Native Ecosystems v. Kimbell

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2010
• Docket: 06-35890
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIVE ECOSYSTEMS COUNCIL;  ALLIANCE FOR THE WILD ROCKIES WILDWEST INSTITUTE, Plaintiffs -Appellants, v. TOM TIDWELL, in his official capacity as Northern Region Regional Forester; BRUCE RAMSEY, in his official capacity as Supervisor of the Beaverland- Deerlodge National Forest; MARK PETRONI, in his official capacity as  District Ranger of the Madison River Ranger District of the Beaverhead-Deerlodge National Forest; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendants-Appellees, MADISON COUNTY; BEAVERHEAD COUNTY, MONTANA, Defendants-intervenors-Appellees, 

3705 3706 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL

SITZ ANGUS RANCH; GARY L.  CLARK; MOOSE CREEK GRAZING ASSOCIATION; MAX L. ROBINSON, No. 06-35890 SR.; MAX J. ROBINSON, JR.; MONTANA STOCKGROWERS  D.C. No. CV-04-00127-DWM ASSOCIATION; MONTANA WOOL OPINION GROWERS ASSOCIATION, Intervenors-Appellees.  Appeal from the United States District Court for the District of Montana Donald W. Molloy, Chief District Judge, Presiding

Argued and Submitted November 19, 2008—Seattle, Washington

Filed March 9, 2010

Before: Alex Kozinski, Chief Judge, Betty B. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson; Dissent by Chief Judge Kozinski 3710 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL

COUNSEL

Thomas J. Woodbury, Missoula, Montana, on behalf of plaintiff-appellants Native Ecosystems Council, Alliance for the Wild Rockies, and Wildwest Institute.

Robert H. Oakley, Washington, D.C., on behalf of defendant- appellees Tom Tidwell, Bruce Ramsey, Mark Petroni, and the United States Forest Service.

John E. Bloomquist, Helena, Montana, on behalf of intervenor-appellees Sitz Angus Ranch, Gary L. Clark, Moorse Creek Grazing Association, Max L. Robinson Sr., Max L. Robinson, Jr., Montana Stockgrowers Association, and Montana Wool Growers.

OPINION

RAWLINSON, Circuit Judge:

Plaintiffs-Appellants Native Ecosystems Council, Alliance for the Wild Rockies, and Wildwest Institute (collectively NEC) appeal the district court’s summary judgment in favor of Defendants-Appellees Tom Tidwell, Bruce Ramsey, Mark Petroni, and the United States Forest Service (collectively Forest Service); Defendants-Intervenors-Appellees Madison County and Beaverhead County; and Intervenors-Appellees Sitz Angus Ranch, Gary L. Clark, Moose Creek Grazing Association, Max L. Robinson Sr., Max L. Robinson, Jr., Montana Stockgrowers Association, and Montana Wool Growers Association; and (collectively Intervenors- Appellees). NEC argues that the district court erred in finding NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3711 that Forest Service approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest com- plies with the Forest Service’s obligation to ensure species diversity as required under the National Forest Management Act (NFMA). It also contends that the district court erred in concluding that the Environmental Assessment undertaken by the Forest Service project satisfied the National Environmen- tal Policy Act (NEPA). We agree with NEC on both counts. Because the Forest Service’s environmental assessment was based on a nonexistent management indicator species (MIS), its habitat proxy analysis was not reliable. The Forest Service also failed to take the requisite “hard look” at the project as required by NEPA. We therefore reverse the district court’s summary judgment in favor of the Forest Service, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. Project area and Allotment Management Plan (AMP) Proposal1

The Antelope Basin/Elk Lake project area is in the Beaverhead-Deerlodge National Forest (BDNF) in Southwest Montana. The project area is approximately 48,000 acres and forms the southeast portion of the Gravelly Mountain Range. Most of the project area is open, mountain sagebrush/ grasslands with some scattered timber along streams. 1 An AMP is “a document, prepared in consultation with lessees or per- mittees, that applies to livestock operations on public lands, and (1) pre- scribes the manner and extent to which livestock operations will be conducted in order to meet multiple use, sustained-yield, economic, and other needs and objectives, (2) describes range improvements to be installed and maintained, and (3) contains such other provisions relating to livestock grazing and other objectives found by the Secretary to be con- sistent with the provisions of [the Federal Land Policy Management Act].” Antelope Basin/Elk Lake AMP Updates, Environmental Assessment, Revised (Environmental Assessment), Chapter 1, p. 2 (December 2002). 3712 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL Three Forest Service activities have most affected the sage- brush ecosystem in the project area: 1) herbicide application to control sagebrush densities;2 2) burning to control sage- brush densities;3 and 3) livestock grazing. Sheep and cattle have grazed a majority of the project area over the past cen- tury.

As part of a settlement agreement in an unrelated case, the Forest Service agreed to a schedule for completing NEPA environmental analyses and decisions for the authorization of livestock grazing and associated resource protection mea- sures. The Environmental Assessment at issue in this case contains the NEPA analysis underlying some of the livestock allotments listed in the agreed-upon schedule.

The project area was divided into eleven grazing allot- ments. The project proposed updating AMPs for these eleven allotments. The updated allotments would determine “where livestock can graze, when grazing would occur and what spe- cific guidelines would be established to regulate the intensity of grazing.” As of the time of the proposal, the prior AMPs for all eleven allotments were ten years or older.

The proposal specifically identified the goals established in the BDNF Land Resource Forest Plan (Forest Plan)4 which governed the proposed project. These goals included main- taining a sufficient number of diverse habitats to support native wildlife and providing opportunities for grazing by domestic livestock without compromising extant forest resources. The proposal also stated that no further “sage brush control measures” such as burning or herbicides are contem- plated in the project area in the near future. 2 From 1960 to 1974, approximately 5865 acres were treated with herbi- cides. 3 6,491 acres were burned from 1982-1988, and 6,476 acres from 1992 - 2000. 4 The NFMA requires the Forest Service to develop a forest plan for each unit of the National Forest System. See 16 U.S.C. § 1604(a). NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3713 The Forest Service prepared an initial Environmental Assessment for the proposed AMPs, and issued a revised Environmental Assessment after receiving public comments. The revised Assessment specifically addressed concerns regarding the project’s impact on sage grouse, as well as other sagebrush habitat obligates. The Environmental Assessment considered three options for updating the AMPs: (1) Alterna- tive A, which continued the status quo; (2) Alternative B, the preferred alternative, which modified the AMPs to protect riparian habitat while allowing grazing;5 and (3) Alternative C, which banned grazing altogether. The United States Fish and Wildlife Service issued a Biological Evaluation conclud- ing that adoption of the preferred alternative was not likely to adversely affect or jeopardize the continued existence of any listed species.

In November, 2003, District Ranger Mark Petroni released a Decision Notice and Finding of No Significant Impact (DN/ FONSI) reflecting the administrative decision to proceed with Alternative B. The DN/FONSI concluded that the project was not a major federal action with significant effect on the qual- ity of the human environment, and therefore no Environmen- tal Impact Statement (EIS) was warranted under NEPA. 5 Alternative B proposed revising the AMPs in numerous ways: reducing animal unit months from 11,225 to 10,453; eliminating the Elk Mountain allotment; changing boundaries to create a new, Two Drinks allotment; excluding livestock from a portion of Elk Lake and all of Elk Springs Creek; limiting allowable upland forage utilization to fifty percent; limit- ing riparian forage to fifty-five percent; possibly eliminating livestock from the upper regions of Narrows Creek; and constructing structural improvements as needed. The proposal included construction of 6.75 miles of new fence, a new reservoir, 26 new water troughs, 5.75 miles of new pipeline, and relocating 5 miles and removing 2 miles of existing fence. For all allotments, livestock would be moved to the next pasture or removed from the allotment once certain utilization thresholds were met. 3714 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL B. The Sage Grouse

To facilitate its goals of wildlife diversity, the governing Forest Plan designates certain wildlife as “management indi- cator species” (MIS). These species are monitored to measure the effect of various activities on corresponding wildlife habi- tats. The objective of monitoring the MIS is to ensure the via- bility of wildlife species existing in the forest. The sage grouse is one such MIS for the sagebrush wildlife habitat.

The sage grouse is entirely dependent on sagebrush eco- systems. The sage grouse population in southwestern Mon- tana has trended downward for the past decade. There are no identified active sage grouse leks in the project area.6 The closest known active lek is approximately eleven miles west of the project area. See A Review of USFS Management Activ- ities and Their Relationship to Sage grouse in the Antelope Basin/Elk Lake Area of Southwestern Montana, J.W. Con- nelly (September, 2004) (hereinafter, “Connelly Review”). In the past fifteen years, only two possible sage grouse sightings have been noted in the project area.

Approximately 21,000 acres (40% of the project area) are considered to have potential sage grouse habitat. Only 1,900 acres are considered to have potential sage grouse nesting and early brood rearing habitat.

C. Supplemental Information Report

In December 2004, the Forest Service issued a Supplemen- tal Information Report (“SIR”) concerning the sage grouse, 6 A lek is a “breeding display site[ ], typically occurr[ing] in open areas surrounded by sagebrush. Male sage grouse apparently construct leks “op- portunistically at sites within or adjacent to potential nesting habitat.” Guidelines to Manage Sage grouse Populations and Their Habitats, John W. Connelly, Michael A. Schroeder, Alan R. Sands and Clait E. Braun, Wildlife Society Bulletin, Vol. 28, p. 970 (2000) (hereinafter, “Connelly Guidelines”). NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3715 and specifically discussed information that had been released after the Environmental Assessment. The SIR evaluated the findings of three primary works as they related to the pro- posed project: (1) Conservation Assessment of Greater Sage grouse and Sagebrush Habitats, J.W. Connelly, S.T. Knick, M.A. Schroeder and S.J. Stiver, Western Association of Fish and Wildlife Agencies (June, 2004) (hereinafter, “Conserva- tion Assessment”); (2) Management Plan and Conservation Strategies for Sage grouse in Montana - Final Draft Plan, Montana Sage grouse Work Group (March, 2004); and (3) habitat modeling completed in 2004 by the Forest Service sur- veying active and inactive sage grouse leks in the vicinity of the project area.

To inform its analysis, the Forest Service requested that Connelly undertake a site-specific review of the project area in light of the new information concerning the sage grouse. Connelly’s findings were documented in the September, 2004 Connelly Review. The review concluded that the Environmen- tal Assessment’s conclusions were “reasonable and supported by the available evidence. Effects to sage grouse resulting from project implementation will likely be minimal.”

After considering the newly available information and the Connelly Review, the District Ranger determined that the Environmental Assessment’s conclusions remained accurate. The SIR retained the determination of minimal effects to sage grouse from project implementation, and did not recognize a need to further revise the Environmental Assessment or pre- pare an EIS.

D. Procedural Background

NEC filed an administrative appeal of the District Ranger’s decision that no EIS was warranted. Then-Regional Forester, Abigail Kimbell, upheld the District Ranger’s decision. 3716 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL After NEC filed a complaint in district court seeking declaratory and injunctive relief, each party moved for sum- mary judgment. The district court granted summary judgment to the Forest Service and the Intervenors. NEC filed a timely appeal, invoking our jurisdiction under 21 U.S.C. § 1291.7

II. STANDARDS OF REVIEW

“We review de novo the district court’s grant of summary judgment.” Lands Council v. Martin, 529 F.3d 1219, 1225 (9th Cir. 2008) (citation omitted). We review agency deci- sions for compliance with the NFMA and NEPA under the Administrative Procedure Act (APA). See Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1008 (9th Cir. 2006). The APA directs us to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accor- dance with law.” 5 U.S.C. § 706(2)(A). “Review under the arbitrary and capricious standard is narrow and we do not sub- stitute our judgment for that of the agency.” Tucson Herpeto- logical Soc’y v. Salazar, 566 F.3d 870, 875 (9th Cir. 2009) (citation, alterations and internal quotation marks omitted). “The [agency] has an obligation, however, to state a rational connection between the facts found and the decision made.” Id. (citation and internal quotation marks omitted).

III. DISCUSSION

A. Compliance with the NFMA

[1] “The NFMA sets forth the statutory framework and 7 On appeal, NEC does not challenge the district court’s conclusion that it failed to exhaust its administrative remedies with respect to its argu- ments regarding the northern goshawk, flammulated owl, grayling, lake trout, and boreal toad. Nor does NEC renew its claims under the Clean Water Act. Accordingly, we consider these arguments waived. See Eng v. Cooley, 552 F.3d 1062, 1072 (9th Cir. 2009). NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3717 specifies the procedural and substantive requirements under which the Forest Service is to manage National Forest System lands.” Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (en banc). Procedurally, “all management activities undertaken by the Forest Service must comply with the forest plan, which in turn must comply with the [NFMA].” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir. 2002). Substantively, the NFMA also places a duty on the Forest Service to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area . . . ” 16 U.S.C. § 1604(g)(3)(B). “In order to ensure compliance with the forest plan and the [NFMA], the Forest Service must conduct an analysis of each ‘site spe- cific’ action, such as a timber sale, to ensure that the action is consistent with the forest plan.” Idaho Sporting, 305 F.3d at 962 (citation omitted).

[2] Regulations implementing the statute, in effect at the time the Forest Service issued its final decision, required the Forest Service to manage fish and wildlife habitat “to main- tain viable populations of existing . . . species.” 36 C.F.R. § 219.19 (2000). To ensure population viability and monitor the effects of management, the regulations mandated the iden- tification and selection of a management indicator species (MIS). See id. at 219.19(a)(1). The regulations also provided that “[p]opulation trends of the management indicator species will be monitored and relationships to habitat changes deter- mined . . . ” Id. at 219.19(a)(6).8

The Forest Plan incorporated specific species diversity maintenance goals, explaining that: 8 This regulation is no longer in effect, as “new regulations have elimi- nated the MIS concept . . . ” Envtl. Prot. Info. Ctr., 451 F.3d at 1017 n.8; see also 36 C.F.R. § 219.16 (2008). However, the Forest Service is “re- quired to comply with the regulations and forest plan in place at the time of its decision.” Envtl. Prot. Info. Ctr., 451 F.3d at 1017 n.8. 3718 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL Maintenance and enhancement of wildlife habitat has high priority in the management of the Forest. Viable populations of all existing wildlife species will be maintained by providing a diversity of habi- tats throughout the Forest. Wildlife indicator species have been identified and will be monitored to ensure that assumptions concerning the effects of manage- ment activities on wildlife habitat and populations are appropriate.

United States Forest Service, Forest Plan, Beaverhead National Forest (Forest Plan), 1986, p. II-3. The Forest Plan designated the sage grouse as the MIS for sagebrush commu- nities. The Forest Plan contemplated monitoring the sage grouse as an indicator species “to measure the effect of man- agement activities on representative wildlife habitats with the objective of ensuring that viable populations of existing native and desirable non-native vertebrate species are maintained.” Id.

[3] Despite its designation as an MIS, the sage grouse is virtually non-existent in the project area. Because actual sage grouse population data is unavailable, the Environmental Assessment looked to the sagebrush habitat to assess viability for the sagebrush obligate species. This is known as the “proxy-on-proxy” approach, whereby the Forest Service “use[s] habitat as a proxy to measure a species’ population, and then [ ] use[s] that species’ population as a proxy for the population of other species.” McNair, 537 F.3d at 997 n.10.

[4] The proxy-on-proxy approach effectively allows the Forest Service “to avoid studying the population trends of the Indicator Species by using Indicator Species habitat as a proxy for Indicator species population trends.” Lands Council v. Powell, 395 F.3d 1019, 1036 (9th Cir. 2005), as amended. Use of this approach however, is appropriate “only where both the Forest Service’s knowledge of what quality and quantity of habitat is necessary to support the species and the NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3719 Forest Service’s method for measuring the existing amount of that habitat are reasonably reliable and accurate.” Native Eco- systems Council v. United States Forest Service, 428 F.3d 1233, 1250 (9th Cir. 2005). Underlying the proxy-on-proxy approach is the “assum[ption] that maintaining the acreage of habitat necessary for survival would in fact assure a species’ survival.” Envtl. Prot. Info. Ctr., 451 F.3d at 1017 (citation and internal quotation marks omitted). Thus, “[t]he test for whether the habitat proxy is permissible . . . is whether it rea- sonably ensures that the proxy results mirror reality.” Gifford Pinchot Task Force v. United States Fish and Wildlife Ser- vice, 378 F.3d 1059, 1066 (9th Cir. 2004) (citations and inter- nal quotation marks omitted).

[5] The proxy-on-proxy approach’s reliability is question- able where the MIS is absent from the project area.9 Regard- less of whether the Forest Service’s methodology comports with established scientific standards, the habitat proxy “does not reasonably ensure viable populations of the species at issue,” when almost no sage grouse have been seen in the project area for fifteen years. Idaho Sporting, 305 F.3d at 972. There is simply no basis to evaluate the Forest Service’s assertion that the sagebrush habitat is sufficient to sustain via- ble sage grouse populations when sage grouse cannot be found in the project area. Therefore, the Forest Service cannot reasonably argue that the proxy-on-proxy approach allows it to avoid separately monitoring sage grouse population trends, as sage grouse are its chosen MIS. See Powell, 395 F.3d at 9 We have recognized that “monitoring difficulties do not render a habitat-based analysis unreasonable, so long as the analysis uses all the scientific data currently available.” McNair, 537 F.3d at 998 (citation omitted). Here, however, the government does not cite any “monitoring difficulties” that prevent detection of the sage grouse. Cf., id. (noting that although surveys did not locate any animal, the Forest Service’s method for detecting the bird may have been flawed). In this case, the Forest Ser- vice resorted to a habitat analysis, not because monitoring the sage grouse was difficult, but because there were admittedly no sage grouse in the project area to monitor. 3720 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 1036 (noting that the proxy-on-proxy result is aimed at estab- lishing “species population trends”) (emphasis added). This is especially true where, as here, the forest plan requires moni- toring of the MIS. See Earth Island Institute v. USFS, 442 F.3d 1147, 1175-76 (9th Cir. 2006) (rejecting the use of habi- tat monitoring where the forest plan required population mon- itoring), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 375 (2008).

We do not share our dissenting colleague’s perception that the Forest Service can meet its obligations to the environment by naming a virtually non-existent species to serve as a proxy for critical habitat in the targeted area. Far from usurping the agency’s role, our opinion holds the agency to its statutory responsibility to fully study the effects of the planned agency action, and “to maintain viable populations of existing . . . species.” 36 C.F.R. § 219.19 (emphasis added). It is unfath- omable how the Forest Service could meet its responsibility to maintain existing species by selecting as a proxy a species that is virtually non-existent in the targeted area. A “report of two sage grouse being taken illegally from the project area [of 48,000 acres] in 2002,” see Dissenting Opinion, p. 3730, just doesn’t cut it.

Our colleague in dissent also criticizes this result as under- mining the Forest Service’s ability to develop one integrated plan for each unit of the National Forest System. See Dissent- ing Opinion, pp. 3731-32. The law does not support this con- tention. The Forest Service is bound to assess proposed actions on a “site specific” basis for compliance with the For- est Plan and NFMA. See 18 U.S.C. § 1604(i); see also Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996) (explaining that both the Forest Plan and site-specific project stages must fully comply with the NFMA); Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 980 (9th Cir. 2006) (explaining that AMPs are plans for specific allotments). If the Forest Service decided to select NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3721 a project site consisting of the head ranger’s backyard, see Dissenting Opinion, p. 3732, it must indeed analyze that par- ticular site to determine the effects of the proposed action. If the MIS were absent from that site, it is difficult to see how an assessment of the MIS could demonstrate that the proposed action at that site complied with either the NFMA or a Forest Plan based on monitoring of the MIS.

Indeed, the record strongly suggests that the Forest Ser- vice’s methodology in applying the proxy-on-proxy approach is flawed. In preparing its Biological Evaluation, the Forest Service expressly relied on the Connelly Guidelines in deter- mining whether sage grouse habitat was sufficient. However, at least some of these guidelines assume the presence of birds as indicators of habitat health. See Connelly Guidelines, pp. 975-76. The Connolly Guidelines specifically note that “quan- titative data from population and habitat monitoring are nec- essary to implement the guidelines correctly.” Id. at p. 975 (emphasis added). Moreover, in the Conservation Assessment, p. 4-15, generated after the Connelly Guidelines, Connelly and his co-authors recognized that “populations of sage- grouse have been extirpated at places throughout their former range concomitant with habitat loss and degradation, so that the species’ current distribution is less closely aligned with that of sagebrush.” (citation omitted). Thus, the very guide- lines used by the Forest Service militate against the Forest Service’s assertion that evaluation of the sagebrush habitat in the complete absence of a sage grouse population meets its obligation under the NFMA to ensure population viability of the sage grouse and other sagebrush obligates.

In response to the argument that population monitoring is essential to a proper analysis of the project under the NFMA, the Forest Service repeatedly argues that population monitor- ing is outside the scope of the project, which is meant solely to consider updating grazing allotment protocols. However, to meet NFMA requirements, the Forest Service needed to con- sider and preserve the project species. As the Conservation 3722 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL Assessment, p. 1-3, noted, “land-use perspectives have goals to maximize a particular function that may have objectives competing with other resource use. For example, evaluation of sagebrush communities primarily based on their ability to provide forage for livestock may result in extensive alter- ations that are unsuitable for greater sage grouse and other species dependent on sagebrush habitats.” (citations omitted).

[6] Because the habitat proxy failed to track the MIS popu- lation, the proxy-on-proxy approach was unreliable in ensur- ing overall diversity in this case. In applying the proxy-on- proxy approach to evaluate whether the project complied with the Forest Service’s duty to ensure wildlife diversity, the For- est Service did not adequately consider evidence that, despite the Forest Service’s asserted compliance with the Connelly Guidelines, the sage grouse population continued to trend downward over several decades. This omission on the part of the Forest Service would suggest that the agency has “failed to consider an important aspect of the problem,” or has offered an explanation for its decision that runs counter to the evidence in the record, and its decision is therefore arbitrary and capricious. Motor Vehicle Mfrs. Assn., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

[7] The record further suggests that in addition to failing to monitor and incorporate sage grouse population data in its analysis, the Forest Service failed to adhere to the Connelly Guidelines in assessing the sagebrush habitat. In conducting its environmental analysis, the Forest Service failed to iden- tify the nesting habitat in the project area later noted by Con- nelly and addressed in the Connelly Review. The Environmental Assessment stated that there are no known nesting grounds in the project area, noting that “[n]esting con- ditions . . . are not met within the project area during the sage grouse nesting season (May to mid-June).” The Forest Service concluded that the absence of nesting habitat “appears to be limited by growing conditions and plant physiology, not by past years’ cattle grazing . . .” The Forest Service ostensibly NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3723 relied upon the Connelly Guidelines in reaching this conclu- sion. However, Connelly concluded that there were at least 1900 acres of nesting habitat in the project area. See Connelly Review pp. 11-12. Indeed, Connelly specifically stated that this area has “relatively high canopy coverage of grasses and forbs with adequate height for nesting habitat.” Connelly Review p. 12. “In short,” he concluded, “the area seems to have all the characteristics associated with productive sage grouse breeding habitat.” Id. (citing the Connelly Guidelines).

[8] The discrepancy between the Forest Service’s conclu- sions and Connelly’s conclusions, where both ostensibly applied the Connelly Guidelines, strongly suggests that the Forest Service’s method of measuring the sagebrush habitat is neither reasonably reliable nor accurate. See Native Eco- systems, 428 F.3d at 1250. This flaw in the Forest Service’s methodology further undermines the reliability of the Forest Service’s use of the proxy-on-proxy approach. See Powell, 395 F.3d at 1036 (holding that the proxy-on-proxy approach failed to comply with NFMA where habitat analysis was flawed).

The Forest Service’s analysis of the 1900 acres of breeding habitat also contradicted Connelly’s view of whether cattle grazing would interfere with the sage grouse breeding period. The AMPs would allow cattle grazing in the area as soon as June 1. The Forest Service noted in the Environmental Assessment that the nesting season usually takes place from May to mid-June. In the SIR, the Forest Service concluded that the grazing season was compatible with sage grouse breeding, because cattle generally did not graze in that region until late June.10 However, the Connelly Review referenced scientific studies suggesting that “[t]he hatching period for most sage grouse populations generally occurs from mid-May 10 The SIR also inaccurately described the nesting season as occurring in April and May, contrary to the statement in the Environmental Assess- ment. 3724 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL until early June.” Connelly Review, p. 4 (emphasis added). Connelly stated that “there is some evidence that grouse using high elevation area may not begin nesting until mid-May.” Id. (emphasis added) (citation omitted). Connelly cited evidence that “5 of 6 nesting hens (83%) initiated nesting between 10 May and 17 June in the Sawtooth Valley of central Idaho,” an area with a similar elevation range as the project area. Id. (citation omitted). He noted that yet another scientist “also reported that sage grouse may nest well into June . . . ” Id. (citation omitted).

Our colleague in dissent does not deny that inconsistencies exist between the Forest Service’s analysis and Dr. Connel- ly’s conclusions. Instead, the dissent takes refuge in Dr. Con- nelly’s fuzzy assurance that the contemplated actions “are generally consistent with the current sage-grouse management guidelines.” Dissenting Opinion, p. 3733 (quoting Connelly Review). However, that general observation in no way erases the specific discrepancies between Dr. Connelly’s studies and the Forest Service’s analysis.

[9] In sum, under the facts of this case, where the MIS population has consistently declined and has not appeared in the Project Area in nearly two decades, and where the agen- cy’s analysis conflicted with that of the scientific experts, the Forest Service’s use of the proxy-on-proxy approach to ensure viability of sagebrush obligates did not comply with the dic- tates of the NFMA to monitor population trends of the sage grouse as the selected MIS. See Earth Island Institute, 442 F.3d at 1175-76. The District Ranger’s determination that the project would have minimal effects on the sage grouse was not derived from a reliable methodology. See id. at 1176 (holding that the Forest Service acted arbitrarily and capri- ciously by relying on inadequate habitat monitoring of the MIS). Accordingly, we reverse the district court’s grant of summary judgment in favor of Defendants on the Plaintiffs’ NFMA claim. NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3725 B. Compliance with NEPA

[10] “In contrast to NFMA, NEPA exists to ensure a pro- cess, not to mandate particular results.” Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002) (citation omitted). “NEPA requires a federal agency ‘to the fullest extent possible,’ to prepare ‘a detailed statement on the environmental impact’ of ‘major Federal actions significantly affecting the quality of the human environment.’ ” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008) (citations and alteration omitted).

As a preliminary step, an agency may prepare an environ- mental assessment “in order to determine whether a proposed action may significantly affect the environment . . . ” Id. (cita- tion, alteration and internal quotation marks omitted). “If the agency concludes in the [environmental assessment] that there is no significant effect from the proposed project, the federal agency may issue a finding of no significant impact (‘FONSI’) in lieu of preparing an EIS.” Native Ecosystems Council, 428 F.3d at 1239 (citations omitted). “If an agency decides not to prepare an EIS, it must supply a convincing statement of reasons to explain why a project’s impacts are insignificant. The statement of reasons is crucial to determin- ing whether the agency took a hard look at the potential envi- ronmental impact of a project.” Center for Biological Diversity, 538 F.3d at 1220 (citations and internal quotation marks omitted).

[11] As discussed above, the Forest Service’s use of the nonexistent sage grouse as an MIS to assess the project’s impact on all sagebrush species’ diversity was flawed. As a result, its overall study of the sage grouse habitat throughout the Environmental Assessment was similarly deficient. Just as the methodology applied by the Forest Service to measure habitat conditions did not meet the NFMA requirements, its flawed methodology in the complete absence of a sage grouse 3726 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL population does not constitute the requisite “hard look” man- dated by NEPA. See Native Ecosystems Council v. USFS, 418 F.3d 953, 964-65 (9th Cir. 2005) (recognizing that the Forest Service’s reliance on incorrect assumptions and/or data vio- lated NFMA and did not meet the agency’s obligation to take a “hard look” under NEPA).

We cannot say that the results of the Environmental Assessment would have differed if an appropriate MIS for sagebrush obligates had been selected. In the absence of that analysis, we reverse and remand for the Forest Service to undertake a new or revised Environmental Assessment. See Earth Island Institute, 442 F.3d at 1153 (reversing and remanding due to defects in the Forest Service analysis).

Finally, we note that the Forest Service’s decision not to supplement the Environmental Assessment following the Connelly Review’s discussion of the 1900 acres of nesting habitat fails to comply with the agency’s obligations to sup- plement an environmental assessment when “[t]here are sig- nificant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii); see Klamath Siski- you Wildlands Ctr. v. Boody, 468 F.3d 549, 560 (9th Cir. 2006).

The Forest Service’s justifications for its decision not to further revise the Environmental Assessment are unpersua- sive. Although the Forest Service suggests that it made no “estimate of the amount of breeding/nesting habitat in the allotments[,]” the record clearly reflects otherwise. The Forest Service in fact analyzed the impact of the project on late brood-rearing habitat. This approach was taken precisely because the sagebrush habitat in the project area was “not considered to be nesting habitat.” However, Connelly’s assessment of the project specified that the “[p]roposed man- agement will likely have little effect on this habitat unless offtake results in average herbaceous height <18 cm in mid to NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3727 late June . . . ” Connelly Assessment p. 13. The Environmental Assessment, predicated on the assumption that no nesting habitat existed in the project area, did not address anticipated offtake results under the project at all. Nor did the SIR discuss the potential effect of grazing on nesting habitat.

The Forest Service’s efforts to minimize the importance of the potential nesting habitat further emphasizes the shortcom- ings of the Environmental Assessment. The Forest Service suggests that the 1900 acres identified by Connelly as poten- tial breeding habitat is less reliable because Connelly “made this identification on the basis of the quality of the vegetation, not on any documented breeding in this area.” However, this argument undermines the Forest Service’s overarching posi- tion that reliance on habitat alone is sufficient to predict sage grouse viability. Moreover, it highlights the fact that the new information regarding potential nesting habitat directly con- tradicts the Environmental Assessment, which concluded without explanation that nesting habitat is unavailable because of the nature of the vegetation (and not as a result of grazing).

Ultimately, the Forest Service attempts to avoid preparing a supplemental environmental assessment by suggesting that weather presents an immediate bar to the use of the identified habitat for nesting. However, the scientists who identified this habitat considered weather patterns. For example, Connelly noted that late brood-rearing habitats “are generally used from July to early September but vary annually due to annual weather conditions.” And Glenn Hockett, the NEC expert, specifically rejected the premise that weather conditions fore- close the use of the nesting habitat. In his declaration, he noted:

Although the Antelope Basin/Elk Lake area does receive a lot of snow in the winter, it melts in the spring. The importance of ephemeral (temporary), water sources from melting snow banks may play an 3728 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL important role in the sage grouse habitat suitability for nesting and early brood rearing on the project area.

Hockett Decl., December 24, 2003, p. 6. Thus, the Forest Ser- vice’s conclusory assertion in the DN/FONSI that nesting is impossible because of weather conditions is undermined by the scientists’ observations.

Given the presence of potential nesting habitat and the cor- ollary effect on that habitat of cattle grazing, the 2004 infor- mation impacted the project sufficiently that the environmental assessment should have been further revised. See Klamath Siskiyou, 468 F.3d at 560. We note that a revised environmental assessment considering the issues addressed above might come to a different conclusion than the original environmental assessment and necessitate the preparation of an environmental impact statement.

IV. CONCLUSION

[12] Because the methodology utilized by the Forest Ser- vice violated both the NFMA and NEPA, we reverse the dis- trict court’s grant of summary judgment in favor of Defendants, and remand this case for the agency to prepare a new or supplemental environmental assessment consistent with this opinion.

REVERSED AND REMANDED.

KOZINSKI, Chief Judge, dissenting:

The majority oversteps the limited role of a court reviewing an agency’s decision. First, it holds that the Forest Service’s 216-page Environmental Assessment, six sage-grouse project- area surveys, and bevy of supplemental reports all amount to NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3729 a “ ‘clear error of judgment’ that would render its action ‘arbi- trary and capricious’ ” under the National Forest Management Act. The Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008). Second, on the basis of these same substantive criticisms, the majority holds that the Service’s analysis was too flawed to satisfy the National Environmental Protection Act’s “hard look” requirement. See, e.g., Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005) (“Determining whether the Forest Service took the req- uisite ‘hard look’ is judged against the APA’s arbitrary and capricious standard.”).

But ours is only the modest task of ensuring the Service didn’t perform an arbitrary and capricious analysis or come to an arbitrary or capricious conclusion. The Service did neither so the majority is wrong to overturn its decision.

I

The National Forest Management Act requires the Forest Service to develop a general resource management plan for every forest in the National Forest System. 16 U.S.C. § 1604. Forest Plans permit productive uses of forests (such as graz- ing) while preserving the habitat to support viable populations of all pre-existing plant and animal life. Id.; 36 C.F.R. § 219.19 (2000). To keep track of animal populations, the Forest Service designates a small number of “management indicator species” to monitor as proxies for all the forest’s animals. 36 C.F.R. § 219.19(a)(1). And, rather than go out and individually count every animal, the Service often moni- tors indicator species’ habitat as a proxy for their population. We’ve long endorsed this proxy-on-proxy approach. See, e.g., Inland Empire Public Lands Council v. U.S. Forest Serv., 88 F.3d 754, 761 (9th Cir. 1996).

Forest Plans, by definition, cover entire forests. Beaverhead-Deerlodge National Forest is the largest national forest in Montana and, at 3.36 million acres, it is roughly the 3730 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL size of Connecticut. In the Beaverhead-Deerlodge National Forest Plan, sage grouse are the indicator species for sage- brush dependent animals forest-wide. The Antelope Basin/Elk Lake project site, at 48,000 acres (1.4% of the total forest), is just a bit larger than the District of Columbia. The Service analyzed the project’s potential effects on the Forest Plan as NFMA required and, as the Forest Plan required, it used sage grouse as the indicator species for sagebrush-dependent ani- mals.

But that isn’t good enough for the majority, which holds that it was arbitrary and capricious for the Service to rely on sage grouse because grouse are “virtually non-existent in the project area.” Maj. at 3718. When grouse are “absent from the project area . . . the Forest Service cannot reasonably argue that the proxy-on-proxy approach allows it to avoid separately monitoring sage grouse population trends.” Id. at 3719. This rule—that a project analysis is arbitrary and capricious unless there is proof that each indicator species lives in the project area—is entirely new. It has at least four problems.

First, the majority doesn’t apply its new requirement fairly to the record. The record does not show, and the Service does not concede, that there are no sage grouse in the Antelope Basin/Elk Lake project site. The record shows only that no sage grouse “have been observed in the project area in the past 15 years and sage grouse surveys in 2001-2003 did not find sage grouse or their sign.” On the other hand, there is a report of two sage grouse being taken illegally from the proj- ect area in 2002. Rather than meaning that few sage grouse live in the project area, this could just mean the sage grouse in the project area are difficult to find. We’ve repeatedly approved habitat monitoring when the indicator species is dif- ficult to detect. See, e.g., McNair, 537 F.3d at 998. The major- ity notes that “the government does not cite any ‘monitoring difficulties’ that prevent detection of the sage grouse.” Maj. at 3719 n.9. But why would it have? Courts have never required that showing before. We can hardly fault the Service NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3731 for not providing an unnecessary justification in defense of a well-established method. Creating new requirements and applying them retroactively is the kind of “gotcha” jurispru- dence we may not engage in.

Second, the majority’s rule conflicts with our cases approv- ing proxy-on-proxy analysis without requiring the indicator species to be present in the project area. For example, in Native Ecosystems Council v. United States Forest Service, plaintiffs challenged the Service’s performing proxy-on-proxy analysis without showing a viable population of the indicator species. 428 F.3d at 1250. We sided with the Service, explain- ing that “[o]ur case law permits the Forest Service to meet the wildlife species viability requirements by preserving habitat,” provided that the habitat is monitored using reliable methods. Id.; see also 36 C.F.R. § 219.19 (“[H]abitat shall be managed to maintain viable populations . . . .” ). This is plainly incon- sistent with the majority’s requirement that the Service prove that each indicator species lives in the project area. Indeed, requiring the Service to prove that each indicator species lives in the project area effectively requires it to directly monitor each animal’s population—precisely the cumbersome task that proxy-on-proxy is meant to avoid.

Third, the majority’s new rule will make it much harder for the Service to plan on a forest-wide scale, rely on forest-wide indicator species and administer general Forest Plans. When- ever one of the Forest Plan’s indicator species is absent or impossible to detect, the Service will have to make an ad hoc exception. Today’s majority requires a stand-in indicator spe- cies for a project area that is 1.4% of the total forest. Tomor- row’s might do so for 0.14%. Pretty soon, before the Service can allow grazing in the head ranger’s backyard it’ll have to prove no adverse impact on the gophers. This flies in the face of NFMA. See, e.g., 16 U.S.C. § 1604(f)(1) (The Forest Ser- vice shall “form one integrated plan for each unit of the National Forest System.”) (emphasis added); Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 959, 962 (9th Cir. 2002) 3732 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL (“[T]he Forest Service must conduct an analysis of each ‘site specific’ action, such as a timber sale, to ensure that the action is consistent with the forest plan.”).

The majority argues that “[i]f the Forest Service decided to select a project site consisting of the head ranger’s back- yard . . . it must indeed analyze that particular site to deter- mine the effects of the proposed action.” Maj. at 3720-21. Nobody disputes that. See p. 3729-30 supra. It’s at the next step of the analysis where we differ: the majority’s require- ment that the Service come up with all-new indicator species if it can’t prove that the species listed in the Forest Plan live in the project site. The entire point of a forest-wide plan is that complying with its forest-wide standards will ensure forest-wide species and habitat preservation. Although the Service must ensure that grazing in the backyard doesn’t hurt any sage grouse habitat, it’s not required to demonstrate that sage grouse actually live in the yard.

Fourth, it’s not clear that an indicator species’ absence from a particular project area undermines the Service’s habitat analysis. NFMA’s goal is preservation of animal life across the forest, which is necessarily determined using the Forest Plan and the Forest Plan’s indicator species. See, e.g., Inland Empire Pub. Lands Council v. U. S. Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996) (“[S]ite-specific projects must be consistent with the stage-one, forest-wide plan.”). If sage grouse are a proxy for all the animals that rely on sagebrush, and the Service can show that it’s reliably maintaining sage- brush at the levels required for sage grouse, then NFMA has been satisfied. The absence of grouse in a particular part of the forest may make it harder to double-check these methods, but in this case nobody disputes the reliability of Connelly’s Guidelines, which are part of the administrative record. John W. Connelly, et al., Guidelines to Manage Sage Grouse Pop- ulations and Their Habitats, 28 Wildlife Society Bulletin 967 (2000). NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3733 The majority also criticizes more specific aspects of the Service’s scientific analysis. But bare disagreement doesn’t make the Service’s analysis arbitrary and capricious. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”). This is especially true where, as here, the court bases its objections on the findings of a scientist who has actually endorsed the project being reviewed. The majority’s central criticism is that “the very guidelines used by the Forest Service militate against the For- est Service’s assertion” that sage grouse can be monitored by monitoring sagebrush. Maj. at 3721. The majority bases this assertion almost entirely on supposed inconsistencies between the Service’s analysis and the work of Dr. Connelly (the Guidelines’ author). E.g., id. (“Connelly and his co-authors recognized that ‘populations of sage-grouse have been extir- pated at places throughout their former range concomitant with habitat loss and degradation, so that the species’ current distribution is less closely aligned with that of sagebrush.’ ”).

But Dr. Connelly published a lengthy review of the Ser- vice’s project analysis (also in the administrative record) explaining that “[t]he actions authorized by the Antelope Basin/Elk Lake Environment Assessment are generally con- sistent with the current sage-grouse management guidelines.” John W. Connelly, A Review of USFS Management Activities and Their Relationship to Sage-Grouse in the Antelope Basin/ Elk Lake Area of Southwestern Montana (September 15, 2004) at 14 (hereinafter Connelly Review). Connelly found that “[t]he conclusions in the Anteleope Basin/Elk Lake Allot- ment Management Plan EA . . . are reasonable and supported by the available evidence. Effects to sage grouse resulting from project implementation will likely be minimal. . . . The actions authorized . . . appear [to] take a pro-active approach to managing for potential sage grouse habitat.” Id. at 14. 3734 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL Courts are ill-equipped to second guess scientists, particularly scientists who are interpreting their own scientific evidence.

II

As the majority acknowledges, NEPA imposes no substan- tive requirements but merely “exists to ensure a process.” Maj. at 3725 (quotation omitted). Nonetheless, the majority concludes that the Service’s use of the Forest Plan’s manage- ment indicator species to evaluate the Antelope Basin/Elk Lake Allotment Management Plan did not constitute “the req- uisite ‘hard look’ mandated by NEPA.” Maj. at 3726. This NEPA holding doubles down on the same point the majority makes about NFMA—that no project can be undertaken with- out studying animals that actually live in the project site. But the majority never explains why violating NFMA’s substan- tive requirements is necessarily enough to fail the more lenient NEPA requirement of a “hard look” that doesn’t “rely on incorrect assumptions or data.” Native Ecosystems Council v. U. S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005). Even if NFMA limited the Service to indicator species that live in the project area (it doesn’t), a species’ absence doesn’t neces- sarily make the Service’s extensive analysis of the project area totally unreliable.

The majority also criticizes the Service for not supplement- ing its Environmental Assessment in the wake of the Connelly Review. But this criticism is hollow on two levels. First, it ignores the fact that the Connelly Review endorsed the Ser- vice’s position. See pp. 3733-34 supra. Why (and how) would the Service “respond” to an unqualified endorsement? Take a bow? Second, the majority’s premise—that the Service never addressed the Review’s finding that some of the project area was suitable for nesting, maj. at 3726-27—is factually inaccu- rate. The Supplemental Information Report explains on page five that “[c]attle do not enter the Elk Lake Allotment, where 1,900 acres of possible nesting habitat was identified, until June 26 or later.” (emphasis added). It reiterates the point on NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3735 page twelve: “likelihood of disturbance by livestock to nest- ing sage grouse appears to be minimal as normally the range is not ready for livestock grazing until after the peak of sage- grouse egg incubation.” The Service clearly considered the Review’s finding. It’s just that the Service—like the Review’s author—concluded that the project was consistent with these findings. A hard look is a hard look no matter what the Ser- vice sees, even if judges see something else.

* * *

The majority acts as both legislature and biologist. It acts as legislature by inventing new NFMA requirements and as biologist by dissecting reports about sage grouse in a mis- guided effort at second-guessing those reports’ authoring sci- entists. We should abstain from this sort of law office science. The Service has already printed hundreds of pages analyzing the Antelope Basin/Elk Lake’s suitability for summer grazing. Both NFMA and NEPA were satisfied. We have no authority to stand in the way.