be followed regardless of
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later changes in the regulations. But this is not the case here. The Forest Plan
“does not explicitly reference or adopt § 219.19 of the 1982 rules, concerning the
selection and monitoring of management indicator species.” Utah Envt’l Cong. v.
Bosworth, 443 F.3d 732, 748 (10th Cir. 2006). Therefore, we cannot read the
Forest Plan to adopt the 1982 rules. W e thus must determine the standards under
the appropriate regulation or transition rule.
The 1982 forest planning regulations at 36 C.F.R. Part 219 were superseded
in November 2000, when new regulations were promulgated. 65 Fed. Reg. 67,568
(Nov. 9, 2000). Under the transition provision of the 2000 regulations, the Forest
Service was required to consider the “best available science” when implementing
site-specific projects within a forest plan. 36 C.F.R. § 219.35(a) (2001). The
Griffin Springs Project is a site-specific implementation of the Dixie National
Forest Plan. See Utah Envt’l Cong. v. Bosworth, 372 F.3d 1219, 1221 (10th Cir.
2004) (noting that a Forest Service project must be consistent with the applicable
Forest Plan). 2
2
The Department of Agriculture has proposed a variety of new rules for National
Forest System planning since the original planning rules were adopted in 1979, and
revised in 1982. 36 C.F.R. § 219 (1983). In 1997, the agency appointed a Committee of
Scientists to review the land and resource management planning process. In a strategic
planning exercise, the agency adopted the following objectives: to (1) ensure sustainable
ecosystems, (2) provide multiple benefits for people within the capability of ecosystems,
and (3) ensure organizational effectiveness. U.S. Dep’t of Agriculture, USDA Forest
Service (GPRA) Strategic Plan (Washington, D.C. 1997). See George Hoberg, Science,
Politics, and U.S. Forest Service Law: The Battle of the Forest Service Planning Rule, 44
Nat. Resources J. 1, 12-17 (Winter 2004).
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A 2004 Department of Agriculture interpretive rule explains that, during
the transition period from November 2000 until promulgation of a final rule (in
January 2005), only the transition provision of the 2000 regulations applied. 69
Fed. Reg. 58,055, 58,057 (Sept. 29, 2004). Thus, neither the remainder of the
In October 1999, the Department of Agriculture proposed a new rule for National
Forest System planning. 64 Fed. Reg. 54,074 (Oct. 5, 1999). Relying on the 1997 report,
and stating that “[t]he goals and principles for planning are those recommended by the
Committee of Scientists,” the new rule reiterated the agency’s commitment to ecological
sustainability. Id. at 54,080. The final rule, issued in November 2000, included a section
that replaced the species viability section of the earlier 1982 rule. 65 Fed. Reg. 67,568
(Nov. 9, 2000). A transition provision in the 2000 regulations initially delayed
application of its substantive provisions to project decisions until November 9, 2003. See
Bosworth, 443 F.3d at 737; 36 C.F.R. § 219.35(d) (2001); 65 Fed. Reg. at 67,579.
“During the transition period,” the Forest Service was required to “consider the best
available science in implementing” a forest plan. 36 C.F.R. § 219.35(a) (2001).
In 2001, the new presidential administration moved quickly to review the new
rules and in May 2001 suspended their application until May 2002. See 66 Fed. Reg.
27,552 (May 17, 2001). On May 20, 2002, the Department of Agriculture again extended
the transition date of the 2000 planning regulations. 67 Fed. Reg. 35,431 (May 20, 2002).
On December 6, 2002, the Forest Service proposed revisions to the 2000 regulations. 67
Fed. Reg. 72,770 (Dec. 6, 2002). On September 10, 2003, the Forest Service published
another “interim final rule,” extending the transition date of the 2000 regulations “until
the Department promulgates the final planning regulations published as proposed on
December 6, 2002.” 68 Fed. Reg. 53,294, 53,297 (Sept. 10, 2003).
Apparently, and unsurprisingly, this series of publications and promulgations
created considerable uncertainty regarding the effect of the 2000 planning regulations,
particularly the application of the “best available science” standard during the transition
period. As a result, on September 29, 2004, the Forest Service issued an “interpretative
rule” stating that the agency should use the “best available science” standard during the
transition period from November 2000 until promulgation of a final rule. 69 Fed. Reg.
58,055, 58,056 (Sept. 29, 2004).
The Forest Service subsequently published its final planning regulations. 70 Fed.
Reg. 1022 (Jan. 5, 2005). It is not surprising that “courts have expressed considerable
confusion in applying the 2000 transition provisions.” Bosworth, 443 F.3d at 745.
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2000 planning regulations nor any of the 1982 regulations were binding on
site-specific decisions during this period. Id. (“The 1982 rule is not in effect. . . .
Projects implementing land management plans must comply with the transition
provisions of Section 219.35, but not any other provision of the 2000 planning
rule.”). The preamble to the transition rule states that “projects proposed during
the transition period should be developed considering the best available science.”
Id. at 58,056. The preamble also advises that “site-specific decisions entered into
during the transition period are not to comply with the substantive provision of
the 2000 planning rule.” Id.
Given these guidelines, we have determined that the relevant date to
consider is the date the final agency decision on the Project was made. Bosworth,
372 F.3d at 1221 n.1 (applying “[t]he regulations in effect at the time of the
disputed Forest Service decision”); see also Natural Res. Def. Council v. U.S.
Forest Serv., 421 F.3d 797, 800 n.3 (9th Cir. 2005) (holding the 1982 regulations
“applicable here because they were in effect when the plan revisions challenged
in this lawsuit were prepared”); Forest Watch v. U.S. Forest Serv., 410 F.3d 115,
118 (2d Cir. 2005) (holding the “relevant date for the purpose of determining
which rule applies is the date the final agency decision was made”). Here, the
Record of Decision was dated M arch 27, 2003. Therefore, we agree with the
Forest Service that the 2000 transition rule was applicable to the Griffin Springs
Project.
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W e next consider how to review the Forest Service’s M arch 27, 2003
Record of D ecision when the agency did not consider or mention the Project’s
compliance under the 2000 transition rule. 3 The Second Circuit recently resolved
this issue. See Forest Watch, 410 F.3d at 118-19. The court, relying on
Bosworth, 372 F.3d at 1221 n.1, determined that the 2000 transition rule applied
to an environmental assessment issued in 2002. There, as here, the
Forest Service now here considered or mentioned [the 2000 transition
rule’s “best available science”] standard during the administrative
process. Instead, the Forest Service review ed the . . . Project for
compliance only with the 1982 Rules and the [Forest] Plan. . . . The
exclusive application of the 1982 Rules and the failure to consider or
mention the “best available science” standard amounted to conduct that
is arbitrary and capricious.
Forest Watch, 410 F.3d at 119. The court remanded the case to the district court
with instructions to enter an order vacating the Forest Service’s approval of the
3
Ecology Center failed to provide the Record of Decision, which is a required
portion of the record because it is the decision “from which the appeal is taken.” 10 TH
C IR. R. 10.3(C)(5). The Forest Service attempted to rectify this deficiency when it
supplied an excerpt of the Record of Decision in its Supplemental Appendix and
Supplemental Excerpts. See 10 TH C IR. R. 30.2(A) (“An appellee who believes that the
appellant’s appendix omits items that should be included may file a supplemental
appendix with its answer brief.”); 10 TH C IR. R. 10.3(B) (“When the party asserting an
issue fails to provide a record sufficient for considering that issue, the court may decline
to consider it.”). Neither party has provided a sufficient record or appendix in this case.
However, the excerpt of the Record of Decision makes no mention of the
applicable rules, and does not even include the phrase “best available science” anywhere
in the pages provided. Rather, the Record of Decision appears to have applied the 1982
rules, referencing Management Indicator Species, which are not part of the 2000
transition rule’s approach. See Aples’ Supp. App. vol. III, at 847-53 (pages 1, 3, 5-6, 9,
18-19 of ROD dated March 27, 2003); Aples’ Supp. Excerpts vol. II, at 472-78 (same).
Because only an excerpt was provided, we assume that there are no other provisions
relevant to the Forest Service’s argument.
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project.
Here, at oral argument, the Forest Service acknowledged that it made no
mention of the 2000 transition rule’s applicability until this court issued its 2004
decision in Utah Environmental Congress. At that point in time, the Forest
Service argued before the district court that the 2000 transition rule applied. The
Forest Service points to nothing in the record regarding the district court’s
resolution of this issue. At oral argument, the Forest Service maintained that the
district court’s application of the 1982 regime w as harmless error.
According to the Forest Service, it followed the “best available science,”
i.e., the Reynolds Report, in a manner consistent with the requirements of the
applicable Forest Plan. Therefore, the Forest Service maintains that it necessarily
complied with the 2000 transition provision and as such, the Second Circuit’s
decision in Forest Watch is inapplicable. However, the Forest Service’s own
actions suggest the Reynolds Report was not alw ays treated as the best available
science.
For example, Ecology Center vigorously disputes that the Forest Service
applied the Reynolds Report’s recommendations. It argues that the Griffin
Springs Project will result in a percentage of old growth significantly lower than
that required by the Conservation Strategy and the Reynolds Report. Similarly,
Ecology Center points out that the Forest Service has not complied with the
monitoring requirements of the Forest Plan, given the below-minimum-viability
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population of the northern goshaw k. Ecology Center also challenges the Project’s
compliance with the Forest Plan and Reynolds Report provisions regarding
canopy closure, snags, and decaying logs that provide habitat for the northern
goshawk. In addition, the Forest Service presents no long-range scientific
evidence supporting its assertion that the Project will actually increase the
number of northern goshaw k in the Project area. Aplts’ Supp. App. at 39-44. In
the same vein, Ecology Center argues, the Forest Service’s contention that there
are no nesting goshawks in the Project area seems to contradict this logic.
At oral argument, the Forest Service contended that there was no doubt the
“best available science” was applied here, suggesting that the Forest Service had
discretion to decide w hat constituted the best available science. The Forest
Service insists that a remand would be futile because “it is plain w hat those
findings must be.” Aples’ Br. at 29 n.5 (internal quotation remarks omitted).
The Forest Service argues that “regardless of which regulatory scheme
governs [our] review , on remand the Forest Service would be obligated to apply
the 2005 regulations to this decision.” Id. at 30 n.5. W e note that the 2005
regulations require the Forest Service to
document how the best available science was taken into account in the
planning process; evaluate and disclose substantial uncertainties in that
science; evaluate and disclose substantial risks associated with plan
components based on that science and document that the science was
appropriately arrogated and applied.
36 C.F.R. § 291.11(a)(1)-(4) (2005). These requirements underscore that the
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“best available science” is not just whatever the Forest Service finds on the shelf.
The Forest Service may satisfy the 2005 regulations’ requirements through the
use of “independent peer review, a science advisory board, or other review
methods to evaluate to consideration of science in the planning process.” Id. §
291.11(b).
At oral argument the Forest Service maintained that even though it did not
argue the best available science standard below , that was harmless error because
there is no question that it applied the best available science. It argues that
because the plaintiffs have conceded that the Reynolds Report is the best
available science, and that, in instances in which it has departed from that report,
the agency has made a scientific judgment deserving of deference.
On this record, we must disagree. The Forest Service’s approach is rather
circular: while touting the Reynolds Report as the best available science, it is
clear that the Forest Service has departed from its recommendations in several
areas. It suggests that the Reynolds Report does not speak to aspen forests, yet
aspen forests represent only a couple of hundred acres of this very predominantly
spruce forest. M oreover, although the Reynolds Report suggests thinning from
below, this project focuses on taking out the larger trees. Issues also exist about
minimum canopy closures and the width of clearances. Thus, the Forest Service
seems to use the Reynolds Report very selectively; when its conclusions differ
with the report’s “best available science” it simply argues that we must defer to
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its expertise.
As noted in the Conservation Strategy, “[w]here site specific conditions
differ from those described [in the Reynolds Report], the [Forest Service] must
interpret and document [its] own specific value based on local data . . . using
the1992 habitat evaluation process [set forth in the Reynolds Report].” Aplts’
App. at A-39. On this record, we are unable to determine w hether the Forest
Service’s reliance on other available data satisfies the “best available science”
requirements. Rather than resolve these disputes on appeal, we conclude that a
remand is appropriate so that the agency itself can have the first chance to apply
its own standards. 4
4
We note that we have not found, nor have the parties cited, any cases that
define “best available science” in today’s context. However, the term is used in other
statutes that may, along with the regulations cited above, assist the Forest Service on
remand. In the context of the Endangered Species Act, 16 U.S.C. §§ 1531-44, the
Secretary of the Interior must use “the best scientific and commercial data available.” Id.
§ 1536(c)(1); see also 50 C.F.R. § 402.14(g)(8) (2005) (“In formulating its biological
opinion, any reasonable and prudent alternatives, and any reasonable and prudent
measures, the Service will use the best scientific and commercial data available and will
give appropriate consideration to any beneficial actions taken by the Federal agency or
applicant, including any actions taken prior to the initiation of consultation.”). The
Eighth Circuit has stated that, in the context of the Endangered Species Act, “[a]ll that is
required of the agencies is to seek out and consider all existing scientific evidence
relevant to the decision at hand. They cannot ignore existing data.” Heartwood Inc. v.
U.S. Forest Serv., 380 F.3d 428, 436 (8th Cir. 2004) (citation omitted); see also Kandra v.
United States, 145 F. Supp. 2d 1192, 1208 (D. Or. 2001) (In the context of the
Endangered Species Act, “an agency cannot ignore available biological information . . .
[and] it is presumed that agencies have used the best data available unless those
challenging agency actions can identify relevant data not considered by the agency.”)
(citations omitted).
The proposed Threatened and Endangered Species Recovery Act uses the term
“best available scientific data,” which is defined as
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scientific data, regardless of source, that are available to the Secretary at the
time of a decision or action for which such data are required by this Act and
that the Secretary determines are the most accurate, reliable, and relevant for
use in that decision or action.
H.R. 3824, 109th Cong. § 3(a) (Sept. 29, 2005).
The Threatened and Endangered Species Recovery Act requires the Secretary to
adopt regulations establishing criteria for this standard within one year of enactment, and
these regulations must assure compliance with the Information Quality Act and assure
that data “consists [sic] of empirical data” and “is [sic] found in sources that have been
subject to peer review by qualified individuals recommended by the National Academy of
Sciences to serve as independent reviewers for a covered action in a generally acceptable
manner.” Id.
The Safe Drinking Water Act of 1970, 42 U.S.C. §§ 300f et seq., also refers to the
best available science. In 1996, the Safe Drinking Water Act was amended to state that
In carrying out this section, and, to the degree that an Agency action is based
on science, the Administrator shall use--(i) the best available, peer-reviewed
science and supporting studies conducted in accordance with sound and
objective scientific practices; and (ii) data collected by accepted methods or
best available methods (if the reliability of the method and the nature of the
decision justifies use of the data).
42 U.S.C. § 300g-1(b)(3)(A) (emphasis added); see City of Waukesha v. E.P.A., 320 F.3d
228, 247 (D.C. Cir. 2003) (applying § 300g-1(b)(3)(A)).
The Magnuson-Stevens Fishery Conservation and Management Act requires the
Secretary of Commerce to base his decisions regarding fishery management plans based
on the “best scientific information available.” 16 U.S.C. § 1851(a)(2). Under this statute,
the best science available consists of the scientific findings available at the time the
National Oceanic and Atmospheric Administration, on behalf of the Secretary, considers
a problem. An agency is not required to collect additional evidence under the
Magnuson-Stevens Fishery Conservation and Management Act. Recreational Fishing
Alliance v. Evans, 172 F. Supp. 2d 35, 44 (D.D.C. 2001). The Ninth Circuit noted that
“the best available politics does not equate to the best available science as required by the
[Magnuson-Stevens Fishery Act].” Midwater Trawlers Coop. v. Dep’t of Commerce,
282 F.3d 710, 720 (9th Cir. 2002) (emphasis added); see also Marine Mammal Protection
Act of 1972, 16 U.S.C. §§ 1361-1421(h) (2000) (adopting without defining the use of the
best available scientific information requirement); Francesca Ortiz, Candidate
Conservation Agreements as a Devolutionary Response to Extinction, 33 Ga. L. Rev. 413,
442 (1999) (discussing the listing process under the Endangered Species Act and stating:
“[T]he best science may raise questions as to its objectivity and reliability. Who collected
the data? Who interpreted it? Was there any underlying agenda other than pure science?
What assumptions have been made? Have study results been corroborated? Are there
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The demonstration of compliance with the applicable regulatory regime
heightens the transparency and legitimacy of the Forest Service when it dons
multiple hats: it is the institution that issues the legal provision, the institution
that is subject to the provision, and the institution charged with the power to
interpret the provision. For the Forest Service to assume it has satisfied all of its
regulatory requirements based on a record that applied a now defunct regulatory
regime is at odds with the agency’s commitment to “produce responsible land
management” and to attain the goal of sustaining social, economic, and ecological
systems. 36 C.F.R. §§ 219.3, 219.10 (2005). Accordingly, we need not decide if
Ecology Center’s myriad of pointed arguments regarding Forest Services’s failure
to comply with the Forest Plan’s habitat and monitoring requirements
demonstrates that the Forest Service engaged in a clear error of judgment when it
approved the G riffin Springs Project. W e agree with the Second Circuit that we
conflicting conclusions? The list of questions can go on, but the point is that numerous
factors impact all scientific studies; data collected may be incomplete or inaccurate, and,
even if accurate, different people can interpret the data in different ways. Furthermore,
information that is considered accurate today may prove inaccurate as new information
comes to light.”).
From these cases and the regulations it is clear that although the Forest Service
need not collect new data, it should “seek out and consider all existing scientific evidence
relevant to the decision” and it “cannot ignore existing data.” Heartwood, 380 F.3d at
436. The Forest Service must determine which data “are the most accurate, reliable, and
relevant,” and that will be reviewed deferentially, but it still must be good science–that is
reliable, peer-reviewed, or otherwise complying with valid scientific methods.
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“may not ‘properly affirm an administrative action on grounds different from
those considered by the agency.’” Forest Watch, 410 F.3d at 119 (quoting
M elville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999); and citing SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947)). “[A] reviewing court, in dealing with a
determination or judgment which an administrative agency alone is authorized to
make, must judge the propriety of such action solely by the grounds invoked by
the agency.” Chenery, 332 U.S. at 196. W e hold that the Forest Service’s
“exclusive application of the 1982 Rules and the failure to consider or mention
the ‘best available science’ standard amounted to conduct that is arbitrary and
capricious,” and we must reverse and remand on this limited basis. Forest Watch,
410 F.3d at 119.
III. C ON CLU SIO N
Accordingly, we A FFIRM the district court’s grant of the Forest Service’s
motion to dismiss Ecology Center’s NEPA challenges. However, we REVERSE
the district court’s dismissal of Ecology Center’s claims under the N ational Forest
M anagement Act. We REM AND the case to the district court and instruct it to
enter an order vacating the Forest Service’s approval of the Griffin Springs
Project.
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