Utah Environmental Congress v. Bosworth

421 F.3d 1105, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20170, 2005 U.S. App. LEXIS 17619, 2005 WL 1995583
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 19, 2005
Docket03-4251
StatusPublished
Cited by7 cases

This text of 421 F.3d 1105 (Utah Environmental Congress v. Bosworth) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Utah Environmental Congress v. Bosworth, 421 F.3d 1105, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20170, 2005 U.S. App. LEXIS 17619, 2005 WL 1995583 (10th Cir. 2005).

Opinions

HENRY, Circuit Judge.

In October 2001, the Forest Service approved a timber-harvesting project in Utah’s Fishlake National Forest. Utah Environmental Congress (“UEC”), an environmental organization, filed a petition for review, and the district court dismissed the petition and affirmed the project’s authorization. UEC alleges on appeal that the Forest Service (1) did not properly select and monitor the Management Indicator Species (“MIS”) that it used to determine the effects of management activities on other species, and (2) did not consider a reasonable range of alternatives to the project. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the judgment below and remand to the district court with instructions to vacate the Forest Service’s approval of the project. Intervening circuit precedent requires the agency to collect quantitative population data on actual MIS populations before authorizing a project under the rules the Forest Service uses.

I. BACKGROUND

The Thousand Lakes Community Forestry Initiative Project (“the Project”) is located in Wayne County, Utah, on the 1.5-million-acre Fishlake National Forest. A collaboration of timber representatives, environmentalists, politicians, and federal land managers undertook the Project (1) “to reduce the overall stand densities of the [spruce and aspen] stands that are at the highest risk of [spruce beetle] infestation, while maintaining a forested appearance” and (2) “to provide forest products to resource dependent industries in an economically feasible manner.” Administrative Record vol. I, at (“1 AR”) 000044. The Project encompasses timber harvests on 219 acres, with approximately one-half mile of road re-construction and post-treatment activities to minimize erosion and the use of authorized vehicles. No new road building is involved. The Project would use salvage (removal of unhealthy trees), sanitation (removal of dead trees in excess of resource needs for habitat), and commercial thinning (removal to reduce overall stand densities).

The Forest Service manages the Fish-lake National Forest at two different levels. “At the first level, the Forest Service develops the Forest Plan, [which is] a broad, programmatic document, accompa[1109]*1109nied by an Environmental Impact Statement and public review process conducted in accordance with the National Environmental Policy Act [‘NEPA’].” Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1167-68 (10th Cir.1999); 16 U.S.C. § 1604. To this end, the Forest Service adopted the Fishlake National Forest Plan (the “Forest Plan”) in 1986 to maintain the Fishlake National Forest. As part of its substantive responsibilities, the Forest Plan must “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.” 16 U.S.C. § 1604(g)(3)(B).

At the second level, “the Forest Service implements the Forest Plan by approving (with or without modification) or disapproving particular projects,” such as the Thousand Lakes Community Forestry Initiative Project. Dombeck, 185 F.3d at 1168. Individual projects are also subject to NEPA and must comply with the Forest Plan and the National Forest Management Act (“NFMA”). 16 U.S.C. § 1604(i).

In November 1999, the Forest Service began preparing an Environmental Assessment (“EA”) of the Project. The Forest Service examined the Project’s potential impact to wildlife, soils, vegetation, and other resources, and it prepared a Biological Assessment and Biological Evaluation of impacts to sensitive plant and animal species. In May 2001, the Forest Service published its EA for the Project, and in October 2001, the district ranger issued a finding of no significant impact (“FONSI”) and Decision Notice approving the Project. UEC brought an administrative appeal, and the Forest Service issued a Final Decision in February 2002 that affirmed the district ranger. 1 AR 000032.

UEC challenged the Forest Service’s approval of the Project in federal district court. In September 2003, the district court dismissed UEC’s petition for review and affirmed the agency’s Decision Notice and FONSI. UEC now appeals the Forest Service’s approval of the Project on two of the three grounds rejected by the district court. UEC alleges that the Forest Service, (1) did not properly select and monitor certain Management Indicator Species and (2) did not consider a reasonable range of management alternatives.1

II. STANDARD OF REVIEW

We take “an independent review of the agency’s action” and are not bound by the district court’s factual findings or legal conclusions. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1569 n. 16, 1577 n. 27 (10th Cir.1994). We review the Forest Service’s decision under the Administrative Procedures Act and set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We give deference to an agency’s interpretation, “especially when that interpretation involves questions of scientific methodology.” Dombeck, 185 F.3d at 1170. In addition, “[t]he agency, not the reviewing court, is entrusted with the responsibility of considering the various modes of scientific evaluation and the[1110]*1110ory and choosing the one appropriate for the given circumstances.” City of Bridgeton v. FAA, 212 F.3d 448, 459 (8th Cir.2000) (quotation marks and internal citation omitted), cited with approval in Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1036 (10th Cir.2001). “[T]he court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III. APPLICABLE FOREST SERVICE REGULATIONS

Before we proceed to UEC’s separate challenges, we briefly describe the relevant regulations at issue. Forest Service regulations implement NFMA’s requirement that the government address how forest plans provide for plant and animal diversity. 36 C.F.R. § 219.19 (1999). The Department of Agriculture (“Department”) substantially amended the regulations at issue in November 2000. 65 Fed.Reg. 67,-568 (Nov. 9, 2000). The 2000 regulations included a transition provision that initially delayed their application to project decisions until November 2003. See 36 C.F.R.

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Utah Environmental Congress v. Bosworth
421 F.3d 1105 (Tenth Circuit, 2005)

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Bluebook (online)
421 F.3d 1105, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20170, 2005 U.S. App. LEXIS 17619, 2005 WL 1995583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utah-environmental-congress-v-bosworth-ca10-2005.