FILED
FOR PUBLICATION SEP 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CASCADIA WILDLANDS, an Oregon No. 14-35553
non-profit corporation; OREGON WILD,
an Oregon non-profit corporation; D.C. No. 6:13-cv-01559-TC
UMPQUA WATERSHEDS, INC., an
Oregon non-profit corporation,
OPINION
Plaintiffs - Appellants,
v.
BUREAU OF INDIAN AFFAIRS, an
agency of the United States Department of
the Interior,
Defendant - Appellee,
and,
COQUILLE INDIAN TRIBE, a federally
recognized Indian tribe,
Intervenor-Defendant -
Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted February 5, 2015
Seattle, Washington
Before: Raymond C. Fisher, Carlos T. Bea and Mary H. Murguia, Circuit Judges.
Opinion by Judge Fisher
FISHER, Circuit Judge:
Cascadia Wildlands, Oregon Wild and Umpqua Watersheds (collectively,
Cascadia) challenge the Bureau of Indian Affairs’ (BIA) approval of the Middle
Forks Kokwel timber sale (the Kokwel Project), a plan by the Coquille Indian
Tribe (the Tribe) to harvest 268 acres of timber in the Coquille Forest in southwest
Oregon. Cascadia argues the BIA violated the National Environmental Policy Act
(NEPA), 42 U.S.C. § 4321 et seq., because it did not adequately consider the
cumulative environmental impact of the Kokwel Project in light of a previously
approved harvest, the Alder/Rasler Project, on adjacent and overlapping land.
Cascadia also argues the Kokwel Project violates the Coquille Restoration Act
(CRA), 25 U.S.C. § 715 et seq., because the project is inconsistent with the U.S.
Fish and Wildlife Service’s (FWS) Recovery Plan for the northern spotted owl.
The district court granted summary judgment to the BIA and the Tribe on
both claims.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm. First,
the BIA and the Tribe did not violate NEPA by aggregating the Alder/Rasler
Project, which had been approved, but not yet completed, as part of the
1
Cascadia named only the BIA as a defendant. The Tribe intervened as a
defendant in the district court.
2
environmental baseline against which the incremental impact of the Kokwel
Project was considered. Second, the CRA does not require compliance with the
Recovery Plan for the northern spotted owl.
BACKGROUND
The Coquille Forest comprises 5,410 acres of land along the
southwest Oregon coast that was restored to the Coquille Indian Tribe in 1996 by
an amendment to the Coquille Restoration Act. See 25 U.S.C. § 715c. Under the
CRA, the forest is held in trust by the federal government and managed for the
benefit of the Tribe. See id. § 715c(b), (d)(5).
In 2011 and 2013, the BIA approved two different proposals by the Tribe to
harvest timber in the Coquille Forest. In 2011, the BIA approved the Alder/Rasler
Project, which called for 270 acres of regeneration harvest, 52 acres of density
management and 56 acres of commercial thinning between 2011 and 2016.2 The
purposes of the Alder/Rasler Project were to generate money for the Tribe and
manage forest growth. The Alder/Rasler Project also called for the construction of
3.21 miles of roads in the forest. The BIA and the Tribe conducted an
2
Regeneration harvest would involve clearing 85 to 90 percent of stands,
with the intent of developing a new stand. Commercial thinning and density
management would involve reducing stand density by about 60 percent, with the
intent of promoting healthy forest conditions, and increasing diversity, complexity
and productivity of the stand and the riparian area.
3
Environmental Assessment (EA), which estimated the project would create
between 44 and 220 jobs and over $10.5 million in revenue through the sale of
22.44 million board feet of timber.
The EA also found the Alder/Rasler Project likely would adversely affect the
northern spotted owl, an endangered species living in the Coquille Forest, by
removing 270 acres of suitable habitat. The EA noted, however, that there were no
occupied owl habitats within the project area, and no owl nest sites within 1.5
miles of the project area. Based on the EA, the BIA issued a Finding of No
Significant Impact (FONSI) and approved the project in February 2011, without
conducting an Environmental Impact Statement (EIS).
In 2013, the BIA approved a second project – the Kokwel Project – to
conduct an additional 268 acres of regeneration harvest, 221 acres of commercial
thinning and 42 acres of density management in the Coquille Forest over 10 years.
The Kokwel Project was planned on land adjacent to, and overlapping with, the
Alder/Rasler Project. The primary purpose of the Kokwel Project was to generate
money for the Tribe. The BIA and the Tribe conducted an EA, which estimated
the Kokwel Project would create 242 direct jobs, 532 indirect jobs and over $8
million in revenue through the sale of 13.9 million board feet of timber.
4
FWS performed a Biological Assessment and concluded the Kokwel Project
likely would adversely affect the northern spotted owl, and would “take” up to 14
northern spotted owls at four sites.3 Therefore, FWS concluded the Kokwel
Project was inconsistent with its Recovery Plan for the northern spotted owl.4 The
Recovery Plan calls for the conservation of spotted owl habitat “to provide
additional demographic support to the spotted owl population,” and directs land
managers to work with FWS to “maintain and restore” particularly “high-quality
spotted owl habitat stands.” FWS also found, however, that “[b]ecause there will
be less than one percent of [nesting, roosting and foresting habitat] loss in the
43,000 acre . . . analysis area, . . . this habitat loss will not significantly impact the
provincial habitat conditions that provide for spotted owls,” or “jeopardize the
continued existence of the spotted owl.”
In the EA, the BIA and the Tribe agreed with the FWS that the Kokwel
Project was likely to adversely affect the northern spotted owl by removing 268
3
Under the Endangered Species Act, “[t]he term ‘take’ means to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.” 16 U.S.C. § 1532(19).
4
The Recovery Plan was created pursuant to the Endangered Species Act,
which requires the Secretary of the Interior to “develop and implement [recovery
plans] for the conservation and survival of endangered species and threatened
species listed pursuant to this section.” 16 U.S.C. § 1533(f)(1).
5
acres of suitable habitat. The EA then analyzed the cumulative impact of the
Kokwel Project by comparing it against an environmental baseline, or “No Action
Alternative.” The No Action Alternative described the “existing condition and the
continuing trends,” assuming “[o]ngoing activities would continue to occur on
existing projects,” including “other projects covered by earlier decision records.”
The EA explained that it would aggregate other projects into the No Action
Alternative, rather than individually discuss them:
The following descriptions of the No Action Alternative and the
Proposed Action assume the combined relevant effects of all past
actions. It is not necessary to individually identify or catalog these past
actions as the description of the affected environment incorporates all
those actions. For the cumulative effects analysis the description of the
potential resulting impacts is the cumulative effect of all past, present
and reasonably foreseeable actions. Reasonably foreseeable future
actions are assumed to be the same for the No Action as well as the
Proposed Action. Stands . . . are expected to be selectively harvested
approximately every 60 to 80 years . . . . Current timber management on
the surrounding private land is more intensive and occurs on a larger
scale at rotations as short as 30 to 40 years. . . . Table 8 lists treatments
proposed for the foreseeable future on [the Tribe’s] lands in the analysis
area that will be considered in the following resource-specific
cumulative impact discussions. Other incidental use of the [Tribe’s]
lands such as recreational use is expected to continue at rates similar to
those of the past ten years.
Table 8 listed only one treatment proposed for the foreseeable future: the
Alder/Rasler Project. The EA’s resource-specific cumulative impact discussions
did not individually analyze the impact of any specific past, present or reasonably
6
foreseeable action. With respect to the northern spotted owl, the EA said the
Middle Fork Coquille River watershed, which contains the Coquille Forest, has
approximately 42,587 acres of spotted-owl-habitat-capable habitat, and
approximately 28,108 acres of current nesting, roosting and foraging habitat. The
EA presented a table, called “Impacts of the proposed action on [northern spotted
owl] nest patches, core areas, and home ranges.” The table compared “current”
acres of northern spotted owl habitat, elsewhere listed as “pre-harvest” acres, with
“post” acres. The table showed the Kokwel Project would not reduce any northern
spotted owl habitat within a “nest patch” (300 meters) or “core area” (half mile),
and would reduce habitat within the “home ranges” (1.3 miles) of four historic owl
sites from 2,985 to 2,718 acres. Thus, the EA concluded the Kokwel Project
“would reduce the amount of [nesting, roosting and foraging] habitat within
[northern spotted owl] home ranges by a cumulative of approximately seven
percent.’”
Based on these data, the EA concluded the “cumulative effects” from the
Kokwel Project and other “foreseeable projects” “would not appreciably diminish
spotted owl suitable habitat.” It explained, “[m]ost of the owl core areas occur on
[Bureau of Land Management] lands within the watershed; these areas are not
expected to change substantially over time.” Furthermore, though the project
7
would have an incremental impact of reducing habitat by seven percent, the EA
also found, “[o]verall, the habitat would benefit from opening of the canopy,
encouraging development of a multi-layered canopy and encouraging tree and
understory growth.”
Relying on the EA, the BIA in February 2013 issued a FONSI and approved
the project, without conducting an EIS. Cascadia challenged the BIA’s decision in
the district court, and the court granted summary judgment to the BIA and the
Tribe. Cascadia appeals.
STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. See
Mont. Wilderness Ass’n v. Connell, 725 F.3d 988, 994 (9th Cir. 2013). We review
Cascadia’s NEPA and CRA claims under the Administrative Procedures Act
(APA). See id. Under the APA, an agency decision will be set aside if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). “Review under the arbitrary and capricious standard
is narrow, and we do not substitute our judgment for that of the agency.” Ecology
Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009) (alterations omitted) (quoting
Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir. 2008) (en
banc), overruled on other grounds by Winter v. Natural Res. Def. Council, Inc.,
8
555 U.S. 7, 20 (2008)) (internal quotation marks omitted). “Rather, we will
reverse a decision as arbitrary and capricious only if the agency relied on factors
Congress did not intend it to consider, entirely failed to consider an important
aspect of the problem, or offered an explanation that runs counter to the evidence
before the agency or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” Id. (quoting Lands Council II, 537
F.3d at 987) (internal quotation marks omitted).
DISCUSSION
I. NEPA
Cascadia argues the BIA and the Tribe violated NEPA because they did not
adequately consider the cumulative impacts of the Kokwel Project in light of the
Alder/Rasler Project. “The purpose of NEPA is to require disclosure of relevant
environmental considerations that were given a ‘hard look’ by the agency, and
thereby to permit informed public comment on proposed action and any choices or
alternatives that might be pursued with less environmental harm.” Lands Council
v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005). To that end, “NEPA imposes
procedural requirements, but not substantive outcomes, on agency action.” Id. at
1026.
9
NEPA requires the preparation of an EIS for “major Federal actions
significantly affecting the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C). “As a preliminary step, an agency may prepare an EA to decide
whether the environmental impact of a proposed action is significant enough to
warrant preparation of an EIS.” Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citing 40 C.F.R. § 1508.9).
An EA is a “concise public document” that “[b]riefly provide[s] sufficient
evidence and analysis for determining whether to prepare an [EIS] or a finding of
no significant impact.” 40 C.F.R. § 1508.9(a). “If an agency decides not to
prepare an EIS, it must supply a ‘convincing statement of reasons’ to explain why
a project’s impacts are insignificant. ‘The statement of reasons is crucial to
determining whether the agency took a “hard look” at the potential environmental
impact of a project.’” Blue Mountains Biodiversity Project, 161 F.3d at 1212
(citation omitted) (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th
Cir. 1988)).
To determine whether a proposed action will significantly impact the human
environment, NEPA directs agencies to consider “[w]hether the action is related to
other actions with individually insignificant but cumulatively significant impacts.”
40 C.F.R. § 1508.27(b)(7). “Significance exists if it is reasonable to anticipate a
10
cumulatively significant impact on the environment.” Id. “Cumulative impact is
the impact on the environment which results from the incremental impact of the
action when added to other past, present, and reasonably foreseeable future actions.
. . . Cumulative impacts can result from individually minor but collectively
significant actions taking place over a period of time.” Id. § 1508.7 (emphasis
removed).
“[T]he general rule under NEPA is that, in assessing cumulative effects, the
[agency] must give a sufficiently detailed catalogue of past, present, and future
projects, and provide adequate analysis about how these projects, and differences
between the projects, are thought to have impacted the environment.” Lands
Council, 395 F.3d at 1028. An agency, however, may satisfy NEPA by
aggregating the cumulative effects of past projects into an environmental baseline,
against which the incremental impact of a proposed project is measured. See
Castaneda, 574 F.3d at 666-67; League of Wilderness Defenders – Blue Mountains
Biodiversity Project v. U.S. Forest Serv. (LOWD), 549 F.3d 1211, 1216-18 (9th
Cir. 2008).
Cascadia concedes the cumulative impact of past actions may be aggregated.
It contends, however, that the BIA was not permitted to aggregate the Alder/Rasler
11
Project, because it is not a past action, but a reasonably foreseeable future action.5
Castaneda and LOWD did not reach that question. Both cases involved disputes
regarding the aggregation of past projects. See Castaneda, 574 F.3d at 666
(“WildWest complains the cumulative impact statements do not contain discussion
of prior projects on an individual basis.”); LOWD, 549 F.3d at 1216 (“LOWD
contends that the cumulative effects analysis . . . regarding past timber sales is
insufficient because it ‘only mentions one . . . past timber sale’ . . . and otherwise
generally ‘states that timber harvest has occurred in the past.’” (second alteration in
original)).
Agencies, however, have “discretion in deciding how to organize and
present information” in environmental assessments. See Mont. Wilderness Ass’n,
725 F.3d at 1002. LOWD explained:
[O]ur law . . . requires us to defer to an agency’s determination in an area
involving a high level of technical expertise . . . [and] we are not free to
impose on the agency our own notion of which procedures are best or
most likely to further some vague, undefined public good. . . .
Accordingly, to the extent that 40 C.F.R. § 1508.7 does not explicitly
provide otherwise, the Forest Service is free to consider cumulative
effects in the aggregate or to use any other procedure it deems
appropriate. It is not for this court to tell the Forest Service what specific
evidence to include, nor how specifically to present it.
5
The government concedes the Alder/Rasler Project is not a past action, but
a reasonably foreseeable future action. Indeed, the Kokwel EA describes the
Alder/Rasler Project as a “treatment[] proposed for the foreseeable future.”
12
549 F.3d at 1218 (citations, alterations and internal quotation marks omitted).
That reasoning applies to projects that have been approved, following an
independent environmental assessment under NEPA, just as it applies to projects
that have been completed. Thus, 40 C.F.R. § 1508.7 does not explicitly require
individual discussion of the impacts of reasonably foreseeable projects, and, absent
such a requirement, it is not for the court to tell the agency how specifically to
present such evidence in an EA.
Our role is to ensure that the agency takes a “hard look” at the cumulative
environmental consequences of the proposed project, and provides a clear
explanation of its analysis to enable informed public comment on the project and
possible alternatives. See Lands Council, 395 F.3d at 1027. An agency can take a
“hard look” at cumulative impacts either by individually discussing a previously
approved project, or incorporating the expected impact of such a project into the
environmental baseline against which the incremental impact of a proposed project
is measured. Under either approach, what is important is that the agency make
clear it has considered the “incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions.” 40 C.F.R. § 1508.7.
Our holding that the aggregation of future projects can be permissible under
NEPA does not require the public to “blindly” accept an agency’s “conclusory
13
assertions,” as Cascadia argues. We are mindful that one of the “twin aims” of
NEPA is to “ensure[] that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking process.” Balt. Gas &
Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). When an
agency chooses to aggregate reasonably foreseeable projects, it must be “clear
from the record that the cumulative effects of the prior proposals were considered
by both the drafting and approving agencies.” Piedmont Heights Civic Club, Inc.
v. Moreland, 637 F.2d 430, 442 (5th Cir. 1981). Here, the Kokwel EA identified
the Alder/Rasler Project as a reasonably foreseeable project that would be
considered as part of the baseline, i.e., the “No Action Alternative.” The expected
impacts of the Alder/Rasler Project, in turn, were set forth in detail in the
Alder/Rasler EA.
Our holding also is in accord with two circuits that have addressed this
question. See Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 70 (D.C. Cir.
1987) (“It makes sense to consider the ‘incremental impact’ of a project for
possible cumulative effects by incorporating the effects of [previously approved]
projects into the background ‘data base’ of the project at issue, rather than by
restating the results of the prior studies.”); Piedmont Heights Civic Club, 637 F.2d
at 441 (“NEPA does not require an agency to restate all of the environmental
14
effects of other projects presently under consideration. Where the underlying data
base includes approved projects and pending proposals, the ‘statutory minima’ of
NEPA has been met.” (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res.
Def. Council, Inc., 435 U.S. 519, 548 (1978))). As the D.C. Circuit recognized in
Coalition for Sensible Transportation, “incorporating the effects of other projects
into the background ‘data base’ of the project at issue” can be “sufficient to alert
interested members of the public to any arguable cumulative impacts involving
these other projects.” 826 F.2d at 70–71. Any further analysis “would be
redundant and in no material way serve the purposes of NEPA.” Id. at 71.
Cascadia argues that, even if it is permissible to aggregate previously
approved projects into an environmental baseline, the Kokwel EA did not actually
aggregate the impacts of the Alder/Rasler Project. We disagree. The Kokwel EA
explained it measured the impacts of the Kokwel Project against a baseline that
assumes “[o]ngoing activities would continue to occur on existing projects,”
including “other projects covered by earlier decision records.” It is undisputed the
Alder/Rasler Project was covered by an earlier decision record – the Alder/Rasler
EA. The Kokwel EA later said, “[f]or the cumulative effects analysis the
description of the potential resulting impacts is the cumulative effect of all past,
present and reasonably foreseeable actions.” It said “[r]easonably foreseeable
15
future actions are assumed to be the same for the No Action as well as the
Proposed Action,” and “Table 8 lists treatments proposed for the foreseeable future
on [the Tribe’s] lands in the analysis area that will be considered in the following
resource-specific cumulative impact discussions.” Table 8, in turn, lists only one
project – the Alder/Rasler Project. Thus, the Kokwel EA explained the
Alder/Rasler Project was a “treatment[] proposed for the foreseeable future,”
which was “assumed to be the same” for both the No Action and the Proposed
Action, i.e., assumed as part of the baseline against which the incremental impact
of the Kokwel Project was measured.
To be sure, when the EA set forth data regarding the incremental impact of
the Kokwel Project on specific resources, it did not restate that the Alder/Rasler
Project was incorporated into the baseline. With respect to the northern spotted
owl, the EA provided a table showing the Kokwel Project would reduce habitat
within the “home ranges” (1.3 miles) of four historic northern spotted owl sites
from 2,985 to 2,718 acres. The EA did not specifically explain how it calculated
the pre-harvest acreage of 2,985, or expressly say its calculation included the
Alder/Rasler Project. Similarly, with respect to road construction, the EA said
there were 543 miles of existing roads in the “Action Area,” resulting in a road
density of 4.73 mi/mi2, and the Kokwel Project would create 2.92 miles of new
16
road, which would not measurably increase the road density. Again, the EA did
not specifically explain how it calculated the pre-harvest mileage of roads, or
expressly say its calculation included the Alder/Rasler Project.
Although the EA’s explanation of its methodology could have been clearer,
to repeat each time the EA presented baseline data for an individual resource that
the Adler/Rasler Project was, in fact, considered would have been redundant and
therefore unnecessary, particularly in a document meant to be “concise” and
“[b]rief[].” See 40 C.F.R. § 1508.9(a). The EA is sufficiently clear that “the
agency’s path may reasonably be discerned.” Beno v. Shalala, 30 F.3d 1057, 1073
(9th Cir. 1994) (quoting Motor Vehicle Mfr. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)) (internal quotation marks omitted). By specifically
identifying the Alder/Rasler Project at the outset and explaining it would be
assumed as part of the baseline in the resource-specific cumulative impacts
analyses, the Kokwel EA sufficiently “catalogu[ed] . . . relevant past projects in the
area,” Lands Council, 395 F.3d at 1027, told the public “what data the conclusion
was based on,” Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387
F.3d 989, 994 (9th Cir. 2004), and “alert[ed] interested members of the public to
any arguable cumulative impacts involving” the Alder/Rasler Project, Coalition for
Sensible Transp., 826 F.2d at 71. See Castaneda, 574 F.3d at 667 (holding EIS
17
adequately aggregated projects when it “refer[red] to a table of Current and
Reasonably Foreseeable Actions, and state[d] past actions were considered in the
Existing Conditions section”).6 We therefore affirm the district court’s grant of
summary judgment to the defendants on the NEPA claim.7
II. Coquille Restoration Act
Cascadia argues the Kokwel Project violates the CRA because the project is
inconsistent with the FWS Recovery Plan for the northern spotted owl. The CRA
requires the Secretary of Interior to manage the Coquille Forest “subject to the
standards and guidelines of Federal forest plans on adjacent or nearby Federal
lands, now and in the future.” 25 U.S.C. § 715c(d)(5) (emphasis added). Multiple
federal forest plans cover the Coquille Forest. One, the Coos Bay District
Resource Management Plan (the Coos Bay Plan), “describes management of
approximately 329,700 acres of land in Oregon,” including the Coquille Forest.
6
Cascadia’s reliance on Klamath-Siskiyou is misplaced. In Klamath-
Siskiyou, we held an EA was inadequate when “it only consider[ed] the effects of
the very project at issue,” and offered only “generalized conclusory statements”
regarding cumulative impacts. 387 F.3d at 996. Here, as discussed above, the EA
incorporated the Alder/Rasler Project into the baseline against which the
cumulative impact of the Kokwel Project was measured, and set forth the baseline
and post-harvest data on which its conclusions were based.
7
Because the EA explained it aggregated the Alder/Rasler Project into the
No Action Alternative, we reject Cascadia’s argument this was a “post hoc
rationalization” by the BIA.
18
The Coos Bay Plan lists as an “[o]bjective[]” to “[p]rotect, manage, and conserve
federal listed . . . species and their habitats to achieve their recovery in compliance
with the Endangered Species Act, approved recovery plans, and Bureau special
status species policies.” Cascadia argues the “objective” should be construed as a
“standard and guideline” under the CRA, such that compliance with FWS recovery
plans is mandatory in the Coquille Forest.8 We reject that argument.
First, the Coos Bay Plan expressly establishes an “objective” of compliance
with recovery plans, not a “standard” or “guideline.” The Coos Bay Plan was
adopted in 1995, a year before Congress amended the CRA to require compliance
with applicable forest plan “standards and guidelines.” Had Congress intended the
CRA to require compliance with the “objectives” of the Coos Bay Plan, it could
have done so expressly. See Smith v. United States, 508 U.S. 223, 229 (1993)
(“Had Congress intended the . . . construction petitioner urges, it could have so
indicated. It did not, and we decline to introduce that additional requirement on
our own.”).
8
It is undisputed that, generally, FWS recovery plans are not mandatory.
The Endangered Species Act does not mandate compliance with recovery plans for
endangered species. See Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547-48 (11th
Cir. 1996) (holding “recovery plans are for guidance purposes only”).
19
Second, another federal forest plan covering the Coquille Forest, the
Northwest Forest Plan (NFP), expressly establishes “Standards and Guidelines for
Management of Habitat for Late-Successional and Old-Growth Forest Related
Species Within the Range of the Northern Spotted Owl.”9 The NFP governs over
24 million acres of federal land in the Northwest, including the Coquille Forest.
The NFP was adopted in 1994 largely in response to concern over the survival of
the northern spotted owl. The NFP defines “standards and guidelines” as “[t]he
rules and limits governing actions, and the principles specifying the environmental
conditions or levels to be achieved and maintained.” Congress is presumed to have
been aware of the NFP when it adopted the CRA. See Dir., OWCP v. Perini N.
River Assocs., 459 U.S. 297, 319-20 (1983). That Congress required compliance
with the “standards and guidelines” of applicable federal forest plans two years
after the largest such plan specifically listed “standards and guidelines” suggests
Congress did not intend to use the term in a “generic” way, as Cascadia contends.
On the contrary, the more plausible inference is that Congress intended “standards
and guidelines” to refer specifically to identified “standards and guidelines” in
applicable federal forest plans.
9
It is undisputed the NFP’s standards and guidelines do not require
compliance with the Recovery Plan for the Northern Spotted Owl.
20
Third, we reject Cascadia’s argument that the Coos Bay Plan’s “objectives”
should be construed as “standards and guidelines” because the Coos Bay Plan uses
similar language to describe its objectives as the NFP uses to define “standards and
guidelines.” The Coos Bay Plan’s definition of “objectives” is substantially
broader than the NFP’s definition of “standards and guidelines.” As noted, the
NFP defines “standards and guidelines” as “[t]he rules and limits governing
actions, and the principles specifying the environmental conditions or levels to be
achieved and maintained.” The Coos Bay Plan defines “objectives” as
“[e]xpressions of what are the desired end results of management efforts.” The
NFP’s “standards and guidelines” establish concrete requirements, such as “when
an area is cut, 12 to 18 green trees per acre will be retained,” and “[t]here must be
25 to 30 percent of each block in late-successional forest at any point in time.” In
contrast, the Coos Bay Plan’s “objectives” establish general, high-level goals, such
as “[m]anage for the conservation of state listed species and their habitats to assist
the state in achieving management objectives,” and “[s]tudy, maintain or restore
community structure, species composition, and ecological processes of special
status plant and animal habitat.” Because we hold the CRA does not require
compliance with the Coos Bay Plan’s objective of compliance with recovery plans,
21
we affirm the district court’s conclusion that the Kokwel Project did not violate the
CRA.
AFFIRMED.
22
Counsel
Nicholas S. Cady (argued), Cascadia Wildlands, Eugene Oregon; Sean T.
Malone, Eugene, Oregon; Daniel R. Kruse, Eugene, Oregon, for plaintiffs-
appellants.
Sam Hirsch, Acting Assistant Attorney General, Department of Justice;
Stuart Gillespie, Brian C. Toth and Ellen J. Durkee (argued), Environmental &
Natural Resources Division, Department of Justice, Washington, D.C.; Mary Anne
Kenworthy, Office of the Regional Solicitor, Department of the Interior, Portland,
Oregon, for defendant-appellee.
Edmund C. Goodman (argued), Hobbs, Straus, Dean & Walker, LLP,
Portland, Oregon; Brett V. Kenney, North Bend, Oregon, for intervenor-appellee.
23