Utah Environmental Congress v. Bosworth

439 F.3d 1184, 2006 WL 446040

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 2006
• Docket: No. 03-4251
• Status: Published

Opinions

WHITE, District Judge,

Concurring.

I respectfully offer this concurring opinion to highlight the impact of the intervening circuit precedent on the district court’s decision. Admittedly, the opinion rendered today follows logically from the now binding holding in UEC I that § 219.19 applies directly to project level activities in addition to the development, adoption and revision of the forest plan itself. The district court here would no doubt have ruled differently if it could have divined that project level management activities must strictly adhere to § 219.19 procedures. Such a divination, however, was not possible. As the opinion in UEC I implicitly concedes, its holding was not compelled by the actual language of the regulation.

Nowhere in § 219.19 does the term “project” appear. The explicit language of that section mentions only the “planning area.” Indeed, UEC I mentions that even the plaintiff in that case conceded that “ § 219.19 applies to the development of Forest Management Plans, as opposed to specific project level actions[.]” Utah Environmental Congress v. Bosworth, 372 F.3d 1219, 1224 (10th Cir.2004). UEC I’s analysis also mentions: (1) that NFMA requires “resource management activities be consistent with the Forest Plan,” Id., at 1225. (emphasis supplied); and, (2) that § 219.27 “contemplates the application of § 219.19 to management activities!)]” Id., at 1225 (emphasis supplied). These two factors formed the foundation for UEC I’s final conclusion that the regulations as a whole “anticipate” application of § 219.19 to project level as well as plan level management actions. Id.

Thus, according to UEC I, the regulations “anticipate” and “contemplate” its final interpretation of § 219.19. This is hardly a firm foundation for the conclusion that UEC I’s interpretation is the only legally permissible one. Indeed, nowhere does UEC I state that its interpretation of § 219.19 is the only legally permissible one. Furthermore, nowhere does UEC I explain exactly how the Forest Service’s interpretation of the regulation was arbitrary and capricious.

Of course, that is not to say that UEC I’s interpretation of § 219.19 is illogical or unreasonable. Likewise, because that section is ambiguous at best with regard to the present issue, the interpretation of the Forest Service is also neither illogical or unreasonable. In short, project level actions may certainly still be “consistent” with the forest plan as a whole, without requiring wholesale imposition of § 219.19 procedures onto each discrete project. A project may certainly be “consistent” with the forest plan when the Forest Service assesses a project’s effects on MIS through the use of habitat information, population information, or a combination of the two.

In Dombeck, this Court emphasized that a “practical” interpretation of the regulations must be taken “consistent with -the ‘overall multiple use objectives’ and the ‘inherent flexibility’ of the National Forest Management Act.” Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1171 (10th Cir.1999) (quoting Seattle Audubon Soc’y v. Mosely, 80 F.3d 1401, 1404 (9th Cir. 1996)). The project at issue here entails only 219 acres, or 1.46% of the entire 15,000 acre Thousand Lakes Mountain area. Therefore, in this case, even if not in all cases, the Forest Service’s interpretation of § 219.19 and its actions seem imminently reasonable.

The now controlling interpretation of § 219.19 in UEC I may be the best interpretation. No doubt, that panel believed that its interpretation most effectively advances the goals of NFMA. Unfortunately, I believe that in finding the best interpretation, the UEC I panel substituted its judgment for that of the appropriate decision-maker. The interpretation of the Forest Service must be given deference, “especially when that interpretation involves questions of scientific methodology.” Dombeck, at 1170 (citation omitted).

A disagreement about the interpretation of a Forest Service regulation might hardly seem to justify a concurring opinion, especially when, as now, the Forest Service has adopted new planning regulations. Thus, this particular interpretive issue is unlikely to be reviewed in future cases. The issue of consequence here, however, is not merely one involving proper interpretation of regulations, but rather the proper separation of powers. That separation is breached when an agency’s reasonable interpretation of a regulation is set aside in favor of a seemingly better one imposed by the judiciary.

But for the intercession of UEC I, I would affirm the district court. The obligations of stare decisis, however, compel me to concur respectfully in the result today.