Sierra Club v. Martin

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 98-8358 FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT D. C. Docket No. 1:96-CV-0926-TWT 02/18/99 THOMAS K. KAHN CLERK SIERRA CLUB, WILDERNESS SOCIETY, et al.,

Plaintiffs-Appellants,

versus

GEORGE G. MARTIN, in his official capacity as Forest Supervisor of the Chattahoochee and Oconee National Forests; ROBERT C. JOSLIN, Regional Forester of the United States Forest Service for Region Eight, et al.,

Defendants-Appellees. ________________________

Appeal from the United States District Court for the Northern District of Georgia _________________________

(February 18, 1999)

Before BIRCH and BARKETT, Circuit Judges, and ALAIMO*, Senior District Judge.

BARKETT, Circuit Judge:

___________________________ * Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of Florida, sitting by designation. The Sierra Club1 appeals the district court’s grant of summary judgment to the United

States Forest Service (“Forest Service”) and intervenor timber companies in connection with the

Forest Service’s decision to allow seven timber sales in Georgia’s Chattahoochee National

Forest, which will enable logging (including clearcutting), road building and related activities.

On appeal, Sierra Club asserts that the decision to permit the timber sales, which it contends will

damage the forest environment, was arbitrary and capricious and thus violated the National

Forest Management Act (NFMA), 16 U.S.C. § 1600, et seq., and the substantive regulations

promulgated under NFMA. See 36 C.F.R. §§ 219 et seq. We reverse.

Background

The Chattahoochee and Oconee National Forests (Forest) encompass 741,000 acres in the

Appalachian Mountains of northern Georgia. In 1991, the Forest Service proposed to sell the

timber rights to seven tracts within the Forest, totaling approximately 2,000 acres. In addition to

the logging itself, the timber projects would require the construction of eighteen miles of roads

into wilderness areas of the Forest, leading to a discharge of 155.1 tons of sediment into

surrounding rivers and streams.

The Forest Service adopted the Land and Resource Management Plan (Forest Plan) for

the Forest in 1985 and amended it in 1989.2 Before any sales of timber can occur within the

1 “Sierra Club” here refers to an amalgam of environmental and citizen groups that together brought this lawsuit. 2 NFMA requires the Forest Service to develop and maintain forest management plans for each unit of the National Forest system. See 16 U.S.C. § 1604(a). Such plans must set forth multiple objectives to ensure recreational uses, maintain a diversity of plant and animal species, maintain the viability of native and desired non-native vertebrate species, and enable timber yield from the forests. See 16 U.S.C. § 1604(e). NFMA also requires the Forest Service to adopt regulations that “specify[] guidelines for land management plans.” 16 U.S.C.

2 Forest, the Plan requires the Forest Service to conduct a site-specific study to determine whether

the proposed timber sale would harm the area or its resident species. After conducting a study of

the projected impact of the sales in question, the Forest Service determined that there would be

no adverse impact and approved the sales.

Sierra Club subsequently filed suit under the Administrative Procedure Act (APA), 5

U.S.C. § 706, contending that these timber cutting projects would harm plant and animal species

in the Forest. Sierra Club argued that, in conducting its study, the Forest Service did not obtain,

and therefore did not consider, population inventory and population trend data for proposed,

endangered, threatened, or sensitive species of plants and animals (collectively, “PETS

species”), as required by the Forest Plan and the Forest Service’s own regulations. Without such

data, Sierra Club claimed that the study of the affected area was inadequate, making the decision

to sell the timber parcels arbitrary and capricious. Sierra Club also argued that the decision to

approve the sales violated 36 C.F.R. §§ 219.12, 219.19 & 219.26 because the Forest Service

lacked the population data required by those regulations as well. Finally, Sierra Club challenged

the Forest Plan itself, contending that it does not conform with NFMA because the proposed

clearcutting will not adequately protect the Forest’s soil, watershed, fish, and wildlife as required

by the statute. See 16 U.S.C. § 1604(g)(3)(F)(v).

The district court granted summary judgment to the Forest Service and timber

intervenors, holding that the Forest Service was not required to obtain the population and

population trend data for PETS species before approving the timber sales and therefore that the

§ 1604(g)(3). Those regulations are found at 36 C.F.R. § 219 et seq. NFMA further requires that all permits and contracts for the use of the forests be consistent with the forest plans. See 16 U.S.C. § 1604(i).

3 Forest Service did not act arbitrarily and capriciously. Moreover, the district court found that

Sierra Club’s challenges to the timber sales under 36 C.F.R. § 219 did not lie because the

regulations deal specifically with the formulation of forest plans, rather than site-specific actions

initiated under an extant forest plan. Sierra Club now appeals.

We review grants of summary judgment de novo. Northlake Regional Medical Center

v.Waffle House System Employee Benefit Plan, 160 F.3d 1301, 1303 (11th Cir. 1998). Under the

APA, agency actions should be reversed if they are found to be “arbitrary and capricious, an

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

Discussion

1. NFMA

Sierra Club first argues that the Forest Service violated NFMA by failing to comply with

the Forest Plan’s requirement that population inventory information be gathered and considered

before implementing any decision affecting areas within the Forest. For each proposed project

within the Forest, the Plan requires that the Forest Service perform a site-specific Environmental

Assessment (EA), including a Biological Evaluation (BE)3 of how the area will be affected by

the project.4 Specifically, the Forest Plan states in relevant part:

3 The BE serves the dual purpose of complying with (1) the consultation requirements of Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, to address species listed as federally threatened or endangered and species proposed for listing under the ESA, and (2) Forest Service regulations under NFMA regarding "sensitive" species. (Sensitive species are plants and animals identified by a Regional Forester for which population viability is a concern, as evidenced by significant current or predicted downward trend in population numbers or density, or habitat capability). Forest Service Manual § 2670.5(19). 4 Timber Intervenors argue that the Forest Plan is not legally enforceable. We reject this argument as inconsistent with NFMA, which requires all permits and contracts for the use of the forests to be consistent with the forest plans. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e).

4 A biological evaluation of how a project may affect any species federally listed as threatened, endangered, or proposed, or identified by the Forest Service as sensitive, is done as part of the site-specific environmental analysis. This evaluation considers all available inventories of threatened, endangered, proposed and sensitive species populations and their habitat for the proposed treatment area. When adequate population inventory information is unavailable, it must be collected when the site has high potential for occupancy by a [PETS] species.

Pursuant to the Forest Plan, a BE was done as part of the EA for each of the seven timber

projects at issue. Thereafter, the Forest Service determined that no further evaluations were

necessary and issued Findings of No Significant Impact (FONSIs) for each tract. The locus of

this dispute is whether the Forest Service, in conducting its BEs and EAs, adequately researched

the potential impact of the proposed timber sales before issuing FONSIs.

There is no disagreement between the parties that numerous plants and animals identified

by the Forest Service as sensitive as well as several that are endangered inhabit the proposed

timber project areas. In addition, the parties agree that the habitat in sections of the project areas

are suitable for other sensitive and endangered species. However, the Forest Service had no

population inventory information and little in the way of population data for thirty-two of the

thirty-seven vertebrate PETS species that inhabit the Forest. Sierra Club contends that, in light

of the acknowledged presence of many PETS species in the areas at issue, the Forest Service was

required by the Forest Plan to gather population data before permitting the timber sales to

proceed. By failing to collect these data, Sierra Club argues, the Forest Service violated the

Forest Plan and the provision of NFMA mandating compliance with the Plan.

The Forest Service, on the other hand, argues that its data are adequate and that

population studies are required only if the site has a high potential for occupancy by PETS

5 species. It maintains that its field visits and consultation of compartment maps, CISC5 data and

Georgia Natural Heritage Program6 maps indicate that the sites of the timber sales either do not

have high potential for occupancy by PETS species, or suffice to demonstrate the continued

viability of those PETS species that do occupy the areas. This habitat information, it asserts, is

adequate to satisfy the requirements of the Forest Plan. Moreover, in its view, the Forest Service

has the discretion to make determinations of potential impact based on information other than

population inventory information, strictly defined.

While the Forest Service’s interpretation of its Forest Plan should receive great deference

from reviewing courts, “courts must overturn agency actions which do not scrupulously follow

the regulations and procedures promulgated by the agency itself.” Simmons v. Block, 782 F.2d

1545, 1550 (11th Cir. 1986). Moreover, the Forest Service cannot ignore the requirements of the

Forest Plan. As NFMA makes plain, “[r]esource plans and permits, contracts, and other

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

the land management plans.” 16 U.S.C. § 1604(i); see also Thomas Jefferson University v.

Shalala, 512 U.S. 504, 512 (1994) (no deference due to agency interpretation that contradicts the

regulation’s plain language); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)

(reviewing court may remand a case to the agency "[i]f the record before the agency does not

5 CISC stands for “Continuous Inventory of Stand Conditions;" it is a monitoring system for the health of the forest’s trees. 6 The GNHP maps are not part of the record in their totality. The Forest Service notes that the maps contain sensitive data and were redacted prior to their inclusion in the Administrative Record. However, the materials in the record are so truncated as to contain virtually no information at all. We therefore cannot assess the probative value of the GNHP data.

6 support the agency action [or] if the agency has not considered all relevant factors . . .").

The Forest Service admits in numerous places in the record that sensitive species do

occur within the project sites and acknowledges that those individuals would be destroyed by the

proposed timber sales. It then notes in each case that because the species also exist elsewhere

within the Forest, the timber projects would not significantly impact the species’ diversity or

viability. Yet, the Forest Service reached this conclusion without gathering any inventory or

population data on many of the PETS species. Though these species are, by definition, at risk,

nothing in the record indicates that the Forest Service possessed baseline population data from

which to measure the impact that their destruction in the project areas would have on the overall

forest population. We are nevertheless asked to defer to the Forest Service’s conclusion that

there will be no significant impact upon these species from the proposed timber projects. Absent

record support for the Forest Service’s assertions, this we cannot do. Agency actions must be

reversed as arbitrary and capricious when the agency fails to “examine the relevant data and

articulate a satisfactory explanation for its action including a ‘rational connection between the

facts found and the choice made.’” Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co.,

463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168

(1962)).

More basically, however, the Forest Service argues that nothing in the regulations

requires it to keep data on sensitive species and that it is therefore not necessary for it to do so.

While it is true that the regulations make no such demand, the Forest Plan explicitly does so.

The Forest Plan states that when adequate population inventory information is unavailable and

the site has a high potential for occupancy by PETS species, then the Forest Service must gather

7 that information. Here, the Forest Service admits that the project areas actually contain PETS

species. It nonetheless maintains that its data, though devoid of any inventory information as to

some PETS species, remain adequate to assess potential impact upon the species, forest-wide.

The information which the Forest Service deems “adequate” is in reality no information at all in

terms of many of the PETS species. Since the agency’s position is contrary to the clear language

of the Plan and the statute, it is not entitled to deference. We consequently hold that the Forest

Service’s failure to gather population inventory data on the PETS species occurring or with a

high potential to occur within the project areas is contrary to the Forest Plan and, therefore, that

the decision to approve the timber sales without considering this information is arbitrary and

capricious.

2. 36 C.F.R. § 219

Sierra Club next claims that the Forest Service’s decision to proceed with the timber sales

violated 36 C.F.R. §§ 219.19 & 219.26 because it failed to collect population data specifically

for Management Indicator Species (MIS)7 (as required by § 219.19), and for all affected species

(as required by § 219.26).

Section 219.26 creates a general obligation that the Forest Service gather and keep data

to ensure species diversity in the planning area. It states in relevant part:

Forest Planning shall provide for the diversity of plant and animal communities and tree species consistent with the overall multiple use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition.

7 Management Indicator Species (MIS) are selected representative species used to estimate the effects of the forest plans on forest ecosystems.

8 Section 219.19 specifically requires that the Forest Service monitor the population of Management Indicator Species, stating:

Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. . . . (1) In order to estimate the effects of each alternative on fish and wildlife populations, certain vertebrate and/or invertebrate species present in the area shall be identified and selected as management indicator species . . . . (6) Population trends of the management indicator species will be monitored and relationships to habitat changes determined. [emphasis added]8

Sierra Club contends that, taken together, these two regulations obligate the Forest Service to

maintain population data on all affected species in the planning area. Since the Forest Service

lacks quantitative inventory data on many MIS, and the data it does have indicate that the

populations of some species are inexplicably declining, Sierra Club argues that the Forest

Service’s approval of the timber projects was arbitrary and capricious. See Motor Vehicles

Mfrs. Ass'n, 463 U.S. at 43 (agency decisions that fail to consider important aspects of the

problem or that run counter to the evidence before the agency are arbitrary and capricious).

The Forest Service responds first that neither § 219.19 nor § 219.26 apply at the site-

specific level. Rather, they are relevant only during the formation of the Forest Plan and,

because the Forest Plan is not a final agency action, the Sierra Club cannot challenge the Forest

Plan. Second, the Forest Service contends that even if Sierra Club could bring its § 219

challenge at the site-specific level, it would still not be entitled to relief on the merits of its

claims. The Forest Service notes that § 219.19 does not explicitly require the Forest Service to

gather data on MIS. The regulation simply states that population trends of the MIS must be

8 See also 36 C.F.R. § 219.12(d) which states that when preparing, revising or amending a forest plan, the Forest Supervisor must “obtain and keep current inventory data appropriate for planning and managing the resources under his administrative jurisdiction. . . . This may require that special inventories or studies be prepared.”

9 monitored and relationships to habitat changes determined. Furthermore, the Forest Service

contends that to interpret § 219.26 to require that data be kept on all species makes nonsense out

of § 219.19's concept of management indicator species. If the Forest Service must keep data on

all species, it argues, then no purpose is served by the MIS.

We agree that the regulations refer to the formulation of Forest Plans rather than to

specific projects proposed under already enacted Forest Plans. Section 219 begins by explicitly

stating that “[t]he regulations in this subpart set forth a process for developing, adopting, and

revising land and resource management plans for the National Forest System,” 36 C.F.R. §

219.1, and the regulations make repeated reference to the forest planning process. However, the

planning process does not end with the Forest Plan’s approval. The obligations of the Forest

Service with regard to the Forest Plan continue throughout the Plan’s existence. The regulations

require that the Forest Service monitor the plan’s impact and, when necessary, revise the plan.9

Section 219.10(g) requires that forest plans be revised every ten years and also whenever the

Forest Supervisor “determines that conditions or demands in the area covered by the plan have

changed significantly or when changes in . . . policies, goals, or objectives would have a

significant effect on forest level programs.” 36 C.F.R. § 219.10(g). One of the purposes of this

constant oversight is to establish benchmarks in order to better assess the impact of specific

actions upon the forest environment. Sierra Club is therefore entitled to challenge the Forest

Service’s compliance with the Plan as part of its site-specific challenge to the timber sales.

9 See Inland Empire Public Lands v. United States Forest Service, 88 F.3d 754, 760 n.6 th (9 Cir. 1996) (rejecting notion that § 219.19 applies only to the promulgation and management of forest plans and noting that areas contained within the boundaries of a National Forest would be covered by a forest plan and thus would also be governed by 36 C.F.R. § 219.19).

10 See Wilderness Society v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (court will not hear

challenge to Forest Plan until site-specific action is proposed). A contrary result would

effectively make it impossible for a plaintiff to even seek review of the Forest Service's

compliance with a Forest Plan.

Furthermore, the Forest Service and intervenors’ substantive argument – that 36 C.F.R.

§§ 219.19 & 219.26 do not require the Forest Service to collect any population data – is

inconsistent with the language of the regulations. Section 219.19(a)(6) states that “[p]opulation

trends of the management indicator species will be monitored and relationships to habitat

changes determined.” It is implicit that population data must be collected before it can be

monitored and its relationships determined. Likewise, § 219.26 requires that inventories of

quantitative data be used when evaluating the effect of management alternatives on forest

diversity. Before inventories can be evaluated, they have to be collected. Thus we find no merit

to the Forest Service’s contention that they have no obligation under § 219 to collect population

data.

We do agree with the Forest Service that the combination of §§ 219.26 and 219.19

require it only to collect inventory data on MIS rather than on all species in the Forest. To read §

219.26 to require inventory data on all species obviates the need for MIS and reduces § 219.19

to nonsense. On the other hand, the Forest Service and Timber Intervenors’s interpretation of §

219.26 – that they need not collect data on MIS either – would consign that regulation to a

similar fate. By their reading, § 219.26 would have no meaning despite its explicit requirement

that quantitative inventory data be used to measure forest diversity. Interpreting a regulation in a

manner that robs it of all meaning is unacceptable. Cf. Scott v. City of Hammond, Ind., 741 F.2d

11 992, 998 (7th Cir. 1984) (strong presumption against agency interpretation that renders statute

“wholly ineffective”).

We believe that the regulations are harmonious when read together. MIS are proxies

used to measure the effects of management strategies on Forest diversity; Section 219.19

requires that the Forest Service monitor their relationship to habitat changes. Section 219.26

requires the Forest Service to use quantitative inventory data to assess the Forest Plan’s effects

on diversity. If § 219.19 mandates that MIS serve as the means through which to measure the

Forest Plan’s impact on diversity and § 219.26 dictates that quantitative data be used to measure

the Plan’s impact on diversity, then, taken together, the two regulations require the Forest

Service to gather quantitative data on MIS and use it to measure the impact of habitat changes on

the Forest's diversity. To read the regulations otherwise would be to render one or the other

meaningless as well as to disregard the regulations’ directive that population trends of the MIS

be monitored and that inventory data be gathered in order to monitor the effects of the Forest

Plan. See Sierra Club v. Glickman, 974 F.Supp. 905, 936 (E.D. Tex. 1997) (“The unambiguous

language of the MIS regulations requires collection of population data.”).10

Turning now to the instant case, it becomes clear that the Forest Service’s approval of the

timber sales without gathering and considering data on the MIS is arbitrary and capricious. The

10 In so finding, we respectfully differ with the Ninth Circuit’s conclusion in Inland Empire, 88 F.3d at 761, that habitat analyses suffice to satisfy the requirements of 36 C.F.R. § 219.19. We believe that this finding does not conform with the clear language of the regulations, which requires evaluation of “both amount and quality of habitat and of animal population trends of the management indicator species.” 36 C.F.R. § 219.19(a)(2) (emphasis added). It bears noting, however, that the Inland court reached its conclusion based on a very different set of facts. In that case, the Forest Service had conducted a site-specific EIS and detailed field studies before concluding that the MIS would not be significantly harmed. Id. at 758, 761.

12 regulations require that MIS be monitored to determine the effects of habitat changes. The

timber projects proposed for the Chattahoochee and Oconee National Forests amount to 2000

acres of

habitat change.11 Yet, despite this extensive habitat change and the fact that the some MIS

populations in the Forest are actually declining,12 the Forest Service has no population data for

half of the MIS in the Forest and thus cannot reliably gauge the impact of the timber projects on

these species.

For the foregoing reasons, we reverse the district court’s grant of summary judgment to

the Forest Service and timber intervenors on the claims that the Forest Service acted arbitrarily

and capriciously and violated NFMA, 16 U.S.C. § 1604, by approving the timber sales without

gathering data on PETS species despite the directive of the Forest Plan. We also find that the

agency’s failure to gather inventory data on management indicator species violated 36 C.F.R. §§

219.19 & 219.26 and we reverse the district court’s grant of summary judgement on that claim as

well.13 REVERSED AND REMANDED for further proceedings consistent herewith.

11 Aside from the logging itself, the timber projects will entail the construction of eighteen miles of roads and cause over one hundred tons of sediment to be discharged into surrounding streams and rivers. 12 See Sierra Club v. Martin, 992 F.Supp. 1448, 1473 (N.D. Ga. 1998) (Appendix A). 13 Sierra Club also alleges that the Forest Service violated 16 U.S.C. § 1604(g)(3)(F) and 36 C.F.R. § 219.27(c)(6), both of which require that timber harvest methods be consistent with the protection of soil, watershed, and wildlife. Because Sierra Club has already received the relief it seeks, we need not reach the merits of this claim.