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Full Opinion
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 6, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UTAH ENVIRONMENTAL
CONGRESS,
Plaintiff-Appellant,
v. No. 05-4102
DALE BOSWORTH, in his official
capacity as Chief of the United States
Forest Service; UNITED STATES
FOREST SERVICE; MARY
ERICKSON, in her official capacity as
Supervisor of the Fishlake National
Forest; and D. FRED HOUSTON, in
his official capacity as Richfield
District Ranger of the Fishlake
National Forest,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:04-CV-643-DAK)
Joel Ban, WildLaw, Salt Lake City, Utah, for Plaintiff-Appellant.
Mark R. Hagg, Attorney, Environment & Natural Resources Division, Department
of Justice, Washington, D.C. (Kelly A. Johnson, Acting Assistant Attorney
General, and Todd S. Aagaard, Attorney, Environment & Natural Resources
Division, Department of Justice, Washington, D.C., and Elise Foster, Of Counsel,
United States Department of Agriculture, Ogden, Utah, with him on the brief), for
Defendants-Appellees.
Before HENRY , EBEL , and TYMKOVICH , Circuit Judges.
TYMKOVICH , Circuit Judge.
In 2004, the United States Forest Service approved a 123-acre timber-
thinning project to treat beetle-infested trees in Utah’s Fishlake National Forest.
Its approval was made pursuant to a categorical exclusion, a streamlined process
allowing minor projects to be quickly implemented so long as they have no
significant effect on the environment. As a result of this decision, Utah
Environmental Congress (“UEC”) appealed to the district court arguing that the
project violated a number of environmental and regulatory provisions. We agree
with the district court that the Forest Service properly implemented this project
under a categorical exclusion.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
I. Background
A. Statutory and Regulatory Framework
1. National Environmental Policy Act
The National Environmental Policy Act (“NEPA”) requires federal agencies
such as the Forest Service to analyze environmental consequences before
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initiating actions that potentially affect the environment. 1 In conducting this
analysis, the Forest Service must prepare one of the following: (1) an
environmental impact statement, (2) an environmental assessment, or (3) a
categorical exclusion. An environmental impact statement involves the most
rigorous analysis, and is required if a proposed action will “significantly affect[]
the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R.
§ 1502.4.
If an agency is uncertain whether the proposed action will significantly
affect the environment, it may prepare a considerably less detailed environmental
assessment. 40 C.F.R. § 1508.9. An environmental assessment provides
“sufficient evidence and analysis” to determine whether a proposed project will
create a significant effect on the environment. Id. If so, the agency must then
develop an environmental impact statement; if not, the environmental assessment
results in a “Finding of No Significant Impact,” and no further agency action is
required. Id.
In certain narrow instances, however, an agency is not required to prepare
either an environmental assessment or an environmental impact statement. This
1
The Council on Environmental Quality is responsible for implementing
NEPA’s planning requirements by promulgating binding regulations. See 42
U.S.C. §§ 4342, 4344(3); 40 C.F.R. §§ 1501–08. Agencies, such as the Forest
Service, comply with the Council’s regulations by adopting supplemental
procedures.
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occurs when the proposed action falls within a categorical exclusion, i.e., those
actions predetermined not to “individually or cumulatively have a significant
effect on the human environment.” Id. § 1508.4. The Forest Service has created
a list of 24 such categories. 2 See Forest Service Handbook 1909.15
(Environmental Policy and Procedures Handbook), Ch. 30, §§ 31.12, 31.2,
http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsh?1909.15 (last visited March
24, 2006) [hereinafter Forest Service Handbook]. Examples include small
acreage timber-thinning and harvesting, as well as the construction of trails,
utility lines, and meteorological sampling sites. See id.
Federal law limits categorical exclusions in one critical respect: a proposed
action is precluded from categorical exclusion if “extraordinary circumstances”
exist such that “a normally excluded action may have a significant environmental
effect.” 40 C.F.R. § 1508.4. Extraordinary circumstances may exist, for example,
where a proposed action—albeit small in scope—significantly affects inventoried
roadless areas, archaeological sites, flood plains, or federally listed threatened or
endangered species habitat. Forest Service Handbook, Ch. 30, § 30.3.
2. National Forest Management Act
2
This number excludes seven categories created by the Secretary of
Agriculture which do not involve physical projects within the National Forest
system but instead involve activities such as budget proposals, educational
programs, and legal counseling. See Forest Service Handbook, Ch. 30, § 31.11.
-4-
Under the National Forest Management Act of 1976 (“NFMA”), the Forest
Service must develop a land and resource management plan, commonly known as
a forest plan, for each unit of the National Forest System. 16 U.S.C. § 1604(a),
(e), (g)(3)(B). The Forest Service manages each forest unit at two different
levels: (1) programmatic and (2) project. Colo. Envtl. Coal. v. Dombeck, 185
F.3d 1162, 1167–68 (10th Cir. 1999).
At the programmatic level, the Forest Service creates general, forest-wide
planning goals memorialized in a forest plan. Because the Forest Service must
account for a variety of different interests, each forest plan envisions the forest
will be used for multiple purposes, including “outdoor recreation, range, timber,
watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). At the
same time, the forest plan provides for “diversity of plant and animal
communities based on the suitability and capability of the specific land area.” Id.
§ 1604(g)(3)(B).
At the project or site-specific level, the Forest Service implements the
forest plan by approving or disapproving particular projects using an
environmental impact statement, an environmental assessment, or a categorical
exclusion. Projects must comply with the applicable forest plan. Silverton
Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th Cir. 2006); see 16
U.S.C. § 1604(i).
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3. Implementing Regulations
Before a forest plan may be created, NFMA “explicitly requires the
Secretary of Agriculture to issue regulations that set out the process for the
development and revision of land management plans for units of the National
Forest System, and regulations that establish management planning standards and
guidelines . . . .” 47 Fed. Reg. 43,026, 43,037 (Sept. 30, 1982). Of particular
concern in this case are planning rules the Forest Service adopted in 1979 and
revised in 1982, codified at 36 C.F.R. § 219 (1982), which govern Forest Service
management at both the programmatic and project levels. See generally id. In
November 2000, the Forest Service substantially amended these regulations,
known as the 1982 planning rules, replacing them with the 2000 planning rules,
codified at 36 C.F.R. § 219 (2001). 65 Fed. Reg. 67,568 (Nov. 9, 2000).
The 2000 planning rules were not immediately promulgated. Instead, the
new regulations contained transition provisions which provided that, beginning on
November 9, 2000, until the promulgation of the new, final rule, the Forest
Service should consider “the best available science in implementing a forest
plan.” 3 36 C.F.R. § 219.35(a), (d) (2001). These transition provisions remained
3
A transition period for the 2000 regulations was created in order that the
individual units of the Forest Service would have ample time “to incorporate
regional guide direction into agency procedures or plan decisions,” thereby
“ensur[ing] consistency among national forests and grasslands.” 65 Fed. Reg.
(continued...)
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on the books until January 2005 when the new rules were finally implemented. 36
C.F.R. §§ 219.1 to .16 (2005); 70 Fed. Reg. 1,023 (Jan. 5, 2005). The 2005 rules
retained the best available science standard, requiring the “Responsible Official
[to] take into account the best available science” by “document[ing] how the best
available science was taken into account in the planning process,” and evaluating
and disclosing substantial uncertainties and risks in that science. 36 C.F.R. §
219.11(a) (2005) (emphasis added).
B. The Seven Mile Project
The Seven Mile Spruce Beetle Management Project (“Seven Mile Project”
or “Project”) sitting within the 1,424,479 acres of the Fishlake National Forest in
south-central Utah, is located approximately 22 miles east of Richfield, Utah.
Because it sits within the Fishlake National Forest, the Seven Mile Project is
governed by the Fishlake Forest Plan (“the Forest Plan” or “Plan”). See U.S.
Dep’t of Agric., Forest Service Region 4, Land and Resource Management Plan
for the Fishlake National Forest,
http://www.fs.fed.us/r4/dixie/projects/FParea/LiveDocs/Fishlake.pdf (last visited
March 24, 2006) [hereinafter Forest Plan]. The Project involves a selective
harvest of beetle-infested mature, dead, diseased, or dying Englemann spruce
3
(...continued)
67,514, 67,527 (Nov. 9, 2000).
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timber stands covering approximately 123 acres. By implementing the Project,
the Forest Service plans to prevent an epidemic infestation of spruce beetle from
spreading into adjacent stands and killing the spruce. In so doing, the Forest
Service hopes to protect mature stands, preserve wildlife habitat, and reduce the
risk of wildfire.
The Forest Service ultimately approved the Seven Mile Project under
categorical exclusion 14 (“Category 14”) in 2004. However, consideration of this
particular project had begun over five years earlier. Beginning in June 1999, the
Seven Mile Project was approved under another timber harvest categorical
exclusion known as Category 4. When a federal district court in Illinois
invalidated Category 4 later that year, Heartwood, Inc. v. U.S. Forest Serv., 73 F.
Supp. 2d 962 (S.D. Ill. 1999), the Forest Service opted to prepare an
environmental assessment for the Seven Mile Project, which was completed in
June 2000. The Regional Forester deemed this environmental assessment
inadequate; consequently, another draft environmental assessment for the Project
was prepared in September 2003. At the same time the Forest Service was
completing this revised environmental assessment, a new set of categorical
exclusions was adopted by the Department of Agriculture, which included
Category 14.
Category 14 applies to small acreage timber-thinning projects.
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Specifically, it excludes from NEPA review “commercial and noncommercial
sanitation harvest of trees to control insects or disease not to exceed 250 acres,
requiring no more than 1/2 mile of temporary road construction, including
removal of infested/infected trees and adjacent live uninfested/uninfected trees as
determined necessary to control the spread of insects or disease.” Forest Service
Handbook, Ch. 30, § 31.2(14).
Finding Category 14 would apply to the Seven Mile Project, the Fishlake
National Forest district ranger issued a Decision Memorandum in May 2004. He
concluded that “[Category 14] is appropriate in this situation because there are no
extraordinary circumstances related to the proposed action.” J.A. 535. The
district ranger replaced the original Decision Memorandum in October 2004 with
a new Memorandum, but left the project largely unmodified. 4
In sum, the local forest officials found “that the spruce beetle infestation in
the Seven Mile Project area has escalated substantially during the past 8 years . . .
[and] at least 80 percent mortality will occur in non-infested spruce in the absence
of thinning.” Id. at 551. The district manager assured that (1) “three snags per
acre will be retained . . . [as well as] snags containing nest cavities or offering
potential nesting opportunities . . . to provide for [foraging and nesting] for three-
4
The district ranger wrote, “This decision supercedes, and is essentially the
same as my former decision with the exception that the 0.75 mile of road
reconstruction will not be implemented as part of this decision.” J.A. 549.
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toed woodpeckers;” (2) although “no sensitive species are known to occur in the
project area, and suitable habitat has not been found,” local forest rangers “will
continue to survey the project area for all sensitive species during pre- and post-
treatment activities;” and (3) if any goshawk are discovered during the “ongoing
surveys [] being conducted for the northern goshawk,” the Forest Service will act
appropriately “to conserve this species.” Id. at 550.
C. Decision Below
Following the Forest Service’s authorization of the Seven Mile Project,
UEC filed suit in district court, alleging the Forest Service’s authorization of the
Seven Mile Project violated NEPA, NFMA, and the Administrative Procedures
Act (“APA”). In April 2005, the district court found in favor of the Forest
Service on all claims. The district court concluded that the Forest Service did not
act arbitrarily in applying Category 14. Furthermore, the court found that the
Forest Service adequately monitored the management indicator species in
accordance with the Fishlake Forest Plan. In reaching these conclusions, the
court held that the 1982 planning rules were not applicable to the Seven Mile
Project and instead applied the 2000 planning rules.
II. Standard of Review
Because neither NEPA nor NFMA provide a private right of action, this
court reviews the Forest Service’s approval of the Seven Mile Project as a final
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agency action under the APA. Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219,
1223 n.3 (10th Cir. 2004) (“UEC I”); Colo. Farm Bureau Fed’n v. U.S. Forest
Serv., 220 F.3d 1171, 1173 (10th Cir. 2000). We consider the district court’s
decision de novo. Am. Wildlands v. Browner, 260 F.3d 1192, 1196 (10th Cir.
2001). However, we will not overturn the agency’s decision unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A).
While administrative agencies generally are afforded a presumption of
regularity, an agency’s decision will nonetheless be 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 is so implausible that it could not be ascribed to a difference in view or
the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). Furthermore, we must determine whether
the disputed decision was based on consideration of the relevant factors and
whether there has been a clear error of judgment. Id. Deference to the agency is
especially strong where the challenged decisions involve technical or scientific
matters within the agency’s area of expertise. Marsh v. Or. Natural Res. Council,
490 U.S. 360, 378 (1989).
In reviewing conflicting interpretations of an agency’s statutes and
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regulations, this court grants “substantial deference” to the agency’s interpretation
of its own regulations. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,
1576 (10th Cir. 1994). We may reject the agency’s interpretation only when it is
“unreasonable, plainly erroneous, or inconsistent with the regulation’s plain
meaning.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir. 1993).
III. Analysis
UEC appeals the district court’s approval of the Seven Mile Project raising
three primary allegations of error: (1) the Forest Service acted arbitrarily and
capriciously by failing to consider the cumulative impact of the Seven Mile
Project on fish and wildlife; (2) the district court improperly used the Forest
Service’s 2000 transition provisions, as opposed to the 1982 planning rules, to
evaluate the Seven Mile Project; and (3) the Forest Service failed to collect
adequate data for management indicator species in violation of the Fishlake
National Forest Plan and NEPA. We discuss, and reject, each of UEC’s
contentions in the following sections.
A. Categorical Exclusion of the Seven Mile Project
We first address UEC’s argument that the Forest Service acted arbitrarily
and capriciously by authorizing the Seven Mile Project pursuant to Category 14’s
exclusion. UEC raises two separate claims: (1) the Seven Mile Project should not
have been categorically excluded because use of an exclusion is appropriate only
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when the Forest Service first conducts a preliminary analysis determining that the
proposed project will have no significant or cumulative effects on the
environment, and (2) the existence of extraordinary circumstances here precludes
categorical exclusion of the Seven Mile Project. 5
1. Cumulative Impact 6
UEC’s first claim is that “in order for an agency to determine whether a
project may be categorically excluded, the agency must [definitively] determine,
based on cumulative effects, whether categorical exclusion is appropriate.”
Aplt.’s Br. 27–28. Specifically, UEC asserts the Seven Mile Project should not
have been categorically excluded because the Forest Service conducted an
inadequate analysis of the Project’s cumulative effects on the forest. UEC points
5
UEC also argues that the environmental assessment completed in 2003
violated NEPA because the Forest Service never presented the draft
environmental assessment to the public for comment nor properly finalized it
through issuance of a “Finding of No Significant Impact.” Aple.’s Br. 25–36.
Both contentions are without merit since the Forest Service ultimately authorized
the Seven Mile Project pursuant to Category 14. By its terms, environmental
assessments are not required for categorically excluded projects unless
extraordinary circumstances are found. The draft environmental assessment about
which UEC complains was prepared prior to the Project’s authorization under
Category 14 and has no relevance here.
6
“‘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 regardless of what agency (Federal or
non-Federal) or person undertakes such other actions. Cumulative impacts can
result from individually minor but collectively significant actions taking place
over a period of time.” 40 C.F.R. § 1508.7 (2005). Cumulative impact is
synonymous with cumulative effects. Id. § 1508.8(b).
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to three specific omissions by the Forest Service, which it contends, demonstrate
the failure to conduct an adequate cumulative impact analysis. The Forest Service
failed to (1) analyze the Project’s effect on management indicator species; 7 (2)
create an appropriate cumulative effects boundary encompassing the entire Project
area and areas adjacent to the Project where the Project’s effects could be
perceived; and (3) analyze the Project’s effect on sensitive species located outside
the Project area but nonetheless still within the cumulative effects boundary as
well as analyze the impact of other projects occurring within the cumulative
effects boundary. In addressing this argument, the Forest Service counters that
UEC’s argument would effectively render useless the purpose of categorical
exclusions generally. We agree.
Federal regulations define the term “categorical exclusion” as:
[A] category of actions which do not individually or cumulatively have
a significant effect on the human environment and which have been
found to have no such effect in procedures adopted by a Federal agency
in implementation of these regulations . . . . Any procedures under this
section shall provide for extraordinary circumstances in which a
normally excluded action may have a significant environmental effect.
40 C.F.R. § 1508.4 (2003) (emphasis added). By definition, then, a categorical
7
Management indicator species “are a ‘bellwether’ for other species that
have the same special habitat needs or population characteristics . . . .” Utah
Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1190 (10th Cir. 2006) (internal citation
and quotations omitted). They “serve as a proxy for determining the effects of
management activities on other species.” Id. (internal citation and quotation
omitted).
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exclusion does not create a significant environmental effect; consequently, the
cumulative effects analysis required by an environmental assessment need not be
performed. That assessment has already been conducted as a part of the creation
of the exclusion, which UEC does not challenge in this action.
Because the Seven Mile Project fell within the general confines of Category
14, a point that UEC also does not dispute, the Project was predetermined to have
no significant effect. Under the regulation, only if extraordinary circumstances
were present would the Forest Service need to perform further analysis in the
form of an environmental assessment. See Nat’l Trust for Historic Preservation
v. Dole, 828 F.2d 776, 781 (D.C. Cir. 1987) (noting that “[b]y definition,
[categorical exclusions] are categories of actions that have been predetermined
not to involve significant environmental impacts, and therefore require no further
agency analysis absent extraordinary circumstances”).
We agree that it may be conceptually possible for a large number of small
projects to collectively create conditions that could significantly effect the
environment. But the regulation itself contains a provision to address that
concern, namely the extraordinary circumstances exception. And the
extraordinary circumstances safety-valve is more than capable of addressing
specific harms allegedly created by specific projects, which we turn to next.
Accordingly, the Forest Service did not act arbitrarily in failing to conduct
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any cumulative effects analysis unrelated to the existence of extraordinary
circumstances. 8
2. Extraordinary Circumstances
UEC next claims that even if the Forest Service was not required to do a
preliminary cumulative effects analysis, the Forest Service nonetheless exhibited
a clear error in judgment in failing to find extraordinary circumstances. To
determine whether extraordinary circumstances exist, the Forest Service must
consider if the proposed action may have a potentially significant impact on
certain “resource conditions.” Forest Service Handbook, Ch. 30, § 30.3, ¶ 2. The
resource conditions are defined in the Forest Service Handbook as follows:
(a) Federally listed threatened or endangered species or designated critical
habitat, species proposed for federal listing or proposed critical habitat, or
proposed critical habitat, or Forest Service sensitive species.
(b) Floodplains, wetlands, or municipal watersheds.
(c) Congressionally designated areas such as wilderness, wilderness study
areas, or national recreation areas.
(d) Inventoried roadless areas.
(e) Research natural areas.
8
The district court reviewed this issue, finding that the Forest Service had
performed extensive studies of both the Project itself and Category 14 generally.
To the extent the district court’s analysis addresses cumulative effects unrelated
to the potential for extraordinary circumstances, this analysis was unnecessary.
Because the Seven Mile Project met the general requirements for Category 14, no
further agency action was required absent extraordinary circumstances.
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(f) American Indians’ and Alaska Natives’ religious or cultural sites.
(g) Archaeological sites, or historic properties or areas.
Id.
Here, UEC claims subpart (a) is triggered because the Seven Mile Project
will have “guaranteed effects” on the three-toed woodpecker and the northern
goshawk. Aplt.’s Br. 38. Therefore, UEC argues, the Forest Service was required
to perform an environmental assessment. In particular, UEC claims the Forest
Service, while finding “no impact” on the northern goshawk, conceded in its
Decision Memorandum that the Project “may affect” the three-toed woodpecker.
In light of the Forest Service’s uncertainty, UEC argues, it should invoke the
extraordinary circumstances exception. The Forest Service, on the other hand,
interprets the applicable regulations to require a significant environmental effect,
not just any effect as asserted by UEC.
The regulatory language guides our analysis. In general, environmental
regulations do not place a heavy burden on federal agencies to detail actions
which will have only insignificant effects on the health of the environment. For
example, “a detailed statement by the responsible official on the environmental
impact of [a] proposed action” is required only for “Federal actions significantly
affecting the quality of the human environment . . . .” 42 U.S.C. § 4332(C)
(emphasis added); see 68 Fed. Reg. 44,598, 44,600 (July 29, 2003) (noting that
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the Forest Service’s “scarce resources” should be concentrated on “major Federal
actions and not expend[ed] . . . analyzing agency actions where experience has
demonstrated the insignificance of effects”) (emphasis added).
The analysis is no different with regard to the Forest Service’s use of
categorical exclusions. As we already discussed, the presence of an extraordinary
circumstance precludes the application of a categorical exclusion. And such a
circumstance exists only where a proposed action “may have a significant
environmental effect.” 40 C.F.R. § 1508.4 (emphasis added); Forest Service
Handbook, Ch. Zero Code, § 05; see 40 C.F.R. § 1508.4 (defining categorical
exclusion as a category of actions that do not “individually or cumulatively have a
significant effect on the human environment”) (emphasis added).
This language plainly requires that an action first may produce a significant
effect before a federal agency engage in further analysis. This is only logical
given the substantial analytical and evidentiary burdens triggered when a project
is ineligible for categorical exclusion. By relying on categorical exclusions, the
Forest Service promotes efficiency in its NEPA review process while avoiding
unnecessary analysis. See Fund for Animals v. Babbitt, 89 F.3d 128, 130 (2d Cir.
1996) (noting that “[t]he [Counsel on Environmental Quality] has authorized the
use of categorical exclusions to promote efficiency in the NEPA review process”).
UEC contends that despite this provision, an effect need not be significant,
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but merely predicted by the Forest Service, to trigger extraordinary circumstances.
Thus, even a de minimis effect on a threatened species would bar application of
the exclusion. In support of this proposition, it cites two statements from the
Forest Service Handbook. First, the Handbook notes that “[t]he mere presence of
one or more [] resource conditions does not preclude use of a categorical
exclusion; instead, [i]t is the degree of the potential effect of a proposed action on
these resource conditions that determines whether extraordinary circumstances
exist.” Forest Service Handbook, Ch. 30,
§ 30.3, ¶ 2 (emphasis added). Second, the Handbook requires the Forest Service
to prepare an environmental assessment if, based on its evaluation, “it is
uncertain whether the proposed action may have a significant effect on the
environment.” Id. ¶ 3 (emphasis added); see 40 C.F.R. § 1508.27 (noting that the
term “significantly” as used in NEPA requires consideration of both context and
intensity; one intensity factor considered is “the degree to which the possible
effects on the human environment are highly uncertain or involve unique or
unknown risks.”).
While it is true that the Handbook refers to the “degree of the potential
effect of a proposed action on a resource condition,” the regulation itself requires
the potential for a “significant environmental effect.” We must interpret the
language found in the Handbook in light of the entire regulation and its
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accompanying policy. See United States v. Shewmaker, 936 F.2d 1124, 1127
(10th Cir. 1991) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285
(1956)) (“In expounding a statute, we must not be guided by a single sentence or
member of a sentence, but look to the provisions of the whole law, and to its
object and policy.”). We must also be careful not to disrupt the plain language of
the regulation itself. See Hartford Underwriters Ins. Co. v. Union Planters Bank,
N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposition required by the text is not
absurd—is to enforce it according to its terms.”) (internal quotation marks
omitted). Considering the purpose of categorical exclusions in light of these
factors and affording the agency’s interpretation substantial deference, we
conclude that an extraordinary circumstance is found only when there exists a
potential for a significant effect on a resource condition. See Citizens’ Comm. to
Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1023 (10th Cir. 2002)
(“When reviewing an agency’s interpretation and application of its categorical
exclusions under the arbitrary and capricious standard, courts are deferential.”).
In this light, we review UEC’s contention that the Forest Service erred in
evaluating whether the Seven Mile Project would significantly affect the three-
toed woodpecker and the northern goshawk. The Forest Service found that
although the Seven Mile Project will have “no impact” on the northern goshawk,
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it “may affect, but is not likely to result in a trend toward federal listing or loss of
viability for the three-toed woodpecker.” J.A. 535.
Although UEC argues the Forest Service expressed “uncertainty” with
regard to the two species, the Forest Service decision can hardly be construed to
express such doubt. In evaluating the Seven Mile Project’s effect on the northern
goshawk, the Forest Service relied on helicopter and ground surveys documenting
and confirming the lack of goshawk habitat in the proposed area. Id. at 511, 516.
Explaining the lack of effect on the three-toed woodpecker, the Forest Service
stated that while “it may impact individuals, individual territories, and cause
displacement within the project area,” the Project “would not contribute to a trend
towards federal listing or a loss of population viability,” id. at 516, since adequate
woodpecker habitat would be preserved throughout the forest, and the Project
would provide some long-term habitat improvements where intermediate
harvesting or under-burning occurred. Id. at 512, 516.
These conclusions were based on a review of the species and habitat
conducted as a part of the analysis leading to the agency’s Decision
Memorandum, including a biological evaluation of both species. Id. at 509–16.
Additionally, the species monitoring performed by the Forest Service, although
not consistently conducted on an annual basis, was more than ample to determine
whether extraordinary circumstances existed. See id. at 298–300 (helicopter
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surveys of goshawk nests for years 1998–2000); id. at 289–97 (surveys for
goshawk for years 1999, 2000, 2002, and 2003); id. at 301–05 (surveys for three-
toed woodpeckers for years 1998, 2000, 2002); id. at 386–452 (survey for three-
toed woodpeckers for year 2000). 9
In sum, although the Forest Service found some possible effects, none were
potentially significant. As the Handbook clearly states, “[t]he mere presence of
one or more of these resource conditions does not preclude use of a categorical
exclusion.” Because we afford the Forest Service substantial deference in
interpreting its own regulations and because the agency exhibited no clear error of
judgment in its factual determinations, we find that the Forest Service has not
acted arbitrarily in concluding the Seven Mile Project did not trigger a finding of
extraordinary circumstances.
Accordingly, the Forest Service did not violate the APA when it
categorically excluded the Seven Mile Project.
B. 1982 and 2000 NFMA Regulations
9
We note that additional evidence may have been available to the district
court regarding effects to these species. UEC, however, provided us with a joint
appendix that excerpted only portions of the administrative record. Because many
of UEC’s cites in its brief were to other portions of the administrative record, we
could not verify them and were limited to the record before us. See 10th Cir. R.
10(b)(2) (2006) (“If the appellant intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence relevant to that
finding or conclusion.”).
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We next address UEC’s contention that the district court should have
applied the 1982 planning rules, instead of the 2000 transition provisions, when
reviewing the Forest Service’s compliance with the regulations’ species
monitoring requirements. UEC argues two points: (1) the 2000 transition
provisions were not effective at the time of the Project’s implementation; and (2)
even if the transition provisions were in effect, the Fishlake Forest Plan
incorporates the 1982 regulations for purposes of projects considered in the
Fishlake National Forest. The Forest Service disputes both arguments,
contending the 2000 transition provisions were effective for purposes of the
Project and that the Forest Plan’s species monitoring program is independent of
the 1982 rules.
Deciding whether the 1982 regulations apply to the Project, either of their
own accord or by virtue of the Forest Plan, is important because the 1982
regulations and the 2000 transition provisions contain key differences governing
species monitoring. The 1982 rules, for example, require the Forest Service to
monitor the “[p]opulation trends of the management indicator species” and
determine “relationships to habitat changes.” 36 C.F.R. § 219.19(a)(6). And we
have held that these obligations apply to “project level as well as plan level
management actions.” UEC I, 372 F.3d at 1225. Conversely, the 2000 transition
provisions contain no such explicit language governing monitoring but merely
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require “the responsible official [to] consider the best available science in
implementing” a forest plan. 36 C.F.R. § 219.35(a), (d) (2001); 65 Fed. Reg.
67,514, 67,579 (Nov. 9, 2000). See generally Utah Envtl. Cong. v. Bosworth, 439
F.3d 1184, 1190 (10th Cir. 2006) (“UEC II”) (quoting Forest Watch v. U.S.
Forest Serv., 410 F.3d 115, 117 (2d Cir. 2005), for the proposition that “the
standards of the 1982 Rules and the 2000 Transitional Rule are–at least–distinct .
. . .”).
1. Implementation of the 2000 Transition Provisions
We begin with UEC’s first argument: the 2000 transition provisions,
although implemented in November 2000, are nonetheless inapplicable to the
Seven Mile Project.
To be sure, courts have expressed considerable confusion in applying the
2000 transition provisions. See 69 Fed. Reg. 58,055, 58,055 (Sept. 29, 2004).
They have reached varying conclusions regarding the applicability of the
provisions to projects approved during the transition period. See, e.g., UEC II,
439 F.3d at 1189–90, 1195 (applying the 1982 rules because the Forest Service
conceded their applicability; the court noted it did not resolve the question of the
2000 transition provisions’ applicability); Forest Watch, 410 F.3d at 118 (holding
that the “plain language of the 2000 Transitional Rule” requires that “projects
‘implemented’ during the transition period must comply with the best available
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science standard”); Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797,
800 n.3 (9th Cir. 2005) (holding that the applicable NFMA planning regulations
are those in effect at the time “the plan revisions challenged in this lawsuit were
prepared”); Defenders of Wildlife v. Johanns, No. 04-4512, 2005 WL 2620564, at
*7 (N.D. Cal. Oct. 14, 2005) (unpublished opinion) (applying Natural Resources
to conclude that the “2004 Interpretative Rule may continue to be applied in cases
where the challenged action was taken during the 2004 Interpretative Rule’s
effective period”); Clinch Coal. v. Damon, 316 F. Supp. 2d 364, 381 (W.D. Va.
2004) (suggesting the 1982 planning rule would apply to a 2001 decision);
Shawnee Trail Conservancy v. Nicholas, 343 F. Supp. 2d 687, 707 (S.D. Ill. 2004)
(noting that “[o]n November 9, 2000, the Department of Agriculture made
wholesale changes to the relevant regulations, making prior citations obsolete”).
In an attempt to address this confusion, the Forest Service issued an
interpretative rule on September 29, 2004. Introducing the rule, the Forest
Service explained:
[I]t is clear that site-specific decisions entered into during the transition
period are not to comply with the substantive provisions of the 2000
planning rule. This interpretative rule clarifies that until a new final
rule is promulgated, the transition provisions of the 2000 planning rule,
as amended by the May 2002 interim final rule remain in effect . . . .
69 Fed. Reg. 58,055, 58,056 (Sept. 29, 2004). The interpretative provision
emphasized that “responsible officials consider the best available science in
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implementing national forest land management plans and, as appropriate, plan
amendments.” Id.
As to the continuing vitality of the 1982 provisions:
[T]he 1982 planning rule may continue to be used only for plan
amendments and revisions upon election of the responsible official.
Appropriate plan amendments and projects proposed during the
transition period should be developed considering the best available
science in accordance with § 219.35 paragraph (a). 10
Id. As we explained in UEC II, “the 2000 regulations rendered the 1982 rule
inoperative for project-specific decisions made after November 9, 2000. The
10
The relevant language governing the transition is found in 36 C.F.R.
§ 219.35(a)–(d) (2001):
(a) The transition period begins on November 9, 2000 and ends upon the
completion of the revision process (§ 219.9) for each unit of the National Forest
System. During the transition period, the responsible official must consider the
best available science in implementing and, if appropriate, amending the current
plan.
(b) If, as of November 9, 2000, a plan revision or amendment has been initiated
under the 1982 planning regulations in effect prior to November 9, 2000 (See 36
CFR part 219, revised as of July 1, 2000.) and if a notice of availability of a draft
environmental impact statement or an environmental assessment is published by
May 9, 2001 in the Federal Register, the responsible official may complete the
amendment or revision process under the 1982 regulations or adjust the process to
conform to the provisions of this subpart.
(c) If a review of lands not suited for timber production is required before the
completion of the revision process, the review must take place as described by the
provisions of § 219.28, except as provided in paragraph (b) of this section.
(d) Site-specific decisions made by the responsible official 3 years from
November 9, 2000 and afterward must be in conformance with the provisions of
this subpart.
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interpretative rule stated that, during the transition period between November
2000 and promulgation of a final rule, the Forest Service should use the ‘best
available science’ under § 219.35(a) for project decisions.” UEC II, 439 F.3d at
1189.
We afford an agency’s interpretation of its own regulations “substantial
deference,” Olenhouse, 42 F.3d at 1576, except in those instances where such
interpretation is “unreasonable, plainly erroneous, or inconsistent with the
regulation’s plain meaning.” Bar MK Ranches, 994 F.2d at 738. We recognize,
of course, that although interpretative rules can inform our decision, they do not
have the force and effect of law in the adjudicatory process. Shalala v. Guernsey
Mem’l Hosp., 514 U.S. 87, 99 (1995).
In conducting our analysis, then, we are guided primarily by the plain
meaning of the 2000 transition provisions as well as the Forest Service’s
interpretative rule. 11 However, before looking at this language, it is important to
In its brief, UEC directed us to our opinion in UEC II for the proposition
11
that the 1982 rules are applicable. However, the UEC II panel recently granted a
limited rehearing to modify the original opinion. This modified opinion removed
nearly all reference to its earlier rationale for finding the 1982 rules’
applicability. Significantly, the UEC II court continued to find the 1982 rules
applicable, but solely due to the Forest Service’s concession that it elected to
apply the 1982 rules. See UEC II, 439 F.3d at 1189 (stating that “[s]ignificantly,
and thankfully, the Forest Service now concedes on appeal that it has waived any
argument that the 2000 regulations apply”). The panel concluded its opinion,
stating “[w]e do not address whether the agency should apply the 1982 rule or the
2005 rule’s transition provision during further proceedings.” Id. at 1195.
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distinguish the terms used to define a forest plan generally from those used to
define specific projects implemented under a forest plan. This distinction is
crucial because the 2000 transition provisions endorse different standards for
forest plans generally and individual projects in particular. Thus, when the Forest
Service employs the term “plan,” as in “plan amendments and revisions,” “plan”
refers to forest plans generally. On the other hand, when the Forest Service uses
the term “project” or “implementing the plan,” the term refers to individual
projects.
With this distinction in mind, we turn to the text. The transition provisions
mandate that “[d]uring the transition period, the responsible official must consider
the best available science in implementing . . . the current plan.” 36 C.F.R.
§ 219.35(a) (emphasis added); cf. § 219.35(b) (“If, as of November 9, 2000, a
plan revision or amendment has been initiated under the 1982 planning
regulations . . . the responsible official may complete the amendment or revision
process under the 1982 regulations”) (emphasis added). This language is the sole
direction to the Forest Service regarding project-level actions. Nonetheless, it
leaves little doubt that the Forest Service is limited to consideration of the best
available science when approving a project during the transition period. The
interpretative rule confirms this interpretation, stating in no uncertain terms that
“projects proposed during the transition period should be developed considering
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the best available science.” 69 Fed. Reg. 58,055, 58,056 (Sept. 29, 2004)
(emphasis added). While it is true that interpretative rules are not legally binding
on this court, an agency’s interpretation should be given substantial deference
unless the interpretation is plainly erroneous. Here, the interpretative rule clearly
concludes the 1982 rules are no longer applicable for projects proposed during the
transition period. Thus, any projects proposed during the transition period must
conform with the best available science standard set forth in the 2000 transition
provisions.
While there may be many different interpretations for the term “proposed,”
under any definition we would conclude that the Seven Mile Project was proposed
during the transition period. The district ranger gave his final approval to the
Project in October 2004, well within the transition period. But even if we looked
to the time the Forest Service issued its first Decision Memorandum, that takes us
back only to May 2004. To be sure, initial evaluation of the Project began in
1999. But this initial evaluation is irrelevant to the ultimate discretion exercised
by the Forest Service. The Forest Service’s previous two attempts to create the
Seven Mile Project, first by categorical exclusion and later by environmental
assessment, both unequivocally rejected by the Regional Forester, do not bear on
the 2004 decision. Category 14 was not created until 2003. The Forest Service
did not begin a proposal under Category 14 until April 2004. Because the agency
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action arose from a categorical exclusion not developed until 2003 and because
the transition provisions were clearly in place at that time, the 1982 rules are not
applicable.
As a final matter, the interpretative rule would have constrained the Forest
Service’s conduct in this instance. The interpretative rule was issued on
September 29, 2004. The final authorization of the Seven Mile Project occurred
in October 2004. As the interpretative rule clarifies, “[T]he provisions of the
1982 planning rule may continue to be used only for plan amendments and
revisions upon election of the responsible official. Appropriate plan amendments
and projects proposed during the transition period should be developed
considering the best available science . . . .” 69 Fed. Reg. 58,055, 58,056 (Sept.
29, 2004) (emphasis added); see 70 Fed. Reg. 1023, 1024 (Jan. 5, 2005) (noting
that the 2002 interim rule allowed “Forest Service managers to elect to continue
preparing plan amendments and revisions under the 1982 planning rule”)
(emphasis added). While our court may not be bound by the interpretative rule,
certainly the agency itself is. In this respect, then, beginning on September 29,
2004, the date the interpretative rule was issued, the Forest Service was obligated
to consider the best available science, and not the 1982 rules, in its
implementation of the Seven Mile Project. In other words, the section of the 1982
rules which imposed an obligation on the Forest Service to monitor management
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indicator species over the life of a project, see UEC I, 372 F.3d at 1225, simply
could not have any effect as to those project-level actions taken after the
interpretative rule was issued.
2. Effect of the Fishlake Forest Plan
Finally, UEC argues that the Fishlake Forest Plan incorporated the 1982
regulations as its governing provision, as evidenced by the Forest Plan’s detailed
species monitoring requirements. The 1982 regulations, UEC argues, must
therefore be followed even if they have been subsequently repealed or modified.
We disagree.
No party disputes that the Forest Plan envisions a species monitoring
program for the Fishlake National Forest. It identifies, for example, several
management indicator species and states in its “Implementation” chapter that the
Forest Service will use “Population Trends” for management indicator species
monitoring. However, the Forest Plan does not explicitly require that the Forest
Service comply with the monitoring requirements of the 1982 rules. Nor can such
an obligation be reasonably implied. According to the Fishlake Forest Plan, it
was “developed under implementing regulations of . . . Title 36, Code of Federal
Regulations, Part 219 . . . .” Record of Decision for Fishlake National Forest
Plan, at 1. Yet, an extensive search of the Forest Plan reveals that it does not
explicitly reference or adopt § 219.19 of the 1982 rules, concerning the selection
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and monitoring of management indicator species. 12 Therefore, we cannot read the
Forest Plan to adopt the 1982 rules.
That is not to say, however, that the Forest Plan does not include some
requirements related to monitoring. It does. And the Forest Service must comply
with the Fishlake Forest Plan during the transition period. See 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.”); Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 730
(1998) (opining that before the Forest Service can begin a project, it must “ensure
that the project is consistent with the [applicable] Plan”); see also 36 C.F.R.
§ 219.14(f) (2005) (“For units with plans . . . in effect prior to November 9, 2000,
the Responsible Official may comply with any obligations relating to management
indicator species by considering data and analysis relating to habitat unless the
plan specifically requires population monitoring or population surveys for the
species.”); 69 Fed. Reg. 58,055, 58,056 (Sept. 29, 2004) (requiring “[p]rojects
implementing land management plans [to] be consistent with the provisions of the
governing plan”). But, it is only those requirements that arise solely from the
12
The Fishlake Forest Plan also recognizes that Forest Service regulations
may change. While the Plan generally remains constant, the regulations are fluid.
“During implementation of this Forest Plan, the Fishlake will be guided by
existing and future laws, regulations, policies, and guidelines. The Forest Plan is
designed to supplement, not replace, direction from these sources.” Forest Plan,
at V-1 (emphasis added).
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Forest Plan, not from the 1982 rules, to which the Forest Service must adhere.
In sum, the 1982 planning rules are not applicable to the Seven Mile
Project. Instead, the Project is subject to the transition provisions of the 2000
planning rules as interpreted by the Forest Service. Accordingly, in implementing
a project under the Forest Plan, the Forest Service “must consider the best
available science.” 36 C.F.R. § 219.35(a) (2001). 13 Since UEC does not argue
that the Forest Service failed to consider the best available science when it
implemented the Seven Mile Project, we find no error in the district court’s order
affirming the agency’s decision.
C. The Fishlake Forest Plan Monitoring Program
Finally, we address UEC’s challenge alleging the Forest Service failed to
comply with the Fishlake Forest Plan because it neither conducted annual
population trend surveys nor collected adequate population trend data for multiple
management indicator species. In essence, UEC argues that the Forest Plan
requires the collection of annual population trend data as a condition precedent to
the approval of the Seven Mile Project.
13
Although UEC points to UEC II for the proposition that the 1982 rules
apply, there is a principled distinction between the two cases: the instant
appellees never conceded, either in its briefs or during oral argument, that the
1982 rules apply. See UEC II, 439 F.3d at 1189. Nor may UEC I offer support
since the question of the 1982 rules’ applicability was never raised before that
court. See UEC I, 372 F.3d at 1221 n.1 (finding the 1982 regulations applied
since they were “[t]he regulations in effect at the time of the disputed Forest
Service decisions in this case”).
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Although conceding that individual projects must be consistent with the
applicable forest plan, the Forest Service contends it was not required to monitor
management indicator species as a condition precedent to approval of the Project.
It justifies this assertion with two separate arguments: (1) a court may only review
a claim of inadequate species monitoring under a forest plan if some relationship
exists between the required monitoring and the challenged project; and (2) the
Fishlake Forest Plan does not require data collection at the project-level. In any
event, the Forest Service argues, the compiled population trend data satisfied the
monitoring obligations under the Plan.
We agree with the Forest Service that monitoring of management indicator
species was not a condition precedent to approval of the Seven Mile Project. In
so holding, we conclude that the Fishlake Forest Plan does not require the
application of its monitoring requirements to a categorically excluded project, and
in any case, the Forest Service conducted MIS monitoring as set forth in the Plan.
1. Application of a Forest Plan’s Monitoring Requirements to a
Categorically Excluded Project
As we have already noted, our jurisdiction in this case arises under the
APA, since neither NEPA nor NFMA provide UEC a private cause of action.
Under the APA, a case may only be ripe for review if the federal conduct at
question constitutes a final agency action. 5 U.S.C. § 704; Colo. Farm Bureau
Fed’n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th Cir. 2000).
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Ordinarily, a forest plan’s forest-wide monitoring program is not subject to
judicial review because it does not constitute final agency action. Ecology Ctr.,
Inc. v. U.S. Forest Serv., 192 F.3d 922, 925–26 (9th Cir. 1999); see also Norton v.
S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (holding that Bureau of Land
Management’s failure to implement an off-road vehicle monitoring program was
not a final agency action). In limited circumstances, however, we may review a
monitoring program to the extent it bears on the approval of a particular project.
See Ecology Ctr., 192 F.3d at 926 n.6 (concluding that plaintiff may “raise claims
pertaining to inadequate monitoring by bringing an APA challenge to a final
decision”); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1067 (9th
Cir. 2002) (“Of course, not all forest-wide practices may be challenged on the
coattails of a site-specific action; there must be a relationship between the
lawfulness of the site-specific action and the practice challenged.”). In other
words, if a project’s approval is conditioned upon the fulfillment of certain
monitoring obligations, a plaintiff may bring a claim of deficient monitoring.
Without such a relationship, a claim of deficient monitoring simply is not
cognizable.
UEC has not shown a connection between the monitoring program and the
Seven Mile Project. More fundamentally, no showing has been made that the
applicable Forest Service regulations and directives conditioned approval of the
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Seven Mile Project, a project proposed pursuant to a categorical exclusion, on the
successful monitoring of management indicator species at either a forest-wide or
project level.
A categorical exclusion, by definition, only covers projects that will have
no significant or cumulative effect on the environment. As such, relatively little
analysis is required of the Forest Service once it determines that a project fits
within the four corners of a categorical exclusion. This is because the Forest
Service previously did the heavy lifting when it created the categorical
exclusion—it conducted an extensive environmental analysis and determined that
any project approved under a categorical exclusion would not produce a
significant or cumulative effect on the environment in the absence of
extraordinary circumstances. See, e.g., Colo. Wild v. U.S. Forest Serv., 435 F.3d
1204, 1210 (10th Cir. 2006) (explaining that the Forest Service performed “on-
site, post-implementation assessments of [the sample] projects’ environmental
effects” in order to determine whether the proposed categorical exclusion would
create a significant effect on the environment). Thus, to require monitoring,
documentation, and review of population trend data for species which do not
trigger an extraordinary circumstance would defeat the very purpose of the
categorical exclusion.
To be sure, the Fishlake Forest Plan in describing the monitoring
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requirements for management indicator species does not explicitly exempt
categorically excluded projects from such monitoring. However, monitoring is
required only where such data is relevant. And pre-implementation monitoring of
management indicator species is relevant only where population trend data is
necessary to evaluate a proposed project’s actual effect on the environment—such
as where (1) a proposed project will create a significant impact on the
environment, thus requiring an environmental impact statement, or (2) a proposed
project’s impact is uncertain, thus requiring an environmental assessment. See
Forest Plan, at V-2 (noting that the monitoring program assists in determining
“whether the effects of implementation are as predicted”).
In contrast, monitoring is merely cumulative in the case of a categorical
exclusion because the Forest Service has already performed an extensive
environmental analysis of representative projects that fall within the exclusion.
See Colo. Wild, 435 F.3d at 1210–11 (describing the Forest Service’s
development of Category 14). The only exceptions are those projects where
extraordinary circumstances may be present. Thus, small projects amenable to a
categorical exclusion—small construction projects and low acreage forest
treatment— require monitoring of those species which may trigger an
extraordinary circumstance.
It finally should be noted the Fishlake Forest Plan itself provides that it is
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designed to “supplement, not replace, direction” from “existing and future laws,
regulations, policies, and guidelines.” Id. at V-1. Such is the case here: the
Seven Mile Project was pre-determined to produce no significant effects on the
environment and otherwise determined not to involve any extraordinary
circumstances, therefore being approved pursuant to a categorical exclusion.
In sum, approval of a project under a categorical exclusion is not only
meant to be analytically simple, but easy to implement. Consequently, neither
Forest Service regulations nor the Forest Plan requires monitoring of management
indicator species as a condition precedent to the approval of a categorically
excluded project. 14 Accordingly, the Forest Service had no obligation to conform
with the monitoring program set forth in the Fishlake Forest Plan before it
approved the Seven Mile Project.
2. Population Trend Data
In any event, we hold that the Forest Service collected adequate population
trend data to conclude that the Seven Mile Project could be approved pursuant to
a categorical exclusion. The Forest Plan requires annual population trend
monitoring of management indicator species including, “Bonneville Cutthroat
Trout, threatened plant species, nongame species, and macroinvertebrates.”
14
We are careful to distinguish analysis of those species which trigger
application of extraordinary circumstances under a categorical exclusion—an
issue we squarely addressed and resolved in supra Part III.A.2.
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Forest Plan, at Table V-1. UEC alleges that the Forest Service has not complied
with this provision in several respects, resulting in inadequate data by which to
measure the Project’s effect on fish and bird species.
a) Aquatic Management Indicator Species
First, UEC argues the Forest Service failed to collect population trend data
for Bonneville Cutthroat Trout, macroinvertebrates, and resident trout (including
brown, brook, cutthroat, rainbow, and lake trout). We disagree.
Forest-wide trends for these species have been documented. See J.A 504
(Bonneville Cutthroat Trout); id. at 505 (resident trout); id. at 506
(macroinvertebrates); see also Fishlake National Forest Plan Monitoring and
Evaluation Report (Dec. 2003) (population trend data covering 1977–2002).
Project-level data, however, were not collected because no fish-bearing streams
and lakes exist within the cumulative effects area. See J.A. 510 (“No streams,
lakes, or ponds present within the proposed project area.”).
b) Avian Management Indicator Species
UEC also asserts that the Forest Service failed to collect annual population
trend data for various avian species, in particular the hairy woodpecker, western
bluebird, Lincoln’s sparrow, song sparrow, Brewer’s sparrow, yellow warbler,
and vesper sparrow. Again, we disagree.
Population trend data for each of these management indicator species,
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sufficient to satisfy the Forest Service’s monitoring obligations under the Plan,
have been detailed in the Life History and Analysis of Endangered, Threatened,
Candidate, Sensitive, and Management Indicator Species of the Fishlake National
Forest (2004) (“Life History Report”) as well as other documentation related to
the Project. While we recognize that the Forest Service did not collect annual
population trend data in every instance, its data was nonetheless ample to support
the district ranger’s decision to approve the Seven Mile Project pursuant to a
categorical exclusion.
Hairy Woodpecker. Forest-wide population trend data is available for the
hairy woodpecker from 1968 to 1998, 2001, and 2002, showing a stable
population which is “likely viable” across the Forest. See J.A. 157–61 (Life
History Report); id. at 203–08 (Cavity Nesting Study); id. at 528–29
(Environmental Assessment). Project-level data from 2001 is available. See id.
at 205–07 (Cavity Nesting Study).
Western Bluebird. Forest-wide data shows an upward trend in the western
bluebird population, based on data collected from 1968 to 1998, 2001, and 2002.
See id. at 161–66 (Life History Report); id. at 203–08 (Cavity Nesting Study); id.
at 528–29 (Environmental Assessment). Project-level data from 2001 is
available. See id. at 205–07 (Cavity Nesting Study).
Lincoln’s Sparrow. Forest-wide data shows an upward trend in the
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Lincoln’s sparrow population, based on data collected from 1968 to 1998, 2001,
and 2002. See id. at 161–66 (Life History Report); id. at 531 (Environmental
Assessment); id. at 250–87 (Riparian Bird Survey). Additionally, district-level
data from 2002 is available. See id. at 251–54, 260, 267–69, 275 (Riparian Bird
Survey). However, project-level data for this species has not been collected
because, although the Lincoln’s sparrow may use the Seven Mile Valley area for
breeding or nesting habitat during the spring and summer, it would not use the
Project area itself. Id. at 531.
Song Sparrow. Forest-wide data shows a slightly upward trend in the song
sparrow population based on data collected from 1968 to 1998, and 2002. See id.
at 177–81 (Life History Report); id. at 531 (Environmental Assessment); id. at
250–87 (Riparian Bird Survey). Additionally, district-level data from 2002 is
available. See id. at 251–54, 260, 267–69, 275 (Riparian Bird Survey). However,
like the Lincoln’s sparrow, project-level data is not available because the song
sparrow would not use the Project area for breeding and nesting. Id. at 531.
Yellow Warbler. Forest-wide data shows a stable, to slightly upward trend
in the yellow warbler population, based on data collected from 1968 to 1998, and
2002. See id. at 182–86 (Life History Report); id. at 531 (Environmental
Assessment); id. at 250-87 (Riparian Bird Survey). District-level data from 2002
is also available. See id. at 251–54, 260, 267–69, 275 (Riparian Bird Survey).
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However, like both the Lincoln’s sparrow and the song sparrow, no project-level
data is available because the yellow warbler does not use the Project area for
breeding and nesting. Id. at 531.
Brewer’s Sparrow. Forest-wide data shows an upward trend in the
Brewer’s sparrow population, based on data collected from 1968 to 1998, and
2002. See id. at 187–92 (Life History Report). However, no suitable nesting or
breeding habitat is found within the Project area, and consequently no project-
level data is available. Id. at 530 (Environmental Assessment).
Vesper Sparrow. Finally, forest-wide data shows a stable or slightly
upward trend in the vesper sparrow population, based on data collected from 1968
to 1998, and 2002. See id. at 193–97 (Life History Report). However, no suitable
nesting or breeding habitat is found within the Project area, and consequently no
project-level data is available. Id. at 530 (Environmental Assessment).
* * *
Accordingly, since the Forest Plan’s monitoring obligations are
inapplicable to projects subject to categorical exclusions such as the Seven Mile
Project, and because, even if applicable, the Forest Service collected adequate
population trend data for approval of a categorically excluded project, UEC has
failed to demonstrate the Forest Service’s approval of the Seven Mile Project is
arbitrary and capricious.
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IV. Conclusion
We AFFIRM the district court’s order finding the Seven Mile Spruce Beetle
Management Project in compliance with the Administrative Procedures Act, the
National Environmental Policy Act, and the National Forest Management Act.
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