Native Ecosystems Council v. United States Forest Service , 428 F.3d 1233 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE ECOSYSTEMS COUNCIL, 
Plaintiff-Appellant,
v.
UNITED STATES FOREST SERVICE, an
agency of the U.S. Department of No. 04-35274
Agriculture; DWIGHT CHAMBERS,
acting supervisor, Helena National  D.C. No.
CV-01-00188-DWM
Forest; KATHLEEN MCALLISTER,
OPINION
Acting Regional Forester for
Region One U.S. Forest Service;
DALE BOSWORTH, Chief of United
States Forest Service,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
February 14, 2005—Seattle, Washington
Filed November 7, 2005
Before: Betty B. Fletcher, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown
15133
15138 NATIVE ECOSYSTEMS v. USFS
COUNSEL
Thomas J. Woodbury, Forest Defense, P.C., Missoula, Mon-
tana, for the plaintiff-appellant.
Elizabeth Ann Peterson, Attorney, Environmental & Natural
Resources Division, United States Department of Justice,
Washington, D.C., for the defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
Native Ecosystems Council (“Native Ecosystems”) appeals
the district court’s grant of summary judgment to the United
States Forest Service (“Forest Service”) in connection with
the Forest Service’s approval of the Jimtown Vegetation Proj-
ect (“Jimtown Project”) in the Helena National Forest. To
lower the potential for a catastrophic fire, the Jimtown Project
involves thinning, prescribed burning, and weed management
on approximately 1,500 acres in an area of the Helena
National Forest prone to high intensity fires.
Native Ecosystems claims the Forest Service violated the
NATIVE ECOSYSTEMS v. USFS 15139
National Environmental Policy Act (“NEPA”),1 42 U.S.C.
§ 4321 et seq., by preparing an Environmental Assessment
(“EA”) instead of an Environmental Impact Statement
(“EIS”) and by considering only two alternatives—the pro-
posed Jimtown Project and a “no action” alternative. In addi-
tion, Native Ecosystems claims the Forest Service violated the
National Forest Management Act (“NFMA”), 16 U.S.C.
§ 1600 et seq., because the project threatens the forest-wide
viability of the northern goshawk.2 We affirm.
BACKGROUND
The Helena National Forest encompasses nearly one mil-
lion acres in western Montana. The Forest Service manages
the Helena National Forest according to the 1986 Helena For-
est Plan. See 16 U.S.C. § 1604(a). Parts of the Helena
1
Environmental law cases inevitably involve an alphabet soup of acro-
nyms. To the extent possible, we have minimized the use of acronyms. As
an aid to the reader, we provide a key to the few acronyms used in this
opinion: 1) NEPA (National Environmental Policy Act); 2) EA (Environ-
mental Assessment); 3) EIS (Environmental Impact Statement); 4) NFMA
(National Forest Management Act); 5) DN/FONSI (Decision Notice/
Finding of No Significant Impact); 6) SIR (Supplemental Information
Report); and 7) APA (Administrative Procedure Act).
2
During oral argument, counsel for Native Ecosystems withdrew its
motion to supplement the record with the Helena National Forest’s June
1994 Five Year Review. As a result, we disregard all of Native Eco-
systems’s arguments in its amended briefs pertaining to the June 1994
Five Year Review. We deem Native Ecosystems’s motion to supplement
the record to be moot.
Native Ecosystems included another document that was not part of the
administrative record in its original Excerpts of Record (“Goshawks in the
North Big Belt Landscape Through 2003”). The Forest Service’s brief
urged us to ignore this goshawk monitoring log. Native Ecosystems
removed the 2003 log from its amended Excerpts of Record and moved
the log to Appendix 1 of its amended opening brief. During oral argument,
counsel for the Forest Service informed the court that it may use the 2003
log as demonstrative evidence of information in the administrative record.
We will ignore the Forest Service’s request that the panel disregard the
2003 log.
15140 NATIVE ECOSYSTEMS v. USFS
National Forest consist of dry ponderosa pine stands, and are
characterized by the Forest Service as “fire dependent eco-
systems.” Over the past ninety years, however, the Forest Ser-
vice suppressed fires in this ecosystem, leading to what it
describes as “dense stocking and intense competition for
moisture and nutrients on these sites.” In the Forest Service’s
view, prevention of low-intensity, periodic fires has led to an
increase in the likelihood of large, stand-replacing fires.
Because forests are more dense, fires spread from small
understory trees to the crowns of the older overstory trees,
rather than burning at a low-intensity on the floor and under-
story of the forest.
Due to nearly a century of fire suppression, the Forest Ser-
vice has witnessed an increase in stand-replacing wildfires in
the Northwest. In December 2000, the Forest Service pub-
lished an EA for the Jimtown Project, a resource management
project in the Helena National Forest designed to reduce the
potential for a large-scale, high intensity, stand-replacing fire
in the Jimtown vicinity. According to the Forest Service, a
fire in the vicinity of the Jimtown Project—the July 2000
Cave Gulch fire which burned more than 27,000 acres of the
Helena National Forest —evidences the area’s potential for
“intense and extensive stand replacing fires.”3 The Jimtown
Project, as originally proposed, consisted of forest thinning
through timber harvest, low-intensity underburning, and weed
management, all of which are intended to provide for a more
sustainable forest.
The proposed Jimtown Project lies just 150 yards north of
a nest area used by a pair of northern goshawks in the sum-
mers of 2000 and 2002. The Forest Service has designated
goshawks as a sensitive species,4 a designation that requires
3
According to the Forest Service, stand-replacing fire consumed more
than sixty percent of the forested habitat within the perimeter of the
30,000 acres affected by the Cave Gulch fire.
4
Although the Forest Service considers the northern goshawk to be a
sensitive species, the Ninth Circuit recently determined that the Fish and
NATIVE ECOSYSTEMS v. USFS 15141
the Forest Service to prepare a Biological Evaluation to con-
sider the potential impact of proposed forest management
actions on the goshawks.
The Forest Service completed a Biological Evaluation for
the Jimtown Project, and concluded that the project “[m]ay
impact individuals or habitat but [is] unlikely to contribute to
a trend towards Federal listing or cause a loss of viability to
the population or species.” In particular, the proposed Jim-
town Project would “open up” 720 acres of forest habitat,
making it less attractive to goshawks for foraging. The Bio-
logical Evaluation also concluded that the primary threat to
goshawks is loss of habitat due to logging and fire. The Bio-
logical Evaluation noted that an “[e]levated risk of stand-
replacement fire would remain” if the Forest Service decided
to forego the Jimtown Project, putting existing goshawk habi-
tat in the area at risk. The Jimtown Project EA incorporated
the Biological Evaluation’s goshawk findings.
The Helena National Forest Plan also designated goshawks
as a management indicator species for old-growth forest in the
Helena National Forest. Forest Service planning regulations
direct the Forest Service to select management indicator spe-
cies for the purpose of monitoring the effects of management
activities in various types of habitat. 36 C.F.R. § 219.19(a)(1),
(6) (2000).5 The Forest Plan requires the maintenance of five
Wildlife Service’s decision not to list the goshawk as either threatened or
endangered was supported by ample evidence, which included a determi-
nation that the goshawk population was not declining in the western states.
Ctr. for Biological Diversity v. Badgley, 335 F.3d 1097, 1100-01 (9th Cir.
2003).
5
New regulations amending the forest planning rule were adopted on
November 9, 2000. See National Forest System Land and Resource Man-
agement Planning, 65 Fed. Reg. 67,514 (Nov. 9, 2000). However, applica-
tion of these regulations was delayed. See National Forest System Land
and Resource Management Planning; Extension of Compliance Deadline
for Site-Specific Projects, 68 Fed. Reg. 53,294 (Sept. 10, 2003). As a
result, the regulations relevant to the Jimtown Project are found in the July
1, 2000 Code of Federal Regulations. 36 C.F.R. 219.19 (2000).
15142 NATIVE ECOSYSTEMS v. USFS
percent of the Helena National Forest as old growth. The Jim-
town Project does not include any old growth, but the EA
emphasized that the Forest Service will retain larger trees and
trees “with old growth character,” and suggested that the Jim-
town Project would contribute to the development of a sus-
tainable old-growth forest in the project area.
After considering comments filed in response to the Jim-
town Project EA, including comments filed by Native Eco-
systems, the Forest Service issued a Decision Notice and
Finding of No Significant Impact (“DN/FONSI”) in May
2001. In the DN/FONSI, the Forest Service partially rested its
decision not to prepare an EIS on the fact that the Forest Ser-
vice prepared an EIS in 1996 for a substantially similar and
larger management project in the Helena National Forest—the
Bull-Sweats Project. The Bull-Sweats Project was located
about four miles north of the Jimtown Project and applied the
same treatment techniques to an area more than two-times the
size of the Jimtown Project area. The Forest Service noted in
the DN/FONSI that environmental monitoring associated with
the Bull-Sweats Project demonstrated that the type of treat-
ments proposed in the Jimtown Project “do not have signifi-
cant effects.”6 In particular, the Forest Service concluded
based on wildlife monitoring that goshawks continued to nest
in the vicinity of the Bull-Sweats Project after the project
treatments.
The DN/FONSI also included an amendment to the Helena
National Forest Plan. The project area, whether the Forest
Service implements the Jimtown Project or opts for the no-
action alternative, is out of compliance with the Helena
National Forest Plan’s hiding cover/road density standard
designed to protect big game.7 The proposed amendment
6
The EA stated that the Bull-Sweats project was “very similar in many
respects to the Jimtown proposed action,” and that the “habitats in the
Bull-Sweats area are nearly identical to those in the Jimtown Project area.”
7
The DN/FONSI described the purpose of the hiding cover/road density
standard:
NATIVE ECOSYSTEMS v. USFS 15143
reduces the hiding cover/road density standard applicable to
the project area by three percent, thus curing non-compliance.
Native Ecosystems filed an administrative appeal challeng-
ing the DN/FONSI, which the Forest Service denied. In Octo-
ber 2001, Native Ecosystems filed suit in federal court in
Montana. In July 2003, while the case was pending in district
court, a wildfire burned portions of the Jimtown Project area.
One-thousand acres burned in the Jimtown fire, and approxi-
mately eighty percent of the trees died or were expected to die
within the year following the fire. The fire burned about 370
acres of the 830 acres proposed for thinning and underburning
in the proposed Jimtown Project. The Forest Service pub-
lished a Supplemental Information Report (“SIR”) that con-
cluded that the Jimtown Fire, and the subsequent reduction of
the thinning and underburning portion of the project to 460
acres, did not change its conclusion that the Jimtown Project
would not have a significant effect on the environment.
The district court granted the Forest Service’s motion for
summary judgment. With respect to the claims pending on
appeal, the district court rejected Native Ecosystems’s claim
that the Forest Service violated NEPA by failing to consider
reasonable alternatives to the Jimtown Project in addition to
the EA’s “no action” alternative and the proposed project alter-
native.8 The district court also determined that the Forest Ser-
The Forest Plan contains an objective for maintaining big game
habitat capability and hunter opportunity so as to provide for a
first week [of the big game rifle season] bull elk harvest that does
not exceed 40 percent of the total bull harvested [of the five week
general season]. To help meet this objective, the Plan adopted a
standard that calculates habitat capability [security] on an index
that combines open road density and hiding cover.
DN/FONSI, Attachment 1 at 21 (alteration in original).
8
The district court noted that the Forest Service actually proposed six
alternatives in the EA—the no-action and proposed project alternatives,
15144 NATIVE ECOSYSTEMS v. USFS
vice did not act arbitrarily and capriciously in concluding that
the Jimtown Project would not impact goshawk viability
under NFMA and in concluding that an EIS was not necessary
to consider the impacts of the project on the goshawk popula-
tion.
ANALYSIS
I. STANDARD OF REVIEW
We review the district court’s grant of summary judgment
de novo. Neighbors of Cuddy Mountain v. U.S. Forest Serv.
(“Neighbors of Cuddy Mountain I”), 137 F.3d 1372, 1376
(9th Cir. 1998). Because NFMA and NEPA do not provide a
private cause of action to enforce their provisions, agency
decisions allegedly violating NFMA and NEPA are reviewed
under the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 551 et seq.; Neighbors of Cuddy Mountain v. Alexander
(“Neighbors of Cuddy Mountain II”), 303 F.3d 1059, 1065,
1067 (9th Cir. 2002) . Under the APA, we may set aside an
agency decision if it is “arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146,
1149 (9th Cir. 1998).
II. NEPA CLAIMS
NEPA requires agencies to prepare an EIS for all “major
Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C). NEPA’s
implementing regulations provide that an agency shall prepare
and four other alternatives that were dismissed from detailed consider-
ation: “Although the two alternatives that the [Helena National Forest]
considered amount to minimal compliance with NEPA, the [Helena
National Forest] remained in compliance with NEPA nonetheless. The
[Helena National Forest] considered six reasonable alternatives, including
a no-action and preferred alternative. . . . This is all NEPA requires.”
NATIVE ECOSYSTEMS v. USFS 15145
an EA to determine whether a proposed federal action will
have a significant impact and to determine whether prepara-
tion of an EIS will be necessary. 40 C.F.R. § 1508.9 (2000);
see also Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1225
(9th Cir. 1988). An EA is a “concise public document” that
“include[s] brief discussions of the need for the proposal, of
alternatives as required by [42 U.S.C. § 4332(2)(E)], of the
environmental impacts of the proposed action and alterna-
tives, and a listing of agencies and persons consulted.” 40
C.F.R. §§ 1508.9 (a), (b) (2000). If the agency concludes in
the EA that there is no significant effect from the proposed
project, the federal agency may issue a finding of no signifi-
cant impact (“FONSI”) in lieu of preparing an EIS. 40 C.F.R.
§ 1508.9(a)(1) (2000); id. § 1508.13 (“ ‘Finding of no signifi-
cant impact’ means a document by a Federal agency briefly
presenting the reasons why an action . . . will not have a sig-
nificant effect on the human environment and for which an
environmental impact statement therefore will not be pre-
pared.”).
NEPA requires us to analyze whether the Forest Service
took a “hard look” at the likely effects of the proposed Jim-
town Project. Blue Mountains Biodiversity Project v. Black-
wood, 161 F.3d 1208, 1216 (9th Cir. 1998). In other words,
the Forest Service must “undertake a thorough environmental
analysis before concluding that no significant environmental
impact exists.” Id. Determining whether the Forest Service
took the requisite “hard look” is judged against the APA’s
arbitrary and capricious standard. Id.
A. PREPARATION OF AN ENVIRONMENTAL ASSESSMENT
RATHER THAN AN ENVIRONMENTAL IMPACT STATEMENT
[1] Native Ecosystems seeks to compel the Forest Service
to prepare an EIS, rather than simply an EA, for the Jimtown
Project. An agency is required to prepare an EIS where there
are substantial questions about whether a project may cause
15146 NATIVE ECOSYSTEMS v. USFS
significant degradation of the human environment. See Idaho
Sporting Congress, 137 F.3d at 1149. As we have explained:
In reviewing an agency’s decision not to prepare an
EIS under NEPA, we employ an arbitrary and capri-
cious standard that requires us to determine whether
the agency has taken a “hard look” at the conse-
quences of its actions, “based [its decision] on a con-
sideration of the relevant factors,” and provided a
“convincing statement of reasons to explain why a
project’s impacts are insignificant.”
Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722,
730 (9th Cir. 2001) (citations omitted) (quoting Metcalf v.
Daley, 214 F.3d 1135, 1141 (9th Cir. 2000) (alteration in orig-
inal)).
[2] In benchmarking whether the Jimtown Project may
have a significant effect on the environment, we turn to the
NEPA regulations that define “significantly.” 40 C.F.R.
§ 1508.27 (2000). Whether a project is significant depends on
both the project’s context and its intensity. Id. A project’s
intensity will be evaluated based on various factors, three of
which are relevant to Native Ecosystems’s appeal: 1) “[t]he
degree to which the effects on the quality of the human envi-
ronment are likely to be highly controversial,” id.
§ 1508.27(b)(4); 2) “[t]he degree to which the possible
effects on the human environment are highly uncertain or
involve unique or unknown risks,” id. § 1508.27(b)(5); and
3) “[w]hether the action is related to other actions with indi-
vidually insignificant but cumulatively significant impacts,”
id. § 1508.27(b)(7).
1. FOREST SERVICE’S PROJECT-SPECIFIC CONCLUSION OF
NO SIGNIFICANT IMPACT
Native Ecosystems seeks to capitalize on the Forest Ser-
vice’s thorough and candid environmental analysis by seizing
NATIVE ECOSYSTEMS v. USFS 15147
on various bits of information and data in the Jimtown Project
NEPA documents (the EA, DN/FONSI, SIR and Biological
Evaluation) to claim that substantial questions exist as to
whether the Jimtown Project may have a significant effect on
the environment. The Biological Evaluation and DN/FONSI
acknowledged that the Jimtown Project may impact individ-
ual goshawks and their habitat, but determined that this
impact was not significant.
The presence of negative effects regarding the impact of
the Jimtown Project on goshawks or even information favor-
able to Native Ecosystems’s position in the project’s NEPA
documents, however, does not mean Native Ecosystems has
demonstrated that the Jimtown Project’s impacts are “highly
controversial” or “highly uncertain.” A project is “highly con-
troversial” if there is a “ ‘substantial dispute [about] the size,
nature, or effect of the major Federal action rather than the
existence of opposition to a use.’ ” Blue Mountains, 161 F.3d
at 1212 (quoting Sierra Club v. U.S. Forest Serv., 843 F.2d
1190, 1193 (9th Cir. 1988)). Further, in explaining the “highly
uncertain” standard, we stated:
An agency must generally prepare an EIS if the envi-
ronmental effects of a proposed agency action are
highly uncertain. Preparation of an EIS is mandated
where uncertainty may be resolved by further collec-
tion of data, or where the collection of such data may
prevent “speculation on potential . . . effects. The
purpose of an EIS is to obviate the need for specula-
tion by insuring that available data are gathered and
analyzed prior to the implementation of the proposed
action.”
National Parks, 241 F.3d at 731-32 (alteration in original)
(citations omitted) (quoting Sierra Club, 843 F.2d at 1195).
[3] The use of the word “highly” in the NEPA regulations
to modify “controversial” and “uncertain” means that infor-
15148 NATIVE ECOSYSTEMS v. USFS
mation merely favorable to Native Ecosystems’s position in
the NEPA documents does not necessarily raise a substantial
question about the significance of the project’s environmental
effects. Rather, as our explanation of the NEPA regulations
makes clear, something more must exist for this court to label
a project highly controversial or highly uncertain. Simply
because a challenger can cherry pick information and data out
of the administrative record to support its position does not
mean that a project is highly controversial or highly uncertain.
[4] Under Native Ecosystems’s theory, any information
included in an EA and its supporting NEPA documents that
admits impacts on wildlife species and their habitat would
trigger the preparation of an EIS. Not only would such a stan-
dard deter candid disclosure of negative information, it does
not follow that the presence of some negative effects neces-
sarily rises to the level of demonstrating a significant effect on
the environment. We decline to interpret NEPA as requiring
the preparation of an EIS any time that a federal agency dis-
closes adverse impacts on wildlife species or their habitat or
acknowledges information favorable to a party that would
prefer a different outcome. NEPA permits a federal agency to
disclose such impacts without automatically triggering the
“substantial questions” threshold. In short, NEPA requires us
to determine whether the Forest Service took a “hard look” at
the environmental consequences of a proposed action.
A “hard look” should, of course, involve the discussion of
adverse impacts. A “hard look” does not dictate a soft touch
or brush-off of negative effects. But such information does
not automatically make the project “highly controversial” or
“highly uncertain” for the purposes of determining whether
substantial questions exist as to the significance of the effect.
We turn then to Native Ecosystems’s various claims that sub-
stantial questions exist as to whether the Jimtown Project may
have a significant effect on the environment.
NATIVE ECOSYSTEMS v. USFS 15149
a. GOSHAWK HABITAT COMPONENTS
Native Ecosystems asserts that as to the goshawks, the proj-
ect is highly controversial and highly uncertain because the
Forest Service failed to abide by a 1992 Forest Service report,
“Management Recommendations for the Northern Goshawk
in the Southwestern United States” (“Reynolds Report”).
According to Native Ecosystems, the EA failed to address the
Reynolds Report goshawk habitat recommendations pertain-
ing to old growth, post-fledgling family areas, and canopy
cover. This argument fails because the Forest Service refer-
enced the Reynolds Report multiple times in the various Jim-
town NEPA documents and specifically addressed each of
these habitat recommendations.
[5] Although the Reynolds Report recommends maintain-
ing a certain percentage of old growth in a goshawk’s home
range, it is significant that no old growth exists in the project
area. As a result, the Jimtown Project is not capable of nega-
tively impacting the old growth component of the Jimtown
goshawk home range. It can hardly be said that a controversy
or uncertainty exists under these circumstances. More point-
edly, Native Ecosystems’s concern that the Forest Service
fails to demonstrate in the EA that it has set aside sufficient
old growth habitat for goshawks ignores the very purpose of
the Jimtown Project—creation of a landscape that permits
large trees to mature into old growth. The DN/FONSI
explained that “[o]ne of the goals of the project is to create a
stand structure that will allow old-growth to develop on the
site over the long term and remain intact in the face of fire,”
an objective that precisely meets Native Ecosystems’s con-
cern.
[6] Both the Biological Evaluation and DN/FONSI cite the
Reynolds Report habitat designations, including the nesting,
post-fledgling, and foraging area acreage recommendations,
and discuss their impact at length before concluding that the
Jimtown Project will not deprive the nearby goshawk home
15150 NATIVE ECOSYSTEMS v. USFS
ranges of these necessary components. Native Ecosystems
complains that the Forest Service failed to specifically delin-
eate a post-fledgling family area to be preserved around the
2000 and 2002 goshawk nest stand 150 yards from the Jim-
town Project area. The Biological Evaluation and DN/FONSI
establish that the Forest Service took a hard look at the avail-
able post-fledgling family area habitat in the vicinity of the
Jimtown Project. Indeed, the Forest Service’s point-by-point
response to Native Ecosystems’s post-SIR comments under-
scores our conclusion that the Forest Service took a hard look
and fairly considered the Reynolds Report habitat recommen-
dations:
[T]he area proposed for thinning is not good [post-
fledgling family area] habitat . . . .
The key unburned habitat needed to sustain breeding
and provide core [post-fledgling family areas] for
young goshawks is in the dense, multi-layered
mature forest in the nest stand itself and in other
such stands spread across north and north east slopes
south and west of the project area. These stands are
outside the proposed thinning area. As a result, the
best habitat contributing to local [post-fledgling fam-
ily areas] will be retained, and goshawks will be able
to continue fledging young in the 2000/2002 nest
stand.
[7] Finally, Native Ecosystems urges that the Forest Ser-
vice’s failure to disclose the canopy closure in the area before
and after the project makes the impact of the project on gos-
hawk habitat “highly uncertain.” Although the NEPA docu-
ments did not specify percentages of canopy cover in the
same manner as delineated in the Reynolds Report, the Forest
Service did not ignore the impact of changes to canopy clo-
sure in the project area. Nothing in the law or the science
mandates wholesale adoption of the details of the Reynolds
Report. Ultimately, while the Forest Service concluded that
NATIVE ECOSYSTEMS v. USFS 15151
the project would reduce suitable habitat by about 720 acres,
due in part to reduced canopy cover as a result of the thinning
component of the project, the project would leave intact suffi-
cient acreage to provide for resident goshawks—about 6,780
acres of mostly forested habitat.
[8] The Forest Service’s goshawk habitat analysis and con-
sideration of the Reynolds Report demonstrate the project is
neither highly controversial nor highly uncertain. Native Eco-
systems’s effort to identify conflicts between the Jimtown
Project and the Reynolds Report does not raise substantial
questions that would trigger the need for an EIS. In fact, as
the Reynolds Report explained, current forest conditions put
the existing goshawk habitat in jeopardy and thus the pro-
posed thinning and burning would actually be necessary to
sustain goshawks and their prey. The push-pull situation of
the goshawk is a reality not a fiction. While the Reynolds
Report outlines ideal goshawk habitat conditions, including
optimum old-growth, post-fledgling, and canopy cover pre-
scriptions, the Report also recognizes that stand-replacing
fires wipe out these critical habitat components in their
entirety. The proposed Jimtown Project seeks to balance the
sometimes conflicting goshawk habitat needs as outlined in
the Reynolds Report, and thereby makes a reasoned and rea-
sonable choice between the competing goals of preserving the
goshawk’s current habitat and promoting a sustainable, long-
term habitat for the goshawk.
b. IMPACT ON GOSHAWK PREY
Native Ecosystems also contends substantial questions are
raised by the uncertain effects of the Jimtown Project on red
squirrels, which serve as prey for the goshawk. In support of
this challenge, Native Ecosystems seizes on the conclusion in
the EA that certain species, including the red squirrel, would
decline in the project area as a result of the changed habitat.
15152 NATIVE ECOSYSTEMS v. USFS
Native Ecosystems reads the EA as saying that red squirrel
populations would suffer a “sharp decline” as a result of the
project. The EA’s statement is much less dramatic in context:
The abundance of several species would decline as
a result of proposed changes in habitat structure, but
it is unlikely that any species would disappear. Spe-
cies that would suffer the sharpest population
declines are those tied to the denser stands of mature
trees and to the thickets of seedling and sapling coni-
fers. These animals would shift primarily to unthin-
ned reserves in and adjacent to the project area.
Species likely to decline are the ruby-crowned king-
let, yellow-rumped warbler, white-breasted nuthatch,
red squirrel, porcupine, and brown creeper.
[9] The identification of potential declines does not permit
us to leap to the conclusion that the EA raises substantial
questions on project impact, especially where the EA also
concluded that the thinned stand would continue to provide
prey for goshawks:
Overstory thinning would reduce the density of red
squirrels—a primary prey item—and make the proj-
ect area less inviting to foraging goshawks. The
thinned stand would continue to support a variety of
suitable prey species (hairy woodpeckers, mourning
doves, robins, Townsend’s solitaires) and local gos-
hawks might continue to exploit it.
Where other prey species will be available, Native Eco-
systems’s focus on the red squirrel does not demonstrate that
the project’s effects are highly uncertain.
c. RELIANCE ON THE BULL-SWEATS EIS
Native Ecosystems challenges the Forest Service’s reliance
on the Bull-Sweats Project EIS as a demonstration that the
NATIVE ECOSYSTEMS v. USFS 15153
Jimtown Project will not have a significant effect on the envi-
ronment. The 1996 Bull-Sweats Project was simply a larger
version of the same type of fuels reduction project proposed
for the Jimtown area. The Forest Service prepared an EIS for
Bull-Sweats, which was incorporated by reference into the
Jimtown documentation. In concluding that an EIS was not
necessary for the Jimtown Project, the Forest Service
observed that the proposed management practices were not
unique and that monitoring of other projects, particularly the
nearby Bull-Sweats Project, documented that such projects
did not have significant effects.
Native Ecosystems points to a Forest Service monitoring
log to conclude, based on a lack of goshawk sightings in the
Bull-Sweats Project area after 1998, that the project somehow
eliminated goshawks resident in the project area prior to the
Bull-Sweats thinning. The Forest Service offers a very differ-
ent interpretation of the log, noting that field monitoring
showed that goshawks in the Bull-Sweats area change nest
sites each year regardless of logging activity and that gos-
hawks are not averse to occupying nest sites close to logged
areas. Further, according to the Forest Service, the monitoring
data “demonstrates that thinning can be done in a way that
will not eliminate local goshawk territories, but that large
stand replacement fires will eliminate them.” (citations to
administrative record omitted). We defer to the Forest Ser-
vice’s explanation of the log.
Native Ecosystems tries to create a facade of high contro-
versy by citing to comments submitted by Dr. Sara Jane John-
son, a wildlife biologist and representative of Native
Ecosystems. Dr. Johnson concluded the monitoring log dem-
onstrated that the Bull-Sweats Project eliminated a pair of
goshawks. “When specialists express conflicting views, an
agency must have discretion to rely on the reasonable opin-
ions of its own qualified experts even if, as an original matter,
a court might find contrary views more persuasive.” Marsh v.
Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). The
15154 NATIVE ECOSYSTEMS v. USFS
Forest Service’s conclusion that the Bull-Sweats Project did
not have a significant effect on goshawks and their habitat
(and its reliance on this conclusion in the Jimtown EA and
DN/FONSI) was not arbitrary and capricious.
In summary, the Forest Service’s consideration and appli-
cation of the Reynolds Report goshawk habitat recommenda-
tions in its NEPA documentation defeats Native Ecosystems’s
attempt to characterize the Jimtown Project’s impacts as
highly uncertain or controversial. Dr. Johnson’s interpretation
of the Reynolds Report and goshawk monitoring data simply
does not rise to the high level of controversy that was present
in other Ninth Circuit cases where we faulted the agency
review. See Sierra Club, 843 F.2d at 1193-94 (noting testi-
mony from numerous experts that demonstrate the inadequa-
cies of an EA); Blue Mountains, 161 F.3d at 1213 (explaining
that a Forest Service EA failed to consider a report on post-
fire logging despite the specific directions of the regional for-
est supervisor to do so); National Parks, 241 F.3d at 736 (not-
ing that eight-five percent of 450 comments received during
administrative review opposed the EA’s preferred alterna-
tive). Nor will we “take sides in a battle of the experts,” id.
at 736 n.14, as the Forest Service considered and applied the
Reynolds Report and provided a thorough and reasoned
explanation for its rejection of Dr. Johnson’s position.
2. CUMULATIVE EFFECTS ANALYSIS
[10] Although we conclude that the project-specific chal-
lenges to the Jimtown Project EA withstand scrutiny, our
analysis does not end there. In determining whether an action
is significant for the purposes of preparing an EIS, an agency
must consider “whether the action is related to other actions
with individually insignificant but cumulatively significant
impacts.” 40 C.F.R. § 1508.27(b)(7) (2000).9 The regulations
further provide:
9
“Cumulative impact” is defined as “the impact on the environment
which results from the incremental impact of the action when added to
NATIVE ECOSYSTEMS v. USFS 15155
Significance exists if it is reasonable to anticipate a
cumulatively significant impact on the environment.
Significance cannot be avoided by terming an action
temporary or by breaking it down into small compo-
nent parts.
Id. In accord with the regulatory directives, the Forest Service
offered extensive analysis of the cumulative impacts of the
Jimtown Project. A review of the DN/FONSI reveals an artic-
ulate and careful cumulative effects analysis that took into
consideration the impacts of the Cave Gulch fire, the 1986
North Hills fire, two minor thinning projects, and the Bull-
Sweats Project. The DN/FONSI recognized that within the
cumulative effects area—defined as 29,900 acres—three gos-
hawk home ranges exist, and within each home range, the
Forest Service identified the necessary components of gos-
hawk habitat. The DN/FONSI then detailed, from a quantita-
tive perspective, the impact of the project on nest sites and
acreage suitable as goshawk habitat. The Forest Service con-
cluded the Jimtown Project’s impact on the immediate gos-
hawk home range will not cause it to fall below the Reynolds
Report acreage recommendations for nesting, post-fledgling
family, and foraging areas, let alone result in a cumulatively
significant effect when considered in light of other recent
projects and fires in this area of the Helena National Forest.
Because significant evidence in the record supports the Forest
Service’s conclusion that the goshawk’s home range will
remain viable under the Jimtown Project, we conclude that the
Forest Service easily satisfies the standard we articulated in
Neighbors of Cuddy Mountain I: “To ‘consider’ cumulative
effects, some quantified or detailed information is required.
other past, present, and reasonably foreseeable future actions regardless of
what agency (Federal or non-Federal) or person undertakes such other
actions. Cumulative impacts can result from individually minor but collec-
tively significant actions taking place over a period of time.” 40 C.F.R.
§ 1508.7 (2000).
15156 NATIVE ECOSYSTEMS v. USFS
Without such information, neither the courts nor the public, in
reviewing the Forest Service’s decisions, can be assured that
the Forest Service provided the hard look that it is required to
provide.” 137 F.3d at 1379.10
B. CONSIDERATION OF RANGE OF ALTERNATIVES
[11] NEPA requires federal agencies to “study, develop,
and describe appropriate alternatives to recommended courses
of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources.” 42 U.S.C.
§ 4332(2)(E). The alternatives provision of NEPA applies
whether an agency is preparing an EIS or an EA, and NEPA’s
implementing regulations require an EA to include “brief dis-
cussions of the need for the proposal, of alternatives as
required by [42 U.S.C. § 4332(2)(E)], of the environmental
impacts of the proposed action and alternatives, and a listing
of agencies and persons consulted.” 40 C.F.R. § 1508.9(b)
(2000); see also Bob Marshall Alliance, 852 F.2d at 1229
(“[A]ny proposed federal action involving unresolved con-
flicts as to the proper use of resources triggers NEPA’s con-
sideration of alternatives requirement, whether or not an EIS
is also required.”). In short, NEPA “requires that alternatives
. . . be given full and meaningful consideration.” Bob Mar-
shall Alliance, 852 F.2d at 1229.
Native Ecosystems discredits the Jimtown EA as insuffi-
cient because it did not consider a reasonable range of alterna-
tives to the proposed project. Native Ecosystems’s argument
is confusing. In one breath, Native Ecosystems faults the For-
10
Unlike Neighbors of Cuddy Mountain I, where the “Forest Service . . .
failed to even mention the number or percentage of trees meeting the defi-
nition of old growth that would be destroyed,” 137 F.3d at 1379, here the
Forest Service identified the number of goshawk home ranges impacted by
prior fires and actions in the Jimtown Project cumulative effects area and
specifically considered the impact the Jimtown Project and other actions
had on goshawk home ranges and the critical components of each home
range.
NATIVE ECOSYSTEMS v. USFS 15157
est Service for failing to consider a “range” of alternatives—
suggesting that its concern is with the number of alternatives
considered by the Forest Service. In the next breath, Native
Ecosystems faults the Forest Service for failing to consider an
alternative to the Jimtown Project that would “comply” with
the Helena National Forest’s Forest Plan—suggesting that its
concern is with the substance of the alternatives considered by
the Forest Service.
If Native Ecosystems is simply concerned with the number
of alternatives considered by the Forest Service in the Jim-
town Project EA, Native Ecosystems’s claim fails. The Forest
Service’s Jimtown Project EA considered a total of six alter-
natives, four of which were raised but rejected without
detailed consideration. Of the six proposed alternatives, two
alternatives—a “no action” alternative and the “preferred
alternative” (the proposed Jimtown Project)—were the focus
of the EA and given detailed consideration by the Forest Ser-
vice. Native Ecosystems ignores the four alternatives dis-
missed by the agency, and contends that the EA’s
development of only two alternatives failed to meet NEPA’s
requirements.
NEPA and its implementing regulations only require the
following with respect to the number of alternatives that must
be considered by an agency: 1) the agency must consider “ap-
propriate” alternatives to recommended courses of action, 42
U.S.C. § 4332(2)(E); 2) an EIS must “[r]igorously explore
and objectively evaluate all reasonable alternatives” and must
explain why it has eliminated an alternative from detailed
study, 40 C.F.R. § 1502.14(a) (2000) (emphasis added); 3) the
agency must consider a “no action” alternative, id.
§ 1502.14(d); and 4) the agency must designate a “preferred”
alternative, id. § 1502.14(e). The statutory and regulatory
requirements that an agency must consider “appropriate” and
“reasonable” alternatives does not dictate the minimum num-
ber of alternatives that an agency must consider.
15158 NATIVE ECOSYSTEMS v. USFS
[12] To the extent that Native Ecosystems is complaining
that having only two final alternatives—no action and a pre-
ferred alternative—violates the regulatory scheme, a plain
reading of the regulations dooms that argument. So long as
“all reasonable alternatives” have been considered and an
appropriate explanation is provided as to why an alternative
was eliminated, the regulatory requirement is satisfied. In
short, the regulation does not impose a numerical floor on
alternatives to be considered.11
Nor have we previously imposed a numerical requirement
as the bellwether of reasonableness. Rather, the substance of
the alternatives has been a focus, not the sheer number of
alternatives considered. See Muckleshoot Indian Tribe v. U.S.
Forest Serv., 177 F.3d 800, 813-14 (9th Cir. 1999) (noting
that the Forest Service failed to consider an adequate range of
alternatives because its EIS included a “no action” alternative
and two nearly identical action alternatives, none of which
were “more consistent with [the agency’s] basic policy objec-
tives than the alternatives that were the subject of final con-
sideration.”); see also W. Land Exch. Project v. Dombeck, 47
F. Supp. 2d 1196, 1211-12 (D. Or. 1999) (concluding that the
Forest Service met its statutory obligations where it had con-
sidered and dismissed six alternative plans that did not meet
the purpose and needs of the proposed project).
[13] We turn now to the substance of the alternatives con-
sidered by the Forest Service, and the potential alternatives
11
Curry v. U.S. Forest Serv., 988 F. Supp. 541 (W.D. Pa. 1997), is not
to the contrary. The court in Curry was not focused solely on the fact that
the Forest Service offered only two alternatives in its EA; rather, the court
first resolved that the project warranted an EIS instead of an EA because
of a potential significant impact on the environment. The court went on
to voice its concern that the Forest Service failed to consider a “broad
range of reasonable alternatives” as required by NEPA. Id. at 551-54.
Curry simply does not support Native Ecosystems’s argument that an EA
violates NEPA simply because it has only a “no action” alternative and a
“preferred” alternative.
NATIVE ECOSYSTEMS v. USFS 15159
raised by Native Ecosystems, to determine whether the Forest
Service considered “appropriate” and “reasonable” alterna-
tives under NEPA. In undertaking this analysis, we join our
sister circuits in holding that an agency’s obligation to con-
sider alternatives under an EA is a lesser one than under an
EIS. In rejecting any alternatives, the agency must only
include “brief discussions of the need for the proposal, of
alternatives required by [42 U.S.C. § 4332(2)(E)], of the envi-
ronmental impacts of the proposed action and alternatives,
and a listing of agencies and persons consulted.” 40 C.F.R.
§ 1508.9(b) (2000). See Mt. Lookout—Mt. Nebo Prop. Prot.
Ass’n v. Fed. Energy Regulatory Comm’n, 143 F.3d 165, 172
(4th Cir. 1998) (“The rigor with which an agency must con-
sider alternatives is greater when the agency determines that
an EIS is required for a particular federal action.”); Sierra
Club v. Espy, 38 F.3d 792, 803 (5th Cir. 1994) (same);
Friends of the Ompompanoosuc v. Fed. Energy Regulatory
Comm’n, 968 F.2d 1549, 1558 (2d Cir. 1992) (same).
In judging whether the Forest Service considered appropri-
ate and reasonable alternatives, we focus first on the stated
purpose for the Jimtown Project. See Idaho Conservation
League v. Mumma, 956 F.2d 1508, 1520 (9th Cir. 1992)
(benchmarking whether an alternative is reasonable, and
should have been considered by the Forest Service in its EA
or EIS, depends on the “ ‘nature and scope of the proposed
action’ ” (quoting California v. Block, 690 F.2d 753, 761 (9th
Cir. 1982))). The “Purpose and Need” section of the EA
states:
The purpose is to maintain healthy, sustainable eco-
systems that 1) reduce fire risk, 2) control noxious
weeds and provide native habitats similar to the hab-
itat that existed when fire was a natural component
of the ecosystem, and 3) provide wood for people’s
use.
Alternatives that do not advance the purpose of the Jimtown
Project will not be considered reasonable or appropriate. See
15160 NATIVE ECOSYSTEMS v. USFS
Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853,
868 (9th Cir. 2004) (“The ‘range of alternatives that must be
considered in the EIS need not extend beyond those reason-
ably related to the purposes of the project.’ ” (quoting Laguna
Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 524 (9th
Cir. 1994))).
According to Native Ecosystems, the Forest Service did not
consider a “reasonable” range of alternatives because it failed
to consider an alternative that would fully comply with the
current Helena National Forest Plan. Native Ecosystems first
claims the Forest Service should have considered an alterna-
tive that did not involve commercial harvest as part of the
thinning portion of the Jimtown Project.12 Native Ecosystems
goes on to argue the Forest Service should have considered in
detail an alternative that did not require amendment of the
Helena National Forest Plan’s hiding cover/road density stan-
dard, but instead, included treatment measures designed to
move the project area into compliance with the Forest Plan’s
hiding cover/road density standard.
The EA’s preferred alternative proposes to offer the com-
mercial sale of any marketable timber from the thinning com-
ponent of the Jimtown Project. The project area is designated
as a livestock grazing area under the Helena National Forest
Plan, which provides: “Timber harvest may be used as a tool
12
One of the four alternatives raised but rejected by the Forest Service
would have removed the commercial sale component from the proposed
Jimtown Project. The other three alternatives considered but dismissed
from detailed study were (1) an alternative that would not involve building
a temporary road, (2) an alternative that would use another method of
weed control, and (3) an alternative that would expand the proposed proj-
ect. The Forest Service dismissed the no-road alternative because it con-
cluded either the no-action alternative captured this goal or the Forest
Service could alter the preferred alternative to achieve the same purpose.
The Forest Service determined that the weed control and project expansion
alternatives also were unreasonable. Native Ecosystems does not chal-
lenge the dismissal of these three alternatives from detailed consideration.
NATIVE ECOSYSTEMS v. USFS 15161
to improve forage production [in designated livestock grazing
areas]. However, forested land is classified as unsuitable for
timber management.” Native Ecosystems’s insistence that this
designation prevents a commercial timber harvest in the Jim-
town Project area is a misinterpretation of the plan, which
does not prohibit commercial timber harvest on the project
lands—only “timber management.” “Timber management” is
defined as “the purposeful growing, tending, harvesting, and
regeneration of regulated crops of trees to be cut into logs,
bolts or other round sections for industrial or consumer use.”
[14] The Forest Service will not engage in “timber manage-
ment” in the Jimtown Project area if it adopts the EA’s pre-
ferred alternative. Rather, the Forest Service would be
thinning to reduce fire risk; a service contractor will be per-
mitted to sell any commercially viable small trees taken dur-
ing the thinning. These actions do not amount to timber
management in violation of the Helena National Forest Plan.
The Forest Service persuasively points out that whether or not
the preferred alternative involved a commercial sale compo-
nent, the environmental impacts of the project are the same:
a commercial component does not affect the project’s design
because the project focuses on fuels reduction and not on profit-
ability.13 The availability of commercial timber is simply a
13
The party proposing the no commercial harvest alternative during the
NEPA public comment period was concerned that a commercial sale
would lead to the harvest of large trees. The Forest Service dismissed
these concerns in the EA in its explanation for why it was not giving the
proposed alternative detailed consideration:
The proposal is commercial in the sense that a service contractor
would have the right to remove smaller diameter trees with com-
mercial value. The contractor would also be required to remove
many trees without commercial value. The purpose and need for
the project does not specify the need to produce a commercial
timber sale. It is hoped that there will be sufficient value in the
surplus material to help accomplish the thinning, prescribed fire,
and weed treatment proposed. The guidelines for designating
leave trees and trees for removal are specified in the “Stand Den-
sity Harvest Prescription” which is in the project file.
15162 NATIVE ECOSYSTEMS v. USFS
collateral benefit to the government and does not change the
purpose or scope of the project. Native Ecosystems has not
persuaded us that the Forest Service ignored a reasonable
alternative.
Native Ecosystems also asks us to invalidate the EA
because the Forest Service did not consider an alternative that
would not require an amendment of the Helena National For-
est Plan’s hiding cover/road density standard.14 This challenge
does not make sense in the context of the Jimtown Project.
The project was conceived in an effort to address the
increased vegetation resulting from long-term fire suppres-
sion. The objective is to remove excess fuels and reduce the
potential for large-scale fires that could ultimately wipe out
any hiding cover. Increasing short-term hiding cover condi-
tions will lead to an inevitable stand-replacing wildfire, a con-
dition that might obliterate all hiding cover for the long term.
As the Forest Service noted: “While continued exclusion of
fire can allow for development of dense sapling understories
and thereby provide hiding cover for a period, these condi-
tions are clearly not sustainable over time.” Consequently, the
Forest Service determined that sustaining some cover over
time is preferable to losing a large percentage of it in a single
event. See Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d
1140, 1148 (9th Cir. 2000) (observing that “it makes no
sense” for the Postal Service to consider alternatives that do
not promote the goal of improving efficiency when “the
[agency’s] purpose is to accomplish one thing.”) (quoting City
of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986) (per
curiam)). When the purpose of the Jimtown Project is to
reduce fire risk, the Forest Service need not consider alterna-
tives that would increase fire risk.
14
Native Ecosystems’s suggestion also fails to recognize that the Jim-
town Project area is already out of compliance with the hiding cover/road
density requirements for big game under the Helena National Forest Plan.
According to the DN/FONSI: “The wildlife analysis for this project con-
cluded that even the ‘no action’ alternative fails to comply with the stan-
dard.”
NATIVE ECOSYSTEMS v. USFS 15163
Native Ecosystems’s proposed alternative also would have
been redundant. The DN/FONSI makes clear that if Native
Ecosystems wanted an alternative that did not involve amend-
ing the Helena National Forest Plan and moved the project
area closer to compliance with the current hiding cover/road
density standard, it got one—the “no action” alternative.
NEPA does not require federal agencies to consider alterna-
tives that are substantially similar to other alternatives. See
Westlands Water Dist., 376 F.3d at 868 (“Nor is an agency
required to undertake a ‘separate analysis of alternatives
which are not significantly distinguishable from alternatives
actually considered, or which have substantially similar con-
sequences.’ ” (quoting Headwaters, Inc. v. Bureau of Land
Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990))).
We are not persuaded by Native Ecosystems’s reliance
upon Muckleshoot Indian Tribe to support its demand for a
“no forest plan amendment” alternative. In Muckleshoot, we
faulted the Forest Service for failing to consider “an alterna-
tive that was more consistent with its basic policy objectives
than the alternatives that were the subject of final consider-
ation.” 177 F.3d at 813.
[15] In light of Native Ecosystems’s failure to raise sub-
stantial questions that demonstrate the Jimtown Project may
have a significant effect on the environment, the Forest Ser-
vice’s consideration of a “no action” alternative and its “pre-
ferred” alternative met its statutory and regulatory duty to
prepare appropriate alternatives for the Jimtown Project EA.
III. NATIONAL FOREST MANAGEMENT ACT CLAIMS
NFMA creates a two-step process for the management of
our national forests. Neighbors of Cuddy Mountain I, 137
F.3d at 1376. The Forest Service must first develop a Land
Resource Management Plan (“Forest Plan”) for each unit of
the National Forest System. 16 U.S.C. § 1604(f)(1). For indi-
vidual management actions within a forest unit, all relevant
15164 NATIVE ECOSYSTEMS v. USFS
plans, contracts, or permits must be consistent with each for-
est’s overall management plan. Id. § 1604(I).
[16] In addition, NFMA imposes substantive requirements
on the Forest Service’s management of the national forests.
Neighbors of Cuddy Mountain I, 137 F.3d at 1376. NFMA
requires that forest plans “provide for diversity of plant and
animal communities based on the suitability and capability of
the specific land area.” 16 U.S.C. § 1604(g)(3)(B). The Forest
Service’s NFMA regulations further require:
Fish and wildlife habitat shall be managed to main-
tain viable populations of existing native and desired
non-native vertebrate species in the planning area.
For planning purposes, a viable population shall be
regarded as one which has the estimated numbers
and distribution of reproductive individuals to insure
its continued existence is well distributed in the plan-
ning area. In order to insure that viable populations
will be maintained, habitat must be provided to sup-
port, at least, a minimum number of reproductive
individuals and that habitat must be well distributed
so that those individuals can interact with others in
the planning area.
36 C.F.R. § 219.19 (2000). The duty to ensure viable popula-
tions “applies with special force” to sensitive species. Inland
Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754,
759 (9th Cir. 1996).
Native Ecosystems claims the Forest Service failed to com-
ply with the substantive wildlife requirements of the NFMA.
Specifically, Native Ecosystems claims the Forest Service
failed to ensure goshawk viability, in violation of the NFMA,
by failing to discuss forest-wide goshawk population trends
and the impacts the Jimtown Project would have on goshawk
viability and population trends.15 The 1986 Helena National
15
We do not address Native Ecosystems’s NFMA arguments based on
the Helena National Forest’s 1994 Forest Plan Five Year Review because
NATIVE ECOSYSTEMS v. USFS 15165
Forest Plan designated goshawks as a management indicator
species,16 and the Forest Service considers the goshawk to be
a “sensitive species.” As a result, Native Ecosystems contends
the Forest Service had a substantive duty under NFMA to
ensure forest-wide goshawk viability before approving a proj-
ect that would impact goshawk habitat.
Although Native Ecosystems admits that the Forest Service
has monitored goshawks in the Helena National Forest for
more than eight years, Native Ecosystems claims this moni-
toring fails to establish the existence of a viable population of
goshawks. The record contains a 2002 Goshawk Nest Moni-
toring Report that chronicles goshawk sightings and goshawk
nests from 1995 through 2002 in the Helena National Forest.
The record also contains a 2003 chart listing goshawk sight-
ings and nests from 1992 through 2003. On the basis of these
reports, Native Ecosystems claims that there is not a viable
population of goshawks in the Helena National Forest, or at
least that goshawk viability cannot be presumed based on
these charts. According to Native Ecosystems, the Forest Ser-
vice must positively demonstrate forest-wide goshawk viabil-
ity before proceeding with the Jimtown Project. See
Neighbors of Cuddy Mountain II, 303 F.3d at 1069
(“[C]ompliance with NFMA’s forest-wide species viability
requirements is relevant to the lawfulness of any individual
timber sale.”).
In contrast, the Forest Service views its responsibility under
NFMA to ensure the viability of animal species as a duty to
the Five Year Review was not part of the administrative record. See supra
note 2.
16
The NFMA regulations require the Forest Service to identify manage-
ment indicator species that will be monitored because the species’ “popu-
lation changes are believed to indicate the effects of management
activities.” 36 C.F.R. § 219.19(a)(1) (2000). “Population trends of the
management indicator species will be monitored and relationships to habi-
tat changes determined.” Id. § 219.19(a)(6).
15166 NATIVE ECOSYSTEMS v. USFS
ensure adequate habitat for wildlife species, not an obligation
to ensure the actual viability of a species in every locale. See
36 C.F.R. § 219.19 (2000) (“[H]abitat shall be managed to
maintain viable populations . . . .”); see also id. § 219.19(a)(6)
(“Population trends of the management indicator species will
be monitored and relationships to habitat changes deter-
mined.”). Because the Forest Service concluded that the Jim-
town Project will not have a significant effect on goshawk
habitat, the Forest Service concludes that the project meets
NFMA’s species viability requirement by preserving goshawk
habitat. In addition, the Forest Service contends Native Eco-
systems misinterpreted the two goshawk observation charts
and argues that the charts demonstrate a nearly fifty percent
occupancy rate of potential goshawk home ranges.
Our case law permits the Forest Service to meet the wildlife
species viability requirements by preserving habitat, but only
where both the Forest Service’s knowledge of what quality
and quantity of habitat is necessary to support the species and
the Forest Service’s method for measuring the existing
amount of that habitat are reasonably reliable and accurate.
Compare Idaho Sporting Cong. v. Thomas, 137 F.3d 1146,
1154 (9th Cir. 1998) (holding that under the circumstances of
that case the Forest Service could use habitat as a proxy for
population if the Forest Service performed further analysis
and showed that “no appreciable habitat disturbance” would
result from the planned activity) and Idaho Sporting Cong. v.
Rittenhouse, 305 F.3d 957, 967-68, 972-73 (9th Cir. 2002)
(holding that use of habitat as a proxy for population monitor-
ing of the management indicator species was arbitrary and
capricious where record indicated that the Forest Service’s
habitat standard and measurements were erroneous).
We recently explained the proxy-on-proxy approach to
ensuring species viability under the NFMA:
We have, in appropriate cases, allowed the Forest
Service to avoid studying the population trends of
NATIVE ECOSYSTEMS v. USFS 15167
the Indicator Species by using Indicator Species hab-
itat as a proxy for Indicator Species population
trends in a so-called “proxy on proxy” approach.
Crucial to this approach, however, is that the meth-
odology for identifying the habitat proxy be sound.
If the habitat trend data is flawed, the proxy on
proxy result, here population trends, will be equally
flawed.
Lands Council v. Powell, 395 F.3d 1019, 1036 (9th Cir. 2005)
(footnotes and internal citations omitted).
[17] The record does not demonstrate any flaws in the
methodology used by the Forest Service to identify goshawk
habitat. Both the Forest Service and Native Ecosystems
endorse the habitat recommendations in the Reynolds Report
as the best available science on goshawk habitat. The Forest
Service’s habitat analysis revealed that even if the Jimtown
Project thinning area is not used by the nearby goshawk pair,
there will be ample habitat available to them. A goshawk
home range should contain approximately 5,400 acres of for-
aging habitat. The Jimtown Project will diminish the goshawk
foraging habitat in the goshawk home range by approximately
480 acres (720 acres prior to the Jimtown Fire), leaving at
least 6,780 acres of suitable foraging habitat in the relevant
goshawk home range. The remaining foraging habitat exceeds
the Reynolds Report recommendation of 5,400 acres of forag-
ing habitat per goshawk home range. Given that the Jimtown
Project area does not contain old growth forest and is
designed to create an ecosystem that can support old-growth
in the long-term, and given that the NEPA documents incor-
porate the Reynolds Report habitat recommendations, we con-
clude that the Forest Service satisfied NFMA’s species
viability requirements by demonstrating that adequate gos-
hawk habitat is preserved.
While the Forest Service experts predict that goshawks will
use the thinned area of the Jimtown Project for foraging, there
15168 NATIVE ECOSYSTEMS v. USFS
will still be sufficient foraging habitat even if the goshawks
avoid the project area after thinning. The long-term benefit of
preventing stand-replacing fires, which completely destroy
goshawk habitat, is preferable over any short-term benefit the
goshawks might receive from retaining the dense forest struc-
ture in the project area. The Forest Service considered the rel-
evant factors and there has not been a clear error of judgment.
[18] Consequently, we uphold the agency action under the
APA’s arbitrary and capricious standard.
AFFIRMED.