Utah Environmental Congress v. Richmond

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 30, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U TA H EN V IR ON M EN TA L
CONGRESS, a U tah nonprofit
corporation; H IG H U IN TA S
PRESERVATION COUNCIL, a Utah No. 06-4059
nonprofit corporation,

Plaintiffs - Appellants,

v.

EILEEN RICHM OND, in her official
capacity as Acting Forest Supervisor
of the Ashley National Forest; DA LE
BOSW ORTH, as Chief of the Forest
Service; UNITED STA TES FO REST
SERVICE,

Defendants - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D .C. No. 05-CV-72-TC)

Sarah Tal, Salt Lake City, Utah, for Plaintiffs - Appellants.

M ark R. Haag, (Todd S. Aagaard, and Sue Ellen W oolridge, Assistant Attorney
General, Environment & Natural Resources Division, Department of Justice,
W ashington, D.C., and Elise Foster, Of Counsel, Office of the General Counsel,
United States Department of Agriculture, Ogden, Utah, on the brief), for
Defendants - Appellees.
Before, KELLY, EBEL, Circuit Judges and, M URG UIA * , District Judge.

KELLY, Circuit Judge.

Plaintiff-Appellant Utah Environmental Congress filed suit in federal

district court challenging the Forest Service’s approval of the Trout Slope W est

Timber Sale project in the Ashley National Forest. UEC brought its suit pursuant

to § 706 of the A dministrative Procedure A ct, arguing that the Forest Service’s

approval of the project was “arbitrary, capricious, an abuse of discretion, or

otherw ise not in accordance with law .” See 5 U.S.C. § 706(2)(A ); Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Specifically,

UEC argued that the Forest Service failed to adequately monitor the Colorado

River Cutthroat Trout (a management indicator species), that it improperly

assessed the project’s impact on old-growth trees and that it failed to comply with

old-growth standards, that it failed to maintain water quality standards, and that it

failed to assess the cumulative effects of the project on the Colorado River

Cutthroat Trout and water quality.

W e exercise jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons

stated below, we affirm in part, reverse in part, and remand.

*
The Honorable Carlos M urguia, District Judge, United States District
Court for the District of Kansas, sitting by designation.
2
 Background

The Ashley National Forest consists of 1,384,132 acres of land in

northeastern Utah and Wyoming. The Trout Slope W est project (“the project”)

area comprises 18,500 acres of land in the Vernal Ranger District of the Ashley

National Forest in Utah. The project area includes portions of three watersheds

and is covered with pine, spruce, fir, and aspen trees. As a result of a 1980s

beetle infestation, a significant number of trees in the project area are dead or

fallen. The project was designed to clear out these dead or fallen trees, recover

their economic value, and improve habitat within the project area. The project

includes a number of mitigation measures to protect the watersheds from

increased run-off and erosion resulting from the trees’ removal.

The Forest Service began planning the project in 1998. In February 2004,

it issued a draft Environmental Impact Statement (“EIS”) and sought public

comm ent. At the same time, it issued a Biological Evaluation and Biological

Assessment addressing the project’s expected impact on sensitive, threatened, and

endangered species. The assessment concluded that the project’s impact on

Colorado River Cutthroat Trout 1 (“CRCT”) would be minimal. After reviewing

1
Cutthroat trout are large trout that resemble rainbow trout but that are
distinguished by “red or orange markings on the lower jaw.” cutthroat trout.
(n.d.). The A merican Heritage D ictionary of the English Language (4th ed. 2000),
retrieved M arch 19, 2007, from http://www.dictionary.com. Colorado Cutthroat
Trout (Oncorhynchus clarki pleuriticus) have historically inhabited the most cool
water habitats of the Colorado River drainage in Colorado, southern W yoming,
(continued...)
3
public comments, the Forest Service issued a Record of Decision (“ROD”) and

approved the project on July 1, 2004.

The ROD discussed the project’s expected impact on water quality, stream

channels, fisheries, and other aquatic resources. It concluded that the project’s

adverse effects would be adequately mitigated by requiring that no trees be

removed w ithin 300 feet of any fish-bearing stream, or within 150 feet of any

other stream, pond, lake, reservoir, or wetland. The ROD also concluded that the

project was consistent with the Ashley National Forest Plan (“forest plan”)

standards for old-growth trees and that it would not have a significant impact on

the amount of old-growth trees in the forest.

Utah Environmental Congress (“UEC”) challenged the approval of the

project through administrative review. Those appeals were denied. UEC then

filed its complaint in the district court under § 706 of the APA , alleging that the

Forest Service’s approval of the project violated the National Forest M anagement

Act (“NFM A”) and its implementing regulations, the National Environmental

Policy Act (“NEPA ”), the forest plan, the Forest Service M anual, and Department

of A griculture Regulations. The district court affirmed the Forest Service’s

approval of the project.

1
(...continued)
eastern Utah, and extreme northwestern New M exico and northeastern Arizona.
4
 Discussion

I. The Federal Regulatory Framew ork

A. National Forest M anagement Act

The Forest Service is an agency within the Department of Agriculture. It

manages the National Forest System under a multitude of federal statutes and

regulations. Among those statutes is the NFM A, which is primarily concerned

with planning. It directs the Forest Service to develop a land and resource

management plan for each unit of national forest. See 16 U.S.C. § 1604(a),(e).

There are two levels of planning under the NFM A: program planning and

project planning. See Ohio Forestry Assn. v. Sierra Club, 523 U.S. 726, 729-30

(1998); Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th

Cir. 2006). Program planning refers to the Forest Service’s creation of general,

forest-wide planning goals set out in a forest plan. See Utah Envtl. Cong. v.

Bosworth, 443 F.3d 732, 737 (10th Cir. 2006) [herinafter UEC III]. 2 Because the

Forest Service must account for a variety of interests, each forest plan

contemplates that the forest will be used for multiple purposes, including

“outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.”

Id. (citing 16 U.S.C. § 1604(e)(1)). Project planning refers to the Forest Service’s

2
To date, UEC has been a named party in four other published cases
involving similar issues of forest planning and management. For clarity, we refer
to each respective case with a Roman numeral corresponding to the order in
which it was published.
5
approval or disapproval of specific projects that implement (and consequently

must comply with) the forest plan. Id. (citing 16 U.S.C. § 1604(i)).

The Secretary of Agriculture has promulgated a number of regulations that

set forth the procedures for planning under the NFM A. The first set of

regulations relevant to this case was implemented in 1982 (36 C.F.R. Part 219).

See 47 Fed. Reg. 43026-01 (Sept. 20, 1982), and included provisions directing the

Forest Service, as part of its planning process, to identify and monitor

management indicator species. 3 The regulations required the Forest Service to

collect population trend data for management indicator species. 36 C.F.R. §§

219.19, 27 (1983). They also directed that “[f]ish and wildlife habitat shall be

managed to maintain viable populations of existing native and desired non-native

vertebrate species . . . .” Id. § 219.19. The 1982 regulations w ere superceded in

November 2000 with new, substantially revised regulations. See 65 Fed. Reg.

67,514 (Nov. 9, 2000), codified at 36 C.F.R. Part 219 (2001). The 2000

regulations included several transition provisions specifying when the substantive

planning provisions of the new regulations would become effective. Those

transition provisions also set transition planning standards to govern forest plan

3
M anagement indicator species are certain species identified in the forest
plan that “are a bellwether for other species that have the same special habitat
needs or population characteristics.” UEC III, 443 F.3d at 740 n.7 (internal
quotations omitted). These species “serve as a proxy for determining the effects
of management activities on other species.” Id.

6
amendments and site-specific project decisions during the transition period. UEC

III, 443 F.3d at 746.

For forest plan revisions and amendments adopted during the transition

period, agency officials could elect to use the substantive planning standards of

either the 1982 regulations or the 2000 regulations. See 36 C.F.R. § 219.35(b)

(2001). For site-specific project decisions made during the transition period,

however, the transition rules directed that agency officials “consider the best

available science in implementing and, if appropriate, amending the current plan.”

Id. § 219.35(a), (d). 4 The transition period for site-specific project decisions was

set to expire on November 9, 2003, bringing other substantive provisions of the

2000 regulations into effect. See id. § 219.35(d). However, that transition period

was extended for site-specific projects by an Interim Final Rule issued on

September 10, 2003. 68 Fed. Reg. 53294, 53294-96 (2003). That Interim Final

Rule extended the transition period for site-specific projects until January 5, 2005

when the Department of Agriculture replaced the 2000 regulations with a new

final rule. Id. at 53295; see also 70 Fed. Reg. 1022, 1022-23 (Jan. 5, 2005).

4
The reference in the regulations to “current plan” means that the “best
available science” standard applied by force of regulation only to projects
implementing forest plans that pre-dated the 2000 planning rules. See Utah Envtl.
Cong. v. Troyer, -- F.3d --, 2007 W L 841637, at *11 n.4 (10th Cir. 2007)
[hereinafter UEC IV]. Projects implementing forest plans that were adopted,
revised, or amended after enactment of the 2000 planning rules, were to be
governed by the standard adopted in the forest plan itself. Id. at *11.

7
Thus, site-specific project decisions made from November 9, 2000 to January 5,

2005, that implemented pre-November 9, 2000 forest plans, were to be made only

under the “best available science” standard. See 69 Fed. Reg. 58055, 58056

(Sept. 29, 2004). “[N]either the remainder of the 2000 planning regulations nor

any of the 1982 regulations w ere binding on site-specific decisions during this

period.” Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1191 (10th Cir.

2006).

B. The Ashley National Forest Plan

The forest plan was adopted in 1986 and is intended to “guide all natural

resource management activities and establish management standards and

guidelines for the Ashley National Forest.” II Aplt. App. at 348. The plan

designates twelve management indicator species for the Ashley National Forest,

one of which is the CRCT. Id. at 553-54. The forest plan includes a provision

directing the forest service to:

Complete [an] inventory of M anagement Indicator Species on the
Forest to determine their occurrence, abundance, distribution, habitat
requirements, and populations trends.

Id. at 419.

W ith respect to CRCT, the forest plan gives specific directives for how the

species should be monitored. It directs that CRCT be monitored using population

estimates and that such estimates be conducted and reported every five years. Id.

at 549, 553. The plan states that further evaluation of CRCT populations will be

8
necessary, or a change in management direction could occur, if there is a 20%

reduction in population or if the “biotic condition index” 5 drops below 75. Id. at

553.

The forest plan also contains standards governing old-grow th trees. It

directs the Forest Service to “[d]esignate and protect old growth areas for

dependent species” and provides that “[o]ld growth should be a minimum of 160

contiguous acres and have old growth characteristics.” Id. at 419. The plan

specifically directs the Forest Service to “[r]etain 5% of area in old growth

conditions at all times . . . .” Id. The forest plan does not define old growth or

specify a method for its identification. For purposes of this project, the Forest

Service defined old grow th by using three old-growth attributes identified in R.G .

Hamilton, United States D epartment of Agriculture, Characteristics of Old

Grow th Forests in the Intermountain Region (1993).

C. The National Environmental Policy Act

The NEPA requires federal agencies to examine and disclose the

environmental impacts of their proposed actions. Baltimore Gas & Elec. Co. v.

Natural Res. Def. Council, 462 U.S. 87, 97 (1983). The NEPA imposes only

procedural requirements and does not mandate results. Robertson v. M ethow

Valley Citizens Council, 490 U.S. 332, 350-51 (1989). Relevant to this case, the

5
A biotic condition index is a measurement of water quality in streams or
creeks.

9
NEPA requires federal agencies to prepare an EIS for all “major Federal actions

significantly affecting the quality of the human environment . . . .” 42 U.S.C. §

4332(2)(C). 6 Under the N EPA’s implementing regulations, an agency prepares a

draft EIS in which it evaluates the proposed action and its direct, indirect, and

cumulative impact on the environment. 40 C.F.R. § 1502.14 (2006).

Specifically, the NEPA requires that an EIS provide “cumulative effects” analysis

based on actual data. The NEPA defines “cumulative effects” as “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 . . . .” Id.

§ 1508.7.

In the draft stage, the agency must compare the proposed action to other

reasonable alternatives, including taking no action at all. Id. § 1502.14. After a

period of public comment and review, the agency responds to any comments,

makes appropriate changes, and circulates a final draft of the EIS. Id. § 1503.4.

The agency ultimately adopts a course of action by issuing an ROD.

6
If the proposed action will not significantly affect the quality of the
human environment, then the N EPA directs the agency to prepare either a less
detailed “environmental assessment,” or in the case of a proposed action that has
been predetermined not to “individually or cumulatively have a significant effect
on the human environment,” a “categorical exclusion.” See UEC IV, 2007 W L
841637, at *3.
10
II. Standard of Review

W e review the district court’s decision affirming approval of the Trout

Slope W est project de novo. See Olenhouse v. Commodity Credit Corp., 42 F.3d

1560, 1564 (10th Cir. 1994). Neither the NFM A, the NEPA , nor the forest plan

provides for a private right of action, so our review of the Forest Service’s

decision to approve the project is governed by § 706 of the APA , which allows us

to set aside an agency action only if the action is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);

UEC III, 443 F.3d at 739. Under this standard, we must consider whether “the

[agency’s] decision was based on a consideration of the relevant factors and

whether there has been a clear error of judgment.” Overton Park, 401 U.S. at

416. An agency action is arbitrary and capricious “if the agency . . . 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 [if the

decision] is so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.” M otor V ehicle M frs. A ss’n v. State Farm M ut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Although our inquiry must be thorough, the Forest Service’s decision is

“entitled to a presumption of regularity.” See Overton Park, 401 U.S. at 415.

This deference is “especially strong w here the challenged decision[] involve[s]

technical or scientific matters w ithin the agency’s area of expertise.” U EC III,

11
443 F.3d at 739 (citing M arsh v. Or. Natural Res. Council, 490 U.S. 360, 378

(1989)). Additionally, we give great deference to the Forest Service’s

interpretation of its own regulations, and we will only reject those interpretations

when they are “unreasonable, plainly erroneous, or inconsistent with the

regulation’s plain meaning.” Bar M K Ranches v. Yuetter, 994 F.2d 735, 738

(10th Cir. 1993). Thus, “the ultimate standard of review is a narrow one [and w e

are] not empow ered to substitute [our] judgment for that of the agency.” Overton

Park, 401 U.S. at 416.

III. UEC’s Challenges to Approval of the Trout Slope W est Project

A. The M onitoring of CRCT

UEC argues that the decision to approve the project was covered by the

1982 planning regulations of the NFM A and their specific rules regarding the

monitoring of indicator species. It argues that those regulations required the

Forest Service to provide quantitative population trend data for all indicator

species (including the C RCT). See 36 C.F.R. §§ 219.19 and 219.27 (1983). It

argues that the Forest Service never gathered actual population trend data, but

instead relied on stream inventory and stream condition data as a proxy.

The Forest Service argues that it was not required to comply with the 1982

regulations, but that it had only to use the “best available science” as required by

the 2000 transition regulations. The district court found that the 1982 regulations

applied, and it affirmed the forest service’s approval of the project under those

12
standards. U EC v. R ichmond, No. 05-CV-72 TC, 2006 W L 325375, at *12-13 (D .

Utah Feb. 10, 2006).

At the onset, we note that UEC has established the required nexus between

the Forest Service’s monitoring of CRCT and the project’s approval to give it

standing. W e may only review a monitoring program “to the extent it bears on

the approval of a particular project.” UEC III, 443 F.3d at 749. The Forest

Service argues that despite its monitoring of CRCT, the project’s impacts on

CRCT are so minimal, that deficiencies in CRCT monitoring are irrelevant.

Aplee. Br. at 22. In UEC III, however, we stated that “population trend data is

necessary to evaluate a proposed project’s actual effect on the environment--such

as where . . . a proposed project will create a significant impact on the

environment, thus requiring an [EIS] . . . .” Id. at 750.

An EIS was issued in this case. Additionally, the parties agree that CRCT

are present in the project area. Furthermore, the project contains a number of

mitigation measures designed to reduce negative effects the project would

otherwise have on CRCT populations. W ithout pre-decisional data on CRCT

populations, the Forest Service could not have fully evaluated whether the

project’s mitigation measures were adequate. Nor could it evaluate the efficacy

of those mitigation measures in the future. Taken together, these facts suggest

that adequate monitoring data would be necessary to evaluate the project’s effect

on the environment as part of the initial administrative approval.

13
 As previously discussed, the 1982 regulations were entirely superceded by

the 2000 transition regulations with respect to site-specific project decisions

implementing pre-November 9, 2000 forest plans. The forest plan in this case

was adopted in 1986. 7 The project ROD was issued on July 1, 2004, during the

transition period. Accordingly, the decision to approve the project was governed

by the “best available science” standard, not the specific m onitoring requirements

of the 1982 regulations. See UEC IV , 2007 W L 841637, at *11.

UEC argues that, despite the transitional “best available science” standard,

the Forest Service was bound to follow the 1982 monitoring requirements because

those requirements w ere incorporated into the 1986 forest plan and spelled out in

the Forest Service M anual. To be sure, the Forest Service is required to comply

with existing forest plans, see 16 U.S.C. § 1604(i), which here includes the

requirement to monitor certain management indicator species, including the

CRCT. M oreover, the Forest Service M anual is useful in identifying the Forest

Service’s standard policies and practices. However, the 1986 forest plan did not

expressly reference the 1982 regulations (then codified at § 219.19) in adopting

7
Although the Forest Service attempted to amend the Forest Plan in 2004
to reduce the number of indicator species, that am endment was successfully
challenged by UEC and rejected by the district court. See Richmond, 2006 W L
325375, at *8. Thus, the “current plan” in place w hen the Trout Slope W est
project was approved was the 1986 version.
14
requirements to monitor management indicator species designated by the plan. 8

Furthermore, the forest plan expressly stated that “the administration and

management of the Forest will be guided by existing and future laws, regulations,

policies and standards and guidelines.” II Aplt. A pp. at 548 (emphasis added).

W e made clear in UEC III that such language in a forest plan does not incorporate

the 1982 monitoring regulations. See 443 F.3d at 748 and n.12. Therefore, the

Forest Service is obligated to apply the new regulations, see Ecology Ctr., 451

F.3d at 1191, and is also bound to apply the terms of the 1986 forest plan,

including the obligation to monitor the management indicator species listed in the

plan, to the extent the plan does not conflict with the “best available science”

standard. 9

W hile significant portions of the parties’ briefs discuss whether the Forest

Service met the 1982 monitoring regulations, neither brief discusses whether the

Forest Service’s planning actually complied with the “best available science”

8
UEC insists that the forest plan’s reference to § 219.27 necessarily
incorporates § 219.19 because § 219.27 “does reference, explicitly cite and
incorporate direction from § 219.19.” A plt. Rep. Br. at 26 (citing Utah Envtl.
Cong. v. Bosworth, 372 F.3d 1219, 1225 (10th Cir. 2004) [hereinafter U EC I]).
UEC I, however, considered § 219.27 and § 219.19 in the context of w hether §
219.19 applies to site-specific project planning, not whether reference to either
section in a Forest Plan incorporates the 1982 monitoring requirements. See 372
F.3d at 1225.
9
The Forest Service conceded at oral argument that it must follow the
forest plan and suggested that the plan did not conflict with the regulatory
requirement to consider the “best available science.”
15
standard. Indeed, there is no evidence that the Forest Service intended to make

use of the “best available science” when approving the project. See Richmond,

2006 W L 325375, at *12. Thus, we are faced with the same scenario we

encountered in Ecology Center.

In Ecology Center, the district court analyzed the Forest Service’s 2003

approval of a logging project for compliance with the 1982 monitoring

regulations. See Ecology C tr., Inc. v. Russell, 361 F. Supp. 2d 1310, 1316-17 (D .

Utah 2005). The district court found that the Forest Service had complied with

the 1982 regulations and that its approval of the project was not arbitrary and

capricious. Id. at 1317. W hile the Forest Service argued on appeal that the 2000

transitional “best available science” standard governed, there was no evidence

that it actually considered the “best available science” standard when approving

the project. Ecology Ctr., 451 F.3d at 1192. Although Ecology Center never

argued that the Forest Service failed to use the “best available science,” we

vacated and remanded the Forest Service’s approval of the project, holding that

the Forest Service’s failure to consider or mention the “best available science”

standard rendered its approval of the project arbitrary and capricious. Id. at 1195

(citing Forest W atch v. U.S. Forest Serv., 410 F.3d 115, 119 (2d Cir. 2005)).

In this case, there is no evidence that the Forest Service utilized the “best

available science” standard in approving the Trout Slope W est project. Indeed,

the ROD approving the project never used the phrase “best available science,”

16
much less considered the substantive quality of the science utilized in approving

the project. See III Aplt. App. at 644-61. Even on appeal, the Forest Service

fails to explain how the science it utilized was in fact the “best available science.”

The fact that UEC never argued that the Forest Service failed to use the

“best available science” standard brings into conflict two established lines of

precedent. The first is that we will not, absent manifest injustice, vacate or

reverse a district court decision based on an argument not made by the plaintiff.

See Sussman v. Patterson, 108 F.3d 1206, 1210 (10th Cir. 1997). The second, is

that we may not affirm an agency decision based on reasoning that the agency

itself never considered. See Ecology Ctr., 451 F.3d at 1195 (citing SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947)); Forest W atch, 410 F.3d at 119. This

conflict was resolved by Ecology Center and UEC IV which dictate that we must

vacate the Forest Service’s approval of the Trout Slope W est project for failure to

consider the “best available science” standard. See UEC IV, 2007 W L 841637, at

* 17-18; Ecology Ctr., 451 F.3d at 1195. 10 W e offer no opinion as to whether the

Forest Service’s monitoring of CRCT complied with the “best available science”

10
In his concurrence and dissent in UEC IV, Judge M cConnell notes that
there is “no precedent justifying reversal of significant agency action, affirmed by
the district court, on the basis of a challenge the plaintiff did not make in district
court and did not make in this Court.” UEC IV , 2007 W L 841637, at *19.
Nevertheless, the majority in UEC IV clearly viewed application of the proper
planning standard as a legal matter, intertwined with the merits of the challenge,
to be addressed by this court, and we, of course, are bound by that decision.
17
standard, the forest plan, or the forest service manual. 11

On remand, as discussed above, the Forest Service will be governed by the

requirements in the current forest plan and the most recent version of the NFM A

implementing regulations, which w ere adopted in 2005. Those regulations require

the Forest Service to:

(1) Document how the best available science was taken into account
in the planning process within the context of the issues being
considered; (2) Evaluate and disclose substantial uncertainties in that
science; (3) Evaluate and disclose substantial risks associated with
plan components based on that science; and (4) Document that the
science was appropriately interpreted and applied.

36 C.F.R. § 219.11(a)(1)-(4) (2005). As we stated in Ecology Center, the Forest

Service need not necessarily collect new data, but it must “seek out and consider

all existing scientific evidence relevant to the decision . . . [and] determine which

data are the most accurate, reliable, and relevant.” 451 F.3d at 1194 n.4 (internal

quotations and citations omitted). A fter considering this “best available science,”

the Forest Service may then issue a new ROD on the Trout Slope W est project.

11
Because the 2000 transition regulations mandate use of the “best
available science,” and were implemented after the 1986 forest plan, the
regulations may preempt some monitoring provisions of the 1986 forest plan,
assuming those monitoring provisions are not based on the “best available
science.” Furthermore, there is a possibility that the forest plan, by its reference
to “future law, regulations, policies and standards and guidelines,” might
incorporate the “best available science” standard in lieu of its original monitoring
provisions. Despite the Forest Service’s suggestion that the forest plan appears to
be consistent with the “best available science standard,” the parties did not brief
these questions, and given that the Forest Service failed even to incorporate and
apply the “best available science” standard, they are not ripe for review.
18
 B. W ater Quality Standards

UEC argues that the Trout Slope W est project will damage water quality

and thereby violate the 1982 regulations and the forest plan. Specifically, the

1982 regulations mandate that there should be no management practices that

cause detrimental changes in water temperature, chemical composition, or

deposits of sediment, all of which adversely affect water conditions. See 36

C.F.R. § 219.27(e) (1983). Similarly, the forest plan requires the Forest Service

to “[m]aintain or improve current stream channel stability ratings,” II Aplt. App.

at 427, and to maintain a biotic condition index of at least 75 in all streams, id. at

420. UEC argues that the project will adversely affect all of these standards.

The Forest Service responds that the substantive standard of § 219.27(e) did not

apply to the project’s approval because the 1982 regulations w ere superceded in

2000. Regardless, it argues it complied with the regulations and the forest plan

requirements concerning stream channel stability and the biotic condition index.

As is clear from our discussion above, the substantive standard of §

219.27(e) did not apply to the project’s approval because the 1982 regulations

were superceded in 2000. Again, however, there is no evidence that the Forest

Service considered the “best available science” concerning water quality.

Consequently, as with the monitoring of C RCT, the Forest Service must

reevaluate the project’s effect on water quality utilizing the “best available

science” as required by the current NFM A regulations. For the same reasons

19
stated above, we offer no opinion as to whether the Forest Service’s evaluation of

water quality complied w ith the “best available science” standard and the forest

plan. See supra n.11.

C. UEC’s Remaining Challenges

W hile the Forest Service’s failure to consider the “best available science”

standard causes us to remand the case for an order vacating the project’s

approval, two other substantial arguments regarding whether the Forest Service

complied with the forest plan and the NEPA were raised by UEC and adequately

briefed and addressed by the parties. As these issues w ould likely be reargued in

a subsequent appeal, we elect to address them now and so narrow the scope of our

remand order. 12

1. Old-Growth Trees

The forest plan requires that the Forest Service: “D esignate and protect old

growth areas for dependent species. Old growth should be a minimum of 160

contiguous acres and have old growth characteristics . . . . [And the forest service

must] [r]etain 5% of area in old growth conditions at all times . . . .” II Aplt. App.

at 419. The forest plan does not define “old growth,” so in order for the Trout

Slope W est project to comply with the old-growth standards, the Forest Service

was required to identify a method to delimit what old growth means in the Ashley

12
To the extent that there have been changes in the amount of old-growth,
or cumulative effects since the first ROD was issued, the Forest Service may, of
course, be required to alter or amend its analysis of these areas in the new ROD.
20
National Forest. As previously noted, the EIS and project ROD referenced the

old-growth measurement criteria identified in Hamilton. That publication defines

old growth based on six criteria for live trees and four criteria for dead trees.

UEC argues that the Forest Service only relied upon “Stand Exam Data” in

an attempt to meet old-growth standards adopted for the project. UEC argues that

the stand exam data considered only three of the six old-growth criteria for live

trees and no criteria for dead trees. Consequently, UEC argues that “no

meaningful conclusion of what areas constitute old growth can be extrapolated

from Stand Exam data.” Aplt. Br. at 34. UEC argues it was arbitrary and

capricious for the Forest Service not to use all the old-growth standards it

referenced from Hamilton.

Additionally, UEC argues that the Forest Service failed to apply the 160

contiguous acre standard. It argues that a stand of trees could qualify as old

growth under Hamilton, but not under the forest plan which requires 160

contiguous acres for old growth. UEC argues that the Forest Service had tree

stand data for only 28% of the management area encompassing the project. O f

that 28% (154,727 acres) the Forest Service designated 32,068 acres as old growth,

which constitute roughly 5.8% of the management area. However, of the 32,068

acres designated as old growth, the Forest Service admits that only 57% (18,278

acres) occur in stands greater than 160 acres. Thus, UEC argues that only 3.3% of

the management area was reserved for old growth, not the 5% that w as required.

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 However, Hamilton indicates that the three criteria actually used by the

Forest Service for the project are “required minimums.” III A plt. A pp. at 817.

Thus, the Forest Service argues that it was not necessary to consider all ten

Hamilton criteria, when three are sufficient. Furthermore, the Forest Service

argues that it never adopted all the Hamilton criteria in the first place, because the

EIS specifically notes that the Hamilton criteria are “useful for classifying

individual stands of old growth, but are not a management requirement and do not

address old growth retention across a landscape.” Id. at 728 (emphasis added).

The EIS went on to note “stands that meet Hamilton’s m inimum old growth

characteristics can be estimated from Common Stand Exam data.” Id. (em phasis

added). Even so, the Forest Service considered additional criteria, aside from the

three Hamilton criteria, including data on stand composition, stem density,

roadless areas, and past harvest activities. I Aplee. Supp. App. at 84-90. Given

the forest plan’s lack of direction on what constitutes old growth, and the Forest

Service’s expertise in this area, we determine that its use of the three minimum

Hamilton criteria, along with the Common Stand Exam data and the additional

criteria, is reasonable in these circumstances.

W ith respect to the 160 acre and 5% standards, the Forest Service has

treated the two as independent requirements since the forest plan’s adoption in

1986. In other words, the Forest Service only considers contiguous blocks of 160

or more acres in designating and protecting “old growth areas,” but it considers all

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stands with old-growth characteristics for the 5% standard. Aplee. Br. at 38.

The Forest Service’s interpretation is reasonable because the two standards are

separate in the forest plan, use different language, and are not both applied to

every management area. Furthermore, nothing in the forest plan clearly suggests

the two requirements should be read conjunctively. 13 W e are obliged to defer to

the Forest Service’s interpretation. See UEC III, 443 F.3d at 739.

Because the project area will include at least 32,068 acres of old growth, 14

roughly, 5.8% , the Forest Service met the 5% criteria. W ith respect to the 160

acre criteria, it appears that only one contiguous stand of more than 160 acres w ill

be affected by the project, see III Aplt. App. at 647, 695, 733-38, and that the

stand will merely suffer a “sanitation/salvage” harvest that will remove dead,

dying and diseased trees, resulting in no net loss of old-growth acreage, see id. at

738. Furthermore, the project will result in a harvest of only 40 acres of trees,

lowering the 5.8% retention of old growth to 5.79% . Thus, the Forest Service

appears to have complied with the forest plan standards for maintaining old-

growth trees. At the very least, its interpretation of the standards and its

13
U EC responds that there is nothing in the forest plan to indicate the tw o
standards should be applied independently. This simply illustrates that the forest
plan is vague on how to apply the two standards, indicating that deference to the
agency is appropriate.
14
The Forest Service had tree stand data for only 28% of the project area.
It seems fair to argue, and the Forest Service does, that the remaining 72% of
acreage would include additional stands of old-growth trees.

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application of them is not arbitrary and capricious.

2. Cumulative Effects on CRCT and W ater Quality

Under the NEPA , an EIS must analyze the cumulative effects of a proposed

project on the environment. The N EPA defines cumulative effects as:

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 regardless of what agency
(Federal or non-Federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but
collectvely significant actions taking place over a period of time.

40 C.F.R. § 1508.7 (2006).

UEC argues that the EIS for the project described the cumulative effects of

the project but failed to analyze “what the nature and extent of the impacts w ould

be.” See Defenders of W ildlife v. Babbitt, 130 F. Supp. 2d 121, 138 (D.D.C.

2001). It further argues that the EIS lacks “meaningful analysis,” and that it is

conclusory, describing the negative impacts of the project but failing to provide a

“realistic evaluation of the cumulative impacts.” Aplt. Br. at 49.

The Forest Service correctly notes, however, that the NEPA does not

prohibit approval of projects with negative cumulative effects; it only requires that

the Forest Service consider and disclose such effects. See Robertson, 490 U.S. at

350-51. The Forest Service pointed to numerous cites in the administrative record

where there is evidence of its cumulative effects analysis. Specifically, the Forest

Service used two computer models to calculate the amount of expected runoff

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resulting from the project and the effect on stream channels. Both models showed

that the impact of the project, when considered with previous actions taken in the

project area, would be minimal. III Aplt. App. at 756. Additionally, the Forest

Service analyzed the project’s impact when considered together with past timber

sales, all past timber harvests, old burns, and livestock grazing. Id. at 726. Again,

UEC simply disagrees with the substance of the Forest Service’s conclusions.

This is insufficient because we must defer to the Forest Service’s reasonable

conclusions regarding “technical or scientific matters within the agency’s area of

expertise.” UEC III, 443 F.3d at 739.

W e have said that the NEPA simply requires an agency to take a “hard look”

at the potential impact of its proposed actions. Ecology Center, 451 F.3d at 1189.

As long as the Forest Service complied w ith the NEPA’s procedural requirements,

we will not “second-guess the wisdom of the ultimate decision.” Id. In this case,

the Forest Service took a “hard look,” analyzed a substantial amount of data, and

simply reached a conclusion that UEC thinks is incorrect. The cumulative effects

requirement of the NEPA was satisfied.

Accordingly, we AFFIRM those portions of the district court’s order

rejecting UEC’s challenges concerning old growth and cumulative effects.

However, we REV ER SE the portion of the district court’s order rejecting UEC’s

challenge to the Forest Service’s monitoring of CRCT and its analysis of water

quality and set aside its affirmance of the project’s approval. W e REM AND to

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the district court so it may remand to the Forest Service for further administrative

action consistent with this opinion.

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