Lands Council v. McNair

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THE LANDS COUNCIL, 
Plaintiff-Appellant,
and
WILD WEST INSTITUTE,
Plaintiff,
v. No. 09-36026
RANOTTA MCNAIR, Forest
Supervisor for the Idaho  D.C. No.
2:06-cv-00425-EJL
Panhandle National Forests;
UNITED STATES FOREST SERVICE, OPINION
Defendants-Appellees,
BOUNDARY COUNTY; CITY OF
BONNERS FERRY; CITY OF MOYIE
SPRINGS; EVERHART LOGGING, INC.;
REGEHR LOGGING, INC.,
Defendants-Intervenors-Appellees.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued and Submitted
October 5, 2010—Seattle, Washington

Filed December 28, 2010

Before: Sidney R. Thomas and Milan D. Smith, Jr.,
Circuit Judges, and Michael R. Hogan, District Judge.*

*The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.

20675
20676 LANDS COUNCIL v. MCNAIR
Opinion by Judge Milan D. Smith, Jr.
 LANDS COUNCIL v. MCNAIR 20679
COUNSEL

Thomas J. Woodbury, Forest Defense P.C., for plaintiff-
appellant Lands Council.

Ignacia S. Moreno, Assistant Attorney General; David C.
Shilton, Susan L Pacholski, Brian C. Toth (argued), Attor-
neys, U.S. Department of Justice, Environmental and Natural
Resources Division; and Alan J. Campbell, Office of the Gen-
eral Counsel, U.S. Department of Agriculture (Of Counsel);
for defendants-appellees Ranotta McNair and the United
States Forest Service.

Scott W. Horngren (argued) and Julie A. Weis, Haglund Kel-
ley Horngren Jones & Wilder LLP, for defendants-
intervenors-appellees Boundary County, et al.

OPINION

M. SMITH, Circuit Judge:

The Lands Council and Wild West Institute challenged the
United States Forest Service’s (Forest Service) decision to
thin 277 acres of old-growth forest in the Mission Brush Proj-
ect (Project) area, located in the Idaho Panhandle National
Forest (IPNF), claiming that the Project violates the National
Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq.,
the IPNF Plan, and the National Environmental Policy Act
(NEPA), 42 U.S.C. § 4231 et seq. On cross-motions for sum-
mary judgment, the district court granted summary judgment
in favor of the Forest Service and denied Lands Council and
Wild West Institute’s motion for summary judgment. Lands
Council appeals. We affirm the decisions of the district court.
20680 LANDS COUNCIL v. MCNAIR
FACTUAL AND PROCEDURAL BACKGROUND

A. The Mission Brush Project

The Mission Brush Project area is located in the northern
portion of the Bonners Ferry Ranger District in the IPNF. The
project assessment area encompasses approximately 31,350
acres and includes the Mission and Brush Creek watersheds.
Historically, the forest was primarily composed of ponderosa
pine, western larch, and western white pine. However, the for-
est’s composition has shifted as the result of a number of fac-
tors, including fire suppression, past logging practices and
white pine blister rust fungus. Presently, the forest is densely
crowded with stands of younger, shade-tolerant species of
trees that are more prone to insect infestation, disease,
drought, and stand replacing fires than was previously the
case. The Forest Service determined in its Supplemental Final
Environmental Impact Statement (SFEIS) that “[t]he densely
stocked stands we see today are causing a general health and
vigor decline in all tree species.”

The Forest Service estimated that without intervention old
growth and mature forests would continue to decline and,
choosing among plan alternatives, decided to harvest 3,829
acres of forest. The Forest Service decided, as part of the
Project, to thin 277 acres of old-growth forest by removing
younger, smaller-diameter understory trees and fuel ladders
(vegetation that conveys fire from the ground to old-growth
canopy).1 The Forest Service plan leaves large trees unaf-
fected by not cutting trees over twenty-one inches in diameter
within the old-growth stands. Lands Council and Wild West
Institute challenged the Project.
1
The parties’ briefing states that 277 acres are involved in the Project,
whereas the record indicates that the correct number is 279 acres. We
adopt the 277 acres figure for purposes of this opinion.
 LANDS COUNCIL v. MCNAIR 20681
B. Prior Proceedings

In May 2004, the Forest Service issued the Mission Brush
Final Environmental Impact Statement (FEIS) and Record of
Decision (ROD). Lands Council administratively appealed the
ROD. We then issued a decision in Lands Council v. Powell,
395 F.3d 1019, 1037 (9th Cir. 2005), holding that the Timber
Stand Management Record System (TSMRS) database was
inaccurate and unreliable. In response to the Powell decision,
the Forest Service updated the TSMRS database and prepared
a supplemental EIS.

On April 20, 2006, the Forest Service issued the SFEIS and
ROD. Responding to the Powell ruling, the SFEIS contained
additional information on cumulative effects and the method-
ologies for analyzing forest conditions, including wildlife
analysis and stands of old-growth trees. The SFEIS also eval-
uated three alternative actions and one no-action alternative.
The Forest Service chose Alternative 2, which included har-
vesting smaller trees within the 277 acres of old growth in the
Project.

Lands Council administratively appealed the ROD, but its
appeal was denied. In October 2006, Lands Council and Wild
West Institute filed suit against the Forest Service alleging
violations of the IPNF Plan, NFMA, and NEPA. Contempora-
neously, Lands Council and Wild West Institute sought a tem-
porary restraining order and a preliminary injunction to halt
the Project. Boundary County, City of Bonners Ferry, City of
Moyie Springs, Everhart Logging, Inc., and Regehr Logging,
Inc. (collectively, Intervenors) intervened on behalf of the
Forest Service.

The district court denied Lands Council’s motion for a tem-
porary restraining order as moot, and also denied its motion
for a preliminary injunction. Lands Council appealed, and we
reversed the district court’s decision in Lands Council v.
McNair, 494 F.3d 771 (9th Cir. 2007). However, after rehear-
20682 LANDS COUNCIL v. MCNAIR
ing the case en banc in Lands Council v. McNair (Lands
Council), 537 F.3d 981 (9th Cir. 2008) (en banc), we unani-
mously affirmed the district court’s denial of injunctive relief.

Following the issuance of our decision en banc, the parties
filed cross-motions for summary judgment in the district
court. The district court granted the Forest Service’s motion
for summary judgment, and denied Lands Council’s motion
for summary judgment. Lands Council filed this appeal.2

STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review
a grant of summary judgment de novo. Swanson v. U.S. For-
est Serv., 87 F.3d 339, 343 (9th Cir. 1996). Section 706 of the
Administrative Procedure Act (APA) governs judicial review
of agency decisions under the NFMA and NEPA. 5 U.S.C.
§ 706; City of Sausalito v. O’Neill, 386 F.3d 1186, 1205 (9th
Cir. 2004) (“Because the statutes . . . do not contain separate
provisions for judicial review, our review is governed by the
APA.”). An agency’s action must be upheld unless it is “arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).

“Review under the arbitrary and capricious standard is nar-
row and we do not substitute our judgment for that of the
agency.” Lands Council, 537 F.3d at 987 (internal quotations
marks and brackets omitted) (quoting Earth Island Inst. v.
U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006), abro-
gated on other grounds by Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7 (2008)). A decision is arbitrary and capri-
cious “only if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an important
aspect of the problem, or offered an explanation that runs
counter to the evidence before the agency or is so implausible
that it could not be ascribed to a difference in view or the
2
Co-Plaintiff Wild West Institute did not join in this appeal.
 LANDS COUNCIL v. MCNAIR 20683
product of agency expertise.” Lands Council, 537 F.3d at 987
(citations and internal quotation marks omitted). Agency
action is valid if the agency “considered the relevant factors
and articulated a rational connection between the facts found
and the choices made.” Arrington v. Daniels, 516 F.3d 1106,
1112 (9th Cir. 2008) (citations and internal quotation marks
omitted).

Moreover, we generally must be “at [our] most deferential”
when reviewing scientific judgments and technical analyses
within the agency’s expertise. See Balt. Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). We
are not to “act as a panel of scientists, instructing the agency,
choosing among scientific studies, and ordering the agency to
explain every possible scientific uncertainty.” Lands Council,
537 F.3d at 988 (internal quotation marks and brackets omit-
ted). And “[w]hen specialists express conflicting views, an
agency must have discretion to rely on the reasonable opin-
ions of its own qualified experts even if, as an original matter,
a court might find contrary views more persuasive.” Id. at
1000 (quoting Marsh v. Or. Natural Res. Council, 490 U.S.
360, 378 (1989)).

STATUTORY AND REGULATORY FRAMEWORK

A. The National Forest Management Act and Idaho
Panhandle National Forest Plan

The Forest Service manages national forests pursuant to the
NFMA. See 16 U.S.C. § 1604. The NFMA imposes both sub-
stantive and procedural requirements. The Forest Service is
required to develop guidelines providing “for diversity of
plant and animal communities.” 16 U.S.C. § 1604(g)(3)(B).
The Forest Service is also procedurally required to develop
forest plans for each unit in the national forest system, which
must meet the standards imposed by NFMA. 16 U.S.C.
§ 1604(a), (f). The IPNF Plan is one such plan.
20684 LANDS COUNCIL v. MCNAIR
Section 10(b) of the IPNF Plan provides that
“[a]pproximately 10 percent of the Forest will be maintained
in old growth as needed to provide for viable populations of
old-growth dependent and management indicator species.”
U.S. Dep’t of Agric., Forest Plan, Idaho Panhandle National
Forests, at II-5 (1987).3 Moreover, the IPNF Plan requires the
Forest Service to “[m]anage the habitat of species listed in the
Regional Sensitive Species List to prevent further declines in
populations which could lead to federal listing under the
Endangered Species Act.” Id. at II-28. The Mission Brush
Project is required to comply with the standards and goals of
the IPNF Plan. See 16 U.S.C. § 1604(g)(1).

B. The National Environmental Policy Act

NEPA imposes a procedural requirement on federal agen-
cies to “ ‘take[ ] a “hard look” at the potential environmental
consequences of the proposed action.’ ” Or. Natural Res.
Council v. Bureau of Land Mgmt., 470 F.3d 818, 820 (9th Cir.
2006) (quoting Klamath-Siskiyou Wildlands Ctr. v. Bureau of
Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004)). NEPA’s pur-
pose is twofold: (1) ensure that agencies carefully consider
information about significant environmental impacts, and (2)
guarantee that relevant information is available to the public.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
349 (1989); Ctr. for Biological Diversity v. Nat’l Highway
Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008).
Federal agencies are required to prepare an environmental
impact statement to assess the impact of federal actions “sig-
nificantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(c); Ctr. for Biological Diversity, 538 F.3d at
1185. “In contrast to NFMA, NEPA exists to ensure a pro-
cess, not to mandate particular results.” Neighbors of Cuddy
Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002)
(citations omitted).
3
Available at http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/
fsm9_018609.pdf (last visited Nov. 11, 2010).
 LANDS COUNCIL v. MCNAIR 20685
DISCUSSION

Lands Council makes three claims on appeal in its chal-
lenge to the Mission Brush Project. Specifically, it asserts
that: (1) the “proxy-on-proxy” methodology utilized by the
Forest Service has failed and that, as a result, the IPNF Plan’s
10(b) provision requiring 10% old-growth forest is insuffi-
cient; (2) the Forest Service cannot demonstrate that it is in
compliance with the IPNF Plan’s 10%-old-growth standard
because the databases consulted by the Forest Service are
flawed; and (3) the Forest Service has applied flawed habit
suitability models. We disagree.

A. Methodology and the IPNF Plan’s 10%-old-growth
standard

1. Exhaustion of the challenge to the IPNF Plan’s
10%-old-growth standard

Before addressing Lands Council’s claim on this issue, we
first address the Forest Service’s contention that Lands Coun-
cil failed to exhaust its challenge to the 10%-old-growth stan-
dard.

[1] The purpose of the exhaustion doctrine is to permit
administrative agencies to utilize their expertise, correct any
mistakes, and avoid unnecessary judicial intervention in the
process. Buckingham v. U.S. Dep’t of Agric., 603 F.3d 1073,
1080 (9th Cir. 2010). A party forfeits arguments that are not
raised during the administrative process. See Dep’t of Transp.
v. Pub. Citizen, 541 U.S. 752, 763-65 (2004). However, a
claimant need not raise an issue using precise legal formula-
tions, as long as enough clarity is provided that the decision
maker understands the issue raised. Native Ecosystems Coun-
cil v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002). Accord-
ingly, alerting the agency in general terms will be enough if
the agency has been given “a chance to bring its expertise to
bear to resolve [the] claim.” Id. at 900.
20686 LANDS COUNCIL v. MCNAIR
[2] Here, Lands Council raised the study authored by
Lesica in its administrative challenge, arguing that the Forest
Service did not scientifically justify why 10% old-growth
habitat is sufficient to maintain viability for old-growth-
dependent species. In addition, before the district court, Lands
Council argued that the proxy-on-proxy methodology is unre-
liable because it fails to provide enough habitat for 40% of a
species-maximum population potential. Before us, Lands
Council combined these two arguments. While Lands Coun-
cil’s arguments are now more fully developed than they were
in prior proceedings, Lands Council clearly put the Forest
Service on notice that it challenged the 10%-old-growth stan-
dard, claiming that it is insufficient to ensure enough habitat
for old-growth-dependent species. We therefore find that
Lands Council exhausted below its general argument that the
10%-old-growth standard is insufficient.

2. The Forest Service’s reliance on the IPNF Plan’s
10%-old-growth standard

The IPNF Plan requires that “[a]pproximately 10 percent of
the Forest will be maintained in old growth as needed to pro-
vide for viable populations of old-growth dependent and man-
agement indicator species.” Lands Council argues, however,
that because the Forest Service utilizes the proxy-on-proxy
methodology, the minimum old-growth habitat should be 14%
of the forest. Lands Council arrives at this figure by asserting
that, historically, the old-growth acreage average was at 35%
and then multiplies that figure by the 40%-maximum-
population-potential figure for indicator species identified in
the IPNF Plan. Lands Council also relies on the “Lesica”
paper to argue that the 10%-old-growth standard is flawed.

We do not “act as a panel of scientists that instructs the
Forest Service how to validate its hypotheses regarding wild-
life viability, chooses among scientific studies in determining
whether the Forest Service has complied with the underlying
Forest Plan, and orders the agency to explain every possible
 LANDS COUNCIL v. MCNAIR 20687
scientific uncertainty. . . . [T]his is not a proper role for a fed-
eral appellate court.” Lands Council, 537 F.3d at 988. Rather,
we defer to the agency’s technical expertise where the record
demonstrates that the agency reasonably relied on data in con-
cluding the Project meets the standards imposed by the
NFMA. See id. at 993-94.

[3] Here, we conclude that the Forest Service reasonably
relied on the 10%-old-growth standard as set forth in the
IPNF Plan. First, the IPNF Plan’s goal of maintaining a 40%
population potential is an objective, not a requirement, unlike
the 10%-minimum-old-growth standard. Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 71-72 (2004). Moreover,
many species use a variety of habitats and do not rely exclu-
sively on old-growth forest. For example, the pileated wood-
pecker thrives in different forest types and the northern
goshawk lives in a mix of landscape stages. Thus, simply
applying a flat standard of 40% population viability within
old-growth forest does not account for the reality that wildlife
use a variety of habitats. Furthermore, while the Forest Ser-
vice is not required to meet the 14% level old-growth standard
advocated by Lands Council, we note that the area where the
Project is located actually meets a 14% threshold.

[4] Second, we have already rejected Lesica’s study in a
similar challenge based on the Kootenai National Forest Plan.
Ecology Ctr. v. Castaneda, 574 F.3d 652, 659 (9th Cir. 2009).
In particular, we determined that “Lesica’s conclusion does
not bear directly on the ‘viable population’ standard. The fact
that levels of old-growth forest were significantly higher prior
to European settlement in no way disproves the conclusion
that ten percent is enough to support ‘viable populations.’ ”
Id. Because the Lesica study did not directly challenge the
Forest Service’s conclusion that 10% was sufficient to sustain
viable populations of old-growth species, the agency was not
required to respond to it. Id.
20688 LANDS COUNCIL v. MCNAIR
[5] In light of the foregoing, we conclude that the Forest
reasonably relied on the 10%-old-growth standard as set forth
in the IPNF Plan.

B. The Forest Service’s compliance with the IPNF Plan’s
10%-old-growth standard

Lands Council contends that the Forest Service cannot
demonstrate that it is in compliance with the IPNF Plan’s 10%
requirement because the FIA and TSMRS databases are unre-
liable. Lands Council’s contention fails.

“When specialists express conflicting views, 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.” Lands Council,
537 F.3d at 1000 (quoting Marsh, 490 U.S. at 378). It is
within the Forest Service’s discretion to rely on its own data
and to discount the alternative evidence proffered by Lands
Council. Id. As discussed infra, the Forest Service reasonably
relied on the FIA database and, after updating, the TSMRS
database to conclude that more than 10% of the IPNF is old-
growth. Moreover, because the Project does not contemplate
the removal of old-growth trees, it does not affect the amount
of old-growth forest in the IPNF.

1. The Forest Inventory and Analysis Database

[6] The FIA database’s design and methodology are scien-
tific, publicly disclosed, and repeatable with stringent quality
control standards and procedures. Lands Council, 537 F.3d at
999. Based on the FIA database, the Forest Service estimated
that in 2004 the percentage of old-growth forest in the IPNF
was 12.85% with a 90% degree of certainty. This exceeds the
10%-minimum-old-growth forest requirement under the IPNF
Plan. Even though Lands Council disagrees with this conclu-
sion, the Forest Service is entitled to reasonably rely on its
own scientific data and analysis. See id. at 1000.
 LANDS COUNCIL v. MCNAIR 20689
Lands Council contends that the FIA database is flawed
because it overestimates old-growth habitat due to the fact
that actual stands are not examined. Instead, Lands Council
argues, the FIA database is based on surveys of sample plots
that are one-sixth of an acre in size and, therefore, does not
accurately represent the fragmented IPNF or meet the IPNF
Plan’s minimum 25-acre old-growth size requirement. Lands
Council further claims that the FIA’s 90% confidence level is
undermined because the 2006 Monitoring Report had a 10%
reduction in two years in old-growth estimates, and that the
Forest Service cannot meet the 10%-minimum-old-growth
standard as the 2006 Monitoring Report had a confidence
interval range of 9.5% to 14%. According to Lands Council,
these alleged flaws mean that the FIA database cannot vali-
date the TSMRS database’s old-growth estimates.

Contrary to Lands Council’s assertions, the Forest Service
reasonably relied on the FIA database as a scientifically valid
measure of old-growth forest. First, the IPNF Plan does not
require a 25-acre stand in order to count towards the 10%
minimum. Section 10(f) of the IPNF Plan states that “one or
more old-growth stand per old-growth unit should be 300
acres or larger. . . . The remaining old-growth management
stands should be at least 25 acres in size. Preferred size is 80
acres.” This Plan objective is to be used as a guide for plan-
ning purposes, but does not prohibit counting stands less than
25-acres as old growth. See, e.g., Ecology Ctr., 574 F.3d at
660-61 (concluding plan language was suggestive of how old
growth should be managed, but was not mandatory). Addi-
tionally, even if only 25-acre or larger stands were counted,
there is still enough old growth to meet the requirement for
old growth management units.

Further, the Forest Service is not mandated to follow a par-
ticular methodology in determining whether or not the Project
is in compliance with the 10% required old-growth forest. See
Lands Council, 537 F.3d at 998, 1000. It is within the Forest
20690 LANDS COUNCIL v. MCNAIR
Service’s discretion to choose its methodology, as long as it
explains why it is reliable. Id. at 994.

Here, a 10% reduction from the 2004 to the 2006 Monitor-
ing Report does not undermine the Forest Service’s reliance
on the FIA’s 90% confidence level. The 2006 Report (vari-
ance from 9.5% to 14%) was only at slight variance with the
2004 Report (variance from 10.55% to 15.27%). It is reason-
able to expect some variance over the years as the forest is
dynamic, not static. Moreover, the FIA estimated in 2006 that
the old growth was 11.8%, which meets the 10% requirement.
Because this calculation is provided with a 90% confidence
measure, there is a very small chance that the old growth for-
est is actually less than 10%, at 9.5%. The measure of confi-
dence serves to suggest the level of accuracy in determining
the 11.8% number. Just because the outer possible, though
unlikely, range is just under 10% does not mean that it was
unreasonable for the Forest Service to rely on the more proba-
ble calculation of 11.8% in determining plan compliance.

Moreover, Lands Council did not administratively exhaust,
either in its administrative appeal or before the district court,
its argument that the FIA database is unreliable because the
Forest Service examined only 8.3 acres of old-growth forest.
See Dombeck, 304 F.3d at 900. Nor does Lands Council pro-
vide any scientific or reasoned analysis of why the FIA data-
base is unreliable because only eight acres of old-growth
forest have actually been examined.

The Forest Service reasonably concluded that the FIA data-
base is statistically sound and scientifically valid for measur-
ing forests at large and medium scales. Expert opinion
supports this conclusion. For example, Dr. Czapleweski,
senior research mathematical statistician for the Forest Ser-
vice Rocky Mountain Research Station concluded that the
FIA database “can produce a scientifically defensible estimate
of the proportion of forest within a National Forest that meets
the Norther Region’s definition of old-growth.”
 LANDS COUNCIL v. MCNAIR 20691
[7] The Forest Service’s determination that the FIA data-
base is reliable—based on independent, public, and scientifi-
cally verifiable information—is entitled to substantial
deference. Lands Council, 537 F.3d at 993, 999. In light of the
foregoing considerations, it was not arbitrary and capricious
for the Forest Service to rely on the FIA database in reaching
the conclusion that the Project is in compliance with the IPNF
Plan requirement of 10% old growth.

2. Timber Stand Management Record System
Database

[8] In Powell, we held that the TSMRS database was unre-
liable for estimating old growth in the IPNF. 395 F.3d at
1036. In response, the Forest Service updated the database
and issued a supplemental FEIS to address the issues raised
in Powell. To the extent that the Forest Service ensured that
its conclusions were based on updated and reliable evidence,
its reasonable reliance on the TSMRS database is entitled to
deference. See Lands Council, 537 F.3d at 999.

Lands Council argues that the Forest Service’s update is
insufficient because there is no documentation of field verifi-
cation on a statistically significant number of stands.4 Lands
4
Lands Council also argues that the 10% standard is not met because the
Project area verification found a 22% reduction in code 9 old growth.
Lands Council’s position is that this reduction in the Project area should
be applied forest-wide, which would demonstrate that the IPNF Plan 10(b)
standard is not met. However, this argument was not exhausted in either
the administrative appeal or before the district court. See Buckingham, 603
F.3d at 1080-81. As such, this issue is not properly before us.
Lands Council also does not demonstrate by citation to the record that
it exhausted its argument that the Forest Service has failed to provide ade-
quate information related to its review of old-growth forest that began in
2001. The Forest Service disclosed information related to the review, and
it is incumbent on Lands Council to bring any alleged deficiencies to the
Forest Service’s attention at the administrative level so that it can correct
them. See Dombeck, 304 F.3d at 900.
20692 LANDS COUNCIL v. MCNAIR
Council also argues that the database does not provide infor-
mation about snags or canopy closure and thus does not con-
firm the quality of the old growth.

Because the TSMRS database was updated and verified by
the FIA database, and the Forest Service obtained snag and
canopy data in other ways, the Forest Service reasonably
relied on the TSMRS database to conclude the Project was in
compliance with the 10%-old-growth standard.

First, the Forest Service specifically updated the TSMRS
database in response to the Powell decision. This included
spending $320,000 for updates, stand reviews, and field veri-
fication of old-growth stand information in the Project area.
The forest-wide verification was conducted on a sample basis,
which was a method approved by Lands Council. 537 F.3d at
991-92. Moreover, the Forest Service conducted field verifi-
cation of the old-growth stands in the Project area.

Having conducted its update with new data, the TSMRS
database indicated that 12.1% of the IPNF forested areas are
allocated as old growth, with 98.5% of these stands being
field verified. Based on these conclusions, the SFEIS deter-
mined that the IPNF old-growth requirements were met.

Moreover, the TSMRS is an independent database from the
FIA, using different design samples and developed by a dif-
ferent group. Both the FIA and TSMRS found that old-growth
inventory was approximately 12%, which is sufficient to meet
the IPNF Plan 10(b) standard of 10%. In sum, having updated
and field verified the TSMRS database, the Forest Service
reasonably relied on conclusions that the quantity of old
growth meets the 10% IPNF Plan requirement, particularly
when such results are consistent with the independent conclu-
sions under the FIA database.

Second, the fact that the TSMRS database does not calcu-
late snags or canopy closure does not mean that the Forest
 LANDS COUNCIL v. MCNAIR 20693
Service ignored the quality of the habitat. The TSMRS does
not use snags or canopy closure data because these character-
istics are not recognized as minimum criteria for determining
whether a stand is old growth. The Forest Service relies on
widely accepted standards for determining whether a stand is
old growth. P. Green, et al., “Old-Growth Forest Types of the
Northern Region,” R-1 SES 4/92 U.S. Forest Service, North-
ern Region (April 1992, errata corrected Feb. 2005). And, of
course, the Forest Service is not mandated to follow a particu-
lar methodology, as long as it explains why its methodology
is reliable. See Lands Council, 537 F.3d at 994.

Moreover, the FIA database, which was also used to calcu-
lated old-growth inventory for the Project SEIS, provides
forest-wide snag data. Canopy cover is stand-specific criteria,
based on the habitat needs of particular species. As such, the
Forest Service reviewed the canopy cover for this Project
when examining the habit suitability for species.

[9] Accordingly, based on the TSMRS database updates,
which were verified by the FIA database, the Forest Service
reasonably relied on the TSMRS database to conclude the
Project was in compliance with the 10%-old-growth standard.
It further accounted for snag data through the FIA database
and reviewed habitat needs for particular species, even though
such indicators are not characteristics of minimum old-growth
forest. Thus, the Forest Service did not arbitrarily and capri-
ciously rely on the TSMRS database in determining that the
IPNF meets the 10%-old-growth standard.

3. The Project does not remove old-growth forest

[10] It is also significant that the Project does not allow for
the removal of any old-growth trees; only smaller-diameter
trees will be removed to facilitate the growth of older trees.
Lands Council does not dispute this. We already decided this
issue when we held en banc that “because no old growth for-
est is to be harvested under the Project, . . . it cannot be said
20694 LANDS COUNCIL v. MCNAIR
that the Project itself violates the IPNF Plan’s requirement to
maintain ten percent of the forest acreage as old growth for-
est.” Lands Council, 537 F.3d at 1000 (internal quotation
marks omitted). Therefore, the record supports the Forest Ser-
vice’s conclusion that the Project is in compliance with the
IPNF Plan’s 10%-old-growth requirement.

C. Habitat suitability models, based on the proxy-on-
proxy methodology, for maintaining old-growth
dependent species populations

Lands Council next argues that the Forest Service applied
flawed habitat suitability models based on the TSMRS. In
particular, Lands Council contends that the Forest Service
could not document the presence of a single flammulated owl,
an indicator species, during a ten-year period. Moreover,
Lands Council alleges, other old-growth-dependent species
such as the northern goshawk, fisher, marten, pileated wood-
pecker, and black-backed woodpecker could also suffer from
the Project.

[11] Forest plans must “provide for diversity of plant and
animal communities . . . in order to meet overall multiple-use
objectives.” 16 U.S.C. § 1604(g)(3)(B). The IPNF Plan
requires that the Forest Service manage the habitat of regional
sensitive species and prevent a decline in their populations
that could lead to a federal listing under the Endangered Spe-
cies Act. The Plan also requires monitoring population trends
of management indicator species and evaluating each project
alternative for impacts on both indicator species habitat and
population.

[12] “[N]either the NFMA and its regulations nor the IPNF
Forest Plan specify precisely how the Forest Service must
demonstrate that its site-specific plan adequately provide for
wildlife viability. . . . Thus, we defer to the Forest Service as
to what evidence is, or is not, necessary to support wildlife
viability analyses.” Lands Council, 537 F.3d at 992 (internal
 LANDS COUNCIL v. MCNAIR 20695
footnote omitted). For example, the Forest Service may use
“the amount of suitable habitat for a particular species as a
proxy for the viability of that species” (habit-as-proxy
approach) and may also use “habitat as a proxy to measure a
species’ population, and then to use that species’ population
as a proxy for the population of other species” (proxy-on-
proxy approach). Id. at 996-97 & n.10. Additionally, viability
analysis that uses all currently available scientific data is con-
sidered sound. Inland Empire Pub. Lands v. U.S. Forest Serv.,
88 F.3d 754, 762 (9th Cir. 1996). While the Forest Service
may rely on reliable proxies for species’ viability, it “never-
theless must both describe the quantity and quality of habitat
that is necessary to sustain the viability of the species in ques-
tion and explain its methodology for measuring this habitat.”
Lands Council, 537 F.3d at 987-88.

For this Project, the Forest Service considered the wildlife
that could be affected by the proposed activities. The Forest
Service assessed both capable and suitable habitat, as well as
the quality and quantity of habitat necessary to support each
species. In reaching its conclusions, the Forest Service relied
on “scientific literature, wildlife databases, professional judg-
ment, recent field surveys, and habitat evaluations.” The For-
est Service’s methodology was validated as reliable and
accurate through site visits of representative capable habitat,
with an emphasis on stands considered “currently suitable.”
Indirect and cumulative impacts on the species were investi-
gated and assessed. After this analysis, the Forest Service
concluded that the Project would likely not contribute to fed-
eral listing under the Endangered Species Act or cause a loss
of viability.

Lands Council’s first challenge to the Forest Service’s hab-
itat suitability analysis is that it is based on the TSMRS data-
base. As discussed supra, the Forest Service reasonably relied
on the TSMRS and FIA database estimates for old-growth
habitat. In addition to utilizing the databases, the Forest Ser-
20696 LANDS COUNCIL v. MCNAIR
vice also conducted site-specific examinations to confirm the
database models.

Lands Council further contends that because the Forest Ser-
vice has not documented the presence of a single flammulated
owl, an indicator species, over the course of ten years, the
habitat suitability analysis is flawed.

Recently, we held that the proxy-on-proxy approach was
unreliable where the management indicator species (there the
sage grouse) had not been seen in the project area for fifteen
years, and the Forest Service had not cited any “monitoring
difficulties.” Native Ecosystems Council v. Tidwell, 599 F.3d
926, 933-35 & n.9 (9th Cir. 2010) (citing Lands Council, 537
F.3d at 998). However, Tidwell is distinguishable from the
circumstances here.

[13] We previously considered flammulated owl detection
in the Project area and held that the viability analysis was not
unreliable where the species was difficult to detect. Lands
Council, 537 F.3d at 998 (“[M]onitoring difficulties do not
render a habitat-based analysis unreasonable, so long as the
analysis uses all the scientific data currently available.”)
(internal quotation marks omitted). The Forest Service used
available scientific data that flammulated owls prefer open
old-growth stands and examined how the project would sup-
port a more viable habitat for the owls. The Forest Service
further relied on other surveys that detected flammulated owls
in post-treatment areas, and determined that fire suppression
has been a negative influence on flammulated-owl habitat.
Thus, even though there were no owls detected in the area, the
proxy-on-proxy method does not fail in this case where the
flammulated owls are difficult to detect, and the Forest Ser-
vice used available scientific data to reach its conclusions. See
Lands Council, 537 F.3d at 998.

The record indicates that northern goshawks were using
suitable habitat in the Project area and other active territories.
 LANDS COUNCIL v. MCNAIR 20697
The SFEIS evaluated the environmental consequences of the
Project on the goshawks. Further, the Forest Service based its
conclusions regarding goshawk habitat on published scientific
literature.

Similarly, the SFEIS discussed the scientific material and
basis for concluding that fishers, while currently rare, should
see improved habitat overall with the implementation of the
Project, even if there was some degrading of fisher habitat.
This conclusion was based on existing scientific literature and
an evaluation of the Project’s potential impact on the fishers.

The Forest Service also considered available scientific liter-
ature and the potential impact of the Project on the pileated
woodpecker and black-backed woodpecker. The analysis con-
cluded that the Project would likely result in some effect on
the pileated woodpecker (which lives in a variety of forest
habitat beyond old growth), but that adjacent locations would
provide suitable feeding habitat. With regard to the black-
backed woodpecker, the Forest Service considered that while
the Project would create a reduction in snags by removing
unhealthy trees, a sufficient quantity of snags would remain
to meet the guidelines’ recommended levels. Thus, the Forest
Service concluded that the black-backed woodpecker would
remain viable.

CONCLUSION

[14] For the reasons noted supra, the district court did not
err when it granted the Forest Service’s motion for summary
judgment and denied Lands Council’s motion for summary
judgement.

AFFIRMED.