Alliance for the Wild Rockies v. Usfs

907 F.3d 1105

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 25 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ALLIANCE FOR THE WILD ROCKIES; No. 16-35829 IDAHO SPORTING CONGRESS; NATIVE ECOSYSTEMS COUNCIL, D.C. No. 1:15-cv-00193-EJL District of Idaho, Plaintiffs-Appellants, Boise

v. ORDER

UNITED STATES FOREST SERVICE; THOMAS TIDWELL, Chief of the Forest Service; KEITH LANNOM, Forest Supervisor for Payette National Forest; NORA RASURE, Regional Forester for Region 4 for the U.S. Forest Service,

Defendants-Appellees,

and

ADAMS COUNTY, a political subdivision of the State of Idaho; PAYETTE FOREST COALITION, an unincorporated Idaho association,

Intervenor-Defendants- Appellees.

Before: M. SMITH and MURGUIA, Circuit Judges, and ROBRENO, * District Judge.

* The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. The opinion filed August 13, 2018, and appearing at 899 F.3d 970, is hereby

amended. An amended opinion is filed herewith.

The petitions for panel rehearing are DENIED (Doc. 58, 61). No further

petitions for rehearing or rehearing en banc will be entertained in this case.

Appellant’s Emergency Motion for Injunction and Appellees’ Motion to file

an oversized response are DENIED as moot (Docs. 65, 68).

The Clerk is DIRECTED to immediately issue the mandate.

2 FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD ROCKIES; No. 16-35829 IDAHO SPORTING CONGRESS; NATIVE ECOSYSTEMS COUNCIL, D.C. No. 1:15-cv-00193-EJL

Plaintiffs-Appellants, AMENDED OPINION v.

UNITED STATES FOREST SERVICE; THOMAS TIDWELL, Chief of the Forest Service; KEITH LANNOM, Forest Supervisor for Payette National Forest; NORA RASURE, Regional Forester for Region 4 for the U.S. Forest Service,

ADAMS COUNTY, a political subdivision of the State of Idaho; PAYETTE FOREST COALITION, an unincorporated Idaho association,

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Argued and Submitted February 5, 2018 Seattle, Washington Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit Judges, and Eduardo C. Robreno, * District Judge.

Opinion by Judge MURGUIA, Circuit Judge:

This case requires us to determine whether the Forest Service’s management

direction for a particular section of Idaho’s Payette National Forest is consistent

with the management direction that governs the forest as a whole. In September

2014, the United States Forest Service approved the Lost Creek-Boulder Creek

Landscape Restoration Project (“Lost Creek Project” or “Project”), which

proposed landscape restoration activities on approximately 80,000 acres of the

Payette National Forest. Following approval of the Project, Plaintiffs-Appellants

the Alliance for the Wild Rockies, Idaho Sporting Congress, and Native

Ecosystems Council (collectively, “Alliance”) filed suit in federal court, claiming

Defendants-Appellees United States Forest Service, Thomas Tidwell, Keith

Lannom, and Nora Rasure (collectively, “Forest Service”) violated the National

Forest Management Act (“NFMA”) by failing to adhere to the requirements of the

2003 Payette National Forest Land and Resource Management Plan (“the Payette

Forest Plan” or “the 2003 Plan”). The 2003 Plan governs management decisions on

all land within the Payette National Forest, including the Lost Creek Project.

* The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

2 Specifically, the Alliance claimed that the Forest Service acted inconsistently with

the Payette Forest Plan, in a manner that would harm certain habitat within the

forest, when it created a new definition for “old forest habitat” and designated

certain land to be managed for landscape restoration, as opposed to commodity

production. According to the Alliance, although the Lost Creek Project espoused

certain environmental benefits, the upshot of these decisions would be an increase

in commercial logging and a decrease in habitat protected as “old forest.” The

Alliance also claimed the Forest Service violated the National Environmental

Policy Act (“NEPA”) by improperly incorporating the analysis of—or “tiering

to”—prior agency documents that did not undergo a full NEPA review. Finally, the

Alliance claimed the Forest Service violated the Endangered Species Act (“ESA”)

by failing to reinitiate consultation with the United States Fish and Wildlife

Service regarding the effects on critical habitat for the bull trout.

In its present appeal, the Alliance challenges the district court’s grant of

summary judgment in favor of the Forest Service and Intervenor-Defendants-

Appellees Adams County and the Payette Forest Coalition (collectively, “Adams

County”). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and

reverse and remand in part.

I. Statutory & Factual Background

A. The NFMA

3 The NFMA charges the Forest Service with the management of national

forest land, including planning for the protection and use of the land and its natural

resources. See 16 U.S.C. § 1600 et seq. Under NFMA, forest land management

occurs on two levels: (1) the forest level, and (2) the individual project level.

Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). “On

the forest level, the Forest Service develops a Land and Resource Management

Plan (forest plan), which consists of broad, long-term plans and objectives for the

entire forest.” Id. The forest plan is then implemented at the project level. See id.

Site-specific projects and activities must be consistent with an approved forest

plan. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e)(1998)1; Native Ecosystems

Council v. U.S. Forest Serv., 418 F.3d 953, 961 (9th Cir. 2005) (“It is well-settled

that the Forest Service’s failure to comply with the provisions of a Forest Plan is a

violation of NFMA.”); Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957,

962 (9th Cir. 2002) (“[A]ll management activities undertaken by the Forest Service

must comply with the forest plan, which in turn must comply with the Forest

1 Our original opinion cited to 36 C.F.R. § 219.15. However, because the Payette National Forest Plan was adopted pursuant to the 1982 regulations, the newer regulations, promulgated in 2012, are inapplicable. 36 C.F.R. § 219.17(c) ("None of the requirements of this part apply to projects or activities on units with plans developed or revised under a prior planning rule until the plan is revised under this part.").

4 Act . . . .”). A project is consistent if it conforms to the applicable “components” of

the forest plan, including the standards, guidelines, and desired conditions that are

set forth in the forest plan and that collectively establish the details of forest

management. Consistency under agency regulations depends upon the component

type. The Forest Service must strictly comply with a forest plan’s “standards,”

which are considered binding limitations, but it may deviate from the forest plan’s

“guidelines,” so long as the rationale for deviation is documented.

B. NEPA

“NEPA is a procedural statute that requires the federal government to

carefully consider the impacts of and alternatives to major environmental decisions.”

Weldon, 697 F.3d at 1051. “The National Environmental Policy Act has twin aims.

First, it places upon [a federal] agency the obligation to consider every significant

aspect of the environmental impact of a proposed action. Second, it ensures that the

agency will inform the public that it has indeed considered environmental concerns

in its decisionmaking process.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d

1062, 1066 (9th Cir. 2002) (alteration in original) (internal quotation marks and

citation omitted). “NEPA requires agencies to take a ‘hard look’ at the

environmental consequences of proposed agency actions before those actions are

undertaken.” All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1215 (9th Cir.

2017) (citation omitted).

5 C. The Payette National Forest

The Payette National Forest contains approximately 2,300,000 acres of

national forest system lands in west central Idaho. The region is 87% forested and

contains portions of the Salmon, Payette, and Weiser River systems and parts of

the Salmon River Mountains. It is home to many species, including the threatened

bull trout.

The Payette National Forest is managed in accordance with the 2003 Payette

Forest Plan, pursuant to the NFMA. Emphasizing restoration and maintenance of

vegetation and watershed conditions, the 2003 Plan divides the Payette Forest into

14 sections that are called “management areas” (“MA”). The land within each MA

is assigned to various categories that determine how the land is managed. These

categories are called Management Prescription Categories (“MPC”). The

categories range from “Wilderness” (MPC 1.0) to “Concentrated Development”

(MPC 8.0).

Relevant here, MPC 5.1 places an emphasis on landscape restoration in

order to provide habitat diversity, reduced fire risk, and “sustainable resources for

human use.” Timber harvest may occur on MPC 5.1 land, as an outcome of

maintaining resistance to fire, but timber yield is not the primary purpose. MPC 5.1

constitutes 193,000 acres of the Payette Forest under the Payette Forest Plan. In

contrast, MPC 5.2 is forested land that has an emphasis on achieving sustainable

6 resources for commodity outputs, such as timber production. MPC 5.2 constitutes

247,000 acres under the 2003 Plan.

In 2011, the Forest Service proposed amendments to the Payette Forest Plan.

The proposed amendments, which were called the Wildlife Conservation Strategy

(“WCS”), would prioritize activities that would help maintain or restore habitat for

certain species of wildlife that the Forest Service determined were in greatest need

of conservation. Relevant here, the WCS amendments proposed deleting MPC 5.2

(commodity production) in its entirety, and replacing it with MPC 5.1

(restoration).2 The WCS amendments also proposed changes to Appendix E of the

2003 Payette Forest Plan, to include a new criteria for defining “Old Forest

Habitat,” a designation that refers to older habitat marked by large trees and which

is particularly good habitat for wildlife. The Forest Service released a draft

environmental impact statement (“WCS DEIS”) for the proposed amendments

pursuant to NEPA. However, following the public comment period on the WCS

DEIS, the Forest Service stopped the process, and the WCS amendments were

never adopted, leaving the 2003 Payette Forest Plan fully in effect. According to

2 The switch to a restoration emphasis under MPC 5.1 reflected the Forest Service’s desire to improve habitat conditions for certain species, including the white-headed woodpecker, but, according to the Alliance, did not necessarily benefit other ESA-listed species. The switch to MPC 5.1 also resulted in increased land authorized for commercial and non-commercial logging.

7 the Alliance, the WCS amendments, including the switch from MPC 5.2 to MPC

5.1 and the new definition of “Old Forest Habitat,” were controversial policies that

paved the way for logging more trees.

D. The Lost-Creek Project

In 2012, the Forest Service initiated the Lost Creek Project, which proposed

landscape restoration activities on approximately 80,000 acres of the Payette

National Forest, including commercial and non-commercial logging, prescribed

fires, road closures, and recreation improvements. The Project area spans three

management areas, MA3 (Weiser River), MA4 (Rapid River), and MA5 (Middle

Little Salmon River), and includes land designated for “restoration” (MPC 5.1) and

“commercial production” (MPC 5.2) under the 2003 Plan. In the Project’s final

environmental impact statement (“Project FEIS”) published in March 2014, the

Forest Service states that the purpose of the Project is to move vegetation toward

the Forest Plan’s “desired conditions,” which are those conditions deemed

desirable to achieve the specific purpose for each MPC. The FEIS further states

that the Project is “consistent with the science in the Forest’s [WCS DEIS],” which

includes improving habitat for species of concern, maintaining and promoting large

tree forest structure and forest resiliency, and reducing the risk of undesirable

wildland fire. The Project also aims to restore certain streams, with an emphasis on

restoring habitat occupied by ESA-listed species, such as the bull trout.

8 In September 2014, the Forest Service entered the final record of decision

(ROD) for the Lost Creek Project, selecting, from the five alternatives discussed in

the FEIS, a modified version of Alternative B, which implemented recreation

improvement, road management, watershed restoration, and vegetation

management, including 22,100 acres of commercial logging and approximately

17,700 acres of non-commercial logging. In the ROD, the Forest Service also

approved a “minimum road system” for the Project, decommissioning

approximately 68 miles of roads and designating 401 miles of roads for

maintenance or improvement in the Project area.

In June 2015, the Alliance filed suit in the District of Idaho, alleging the

Forest Service violated the NFMA, ESA, and NEPA and acted arbitrarily and

capriciously under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 706(2)(A), when it finalized the Lost Creek Project. The Alliance requested the

district court enjoin implementation of the Project. On August 31, 2016, the district

court granted summary judgment for the Forest Service and Adams County,

concluding that the Project was consistent with the 2003 Forest Plan and applicable

law, and that the Forest Service had not acted arbitrarily or capriciously in

approving the Project. Notably, the district court concluded that the Lost Creek

Project was consistent with the 2003 Payette Forest Plan. The district court denied

the Alliance’s cross-motion for summary judgment, and entered judgment in favor

9 of the Forest Service. The Alliance timely appealed.

II. Standard of Review

The court reviews challenges to final agency action decided on summary

judgment de novo. Turtle Island Restoration Network v. Nat’l Marine Fisheries

Serv., 340 F.3d 969, 973 (9th Cir. 2003). Review is based on the administrative

record. Camp v. Pitts, 411 U.S. 138, 142 (1973).

Agency decisions that allegedly violated NFMA and NEPA are reviewed

under the APA. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233,

1238 (9th Cir. 2005). Under the APA, courts shall “hold unlawful and set aside

agency action, findings, and conclusions found to be . . . arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). “The scope of review under the ‘arbitrary and capricious’ standard is

narrow and a court is not to substitute its judgment for that of the agency.” Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). Nevertheless, the agency must “examine the relevant data and articulate a

satisfactory explanation for its action.” Turtle Island Restoration Network v. U.S.

Dep’t of Commerce, 878 F.3d 725, 732 (9th Cir. 2017) (internal quotation marks

and citation omitted). We will strike down an agency action as arbitrary and

capricious “if the agency has relied on factors which Congress has not intended it

to consider, entirely failed to consider an important aspect of the problem, offered

10 an explanation for its decision that runs counter to the evidence before the agency,

or if the agency’s decision is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” Id. at 732–33 (internal

quotation marks and citation omitted).

III. Discussion

A. The Project’s Change from MPC 5.2 to MPC 5.1

The 2003 Payette Forest Plan sets forth a management directive for the

Payette National Forest by establishing desired conditions for the forest, and then

setting standards and guidelines designed to achieve or maintain those conditions.

In sum, the desired conditions can be viewed as the long-term goals for the forest

as a whole, and the Plan’s standards and guidelines set forth the manner in which

the Forest Service is to achieve those goals. Any site-specific project must be

consistent with the Forest Plan. See 16 U.S.C. § 1604(i).

Here, the Alliance argues that the Project is inconsistent with each of these

three Forest Plan components—standards, guidelines, and desired conditions.

Specifically, under the 2003 Plan, certain land is designated as MPC 5.1

(restoration) and certain land is designated as MPC 5.2 (commodity production).

At issue in the present suit, the Lost Creek Project eliminates MPC 5.2 in its

entirety and replaces it with MPC 5.1, which affects land in MA3. The Alliance

argues that the final ROD for the Lost Creek Project is arbitrary and capricious

11 because the standards, guidelines, and desired conditions that determine the forest

conditions for MPC 5.1 are different from those for MPC 5.2. We agree. We

address the Forest Plan’s standards, guidelines, and desired conditions in turn.

1. Standards

“Standards” are binding limitations typically designed to prevent

degradation of current resource conditions. The switch from MPC 5.2 to MPC 5.1

resulted in the loss of at least one fire standard on MA3.

A site-specific project must comply with the standards set forth in the

governing forest plan, and a project’s deviation from a standard requires

amendment to the forest plan. Here, the switch from MPC 5.2 to MPC 5.1 would

lead to the loss of Fire Standard 0312, which states that “[w]ildland fire use is

prohibited.” MPC 5.2 contains a binding fire standard, whereas MPC 5.1 contains

no fire standards at all. Because standards are binding limitations on Forest

Service’s activity, the elimination of this fire standard on the Project’s newly-

designated MPC 5.1 land constitutes a clear violation of the NFMA. See 16 U.S.C.

§ 1604(i); Native Ecosystems Council, 418 F.3d at 961.

Adams County urges this Court to overlook this inconsistency on the ground

that the fire proscriptions for MPC 5.1 and MPC 5.2 are “substantially similar,” in

that only prescribed fire may be used under either category. We decline to

speculate on the effects of prescribed fire on MA3, which is not discussed by the

12 agency in support of its conclusion that the Lost Project is consistent with the

Forest Plan. It is undisputed that MPC 5.1 establishes no fire standards for MA3.

Rather, MPC 5.1 contains Fire Guideline 0309, which permits the “full range of

treatment activities, except wildland fire use” on land within MA3. Though the

Forest Service argues that the Project area will be more resilient to fire after the

switch to MPC 5.1, it is not clear that Fire Guideline 0309 constitutes the complete,

binding prohibition on wildland fire contained in Fire Standard 0312. Moreover,

our scope of review does not include attempting to discern whether the new

standards are substantially similar. See Native Ecosystems Council, 418 F.3d at 961

(“Our scope of review does not include attempting to discern which, if any, of a

validly-enacted Forest Plan’s requirements the agency thinks are relevant or

meaningful. If the Forest Service thinks any provision of the 1986 HNF Plan is no

longer relevant, the agency should propose amendments to the HNF Plan altering

its standards, in a process complying with NEPA and NFMA, rather than discount

its importance in environmental compliance documents.”). In any event, a

guideline does not impose a mandatory constraint on project planning and activity

in the way a standard does. See 36 C.F.R. § 219.7(e)(1)(iii)–(iv). Accordingly, we

conclude that the switch from MPC 5.2 to MPC 5.1, which resulted in the loss of a

binding standard under the existing Forest Plan, constitutes a violation of the

NFMA. See 16 U.S.C. § 1604(i) (“Resource plans and permits, contracts, and other

13 instruments for the use and occupancy of National Forest System lands shall be

consistent with the land management plans.”). The Forest Service’s failure to

articulate a rational explanation for deviation from the Plan’s standard and from

agency regulations that require consistency with the Plan was arbitrary and

capricious. See Native Ecosystems Council, 418 F.3d at 964; see also Sierra Forest

Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011) (“Agency decisions that

allegedly violate . . . NFMA are reviewed under the [APA], and may be set aside

only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” (quoting Or. Natural Res. Council Fund v. Goodman, 505

F.3d 884, 889 (9th Cir. 2007)).

2. Guidelines

The Lost Creek Project similarly deviates from the 2003 Plan’s guidelines.

“Guidelines” are a “preferred or advisable course of action” to help maintain or

restore resource conditions or prevent resource degradation. According to the 2003

Plan, “[d]eviation from compliance [with guidelines] does not require a Forest Plan

amendment . . ., but rational for deviation must be documented in the project

decision document.” In MA3, the elimination of MPC 5.2 results in the loss of Fire

Guideline 0313, which details when prescribed fire may be used. The Forest

Service does not explain, or for that matter attempt to explain, how the elimination

of this guideline in the Lost Creek Project is consistent with the 2003 Plan, or how

14 the Project as a whole is as effective as the 2003 Plan in achieving the purpose of

the applicable guidelines, as is required by the Plan itself. Rather, the management

direction for MA3 simply states that Fire Guideline 0313 will be deleted, without

discussing any replacement provision. Moreover, the Forest Service’s explanation

of “consistency” in the Project FEIS does not reconcile the loss of MPC 5.2’s

guidelines, but contains only the bare statement that MPC 5.2 is “[o]utside the

scope of the project.” The agency is required to “articulate a satisfactory

explanation for its action.” Turtle Island Restoration Network, 878 F.3d at 732

(quoting Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. at 43). Here, the agency’s

explanation is, in effect, no explanation at all. Accordingly, we conclude that the

elimination of the existing guideline was contrary to the 2003 Plan in violation of

the NFMA, see 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e)(1998); Native

Ecosystems Council, 418 F.3d at 961, and the Forest Service’s failure to articulate

a satisfactory explanation for the elimination of Fire Guideline 0313 was arbitrary

and capricious.

3. Desired Conditions

The switch from MPC 5.2 to MPC 5.1 similarly renders the Project

inconsistent with the desired vegetative conditions set forth in the Payette Forest

Plan. Appendix A to the 2003 Plan sets forth desired vegetative conditions for the

Payette Forest. It is undisputed that the desired vegetative conditions for MPC 5.2

15 land differ from those of all other MPCs under the 2003 Plan, specifically with

regards to tree size class and canopy distribution. Roughly stated, land within MPC

5.2 should have fewer large trees and a greater degree of canopy closure, whereas

land outside MPC 5.2 should have a higher percentage of large trees and a lower

percentage of canopy cover. 3

The Forest Service and Adams County concede that the switch from MPC

5.2 to MPC 5.1 constitutes a departure from the desired conditions set forth in the

2003 Plan, but urge this Court to accept that desired conditions are “flexible” and

may be altered in the short term. For the reasons discussed below, although we

agree with Defendants that the Plan grants the Forest Service a certain degree of

flexibility in the short term, we conclude that the Plan does not permit the Forest

Service to abandon desired conditions in favor of different conditions entirely,

without consideration of effects in the long term.

3 The Plan delineates the desired conditions for each “potential vegetation group” (PVG), both within MPC 5.2 and outside of MPC 5.2. For example, with regards to tree size, areas of “Dry Grand Fir” (PVG 5) outside MPC 5.2 should be composed of 3-4% grass, forb, shrub and seedling, and 66-84% large trees. In contrast, within MPC 5.2, the desired composition of tree size for PVG 5 is 4-7% grass, forb, shrub and seedling, and 33-65% large trees. Similarly, with regard to canopy distribution, there is a difference in the desired conditions on MPC 5.2 land versus non-MPC 5.2 land. For example, looking at areas of “Dry Grand Fir,” on MPC 5.2 land, 3-23% of the canopy should have “low closure,” whereas on non- MPC 5.2 land, 25-45% of the canopy should have low closure.

16 “Desired condition” is defined in the Payette Forest Plan as “a portrayal of

the land, resource, or social and economic conditions that are expected in 50–100

years if management goals and objectives are achieved. A vision of the long-term

conditions of the land.” The 2003 Plan contemplates that movement away from a

desired condition in the short term may facilitate the achievement of the desired

condition in the long term. The Plan’s Vegetation Guideline VEGU01 states:

During site/project-scale analysis, tradeoffs in the achievement of one or more of the vegetative components described in Appendix A may need to be considered. Current conditions of the vegetation may necessitate the need to move one component away from the desired condition in order to move another one toward the desired condition. In these situations, decisions should be based not only on which vegetative component is important to emphasize at any point in time to meet resource objectives, but also how to effectively move all components toward their desired condition over the long term.

Citing to this language, Adams County argues the Project’s switch from MPC 5.2

to MPC 5.1 is a short-term trade-off that will not preclude the Forest from moving

closer to the MPC 5.2 desired conditions specified in the 2003 Plan. We disagree.

The 2003 Plan permits the Forest Service to deviate from the desired

conditions in one vegetative component, if that deviation will help achieve those

desired conditions in another vegetative component. VEGU01 does not authorize

the elimination of the desired conditions for MPC 5.2 and their replacement with

the desired conditions in MPC 5.1, as occurred here. Rather, VEGU01 instructs the

17 Forest Service to manage the Plan’s vegetative components in a manner that moves

all components toward their desired conditions in the long term. The Forest Service

has not articulated how the switch from MPC 5.2 to MPC 5.1 moves all

components toward their desired conditions over the long term, as it is required to

do under the 2003 Plan and agency regulations. Rather, the Forest Service has

simply replaced the existing desired conditions with new and different ones.

We reject Adams County’s contention that the switch to from MPC 5.2 to

MPC 5.1 avoids any unlawful inconsistencies because desired conditions may still

be achieved in the long term. Adams County relies on a “White Paper regarding

MPC 5.1 vs 5.2 desired conditions,” authored by Forest Vegetation Specialist Paul

Klasner, which states that the switch to MPC 5.1 does not preclude attainment of

MPC 5.2 desired conditions because “[f]uture project decisions in the LCBC

project area could still choose to move closer to the desired conditions for MPC 5.2

as this decision would not preclude the attainment of MPC 5.2 desired conditions.”

Even assuming that Mr. Klasner’s white paper represents the official position of

the agency, the abstract possibility that the Forest Service may someday revert

back to the desired conditions set forth in the 2003 Forest Plan is not evidence that

the present deviation will move the Forest closer toward existing desired

18 conditions over the long term, as is required to show consistency with the 2003

Plan. 4

In its remaining points, the Forest Service seeks to reassure us that MPC 5.1

is consistent with the 2003 Plan, by reference to portions of the Project FEIS and

the Plan containing highly technical discussions of vegetation conditions. This is

not a statement of consistency that the Court can reasonably be expected to review

or that is entitled to deference. See Friends of the Wild Swan v. Weber, 767 F.3d

936, 947 (9th Cir. 2014) (“The Forest Service’s interpretation and implementation

of its own forest plan is entitled to substantial deference, but we must be able to

reasonably discern from the record that the Forest Service complied with the plan’s

standards.” (internal quotation marks and citations omitted)); see also Nat. Res.

Def. Council, 828 F.3d at 1132–33 (“[I]f the agency itself did not provide reasons

to satisfy the above standard, we will not use our own line of reasoning to bolster

the agency decision on grounds that it did not include in its reasoning.”).

Moreover, the Forest Service’s assurances on appeal are not reflected in the record,

which shows clear deviations from the desired condition set forth in the 2003 Plan.

4 Under the APA, an agency may rely on the position stated in a white paper, but must still explain its decision sufficiently to determine compliance with applicable law. See Nat. Res. Def. Council, Inc. v. Pritzker, 828 F.3d 1125, 1140 (9th Cir. 2016). Adams County overlooks the fact that in the Project FEIS the Forest Service neither relies on Mr. Klasner’s white paper, nor explains how the new desired vegetative conditions comply with the Forest Plan.

19 See Native Ecosystems Council v. Tidwell, 599 F.3d 926, 936 (9th Cir. 2010)

(“fuzzy assurance[s]” do not erase the specific inconsistencies identified in the

record). For these reasons, we conclude that the switch from MPC 5.2 to MPC 5.1,

which resulted in the imposition of new desired vegetative conditions with the

potential to alter the landscape, was inconsistent with the 2003 Plan. See 16 U.S.C.

§ 1604(i); 36 C.F.R. § 219.10(e) (1998).

B. The Project’s Definition of “Old Forest”

In its second NFMA claim, the Alliance contends that the Project’s

definition for “old forest habitat” is inconsistent with the definition of “old forest”

in the 2003 Forest Plan. Specifically, the Alliance contends that the Project uses

the criteria for “old forest habitat” found in the WCS amendments, as opposed to

the Plan.

Appendix A to the 2003 Forest Plan establishes the desired vegetative

conditions for “old forest.” Unlike the switch from MPC 5.2 to MPC 5.1, which

was limited to land in MA3, a change to the definition of “old forest” potentially

affects vegetation conditions throughout the Lost Creek Project.

Here, again, the Lost Creek Project deviates from a standard set forth in the

Payette Forest Plan. In its discussion of old forest and old growth, the 2003 Plan

sets forth a standard that requires maintaining at least 20 percent of the acres

20 within each forested PVG in the large tree size class. 5 This standard is aimed at

helping certain species that are dependent upon large trees. Where the large tree

size class constitutes less than 20 percent of the total PVG acreage, management

action shall not decreases the current area occupied by the large tree size class,

except where, among other things, management actions would not degrade or

retard attainment of desired vegetation conditions in the short or long-term.

The Project FEIS does not discuss this standard. It also adopts the definition

of “old forest habitat” from the WCS DEIS, instead of the definitions of “old

forest” and “old growth” from the 2003 Plan. On appeal the Forest Service assures

the Court that there has been no change to the definition of “old forest,” only

newly-added quantitative criteria that “flesh out” the Plan’s existing definition of

“old forest.” In spite of these assurances on appeal, the Project FEIS clearly states

that “no stands have been identified in the project area that meet all attributes that

characterize old forest habitat as defined in proposed [WCS amendments].” This is

facially inconsistent with the Plan, which acknowledges historic presence of both

large tree size class and old growth in virtually all of the PVGs, and mandates

specific percentage of large tree size class on each PVG.

5 The Lost Creek Project area contains all of the Plan’s eleven PVGs, except PVG 4.

21 On this record we cannot say that the Forest Service “considered the relevant

factors and articulated a rational connection between the facts found and the choice

made.” Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d

1410, 1414 (9th Cir. 1990) (citations omitted). The Forest Service’s decision to

adopt a new definition of “old forest habitat” for the Project area is, accordingly,

arbitrary and capricious.

C. The Project’s Minimum Road System Designation

The Alliance also challenges the Forest Service’s decision to designate a

minimum road system (“MRS”) for the Lost Creek Project that exceeds the

number of miles in the MRS recommended in the Forest Service’s Travel Analysis

Report for the Project area. The Travel Management Rule sets forth rules for travel

and transportation systems in national forests. Administration of the Forest

Development Transportation System, 66 Fed. Reg. 3206 (Jan 12, 2001) (Subpart A

codified at 36 C.F.R. §§ 212.1 to 212.21).6 Relevant here, the Forest Service must

“identify the [MRS] needed for safe and efficient travel and for administration,

utilization, and protection of National Forest System lands.” 36 C.F.R.

§ 212.5(b)(1).

6 Subpart B of the Travel Management Rule, promulgated four years later, in 2005, is not at issue in the present case. See Travel Management; Designated Routes and Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264 (Nov. 9, 2005) (codified at 36 C.F.R. §§ 212.50–212.57).

22 The minimum system is the road system determined to be needed to meet resource and other management objectives adopted in the relevant land and resource management plan . . . , to meet applicable statutory and regulatory requirements, to reflect long-term funding expectations, to ensure that the identified system minimizes adverse environmental impacts associated with road construction, reconstruction, decommissioning, and maintenance. Id. The Forest Service must also designate roads for decommissioning. Id.

§ 212.5(b)(2). Designation of the MRS and road decommissioning must be

accomplished by completing a “science-based roads analysis at the appropriate

scale,” and incorporating, to the degree practicable, the interests of affected

citizens and state, local, and tribal governments. Id. § 212.5(b)(1). This process

results in a “travel analysis report” for a given area, which sets forth a

recommended MRS for a given area. Generally speaking, the analysis and

recommendation provided in the travel analysis report will inform the agency’s

analysis during the subsequent NEPA process for a particular site-specific project.

In connection with the Lost Creek Project, the Forest Service completed a

travel analysis report (“the Report”), that identified 474 existing miles of roadway

in the Project area. The Report makes a management recommendation for each

road, which corresponds to desired conditions and activities for the existing

management areas under the 2003 Payette Forest Plan. The Report’s recommended

MRS reflects the roads that received recommendations in the Report for

“maintain,” “maintain or improve,” or “improve.” Here, the Report recommends

23 approximately 240 miles of roads for the MRS, 68 miles of roads for

decommissioning, and 149 miles of roads for long-term closure or “LTC.”

In spite of the recommendation contained in the Report, the Project’s ROD

adopts a MRS with 401 miles of roads. This is a reduction from the 474 miles of

existing roads in the Project area, but an increase from the 240 miles of road

recommended in the Report. We reject the Alliance’s contention that this rendered

the Project’s MRS arbitrary and capricious.

In designating the MRS for the Project, the Forest Service satisfied the

requirements of 36 C.F.R. § 212.5(b). First, the FEIS supports its decision by

discussing the resource and management objectives adopted in the relevant land

and resource management plan in relation to roads in a section devoted to

“Transportation.” This section discusses the forest-wide goals, objectives, and

standards for roads under the existing Forest Plan. These include protecting

resources, providing recreational experiences, and providing safety and welfare of

users. Second, the FEIS addresses the “applicable regulatory requirements” in its

discussion of the Travel Analysis Process and 36 C.F.R. § 212.5. Here the Forest

Service identifies the same key issue the Alliance complains of: the fact that the

number of roads selected for the MRS and their maintenance level could affect

sediment rates and long term watershed functionality. Third, contrary to the

Alliance’s contention, this section also contains a robust discussion of maintenance

24 costs for each alternative and accounts for “long-term funding expectations.” The

discussion explains that funding derives from a variety of sources, and that future

maintenance costs and environmental effects will be reduced through various

activities, such as graveling soft spots and riparian areas. Finally, as discussed

above, the environmental impacts associated with road construction,

reconstruction, decommissioning and maintenance are discussed at length in the

FEIS. Long-term effects, direct and indirect effects, and cumulative effects are

similarly analyzed for all alternatives with regards to watershed conditions.

Though Alternative C, the Alliance’s preferred alternative, provides the most

benefits for watershed restoration, the FEIS concluded that Alternative C was

financially inefficient and did not meet other management objectives under the

Forest Plan. The Forest Service concluded that Alternative C was less beneficial

for tree size class, left portions of the area susceptible to insects and wildfire, and

would restore fewer acres for certain ESA-listed species. The Alliance does not

challenge any of these conclusions.

Because the Forest Service fully explained its decision in selecting

Alternative B as the appropriate MRS for the Project and considered each of the

factors listed under 36 C.F.R. § 212.5, we conclude that the Project’s MRS

designation was not arbitrary or capricious.

D. Tiering

25 The Alliance contends that the Project FEIS violates NEPA by improperly

incorporating—or “tiering to”—the WCS amendments. Ordinarily, an agency can

avoid some of the burdens of the NEPA process by “tiering” to a prior document

that has itself been the subject of NEPA review. “Tiering” is defined as “avoiding

detailed discussion by referring to another document containing the required

discussion,” Kern, 284 F.3d at 1073, and, under Council for Environmental Quality

(“CEQ”) regulations, it is expressly permitted:

Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review. Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action.

40 C.F.R. § 1502.20. CEQ regulations further state that “[t]iering is appropriate

when the sequence of statements or analyses is . . . [f]rom a program, plan, or

policy environmental impact statement to a program, plan, or policy statement or

analysis of lesser scope or to a site-specific statement or analysis.” 40 C.F.R.

§ 1508.28(a). The Ninth Circuit has further interpreted these regulations to only

permit tiering to another environmental impact statement. League of Wilderness

26 Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211,

1219 (9th Cir. 2008) (collecting cases); see also Kern, 284 F.3d at 1073

(“However, tiering to a document that has not itself been subject to NEPA review

is not permitted, for it circumvents the purpose of NEPA.”). This is because in

order to comply with NEPA, the agency must “articulate, publicly and in detail, the

reasons for and likely effects of those management decisions, and . . . allow public

comment on that articulation.” Kern, 284 F.3d at 1073.

Alternatively, where an agency merely incorporates material “by reference,”

without impeding agency and public review of the action, the agency is not

improperly tiering. See 40 C.F.R. § 1502.21 (“Agencies shall incorporate material

into an environmental impact statement by reference when the effect will be to cut

down on bulk without impeding agency and public review of the action.”);

California ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the

Interior, 767 F.3d 781, 792–93 (9th Cir. 2014). Ultimately, when reviewing for

NEPA compliance, we look to whether the agency performed the NEPA analysis

on the subject action. See Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d

800, 809 (9th Cir. 1999).

The Alliance argues that the WCS amendments are policy decisions that

have not undergone the full NEPA review, and are improperly relied upon in the

Project FEIS to justify deviations from the policies set forth in the Payette Forest

27 Plan. We note at the outset that because the WCS amendments themselves are an

agency policy statement, not a NEPA document, tiering to this document would be

categorically improper under the CEQ regulations. League of Wilderness Defs.-

Blue Mountains Biodiversity Project, 549 F.3d at 1219. Similarly, although the

WCS DEIS is a NEPA document, adopting the scientific analysis in the WCS

DEIS would be improper because that document did not undergo public comment

and was therefore not subject to the full NEPA review. See Kern, 284 F.3d at 1073.

Nevertheless, we do not find that the Forest Service’s reliance on the WCS

DEIS improper. The Alliance identifies two aspects of the Project FEIS that it

contends constitute improper tiering. First, in its analysis of desired conditions, the

Project EIS “incorporates the science and updated data from the draft [WCS

DEIS],” which is “new and/or different science, or interpretation of science than

the Forest Plan.” The FEIS also “utilizes desired conditions for MPC 5.1 . . . in lieu

of those for MPC 5.2, when differences exist.” Second, the Project’s analysis of

wildlife species and their habitats “was completed using the best available science

used in the WCS DEIS.” This included adopting the “fundamental concept of the

WCS DEIS,” that species have a greater likelihood of sustainability in habitats that

are within the “historic range of variability.” The Project applies the habitat

groupings employed in Appendix E of the WCS in its analysis of effects of the

28 Project on wildlife. However, notably, the Alliance does not point to any part of

the Project FEIS that adopts or incorporates NEPA analysis from the WCS DEIS.

In Kern, we held that the EIS for the Coos Bay Resource Management Plan

was inadequate because it illegally tiered to an agency guideline document for

managing the Port Orford cedar. 284 F.3d at 1073–74. The EIS determined that all

management of the cedar would be within the ranges set in the guideline

document. Id. at 1074. In rejecting this as improper tiering, the court noted that the

EIS thereafter did not provide any analysis of those guideline ranges. Id. Because

the guidelines themselves were not a document subject to NEPA, the BLM had

effectively evaded NEPA review. See id. at 1069, 1074. Similarly, in Muckleshoot

Indian Tribe, we concluded that the EIS for a land exchange on Huckleberry

Mountain improperly tiered to the EIS for the applicable land and resources

management plan. 177 F.3d at 810–11. As in Kern, we found that neither the

exchange EIS nor the plan EIS fully analyzed the cumulative impacts of the

increased logging on parcels that would be transferred under the exchange,

meaning that “the cumulative impacts of land exchanges would escape

environmental review.” Id. Finally, in Native Ecosystems Council & Alliance for

the Wild Rockies v. United States Forest Service ex. Rel Davey, cited by the

Alliance here, the District of Idaho found that the Forest Service’s reliance on a

landscape “analysis map” of lynx habitat in an environmental assessment (EA) for

29 a commercial thinning project in the Caribou-Targhee National Forest constituted

improper tiering. 866 F. Supp. 2d 1209, 1227–28 (D. Idaho 2012). There, like in

Kern and Muckleshoot Indian Tribe, the map had not been subject to any NEPA

analysis whatsoever, and the EA similarly did not discuss what effects the removal

of the landscape analysis units would have on the lynx, its habitat, and the habitat

of the snowshoe hare. Id.

In contrast, in California ex rel. Imperial County Air Pollution Control

District, we looked at an EIS regarding the transfer of water rights agreements and

concluded that no improper tiering had occurred. 767 F.3d 781. There, the

plaintiffs “fail[ed] to identify relevant material discussed solely in the Transfer

[environmental impact report (“EIS”)] or significant information excluded from the

Transfer EIS.” Id. at 793. Because the necessary analysis was in the EIS, we

concluded that the agency had merely incorporated the environmental report by

reference, which was not precluded by NEPA. Id. at 793–94.

Unlike Kern and Muckleshoot Indian Tribe, this case does not involve an

EIS that lacks the required NEPA analysis. Rather, the portions of the Project FEIS

identified by the Alliance show that Forest Service relied on data and science

prepared for the WCS DEIS. This might be considered improper tiering, but for the

fact that the Project FEIS goes on to analyze the desired conditions for MPC 5.1

and the wildlife habitat categories from the WCS amendments in the context of the

30 present project, including analyzing the cumulative, direct and indirect effects on

vegetative resources and wildlife. The Alliance has not identified any required

analysis that was not performed in the Project FEIS. To the extent the Alliance

challenges the adoption of WCS standards in lieu of the Payette Forest Plan’s

standards, this might give rise to a separate NFMA claim, but it does not, in and of

itself, constitute improper tiering under NEPA, as we have previously understood

and applied that term. See 40 C.F.R. § 1502.20. We accordingly reject the

Alliance’s contention that the Forest Service violated NEPA by incorporating the

standards and science underlying the WCS amendments.

IV. The Alliance’s ESA Claim

The Alliance challenges the Forest Service’s failure to reinitiate consultation

with the United States Fish and Wildlife Service for the endangered bull trout

under Section 7 of the ESA. The parties now agree that in light of the Forest

Service’s decision to reinitiate consultation for the bull trout over its entire range,

including the Payette National Forest, that claim is moot. We agree and will grant

the Forest Service’s motion to dismiss the ESA claim. The portion of the district

court’s decision addressing the Alliance’s ESA claim is vacated pursuant to United

States v. Munsingwear, 340 U.S. 36, 39 (1950). See NASD Dispute Resolution, Inc.

v. Judicial Council of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007) (“Under the

‘Munsingwear rule,’ vacatur is generally ‘automatic’ in the Ninth Circuit when a

31 case becomes moot on appeal.” (quoting Publ. Util. Comm’n v. FERC, 100 F.3d

1451, 1461 (9th Cir. 1996)). Here, mootness was not caused by the Alliance in an

attempt to evade an adverse decision. We see no reason not to vacate the lower

court’s decision on this claim. See id. at 1069.

V. Vacatur

Having determined that the Forest Service violated the NFMA, we must

determine the appropriate relief. Although not without exception, vacatur of an

unlawful agency action normally accompanies a remand. Alsea Valley All. v. Dep’t

of Commerce, 358 F.3d 1181, 1185 (9th Cir. 2004). This is because “[o]rdinarily

when a regulation is not promulgated in compliance with the APA, the regulation

is invalid.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.

1995). When equity demands, however, the regulation can be left in place while

the agency reconsiders or replaces the action, or to give the agency time to follow

the necessary procedures. See Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1053

n.7 (9th Cir. 2010); Idaho Farm Bureau Fed’n, 58 F.3d at 1405. A federal court “is

not required to set aside every unlawful agency action,” and the “decision to grant

or deny injunctive or declaratory relief under APA is controlled by principles of

equity.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995) (citations

omitted).

Here, absent vacatur, the Project will result in the management of certain

32 land for restoration, instead of commodity production, and lead to the imposition

of a new definition of “old forest habitat.” These changes will result in the loss of

several binding standards under the existing forest plan. This is sufficient to justify

vacatur. See Idaho Sporting Cong., Inc., 305 F.3d at 966 (“If the Forest Plan’s

standard is invalid, or is not being met, then the timber sales that depend upon it to

comply with the Forest Act are not in accordance with law and must be set aside.”

(citation omitted)). We further note that under the Project FEIS, commercial

thinning is authorized on a large portion of the Project area. Adams County has not

addressed any of these potential environmental harms, such as the unexplained

absence of “old forest habitat” on the Project area, and therefore has not overcome

the presumption of vacatur. See Alsea Valley All., 358 F.3d at 1185; see also

Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir. 2015)

(finding vacatur appropriate when leaving in place an agency action risks more

environmental harm than vacating it).

VI. Conclusion

We affirm the district court’s ruling that defendants did not act arbitrarily

and capriciously in approving the Minimum Road System. We also affirm the

district court’s conclusion that the Forest Service did not violate NEPA by

improperly tiering to the WCS amendments or the WCS DEIS. We reverse the

district court’s conclusions that the Forest Service did not violate the NFMA in

33 approving the Project’s switch from MPC 5.2 to MPC 5.1 and the new definition

of “old forest habitat.” Because the ESA claim is moot, we vacate the district

court’s decision and judgment with regards to that claim only.

AFFIRMED IN PART, REVERSED and REMANDED IN PART. The

parties shall bear their own costs on appeal. On remand the district court is

instructed to vacate the Forest Service’s September 2014 final record of decision

and remand to the Forest Service for further proceedings consistent with this

Opinion.

Defendants-Appellees’ Motion to Dismiss is GRANTED. (Doc. 50.) The

Alliance’s ESA claim is DISMISSED as moot. The portion of the district court’s

decision and judgment with regards to the Alliance’s ESA claim is VACATED.