Seacc v. Usfs

Citation: Not availableDocket: 15-35232

Court: Court of Appeals for the Ninth Circuit; May 23, 2017; Federal Appellate Court

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The document pertains to a legal case involving the Big Thorne Project and the 2008 Tongass Forest Plan, filed in the United States Court of Appeals for the Ninth Circuit. The plaintiffs, including conservation organizations such as the Southeast Alaska Conservation Council, Alaska Wilderness League, and Sierra Club, are appealing against the United States Forest Service and other federal officials regarding actions taken under the Tongass National Forest management. Intervenor-defendants include various state entities, businesses, and organizations that support the project. The case numbers referenced are 15-35232 and 15-35233, with related district court cases numbered 1:14-cv-00013-RRB, 1:14-cv-00014-RRB, and 1:14-cv-00015-RRB. The parties involved present a complex interplay between environmental concerns raised by the plaintiffs and the interests of the intervenor-defendants, who represent economic stakeholders in the region.

The United States Court of Appeals upheld the district court's summary judgment favoring the U.S. Forest Service regarding allegations of violations of the National Forest Management Act (NFMA) related to the Big Thorne logging project and the 2008 Tongass Forest Plan. Plaintiffs claimed the Forest Plan adversely impacted the habitat of the Alexander Archipelago wolf and that the Forest Service failed to uphold its commitments to ensure the species' sustainability.

The court determined that the sustainability provision in the Forest Plan was discretionary, meaning the Forest Service was only required to consider sustainability "where possible." Consequently, there was no legal basis to challenge the agency's decisions. The court noted that the Forest Service's Record of Decision affirmed the viability of the Alexander Archipelago wolf under the Plan, indicating that its reasoning was neither arbitrary nor capricious.

The panel also found the Big Thorne Project aligned with the Forest Plan. Additionally, the court dismissed the plaintiffs' claims under the National Environmental Policy Act in a separate memorandum.

Judge Gould dissented on some aspects of the NFMA discussion, arguing that the Forest Plan lacked a mechanism to ensure wolf population viability and critiqued the Agency's reasoning as insufficiently detailed. He advocated for vacating the Forest Service's decision and remanding for further assessment of the wolf's viability in relation to the project.

Counsel for the plaintiffs-appellants includes attorneys from Earthjustice and the Crag Law Center, while the defendants-appellees are represented by the United States Department of Justice and the Department of Agriculture. The Big Thorne logging project, approved by the United States Forest Service in Alaska’s Tongass National Forest, aims to stimulate the local economy but faces opposition from plaintiffs who argue it unlawfully harms the habitat of the Alexander Archipelago wolf. The district court dismissed all challenges, leading to an appeal regarding potential violations of the National Forest Management Act (NFMA) related to both the Big Thorne project and the 2008 Tongass Forest Plan. 

Big Thorne allows logging on nearly 6,200 acres of Prince of Wales Island, which is primarily old-growth rainforest. The project involves significant road construction, impacting the habitat of the Alexander Archipelago wolf, a species dependent on deer that thrive in this ecosystem. Environmental concerns highlight that the project area already lacked sufficient deer habitat and exceeded recommended road densities, both of which are detrimental to the wolf population. In 1993, a petition for the wolf's protection under the Endangered Species Act was denied, but subsequent scientific assessments emphasized the need for habitat maintenance and road density limitations to support sustainable wolf populations. The 2008 Forest Plan incorporated these recommendations, establishing guidelines aimed at preserving deer habitat and managing road density, yet the Big Thorne project is argued to contravene these protective measures.

The logging project is set to diminish deer habitat and increase road density, prioritizing the economic interests of local loggers over the welfare of wolves. In response, plaintiffs filed three lawsuits to challenge the project's approval, which the district court consolidated and allowed Alaska to intervene. The court ultimately granted summary judgment to the defendants on all claims, leading to an appeal by the plaintiffs.

The legal inquiry focuses on whether the Forest Service violated the National Forest Management Act (NFMA) by approving both the Forest Plan and the Big Thorne logging project. The NFMA mandates the development of forest plans that establish guidelines for national forests and requires that all subsequent agency actions comply with both the NFMA and the relevant forest plan.

The Administrative Procedure Act governs the review standard, allowing for agency actions to be set aside only if deemed arbitrary or not lawful. Regarding standing, the Supreme Court has indicated that specific harm to recreational or aesthetic interests can justify challenges to agency decisions. The plaintiffs provided substantial evidence demonstrating particularized harm tied to the Forest Plan, contrasting their claims with a previous case where general harms were insufficient for standing.

The NFMA regulations require the management of national forests to maintain viable populations of native vertebrates. The crux of the dispute involves whether the Forest Service unlawfully determined that the Forest Plan would protect the Alexander Archipelago wolf. Some plaintiffs argue that the plan's wolf provision should ensure a sustainable population rather than merely a viable one. However, the Forest Plan’s sustainability provision is discretionary, indicating that while maintaining sustainable wolf populations is desirable, it does not impose a strict obligation. The distinction between viability and sustainability is not sharply defined, complicating the parties' arguments.

The Forest Service's sustainability provision is characterized as an aspiration rather than a legal obligation, allowing for discretion in its application. The agency is not legally compelled to set specific population viability standards for species that are not endangered or threatened, such as the Alexander Archipelago wolf. The National Forest Management Act (NFMA) emphasizes managing competing uses rather than enforcing strict population benchmarks. Although the Forest Plan includes a regulation to maintain viable populations of native vertebrates, the court has clarified that the agency is not required to identify specific mechanisms or metrics for doing so. Instead, it must demonstrate a rational connection between its findings and conclusions regarding species viability, which can be supported by various forms of evidence. The Record of Decision confirms the Forest Plan's intention to sustain viable populations of the Alexander Archipelago wolf, detailing strategies such as habitat protection and regulation of wolf harvests. The Service's analysis indicated that all alternatives considered had a high probability of maintaining wolf viability. While the court acknowledges that the Service's discussion could have been more thorough, it asserts that it will not impose its own policy judgments in place of the agency's decisions.

The Service fulfilled its legal obligations regarding the Forest Plan, and the plaintiffs' challenges, which claim misinterpretation and lack of consideration, do not surpass the court's deferential review standard. The Forest Service's handling of viability is deemed reasonable, as the NFMA allows for flexibility to balance various goals such as conservation, commerce, and recreation. Congress has entrusted these policy judgments to the Forest Service, which is better equipped to make such decisions than the courts. 

In terms of the Big Thorne Project, the Service must ensure consistency with the Forest Plan. Plaintiffs argue that the Service did not comply, but their arguments are based on the incorrect assumption that sustainability, rather than viability, is the benchmark. The Forest Service’s requirement to protect sustainable populations is discretionary; it may prioritize other forest goals if necessary. The Service’s emphasis on expanding timber supply illustrates its commitment to its multiple-use mandate. Furthermore, the proposed land for Big Thorne did not meet the sustainability minimums outlined in the Forest Plan, indicating that these goals were unattainable regardless of logging plans. Ultimately, the Service prioritized economic benefits over wildlife, a judgment the court cannot contest. Although the environmental impact statement mentions sustainability, it does not imply additional obligations beyond maintaining viability, as the Service has consistently referenced viability in its approvals. Consequently, the judgment is affirmed.

Circuit Judge Gould dissents partially regarding the National Forest Management Act (NFMA) while concurring with the court's reasoning on the National Environmental Policy Act (NEPA). He acknowledges that the NFMA requires the U.S. Forest Service to balance environmental and economic considerations in managing forest resources. One key objective of the NFMA is to conserve natural resources while also supporting the timber industry and local jobs. He emphasizes that judicial review under the Administrative Procedure Act is limited to procedural correctness rather than substantive policy evaluations. Gould criticizes the majority's framing of the issue as a simplistic choice between wildlife preservation (specifically wolves) and job creation. He asserts that while the NFMA does not mandate specific population numbers for species, the agency is obligated to maintain viable wildlife populations as outlined in its forest plan, which incorporates relevant regulations aimed at ensuring biodiversity. Therefore, he concludes that the Forest Service's plan fails to meet the NFMA's substantive requirements related to wildlife viability and habitat management.

An agency is required to adhere to its own regulations, as established in case law. The focus of the majority on whether "sustainability" is a discretionary term has led to an inadequate evaluation of the viability of the Alexander Archipelago wolf population post-project. A viable population, defined as having sufficient reproductive individuals to ensure continued existence, differs from a sustainable population, which requires a greater number of wolves to support harvesting. The Forest Service has acknowledged this distinction but failed to demonstrate that the Forest Plan effectively manages old growth habitat to ensure wolf viability across the Tongass National Forest. Although the Forest Service claimed that the Big Thorne Project aligns with the Forest Plan, it does not provide a mechanism for maintaining viable wolf populations, nor does it adequately address the issue at hand. When prioritizing jobs over wolf protection, the agency must still provide a rational connection between facts and decisions, as outlined by the Supreme Court. The agency's assessment of the wolf population in the Tongass National Forest is deemed inadequate. Historical estimates indicated 250–350 wolves in the Alexander Archipelago, but recent data revealed a sharp decline, with only six to seven wolves remaining in the Big Thorne project area by spring 2013. The wolf population's survival is intricately linked to the Sitka black-tailed deer and the old growth forest habitat essential for both species, which logging activities jeopardize.

The Forest Service recognizes that the viability of wolf populations in the Tongass National Forest is critically dependent on the availability of deer, which in turn rely on old growth forest habitats. The agency identifies the maintenance of adequate deer habitat as the primary factor for sustaining wolf viability, yet the current Forest Plan does not adequately support deer habitat capability. The evidence on record fails to substantiate the Forest Service's assertion that viable wolf populations can be maintained through other means, such as habitat reserves and wolf mortality management. The existing data indicates a significant decline in wolf populations over recent decades, coupled with a project that threatens to further diminish deer habitat. The text calls for remanding the case back to the district court for the Forest Service to clarify its reasoning regarding the necessary habitat for the wolves that would be impacted by the proposed project. It urges a reassessment of the conclusions drawn, a thorough evaluation of the viability of the Alexander Archipelago wolf if the project proceeds, and a clearer explanation of the agency's regulatory framework concerning viable populations. This process could enhance public understanding of the balance between wolf survival, deer habitat adequacy, and the impacts on local communities.