FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 5, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
BIODIVERSITY CONSERVATION
ALLIANCE, f/k/a Biodiversity
Associates; BRIAN BRADEMEYER,
Plaintiffs - Appellants,
v. No. 13-1352
DANIEL J. JIRON, Regional Forester for
the Rocky Mountain Region of the United
States Forest Service; TOM TIDWELL,
Chief of the United States Forest Service;
CRAIG BOBZIEN, Supervisor for the
Black Hills National Forest,
Defendants - Appellees,
LUCAS LENTSCH, Secretary of the
South Dakota Department of Agriculture;
BLACK HILLS FOREST RESOURCE
ASSOCIATION; BLACK HILLS
MULTIPLE USE COALITION;
LAWRENCE COUNTY; MEADE
COUNTY; PENNINGTON COUNTY,
Intervenors Defendants -
Appellees,
BIODIVERSITY CONSERVATION
ALLIANCE; WESTERN
WATERSHEDS PROJECT; NATIVE
ECOSYSTEMS COUNCIL; PRAIRIE
HILLS AUDUBON SOCIETY,
Petitioners - Appellants,
v. No. 13-8053
UNITED STATES FOREST SERVICE,
Respondent – Appellee,
and
STATE OF WYOMING; STATE OF
SOUTH DAKOTA; BLACK HILLS
FOREST RESOURCE ASSOCIATION,
Intervenors Respondents -
Appellees.
CONSOLIDATED APPEALS FROM
THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO (D.C. NO. 1:99-CV-02173-REB-MJW)
AND
THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF WYOMING (D.C. NO. 1:11-CV-00340-SWS)
John Persell, Biodiversity Conservation Alliance, Laramie, Wyoming, appearing for
Appellants.
Robert H. Oakley, Attorney (Robert G. Dreher, Acting Assistant Attorney General,
Andrew C. Mergen, Attorney, and Alison D. Garner, Attorney, with him on the brief),
United States Department of Justice, Environment & Natural Resources Division,
Washington, D.C., appearing for Defendants-Appellees and Respondent-Appellee.
Michael J. McGrady, Senior Assistant Attorney General, Wyoming Attorney General’s
Office, Cheyenne, Wyoming (James C. Kaste, Senior Assistant Attorney General,
Wyoming Attorney General’s Office, Cheyenne, Wyoming; Diane P. Best, South Dakota
Attorney General’s Office, Sioux Falls, South Dakota; Bruce L. Outka, Lawrence County
State Attorney, Deadwood, South Dakota; and Kent H. Holsinger and Alyson Meyer
Gould, Holsinger Law, Denver, Colorado, with him on the brief), appearing for
Intervenors Defendants-Appellees and Intervenors Respondents-Appellees.
- ii -
TABLE OF CONTENTS
I. BACKGROUND ...................................................................................................... 2
A. Relevant Statutes and Regulations .................................................................... 2
1. National Forest Management Act...................................................................... 2
a. The 1982 Rule................................................................................................. 3
b. The 2005 Rule and the 2005 Modification of the 1982 Rule ......................... 5
2. National Environmental Protection Act ............................................................ 5
a. The “reasonable range” of alternatives requirement and the “no action”
alternative requirement ................................................................................... 7
b. The “hard look” requirement .......................................................................... 8
B. Factual and Procedural History ......................................................................... 8
1. The 1997 Forest Plan: Promulgation, Challenge, and Forest Service Response
........................................................................................................................... 9
a. Promulgation and Biodiversity’s challenge .................................................... 9
b. Forest Service response: the Chief’s 1999 Decision ................................... 10
i. NFMA Shortcomings ............................................................................... 10
1) Insufficient northern goshawk protections.......................................... 10
2) Insufficient snag density ..................................................................... 11
3) Insufficient objectives for Emphasis Species ..................................... 11
4) Insufficient protections for sensitive plant and animal species .......... 12
ii. NEPA Shortcoming .................................................................................. 13
c. Re-evaluation of the 1997 Forest Plan and the Chief’s interim management
instructions .................................................................................................... 14
2. Settlement Agreement ..................................................................................... 15
3. Implementation of the Chief’s 1999 Decision and 2000 Settlement Agreement
......................................................................................................................... 16
a. Phase I Amendment ...................................................................................... 16
b. Phase II Amendment..................................................................................... 16
4. Biodiversity’s Challenges to the Phase II Amendment ................................... 19
a. Administrative challenges ............................................................................ 19
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b. Wyoming litigation ....................................................................................... 20
c. Colorado litigation ........................................................................................ 21
d. Appeals consolidated .................................................................................... 21
II. DISCUSSION—WYOMING APPEAL ................................................................ 22
A. Standing ........................................................................................................... 23
B. Standard of Review ......................................................................................... 23
C. NFMA Issues ................................................................................................... 26
1. Regulations Applicable to the Phase II Amendment....................................... 26
2. Biodiversity’s NFMA Challenges to the Phase II Amendment ...................... 27
a. Species viability mandate ............................................................................. 27
i. Viable species mandate under the applicable regulations ........................ 28
1) Interpretation of regulations ................................................................ 29
a) Whether the regulations have a plain meaning or are ambiguous .. 31
b) Whether the Forest Service’s interpretation is reasonable ............. 35
i) The Forest Service’s interpretation............................................. 36
ii) Biodiversity’s position ................................................................ 38
iii) Conclusion .................................................................................. 41
2) Whether the Phase II Amendment fails to meet the species viability
mandate under the Forest Service’s interpretation in violation of the
APA ..................................................................................................... 42
ii. Viable species mandate—habitat and protections .................................... 45
1) Northern goshawk ............................................................................... 46
2) Snag-dependent species ...................................................................... 48
3) Sensitive plants ................................................................................... 51
b. Protect RNAs and Botanical Areas............................................................... 53
i. Protecting RNAs ....................................................................................... 53
ii. Protecting Botanical Areas ....................................................................... 55
c. Suitability and capability assessments .......................................................... 60
i. When to conduct a suitability or capability analysis ................................ 60
ii. MIS suitability and capability analyses .................................................... 63
1) MIS suitability analysis....................................................................... 64
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2) MIS capability analysis ....................................................................... 65
iii. Grazing suitability and capability analyses .............................................. 66
1) Grazing suitability analysis ................................................................. 66
2) Grazing capability analysis ................................................................. 68
D. NEPA Issues .................................................................................................... 69
1. Reasonable Range of Alternatives................................................................... 70
2. Hard Look at Sedimentation Policies .............................................................. 75
3. Hard Look at Historical Grazing Practices...................................................... 77
III. DISCUSSION—COLORADO APPEAL .............................................................. 79
A. Factual and Procedural Background................................................................ 79
1. The Settlement Agreement .............................................................................. 79
2. Administrative Challenges to the Phase II Amendment ................................. 80
3. Wyoming Litigation ........................................................................................ 81
4. The Motion to Enforce the Settlement Agreement in Colorado and Dismissal
Based on Laches .............................................................................................. 82
B. Standard of Review and Legal Background .................................................... 84
1. Standard of Review ......................................................................................... 84
2. Legal Background ........................................................................................... 85
C. Analysis ........................................................................................................... 88
1. Failure to Consider Laches Is Disfavored ....................................................... 88
2. Unreasonable Delay......................................................................................... 90
3. Undue Prejudice .............................................................................................. 93
IV. CONCLUSION ...................................................................................................... 96
-v-
Before TYMKOVICH, McKAY, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
This appeal consolidates two cases about United States Forest Service (the “Forest
Service”) actions in the Black Hills National Forest (“BHNF”), which straddles the
Wyoming and South Dakota border.
The Appellants,1 led by Biodiversity Conservation Alliance, are non-profit entities
(collectively, “Biodiversity”) interested in species and habitat protection in the BHNF.
The Appellees2 are the Forest Service and several of its officials tasked with managing
the BHNF. Intervenors-Appellees3 are state and county governments and private groups
concerned with how management of the BHNF affects nearby private land, state and
county citizens, and visitors.
1
Biodiversity Conservation Alliance, Western Watersheds Project, Native
Ecosystems Council, and Prairie Hills Audubon Society. Brian Brademeyer, a resident of
the BHNF, is also a petitioner.
2
The U.S. Forest Service; the Chief of the U.S. Forest Service, Tom Tidwell; the
Regional Forester for the Rocky Mountain Region, Daniel Jiron; and the Supervisor for
the BHNF, Craig Bobizen.
3
The State of Wyoming; the State of South Dakota; the Secretary of the South
Dakota Department of Agriculture, Lucas Lentsch; and the South Dakota counties of
Meade County, Lawrence County, and Pennington County. Also included are two non-
profit groups—the Black Hills Forest Resource Association and the Black Hills Regional
Multiple Use Coalition.
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Biodiversity sued the Forest Service regarding the BHNF in two separate
proceedings. First, in the United States Federal District Court for the District of
Wyoming, Biodiversity claimed the Forest Service had failed to comply with various
federal statutes and regulations. The court denied Biodiversity’s petition for review.
Second, in the United States Federal District Court for the District of Colorado,
Biodiversity moved for relief, arguing the Forest Service had violated a settlement
agreement. The court dismissed that motion.
Biodiversity appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm
both the Wyoming and Colorado federal district courts.
I. BACKGROUND
We describe relevant statutes and regulations, summarize the factual and
procedural history of the two cases, and then turn to our analysis.
A. Relevant Statutes and Regulations
Two sources of statutory and regulatory law govern this case: (1) the National
Forest Management Act of 1976 (“NFMA”); (2) the National Environmental Protection
Act of 1969 (“NEPA”); and both acts’ implementing regulations. We provide a short
overview here and more details during our analysis.
1. National Forest Management Act
The Forest Service—a United States Department of Agriculture (“USDA”)
agency—manages the national forest system. NFMA requires the Forest Service to
manage forests using a two-step process. See 16 U.S.C §§ 1600-1614. First, the Forest
Service must develop a Land and Resource Management Plan (“forest plan”) for each
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national forest unit. Second, it must implement the forest plan through site-specific
projects. 16 U.S.C. § 1604(a) & (i); see also Silverton Snowmobile Club v. USFS, 433
F.3d 772, 785 (10th Cir. 2006).
Forest plans must “provide for diversity of plant and animal communities based on
the suitability and capability of the specific land area . . . .” 16 U.S.C. § 1604(g)(3)(B);
see also Utah Envtl. Cong. v. Russell, 518 F.3d 817, 821 (10th Cir. 2008). Implementing
regulations provide standards and guidelines to create a forest plan and approve any
accompanying site-specific projects. See 16 U.S.C. § 1604(g); Utah Envtl. Cong. v.
Bosworth, 443 F.3d 732, 737 (10th Cir. 2006). When we review a challenge to a forest
plan or a site-specific project, we must determine whether the plan or the project meets
NFMA and NFMA’s implementing regulations. See Utah Envtl. Cong. v. Troyer, 479
F.3d 1269, 1272 (10th Cir. 2007).
The NFMA regulations have been amended numerous times. We focus on the
1982 amendment (the “1982 Rule”) and the 2005 amendment (the “2005 Rule”). See 47
Fed. Reg. 43,026 (Sept. 30, 1982) (codified at 36 C.F.R. §§ 219.1-219.29 (1982)); 70
Fed. Reg. 1023 (Jan. 5, 2005) (codified at 36 C.F.R. §§ 219.1-219.16 (2005)). Although
more recent rules have superseded both of those rules, the 1982 and 2005 versions are
pertinent to this case.
a. The 1982 Rule
The 1982 Rule required the Forest Service to promote the diversity of species by
maintaining “viable populations of existing native and desired” plants and animals. 36
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C.F.R. § 219.19 (1982).4 This “viability mandate” required that each species’ population
and habitat be abundant and well-distributed enough to safeguard its continued existence.
See id.
The 1982 Rule allowed the Forest Service to comply with the viability mandate by
monitoring a selected group of “Management Indicator Species” (“MIS”). Id.
§ 219.19(a)(1). MIS are “[p]lant or animal species . . . that are used to monitor the effects
of planned management activities on populations of wildlife and fish, including those that
are socially or economically important.” Phase II Amendment Glossary, App. at 2338.
Thus, the MIS served as proxies for other species’ health in the forest. See 36 C.F.R.
§ 219.19(a)(1) (1982) (“These species shall be selected because their population changes
are believed to indicate the effects of management activities.”); Forest Guardians v.
USFS, 641 F.3d 423, 427 (10th Cir. 2011) (per curiam) (comparing the MIS to canaries
used in coal mines to detect dangerous levels of poisonous gas). In addition to ensuring
sufficient habitat for the MIS, the 1982 Rule required the Forest Service to “gather
quantitative data on actual MIS populations . . . .” See Utah Envtl. Cong. v. Bosworth,
372 F.3d 1219, 1227 (10th Cir. 2004).
Under the 1982 Rule, the Forest Service measured its success at maintaining
“viable populations” of plants and animals in the forest—thereby meeting the NFMA
4
Although the 1982 Rule’s viability mandate stated it applied only to “vertebrate
species,” id. § 219.19, USDA departmental regulations expanded § 219.19’s viability
mandate to include invertebrate and plant species. USDA Fish and Wildlife Policy, Dep’t
Reg. 9500-4, August 22, 1983.
-4-
mandate to “provide for diversity”—by monitoring the actual populations of the MIS in
the forest.
One of the issues in this case is how to interpret and apply § 219.19’s viability
mandate.
b. The 2005 Rule and the 2005 Modification of the 1982 Rule
The Forest Service promulgated several rules that superseded the 1982 Rule. One
was the 2005 Rule. See 36 C.F.R. §§ 219.1-219.16 (2005); see also 70 Fed. Reg. 1023
(Jan. 5, 2005) (promulgating the 2005 Rule). But the 1982 Rule survived under certain
circumstances. The 2005 Rule permitted the Forest Service to continue using the 1982
Rule for forest plans, such as the BHNF’s, that were already following the 1982 Rule, but
with one narrow modification (the “2005 Modification”): “[T]he [Forest Service] may
comply with any obligations relating to [MIS] by considering data and analysis relating
to habitat unless the plan specifically requires population monitoring or population
surveys for the species.” 36 C.F.R. § 219.14(f) (2005).
One of the issues in this case is what effect the 2005 Modification had on
§ 219.19’s viability mandate.
2. National Environmental Protection Act
In addition to NFMA, the Forest Service must also comply with NEPA, see 42
U.S.C. §§ 4321-4347. NEPA established a national policy to “promote the understanding
of the ecological systems and natural resources important to the United States,” and
thereby “reduce or eliminate environmental damage.” Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752, 756 (2004) (quotations omitted). NEPA does not mandate particular
-5-
results or create substantive limits—rather, it “imposes only procedural requirements on
federal agencies with a particular focus on requiring agencies to undertake analyses of the
environmental impact of their proposals and actions.” Id. at 756-57.
Broadly speaking, before taking a “major Federal action significantly affecting the
quality of the human environment,” 42 U.S.C. § 4332(2)(C), NEPA requires agencies to
prepare an environmental impact statement (“EIS”), which determines how much a
proposed agency action will affect the environment, 40 C.F.R. § 1502.1-1502.25. Not all
agency actions are subject to this requirement5—various regulations “guide federal
agencies in determining what actions” must be accompanied by an EIS. Dep’t of
Transp., 541 U.S. at 757; see also 40 C.F.R. §§ 1500.1 to 1508.08. For example, an
agency may instead, in certain circumstances, prepare an environmental assessment
(“EA”), 40 C.F.R. § 1508.9, which determines whether a proposed action would require a
full EIS, 40 C.F.R. § 1501.4(a) & (b),6 or a categorical exclusion (“CE”), which states the
5
Compliance with NEPA is required . . . only if the federal government’s
involvement in a project constitutes major federal action,” Ross v. Fed. Highway Admin.,
162 F.3d 1046, 1051 (10th Cir. 1998) (quotations omitted), meaning one that
significantly affects the quality of the human environment, as determined by considering
the “context and intensity” of the proposed action. 40 C.F.R. § 1508.27.
6
If the EA concludes the action could significantly affect the environment, the
agency action must then prepare an EIS; if not, the agency issues a Finding of No
Significant Impact (“FONSI”), and no further NEPA analysis is required. See id.
§§ 1501.4(e), 1508.13; Dep’t of Transp., 541 U.S. at 757–58.
-6-
proposed action falls within a category of actions that do not have a significant effect on
the environment, 40 C.F.R. § 1508.4. See Utah Envtl. Cong. v. Russell, 518 F.3d at 821.7
Because a forest plan governs the majority of the Forest Service’s actions in
managing a forest, “[t]he creation of a forest plan” and “[a]ny significant amendments”
require “the preparation of an EIS.” Silverton Snowmobile Club, 433 F.3d at 785
(quotations omitted). In this appeal we consider an EIS issued as part of a forest plan
revision called the “Phase II Amendment.” Especially relevant are two requirements for
preparing an EIS: (a) the “no action” alternative and (b) the “hard look.”
a. The “reasonable range” of alternatives requirement and the “no action”
alternative requirement
Under NEPA, an EIS must contain a detailed statement regarding “alternatives to
the proposed action.” 42 U.S.C. § 4332(2)(C)(iii). The agency must “[r]igorously
explore and objectively evaluate all reasonable alternatives” for the proposed action in
response to a “specif[ied] underlying purpose and need.” 40 C.F.R. §§ 1502.13,
1502.14(a). The range of “reasonable alternatives” must at least include the alternative of
taking “no action,” 40 C.F.R. § 1502.14(d), which we have described as “the option of
7
NEPA regulations also allow an agency to issue a CE when actions are deemed
not to “individually or cumulatively have a significant effect on the human
environment . . . .” 40 C.F.R. § 1508.4. The USDA has categorically excluded various
activities, such as issuing budget proposals, enforcing civil and criminal law, and
conducting research. See 7 C.F.R. § 1b.3(a). Additionally, the Forest Service has
categorically excluded activities such as closing a forest area during extreme fire danger,
purchasing land, and repairing or maintaining roads. See 36 C.F.R. § 220.6(d).
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taking no new planning action,” New Mexico ex rel. Richardson v. Bureau of Land
Mgmt., 565 F.3d 683, 690 (10th Cir. 2009).
b. The “hard look” requirement
An EIS must consider “any adverse environmental effects.” 42 U.S.C.
§ 4332(2)(C)(iii). This review cannot be superficial—agencies must “take a ‘hard look’
at the environmental consequences of proposed actions utilizing public comment and the
best available scientific information.” Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162,
1171 (10th Cir. 1999); see also Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989). The “hard look” standard ensures the “agency did a careful job at fact
gathering and otherwise supporting its position.” New Mexico ex rel. Richardson, 565
F.3d at 704 (quotations omitted).
B. Factual and Procedural History8
The BHNF covers roughly 1.2 million acres of land straddling the Wyoming and
South Dakota border. 2005 Final EIS, App. at 1154-55. Often referred to as “an island
in the prairie,” the BHNF features an isolated mountain range surrounded by mid-western
prairies. 2005 Final EIS, App. at 1164; see also 1997 Final EIS, App. at 270. The BHNF
includes many plants and animals from four ecological zones: the Rocky Mountains, the
8
The court has studied Biodiversity’s appendix and the Forest Service’s
supplemental appendix. Biodiversity submitted its appendix in electronic format, which
we found helpful.
When an appendix is submitted in electronic format, such as pdf, it can be
particularly useful when its internal links or “bookmarks” are clearly labeled, well-
organized, and correctly hyperlinked.
-8-
northern coniferous forests, the eastern hardwood forests, and the mid-western prairies.
1997 Final EIS, App. at 277; 2005 Final EIS, App. at 1164. As a result, the ecological
diversity in the area exceeds many other mountain ranges. See 1997 Final EIS, App. at
277.
Biodiversity challenges certain Forest Service actions concerning the BHNF. We
provide an overview of the facts and procedural background here, and then add details
during our analysis.
1. The 1997 Forest Plan: Promulgation, Challenge, and Forest Service Response
a. Promulgation and Biodiversity’s challenge
After NFMA took effect in 1976, the Forest Service created a forest plan to
manage the BHNF and used it for roughly a decade. 1997 Final EIS, App. at 257. In
1992, the Forest Service decided to revise the forest plan. 1997 Final EIS, App. at 260.
After years of drafting, surveying, and public notice and comment-making, the Forest
Service issued its 1997 Record of Decision, Final EIS, and Revised Forest Plan
(collectively, “1997 Forest Plan”). The 1982 Rule governed the preparation of the 1997
Forest Plan. See, e.g., 1997 Record of Decision, App. at 292-93, 298-99, 305.9
Biodiversity challenged the 1997 Forest Plan in an administrative proceeding,
arguing it did not comply with NFMA and NEPA.
9
The 1997 Forest Plan does not explicitly state it relied on the 1982 Rule, but
because no other rule existed until 2000, we determine the 1997 Plan relied on the 1982
Rule. The parties do not argue otherwise.
-9-
b. Forest Service response: the Chief’s 1999 Decision
In 1999, the Chief of the Forest Service (“Chief”) decided Biodiversity’s
administrative appeal (“Chief’s 1999 Decision”). The Chief examined “27 key issues”
and determined that, although most of the 1997 Forest Plan complied with NFMA and
NEPA, parts of the Plan fell short. Chief’s 1999 Decision, App. at 2462. He identified
four “primary deficiencies of concern”: (1) “[v]iability determinations for some species,”
(2) “[s]tandards and guidelines to maintain viability of some species,” (3) “[m]anagement
indicator species (MIS) requirements,” and (4) “[m]onitoring direction for some sensitive
species.” Id. Within the general framework of those four primary deficiencies, the Chief
then discussed more specific shortcomings, including four under NFMA and one under
NEPA.10
i. NFMA Shortcomings
1) Insufficient northern goshawk protections
The Chief found the 1997 Forest Plan lacked sufficient objectives to protect
northern goshawk populations.11 Without adequate objectives, such as designating
specific areas where goshawks can live after the fledgling stage, the 1997 Forest Plan did
not meet NFMA’s viability mandate because the viability of the northern goshawk could
10
The Chief identified other deficiencies in the 1997 Forest Plan, but we do not
describe them here because they are not at issue in this case. See, e.g., Chief’s 1999
Decision, App. at 2466-67, 2527 (stating the 1997 Forest Plan failed to include an aquatic
species as MIS).
11
A northern goshawk is a medium-size bird of prey.
- 10 -
not be assessed. Id. at 2507-08.
2) Insufficient snag density
The Chief said the 1997 Forest Plan failed to meet NFMA’s requirement to ensure
the viability of species because it did not provide enough “snag” habitat. Id. at 2503-05.
A “snag” refers to a dead but still-standing tree or portion of a tree. Many species
depend on snags for food and shelter. See 2005 Revised Forest Plan Glossary, App. at
2306 (defining “Cavity Nesting Species”), 2363 (defining “Snag”).
3) Insufficient objectives for Emphasis Species
The Chief found the 1997 Forest Plan failed to state adequate objectives for
certain Emphasis Species. The Forest Service uses the term “Emphasis Species” as an
umbrella term encompassing various categories of species that receive particular
management attention, including MIS,12 “Threatened and Endangered Species,”13
“Sensitive Species,”14 and “Species of Local Concern.”15 2005 Final EIS, App. at 1282.
12
As noted above, under the 1982 Rule the Forest Service must monitor MIS
populations to gauge the forest’s health. 36 C.F.R. § 219.19(a)(1) (1982).
13
These are species protected by the Endangered Species Act of 1973. See 16
U.S.C. §§ 1531-1544; 50 C.F.R. §§ 17.11-17.12 (listing species).
14
Sensitive Species are plant and animal species “for which population viability is
a concern, as evidenced by significant current or predicted downward trends” in
population or habitat. Phase II Amendment Glossary, App. at 2361; see also id. at 1282;
Forest Service Manual § 2672.11 (Sensitive Species Evaluation Criteria).
15
In the Rocky Mountain Region—the administrative region applicable to the
BHNF—the Forest Service defines a Species of Local Concern as one that does not meet
the criteria for Sensitive Species, but faces decline or is an important component of
diversity in a local area. See 2005 Final EIS, App. at 1282; Allen et al., Forest Service,
Continued . . .
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The Chief determined the 1997 Forest Plan did not meet NFMA’s viability
mandate because it lacked MIS data, did not adequately explain why it selected certain
species for inclusion as MIS, and omitted monitoring objectives. Without the foregoing,
the Forest Service could not properly monitor MIS populations. Chief’s 1999 Decision,
App. at 2510-12.
The Chief also found that without adequate Sensitive Species objectives, the 1997
Forest Plan did not meet NFMA’s viability mandate to ensure Sensitive Species would
not decline beyond unrecoverable levels. Id. at 2505-07, 2510-12.
4) Insufficient protections for sensitive plant and animal species
Finally, the Chief found the 1997 Forest Plan inadequately protected sensitive
“riparian and aquatic species and their habitats in areas with ongoing livestock grazing.”
Id. at 2463. The Chief was particularly concerned about the viability of two sensitive
snail species and adequately protecting Research Natural Areas (“RNAs”)16 and
______________________________________
Cont.
Process for Identifying Wildlife and Plant Species of Local Concern, 1-2 (April 2005),
available at http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5151694.pdf.
16
RNAs are “relatively pristine areas that represent a wide range of natural
variability within important natural ecosystems and environments . . . and areas that have
special or unique characteristics of scientific importance.” 2005 Revised Forest Plan,
App. at 2178; see 36 C.F.R. § 251.23 (1982) (regulatory definition); Forest Service
Manual § 4063 (providing further guidance); see also 36 C.F.R. § 219.25 (1982)
(requiring the Forest Service to identify RNAs during the process of creating or
amending a forest plan); 36 C.F.R. § 251.23 (1982) (requiring the Forest Service to
preserve RNAs in “virgin or unmodified condition”).
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Botanical Areas.17 See id. at 2466-67, 2512-16.
The Chief said the Forest Service needed to re-evaluate whether “adequate
measures are in place” to protect such species and areas from the deleterious effects of
livestock grazing. Id. at 2466. He noted, however, “[w]here existing measures are
determined to be adequate, no further actions are required relative to ongoing grazing
activities.” Id.
For sensitive plants, the Chief said the 1997 Forest Plan did not adequately
evaluate the viability of sensitive plant species, properly disclose the indirect and
cumulative effects of livestock on sensitive plants, or create adequate methods to mitigate
sensitive plant damage from forest management activities such as livestock grazing,
noxious weed control, and sedimentation prevention. Id. at 2512-2516.
ii. NEPA Shortcoming
The Chief found the 1997 Forest Plan did not comply with NEPA’s requirement to
take a “hard look” because it made assumptions about ecological impacts and did not
17
Botanical Areas are places of scientific interest that “exhibit plant communities,
associations, and/or individual species of particular interest” and may provide protection
for “sensitive species.” 2005 Revised Forest Plan, App. at 2183; see also Forest Service
Manual § 2372.05(3) (defining “Botanical Area” as “a unit of land that contains plant
specimens, plant groups, or plant communities that are significant because of their form,
color, occurrence, habitat, location, life history, arrangement, ecology, rarity, or other
features”). The Forest Service typically designates an area of interest as a Botanical Area
until a full RNA assessment can be conducted. 1997 Record of Decision, App. at 325-26.
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properly collect measurements, such as species monitoring and grazing impacts.18 Id. at
2508-10, 2537.
c. Re-evaluation of the 1997 Forest Plan and the Chief’s interim management
instructions
The Chief affirmed the 1997 Forest Plan only in part and issued instructions to re-
evaluate and remedy the deficiencies he identified. Id. at 2462, 2521.
The Chief’s interim management instructions for the re-evaluation of the 1997
Forest Plan directed the Forest Service to: (1) designate new acreage and protections for
northern goshawk habitat, id. at 2464-65, 2523-24; (2) create a minimum density of snags
in various areas of the BHNF, id. at 2465-66, 2525-26; (3) conduct further analysis and
data collection on all MIS in the BHNF, id. at 2466, 2527; (4) further survey Sensitive
Species’ populations and habitats, id. at 2464, 2522-23; and (5) create and implement
measures to protect sensitive plants and animals in areas where there was ongoing
livestock grazing, id. at 2528.19
18
The Chief, however, found the 1997 Forest Plan complied with other aspects of
NEPA, such as the “range of reasonable alternatives” requirement. See Chief’s 1999
Decision, App. at 2541-48.
19
This included instructions to establish “[s]pecific conservation measures” that
“minimize[] risks to sensitive species viability,” “monitor one or more measures of
stream habitat integrity,” create additional protections for “sensitive plants in designated
Botanical Areas,” and “[e]nsure that all known colonies of sensitive snail species . . . are
protected from adverse effects of livestock use and other management activities.” Id. at
2528.
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2. Settlement Agreement
When the Chief issued his 1999 Decision, the Forest Service had already spent
two years implementing the 1997 Forest Plan in various site-specific projects, some of
which Biodiversity administratively challenged—such as a timber sale project in the
Beaver Park area of the BHNF. After the Forest Service denied Biodiversity’s Beaver
Park administrative challenge, Biodiversity challenged the project’s validity in the
Colorado federal district court. Biodiversity argued the Forest Service could not allow
the Beaver Park timber sale to proceed because the sale had been authorized under the
flawed 1997 Forest Plan.
In 2000, Biodiversity and the Forest Service agreed to settle the Beaver Park
timber sale litigation. The district court included the settlement agreement (the
“Settlement Agreement”) in its dismissal order. Settlement Agreement, App. at 415, 444-
47. The Settlement Agreement required the Forest Service to remedy the deficiencies in
the 1997 Forest Plan in two phases.
During Phase I, the Forest Service would amend the 1997 Forest Plan to
incorporate the Chief’s interim management instructions, pending more thorough analysis
and re-evaluation of the Plan. Id. at 435-36.
During Phase II, the Forest Service would engage in a public notice and comment-
making process to amend the 1997 Forest Plan “to ensure compliance with requirements
of NFMA, its implementing regulations and agency policy, and all inadequacies
identified in the Chief’s [1999 Decision] . . . . Phase II shall address all of the issues
identified in . . . this settlement agreement, including northern goshawk, Management
- 15 -
Indicator Species, and Research Natural Areas.” Id. at 436. The Phase II Amendment
would replace the Phase I Amendment.
The Colorado federal district court retained jurisdiction to enforce the Settlement
Agreement. Id. at 442. The Settlement Agreement stated it “shall expire . . . upon
promulgation of the Phase II forest plan amendment, and upon the completion of any
additional analysis required by this agreement . . . .” Id. at 443.
3. Implementation of the Chief’s 1999 Decision and 2000 Settlement Agreement
a. Phase I Amendment
The Forest Service promulgated the Phase I Amendment in May 2001. It
incorporated the interim management instructions identified in the Chief’s 1999 Decision
and added protections for snags and Sensitive Species. Phase I Amendment Decision
Notice and FONSI, App. at 346-48. Biodiversity does not challenge the Phase I
Amendment.
b. Phase II Amendment
During the next four years—2001 to 2005—the Forest Service conducted a more
thorough analysis of the BHNF to prepare the Phase II Amendment. Also, between 2000
and 2005, several large forest fires burned over 150,000 acres of the BHNF, and between
1997 and 2005, a mountain pine beetle infestation spread from 5,200 to over 100,000
affected acres. 2005 Record of Decision, App. at 1122. As a result, the scope of “the
Phase II Amendment was expanded from the original purpose of species viability and
RNAs to include fire and insect issues.” Id. at 1122.
- 16 -
The Forest Service summarized its Phase II analysis in a Final EIS under NEPA.
Id. at 1132. The scope of the Phase II Amendment was to: (1) “[c]ompl[y] with the
Chief’s October 1999 [Administrative] Appeal Decision” and correct various deficiencies
in the 1997 Forest Plan by ensuring the viability of species, following MIS requirements,
and creating monitoring objectives for Sensitive Species; (2) “fulfill[] components of the
2000 Settlement Agreement to complete an analysis of candidate RNAs . . . and evaluate
the viability of MIS and northern goshawk”; and (3) “modify[] management direction for
fire hazard and insect risk to address both species viability and diversity and effects on
resources, human safety, and property . . . .’” Id. at 1156.
The Forest Service considered six alternatives to meet those purposes: (1) re-
implement the 1997 Forest Plan, id. at 1133; (2) take “no action” and simply “continue to
implement the direction included in the Phase I Amendment,” id.; (3) provide for
diversity by emphasizing ideal habitat, id.; (4) focus on creating a dense, mature forest
id.; (5) allow timber harvest to equal annual timber growth, id. at 1134;20 or
(6) emphasize “fire and insect hazard reduction,” target “conditions and conservation
strategies for species viability,” and establish objectives for ideal habitat (similar to
Alternative 3), id. See also id. at 1201-06.
20
Alternative 5 was dropped from consideration because it “required broad-scale
change in management areas beyond the scope” of the Phase II Amendment and “would
have extended the decision to a complete revision of the 1997 [Forest] Plan.” 2005
Record of Decision, App. at 1134.
- 17 -
The Forest Service examined the pros and cons of each alternative, analyzing how
each would affect the various forest ecosystems, id. at 1208-1281; the Emphasis Species,
Threatened and Endangered Species, Sensitive Species, and MIS, id. at 1282-1504;
Botanical Areas and RNAs, id. at 1520-40; fire hazards and the insect infestations, id. at
1541-75; and livestock grazing, id. at 1591-96.
The Forest Service ultimately chose Alternative 6—which became the Phase II
Amendment—as the “environmentally preferred alternative.” Id. at 1136; see also id. at
1122. The Forest Service noted that Alternative 6 would “reduce the incidence of high
intensity wildfires and . . . reduce the likelihood that endemic insect populations will
grow to epidemic levels.” Id. at 1123. This alternative would not eliminate the risks of
fire and insect infestation, but it would “minimize negative watershed and wildlife
impacts and . . . reduce fire suppression costs.” Id.
The Forest Service acknowledged Alternative 6 would adversely affect some
forest species and explained that “[w]e cannot separate species viability from the effects
of fire and insects in the” forest plan. Id. The Forest Service was willing to “accept[]
small short-term negative effects on fish, wildlife, and plant populations caused by
vegetation treatments that reduce forest density” because it believed “these treatments
protect and provide habitat needed for long-term viability by reducing susceptibility to
damaging fires and insect epidemics.” Id. at 1128.
In October 2005, the Forest Service adopted and issued Alternative 6 as the Phase
II Amendment, consisting of a 2005 Record of Decision, a 2005 Final EIS, and a 2005
Revised Forest Plan.
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4. Biodiversity’s Challenges to the Phase II Amendment
a. Administrative challenges
In 2006, Biodiversity challenged the Phase II Amendment, arguing it fails to
comply with NFMA, the 1982 Rule, NEPA, the Chief’s 1999 Decision, and the
Settlement Agreement.21 In November 2006, the Chief upheld the Phase II Amendment
(“Chief’s 2006 Decision”). Chief’s 2006 Decision, App. at 2698.
In separate administrative cases, Biodiversity also challenged nine site-specific
projects that the Forest Service had implemented under the Phase II Amendment.22
Biodiversity argued the projects violate NFMA, the 1982 Rule, NEPA, the Chief’s 1999
Decision, and the Settlement Agreement. The Chief denied all nine challenges, including
21
See Western Watershed’s Notice of Administrative Appeal, App. at 2581;
Prairie Hills Audubon Society’s Notice of Administrative Appeal, App. at 2600;
Biodiversity Conservation Alliance et al.’s Notice of Administrative Appeal, App. at
2612.
22
In this appeal, Biodiversity only briefly mentions these nine site-specific
projects. Its arguments mainly urge the invalidity of the Phase II Amendment.
Biodiversity appears to contend that if the Phase II Amendment is invalid, any site-
specific projects implemented under it must also be invalid. See Notice of Appeal of
Dean Timber Sale, App. at 3751; Notice of Appeal of Moskee Timber Sale, App. at 4174,
Notice of Appeal of Citadel Timber Sale, App. at 3398, Notice of Appeal of Telegraph
Timber Sale, App. at 6260, Biodiversity et al.’s Notice of Appeal of Rattlesnake Project,
App. at 5786, Prairie Hills Audubon Society’s Notice of Appeal of Rattlesnake Project,
App. at 5811, Notice of Appeal of North Zone Range 05 Allotments, App. at 4978,
Notice of Appeal of North Zone Range 08 Allotments, App. at 5334, Notice of Appeal of
Bearlodge Allotments, App. at 3155, Notice of Appeal of Mystic Allotments, App. at
4603.
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the first site-specific challenge to the Dean Project in August 2006.23 Dean Timber Sale
Decision, App. at 3883, 3886. In January 2011, the Chief denied the last site-specific
challenge to the Mystic Range Project.24 Mystic Allotment Decision, App. at 4629-30.
b. Wyoming litigation
In October 2011, Biodiversity petitioned for review of agency action in the
Wyoming federal district court under the Administrative Procedure Act, 5 U.S.C.
§ 706(2)(A) & (D). Pet. for Review, App. at 25, 31. Biodiversity argued the Forest
Service’s actions promulgating the Phase II Amendment and implementing the
accompanying nine site-specific projects were arbitrary, capricious, an abuse of
discretion, and otherwise not in accordance with NFMA, the 1982 Rule, NEPA, the
Chief’s 1999 Decision, and the 2000 Settlement Agreement. Biodiversity’s petition
23
The Dean Project authorized timber harvest in the Redwater Creek watershed
area in the Bearlodge District of the BHNF. The project’s stated purpose was to “reduce
the risk of uncharacteristically intense wildfire behavior and mountain pine beetle
infestation and to improve terrestrial and aquatic habitats.” Dean Timber Sale Decision,
App. at 3886. Biodiversity alleged the Dean Project fell “incredibly short” of protecting
“imperiled wildlife, fish, and plants” because it was implemented under the allegedly
flawed Phase II Amendment. Notice of Appeal of Dean Timber Sale, App. at 3751.
The Chief denied the administrative appeal, reasoning that nothing in the appeal
caused him to believe the Dean Project violated any “law, regulation, or policy.” Dean
Timber Sale Decision, App. at 3884.
24
The Mystic Range Project authorized continued grazing in the Norbeck Wildlife
Preserve for three to five years. Mystic Allotment Decision, App. at 4642. Biodiversity
alleged the Forest Service had failed to comply with all of NEPA’s procedural
requirements before authorizing the grazing. Biodiversity also argued the grazing
adversely affected sensitive plants in violation of NFMA. Notice of Appeal of Mystic
Allotments, App. at 4606.
The Chief denied the administrative appeal, reasoning that he found “no violation
of law, regulation, or policy.” Mystic Allotment Decision, App. at 4643.
- 20 -
mentioned the nine site-specific projects but did not craft individualized arguments
against them. See Pet. for Review, App. at 26-27, 30-31.
In November 2012, the district court upheld the Forest Service’s actions. It denied
a motion for reconsideration in April 2013. Biodiversity timely appealed (Case No. 13-
8053).
c. Colorado litigation
In the meantime, the Beaver Park litigation that Biodiversity filed in 1999 in the
Colorado federal district court lay dormant. After its defeat in Wyoming, Biodiversity
attempted in May 2013 to reopen the Colorado case by moving to enforce the Settlement
Agreement and compel the Forest Service to prepare a Phase II Amendment that would
comply with NFMA, the 1982 Rule, the Chief’s 1999 Decision, and the Settlement
Agreement.
Relying on laches, the district court denied the motion, reasoning that Biodiversity
had waited too long to enforce its rights under the Settlement Agreement. Biodiversity
timely appealed (Case No. 13-1352).
d. Appeals consolidated
Biodiversity moved to consolidate the two appeals. The Forest Service did not
object. We granted the motion because the cases “involve a common nucleus of facts and
similarity of legal issues . . . .” Order at 2, Biodiversity v. USFS, Nos. 13-1352 & 13-
8053, (10th Cir. Sep. 3, 2013), ECF No. 10104703.
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II. DISCUSSION—WYOMING APPEAL
Because NFMA and NEPA do not provide a private right of action, we review
Biodiversity’s challenges to the Phase II Amendment and the nine site-specific projects
as final agency actions under the Administrative Procedure Act (“APA”). Utah Envtl.
Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).25
We first address Biodiversity’s standing and our standard of review. We then
address Biodiversity’s arguments challenging the Forest Service’s actions under NFMA
and NEPA.
25
Biodiversity brings its APA challenges under NFMA, NEPA, and their
implementing regulations. Pet. for Review, App. at 30-31. It also claims the Forest
Service’s Phase II Amendment does not comply with the Chief’s 1999 Decision and the
Settlement Agreement. Id. at 31.
The APA provides the framework for judicial review of agency action. See 5
U.S.C. § 702 (enabling a person “adversely affected or aggrieved by agency action within
the meaning of a relevant statute” to obtain judicial review). The court may grant relief
only when a petitioner shows its claims “fall within the zone of interests protected by the
statute forming the basis of [its] claims.” State of Utah v. Babbitt, 137 F.3d 1193, 1203
(10th Cir. 1998) (quotations omitted); see also City of Albuquerque v. U.S. Dep’t of
Interior, 379 F.3d 901, 915 (10th Cir. 2004) (noting that statutes, regulations, and certain
executive orders may be a basis for an APA claim); Am. Fed. of Gov’t Emps., AFL-CIO
v. Rumsfeld, 321 F.3d 139, 144-45 (D.C. Cir. 2003) (concluding petitioners could not
bring a challenge based on certain agency instructions, directions, and regulations
because they did not fall within the meaning of a relevant statute).
Biodiversity has not shown that either the Chief’s 1999 Decision or the Settlement
Agreement are a “relevant statute” or otherwise fall within the “zone of interests
protected by the statute[s] forming the basis” of its claims. It therefore cannot rely on
them as a legal basis to establish an APA violation. We will, however, consider the
Chief’s 1999 Decision and the Settlement Agreement as factors in our APA analysis.
- 22 -
A. Standing
We agree with the district court that the uncontested declarations submitted by
individual members of each of the Biodiversity plaintiffs26 were sufficient to establish
Article III standing. They stated aesthetic and recreational injuries caused by the Forest
Service’s Phase II Amendment and redressable through this lawsuit. See Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (“[T]o satisfy
Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.”) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)).
B. Standard of Review
The standard of review for Biodiversity’s NFMA and NEPA claims is the same
because we consider them both under the APA. We review de novo a district court’s
decision in an APA case. Utah Envtl. Cong. v. Bosworth, 443 F.3d at 739.
Under the APA, any “person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute,
26
The Appellants each filed declarations from one or more of their members in
support of standing. See Decl. of Mr. Brademeyer, App. at 36; Decl. of Mr. Clauson,
App. at 44; Decl. of Ms. Hilding, App. at 50; Decl. of Mr. Kessler, App. at 59; Decl. of
Mr. Molvar, App. at 64; Decl. of Mr. Ratner, App. at 69.
- 23 -
is entitled to judicial review thereof.” 5 U.S.C. § 702. The reviewing court shall set
aside the agency action under § 706(2) if it is:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right, power, privilege,
or immunity; (C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; (D) without observance of procedure
required by law; (E) unsupported by substantial evidence . . . ; or
(F) unwarranted by the facts to the extent [they] are subject to trial de novo
by the reviewing court.
Id. § 706(2); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414
(1971).
In this appeal, Biodiversity relies on § 706(2)(A), arguing the agency’s action was
arbitrary and capricious.27 See Aplt. Br. at 19. Under § 706(2)(A), an agency’s action is
“arbitrary and capricious ‘if the agency . . . entirely failed to consider an important aspect
27
Section 706(2)(A)’s “arbitrary or capricious” standard “is the ‘default’ standard
in the federal system and applies whenever the statute does not compel some other
standard.” Charles H. Koch, Jr. & Richard Murphy, 3 Admin. L. & Prac. § 9:25[1] (3d
ed.); see also Hydro Res., Inc. v. E.P.A., 608 F.3d 1131, 1145 (10th Cir. 2010) (stating
that when the relevant statute does not mandate a particular standard of review, the APA
“provides the default” under § 706(2)(A)); Olenhouse v. Commodity Credit Corp., 42
F.3d 1560, 1575 n.25 (10th Cir. 1994) (“The ‘arbitrary or capricious’ standard of
§ 706(2)(A) is . . . a catch-all, picking up administrative misconduct not covered by the
more specific paragraphs.”).
In the district court, Biodiversity brought its claims under “§ 706(2)(A) and (D).”
Pet. for Review, App. at 31. The district court used only the “arbitrary and capricious”
standard under § 706(2)(A). See, e.g., Order Upholding Agency Action, App. at 92.
Biodiversity did not challenge this aspect of the district court’s order. See generally
Biodiversity’s Mot. for Reconsideration, Biodiversity v. USFS, No. 1:11-cv-00340-SWS
(D. Wyo. Dec. 7, 2012), ECF No. 84; Reply in Supp. of Mot. for Reconsideration,
Biodiversity v. USFS, No. 1:11-cv-00340-SWS (D. Wyo. Jan. 16, 2013), ECF No. 90.
On appeal, Biodiversity cites § 706(2)(A) and discusses the arbitrary and capricious
standard, see, e.g., Aplt. Br. at 19, but does not cite § 706(2)(D) or discuss its failure to
observe procedure. As a result, we limit our APA review to § 706(2)(A).
- 24 -
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.’” Utah Envtl. Cong. v. Bosworth, 443 F.3d at 739
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). Likewise, an agency’s decision is arbitrary and capricious if the agency failed to
base its decision on “consideration of the relevant factors,” or if “there has been a clear
error of judgment” on the agency’s part. Id.
“When courts consider such challenges, an agency’s decision is entitled to a
presumption of regularity, and the challenger bears the burden of persuasion.” San Juan
Citizens Alliance v. Stiles, 654 F.3d 1038, 1045 (10th Cir. 2011) (citations omitted). Our
deferential review “is especially strong where the challenged decisions involve technical
or scientific matters within the agency’s area of expertise.” Utah Envtl. Cong. v. Russell,
518 F.3d 817, 824 (10th Cir. 2008) (citing Marsh v. Or. Natural Res. Council, 490 U.S.
360, 378 (1989)); see also San Juan Citizens, 654 F.3d at 1045 (“[W]hen specialists
express conflicting views, an agency must have discretion to rely on the reasonable
opinion of its own qualified experts, even if, as an original matter, a court might find
contrary views more persuasive.” (quotations omitted)).
Sometimes, as here, a plaintiff will also challenge the agency’s interpretation of
the applicable regulations. We must determine which interpretation to judge the agency’s
action against. In making this determination, we give “substantial deference” to the
agency’s interpretation of its own regulations. Utah Envtl. Cong. v. Troyer, 479 F.3d
1269, 1281 (10th Cir. 2007) (“We may reject the agency’s interpretation only when it is
- 25 -
unreasonable, plainly erroneous, or inconsistent with the regulation’s plain meaning.”
(quotations omitted)).
Although deferential, our inquiry must “be searching and careful.” Ecology Ctr.,
Inc. v. USFS, 451 F.3d 1183, 1188 (10th Cir. 2006) (quotations omitted). We will not,
for example, accept appellate counsel’s post-hoc rationalizations for agency action—we
must uphold the agency’s action “if at all, on the basis articulated by the agency itself.”
Colo. Wild, Heartwood v. USFS, 435 F.3d 1204, 1213 (10th Cir. 2006) (quoting Motor
Vehicle Mfrs., 463 U.S. at 50).
C. NFMA Issues
To address Biodiversity’s claim that the Phase II Amendment violates NFMA, we
first determine (1) which regulations apply to the Phase II Amendment. We then analyze
(2) whether the Phase II Amendment fails to: (a) comply with the viability mandate of
the 1982 Rule; (b) adequately protect RNAs and Botanical Areas; or (c) conduct a proper
suitability and capability analysis for MIS and livestock grazing.
1. Regulations Applicable to the Phase II Amendment
NFMA regulations govern preparation of forest plans. 16 U.S.C. § 1604(a) & (g);
Silverton Snowmobile Club v. USFS, 433 F.3d 772, 785 (10th Cir. 2006). Forest plans
and their amendments typically must comply with the regulation in place at the time the
plan or amendment is final. Ecology Ctr., 451 F.3d at 1191. Because the Forest Service
issued the Phase II Amendment after the 2005 Rule was in place, it would normally need
to comply with that rule. But a transition provision in the 2005 Rule allowed the Forest
Service to amend the 1997 Forest Plan based on the superseded 1982 Rule. See 36
- 26 -
C.F.R. § 219.14(b) & (e) (2005); see also Forest Guardians v. USFS, 495 F.3d 1162,
1168 (10th Cir. 2007) (“Forest plans may require particular standards to be followed
regardless of later changes in the regulations.” (quotations omitted)).
The Phase II Amendment repeatedly states it is based on the 1982 Rule and the
2005 Modification codified in § 219.14(f). See, e.g., 2005 Record of Decision, App. at
1141 (“The Phase II Amendment is done under the provisions of the former 1982 NFMA
planning rule as modified by 36 CFR 219.14 (f).”); see also id. at 1122 (same); 2005
Final EIS, App. at 1150, 1441 (same); 2005 Revised Forest Plan, App. at 2039, 2102
(same). The Forest Chief recognized this in his 2006 decision denying Biodiversity’s
challenge to the Phase II Amendment. See Chief’s 2006 Decision, App. at 2698-99 &
n.1. So does Biodiversity. Aplt. Br. at 29; 33, 35; Aplt. Reply Br. at 1-5.
Although the Forest Service describes the rules applicable to the Phase II
Amendment differently in its brief, see Aplee. Br. at 22-24, 29, we do not see how the
agency can vary from what is clearly stated in the Phase II Amendment itself. We
therefore evaluate the Phase II Amendment using the 1982 Rule as modified by the 2005
Modification. The parties debate how these rules should be interpreted and applied, in
particular what the regulations require the Forest Service to do to ensure species viability.
2. Biodiversity’s NFMA Challenges to the Phase II Amendment
a. Species viability mandate
Biodiversity argues the Phase II Amendment fails to comply with the 1982 Rule’s
“viability mandate” in § 219.19.
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The 1982 Rule required the Forest Service to “maintain viable populations” of
plants and animals in the BHNF. 36 C.F.R § 219.19 (1982). Section 219.19 provided, in
relevant part: “to insure that viable populations will be maintained, habitat must be
provided to support, at least, a minimum number of reproductive individuals and that
habitat must be well distributed so that those individuals can interact with others in the
planning area.” 36 C.F.R. § 219.19 (1982). Section 219.19 also specifically required the
Forest Service to collect population data on MIS. See id. § 219.19(a), (a)(1), (a)(2), and
(a)(6). We have recognized § 219.19 used MIS to “measure the impact of habitat
changes on the Forest’s diversity.” Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219, 1226
(10th Cir. 2004) (quotations omitted). MIS therefore served under § 219.19 as “a
bellwether for other species . . . .” Forest Guardians v. USFS, 641 F.3d 423, 427 (10th
Cir. 2011) (per curiam) (quotations omitted). Section 219.14(f) of the 2005 Rule—the
2005 Modification—allowed the Forest Service to “comply with any obligations relating
to [MIS] by considering data and analysis relating to habitat . . . .” 36 C.F.R. § 219.14(f)
(2005).
Biodiversity claims the Forest Service violated § 219.19’s “viability mandate” in
failing to: (i) conduct adequate viability analyses to ensure the viability of species; and
(ii) provide sufficient habitat and protections in the Phase II Amendment to ensure the
viability of northern goshawk, snag-dependent species, and sensitive plants.
i. Viable species mandate under the applicable regulations
Biodiversity claims the Phase II Amendment fails to comply with § 219.19’s
viability mandate and the 2005 Modification because the Forest Service did not collect or
- 28 -
consider enough population data or create adequate population objectives to ensure the
viability of species. As stated above, under the APA, Biodiversity must show the Forest
Service acted arbitrarily and capriciously under the applicable regulations.
1) Interpretation of regulations
Biodiversity and the Forest Service disagree about how to interpret the applicable
regulations regarding species viability. We must assess this interpretation issue before
we proceed to consider the merits of Biodiversity’s APA challenge.
Using familiar rules of construction, see Jicarilla Apache Tribe v. Andrus, 687
F.2d 1324, 1332 (10th Cir. 1982) (“Regulations are generally subject to the same rules of
construction as statutes.”), we first “determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute in the case,” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). If the meaning is plain, it controls. Id. If the
meaning is ambiguous, we defer “to an agency’s interpretation of its own ambiguous
regulation, even when that interpretation is advanced in a legal brief,” Christopher v.
SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (citing Auer v. Robbins, 519
U.S. 452 (1997)), unless the agency’s interpretation is “plainly erroneous or inconsistent
with the regulation,” id. (quotations omitted); see also Utah Envtl. Cong. v. Troyer, 479
F.3d 1269, 1281 (10th Cir. 2007) (stating we reject Auer deference when the agency’s
interpretation is “unreasonable”). In other words, we “accord Auer deference to the
[agency’s] interpretation” when we determine it “is a reasonable interpretation of its own
regulation.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1331, 1337 (2013). “[A]n
- 29 -
agency’s interpretation need not be the only possible reading of a regulation—or even the
best one—to prevail.” Id. at 1337.
Biodiversity contends § 219.19’s “plain language” defines viable species in terms
of “minimum number of individuals.” Aplt. Br. at 30-31 (emphasis in original). But
beyond that, Biodiversity fails to explain whether its interpretation of the species viability
mandate to collect or consider population data or create population objectives is based on
the plain meaning of § 219.19 or a reasonable reading of the regulation’s ambiguous
terms, nor does Biodiversity address whether § 219.14(f) has a plain meaning. The
Forest Service likewise does not clearly specify whether its interpretation is based on the
regulations’ plain meaning. If we find the regulations’ language is not plain and the
Forest Service’s interpretation of the ambiguous regulations is reasonable, we must defer
to that interpretation.
To determine which interpretation of the regulations applies to Biodiversity’s APA
challenge, we a) address whether the plain meaning of the regulations requires the Forest
Service to collect or consider population data or create population objectives to comply
with the viability mandate. We conclude the regulations are ambiguous on this score.
We then b) examine whether the Forest Service’s interpretation is reasonable. We
conclude that it is and therefore entitled to Auer deference. Biodiversity’s interpretation
does not convince us otherwise.
- 30 -
a) Whether the regulations have a plain meaning or are
ambiguous
The parties have framed the issue as whether § 219.19 of the 1982 Rule and
§ 219.14(f) of the 2005 Rule imposed a duty on the Forest Service to collect or consider
population data or create population objectives to ensure the viability of species. We
must determine (1) whether § 219.19’s viability mandate plainly states that population
data must be collected or considered or that population objectives must be created, and
for which species, and (2) whether § 219.14(f) unambiguously states how it affects the
MIS obligations created by § 219.19.
First, as to § 219.19, we find it does not clearly state whether and to what extent
the viability mandate requires more than providing and managing habitat to ensure
species viability. It states, in relevant part:
Fish and wildlife habitat shall be managed to maintain viable
populations of existing native and desired non-native vertebrate species in
the planning area. For planning purposes, a viable population shall be
regarded as one which has the estimated numbers and distribution of
reproductive individuals to insure its continued existence is well distributed
in the planning area. In order to insure that viable populations will be
maintained, habitat must be provided to support, at least, a minimum
number of reproductive individuals and that habitat must be well distributed
so that those individuals can interact with others in the planning area.
36 C.F.R. § 219.19 (1982).
The 1982 Rule mandates that “habitat shall be managed to maintain viable
populations of existing native and desired” plants and animals. Id. It defines “viable
population” as “one which has the estimated numbers and distribution of reproductive
individuals to insure its continued existence is well distributed in the planning area.” Id.
- 31 -
And it requires “habitat must be provided to support, at least, a minimum number of
reproductive individuals and that habitat must be well distributed” to ensure a viable
population. Id.28
Although § 219.19 states the Forest Service must provide and manage habitat to
ensure viable species, the text does not clearly state whether and to what extent collecting
or considering population data was necessary. The regulation speaks of the habitat
responsibility using terms such as “estimated numbers,” “distribution of reproductive
individuals,” and “minimum number.” Id. Although that language may reasonably be
read as having imposed a population data requirement, these references do not plainly
direct the Forest Service to collect or consider population data or create population
objectives. For example, § 219.19’s requirement that “habitat shall be managed to
maintain viable populations,” does not prescribe how to achieve “viable populations”—
whether through habitat management, population data, or both. And even if we were to
read § 219.19 to include a population data requirement, the regulation says nothing about
what and how much data must be collected, how such data must be analyzed, and which
species must be included.
We conclude § 219.19 is ambiguous as to whether and to what extent the Forest
Service must collect and consider population data or create population objectives to
ensure the viability of species.
28
The 2005 Modification was directed at MIS and did not affect this general
species mandate.
- 32 -
Second, the effect of § 219.14(f) of the 2005 Modification also is not plain.
Regarding MIS, § 219.19 of the 1982 Rule states, in relevant part:
(a) Each alternative shall establish objectives for the maintenance
and improvement of habitat for management indicator species selected
under paragraph (g)(1) of this section, to the degree consistent with overall
multiple use objectives of the alternative. To meet this goal, management
planning for the fish and wildlife resource shall meet the requirements set
forth in paragraphs (a)(1) through (a)(7) of this section.
(a)(1) In order to estimate the effects of each 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. These species shall be
selected because their population changes are believed to indicate the
effects of management activities. . . .
(a)(2) Planning alternatives shall be stated and evaluated in terms of
both amount and quality of habitat and of animal population trends of the
management indicator species.
[* * *]
(a)(6) Population trends of the management indicator species will be
monitored and relationships to habitat changes determined. . . .
36 C.F.R. § 219.19 (1982). Thus, § 219.19 requires the Forest Service to select MIS,
“monitor[]” the MIS “[p]opulation trends,” and “evaluate[]” the population data “to
estimate the effects” of forest management on the other species in the forest. 36 C.F.R.
§ 219.19(a), (a)(1), (a)(2), & (a)(6) (1982). Accordingly, we have held that for MIS,
§ 219.19 of the 1982 Rule requires the Forest Service to “monitor” population data. See
Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219, 1226 (10th Cir. 2004) (“Plainly the
regulations require that the Forest Service monitor population trends of the MIS in order
- 33 -
to evaluate the effects of forest management activities on the MIS and the viability of
desired fish and wildlife populations in the forest more generally.”).
The 2005 Modification, however, created new options for the Forest Service as to
MIS. It states:
Management indicator species. For units with plans developed,
amended, or revised using the provisions of the planning rule in effect prior
to November 9, 2000 [i.e., the 1982 Rule], the Responsible Official may
comply with any obligations relating to [MIS] by considering data and
analysis relating to habitat unless the plan specifically requires population
monitoring or population surveys for the species. Site-specific monitoring
or surveying of a proposed project or activity area is not required, but may
be conducted at the discretion of the Responsible Official.
36 C.F.R. § 219.14(f) (2005); see also 70 Fed. Reg. 1023, 1052 (Jan. 5, 2005)
(promulgating the 2005 Rule and explaining Ҥ 219.14(f) provides that MIS obligations
may be met by considering data and analysis relating to habitat”).
The 2005 Modification authorizes the Forest Service to “comply with any
obligations” relating to MIS by “considering data and analysis relating to habitat.” 36
C.F.R. § 219.14(f) (2005). The phrase “any obligations” connotes a broad scope,
including possibly every MIS obligation imposed by § 219.19. But even the word “any”
may not be plain depending on the regulatory context. See Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2170 (2012) (“We have recognized that the modifier
‘any’ can mean different things depending upon the setting . . . .” (quotations omitted)).29
29
See also Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2451 (2014)
(Breyer, J., concurring in part and dissenting in part) (“I agree with the Court that the
word ‘any,’ when used in a statute, does not normally mean ‘any in the universe.’ . . .
The pursuit of [the] underlying purpose may sometimes require us to ‘abandon’ a ‘literal
Continued . . .
- 34 -
And as noted above, § 219.19 is ambiguous as to what “obligations” it creates for MIS
beyond monitoring. In the NFMA and 1982 Rule context, “any obligations relating to
[MIS]” could refer only to MIS monitoring obligations contained in § 219.19(a), (a)(1),
(a)(2), & (a)(6), or could include additional obligations arising from the species viability
mandate.
Section 219.14(f) is not clear as to whether it completely obviates all possible MIS
obligations imposed in § 219.19—including obligations due to the general species
viability mandate—or only MIS monitoring obligations.
* * *
Accordingly, as to whether and what extent § 219.19 required the Forest Service
to collect and consider population data or create population objectives to meet the species
viability mandate, and the extent to which § 219.14(f) supplanted the Forest Service’s
MIS responsibilities in § 219.19, we conclude the regulations do not convey a plain
meaning and therefore are ambiguous.
b) Whether the Forest Service’s interpretation is reasonable
Because the regulations’ meaning is not plain as to a population data requirement,
we defer to the Forest Service’s interpretation if it is reasonable or unless it is plainly
erroneous or inconsistent with the regulation. See Auer, 519 U. S. at 461. We first
i) examine the Forest Service’s interpretation and conclude it is reasonable. We then
______________________________________
Cont.
interpretation’ of a word like ‘any.’ The law has long recognized that terms such as ‘any’
admit of unwritten limitations and exceptions.’” (citations omitted)).
- 35 -
ii) consider Biodiversity’s position, concluding that although Biodiversity advances a
competing interpretation, it has not convinced us the Forest Service’s interpretation
should not be entitled to Auer deference. We accordingly iii) defer to the Forest
Service’s interpretation of the regulations concerning a population data requirement.
i) The Forest Service’s interpretation
The Forest Service’s interpretation of § 219.19’s viability mandate and the 2005
Modification distinguishes MIS and non-MIS.
Regarding MIS, the Forest Service acknowledges that before the 2005 Rule,
§ 219.19 of the 1982 Rule required it to “monitor the population trends” of MIS. Aplee.
Br. at 24 (quotations omitted). But the Forest Service contends that § 219.14(f) of the
2005 Rule—the 2005 Modification—made compliance “‘with any obligations relating to
management indicator species’” in the 1982 Rule optional so long as it “‘consider[ed]
data and analysis relating to habitat . . . .’” Aplee. Br. at 23 (quoting 36 C.F.R.
§ 219.14(f) (2005)). The Forest Service contends its reliance on the 2005 Modification
obviates “any” requirement in the 1982 Rule to use MIS population data to ensure species
viability in the Phase II Amendment. See id. at 25.
Regarding non-MIS, the Forest Service indicates in its brief that the 2005
Modification relieved it of whatever population data gathering obligations arose under
the 1982 Rule. See Aplee. Br. at 29 (“Because the Forest Service properly relied on the
2005 [R]ule in developing the Phase II [Amendment], Biodiversity’s argument
concerning the need for population data under the 1982 Rule fails.”). The Forest Service
clarified its position at oral argument:
- 36 -
It’s one thing to look at application of the ’82 Rules as interpreted by this
court with reference to monitoring to MIS and to talk about population data
because they are selected species. But more broadly, as the district court
noted there is no decision by this court or any other court that says for non-
MIS species you’ve got to maintain population data. . . . The Forest
Service has never believed it had that obligation [to collect non-MIS
data]. . . . That obligation doesn’t exist.
Oral Arg. at 15:29-15:53, 16:27-16:30, 16:47-16:50. In response to the court’s question,
“beyond MIS, is the Forest Service obligated to count any species?,” id. at 18:28-18:34,
counsel for the Forest Service replied, “I would say there is no general obligation to do
so,” id. at 18:37-18:45.
The Forest Chief took this position in his 2006 Decision denying Biodiversity’s
administrative appeal. See Chief’s 2006 Decision, App. at 2708-10 (rejecting
Biodiversity’s argument that the 1982 Rule obligated the Forest Service to collect and
consider population data, or estimate the minimum number of individuals to maintain a
viable population, in part, because “[t]here is no policy or regulatory requirement for the
[BH]NF to propose or establish minimum viable population numbers for any of the
species that occur within the planning area”). At least two circuits agree with the Forest
Service regarding the non-MIS. See Sierra Club v. Martin, 168 F.3d 1, 7 (11th Cir. 1999)
(rejecting an argument which interpreted § 219.19 to require collecting data on all species
because it would make nonsensical the regulation’s requirement to collect data on MIS);
Inland Empire Pub. Lands Council v. USFS, 88 F.3d 754, 758, 761-62 & n.8 (9th Cir.
1996) (concluding the Forest Service’ habitat analysis of seven non-MIS Sensitive
Species did not violate § 219.19’s viability mandate).
- 37 -
In sum, the Forest Service interprets the regulations narrowly to mean that
§ 219.19 of the 1982 Rule obligated the Forest Service to ensure the viability of species
but imposed no duty to use population data other than the MIS monitoring obligations,
and the 2005 Modification relieved the Forest Service of “any” MIS monitoring
obligation.
ii) Biodiversity’s position
Biodiversity attempts to challenge the Forest Service’s interpretation of the
regulations by positing its own competing interpretation.
We are bound to defer to the Forest Service’s interpretation, however, unless it is
“unreasonable, plainly erroneous, or inconsistent with the regulation’s plain meaning.”
Troyer, 479 F.3d at 1281 (quotations omitted). Indeed, “[a]n agency’s interpretation need
not be the only possible reading of a regulation—or even the best one—to prevail.”
Decker, 133 S. Ct. at 1337. Accordingly, Biodiversity cannot succeed in challenging the
Forest Service’s interpretation merely by proposing another interpretation, no matter how
reasonable. It must instead convince us that the Forest Service’s interpretation is
unreasonable or plainly erroneous—which Biodiversity does not even attempt to do.
In any case, Biodiversity has not advanced a persuasive alternative interpretation
to the Forest Service’s. Biodiversity observes the 1982 Rule required the Forest Service
to “ensure viable populations of all native species under § 219.19,” Aplt. Br. at 25, and
“define[d] viability in terms of a minimum number of individuals,” id. at 31 (emphasis in
original). “As such, numerical data is relevant and applicable to viability
determinations . . . .” Id. at 31. Biodiversity further contends the 2005 Modification—
- 38 -
§ 219.14(f)—addressed “MIS monitoring compliance, not viability determinations . . . .”
Aplt. Br. at 33. Biodiversity stresses the difference between MIS monitoring and
maintaining viable species and argues the Forest Service conflates the two. See Aplt.
Reply Br. at 2-3. Although the 2005 Modification “eliminated the 1982 [R]ule’s
requirement to monitor MIS population trends, it did not eliminate the definition of a
viable population,” id. at 6, nor did it “eliminate the relevance, importance and
applicability of population figures and estimates for species viability determinations and
maintenance,” id. at 7.
Biodiversity therefore generally argues the Forest Service must do more than
habitat analysis to ensure species viability. But beyond that, Biodiversity’s interpretation
of the regulations is difficult to decipher. Biodiversity’s various arguments can be read to
suggest a population data requirement applied to: (1) all species;30 (2) some species
beyond Emphasis Species;31 (3) species “requiring special attention;”32 (4) all Emphasis
30
See Aplt. Br. at 25 (“all native species”); Oral Arg. at 7:30-7:39, 7:52-8:01 (“I
also want to emphasize that species viability applies to all native species, not just
management indicator species. . . . By undertaking those viability determinations [in the
Final EIS] beyond management indicator species, the Forest Service recognized that
viability covers all native species.”); but see Oral Arg. at 8:32-8:40 (acknowledging
“[Biodiversity] do[es] not necessarily suggest that the Forest Service needs to go out and
count every single individual.” (emphasis added)); Oral Arg. at 28:48-29:02 (“I want to
clarify, in [Biodiversity]’s briefing, we have not suggested that every single species that
exists on the forest needs to be analyzed in terms of population estimates in relation to the
definition of a viable species population.” (emphasis added)).
31
See Aplt. Reply Br. at 13 (criticizing the Phase II Amendment’s “viability
determinations,” which included both Emphasis and non-Emphasis Species, such as local
game animals and migratory birds); Aplt. Reply Br. at 17 (discussing the Phase II
Amendment’s shortcomings, stating “[t]he agency’s viability determinations are void of
Continued . . .
- 39 -
Species;33 (5) some Emphasis Species;34 (6) some or all Sensitive Species;35 (7) perhaps
Species of Local Concern;36 (8) and MIS to the extent § 219.19 imposed population data
______________________________________
Cont.
any connection to minimum numbers of reproductive individuals necessary to ensure the
continued existence of species on the [BHNF].”); Oral Arg. 6:59-7:06 (“The Forest
Service did not properly consider population estimates and figures when it was reaching
its species viability determinations.”); Oral Arg. at 8:32-9:06 (acknowledging
“[Biodiversity] do[es] not necessarily suggest that the Forest Service needs to go out and
count every single individual, but if there is population data available, or if they need
population data,” the Forest Service must “consider that data” as part of any viability
analysis).
As discussed above, “Emphasis Species” is an umbrella term encompassing
various sub-categories, including MIS, Threatened and Endangered Species, Sensitive
Species, and Species of Local Concern. See supra notes 12-15 and accompanying text.
32
See Aplt. Br. at 29 (“[T]he agency’s duty to ensure viable, or self-sustaining
populations applies to those species requiring special attention.” (quotations omitted)).
Biodiversity does not define “special attention.”
33
See Aplt. Br. at 29 (stating the “emphasis species” referenced by Biodiversity in
its brief—nine MIS and the eight non-MIS—“fall within the purview of the 1982 rule’s
viability requirement”); Aplt. Br. at 31 (describing the eight non-MIS as “emphasis
species”); Oral Arg. at 8:59-9:07 (stating the viability mandate carries obligations “for
each emphasis species that is analyzed for species viability”); Oral Arg. at 29:03-29:13
(arguing § 219.19’s viability mandate “applies with special force to emphasis species”).
34
See Aplt. Reply Br. at 15-16 (discussing only MIS and Sensitive Species); Oral
Arg. at 29:13-29:18 (“[T]he species that I have discussed are management indicator
species and sensitive species . . . .”).
35
See Aplt. Br. at 29 (citing Ecology Ctr., Inc. v. USFS, 451 F.3d 1183, 1186
(10th Cir. 2006) (“The duty to ensure viable populations ‘applies with special force to
sensitive species.’” (quoting Inland Empire Pub. Lands v. USFS, 88 F.3d 754, 759 (9th
Cir. 1996)))); Oral Arg. at 29:03-29:13 (misquoting Ecology Center).
36
Compare Aplt. Br. at 31 (criticizing the viability analyses of eight non-MIS,
including six Sensitive Species and two Species of Local Concern—pygmy nuthatch and
flying squirrel), with Aplt. Reply Br. at 15-16 (discussing only the six Sensitive Species
and omitting any discussion regarding the two Species of Local Concern).
- 40 -
duties beyond MIS monitoring.37 Compounding this problem is Biodiversity’s failure to
specify what population data must be collected, how it must be analyzed, and whether it
must be collected at all when the Forest Service’s habitat analysis for a particular species
may be adequate to ensure species viability.38 We will not attempt to bring cohesion to
Biodiversity’s interpretation(s). Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir.
1999) (declining to address an alternative argument because defendants “have not
adequately developed the argument,” and “[t]his court . . . will not craft a party’s
arguments for him”).
iii) Conclusion
Having reviewed the parties’ interpretations of the regulations, we conclude the
Forest Service’s interpretation is narrow but not unreasonable. It allows the agency
flexibility to use population data, as it has done,39 in meeting the species viability
37
See Aplt Br. at 32 (arguing the Phase II Amendment failed to create “quantified
population objectives for MIS” (quotations omitted)); id. at 34 (arguing the 2005
Modification did not obviate the need to “state population data and objectives” for MIS);
Aplt. Reply Br. at 6 (“Yet, while Section 219.14(f) of the 2005 rule eliminated the 1982
rule’s requirement to monitor MIS population trends, it did not eliminate the definition of
a viable population.”); Aplt. Reply Br. at 15 (criticizing the nine MIS viability analyses
as insufficiently gathering or analyzing population data).
38
The Forest Service conducted habitat analyses for many non-MIS species,
including the eight non-MIS identified by Biodiversity. See 2005 Final EIS, App. at
1397-1401 (pygmy nuthatch); id. at 1415-18 (northern flying squirrel); id. at 1887-94
(northern leopard frog); id. at 1895-97 (redbelly snake); id. at 1928-33 (Lewis’s
woodpecker); id. at 1940-52 (northern goshawk); id. at 1960-68 (American marten); id. at
1972-1974 (fringed myotis).
39
As to MIS, the Forest Service examined population estimates, densities, and
trends. See 2005 Final EIS, App. at 1432-37 (estimate, density, and trend of mountain
Continued . . .
- 41 -
requirement, and finds support in Ninth and Eleventh Circuit precedent. Biodiversity has
not persuaded us otherwise, presenting its interpretation in various permutations, leaving
us to guess what it is and without any basis to conclude the Forest Service’s interpretation
is plainly erroneous, inconsistent with the regulations, or otherwise unreasonable.
For the foregoing reasons, we must defer in these circumstances to the Forest
Service’s interpretation of § 219.19 of the 1982 Rule and § 219.14(f) of the 2005 Rule
and proceed to our analysis of Biodiversity’s challenge to the Phase II Amendment’s
compliance with the species viability mandate.
2) Whether the Phase II Amendment fails to meet the species
viability mandate under the Forest Service’s interpretation in
violation of the APA
In light of the preceding analysis, to succeed on its APA claim Biodiversity must
show the Forest Service failed to comply with its own interpretation of § 219.19’s
______________________________________
Cont.
sucker); id. at 1446 (estimate, density, and trend of black-backed woodpecker); id. at
1455 (density and trend of brown creeper); id. at 1465 (density and trend of golden-
crowned kinglet); id. at 1471 (density of grasshopper sparrow); id. at 1475 (density of
ruffed grouse); id. at 1482 (density of song sparrow); id. at 1491 (estimate of beaver); id.
at 1498 (estimate and trend of white-tailed deer).
And as to non-MIS, the Forest Service included population data in its analyses for
the Lewis’s woodpecker, northern goshawk, and American marten—either explicitly or
incorporating it by reference. See 2005 Final EIS, App. at 1928-29 (stating three Lewis’s
woodpeckers were “observed in 2001, four in 2002, and nine in 2003,” and incorporating
by reference documents containing Lewis’s woodpeckers population data); id. at 1940
(citing 2003 data identifying 25 active goshawk territories and incorporating by reference
documents from 1997 indicating 30 nesting pairs of northern goshawks); id. at 1960
(stating an estimated 124 American martens reside in high quality habitat, additional
individuals reside in lower quality habitat, and “the marten population trend is relatively
stable in the [BHNF],” and incorporating by reference other documents containing
American marten population data).
- 42 -
viability mandate and the 2005 Modification in violation of the APA. Biodiversity fails
to do so.
Biodiversity contends the Phase II Amendment fails to ensure “species viability as
required by § 219.19.” Aplt Br. at 30. Referring to nine MIS and eight non-MIS
Emphasis Species as examples, it argues the Forest Service did not properly use
population data for those species. Aplt Br. at 30-35; Aplt. Reply Br. at 11-17.40
As to non-MIS, § 219.19 imposed no obligation to use population data under the
Forest Service’s interpretation.
As to MIS, the Forest Service conducted habitat viability analyses.41 Biodiversity
faults the Forest Service for failing to use population data for MIS. But under the Forest
40
Biodiversity identified nine MIS: black-backed woodpecker, brown creeper,
golden-crowned kinglet, grasshopper sparrow, ruffed grouse, song sparrow, beaver,
white-tailed deer, and mountain sucker. Aplt. Br. at 32-34; Aplt. Reply Br. at 8, 15; see
also 2005 Revised Forest Plan, App. at 2102 (listing MIS).
Biodiversity also identified eight non-MIS Emphasis Species: northern leopard
frog, redbelly snake, Lewis’s woodpecker, northern goshawk, American marten, fringed
myotis, pygmy nuthatch, and northern flying squirrel. Aplt. Br. at 31; see also 2005 Final
EIS, App. at 1359-60 (listing the first six as “Sensitive Species”); 2005 Final EIS, App. at
1382, 1397, 1403, 1415 (organizing the discussion of the pygmy nuthatch under the
heading “Species of Local Concern—Birds,” and the flying squirrel under “Species of
Local Concern—Mammals”).
Contrary to Biodiversity’s characterization that the Phase II Amendment
“pointedly avoid[s] the use of population figures to determine species viability,” Aplt.
Reply Br. at 14, the record shows the Forest Service included population data for all nine
MIS and three of the non-MIS. See supra note 39.
41
See 2005 Final EIS, App. at 1437-38 (mountain sucker); id. at 1448-50 (black-
backed woodpecker); id. at 1458-61(brown creeper); id. at 1466-67 (golden-crowned
kinglet); id. at 1472 (grasshopper sparrow); id. at 1477 (ruffed grouse); id. at 1484 (song
sparrow); id. at 1493-94 (beaver); id. at 1500-02 (white-tailed deer).
- 43 -
Service’s interpretation of the 2005 Modification, the Phase II Amendment may comply
with “any” MIS monitoring obligations imposed under § 219.19 by using habitat data and
analysis in lieu of population data. See 36 C.F.R. § 219.14(f) (2005).
Biodiversity fails to show how the Phase II Amendment is deficient under the
Forest Service’s interpretation of § 219.19’s viability mandate and the 2005
Modification. We therefore reject its APA claim that the Phase II Amendment violates
the species viability mandate.42
42
In its opening brief, Biodiversity mentions in a footnote that a federal district
court held the 2005 Rule unlawful in 2007. Aplt. Br. at 29 n.2 (citing Citizens for Better
Forestry v. USDA, 482 F. Supp. 1059, 1100-01 (N.D. Cal. 2007). The brief refers to the
2005 Rule as “now-invalidated.” Id. at 33. In its reply brief, Biodiversity states,
“[c]ontrary to the Intervenors’ assertion otherwise, [Biodiversity] does not contend in this
appeal that the invalidation of the 2005 rule . . . rendered Phase II unlawful.” Aplt. Reply
Br. at 10.
This statement indicates Biodiversity does not fault the Forest Service for relying
on § 219.14(f) of the 2005 Rule in preparing the Phase II Amendment. We therefore
understand this statement as Biodiversity’s accepting § 219.14(f) was valid for purposes
of the Phase II Amendment, and our analysis proceeds on that basis.
We note, however, in the same passage in its reply brief, Biodiversity further
states that “[t]he Forest Service’s response brief correctly notes that in the lower court,
[Biodiversity] argued the invalidation of the 2005 rule further called into question the
lawfulness of the Phase II Amendment.” Aplt. Reply Br. at 10. If Biodiversity actually
wished to make such an argument, it would need to explain why it would be unreasonable
for the Forest Service, in adopting the Phase II Amendment in 2005, to rely on
§ 219.14(f) before any court had held the 2005 rule invalid.
But Biodiversity then suggests it does not wish to make such an argument:
Before this Court, however, [Biodiversity] asserts that regardless of
whether the 2005 rule was in effect at the time the Forest Service adopted
Phase II, the agency still had an obligation to maintain viable populations
of species in compliance with the 1982 rule’s provisions it purported to
follow. Section 219.14(f) of the 2005 rule did not alter that requirement or
the plain language of the 1982 rule explaining what constitutes a viable
population.
Continued . . .
- 44 -
ii. Viable species mandate—habitat and protections
Apart from challenging Forest Service’s species viability analyses generally,
Biodiversity also argues the Phase II Amendment violates § 219.19’s viability mandate
by failing to provide adequate: (1) habitat or protection for the northern goshawk;
(2) habitat for snag-dependent species; and (3) protection for sensitive plants.43 These
three challenges contest whether the Phase II Amendment provides adequate habitat or
protections to ensure the species’ viability.
______________________________________
Cont.
Reply Br. at 10-11.
Our analysis is premised on § 219.14(f) having been in effect when the Forest
Service adopted the Phase II Amendment. If, based on this last quoted statement from its
reply brief, Biodiversity could somehow fall back on the argument that § 219.14(f) was
not in effect in 2005, the Forest Service has explained that a transition rule adopted in
2000 would have been in effect. Aplee. Br at 27-28; see also 36 C.F.R. § 219.35 (2001)
(allowing the Forest Service to “consider the best available science in implementing, and,
if appropriate, amending the current plan”); 36 C.F.R. § 219.35 App. B (2004)
(interpreting the 2000 transition rule); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 749
(10th Cir. 2006) (concluding the Forest Service was not required to collect MIS
population data under the 2000 transition provision and its “best available science”
standard).
The Forest Service interprets the 2000 transition rule as consistent with its
interpretation of § 219.19 of the 1982 Rule together with § 219.14(f) of the 2005 Rule.
See Aplee. Br. at 27-28. We again find the agency’s interpretation reasonable and
entitled to deference under Auer. Biodiversity argues against application of the 2000
transition rule only briefly. It has not developed that argument or shown that the Forest
Service violated the APA through non-compliance with the 2000 transition rule. See
Aplt. Br. at 35 (arguing only briefly); Aplt. Reply Br. at 8-9 (same).
43
Biodiversity also claims the Forest Service’s failure to provide habitat or
protections for these three categories violates the Chief’s 1999 Decision and the
Settlement Agreement.
As noted above, neither document may be an independent basis for an APA
violation. We consider them as factors in determining whether the Forest Service acted
arbitrarily or capriciously when it promulgated the Phase II Amendment.
- 45 -
1) Northern goshawk
Biodiversity contends that, instead of designating specific post-fledging areas for
the northern goshawk,44 the Phase II Amendment lists only general forest-wide goals to
create goshawk-friendly habitat. Aplt. Br. at 35-37, 40. Citing to various scientific
studies, id. at 36 (citing Goshawk Conservation Assessment, App. at 697), Biodiversity
argues the Phase II Amendment fails to provide sufficient dense canopy or large trees for
goshawks.45 Id. at 35-40. Biodiversity further argues the Forest Service failed to impose
restrictions on harvesting large trees in densely canopied areas, making the development
of mature, dense stands of trees “less likely.” Id. at 38.
The Forest Service acknowledges it shifted from designating specific areas for
goshawks under the Phase I Amendment to using forest-wide goals to create goshawk-
44
A “post-fledgling area” is “the area used by the [goshawk] family group from
the time the young fledge until they are no longer dependent on the adults for food.”
Northern Goshawk (Accipiter gentiles atricapillus): A Technical Conservation
Assessment, App. at 697 (citations omitted) (“Goshawk Conservation Assessment”). As
goshawk fledglings mature, they range “farther from the nest over time.” Id. Thus, post-
fledgling areas “may be important to fledglings by providing prey items on which to
develop hunting skills, as well as cover from predators and prey.” Id. A post-fledgling
area is typically smaller than the foraging area used by the goshawk family group. See id.
at 691, 695.
45
Relying on various scientific studies—including the extensive Goshawk
Conservation Assessment conducted by the Forest Service—Biodiversity contends
goshawks prefer large trees (at least 16 inches in diameter) with relatively dense canopies
(at least 50% closed) for nesting and post-fledgling areas. Aplt. Br. at 37-38 (arguing
these conditions “might provide the highest quality habitat for goshawks”). Biodiversity
argues the Forest Service did not conduct a proper goshawk viability analysis because it
included areas without the qualities “preferred by goshawks.” See 2005 Final EIS, App.
at 1941-42 (analyzing the goshawk’s viability by examining habitat, including trees as
small as 9 inches in diameter and canopy densities as low as 40% closed).
- 46 -
friendly conditions under the Phase II Amendment. It did so based on new scientific
information about the goshawk. Aplee. Br. at 30-31. During the Phase II Amendment
process, the Forest Service performed a conservation assessment of the northern goshawk
that synthesized information from over 470 goshawk conservation studies, including
some of the same studies cited by Biodiversity. See Goshawk Conservation Assessment,
App. at 635; Aplee. Br. at 32. The Forest Service also reviewed other scientific literature
about goshawks and their habitat, see 2003 Survey Results for Small Forest Owls, the
Northern Goshawk, and Other Raptors of Interest in the Black Hills, South Dakota, App.
at 1049; 2005 Final EIS, App. at 1940-43, and conducted on-site surveys of goshawk
habitats. See 2005 Final EIS, App. at 1940-41. Finally, it performed a biological
evaluation of the goshawk and how the Phase II Amendment might adversely affect the
species. See 2005 Final EIS, App. at 1943-52. The Forest Service concluded a forest-
wide habitat approach would promote goshawk viability. See Aplee. Br. at 31-32.
Biodiversity’s argument that the Phase II Amendment does not ensure the viability
of the goshawk invites us to compare its scientific analysis with the Forest Service’s. On
that score, “[w]e grant considerable discretion and deference to federal agencies on
matters that require a high level of technical or scientific expertise.” Forest Guardians v.
USFS, 641 F.3d 423, 442 (10th Cir. 2011) (per curiam) (citing Marsh v. Or. Natural Res.
Council, 490 U.S. 360, 377 (1989)). Biodiversity thinks the Forest Service should have
designated post-fledgling areas. The Forest Service decided on a forest-wide habitat
approach. Both rely on science, and “it is not our role to weigh competing scientific
analyses.” Forest Guardians, 641 F.3d at 442 (quotations omitted). Biodiversity has not
- 47 -
shown why the Forest Service’s approach is unreasonable. We therefore defer to the
Forest Service and decline to find it violated the APA when it developed the forest-wide
approach in the Phase II Amendment to create a goshawk-friendly habitat.
2) Snag-dependent species
Biodiversity argues the Phase II Amendment fails to ensure the viability of species
that depend on “snags” in violation of § 219.19 of the 1982 Rule.
A “snag” is a dead standing tree. See Phase II Amendment Glossary, App. at
2363. Many species depend on snags for shelter, food, or both—such as the Lewis’s
woodpecker, the black-backed woodpecker, the pygmy nuthatch (a bird species), and the
fringed myotis (a bat species). When snags are scarce, snag-dependent species struggle
to survive. Botanists measure the number of snags per acre, or “snag density,” and the
diameter of the snag’s trunk, or “snag size.” See 2005 Final EIS, App. at 1214-15; Phase
II Amendment Glossary, App. Br. at 2317. The Forest Service seeks to manage snag
density and size in the BHNF to ensure the viability of snag-dependent species.
The 1997 Forest Plan contained snag density and size standards, but the Chief’s
1999 Decision found them “inadequate to assure viability for the [BHNF]’s snag-
dependent [species].” Chief’s 1999 Decision, App. at 2505. The Chief prescribed
detailed snag standards and directed the Forest Service to adopt them. Chief’s 1999
Decision, App. at 2465-66, 2503-05. The Phase I Amendment did so.
After the BHNF suffered a significant increase in forest fires and mountain pine
beetle infestation, the Forest Service altered its approach to snags in the Phase II
Amendment. See 2005 Revised Forest Plan, App. at 2036, 2090-91. For example, the
- 48 -
Phase II Amendment aims for an average of 3 snags per acre that are greater than 9
inches in diameter, 25 percent of which are greater than 14 inches in diameter. 2005
Revised Forest Plan, App. at 2036.46 If an area does not meet that objective, the Forest
Service must keep all snags. See id. at 2090. The Forest Service must also keep all snags
greater than 20 inches in diameter, unless they are a safety hazard. Id. at 2090. The
Forest Service adopted the Phase II Amendment’s snag standards and objectives to meet
three important goals: (1) “provide for species viability,” (2) “reduce the probability of
large-scale, high intensity fires,” and (3) “reduce susceptibility to bark beetle infestation.”
2005 Record of Decision, App. at 1123-24.
Biodiversity challenges the Forest Service’s technical and scientific evaluation of
the Phase II Amendment’s snag standards and objectives,47 arguing they fail to ensure the
viability of species. For example, Biodiversity contends that “[e]xperts recommend
roughly 41” snags per acre as optimal for black-backed woodpeckers. Aplt. Br. at 41.48
46
This contrasts with the snag management standard in the Chief’s 1999 Decision
to retain either 2 or 4 snags per acre greater than 10 inches in diameter (depending on the
slope’s orientation), 25 percent of which must be greater than 20 inches in diameter.
Chief’s 1999 Decision, App. at 2465; see also Phase I Amendment Decision Notice and
FONSI, App. at 368, 377.
47
In addition, Biodiversity attacks the Phase II Amendment’s use of standards and
objectives for snags, as opposed to standards only. Aplt. Br. at 41. It cites no authority,
and its argument that objectives offer less accountability and are less effective at ensuring
the viability of species fails to show how the Phase II Amendment violates the APA.
48
The experts’ recommendation of 41 snags per acre is “for burned forest” only.
Conservation Assessment of Woodpeckers in the BHNF, South Dakota and Wyoming,
App. at 932 n.b.
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Biodiversity therefore concludes the Phase II Amendment’s snag standard providing for
only 3 snags per acre fails to ensure the viability of this species. Moreover, Biodiversity
argues that pygmy nuthatches “prefer snags of 19 or more” inches in diameter. Aplt. Br.
at 42. Biodiversity concludes the Phase II Amendment’s snag standard providing for
snags 9 inches in diameter, 25% of which are 14 inches in diameter, and retaining all
snags greater than 20 inches, fails to ensure the pygmy nuthatches’ viability in the BHNF.
Biodiversity’s argument addresses what a species prefers, rather than what a
species needs for viability in terms of snags. It fails to show why we should not defer to
the Forest Service’s technical and scientific expertise. Forest Guardians, 641 F.3d at
442.
For example, experts told the Forest Service that black-backed woodpeckers prefer
high snag densities produced by fires and mountain pine beetles, but lower snag densities
“provide suitable nesting and foraging habitat” in between fire or beetle outbreaks.
Expert Interview Summary for the BHNF LRMP, App. at 532-33. Moreover, the Phase
II Amendment contains objectives retaining high snag-densities following fires or
infestations. See 2005 Revised Forest Plan, App. at 2066. Expert reports also advised
the Forest Service that although the pygmy nuthatch prefers 19-inch diameter snags, this
species uses a range of snag sizes, including snags as small as 11-inches in diameter. See
- 50 -
Conservation Assessment of the Pygmy Nuthatch in the BHNF, South Dakota and
Wyoming, App. at 1006-07.49
Relying on this technical and scientific expertise, the Forest Service concluded its
snag standards and objectives would provide sufficient habitat to ensure species viability,
including for the black backed woodpecker, 2005 Final EIS, App. at 1451-52, and the
pygmy nuthatch, 2005 Final EIS, App. at 1399-1400. Biodiversity has not shown why
we should not defer to the Forest Service’s technical or scientific assessment.
Applying deference to the Forest Service’s reliance on technical or scientific
expertise, we have examined the Phase II Amendment’s analyses for each snag-
dependent species identified by Biodiversity. We conclude Biodiversity has not shown
that the Phase II Amendment as to snag standards and objectives is arbitrary, capricious,
an abuse of discretion, or otherwise contrary to law.
3) Sensitive plants
Biodiversity argues the Phase II Amendment fails to establish “unambiguous”
standards and guidelines to protect the viability of sensitive plants from ground-
disturbing activities such as timber harvesting and other vegetative management. Aplt.
Br. at 44-46; Reply at 22. Biodiversity does not identify any statute, regulation, or case
law to support its argument. Instead, it relies on the Chief’s 1999 Decision and the
49
The Forest Service integrated this information into its pygmy nuthatch viability
analysis, noting that “snags greater than 15 inches in diameter are an integral part of
pygmy nuthatch nesting and roosting habitat,” and that providing for snags at least 14
inches in diameter and requiring retention of all snags greater than 20 inches in diameter
would meet the pygmy nuthatch’s habitat needs. 2005 Final EIS, App. at 1339.
- 51 -
Settlement Agreement, which required the Forest Service to promulgate “specific and
unambiguous standards and guidelines” to protect and maintain viability of sensitive
plants. Chief’s 1999 Decision, App. at 2516. But, as noted above, those documents
cannot serve as an independent basis for a violation of the APA.
Even considering the Chief’s 1999 Decision and the Settlement Agreement as
factors, the Forest Service did not violate the APA. The Phase II Amendment includes
numerous protections for sensitive plants. See 2005 Final EIS, App. at 1202; 2005
Revised Forest Plan, App. at 2104-09, 2111, 2118-19, 2121-24, 2175, 2180, 2184, 2201,
2283. Biodiversity does not argue those protections are arbitrary, capricious, or have no
factual basis. Instead, it contends the protections are unclear and inadequate to protect
sensitive plants. The scope of our APA review is narrow. We do not “substitute our
judgment for that of the agency’s on matters within its expertise,” Colorado Wild,
Heartwood v. USFS, 435 F.3d 1204, 1213 (10th Cir. 2006), including how to protect
sensitive plants.
Without having more than Biodiversity’s vague and unpersuasive argument that
those protections might have been more restrictive or written more clearly, we cannot
find an APA violation. See also Forest Guardians v. USFS, 329 F.3d 1089, 1099 (9th
Cir. 2003) (“An agency’s actions need not be perfect; we may only set aside decisions
that have no basis in fact, and not those with which we disagree.”). Biodiversity fails to
show how the sensitive plant protections in the Phase II Amendment are arbitrary,
capricious, an abuse of discretion, or otherwise contrary to law.
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b. Protect RNAs and Botanical Areas
Biodiversity argues the Phase II Amendment fails to comply with the 1982 Rule
requiring the Forest Service to establish and follow heightened protections in two BHNF
areas: Research Natural Areas (“RNAs”) and Botanical Areas.
i. Protecting RNAs
Biodiversity contends the Forest Service violated NFMA and the APA by
allowing livestock on RNAs without first having RNA management plans in place. Aplt.
Br. at 49-51, Aplt. Reply Br. at 25-27.
The 1982 Rule required the Forest Service to establish and protect RNAs. 36
C.F.R. § 251.23 (1982). RNAs must “be retained in a virgin or unmodified condition
except where measures are required to maintain a plant community which the area is
intended to represent.” Id. The Forest Service may “establish a level of acceptable
casual or incidental livestock use that can be tolerated and is consistent with the
management prescription for the research natural area.” Forest Service Manual
§ 4063.3(3); Suppl. App. at 181-82.
The Forest Service designates RNAs via a multi-step process that takes several
years to complete. As part of this process, the Forest Service must establish boundaries,
maps, and monuments; withdraw those areas from “mineral entry” (disallowing new
mineral rights claims); and create an individualized management plan. See Forest
Service Manual ch. 4060. The regulations do not impose deadlines to complete the RNA
designation process. See id.
- 53 -
In 2005, the Forest Service conducted a detailed RNA analysis, 2005 Final EIS,
App. at 1526-37, and designated four new RNAs in the BHNF, subject to general RNA
management guidelines and protections, 2005 Revised Forest Plan, App. at 2020, 2176-
2180. The Phase II Amendment directs the Forest Service to prepare individualized
management plans for these RNAs by 2008. 2005 Revised Forest Plan, App. at 2179.
The Forest Service admits it missed that deadline, but reports it is withdrawing the RNAs
from mineral entry and proceeding with the management plan process. Aplee. Br. at 42.
Biodiversity contends the Forest Service failed to comply with its RNA duties
under NFMA by missing the Phase II Amendment’s internal deadline to complete
individualized management plans and by allowing livestock to trample and graze on
sensitive plants in the RNAs. Aplt. Br. at 49-51, Aplt. Reply Br. at 25-27. Biodiversity
insists that, without individualized management plans, the Forest Service must ban all
livestock in the RNAs because it is impossible to determine whether any use would be
consistent with the management plan for the RNA. Aplt. Br. at 50-51; see also Forest
Service Manual § 4063.3(3).
The APA “leaves in the courts the discretion to decide whether agency delay is
unreasonable.” Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999). If an
agency has no “concrete statutory deadline” for agency action and such action is
“governed only by general timing provisions,” such as a general statutory admonition that
agencies complete a task “within a reasonable time,” then “a court must compel only
action that is delayed unreasonably.” Id. at 1190-91 (quotations omitted); see Cobell v.
Norton, 240 F.3d 1081, 1096 (D.C. Cir. 2001) (“An agency’s own timetable for
- 54 -
performing its duties in the absence of a statutory deadline is due considerable
deference.” (quotations omitted)).
Biodiversity has not shown how the Forest Service’s delay regarding the RNA
management plans is unreasonable. Although completion of the plans is pending, the
Phase II Amendment imposes standards and guidelines to protect sensitive plants forest-
wide, see, e.g., 2005 Revised Forest Plan, App. at 2089, 2099-100, 2109, and includes
additional RNA-specific protections, 2005 Revised Forest Plan, App. at 2179. The Forest
Service has excluded livestock grazing in two of the new RNAs (other than a semi-annual
cattle drive through one RNA), and it has limited livestock grazing in the other two areas
to incidental use. 2005 Final EIS, App. at 1534; Chief’s 2006 Decision, App. at 2715.
The Forest Service also monitors conditions in the RNAs. See Monitoring Reports, App.
2717-940. If livestock use “begins to affect the ecological characteristic[s], the use will
be removed from the RNA.” 2005 Revised Forest Plan, App. at 2179.
We conclude Biodiversity has not shown the Forest Service acted arbitrarily or
capriciously, abused its discretion, or otherwise violated the law as to RNAs.
ii. Protecting Botanical Areas
Biodiversity claims the Phase II Amendment lacks adequate monitoring
requirements to protect sensitive plants in Botanical Areas from livestock damage. Aplt.
Br. at 46-48; Aplt. Reply Br. at 23-24.
Botanical Areas protect sensitive species and “exhibit plant communities,
associations, and/or individual species of particular interest.” 2005 Revised Forest Plan,
App. at 2183; see also Forest Service Manual § 2372.05(3) (definition). Although not
- 55 -
subject to the same level of regulation and approval as RNAs, they receive protections to
preserve their unique ecological characteristics. Compare Forest Service Manual
§ 2372.2 (Botanical Area designation process) with id. ch. 4060 (RNA designation
process).
To protect Botanical Areas, the 1997 Forest Plan adopted Standard 3.1-2501,
which allowed livestock grazing in Botanical Areas if it did “not conflict with the values
for which the botanical area was designated.” See Chief’s 1999 Decision, App. at 2515
(describing Standard 3.1-2501 under the 1997 Forest Plan). The Chief’s 1999 Decision
criticized this standard, stating that “Standard 3.1-2501 . . . lacks sufficiently strong
monitoring requirements to quantify impacts to sensitive plants in a manner that would
provide a basis for ensuring that standard is met.” Id.
In response to this criticism, both the Phase I and Phase II Amendments added
Standard 3.1-2503, which requires the Forest Service to “[r]estrict access of domestic
livestock to protect . . . sensitive and species of local concern plant occurrences in
designated botanical areas.” 2005 Revised Forest Plan, App. at 2185 (same); see also
Phase I Amendment Decision Notice and FONSI, App. at 347. Although livestock may
still graze in Botanical Areas (if not in conflict with the areas’ ecological values), the
Forest Service must “restrict” livestock access if the Botanical Area contains sensitive
plants. See Revised Forest Plan, App. at 2185. When the Forest Chief denied
Biodiversity’s administrative challenge to the Phase II Amendment in 2006, he
determined these standards “provide adequate direction with respect to grazing, which is
consistent with NFMA regulations . . . .” Chief’s 2006 Decision, App. at 2716.
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Biodiversity argues the Phase II Amendment “failed to strengthen monitoring
requirements or other protections,” Aplt. Br. at 48, in violation of the Chief’s 1999
Decision’s directing the Forest Service to strengthen monitoring requirements and the
Settlement Agreement’s promising to remedy “‘all inadequacies identified in the Chief’s
[1999 Decision].’” Aplt. Reply Br. at 24 (quoting Settlement Agreement, App. at 436).50
It contends the Phase II Amendment’s monitoring requirements are too weak to ensure
livestock grazing does not compromise Botanical Areas. Aplt. Reply Br. at 24.
Biodiversity insists that instances of livestock grazing and trampling sensitive plants in
some of the Botanical Areas between 2006 and 2009 prove Standards 3.1-2501 and 3.1-
2503 are not strong enough. Aplt. Br. at 48-49; Aplt. Reply Br. at 23-24.
Biodiversity’s argument, however, only goes so far. Our APA review “is narrow,”
asking only whether the Forest Service “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a rational connection between the facts
found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotations omitted). We must not “substitute
[our] judgment for that of the agency.” Judulang v. Holder, 132 S. Ct. 476, 483 (2011)
(quotations omitted).
50
Although Biodiversity alleges the Forest Service failed to strengthen monitoring
requirements to protect sensitive plants in Botanical Areas “in violation of NFMA,” Aplt.
Br. at 49, it does not cite any NFMA statutory or regulatory authority. Biodiversity cites
only the Chief’s 1999 Decision and the Settlement Agreement. As we have noted, an
APA claim cannot be based on these non-statutory and non-regulatory documents. They
only may be considered as factors in our APA analysis.
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The Forest Service added Standard 3.1-2503 in the Phase I Amendment “[t]o
clarify protection of sensitive plant populations within designated Botanical Areas as per
the Deputy Chief’s direction.” 1997 Revised Forest Plan Corrections or Additions, App.
at 386. It expanded on that rationale in the Phase II Amendment, explaining “the
standard was reworded to clarify that livestock would be restricted access to R2
sensitive . . . plant occurrences.” 2005 Revised Forest Plan, App. at 1522 (also
recognizing Standard 3.1-2503 would be explained in greater detail in the “Forest Plan
Monitoring and Implementation Guide”).51 It further explained that if monitoring shows
livestock access Botanical Areas with sensitive plants, the Forest Service would take
steps to exclude the cattle. See 2005 Final EIS, App. at 1773.
By adding Standard 3.1-2503 to restrict livestock from Botanical Areas that
contain sensitive plants, the Phase II Amendment does more than strengthen “monitoring
requirements to quantify impacts to sensitive plants,” Chief’s 1999 Decision, App. at
2515—it “[r]estrict[s]” livestock from Botanical Areas that have sensitive plants. 2005
51
Neither party included a full copy of Appendix D of the Final EIS, which
explains the rationale underlying Standard 3.1-2503. See U.S. Forest Service, 2005 Final
EIS app. D at 93 (Oct. 2005), available at http://www.fs.usda.gov/Internet/
FSE_DOCUMENTS/stelprdb5195112.pdf. In that document, the Forest Service stated
“[m]onitoring must ensure that livestock grazing does not affect sensitive species and
species of local concern in botanical areas. This will be included in the Monitoring
Implementation Guide.” Id. Neither party submitted the 2005 “Monitoring
Implementation Guide,” nor was the court able to locate a copy. Cf. 2005 Revised Forest
Plan, App. at 2290 (listing a now-broken website link for the Monitoring Implementation
Guide).
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Revised Forest Plan, App. at 2185.52 Moreover, the Forest Service annually monitored
sensitive plants in Botanical Areas between 2006 and 2009, noted livestock damage, and
made recommendations for corrective action. See, e.g., BHNF FY 2006 Monitoring and
Evaluation Report, App. at 2717; BHNF FY 2007 Monitoring and Evaluation Report,
App. at 2770; BHNF FY 2008 Monitoring and Evaluation Report, App. at 2832; BHNF
FY 2009 Monitoring and Evaluation Report, App. at 2892.
Although Biodiversity cites the portions of the monitoring reports about livestock
damaging some sensitive plants in Botanical Areas between 2006 and 2009, Aplt. Br. at
48-49, it must show more than lapses in the Forest Service’s enforcement. See Ecology
Ctr., Inc. v. USFS, 451 F.3d 1183, 1188 (10th Cir. 2006).53 Biodiversity fails to
52
Although the Forest Service does not define “restrict” in the Phase II
Amendment, it does say in the 2005 Final EIS that if “domestic livestock are not
restricted from accessing” sensitive plants in Botanical Areas under Standard 3.1-2503,
“then method(s) will be implemented to remove the cattle” from those areas. 2005 Final
EIS, App. at 1773; see also id., App. at 1795 (same). And during its discussion of
specific sensitive plant species, the 2005 Final EIS further states, “[i]t is assumed that
restrictions of livestock will be fully implemented and therefore no direct effects would
be associated with livestock use at [highbush cranberry (a sensitive plant)] occurrences
within the designated Biological Areas.” 2005 Final EIS, App. at 1768.
53
Claims regarding an agency’s failure to act may proceed under § 706(1) of the
APA, which authorizes courts to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). Such challenges are appropriate, however,
only when the plaintiff shows “an agency failed to take a discrete agency action that it is
required to take.” Norton v. So. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)
(emphasis in original).
Biodiversity does not claim the Forest Service failed to enforce Standard 3.1-2503,
nor does it bring its claims under § 706(1) of the APA. See Pet. for Review, App. at 31
(petitioning under “§ 706(2)(A) & (D)”); see also Biodiversity’s Trial Br. at 51,
Biodiversity v. USFS, No. 1:11-cv-00340-SWS (D. Wyo. May 8, 2012), ECF No. 48, at
51 (“Phase II failed to strengthen monitoring requirements such that botanical values are
Continued . . .
- 59 -
demonstrate based on the monitoring reports how the Forest Service acted arbitrarily or
capriciously when it adopted Standard 3.1-2503 in 2005. Biodiversity makes no
argument the Forest Service failed to examine relevant data or inadequately explained the
rationale for adopting Standards 3.1-2501 and 3.1-2503. See State Farm, 463 U.S. at 43.
Based on our review of the Phase II Amendment’s protective measures and the
Forest Service’s explanation for their adoption and our weighing the monitoring reports,
Biodiversity has not shown the Forest Service acted arbitrarily or capriciously with
respect to Botanical Areas.
c. Suitability and capability assessments
Biodiversity contends the Forest Service did not comply with § 219.20 of the 1982
Rule, which required the Forest Service to conduct a proper suitability and capability
analysis for MIS and livestock grazing in preparing the Phase II Amendment. See 36
C.F.R. § 219.20.
i. When to conduct a suitability or capability analysis
The parties dispute when § 219.20 required each type of analysis. Biodiversity
contends § 219.20 required the Forest Service to conduct both a suitability and a
capability analysis for inclusion in the overall forest plan, and do both again for each site-
specific project. Aplt. Reply Br. at 30-31. The Forest Service interprets § 219.20 as
requiring a suitability analysis only at the forest-wide level, and then a capability analysis
______________________________________
Cont.
preemptively protected from conflicts before destruction through grazing, trampling, and
trailing.” (emphasis added)).
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only at the project level. See, e.g., Aplee Br. at 44-45 (“The Forest Service makes
suitability determinations at the forest plan level. . . . Capability is verified at the project
level.”). The Phase II Amendment itself takes that position. 2005 Revised Forest Plan,
App. at 2414.
NFMA directs the Forest Service to “specify guidelines for land management
plans” that “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) (emphasis added). Section 219.20 of the 1982
Rule provided further direction, requiring the Forest Service to conduct a suitability and
capability analysis for MIS and grazing:
In forest planning, the suitability and potential capability of National
Forest System lands for producing forage for grazing animals and for
providing habitat for management indicator species shall be determined as
provided in paragraphs (a) and (b) of this section. Lands so identified shall
be managed in accordance with direction established in forest plans.
(a) Lands suitable for grazing and browsing shall be identified and
their condition and trend shall be determined. The present and potential
supply of forage for livestock, wild and free-roaming horses and burros,
and the capability of these lands to produce suitable food and cover for
selected wildlife species shall be estimated. The use of forage by grazing
and browsing animals will be estimated. Lands in less than satisfactory
condition shall be identified and appropriate action planned for their
restoration.
(b) Alternative range management prescriptions shall consider
grazing systems and the facilities necessary to implement them; land
treatment and vegetation manipulation practices; and evaluation of pest
problems; possible conflict or beneficial interactions among livestock, wild
free-roaming horses and burros and wild animal populations, and methods
of regulating these; direction for rehabilitation of ranges in unsatisfactory
condition; and comparative cost efficiency of the prescriptions.
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36 C.F.R. § 219.20 (1982). The 1982 Rule defined “suitability” and “capability.” Id.
§ 219.3.54
Section 219.20 did not specify the level at which and how often the Forest Service
must have conducted suitability and capability analyses. The Forest Service states its
interpretation of § 219.20 in the Phase II Amendment:
The planning regulations at 36 CFR 219.20 requires lands to be
identified which are capable and suitable for producing forage for grazing
animals and for providing habitat for indicator species. . . . Capability and
suitability for grazing and browsing use is presently determined at two
Forest Service planning levels (i.e. Forest plans (suitability) and project
plans (AMPs) (capability)).
2005 Revised Forest Plan, App. at 2414.
Among the reasonable interpretations of § 219.20, the Forest Service’s is one of
them. We will defer to it unless it is “unreasonable, plainly erroneous, or inconsistent
with the regulation’s plain meaning.” Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1281
(10th Cir. 2007) (quotations omitted); see Auer v. Robbins, 519 U. S. 452, 461 (1997).
Biodiversity posits an alternative interpretation, directing us to Western
Watersheds Project v. USFS, No. CV-05-189-E-BLW, 2006 WL 292010, at *5-7, 11 (D.
54
“Suitability” was defined as “[t]he appropriateness of applying certain resource
management practices to a particular area of land, as determined by an analysis of the
economic and environmental consequences and the alternative uses foregone. A unit of
land may be suitable for a variety of individual or combined management practices.” 36
C.F.R. § 219.3 (1982).
“Capability” was defined as “[t]he potential of an area of land to . . . allow
resource uses under an assumed set of management practices and at a given level of
management intensity. Capability depends upon current conditions and site conditions
such as climate, slope, landform, soils, and geology,” as well as risks of “fire, insects, and
disease.” Id.
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Idaho Feb. 7, 2006) for the proposition that “forest-wide determinations set up a baseline
against which site-specific determinations must then be made based on site-specific
conditions.” Aplt. Br. at 56.55 It also argues the Forest Service offered contradictory and
inconsistent statements in some of the site-specific project documents regarding whether
to conduct a suitability or capability analysis at the site-specific level. Id. at 54-56.
These arguments propose an alternative interpretation and criticize the Forest
Service’s ambiguous use of terminology. We find no reason, however, to conclude the
Forest Service’s interpretation is unreasonable, plainly erroneous, or inconsistent with the
regulation. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (“[A]n
agency’s interpretation need not be the only possible reading of a regulation—or even the
best one—to prevail.”). As a result, we defer to the Forest Service’s interpretation.
ii. MIS suitability and capability analyses
Biodiversity alleges the Forest Service did not conduct an adequate suitability or
capability analysis of the selected MIS populations for the Phase II Amendment.56
55
The parties have not cited to any Tenth Circuit authority about how to interpret
§ 219.20, nor have we found any.
56
The Phase II Amendment selected nine MIS: black-backed woodpecker, brown
creeper, golden-crowned kinglet, grasshopper sparrow, ruffed grouse, song sparrow,
beaver, white-tailed deer, and mountain sucker. 2005 Revised Forest Plan, App. at 2102.
- 63 -
1) MIS suitability analysis
Biodiversity first argues the Forest Service failed to conduct an adequate MIS
suitability analysis at the forest-planning level. It does not allege the Forest Service
failed to conduct an MIS suitability analysis at the site-specific level.57
Biodiversity points out that the Phase II Amendment (1) does not contain a formal
MIS suitability analysis and (2) states that “‘[h]abitat capability/suitability models are
available for’ only ‘some management indicator species (MIS), Sensitive Species,
Species of Local Concern and Demand Species.’” Aplt. Br. at 52 (emphasis added)
(quoting 2005 Revised Forest Plan, App. at 2436). This shows, Biodiversity says, the
Forest Service did not conduct an adequate MIS suitability analysis. Id. at 52.
Although the Forest Service did not conduct a formal suitability analysis on MIS,
it evaluated each MIS’s habitat needs and assessed how various proposed actions might
affect the MIS.58 Each analysis examined the distribution and natural history of each
species, what kind of habitat it favors, conditions and trends in the habitat, population
57
Biodiversity contends the Forest Service “failed to determine the suitability and
capability of lands for MIS.” Aplt. Br. at 52. Biodiversity’s arguments, however, are
directed to the lack of forest-wide analyses. See id. at 52-53. To the extent that
Biodiversity challenges the lack of site-specific analyses, that argument is inadequately
developed, and we do not consider it here. See Utah Environmental Congress v.
Bosworth, 439 F.3d 1184, 1194 n.2 (10th Cir. 2006) (“An issue mentioned in a brief on
appeal, but not addressed, is waived.”)
58
See 2005 Final EIS, App. at 1429-42 (mountain sucker); id. at 1444-52 (black-
backed woodpecker); id. at 1453-63 (brown creeper); id. at 1463-69 (golden-crowned
kinglet); id. at 1474-79 (ruffed grouse); id. at 1480-88 (song sparrow); id. at 1489-96
(beaver); id. at 1496-1504 (white-tailed deer).
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status and trends, how various management activities affect the habitat and population
(such as the ecosystem approach to management, the designation of RNAs, and the
activities designed to reduce the risks of fire and insect infestation), and how the MIS
would be monitored.
Biodiversity does not explain how these detailed analyses—especially those that
examined the effects of management activities on the MIS—fail to comply with § 219.20.
Biodiversity also does not explain how a lack of some “habitat capability/suitability
models,” 2005 Revised Forest Plan, App. at 2436, renders an MIS suitability analysis
inadequate. Accordingly, Biodiversity has failed to show the Forest Service did not
comply with § 219.20’s mandate to analyze “[t]he appropriateness of applying certain
resource management practices to a particular area of land,” including examining “the
economic and environmental consequences and the alternative uses foregone” concerning
the habitat needed to support the MIS. 36 C.F.R. § 219.3 (1982); see San Juan Citizens
Alliance v. Stiles, 654 F.3d 1038, 1045 (10th Cir. 2011) (“When courts consider [APA]
challenges, an agency’s decision is entitled to a presumption of regularity, and the
challenger bears the burden of persuasion.” (citation omitted)).
2) MIS capability analysis
Biodiversity alleges the Forest Service failed to conduct a forest-wide MIS
capability analysis. See Aplt. Br. at 52-53; Aplt. Reply Br. at 30-31. We defer to the
Forest Service’s interpretation that no such capability analysis was required under
§ 219.20. Biodiversity does not allege the Forest Service failed to conduct an MIS
- 65 -
capability analysis at the site-specific level. Biodiversity’s MIS capability analysis
argument therefore fails.
iii. Grazing suitability and capability analyses
The 1982 Rule required the Forest Service to analyze “the suitability and potential
capability” of the land “for producing forage for grazing animals.” 36 C.F.R. § 219.20
(1982). As noted above, the Forest Service conducts a suitability analysis at the forest-
wide level, and then a further capability analysis at the project level. See id. § 219.3;
2005 Revised Forest Plan, App. at 2414. We therefore limit our review to the Forest
Service’s grazing suitability analysis at the forest-wide level and its grazing capability
analysis at the project level.
1) Grazing suitability analysis
Biodiversity contends the Forest Service did not conduct a proper grazing
suitability analysis for the Phase II Amendment because it improperly relied on the 1997
Forest Plan’s grazing suitability analysis. Aplt. Br. at 53, 56.
The Forest Service conducted a grazing suitability analysis for the 1997 Forest
Plan. 1997 Final EIS, App. at 284-87; 1997 Record of Decision, App. at 324. In 1999,
the Chief determined the “Forest [Service] has performed the suitability determination
and analysis necessary for compliance with NFMA,” and there was no deficiency
“concerning the general issue of livestock grazing suitability.” Chief’s 1999 Decision,
App. at 2537. He did, however, recognize deficiencies in other areas of the 1997 Forest
Plan, and therefore gave “[i]nstructions for further action concerning grazing associated
with riparian areas, sensitive species, and Botanical Areas, [as] provided in the Decision
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Summary.” Id.; see also Chief’s 2006 Decision, App. at 2704 (concluding “[l]ivestock
grazing was not identified as a major issue” in the Phase II Amendment).
Biodiversity argues “[i]n light of the number of issues identified by the Chief [in
1999] regarding livestock and sensitive plants, grazing suitability falls within the scope of
the Phase II Amendment,” and the Forest Service should have conducted a new grazing
suitability analysis. Aplt. Reply Br. at 27. Biodiversity’s assessment, however,
overstates the Chief’s concerns with livestock grazing.
The Chief’s 1999 Decision focused on four “primary deficiencies of concern,”
none of which contemplated extensive changes to livestock grazing. See Chief’s 1999
Decision, App. at 2462 (identifying the primary deficiencies as: (1) “[v]iability
determinations for some species,” (2) “[s]tandards and guidelines to maintain viability of
some species,” (3) “[m]anagement indicator species (MIS) requirements,” and
(4) “[m]onitoring direction for some sensitive species”). As a result, consistent with the
Chief’s 1999 Decision, the Phase II Amendment contains limited changes to grazing and
no major changes at the forest-wide level. See 2005 Record of Decision, App. at 1126-
27; see id. at 1123-31 (describing the rationale for the Phase II Amendment, which does
not contemplate major changes to livestock grazing); id. at 1156 (describing purpose of
the Phase II Amendment, which does not include modifying livestock grazing allotments
forest-wide). The Phase II Amendment addresses grazing suitability mostly by repeating
the Forest Service’s 1997 analysis. See 2005 Revised Forest Plan, App. at 2414-16.
Biodiversity has not shown how the Forest Service’s treatment of grazing in the
Phase II Amendment violates the APA. The 1982 Rule required the Forest Service to
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conduct a grazing suitability analysis. 36 C.F.R. § 219.20 (1982). It did so in 1997.
Neither the Chief’s 1999 Decision nor the Phase II Amendment identified grazing as one
of the major issues for revision, nor did they contemplate modifying grazing activities
forest-wide. Instead, grazing was considered in conjunction with other issues, such as
addressing additional measures to protect sensitive plants and animals “in areas with
ongoing livestock grazing activities.” Chief’s 1999 Decision, App. at 2463.
Biodiversity fails to show how the Phase II Amendment’s reliance on the 1997
grazing suitability analysis and its changes to the 1997 Forest Plan grazing were arbitrary,
capricious, an abuse of discretion, or otherwise contrary to law.
2) Grazing capability analysis
Biodiversity also argues the Forest Service did not conduct proper grazing
capability analyses for four site-specific projects.59 It contends the Forest Service either
omitted or inadequately addressed the issue because the site-specific project documents
contain inconsistent statements about whether to conduct a suitability or capability
analysis at the site-specific level. Aplt. Br. at 53-56.
A grazing capability analysis examines a project area to determine “[t]he potential
of an area of land to” produce forage “at a given level of management intensity” subject
to conditions at the site. 36 C.F.R. § 219.3 (1982).
59
The Bearlodge Range Project, the Mystic Range Project, the North Zone 05
Project, and the North Zone 08 Project.
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Each project includes an EIS or EA that contains a grazing capability analysis or
incorporates it by reference. See Bearlodge Range Project EA, App. at 3022-30
(including a “[r]ange capability” analysis); Mystic Range Project Final EIS, App. at
4372-4404 (including a grazing “capability assessment”); North Zone 05 Project Final
EIS, App. at 4826, 4944 (stating “[r]angeland analysis and inventories were conducted”
and the Forest Service analyzed which acres “were capable for grazing”); North Zone 08
Project EA, App. at 5179, 5218-52 (incorporating by reference a “Range Specialist
Report” and summarizing the range capability analysis). We agree with Biodiversity that
the Forest Service could have used the terms “suitability” and “capability” more clearly,
but that shortcoming does not amount to an APA violation.
Biodiversity has not shown how the Forest Service’s actions regarding capability
analyses in the four challenged site-specific projects were arbitrary, capricious, an abuse
of discretion, or otherwise contrary to law.
D. NEPA Issues
Biodiversity challenges the Wyoming federal district court’s conclusion that the
Phase II Amendment complies with NEPA. It contends the Forest Service violated
NEPA in three ways: by failing to (1) consider a reasonable range of alternatives in the
Final EIS because it did not include a “no grazing” alternative; (2) take a “hard look” at
how the Phase II Amendment would affect sedimentation in the BHNF’s waterways,
including how the sedimentation might affect sensitive plants and aquatic fauna; and
(3) take a “hard look” at historical grazing practices before re-authorizing grazing use in
the Phase II Amendment.
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1. Reasonable Range of Alternatives
Biodiversity argues the Phase II Amendment’s Final EIS should have included a
forest-wide “no grazing” alternative. Aplt. Br. at 59-60; Aplt. Reply Br. at 32. We
disagree because that alternative fell outside the main purposes of the Phase II
Amendment.
“Under NEPA, an EIS prepared by a federal agency must include a discussion of
‘alternatives to the proposed action.’” Wyoming v. USDA, 661 F.3d 1209, 1243 (10th
Cir. 2011) (quoting 42 U.S.C. § 4332(2)(C)(iii)). The agency must “[r]igorously explore
and objectively evaluate all reasonable alternatives” for the proposed action in response
to a “specif[ied] underlying purpose and need.” 40 C.F.R. §§ 1502.13, 1502.14(a); see
also Wyoming, 661 F.3d at 1243. The range of reasonable alternatives must at least
include the alternative of taking “no action.” 40 C.F.R. § 1502.14(d).
The range of reasonable alternatives “is not infinite.” Utahns for Better Transp. v.
U.S. Dep’t of Transp., 305 F.3d 1152, 1166 (10th Cir. 2002); see also Vermont Yankee
Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 551 (1978)
(“Common sense also teaches us that the ‘detailed statement of alternatives’ cannot be
found wanting simply because the agency failed to include every alternative device and
thought conceivable by the mind of man.”). “[O]nce an agency establishes the objective
of the proposed action—which it has considerable discretion to define—the agency need
not provide a detailed study of alternatives that do not accomplish that purpose or
objective, as those alternatives are not ‘reasonable.’” Wyoming, 661 F.3d at 1244
(citations omitted); see also Biodiversity Conservation Alliance v. Bureau of Land Mgmt.,
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608 F.3d 709, 715 (10th Cir. 2010) (“The [agency] may eliminate alternatives that . . . do
not meet the purposes and needs of the project.”)
When we review an EIS under the APA to determine whether an agency acted
arbitrarily or capriciously by not considering certain alternatives, a “rule of reason and
practicality” informs the analysis. Airport Neighbors Alliance, Inc. v. United States, 90
F.3d 426, 432 (10th Cir. 1996). We ask whether the agency selected and considered a
range of alternatives “sufficient to permit a reasoned choice among the options.”
Wyoming, 661 F.3d at 1243 (quotations omitted). The “rule of reason” considers both the
range of alternatives and the extent the agency discusses the selected alternatives. Utahns
for Better Transp., 305 F.3d at 1166; see also Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d
1368, 1375 (10th Cir. 1980) (“The discussion of environmental effects of all alternatives
need not be exhaustive, but it must be such that sufficient information is contained
therein to permit a ‘rule of reason’ designation of alternatives beyond the primary
proposal.”).
The Chief’s 1999 Decision identified the four “primary deficiencies” in the 1997
Forest Plan as: (1) “[v]iability determinations for some species,” (2) “[s]tandards and
guidelines to maintain viability of some species,” (3) “[m]anagement indicator species
(MIS) requirements,” and (4) “[m]onitoring direction for some sensitive species.”
Chief’s 1999 Decision, App. at 2462. The Chief said the Forest Service should address
grazing only “relative to the deficiencies identified” in his 1999 Decision, including
ensuring sensitive plants were adequately protected. Id. at 2466. The inadequacies
identified by the Chief in 1999 did not contemplate cessation or other major changes to
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livestock grazing. The Settlement Agreement did not mention livestock. See Settlement
Agreement, App. at 418-47. And as noted by the Chief in 2006, the Phase II Amendment
did not identify livestock grazing “as a major issue.” Chief’s 2006 Decision, App. at
2704.
The 2005 Final EIS summarized the scope of the Phase II Amendment:
(1) “[c]ompl[y] with the Chief’s October 1999 [Administrative] Appeal Decision” and
correct various deficiencies in the 1997 Forest Plan by ensuring the viability of species,
following MIS requirements, and creating monitoring objectives for sensitive species;
(2) “[f]ulfill[] components of the 2000 Settlement Agreement to complete an analysis of
candidate RNAs . . . and evaluate the viability of MIS and northern goshawk”; and
(3) “[m]odify[] management direction for fire hazard and insect risk to address both
species viability and diversity and effects on resources, human safety, and
property . . . .’” 2005 Final EIS, App. at 1156; see also id. at 1159-60.60
Within this scope, the Forest Service considered two “no action” (1 and 2) and
four “action” alternatives (3 to 6):
Alternative 1 would re-implement the 1997 Forest Plan;
Alternative 2 would allow the Phase I Amendment to continue without
modification, including keeping grazing levels the same;
Alternative 3 would provide diversity by creating ideal habitat forest-wide;
Alternative 4 would create dense, mature forest conditions forest-wide;
Alternative 5 would allow timber harvest to equal annual timber growth;
and
60
Biodiversity does not challenge the Forest Service’s definition of the Phase II
Amendment’s scope.
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Alternative 6 would aggressively reduce fire and insect hazards while at the
same time provide ideal habitat for species forest-wide.
See 2005 Record of Decision, App. at 1133-34; see also 2005 Final EIS, App. at 1201-06
(providing a detailed summary of the six alternatives as they relate to the scope of the
Phase II Amendment).
Each alternative addressed livestock. See 2005 Final EIS, App. at 1591-92
(summarizing the proposed changes to livestock management under each alternative).
For example, Alternative 6 proposed installing structures to protect ponds containing
leopard frogs, prohibiting livestock from watering within hardwood groves, and
restricting livestock access to Botanical Areas containing sensitive plants. Id. None of
the alternatives contemplated major changes to livestock grazing forest-wide. See id.61
Biodiversity argues Alternative 2 was not enough to comply with NEPA’s “no
action alternative” requirement because the Forest Service should have considered a no
grazing option “forest-wide.” Aplt. Br. at 59-60; Aplt. Reply Br. at 32.62 Biodiversity
relies on Western Watersheds Project v. Rosenkrance, No. 4:09-CV-298-EJL, 2011 WL
39651, at *10-11 (D. Idaho Jan. 5, 2011), which addressed a challenge to the Bureau of
Land Management’s (“BLM”) decision to grant several livestock grazing permits. The
61
The Forest Service declined to consider an alternative that would “[s]top
commercial development . . . (e.g., timber sales, domestic livestock grazing, and other
resources or services from the national forests).” The Forest Service stated those
activities are “a basic component of national forest management policy,” and “[c]hanging
this national policy is outside the scope of the Phase II Amendment . . . .” 2005 Final
EIS, App. at 1199.
62
Biodiversity does not address Alternative 1.
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plaintiff argued the agency failed to consider a no grazing “[n]o [a]ction [a]lternative.”
Id. at *1-2 (quotations omitted). The district court agreed, reasoning that a “real no
action alternative” would consider allowing “old grazing permits [to] expire” and not
allowing “new permits [to] issue,” thereby ceasing grazing altogether. Id. at 10.
Biodiversity argues a similar analysis should have happened here. Aplt. Br. at 59-60.
Biodiversity’s argument is misplaced. Western Watersheds is distinguishable
because the only purpose of the BLM’s grazing allotment decision was to determine
whether grazing permits should be issued. Livestock grazing was the centerpiece of the
agency action. See id. at *1-2. By contrast, changing forest-wide grazing was not a
major purpose of the Phase II Amendment. See 2005 Final EIS, App. at 1591-92; see
also Chief’s 2006 Decision, App. at 2704 (recognizing that “[l]ivestock grazing was not
identified as a major issue” in the Phase II Amendment).
The scope of the Phase II Amendment did not call for consideration of a no
grazing alternative. After “an agency establishes the objective of the proposed
action . . . the agency need not provide a detailed study of alternatives that do not
accomplish that purpose or objective . . . .” Wyoming, 661 F.3d at 1244 (citations and
quotations omitted); see, e.g., Biodiversity, 608 F.3d at 716-17 (concluding the BLM did
not need to consider a proposed alternative that “would not meet the project’s purposes”).
The purpose of the Phase II Amendment was to remedy deficiencies identified in the
Chief’s 1999 Decision, fulfill components of the 2000 Settlement Agreement, and
address fire hazard and insect infestation concerns. 2005 Final EIS, App. at 1156; see
also 2005 Record of Decision, App. at 1123-31. The Forest Service addressed grazing
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when relevant to those purposes, see 2005 Final EIS, App. at 1591-92, but a forest-wide
no grazing alternative fell outside the scope of the Phase II Amendment.
The Forest Service’s choice of NEPA alternatives met the rule of reason. Its
omitting a no grazing alternative was not arbitrary or capricious.
2. Hard Look at Sedimentation Policies
Biodiversity argues the Forest Service did not rigorously evaluate how the Phase II
Amendment would affect sedimentation and therefore did not meet NEPA’s “hard look”
requirement.63
NEPA requires agencies to identify adverse effects of proposed agency actions on
the environment. 42 U.S.C. § 4332(2)(C)(i) & (ii). Agencies must “take a ‘hard look’ at
the environmental consequences of proposed actions utilizing public comment and the
best available scientific information.” Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162,
1171 (10th Cir. 1999) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989)). An agency meets the “hard look” requirement when it has “made a
reasoned evaluation of the available information and its method was not arbitrary or
capricious.” Utah Shared Access Alliance v. USFS, 288 F.3d 1205, 1213 (10th Cir.
63
“Sedimentation” is the accumulation of gravel, sand, silt, and other particulates
in streams and lakes. See Phase II Amendment Glossary, App. at 2360 (defining
sediment). Nature can cause it, but human and livestock activities, such as motorized
vehicles, mining, and overgrazing, can accelerate it. See 2005 Final EIS, App. at 1266-
67, 1385, 1440-41. Sedimentation threatens some plant and animal species, especially
fish. See id. at 1267, 1440-41. For example, the Phase II Amendment discusses the
threats of sedimentation to the American dipper (a bird) and the lake chub (a fish). Id. at
1385, 1875.
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2002). A “hard look” seeks to ensure the “agency did a careful job at fact gathering and
otherwise supporting its position.” New Mexico ex rel. Richardson, 565 F.3d at 704
(quotations omitted).
Biodiversity contends the Forest Service inadequately evaluated whether its two
proposed methods of sedimentation mitigation in the Phase II Amendment—Watershed
Conservation Practices Handbook (“WCPH”)64 and Best Management Practices
(“BMPs”)65—will mitigate the impacts of sedimentation in lakes and streams caused by
livestock, timber harvesting, mining, road construction, and recreation. Aplt. Br. at 62-
63. The record indicates otherwise. The Forest Service looked hard at how the WCPH
and the BMPs would mitigate sedimentation.
First, the Forest Service explained how the WCPH provides “proven watershed
conservation practices to protect soil, aquatic, and riparian systems,” 2005 Final EIS,
App. at 1268, that “conserve and enhance riparian and wetland ecosystems on the
[BHNF],” id. at 1254. Based on the effective use of WCPH mitigation practices since
64
The WCPH contains numerous detailed standards “to protect soil, aquatic, and
riparian systems,” including “hydrologic function, riparian areas, sediment control, soil
productivity, and water purity.” Watershed Conservation Practices Handbook, App. at
4645; see also id. at 4644-66.
For example, it directs the Forest Service to “[a]void season-long grazing in
riparian areas and wetlands” and “[a]pply short-duration grazing as feasible (generally
less than 20 days) to provide greater opportunity for regrowth . . . .” Id. at 4649.
65
In 2005, BMPs were defined as “management practices to prevent or reduce the
pollution of ‘waters of the United States,’” such as “practices to control plant site runoff.”
40 C.F.R. § 122.2 (2005).
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1996, the Forest Service incorporates the WCPH “verbatim into forest plans as
standards.” Id. at 1268.
Second, regarding BMPs, the Final EIS recognized that certain human and
livestock activities could cause sedimentation, but explained how BMPs would help
mitigate the effects. See, e.g., 2005 Final EIS, App. at 1267-68. The Forest Service cited
how BMPs had been used effectively in other national forests and compared those
practices to relevant areas in the BHNF, id. at 1268. It determined that “the
implementation of BMPs [in the BHNF] . . . will be as effective or more effective at
preventing erosion . . . as those studied [in other areas] because of the less erodible soil
types, the seasonal rainfall pattern, and the gentler topography existing [in the BHNF].”
Id. The Final EIS also noted that evaluations conducted in 2001 showed the BMPs in the
BHNF effectively mitigated sedimentation. 2005 Final EIS, App. at 1662. One such
sedimentation evaluation had a “91 percent incidence of meeting or exceeding BMP
application standards and a 96 percent effectiveness in providing adequate protection”
against sedimentation. Id.
We conclude the Forest Service made a reasoned evaluation of how the WCPH
and the BMPs would mitigate sedimentation under the Phase II Amendment, and reliance
on these methods was not arbitrary or capricious. Biodiversity has not shown that the
Forest Service failed to meet NEPA’s “hard look” requirement.
3. Hard Look at Historical Grazing Practices
Biodiversity also argues the Forest Service violated NEPA by failing to take a
“hard look” at the effects of past grazing projects before approving four site-specific
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grazing projects.66 Aplt. Br. at 64. It contends the Forest Service “‘should disclose the
history of success and failure of similar projects’” to meet NEPA’s “hard look”
requirement. Aplt. Br. at 64 (quoting Sierra Club v. Morton, 510 F.2d 813, 824 (5th Cir.
1975)). Biodiversity has not carried its burden because it does not explain why
considering past grazing information merits inclusion or is reasonably necessary for the
evaluation of each project. See Wyoming, 661 F.3d at 1251 (stating the Forest Service
need not discuss impacts more than “reasonably necessary under the circumstances for
evaluation of the project.” (quotations omitted)); see also San Juan Citizens Alliance v.
Stiles, 654 F.3d 1038, 1045 (10th Cir. 2011) (noting the “challenger bears the burden of
persuasion”).
Even if the Forest Service were required to consider past grazing practices for the
four site-specific projects, the record indicates it did so. See Bearlodge Range Project
Final EIS, App. at 2999-3000 (noting the project analyzed the “cumulative effects” of
“past human actions” by “focusing on the current aggregate effects of past actions
without delving into the historical details of individual past actions”); Mystic Range
Project Final EIS, App. at 4368 (same); North Zone 05 Project Final EIS, App. at 4776
(same); North Zone 08 Project Final EIS, App. at 5179 (same).
66
The Bearlodge Range Project, the Mystic Range Project, the North Zone 05
Project, and the North Zone 08 Project.
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In sum, Biodiversity has not shown the Forest Service failed to meet the hard look
requirement as to the four site-specific projects, nor has it shown arbitrary or capricious
action in consideration of the four site-specific projects.
III. DISCUSSION—COLORADO APPEAL
After losing in Wyoming, Biodiversity attempted to reopen the Colorado litigation
in May 2013 by filing a motion to enforce the Settlement Agreement and compel the
Forest Service to prepare a Phase II Amendment that complies with NFMA, the 1982
Rule, the Chief’s 1999 Decision, and the Settlement Agreement. See Mot. to Enforce
Settlement Agreement, App. at 150, 159-60. The district court denied the motion based
on laches, reasoning that Biodiversity had waited too long to enforce the Settlement
Agreement. Order Den. Mot. to Enforce Settlement Agreement, App. at 247, 253-54.
Biodiversity argues on appeal the district court abused its discretion. See Aplt. Br. at 66-
77.
We (A) describe relevant facts and procedure; (B) review the law of laches and
our standard of review; and (C) address Biodiversity’s argument.
A. Factual and Procedural Background
1. The Settlement Agreement
In August 2000, the Forest Service and Biodiversity settled litigation involving the
Beaver Park timber sale. Settlement Agreement, App. at 418-47. In a section titled
“Phase II Forest Plan Amendment defined,” the Settlement Agreement said:
In the Phase II Forest Plan amendment the Forest Service shall
amend current management direction—including forest-wide standards and
guidelines—with appropriate public involvement to ensure compliance
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with requirements of NFMA, its implementing regulations and agency
policy, and all inadequacies identified in the Chief’s appeal decision of
October 12, 1999 for the remainder of the life of the Forest Plan Revision,
except as otherwise amended pursuant to applicable law. Phase II shall
address all of the issues identified in paragraphs 2, 3, and 4 of this
settlement agreement, including northern goshawk, Management Indicator
Species, and Research Natural Areas.
Settlement Agreement § 9(a), App. at 436.
2. Administrative Challenges to the Phase II Amendment
In October 2005, the Forest Service promulgated the Phase II Amendment, which
Biodiversity challenged in May 2006. See Administrative Appeals, App. at 2581, 2600-
01, & 2612. Biodiversity argued, in part, the Phase II Amendment violated the
Settlement Agreement. See Administrative Appeals, App. at 2583-84, 2604, 2606, 2609,
2615, 2617 n.1, 2619, 2663-64, 2683-2686.
On November 1, 2006, the Forest Chief denied this administrative challenge,
stating in part that the Forest Service had considered the Settlement Agreement when it
promulgated the Phase II Amendment. Chief’s 2006 Decision, App. at 2698-99, 2704.
Biodiversity then challenged nine site-specific projects implemented under the Phase II
Amendment. During some of those administrative challenges, Biodiversity alleged
violations of the Settlement Agreement.67 Each was denied. See supra notes 22-24 and
accompanying text.
67
Biodiversity argued the Forest Service violated the Settlement Agreement in at
least five of its administrative challenges to the site-specific projects. Biodiversity’s
Dean Project Admin. Appeal, App. at 3831 (June 26, 2006) (“In light of all the
aforementioned deficiencies in the [2005 Final EIS] and the Regional Forester’s [2005
Record of Decision], the Phase II Amendment fails to live up to the USFS’s promises as
Continued . . .
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3. Wyoming Litigation
Even though Biodiversity had already alleged Settlement Agreement violations in
its administrative challenges, on January 31, 2011, it sent “notice to the Forest Service
that . . . the Forest Service has breached the [Settlement A]greement.” Notice of Breach,
App. at 167. The Forest Service declined to negotiate.
In October 2011, Biodiversity petitioned the Wyoming federal district court for
review of the Phase II Amendment under the APA. See Pet. for Review, App. at 25, 31.
Biodiversity alleged the Phase II Amendment “violates the September 6, 2000 Settlement
Agreement . . . .” Id. at 31.
In November 2012, the district court denied Biodiversity’s APA challenge. See
Order Den. Pet., App. at 76. It noted Biodiversity had requested “declaratory and
injunctive relief vacating and setting aside” the Phase II Amendment until it complied
with the Chief’s 1999 Decision and the Settlement Agreement. Id. at 95, 97. The district
court said it “lack[ed] subject matter jurisdiction to address alleged violations of these
______________________________________
Cont.
set forth in the Settlement Agreement in Civil Action No. 99-N-2173.”); Biodiversity’s
Moskee Project Admin. Appeal, App. at 4270 (Oct. 29, 2007) (“[T]he Phase II
Amendment violates the Settlement Agreement by failing to address and fix the
following flaws in the 1997 Revised BHNF LRMP as identified in the Chief’s 1999
Appeal Decision . . . .”); Biodiversity’s Citadel Project Admin. Appeal, App. at 3402
(Oct. 29, 2007) (arguing the Forest Service’s actions were “in complete contradiction of
the Settlement Agreement”); Biodiversity’s Telegraph Project Admin. Appeal, App. at
6342 (Aug. 24, 2009) (“[T]he Phase II Amendment fails to comply with key paragraphs
of the Settlement Agreement.”); Biodiversity’s Rattlesnake Project Admin. Appeal, App.
at 5788 (July 2, 2010) (“[T]he Phase II Amendment itself is illegal and does not comply
with the applicable 1982 implementing regulations, 1999 Appeal Decision, or 2000
Settlement Agreement . . . .”).
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documents because neither independently provide [Biodiversity] with appealable issues
under the APA.” Id. at 95.
In April 2013, the district court reiterated its reasoning when it denied
Biodiversity’s motion for reconsideration. See Order Den. Mot. for Reconsideration,
App. at 148-49 (“Petitioners have cited no authority supporting the novel proposition that
any federal district court other than the District of Colorado could properly exercise
ancillary jurisdiction to enforce the agreement.”).
4. The Motion to Enforce the Settlement Agreement in Colorado and Dismissal
Based on Laches
One month later, on May 31, 2013, Biodiversity moved to enforce the Settlement
Agreement in the Colorado federal district court, arguing the Forest Service breached by
failing to promulgate a Phase II Amendment that “compl[ied] with the 1982 Rule” and
“repair[ed] all inadequacies identified” in the Chief’s 1999 Decision. Mot. to Enforce the
Settlement Agreement, App. at 150, 159 (quotations omitted).
The district court denied the motion based on laches, concluding Biodiversity had
sat on its contract rights too long. See Order Den. Mot. to Enforce the Settlement
Agreement, App. at 247, 253. The district court said laches is appropriate when the delay
is unreasonable and prejudiced the defendant. Id. at 251. It concluded Biodiversity could
have brought its claim at least as early as November 1, 2006—the day the Forest Chief
denied Biodiversity’s administrative appeal of the Phase II Amendment. The district
court said:
[Biodiversity] knew or should have known by at least November 1, 2006,
that Phase II would be implemented as set forth in the 2005 [Record of
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Decision], that is, without the provisions here claimed the agreement
required be included. Their claim that such failure constituted a breach of
the terms of the Settlement Agreement therefore was fully ripe at that time,
and their failure to seek a judicial remedy of that alleged breach until years
later constitutes the type of unreasonable delay which the equitable doctrine
of laches was intended to address.
Id. at 252.
The district concluded the six-and-a-half year delay between November 2006 and
May 2013 was unreasonable because Biodiversity “offer[ed] little explanation of their
activities relevant to pursuing available remedies during this appreciable lapse of time.”
Id. Biodiversity’s argument that it “could not immediately challenge the Phase II
Amendment but instead exhausted their administrative remedies on a number of site-
specific projects implementing Phase II,” was unpersuasive because “[Biodiversity]
provide[d] not a shred of evidence to substantiate these bald, global assertions.” Id.
(quotations omitted).
The district court also determined the delay prejudiced the Forest Service: “the
Forest Service has managed the BHNF in accordance with the Phase II [A]mendment,
with no apparent indication that plaintiffs believed such implementation to constitute a
violation of the Settlement Agreement.” Id. at 253. The court mentioned the Forest
Service had undertaken significant efforts to implement the Phase II Amendment, such as
thinning trees to reduce insect infestation and fire risks. Id. It concluded “any delay in
implementing” the Phase II Amendment’s measures controlling these threats “poses a
significant risk not only to the forest itself, but to property and persons located adjacent to
it.” Id.
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B. Standard of Review and Legal Background
1. Standard of Review
We review a district court’s laches decision for abuse of discretion. “Whether
laches bars an action in a given case . . . ‘is a question primarily addressed to the
discretion of the trial court.’” Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 435
(1965) (quoting Gardner v. Panama R.R. Co., 342 U.S. 29, 30-31 (1951) (per curiam)).
On appeal, “we may not disturb the trial court’s ruling in the absence of abuse of that
discretion.” Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 523 (10th Cir. 1987);
Mile High Indus. v. Cohen, 222 F.3d 845, 857 (10th Cir. 2000) (same). “We review the
district court’s factual findings as to [a defendant’s] equitable defenses under the clearly
erroneous standard, and its legal conclusions de novo.” Mile High, 222 F.3d at 859; see
also Bermuda Exp., N.V. v. M/V Litsa, 872 F.2d 554, 557 (3d Cir. 1989) (“Our standard
of review on the laches issue has various components. We review factual findings such
as length of delay and prejudice under the clearly erroneous standard; we review the
district court’s balancing of the equities for abuse of discretion; and our review of legal
precepts applied by the district court in determining that the delay was excusable is
plenary.”).68
68
The parties agree we should review the laches decision here for abuse of
discretion. See Aplt. Br. at 66-77; Aplee. Br. at 56-57; Aplt. Reply Br. at 34-35, 37.
Although summary judgment based on laches was reviewed de novo in Jacobsen v.
Deseret Book Co., 287 F.3d 936, 948 (10th Cir. 2002) and Hutchinson v. Pfeil, 105 F.3d
562, 564 (10th Cir. 1997), the standard of review for summary judgment is typically de
novo, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998), this appeal
does not arise from summary judgment, and the clear weight of authority is that circuit
Continued . . .
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2. Legal Background
The laches defense bars a party’s dilatory claim. Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 121-22 (2002); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324,
1338 (10th Cir. 1982).69 It stems from the principle that “equity aids the vigilant and not
those who slumber on their rights.” Kansas v. Colorado, 514 U.S. 673, 687 (1995)
(quotations omitted); see also Bowman v. Wathen, 42 U.S. 189, 193 (1843) (“[A] court of
equity . . . has always refused its aid to stale demands, where the party has slept upon his
rights for a great length of time.” (quotations omitted)). Laches bars a claim when there
is: “(1) lack of diligence by the party against whom the defense is asserted, and
(2) prejudice to the party asserting the defense.” Nat’l R.R. Passenger Corp., 536 U.S. at
121-22 (quotations omitted).
Courts apply the delay and prejudice elements with flexibility. As the Supreme
Court noted, “[e]quity eschews mechanical rules; it depends on flexibility. Equity has
acted on the principle that laches is not, like limitation, a mere matter of time; but
principally a question of the inequity of permitting the claim to be enforced . . . .”
Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) (quotations omitted); see also
______________________________________
Cont.
courts review district courts’ laches decisions for abuse of discretion, see Burnett, 380
U.S. at 435; Mile High, 222 F.3d at 857.
69
In its opposition to Biodiversity’s motion to enforce the Settlement Agreement,
the Forest Service raised the laches defense. See Opp’n to Mot. to Enforce Settlement
Agreement at 6-9, Biodiversity v. USFS, No. 1:99-cv-02173-REB-MJW (D. Colo. June
24, 2013), ECF No. 100.
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Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533 (1956) (observing whether laches
is appropriate depends on “the peculiar equitable circumstances” in each case); Bechler v.
Kaye, 222 F.2d 216, 219 (10th Cir. 1955) (“In the final analysis each case must be
determined upon its own circumstances and whether or not the doctrine of laches should
be applied will be determined from the equities as shown by the evidence.”).
Courts have said the “lack of diligence” element was met when delay was
“inexcusable,” “unreasonable,” or “undue;”70 and the “prejudice” element was met when
prejudice was “undue,” “substantial,” or “material.”71 Further, courts have said that
prejudice is established when the defendant has expended substantial time and effort
during the delay that the defendant’s claim could defeat. See, e.g., Jicarilla, 687 F.2d at
1338-39 (noting that if the plaintiffs’ delayed NEPA claim were successful and would
thereby cancel defendants’ leases, defendants would be prejudiced because of
expenditures to improve the land and the “loss of future profits”); Southside Fair Hous.
Comm. v. City of New York, 928 F.2d 1336, 1355-56 (2d Cir. 1991) (concluding if a
claim seeking withdrawal of the property sale were granted, defendants would suffer
“significant financial loss” having spent millions of dollars to develop land for a
synagogue). For example, a defendant’s substantial completion of a challenged project
70
Kansas, 514 U.S. at 689 (inexcusable); Jicarilla, 687 F.2d at 1338
(unreasonable); Moore v. Shultz, 491 F.2d 294, 300 (10th Cir. 1974) (undue).
71
Daingerfield Island Protective Soc. v. Lujan, 920 F.2d 32, 37 (D.C. Cir. 1990)
(undue); Yates v. Am. Republics Corp., 163 F.2d 178, 180 (10th Cir. 1947) (substantial);
Hutchinson, 105 F.3d at 564 (material).
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during the delay period can constitute prejudice. See, e.g., Apache Survival Coal. v.
United States, 21 F.3d 895, 913-14 (9th Cir. 1994) (affirming a district court’s
application of laches because plaintiffs brought a claim “[o]nly after substantial work on
the [project] had been completed,” resulting in “undue prejudice” to the Forest Service);
Citizens & Landowners Against the Miles City/New Underwood Powerline v. Sec’y, U.S.
Dep’t of Energy, 683 F.2d 1171, 1177 (8th Cir. 1982) (concluding defendants suffered
prejudice because a power line was complete and operating, and a successful NEPA
challenge would require significant expenditure of time and resources to reroute the
power line, and result in power shortages during the rerouting); see also Park Cnty. Res.
Council, Inc. v. USDA, 817 F.2d 609, 618 (10th Cir. 1987) (noting the alleged prejudice
did not merit laches because the project was “not . . . substantially completed”), overruled
on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973
(10th Cir. 1992) (en banc).
In litigation brought under environmental federal statutes, laches “is disfavored
because of the interests of the public in environmental quality and because the agency
would escape compliance with NEPA if laches were generally applied, thus defeating
Congress’ environmental policy.” Jicarilla, 687 F.2d at 1338-39. As we further
explained in Park County, “laches must be invoked sparingly in environmental cases
because ordinarily the plaintiff will not be the only victim of alleged environmental
damage. A less grudging application of the doctrine might defeat Congress’s
environmental policy.” 817 F.2d at 617 (quotations omitted).
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In Park County, we said that if a district court “fails to consider the legal standard
disfavoring laches . . . . [t]his failure amounts to an abuse of discretion.” Id. If a district
court misapprehends the law in assessing a laches defense, the appellate court may
remand for application of the correct standard, especially if further factual development is
necessary. Id. at 617-18. Some circuit courts, however, have resolved the laches issue on
appeal in cases brought under environmental statutes when the factual record is
sufficiently developed. Id.; accord Apache Survival Coal., 21 F.3d at 906-07.
C. Analysis
Biodiversity claims the district court abused its discretion in three ways:
(1) failing to consider the precedent disfavoring laches in environmental cases;
(2) erroneously determining Biodiversity’s delay was unreasonable; and (3) improperly
concluding the delay prejudiced the Forest Service.
1. Failure to Consider Laches Is Disfavored
In its memorandum opinion and order dismissing the case based on laches, the
district court said:
I note that [Biodiversity]’s claims in this suit do not arise under the NFMA
or any other environmental statute; instead, they seek to enforce a contract.
Therefore, whatever administrative or other remedial actions plaintiffs may
have been required to undertake pursuant to any such environmental
statutes are not relevant in considering their rights to enforce the terms of
the Settlement Agreement.
Order Den. Mot. to Enforce Settlement Agreement, App. at 252.
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Biodiversity argues the district court “fail[ed] to acknowledge this is an
environmental case, and that in such cases, application of the doctrine of laches is
disfavored.” Aplt. Br. at 69. This argument misreads the district court in two ways.
First, to assert the district court “fail[ed] to acknowledge this is an environmental
case” is implausible—the district court’s rulings and analysis since Biodiversity filed its
complaint in 1999 demonstrate it clearly understood the environmental nature of this
case.
Second, as to acknowledging whether laches should be disfavored, the district
court correctly noted that Biodiversity’s motion to enforce the Settlement Agreement is a
breach of contract claim, not an APA claim based on NFMA, NEPA, or any other
environmental statute. See Order Den. Mot. to Enforce Settlement Agreement, App. at
252. As such, administrative actions that must precede the usual environmental statutory
claim are unnecessary. Rather than failing to acknowledge “the doctrine of laches is
disfavored,” Aplt. Br. at 69, the district court, having received briefs from two parties
making this very point about the doctrine and citing two cases applying it,72 said any
administrative exhaustion rationale to disfavor laches does not apply—is “not relevant”—
72
See Intervenors’ Opp’n to the Mot. to Enforce, App. at 182 (“Laches is invoked
‘sparingly’ in environmental litigation, but it does apply when the movant has engaged in
unreasonable delay and the nonmovant has relied extensively on the project at issue and
would be prejudiced by the requested relief.” (citing Park Cnty., 817 F.2d at 617));
Biodiversity’s Reply in Supp. of Mot. to Enforce, App. at 216 (“‘Laches must be invoked
sparingly in environmental cases be [sic, because] ordinarily the plaintiff will not be the
only victim of alleged environmental damage.’” (quoting Park Cnty., 817 F.2d at 617));
Order Den. Mot. to Enforce Settlement Agreement, App. at 251 (citing Park Cnty., 817
F.2d at 617; Jicarilla, 687 F.2d at 1338).
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here. Order Den. Mot. to Enforce Settlement Agreement, App. at 252. The district court
understood Biodiversity’s motion to enforce a breach of contract arises in a case about
environmental concerns but is different from a claim based on environmental statutes. It
decided the laches issue against that backdrop and was not persuaded this matter fits
squarely into the category of cases based on environmental statutes to which the doctrine
disfavoring laches typically applies.
As a result, we are not persuaded the district court did not “consider the legal
standard disfavoring laches,” Park Cnty., 817 F.2d at 617, and therefore reject
Biodiversity’s abuse of discretion argument on this ground.73
2. Unreasonable Delay
Biodiversity argues the district court erred in finding unreasonable delay by
(1) determining the delay in bringing the breach of Settlement Agreement claim began on
November 1, 2006—the date the Forest Chief denied Biodiversity’s administrative
challenge to the Phase II Amendment—and (2) concluding any delay was unreasonable.
See Aplt. Br. at 69-74.
73
We note the concern about applying laches to “defeat Congress’s environmental
policy,” Park Cnty., 817 F.2d at 617 (quotations omitted), is mitigated here because
(1) the motion to enforce was based on a contract—the Settlement Agreement—not a
federal statute embodying environmental policy, and (2) Biodiversity has had ample
opportunity to pursue its claims based on Congress’s environmental policy in its many
administrative challenges to the Phase II Amendment and its implementation, and
especially through its lawsuit in the Wyoming federal district court under NFMA, NEPA,
and the APA.
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First, as to the beginning of delay, if the Phase II Amendment violates the
Settlement Agreement, Biodiversity knew or should have known of its breach claim at
least by November 1, 2006. Indeed, the record shows Biodiversity knew of its breach
claim even earlier when it filed its administrative challenge in May 2006, arguing “the
Phase II Amendment fails to live up to the USFS’s promises as set forth in the Settlement
Agreement.” Biodiversity’s Administrative Appeal, App. at 2683. Because contract
actions accrue at the moment of breach, see Zamora v. Prematic Serv. Corp., 936 F.2d
1121, 1123 (10th Cir. 1991) and Hersh Cos. Inc. v. Highline Vill. Assocs., 30 P.3d 221,
224 (Colo. 2001) (en banc),74 and because Biodiversity cannot argue it was unaware of its
breach claim, the district court did not clearly err or otherwise abuse its discretion in
using the November 1, 2006 date as the starting point for its laches analysis. See
Jacobsen v. Deseret Book Co., 287 F.3d 936, 949 (10th Cir. 2002) (“Generally speaking,
the relevant delay is the period from when the plaintiff knew (or should have known) of
the allegedly infringing conduct, until the initiation of the lawsuit in which the defendant
seeks to counterpoise the laches defense.”) (quotations omitted).
Second, as to unreasonable delay, Biodiversity argues the district court ignored its
strategic and diligent pursuit of its rights by “rais[ing] violations of the 2000 settlement
agreement in its comments and administrative appeals.” Aplt. Br. at 71. Biodiversity
74
In contrast, APA challenges to forest plans for violating NFMA are not ripe
until they have been implemented through site-specific projects. Ohio Forestry Ass’n,
Inc. v. Sierra Club, 523 U.S. 726, 732-37 (1998). As such, Biodiversity’s arguments
regarding the “ripeness” of the breach claim under the principles in Ohio Forestry are
misplaced. See Aplt. Br. at 71-72.
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relies on Park County, 817 F.2d at 617-18, in which we concluded a district court erred in
holding that laches barred a NEPA claim. We reasoned that plaintiffs’ almost two-year
delay in bringing its NEPA challenge was not unreasonable or “sinister” because it was
merely a “tactical decision” to “concentrate their energies and resources” in “the most
efficient way to press their substantive objectives.” Id. at 618. Biodiversity argues its
almost seven-year delay is similarly not unreasonable because it made “strategic
decisions” to challenge the Phase II Amendment and the nine site-specific projects “in
administrative processes before resorting to litigation.” Aplt. Br. at 70-71.
Park County is distinguishable on several grounds. First, the delayed claim in
Park County was a federal environmental statutory claim. Biodiversity’s claim is a
Settlement Agreement breach of contract claim. Second, the Park County plaintiffs
delayed less than two years before filing suit. Biodiversity delayed more than three times
longer to bring its motion. Third, the challenged project in Park County was
“not . . . substantially completed” because significant drilling activities “ha[d] not yet
transpired.” Park Cnty., 817 F.2d at 618. Biodiversity challenges a forest plan that the
Forest Service has substantially implemented in dozens of projects and has relied upon to
manage the BHNF for eight years. Fourth, we recognized the Park County plaintiffs’
efforts to streamline their litigation by focusing on challenging a drilling permit before
bringing the NEPA challenge. Id. By contrast, Biodiversity’s strategy increased
litigation. Starting in 2006, in numerous administrative challenges and then in the
Wyoming federal district court, Biodiversity alleged violations of the Settlement
Agreement even though, as the Wyoming court correctly decided, only the Colorado
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federal district court had jurisdiction to enforce the agreement. Order Den. Mot. for
Reconsideration, App. at 148-49.75 Biodiversity chose to avoid the Colorado federal
district court and attempted instead to enforce the Settlement Agreement in
administrative and district court forums lacking jurisdiction. Only after those efforts
failed did Biodiversity return to the Colorado federal district court, almost seven years
after its breach of contract claim accrued and nearly thirteen years after the Settlement
Agreement was finalized. Just because Biodiversity’s delay may have been strategic
does not make it reasonable—in fact, just the opposite.
For the foregoing reasons, the district court did not abuse its discretion when it
determined that Biodiversity’s delay was unreasonable.
3. Undue Prejudice
Biodiversity argues the district court abused its discretion by concluding the delay
prejudiced the Forest Service. It argues (1) the Forest Service was aware of
Biodiversity’s concerns, Aplt. Br. at 75, and (2) enforcement of the Settlement
Agreement would neither “halt any project underway” nor “necessarily delay ongoing
75
During that whole period, Biodiversity was aware the Colorado federal district
court had “retain[ed] jurisdiction of this matter for the purpose of entering such further
orders, direction, or relief as may be necessary or appropriate for the construction,
implementation, or enforcement of this Agreement . . . .” Settlement Agreement, App. at
442. As noted by the Wyoming federal district court, Biodiversity has “cited no authority
supporting the novel proposition that any federal district court other than the District of
Colorado could properly exercise ancillary jurisdiction to enforce the agreement.” Order
Den. Mot. for Reconsideration, App. at 148-49.
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on-the-ground implementation of projects.” Aplt. Reply Br. at 36; see also Aplt. Br. at
75-77.
How much of the district court’s prejudice analysis rested on factual
determinations versus a balance of the equities is not clear. But whether we review the
district court’s determination of prejudice under clear error or abuse of discretion, we see
no reason to reverse the district court’s decision.
First, no party disputes the Forest Service was aware of Biodiversity’s concerns.76
Starting in 2006, Biodiversity alleged Settlement Agreement violations in its
administrative challenges and in its Wyoming lawsuit. But that does not foreclose
prejudice to the Forest Service. The Forest Service devoted substantial time and
resources responding to Biodiversity’s various administrative challenges and its
Wyoming lawsuit while Biodiversity held in reserve the breach of contract claim it could
have brought at least by November 1, 2006. Based on Biodiversity’s jurisdictionally
defective protests of Settlement Agreement breach outside the Colorado forum, the Forest
Service may reasonably have been lulled into thinking Biodiversity had chosen the route
of challenging the Phase II Amendment for violations of NFMA and NEPA under the
APA in lieu of attempting to enforce the Settlement Agreement in Colorado. See Pro
76
On this score, we disagree with the district court’s statement that there was “no
apparent indication that plaintiffs believed such implementation [of the Phase II
Amendment] to constitute a violation of the Settlement Agreement.” Order Den. Mot. to
Enforce the Settlement Agreement, App. at 253. That the Forest Service was on notice of
Biodiversity’s Settlement Agreement violation concerns, however, not only does not alter
our unreasonable delay and undue prejudice analysis, it strengthens it given the
circumstances of this case.
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Football, Inc. v. Harjo, 565 F.3d 880, 884 (D.C. Cir. 2009) (“When there has been an
unreasonable period of delay by a plaintiff . . . prejudice to the defendant may ensue
whether or not the plaintiff overtly lulled the defendant into believing that the plaintiff
would not act, or whether or not the defendant believed that the plaintiff would have
grounds for action.”).
Second, Biodiversity’s argument that enforcing the Settlement Agreement would
not “necessarily delay” ongoing projects, Aplt. Reply Br. at 36, overlooks the prejudice
the Forest Service would suffer from Biodiversity’s delayed motion. As the district court
noted, “the Forest Service has managed the BHNF in accordance with the Phase II
[A]mendment” as a blueprint for nearly eight years, including implementing dozens of
projects and creating a forest-wide strategy to combat insect infestation and fire risks.
Order Den. Mot. to Enforce Settlement Agreement, App. at 253. During the period of
delay since November 2006, the Forest Service has invested significant time and
resources, and requiring the Forest Service to change its blueprint governing these efforts
would compromise work that has already been done.
For example, the district court observed the Forest Service “proffered evidence
substantiating that [it] has undertaken significant efforts to manage the mountain pine
beetle infestation that has plagued the BHNF in reliance on the Phase II [A]mendment
and the terms of the Settlement Agreement.” Order Den. Mot. to Enforce Settlement
Agreement, App. at 253. Because the BHNF includes within its boundaries not only
federally managed lands, but also parcels of state-managed and private lands, the Forest
Service has worked with the Intervenors and private landowners to battle the bark beetle
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epidemic using a “wall to wall” coordinated strategy. See Am. Decl. of S.D. State
Forester Raymond Sowers, App. at 209. Requiring the Forest Service to revisit and
revise the Phase II Amendment now would threaten what has been achieved so far: “a
comprehensive and continual program is required,” and an interruption “in implementing
the measures already underway poses a significant risk not only to the forest itself, but to
property and persons located adjacent to it.” Order Den. Mot. to Enforce Settlement
Agreement, App. at 253; see also Intervenors’ Opp’n to Mot. to Enforce, App. at 185
(“This is not the time to stop for more study and then start again. Laches applies because
. . . [the parties] have relied on the current Phase II and associated projects to invest
heavily in control of the mountain pine beetle, and the beetle control efforts must be
continued to be effective.”).
The district court properly weighed “the peculiar equitable circumstances” in this
case, Czaplicki, 351 U.S. at 533, and determined the Forest Service would be unduly
prejudiced from the delay in Biodiversity’s requested relief. We discern no reason to
conclude the district court abused its discretion.
IV. CONCLUSION
In Case No. 13-8053, we affirm the Wyoming federal district court’s denial of
Biodiversity’s petition for review under the APA. In Case No. 13-1352, we affirm the
Colorado federal district court’s dismissal of Biodiversity’s motion to enforce the
Settlement Agreement.
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