Southeast Alaska Conservation Council v. United States Forest Service

857 F.3d 968

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2017
• Docket: No. 15-35232, No. 15-35233, No. 15-35244
• Status: Published

Opinions

OPINION

KOZINSKI, Circuit Judge:

Big Thorne is a logging project in Alaska’s Tongass National Forest. The United States Forest Service approved the logging to help revive the lackluster economy of southeastern Alaska. But the project has been met with howls of protest from the plaintiffs in this case, who claim that Big Thorne unlawfully damages the habitat of an indigenous wolf. The district court dismissed all challenges, and we must now decide whether the Forest Service violated the National Forest Management Act (NFMA) by approving either the Big Thorne project or the 2008 Tongass Forest Plan (Forest Plan) under which Big Thorne was authorized.

FACTS

Big Thorne allows timber to be harvested from Alaska’s Prince of Wales Island. The island, which is the size of Delaware, is the largest in a chain that makes up Alaska’s Alexander Archipelago. Like most of the archipelago, Prince of Wales Island is covered in old-growth rainforest. Big Thorne authorizes logging on nearly 6,200 acres and the construction of more than 80 miles of roads.

Logging and road construction will trench on the habitat of the Alexander Archipelago wolf. This rare wolf preys on a species of deer that thrives in the old-growth rainforest, which provides suitable shelter and forage during periods of heavy snow. A smaller forest will support fewer deer, which, in turn, will support fewer wolves. The new, roads will compound that effect by letting wolf and deer hunters range deeper into the forest.

Concerns about the fate of the wolf are not new. This discrete and insular canine is confined to the islands of the archipelago and surrounding coastline, and is thus sensitive to changes in local habitat. In 1993, environmental groups petitioned to have the wolf listed under the Endangered Species Act. The Fish and Wildlife Service denied the petition,¹ but nonetheless helped convene a team of scientists to prepare a “wolf conservation assessment.” The assessment recommended that the wolf be protected by maintaining the deer population and limiting road density.

The Forest Service used these recommendations in 2008 as the basis for two “standards and guidelines” adopted in the Forest Plan. The first of these—known as the “wolf provision”—encourages the Forest Service to “[pjrovide, where possible, sufficient deer habitat capability to ... maintain sustainable wolf populations” (emphasis added). A sufficient habitat capability “is generally considered to equate to ... 18 deer per square mile.” The second guideline—the “road provision”—provides that “[tjotal road densities of 0.7 to 1.0 mile per square mile or less may be necessary” to protect the wolves (emphasis added).

Even before Big Thorne was approved, the project area had insufficient habitat capability to support 18 deer per square mile, and road densities were above the recommended maximum. The logging project will further reduce deer habitat capability and increase road density.

The Forest Service nevertheless put the welfare of local loggers and their families above that of the wolves, and approved Big Thorne. More concerned with wolves than jobs, plaintiffs filed three lawsuits, pressing a variety of challenges in an attempt to derail the project. The district court consolidated the cases and granted Alaska’s motion to intervene. It then granted summary judgment to the defendants on all claims. Plaintiffs appeal.

DISCUSSION

We consider whether the Forest Service violated the NFMA by approving the Forest Plan or the Big Thorne logging project.² This dual inquiry tracks the two tiers of the agency’s legal obligations. First, the NFMA requires that the Forest Service develop “land and resource management plans,” commonly called forest plans, that set broad goals and guidelines for each national forest. 16 U.S.C. § 1604(a), (e), (g); Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 2003). Second, after a forest plan is developed, all subsequent agency actions within that national forest—projects like Big Thorne—must comply with both the NFMA and the relevant forest plan. 16 U.S.C. § 1604(i); see also Lands Council v. McNair, 537 F.3d 981, 989 (9th Cir. 2008) (en banc), abrogated in part on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

The Administrative Procedure Act provides our standard of review. We set aside an agency’s actions “only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Or. Nat. Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (internal quotation marks omitted) (discussing 5 U.S.C. § 706(2)(A)).

A. The Forest Plan

1. While “generalized harm” to the environment isn’t enough to supply standing, the Supreme Court has emphasized that particularized harm to “recreational” or even “mere esthetic interests” is sufficient. Summers v. Earth Island Inst., 555 U.S. 488, 494, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). We have previously held that a plaintiff has standing to challenge a “programmatic” agency decision (like a forest plan) when he suffers harm that is “fairly traceable” to that program. See Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1081 (9th Cir. 2015) (internal quotation marks omitted).

Plaintiffs present voluminous declarations amply demonstrating that they are challenging the Forest Plan as a result of specific applications and not, as defendants claim, on its face. The declarants use sites affected by the Forest Plan for fishing, hunting, and to “enjoy the solitude” available only in “remote, undeveloped areas on the Tongass.” Unlike the single individual affidavit before the Supreme Court in Summers, 555 U.S. at 495, 129 S.Ct. 1142—which was inadequate to establish standing—these declarations are sufficient to show that actions approved under the Forest Plan will cause particularized injury to the plaintiffs.

2. The NFMA’s regulations at the time of the Forest Plan required that national forests “be managed to maintain viable populations of existing native and desired non-native vertebrate species.” 36 C.F.R. § 219.19 (2000) (emphasis added).³ This regulation defined a viable population as one with enough “reproductive individuals to insure its continued existence is well distributed in the planning area.” Id. So our question is whether the Forest Service unlawfully concluded that its Forest Plan would safeguard the continued and well-distributed existence of the Alexander Archipelago wolf.

Some plaintiffs argue that this is the wrong question. They claim that the “wolf provision” of the Forest Plan in fact mandates a “sustainable” wolf population, not merely a viable one. Sustainability is the more demanding standard, and plaintiffs claim that the Forest Service violated its self-imposed obligation by failing to ensure sustainability.

The difference between sustainability and viability is not sharply defined, and is made fuzzier still by the parties, who occasionally conflate the two—as when they refer to “sustaining viable” wolf populations, or repeatedly (if obscurely) ponder the forest’s ability to “sustain wolves.” We need not map the precise contours of these concepts, however, because the Forest Plan provision that mentions sustainability is discretionary: It states only that the Service “[pjrovide, where possible, sufficient deer habitat capability to ... maintain sustainable wolf populations” (emphasis added). This is an aspiration, not an obligation. Because the Forest Service is only obligated to consider sustainability “where possible,” there is no law for us to apply in second-guessing the agency. See Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (construing 5 U.S.C. § 701(a)(2)). We agree with the district court that the provision gives the Service the kind of “flexibility and discretion” that is consistent with its mission of balancing competing objectives.

Plaintiffs argue that such broad discretion must itself be a problem: If the “sustainability” provision merely expresses an aspiration, the Forest Plan must violate the NFMA by failing to provide any enforceable mechanism for maintaining population mínimums that comply with the viability regulations. The argument appears to be that the Forest Plan must set hard viability mínimums—like deer per square mile—below which the Service may not go.

This argument is neither viable nor sustainable. We’re aware of no authority compelling the agency to set a specific standard or benchmark for protecting the viability of a species that is neither endangered nor threatened. This makes sense when we consider our constellation of federal statutes: The NFMA is fundamentally different from the Endangered Species Act, which has a single-minded focus on protecting species that are near extinction. Because the Alexander Archipelago wolf is not entitled to such protection—despite the best efforts of environmental groups— its treatment is guided by the less animal-friendly NFMA. The NFMA is about managing competing uses, none to the exclusion of others. See 16 U.S.C. § 1604(e).

As the dissent notes, the Forest Plan does incorporate a superseded regulation requiring the agency to “maintain viable populations” of native vertebrate species. See 36 C.F.R. § 219.19 (2000); see also supra note 3. But, contrary to the dissent’s suggestion, we have repeatedly and emphatically stressed that the Service is not required to identify a specific “mechanism” for securing viability. We have rejected the idea that the Service “must assess population viability in terms of actual population size, population trends, or the population dynamics of other species”; even if such methods are desirable, they are flatly “not required.” Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 761 n.8 (9th Cir. 1996). Indeed, we are “especially” deferential “when questions of scientific methodology are involved,” like how to protect viability. Id. at 760. More recently, our en banc opinion in Lands Council v. McNair again made clear that courts may not “require a particular type of proof that a project would maintain a species’ population.” 537 F.3d at 997. Instead, an agency need only supply “a rational connection between the facts found and the conclusions made.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007) (citation and quotation marks omitted). This rational connection can be supplied with studies or models or experts—or really any legitimate evidence, so long as the agency describes a reasonable fit between its means and ends.

There’s no question that the agency understood and met this obligation. The Record of Decision specifically concludes that the Forest Plan will “sustain viable populations of the Alexander Archipelago wolf.” The Service outlined a multi-part strategy for protecting the wolf, which included “providing core habitats with low road density, maintaining wolf harvest within sustainable limits through regulations, and providing adequate deer habitat to support an abundant and stable deer population.” The Service extensively discussed the management and modeling concerns of alternative forest plans, and concluded that all alternatives had between a “moderately high” and “very high” probability of protecting wolf viability. The Service’s Record of Decision specifically incorporates this discussion, along with a longer discussion in the 1997 Forest Plan. Could the Service’s discussion have been longer, better, or different? Perhaps. But we decline to substitute our own policy wisdom for the agency’s.⁴

In short, the Service met its legal obligations, and plaintiffs’ remaining challenges to the Forest Plan—a potpourri of contentions that the Service misinterpreted one thing or failed to consider another—amount to the sort of quibbling that can’t overcome our deferential standard of review. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). The Forest Service’s discussion of viability wasn’t arbitrary or capricious.

The NFMA gives the Forest Service flexibility because the Service has many different goals—conservation, commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2); McNair, 537 F.3d at 993-94. The statute reflects a congressional judgment that balancing these goals calls for policy judgments—judgments that often require trade-offs among worthy objectives, such as wolves and logging jobs. Congress left such judgments to a politically responsive agency with relevant expertise. See 63C Am. Jur. 2d Public Lands § 86 (2016) (“[T]he proper mix of uses within an area is left to the discretion of the Forest Service.”). Depending on The circumstances, lumber might be more important than wolves. And even when wolves are more important than lumber, it might be better to build fewer roads rather than allow for more deer. Courts are not well-equipped to police the substance of these judgments. Instead, we employ procedural tools: In a nutshell, the agency must rationally explain why it did what it did. Or. Nat. Res. Council Fund, 492 F.3d at 1125. This isn’t the only way to structure a modern administrative state, and its emphasis on procedure will produce results that some despise. But we have an Administrative Procedure Act, not an Administrative Policy Act.

B. The Big Thorne Project

Even if the Forest Service lawfully implemented the Forest Plan, it must also ensure the Big Thorne Project is consistent with that plan. 16 U.S.C. § 1604(i); McNair, 537 F.3d at 989.

Plaintiffs claim the Service failed to do this. But almost all of their arguments proceed from the same false premise as their objections to the Forest Plan—namely, they assume that it’s a sustainable population that counts, rather than a viable one. And the premise is wrong for the same reason: The sustainability provision of the Forest Plan is discretionary. The Forest Service must consider protecting sustainable populations “where possible.” If the Service decides that a sustainable wolf population conflicts with other appropriate forest goals, the Service has discretion to pursue those goals instead.

And that’s just what the Forest Service did. It repeatedly emphasized that it was expanding timber supply from the Tongass in the service of its multiple-use mandate. The Service also pointed out that none of Big Thorne’s proposed land met the Forest Plan’s suggested sustainability minimums; thus, these goals wouldn’t have been met even in the absence of a logging plan. In the end, the Service chose jobs over wolves. We have no authority to second-guess that judgment. See supra pp. 974-75.

Big Thorne’s environmental impact statement does contain scattered references to both sustainability and viability. But plaintiffs are off-base in suggesting that a few scattered references to sustainability—a common term that’s deployed incautiously throughout the record and briefs—can transform the Service’s legal obligation, which is to protect viability alone.⁵ To conclude that the Service intended to saddle itself with an extra obligation would require us to overlook the agency’s numerous references to viability in the documents approving Big Thorne— as when it concluded in its impact statement that the plan was “designed to ensure the maintenance of viable populations of all vertebrate species [in] the Tongass by means of a comprehensive approach.”

Because that conclusion accurately described the Service’s legal obligations and was rationally explained, the judgment below is

AFFIRMED.

1 . In response to several renewed petitions, the Fish and Wildlife Service concluded in early 2016 that "listing the Alexander Archipelago wolf is not warranted at this time throughout all or a significant portion of its range, including [Prince of Wales Island].” 12-Month Finding on a Petition To List the Alexander Archipelago Wolf as an Endangered or Threatened Species, 81 Fed. Reg. 435, 435 (Jan. 6, 2016).

2 . The district court also dismissed plaintiffs’ claims brought under the National Environmental Policy Act. We dispose of those claims, and several outstanding motions for judicial notice, in a memorandum disposition filed concurrently.

3 . This regulation has been superseded. We apply a superseded regulation "only to the extent” it was incorporated into the relevant Forest Plan. Ecology Ctr. v. Castaneda, 574 F.3d 652, 657 (9th Cir. 2009). The Forest Plan, which has not been updated since 2008, does mention the superseded regulation, and the parties don’t dispute that the old regulation applies. Applying the current regulation would not change the result because the new regulation gives Forest Service officials even more leeway to "determine whether or not the plan components ... maintain a viable population of each species of conservation concern within the plan area.” 36 C.F.R. § 219.9(b).

4 . The dissent’s focus on population changes on Prince of Wales Island, dissent at 979-80, is puzzling for two reasons. First, the Forest Service's obligation is to protect viability in the Tongass Forest as a whole, not every slice of it—in this case, an island that is less than 10% of the total national forest. Second, the effects of the Big Thorne Project tell us nothing about whether the agency complied with its legal obligations in adopting the Forest Plan many years earlier.

5 . Once more, the Service’s obligation is to protect viability in the Tongass National Forest as a whole, not in each individual Tongass project area. Plaintiffs' claims that the Service failed to explain how it would maintain wolf viability in the Big Thorne area thus, once again, misunderstand the Service's obligations.