Biodiversity v. Thompson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 21 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DAVID S. LAMB; BRIAN
BRADEMEYER; BIODIVERSITY
ASSOCIATES; SIERRA CLUB,

Plaintiffs - Appellants,
v.

TOM L. THOMPSON, in his official
No. 00-1222
capacity as Deputy Regional Forester
for the Rocky Mountain Region of the
U.S. Forest Service; FRANK J.
CROSS, in his official capacity as
District Ranger for the Pactola/Harney
Ranger District; UNITED STATES
FOREST SERVICE,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 95-WM-2923)

Julie A. Teel (Robert B. Wiygul, Earthjustice Legal Defense Fund, Denver,
Colorado, on the briefs), Denver, Colorado, for the Plaintiffs-Appellants.

M. Alice Thurston, Attorney, (Lois J. Schiffer, Assistant Attorney General, Wells
Burgess and Jeffrey Dobbins, Attorneys, with her on the brief), Environment &
Natural Resources Division, U.S. Department of Justice, Washington, D.C., for
the Defendants-Appellees.
Before TACHA, Chief Judge, REAVLEY, * and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

This suit involves appellants’, Biodiversity Associates’, challenge to the

Forest Service’s approval of the Hollow Timber Sale in the Black Hills National

Forest. Appellants claim that in approving the challenged timber sale the Service

acted in violation of the Black Hills National Forest Plan and in violation of the

National Forest Management Act. The district court denied plaintiffs’ motion for

summary judgment, granted judgment in favor of the Forest Service, and

dismissed plaintiffs’ claims. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm, but for different reasons than those stated in the district court.

I

A. The National Forest Management Act

Recognizing the “vital importance of America’s renewable resources” and

noting the “highly complex” issues raised by the management of the national

forests, Congress enacted the National Forest Management Act of 1976, Pub. L.

No. 94-588, 90 Stat. 2949 (codified at 16 U.S.C. §§ 1600 et seq.) (“NFMA”).

The Act stated a “[c]ongressional policy of multiple use sustained yield

*
The Honorable Thomas M. Reavley, United States Court of Appeals for
the Fifth Circuit, sitting by designation.

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management,” 16 U.S.C. § 1601(d), and provided for the “development and

maintenance of land management plans for use on units of the National Forest

System,” § 1604(b). Specifically, NFMA requires that land and resource

management plans “provide for multiple use and sustained yield of the products

and services obtained” from national forest land and “in particular, include

coordination of outdoor recreation, range, timber, watershed, wildlife and fish,

and wilderness.” § 1604(e)(1). 1

1
Section 1604(e) refers to the Multiple-Use Sustained-Yield Act of 1960,
16 U.S.C. §§ 528–31, for definitions of the terms “multiple use” and “sustained
yield.” “Multiple use” is defined as:

The management of all the various renewable surface resources of
the national forests so that they are utilized in the combination that
will best meet the needs of the American people; making the most
judicious use of the land for some or all of these resources or related
services over areas large enough to provide sufficient latitude for
periodic adjustments in use to conform to changing needs and
conditions; that some land will be used for less than all of the
resources; and harmonious and coordinated management of the
various resources, each with the other, without impairment of the
productivity of the land, with consideration being given to the
relative values of the various resources, and not necessarily the
combination of uses that will give the greatest dollar return or the
greatest unit output.

16 U.S.C. § 531(a).

“Sustained yield of the several products and services” means the
achievement and maintenance in perpetuity of a high-level annual or
regular periodic output of the various renewable resources of the
national forests without impairment of the productivity of the land.
(continued...)

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 1. Forest Planning

NFMA establishes a two-step process for forest planning. See generally

Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1167–68 (10th Cir. 1999);

Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376

(9th Cir. 1998). For a particular forest entrusted to its management, the Forest

Service is first required to develop a land resource management plan (“LRMP”),

or forest plan, to prepare an accompanying environmental impact statement

(“EIS”), and to facilitate a public review process conducted in accordance with

the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. See

16 U.S.C. § 1604; 36 C.F.R. § 219.10(a), (b) (1982). 2 Second, the Forest Service

is required to implement the forest plan by approving or disapproving specific

projects. Projects must be consistent with the governing forest plan and are

subject to the procedural requirements of NEPA. 16 U.S.C. § 1604(i) (“Resource

plans and permits, contracts, and other instruments for the use and occupancy of

National Forest System lands shall be consistent with the land management

plans.”); 36 C.F.R. § 219.10(e) (providing that the “Forest Supervisor shall ensure

that . . . all outstanding and future permits, contracts, cooperative agreements, and

1
(...continued)
§ 531(b).
2
All references to NFMA’s implementing regulations in this Opinion are
to those in effect at the time of the agency action challenged herein.

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other instruments for occupancy and use of affected lands are consist[e]nt with

the plan.”); Colo. Envtl. Coalition, 185 F.3d at 1168.

2. Timber Harvesting

NFMA requires the Secretary of Agriculture to establish standards to

ensure that trees are not harvested until they reach the culmination of mean

annual increment of growth (“CMAI”). 16 U.S.C. § 1604(m). “CMAI is the age

at which the rate of growth among a stand of young trees peaks and after which

annual growth remains level or declines. CMAI is a traditional silvicultural

definition designed to maximize the volume yield from a given area.” (Appellees’

App. at 223 (Charles F. Wilkinson & H. Michael Anderson, Land and Resource

Planning in the National Forests 125 (1987)).) 3 The CMAI standard is subject to

statutory exceptions set forth in § 1604(m)(1) as well as other exceptions to be

established in accordance with § 1604(m)(2). 4

3
Silviculture is:

(1) Generally, the science and art of cultivating forest crops, based
on the study of the life history and general characteristics of forest
trees and stands, with particular reference to local factors; (2) more
particularly, the theory and practice of controlling the establishment,
composition, constitution, and growth of forests for varying
purposes.

(X A.R. at A-19.)
4
NFMA’s CMAI requirement and its exceptions are discussed in more
depth in Section IV of this Opinion.

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 B. The Black Hills National Forest

In 1983, a LRMP for the Black Hills National Forest 5 was implemented

pursuant to 16 U.S.C. § 1604. 6 The Plan “provides for the coordinated multiple

use of outdoor recreation, range, timber, watershed, wildlife and fish, and

wilderness in the management of the Black Hills National Forest, resulting in

sustained yields of goods and services for the benefit of the American people.”

(XI A.R. pt. 1, Record of Decision for Black Hills National Forest LRMP at 1.)

The Black Hills Plan contains a number of specific habitat management

provisions designed to meet the statutory goal of providing a diversity of plant

and animal communities in the National Forests. See 16 U.S.C. § 1604(g)(3)(A)

(requiring the Secretary of Agriculture to establish regulations insuring

management for provision of wildlife and fish in the National Forests);

§ 1604(g)(3)(B) (requiring the Secretary of Agriculture to establish regulations

providing for diversity of plant and animal life in the National Forests); 36 C.F.R.

§ 219.19. Among those provisions is a general direction to provide raptor habitat

accompanied by a guideline regarding the specific proportions of old growth

5
This forest plan is variously referred to throughout the opinion as “the
Plan,” “the Forest Plan,” “the Black Hills Plan,” and the “1983 Plan.”
6
During the period in which this case has been pending in the agency and
in the federal courts, a new forest plan for the Black Hills has been approved.
Because the project at issue was approved under the 1983 Plan, however, we need
not consider the new plan.

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timber that should be maintained to achieve that provision. The goshawk, a kind

of raptor, is designated as a sensitive species as well as a management indicator

species for the Black Hills. A management indicator species is one whose

“population changes are believed to indicate the effects of management

activities.” 36 C.F.R. § 219.19(a)(1).

1. Hollow Project Proposals

The dispute before us centers on the Hollow Project Area, an area of

approximately 3861 acres 7 that lies within the Black Hills National Forest.

Because the Hollow Project Area was failing to meet the “Desired Future

Condition” (“DFC”) set forth in the Forest Plan (II A.R. at II-3), in June 1995 the

Pactola/Harney Ranger District of the Black Hills National Forest issued an

Environmental Assessment (“EA”) of the Hollow Project Area. The EA proposed

certain “vegetative management activities” (id. at II-31), including the Hollow

Timber Sale, which were specifically designed to “move toward meeting Forest

Plan goals and objectives” (id. at II-32). Those goals and objectives included

7
Of the 3861 acres in the Hollow Project Area, 2788 are National Forest
System land, and 1073 are privately owned. The Forest Plan assigns different
“management emphasis” to individual portions of the Forest in order to facilitate
the Forest’s multiple-use objectives. (II A.R. at II-32.) The Hollow Project Area
is divided into three different management areas: (1) fifty acres are designated for
riparian area management; (2) 188 acres are designated for roaded natural
recreation opportunities; and (3) 2550 acres are designated for wood fiber
production and utilization.

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increased yield of timber products, habitat diversity, visual diversity, management

of fire and insect risks, conservation of soil and water resources, and maintenance

of “aesthetic values.” (Id. at II-33 to II-34.) Among the activities proposed to

meet the DFC of the Plan were: overstory removal, commercial thinning,

commercial timber harvests, patch clearcuts, pine removal from meadows,

hardwood release, and precommercial thinning.

The EA set forth four alternative project proposals. Aside from the no-

action alternative, Alternative 1, the proposals involved some variation of a

timber sale. Alternative 2 “would treat the most acreage”; Alternative 3 would

“treat the least acreage” and maintain “more cover for wildlife species”; and

Alternative 4 would involve the “least amount of road construction.” (Id. at II-

40.) Any of the four proposals, according to the EA, would result in four percent

of the Hollow Project Area being “designated as old growth.” (Id. at II-47.) Only

two percent of the designated old growth was actually old growth at the time of

the EA; the rest of the designated old growth stands were in “various structural

stages.” (Id. at II-69.) 8

8
The Forest Service uses a grading system to identify the successional
stage of a particular area of forest. The stages are as follows, from earliest
successional stage to latest: stage 1, grass/forb, the period in which “grasses and
forbs are the dominant vegetation” (X A.R. at A-7); stage 2, shrub-seedling; stage
3, sapling-pole; stage 4, mature; and stage 5, old growth.

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 The specific environmental effects of each of the proposed alternatives are

analyzed in the EA. The raptor management section acknowledges “concern[s]

that populations and reproduction of the goshawk are declining in forests” and

that these “declines may be associated with forest changes caused by timber

harvesting. However, fire suppression, livestock grazing, drought, and toxic

chemicals may be involved.” (Id. at II-79.) The analysis then concludes that

Alternatives 2 and 4 “have the lowest habitat potential for goshawks” and that

Alternative 2 provides less mature dense canopy stands, i.e., goshawk nesting

habitat, than Alternative 4. (Id.) The environmental effects section on

silviculture states that the patch clearcut proposals of each of the action

alternatives need not meet the requirements of CMAI because the clearcuts “will

be created for other than timber management purposes . . . . 36 CFR

219.16(2)(iii) . . . .” (Id. at II-65 to II-67.) The EA also concludes that each of

the action alternatives will result in meeting the grass/forb habitat diversity

requirements of the Plan.

Chapter 2 of the EA sets forth mitigation measures to be used in reducing

“the potential adverse impacts that may result from implementing the proposed

activities.” (Id. at II-41.) One of the mitigation measures involves special

treatment of goshawk nest sites, although a 1993 survey showed no active

goshawk nests in the Hollow Project Area.

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 2. Hollow Project Approval

After reviewing the EA of the Hollow Project Area District Ranger, Frank

Cross, approved Alternative 2—with some modifications—in a Decision Notice

and Finding of No Significant Impact (“FONSI”) dated June 20, 1995. Before

analyzing the four alternatives, Cross stated that the proposals were designed to

achieve ten goals, including (1) provision of short- and long-term sources of

wood fiber, (2) management of old growth stands and grass/forbs to meet the

Plan’s minimum requirements, (3) enhancement of tree species other than pine to

increase vegetative diversity, (4) protection of threatened, endangered, and Forest

Service Sensitive plants and animal species, and (5) management of fuels to

reduce the risk of catastrophic wildfire. The approved project, Alternative 2,

provides for the cutting of 1.808 million board feet of sawtimber and 598 cubic

feet of products other than logs on 906 acres of land. Additionally, the project

provides for 3.1 miles of new road construction and 1.7 miles of road

reconstruction.

C. Procedural Background

In August 1995, several plaintiffs, including appellants, Biodiversity

Associates, administratively appealed the Forest Service’s decision approving the

Hollow Project. Plaintiffs objected to the decision on the grounds that (1) the

Hollow Timber Sale would violate the CMAI standard, (2) the approved Sale

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would log the most mature trees of any of the alternatives and would thus destroy

the most goshawk and raptor habitat while only designating younger stands as

“future” old growth and therefore future raptor habitat, and (3) the Forest Service

had prematurely painted trees for sale and logging before public comment. In a

decision dated September 27, 1995, Tom Thompson, Deputy Regional Forester,

denied plaintiffs’ appeal. Thompson concurred with the Appeal Reviewing

officer’s conclusion that Cross’s decision did not violate law, regulation or

policy.

The instant suit is before us on plaintiffs’ appeal from the district court’s

March 28, 2000, order denying their request for summary judgment and

dismissing their complaint with prejudice. 9 Specifically, appellants argue that the

district court erred in its conclusions regarding raptor habitat and the CMAI

requirements of 16 U.S.C. § 1604(m)(2).

II

We review the district court’s summary judgment order de novo and apply

“the same legal standard employed by the district court.” Kingsford v. Salt Lake

City Sch. Dist., 247 F.3d 1123, 1127–28 (10th Cir. 2001) (citing Fed. R. Civ. P.

9
The district court accepted the January 15, 1997, recommendation of the
magistrate judge. The denial of summary judgment to plaintiffs resulted in
dismissal with prejudice because plaintiffs conceded that there were no genuine
issues of material fact for the district court to consider.

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56(c)). Because appellants stipulated that there are no genuine issues of material

fact, we need only determine whether, under Rule 56(c), appellee was entitled to

judgment as a matter of law.

We review the Forest Service’s final decision under the Administrative

Procedure Act, 5 U.S.C. §§ 701–06, to determine whether that decision was

“arbitrary, capricious, an abuse of discretion or otherwise not in accordance with

the law.” Colo. Envtl. Coalition, 185 F.3d at 1167 (quoting 5 U.S.C.

§ 706(2)(A)). 10 Although the arbitrary and capricious standard is a “narrow one,”

we are required to “engage in a substantial inquiry[,] . . . a probing in-depth

review.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 416

(1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

In determining whether the agency’s action was arbitrary, we must “consider

whether the decision was based on a consideration of relevant factors and whether

there has been a clear error of judgment.” Id. at 416. Although “‘[w]e may not

supply a reasoned basis for the agency’s action that the agency itself has not

given,’” we will “‘uphold a decision of less than ideal clarity if the agency’s path

may reasonably be discerned,’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

10
We owe no deference to the district court’s review of the agency’s action
and conduct a de novo review of the administrative record. Colo. Envtl.
Coalition, 185 F.3d at 1167 n.5; Hoyl v. Babbitt, 129 F.3d 1377, 1382 (10th Cir.
1997).

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Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., 419 U.S. 281, 286 (1975)). In other words, we can

not “substitute [our] judgment for that of the agency.” Overton Park, 401 U.S. at

416. An agency’s decision will be deemed arbitrary and capricious if

the agency . . . relied on factors which Congress had not intended it
to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.

Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997) (quoting

Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).

III

Appellants first argue that the Forest Service erred in approving the Hollow

Timber Sale despite the undisputed fact that the Hollow Project Area currently

fails to meet the raptor habitat provisions of the Black Hills Forest Plan. The

lynchpin of the argument is that the “raptor habitat acreage requirement contained

in the Forest Plan is a mandatory requirement” such that allowing the Forest

Service to move the Black Hills farther away from the raptor standard is contrary

to the clear terms of the Forest Plan. (Appellants’ Br. at 15.) Under the

reasoning of the lower court, appellants assert, there is “nothing to prevent the

Forest Service from designating saplings as ‘future’ old growth, and cutting all

the mature raptor habitat.” (Id.) Citing 16 U.S.C. § 1604(g)(3)(B) and 36 C.F.R.

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§§ 219.19, 219.27(a)(6), 11 appellants state that the Black Hills must be managed

to provide diversity of animal communities. Finally, appellants cite 16 U.S.C.

§ 1604(i) and 36 C.F.R. § 219.10(e) for the proposition that the “Forest Service

must make all resource management decisions in accordance with [the raptor

habitat] requirement.” (Appellants’ Br. at 16.)

In response, the Service argues that the diversity unit in which the Hollow

Project Area lies does not currently meet the raptor habitat provision and that the

two percent of old growth that does exist will not decline under any of the

alternatives proposed in the EA—not even the alternative chosen. The Service

further asserts that the proposed project is the result of an exercise of its

particular expertise in determining how to best achieve the multiple-use

requirements of NFMA and of the applicable forest plan. Ultimately, it argues the

project chosen was devised to meet the diversity directions of the hundreds of

standards in the Black Hills Plan, including the allegedly competing raptor habitat

and grass/forb standards, neither of which is met in the Forest’s current condition.

11
36 C.F.R. § 219.19(a) states that planning alternatives “shall establish
objectives for the maintenance and improvement of habitat for management
indicator species . . . to the degree consistent with overall multiple use
objectives.” (Emphasis added.) Similarly, 36 C.F.R. § 219.27(a)(6) states that
“[a]ll management prescriptions shall . . . [p]rovide for adequate fish and wildlife
habitat to maintain viable populations of existing native vertebrate species and
provide that habitat for [indicator species] is maintained and improved to the
degree consistent with multiple-use objectives established in the plan.”
(Emphasis added.)

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According to that view, achievement of the raptor habitat standard is necessarily a

long-term prospect, given the current state of the Black Hills, which the “Hollow

Timber Sale is reasonably designed to meet.” (Appellees’ Br. at 28.) Although

the Service acknowledges that Alternative 2 results in less raptor nesting habitat

because it retains fewer structural stage 4c stands than Alternative 3, the Service

asserts Alternative 2 is preferable because in the long term it provides for

production of more timber, addresses a greater area of the forest, increases visual

variety of vegetation, best addresses increased fire danger from catastrophic

wildfires, and results in the greatest economic return.

Because appellants are correct in asserting that the Black Hills must be

managed to provide for a diversity of animal and plant communities, see, e.g., 16

U.S.C. § 1604(g)(3)(B), and that the Forest Service must make management

decisions in accordance with the Black Hills Plan, see, e.g., 16 U.S.C. § 1604(i),

we must only decide whether the raptor habitat provision is a mandatory,

immediately binding, overriding requirement and, if it is not, whether the

Service’s approval of Alternative 2 was arbitrary and capricious in light of the

Plan’s raptor habitat provision. 12 The Service argues that the “provision of raptor

12
Appellants do not challenge the validity of the Plan itself but rather the
Service’s interpretation of and adherence to the Plan’s requirements, namely the
raptor habitat provision. Accordingly, we are not required to determine whether
the Plan meets the requirements of NFMA.

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habitat is not an overriding requirement which must be met to comply with the

1983 Forest Plan and NFMA’s diversity requirements, given the competing goals

and constraints embodied in the 1983 Forest Plan.” (Appellees’ Br. at 32.) Our

standard of review requires us to give the Service’s interpretations of its own

regulations, in this case the provisions of the 1983 Forest Plan, “controlling

weight unless [they are] plainly erroneous or inconsistent with the regulation[s].”

Stinson v. United States, 508 U.S. 36, 45 (1993) (quotation omitted) (citing cases

for the same proposition); Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir. 1999)

(noting that “the Forest Service’s interpretation of its Forest Plan should receive

great deference from reviewing courts.”); see also Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994) (noting that an agency’s interpretation of its

own regulations is entitled to “substantial deference”). In order to determine

whether the Service’s interpretation of the raptor habitat provision is reasonable,

we must examine the structure of the Black Hills Plan.

The Record of Decision approving the 1983 Black Hills Forest Plan states

that the Plan “establishes broad direction and does not attempt to anticipate and

resolve every short-term problem or conflict which may arise in man[a]gement of

the Black Hills National Forest.” (XI A.R. pt. 1, Record of Decision for Black

Hills National Forest LRMP at 2.) Listed as a “[m]ajor feature[]” of the Plan is

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that it “identifies the desired condition of the Black Hills National Forest to be

achieved in the future.” (Id. at 1.)

The first important chapter of the LRMP for the Black Hills National Forest

describes the “management situation,” including the then-present condition of the

Forest and the expected future condition after implementation of the Plan. (Id. at

II-1.) In the section describing the Forest’s future, the Plan notes its “key feature

. . . is its multiple use mix of outputs. No resource output is emphasized to the

extent that standards for another resource are violated.” (Id. at II-27.) Next, the

LRMP for the Black Hills describes its “long-range management direction,”

which is to be used “in analyzing proposals by prospective forest users” and in

implementing the Forest Plan. (Id. at III-1.) Management direction is broken

down into Forest Direction, i.e., “goals, objectives and management requirements

which are generally applicable to the entire Forest,” and Management Area

Direction, i.e., “management requirements specific to individual areas within the

Forest.” (Id.) The Forest Direction section consists of: (1) goals—“concise

statements describing a desired condition to be achieved sometime in the future”

(id. at III-3), (2) objectives—“concise, time-specific, measurable results that

respond to the goals” (id. at III-5), and (3) management requirements—“the

baseline conditions that must be maintained throughout the Forest in carrying out

th[e] Plan” (id. at III-10). Management requirements are further broken down

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into three successive categories: management activities, general direction

statements, and standards and guidelines. “Management activities are work

processes that are conducted to produce, enhance, or maintain levels of outputs,

or to achieve administrative and environmental quality objectives.” (Id.) General

direction statements “specify the actions, measures, or treatments . . . to be done

when implementing the management activity or the condition expected to exist

after the general direction is implemented.” (Id.) Finally, standards and

guidelines “are quantifications of the acceptable limits within which the general

direction is implemented.” (Id.)

Found within the Plan’s Management Requirements—the “baseline

conditions that must be maintained throughout the Forest in carrying out th[e]

Plan”—is the raptor habitat acreage provision at issue in this case. To implement

the “General Direction” to “[p]rovide raptor habitat,” a quantitative standard

instructs the Service to “[p]rovide 250 acres of old growth timber per 5,000 acres

in 20–30 acre blocks.” (Id. at III-16.)

Although we find the structure of the Black Hills Plan far from lucid or

user-friendly, we can not conclude the Service unreasonably interpreted the Plan

when it determined that the raptor habitat acreage provision is not overriding. As

an initial matter, the language of the 1983 Plan itself is forward-looking: it

indicates a desire to achieve raptor habitat through provision of a specific

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quantity of old growth forest. The word “provide” can be reasonably interpreted

as meaning to provide what does not currently exist. Along the same lines, the

relevant management activity is not only to maintain current habitat but to

improve overall habitat—a necessarily forward-looking goal.

The Service’s argument that it is required to balance the many standards set

forth in the 1983 Plan is not inconsistent with the structure and the language of

the Plan itself, nor is it, as appellants assert in their reply brief, a “post-hoc

construction by lawyers.” (Appellants’ Reply Br. at 1.) First, the Plan expressly

states that its “key feature . . . is its multiple use mix of outputs. No resource

output is emphasized to the extent that standards for another resource are

violated. An integrated mix of resource outputs is provided rather than a single

function emphasis that maximizes some outputs to the exclusion of others.” (XI

A.R. pt. 1 at II-27.) Second, in the FONSI approving the Hollow Timber Sale,

Ranger Cross explicitly based his approval of modified Alternative 2 on its

provision of the “best balance between the issues identified during the scoping

process,” one of those issues being the provision of adequate raptor habitat, i.e.,

old growth forest. (II A.R. at II-11.) Although the Service’s attempt to paint the

grass/forb and raptor habitat provisions as competing appears to be post hoc and,

more offensively, a gratuitous attempt to liken this case to Sierra Club v. United

States Forest Service, 878 F. Supp. 1295 (D.S.D. 1993), our review of the FONSI

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shows the Service in fact chose Alternative 2 because it concluded that alternative

better addressed a number of management issues, including the grass/forb habitat

requirements of the Forest Plan. Specifically, the FONSI states Alternative 2 was

superior because (1) it “provides higher timber yield[] than alternatives 1, 3 and

4,” (2) it “thins and treats fuels on more acres than other alternatives,” thereby

reducing the destructive potential of future forest fires, (3) it “more completely

me[ets]” the “objectives of providing wood fiber production” than the other

alternatives, (4) it results in more structural variety of ponderosa pine stands,

(5) it “treats more acres and increases the visual variety of the vegetation,” and

(6) it “would result in the greatest [economic] return of all action alternatives.” 13

(II A.R. at II-11 to II-14.) 14 Notably, the Service also identified Alternative 2’s

potential drawbacks in the analysis: for instance, the fact that the chosen

alternative calls for construction of additional roads and would “result in slightly

more impacts than Alternatives 3[] and 4” with regard to the Plan’s standards for

13
The economic evaluation admittedly “did not weigh heavily in [the
Service’s] decision.” (II A.R. at II-14.)
14
The explicit analysis in the FONSI of why Alternative 2 is superior to
the other alternatives demonstrates the weakness of appellants’ argument that the
“Service chose the alternative that moved the area furthest away from the
requirements of the Forest Plan.” (Appellants’ Reply Br. at 2.) Although
Alternative 2 admittedly moves the Forest farther away, at least in the short term,
from the raptor habitat provision of the Plan, as discussed above, it moves the
Forest closer to other provisions of the Plan, furthering the overarching multi-use
objectives.

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soil, water, and riparian habitat. (Id. at II-11, II-13.) The FONSI additionally

notes that Alternative 2 “favors wildlife species which prefer early successional

stages over wildlife species which prefer mature, old growth forests” but

highlights the accompanying increase in the “variety of vegetation types and ages

across the project.” (Id. at II-15.)

In sum, we conclude the Service’s interpretation of the raptor acreage

habitat provision as not immediately binding and overriding is reasonable.

Moreover, our review of the Forest Plan and of the FONSI do not lead us to

conclude that the Service acted arbitrarily or capriciously when it adopted

Alternative 2 even though that alternative admittedly favors animal species that

prefer earlier successional stages of forest. The FONSI shows the Service

actively and explicitly balanced, on the record, the provisions of the Forest Plan

and chose Alternative 2 because, in the Service’s expert assessment, it best

balanced the many issues identified in the scoping process and best met the multi-

use and diversity requirements of the Forest Plan. Although we may well have

reached a different conclusion if faced with the decision regarding raptor habitat

in the first instance, our standard of review does not allow us “to substitute [our]

judgment for that of the agency” where, as here, the agency’s decision “was based

on a consideration of relevant factors,” does not involve a “clear error of

judgment,” and is accompanied by an explanation that comports with the evidence

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in the record. Overton Park, 401 U.S. at 416; Friends of the Bow, 124 F.3d at

1215.

IV

Appellants’ second argument in this appeal involves the interpretation and

application of 16 U.S.C. § 1604(m), which provides for the establishment of

standards to ensure CMAI and for exceptions to those standards. We review an

agency’s construction of a statute which it administers under the familiar Chevron

two-step analysis. First, we ask “whether Congress has directly spoken to the

precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842 (1984). “If the intent of Congress is clear, that is the end

of the matter . . . [because we] must give effect to the unambiguously expressed

intent of Congress.” Id. at 842–43. If, however, “the statute is silent or

ambiguous with respect to the specific issue, the question . . . is whether the

agency’s answer is based on a permissible construction of the statute.” Id. at 843.

The CMAI provisions of NFMA state:

The Secretary shall establish—
(1) standards to insure that, prior to harvest, stands of trees
throughout the National Forest System shall generally have reached
[CMAI] . . . : Provided, That these standards shall not preclude the
use of sound silvicultural practices, such as thinning or other stand
improvement measures: Provided further, That these standards shall
not preclude the Secretary from salvage or sanitation harvesting of
timber stands which are substantially damaged by fire, windthrow or
other catastrophe, or which are in imminent danger from insect or
disease attack; and

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 (2) exceptions to these standards for the harvest of particular
species of trees in management units after consideration has been
given to the multiple uses of the forest including, but not limited to,
recreation, wildlife habitat, and range and after completion of public
participation processes utilizing the procedures of subsection (d) of
this section.

16 U.S.C. § 1604(m). The public participation subsection referred to in

§ 1604(m)(2) states:

The Secretary shall provide for public participation in the
development, review, and revision of land management plans
including, but not limited to, making the plans or revisions available
to the public at convenient locations in the vicinity of the affected
unit for a period of at least three months before final adoption,
during which period the Secretary shall publicize and hold public
meetings or comparable processes at locations that foster public
participation in the review of such plans or revisions.

§ 1604(d).

Appellants assert that any exceptions to CMAI that are not self-executing

under § 1604(m)(1) must be subject, pursuant to § 1604(m)(2), to the same public

participation processes to which a forest plan is subject under § 1604(d) so that

the “public will have a say in important decisions concerning public resources.”

(Appellants’ Br. at 19; see also id. at 18.) The Hollow Timber Sale, appellants

continue, violates NFMA because the Forest Service failed to solicit the required

public participation for practices which, when employed, would violate CMAI.

Finally, appellants argue that the Service’s interpretation of § 1604(m)(2) renders

the section redundant and without purpose. In order to “give effect . . . to every

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clause and word” of NFMA, it must be that the exceptions to CMAI themselves

are required to go through the “public participation processes utilizing the

procedures of [§ 1604(d)].” Bennett v. Spear, 520 U.S. 154, 173 (1997).

The Service answers that the challenged practices meet the requirements of

§ 1604(m)(2) because they were subject to public participation as part of the

overall forest plan at the time the Plan itself was subject to public participation

under § 1604(d). (See II A.R. at II-64 (“Silviculture methods . . . are consistent

with those methods specified in the Black Hills Land and Resource Management

Plan (Forest Plan pages III-106 through III-219).”).) Moreover, it argues, the

silvicultural practices approved in the Plan “inherently require cutting of trees

before achieving CMAI, if a sale area is currently deficient in either the desired

variety of vegetation or habitat.” (Appellee’s Br. at 42.) The Service does not

read the statute to require explicit highlighting of exceptions to CMAI or to

require subjecting such exceptions to special public participation. Instead, the

Service reads § 1604(m)(2) as requiring it to “establish exceptions to the CMAI

standard after consideration of the multiple uses of the affected forest and after

the specified public participation required for the development . . . of the . . .

forest plan which considers these multiple uses.” (Id. at 36 (emphasis added).) In

accordance with this interpretation, the district court concluded “that the public

participation in the development of the Forest Plan satisfied the exception to the

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CMAI standard.” Biodiversity Assocs. v. Thompson, No. 95-WM-2923, slip op.

at 3 (D. Colo. March 28, 2000).

We apply the traditional canons of statutory construction when interpreting

a statute. Among these canons is the “cardinal principle . . . that it is our duty to

give effect, if possible, to every clause and word of a statute rather than to

emasculate an entire section.” Bennett, 520 U.S. at 173 (quoting United States v.

Menasche, 348 U.S. 528, 538 (1955) (quoting NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 30 (1937), and Montclair v. Ramsdell, 107 U.S. 147, 152

(1883))) (internal quotations and alterations omitted); see also Matthieson v. Banc

One Mortgage Corp., 173 F.3d 1242, 1244 (10th Cir. 1999) (stating that “[t]he

starting point of every statutory construction problem is with the language of the

statute itself” and noting our duty to give effect to every clause and word of a

statute); Sundance Assocs., Inc. v. Reno, 139 F.3d 804, 810 (10th Cir. 1998);

United States v. Wicklund, 114 F.3d 151, 154 (10th Cir. 1997) (applying the

principle of statutory construction requiring a court to give effect to every word,

reversing district court’s interpretation of the statute, and concluding the statute

was unambiguous). Applying this principle to the plain language of

§ 1604(m)(2), we arrive at the same conclusion as appellants: the Service’s

interpretation of § 1604(m)(2) renders that subsection’s public participation

requirement redundant and without purpose. If, as the Service argues,

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§ 1604(m)(2) permits the Service to establish exceptions to CMAI so long as the

Plan itself has been subject to public participation, the public participation

requirement of § 1604(m)(2) is rendered surplusage because the Plan must

necessarily go through § 1604(d) whether or not CMAI is at issue. 15 Because we

conclude NFMA § 1604(m)(2) is not ambiguous and Congress’s intent is clear

from the structure of the statute, 16 we need not defer to the Service’s

interpretation. Chevron, 467 U.S. at 842–43. We hold that under § 1604(m)(2)

an exception to CMAI itself must explicitly be subject to public participation.

The next step in our analysis is to determine whether the challenged

exceptions to CMAI contained in the Hollow Timber Sale were the subject of

public participation. As an initial matter, we address the Service’s argument that

the now-challenged exceptions to CMAI met the public participation requirement

15
In addition, the statute does not say “after completion of the public
participation process of § 1604(d).” Instead, it says “after completion of public
participation processes utilizing the procedures of [§ 1604(d)].” That language
shows congressional intent to employ the processes of subsection (d) in another
context.
16
Even if we were to assume the statute is ambiguous, we would conclude
in the second step of Chevron that the Service’s interpretation of § 1604(m)(2)
cannot stand because it renders words in the statute “mere surplusage.”
Sundance, 139 F.3d at 810. “Although we afford deference to the [agency’s]
interpretation of a statute under [its] purview, we cannot overlook an
interpretation that flies in the face of the statutory language.” Id.; see also MCI
Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994) (“An
agency’s interpretation of a statute is not entitled to deference when it goes
beyond the meaning that the statute can bear.”).

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of § 1604(m)(2) because the management practices that will cause the exceptions

were subject to public participation at the time of the approval of the Black Hills

Plan. After careful review of the record, we reject this argument. Not only are

we unable to locate any discussion in the Black Hills Plan concerning exceptions

to CMAI, but we are unable to conclude that the management practices proposed

therein “inherently require cutting of trees before achieving CMAI.” (Appellee’s

Br. at 42.) It may be obvious to the Forest Service with its specialized knowledge

of silvicultural practices that the employment of certain practices will entail

exceptions to CMAI, but it is not clear or even discernable to this Court. Nor

does the Service provide evidence that these “inherent” exceptions to CMAI were

obvious to the public at the time the 1983 Plan was subject to public participation.

Congress’s intent is without effect unless those who lack specialized knowledge

are able to recognize proposed exceptions to CMAI and are able to participate

meaningfully in the associated public processes. Although we give full latitude to

agencies in their areas of expertise, when Congress has clearly commanded an

agency to seek the public’s input the agency violates its statutory duty when it

conceals its plans in the specialized terminology of its expertise.

Although we reject the Service’s argument and the district court’s

conclusion that the public participation requirements of § 1604(m)(2) were met at

the time of the approval of the Black Hills Plan, we ultimately conclude that those

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requirements were met at the time of the approval of the Hollow Project. The

record establishes that the different action alternatives considered in the Hollow

Project EA necessarily entailed exceptions to CMAI and that these exceptions

were subject to public participation. 17 The apparentness of the exceptions to

CMAI is established by, among other things, the Service’s own mention of the

CMAI issue in the EA (id. at II-65), the discussions in the EA that all of the

action alternatives involved removal of younger trees, i.e., trees which had not

reached CMAI (see, e.g., id. at II-68, Ponderosa Pine Structural Stages Table

(showing clearly that each of the action alternatives would result in fewer trees in

stages 3b and 3c than the no-action alternative)), and the fact that Biodiversity

and at least one other member of the public raised CMAI concerns during the

public participation processes associated with the EA (II A.R.at II-124 to II-125,

Hollow Draft EA Comments, March 8, 1995, signed by Black Hills Group, Sierra

Club and Biodiversity Associates; id. at II-175, March 19, 1995, letter by Nancy

Hilding). 18 Because the Hollow Project EA sufficiently alerted the public that the

17
We do not conclude, as a matter of law, that compliance with NEPA’s
public participation procedures is sufficient to meet the requirements of NFMA
§ 1604(d). Instead, our review of the record demonstrates that the public
participation processes associated with the EA in this particular case were
sufficient to meet NFMA’s command.
18
We emphasize that our conclusion that the Service met the commands of
§ 1604(m)(2) is limited to the particular circumstances of this case. We do not
penalize appellants for any specialized knowledge they may have about
(continued...)

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actions considered entailed exceptions to CMAI and because those exceptions

were subject to public participation at the time of the public scoping process

associated with the Hollow Project EA, we conclude that the Service complied

with the commands of § 1604(m)(2).

V

In sum, we conclude that the Forest Service acted neither arbitrarily nor

capriciously with regard to the raptor habitat provisions of the 1983 Black Hills

Forest Plan when it approved Alternative 2 of the Hollow Timber Sale. Although

we reject as unsupportable the Service’s interpretation of § 1604(m)(2), we

conclude that the Service did not violate its duties under that section. For the

alternative reasons offered in this Opinion, the summary judgment order of the

district court is AFFIRMED. The appeal is DISMISSED.

18
(...continued)
silvicultural practices and their environmental effects that allowed them to spot
CMAI concerns that the general public was not able to discern. If the Hollow
Project EA did not have clear indicators that the CMAI standard would be
compromised in enacting the proposed projects, appellants’ expressed concerns
regarding CMAI, standing alone, would not have been sufficient to demonstrate
the Service met the commands of § 1604(m)(2)—i.e., to demonstrate the Service
explicitly subjected the proposed exceptions to CMAI to public participation
utilizing the procedures of § 1604(d).

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