Native Ecosystems Council v. Leslie Weldon , 697 F.3d 1043 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE ECOSYSTEMS COUNCIL, 
Plaintiff-Appellant,
v. No. 11-35659
LESLIE WELDON, in her official D.C. No.
capacity as Regional Forester of  9:10-cv-00057-
Region One of the U.S. Forest DWM
Service; UNITED STATES FOREST
OPINION
SERVICE, an agency of the U.S.
Department of Agriculture,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
July 9, 2012—Seattle, Washington
Filed September 21, 2012
Before: Stephen Reinhardt, Andrew J. Kleinfeld and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
11711
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11715
COUNSEL
John Philip Meyer (argued), Cottonwood Environmental Law
Center, Bozeman, Montana, for the plaintiffs-appellants.
Mark Steger Smith (argued), Assistant United States Attor-
ney, Michael W. Cotter, United States Attorney, Billings,
Montana, for the defendants-appellees.
OPINION
M. SMITH, Circuit Judge:
This case arises out of Native Ecosystems Council’s
(Native Ecosystems Council) appeal of the district court’s
grant of summary judgment in favor of the United States For-
est Service (Forest Service) in an action regarding the Ettien
Ridge Fuels Reduction Project (the Project) in the Lewis and
Clark National Forest, located in Montana. The Project was
designed to reduce the spread and intensity of potential future
wildfires in the Judith Basin County Wildland-Urban Inter-
face by removing naturally occurring wildfire fuels. Native
Ecosystems Council alleges that the Forest Service violated
the National Environmental Policy Act, 42 U.S.C. §§ 4321,
4331 (NEPA), and the National Forest Management Act, 16
U.S.C. §§ 1600-14 (NFMA), when it issued a Finding of No
Significant Impact (FONSI) and Decision Notice approving
the Project.
11716 NATIVE ECOSYSTEMS COUNCIL v. WELDON
We hold that the Forest Service took the requisite “hard
look” at the environmental impact of the Project on the elk
hiding cover, and goshawk populations, in the manner
required by NEPA. N. Plains Res. Council, Inc. v. Surface
Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011) (quoting
Bering Strait Citizens for Responsible Dev. v. U.S. Army
Corps of Eng’rs, 524 F.3d 938, 947 (9th Cir. 2008)). We fur-
ther hold that the district court did not err in granting sum-
mary judgment to the Forest Service on Native Ecosystems
Council’s NFMA claims, because the Forest Service reason-
ably considered the “relevant factors” that could have
impacted the elk hiding cover and goshawk populations in its
analysis of the Project. Forest Guardians v. U.S. Forest Serv.,
329 F.3d 1089, 1097 (9th Cir. 2003). Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Project is a small fuels-reduction project that involves
understory thinning (cutting and logging) and burning1. The
Project was approved by the Forest Service on September 29,
2009.
The Project was initiated to benefit the Middle Fork Judith
Wilderness Study Area (WSA), and to mitigate wildfire dan-
ger, particularly to Sapphire Village. The Project benefits the
WSA by reducing the danger of stand-replacing crown fires2
1
The Forest Service defines “understory fire” as: “Fire regime in which
fires are generally not lethal to the dominant vegetation and do not sub-
stantially change the structure of the dominant vegetation. Most of the
aboveground dominant vegetation survives fires (75% according to Hann
and others 2004, 80% according to Smith (2000). Applies mostly to forest
and woodland vegetation types (Smith 2000).” U.S. Forest Service, Fire
Effects Information System Glossary (2012), available at http://
www.fs.fed.us/database/feis/glossary.html#ULTRAMAFIC SOILS.
2
The Forest Service defines “crown fire” as: “Fire that burns in the
crowns of trees and shrubs. Usually ignited by a surface fire. Crown fires
are common in coniferous forests and chaparral-type shrublands.” U.S.
Forest Service, Fire Effects Information System Glossary (2012), available
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11717
to the Project area. The WSA is particularly important
because it provides adjacent cover for elk and other large
game animals that may be temporarily displaced during Proj-
ect implementation.
The Project also benefits Sapphire Village by reducing the
risk of fire danger. Sapphire Village was already identified by
the Federal Register as a “high risk” wildland-urban interface
community, which has historically suffered from crown fires.
The Project was designed to restore the Project area to its his-
torical natural stand composition—a more open understory
maintained by more frequent, low intensity fires.
The absence of fire for more than 100 years has signifi-
cantly changed the Project area: Douglas-fir conifers (a high
fuel load type of evergreen) have become established in
stands of ponderosa pine, and the fire condition of the Project
area has changed from condition class 1 (no deviation from
natural vegetation) to condition classes 2 and 3 (moderate and
high departure from natural vegetation characteristics). The
Project treatments are intended to help restore natural mainte-
nance of the Project area.
Following an administrative appeal by Native Ecosystems
Council , the Project was reduced in size so that the total area
of treatment was decreased from 1,655 acres to 832 acres.
Thinning was reduced from 632 acres to 243 acres. All treat-
ment in unroaded lands was eliminated. Temporary roads
were decreased by about 70% so that only one half mile of
at http://www.fs.fed.us/database/feis/glossary.html#ULTRAMAFIC
SOILS.
The Forest Service defines “stand replacement fire” as: “Fire that kills
or top-kills aboveground parts of the dominant vegetation, changing
aboveground structure substantially. The majority . . . of the aboveground,
dominant vegetation is either consumed or dies as a result of the fire.
Applies to forests, shrublands, and grasslands . . . though not often used
to describe grasslands.” Id.
11718 NATIVE ECOSYSTEMS COUNCIL v. WELDON
temporary road was planned to be constructed, decommis-
sioned and subsequently rehabilitated. The Forest Service
estimated that the Project would take six to ten years to com-
plete.
In the district court for the District of Montana, Native Eco-
systems Council challenged several aspects of the Project on
NEPA and NFMA grounds. Count I of Native Ecosystems
Council’s complaint alleged that the Forest Service violated
NEPA when it failed to give renewed consideration to the
Native Ecosystems Council’s proposed Alternative C, follow-
ing the agency’s decision to reduce the scope of the Project
according to Alternative B. Counts II through V of the com-
plaint related to the effects of the Project on elk habitat and
hiding cover. Specifically, Count II alleged that the Project
violated NFMA because it allowed for logging in mapped elk
winter range during the winter months, in violation of the
Lewis and Clark National Forest Plan (Forest Plan). Count III
alleged that the Forest Service violated the NFMA by failing
to adhere to the Forest Plan when it neglected to analyze big
game hiding cover at the drainage level. Count IV alleged a
companion NEPA claim stating that the failure to analyze hid-
ing cover at the drainage level meant that the Forest Service
relied upon inaccurate or unreliable scientific information.
Count V alleged a NFMA claim charging that the Project
would cause higher road density than the Forest Plan allows.
Counts VI through VIII dealt with the effects of the Project
on goshawk habitat.3 Count VI alleged that the Forest Service
violated NFMA because it failed to adhere to the Forest
3
The goshawk is a bird of prey that “tend[s] to nest in mature forests
. . . building large nests that are used by the original pair or successors for
many years . . . A variety of forest types and structural stages are used as
foraging habitat, but the important role of mature forests as long-term
nesting sites has placed considerable attention on the goshawk.” See U.S.
Dep’t of Agric., Northern Goshawk Inventory and Monitoring Technical
Guide, available at http://www.fs.fed.us/wildecology/GoshawkTechGuide
July06.pdf (July 2006).
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11719
Plan’s monitoring requirements for the goshawk population.
Count VII alleged both NFMA and NEPA violations on the
grounds that the Forest Plan failed to ensure that habitat is
available to maintain viable populations of goshawks. It also
alleged that the Forest Service’s failure to implement a scien-
tifically reliable monitoring protocol also violated NEPA’s
requirement that the Forest Service act with scientific integ-
rity in the NEPA analysis. Count VIII alleged a NEPA viola-
tion on the grounds that the agency arrived at inconsistent
conclusions regarding the canopy cover and goshawk forag-
ing habitat that will remain after the completion of the Proj-
ect.
On June 7, 2011, the district court granted summary judg-
ment in favor of the Forest Service. Specifically, the district
court held that Native Ecosystems Council failed to present
arguments addressing the claims set forth in Counts I, VII,
and VIII of the Complaint, and therefore, that such claims
were deemed abandoned.4 The district court then granted
summary judgment to the Forest Service on the remainder of
the claims, on the merits. Native Ecosystems Council timely
appealed on August 4, 2011.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
The Administrative Procedure Act (APA) provides that we
“shall . . . hold unlawful and set aside agency action, findings,
and conclusions found to be . . . arbitrary, capricious, and an
abuse of discretion, or otherwise not in accordance with law”
or “without observance of procedure required by law . . . .”
5 U.S.C. § 706(2). In our determination of compliance, we
conduct a “searching and careful” inquiry. Marsh v. Oregon
Natural Res. Council, 490 U.S. 360, 378 (1989). A decision
4
Native Ecosystems Council conceded abandonment of these claims and
does not raise them again on appeal.
11720 NATIVE ECOSYSTEMS COUNCIL v. WELDON
is arbitrary and capricious if the agency “relied on factors
which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983).
DISCUSSION
I. Waiver
As an initial matter, we address the question of waiver:
We will review an issue that has been raised for the
first time on appeal under certain narrow circum-
stances: (1) to prevent miscarriage of justice; (2)
when a change in law raises a new issue while an
appeal is pending; and (3) when the issue is purely
one of law. The decision to consider an issue not
raised below is discretionary, and such an issue
should not be decided if it would prejudice the other
party.
MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086
(9th Cir. 2006) (internal citations and quotations omitted).
“The matter of what questions may be taken up and resolved
for the first time on appeal is one left primarily to the discre-
tion of the courts of appeals, to be exercised on the facts of
the individual cases.” Singleton v. Wulff, 428 U.S. 106,
120-21 (1976)
In light of the interests of justice and our discretion to
review issues raised on appeal, we proceed to address each of
Native Ecosystems Council’s challenges on the merits.
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11721
II. NEPA Claims
[1] NEPA is a procedural statute that requires the federal
government to carefully consider the impacts of and alterna-
tives to major environmental decisions. 42 U.S.C. §§ 4321,
4331. Its purpose is to ensure that federal agencies take a
“hard look” at the environmental consequences of their pro-
posed actions before deciding to proceed. Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350-51
(1989). A court generally must be “at its most deferential”
when reviewing scientific judgments and technical analyses
within the agency’s expertise under NEPA. Northern Plains,
668 F.3d at 1075 (quoting Balt. Gas & Elec. Co. v. Natural
Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)). Although
NEPA establishes procedures by which agencies must con-
sider the environmental impacts of their actions, it does not
dictate the substantive results of agency decision making.
Robertson, 490 U.S. at 350. Courts may not impose them-
selves “as a panel of scientists that instructs the [agency] . . . ,
chooses among scientific studies . . . , and orders the agency
to explain every possible scientific uncertainty.” Lands Coun-
cil v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (en banc),
rev’d on other grounds by Winter v. Natural Res. Def. Coun-
cil, Inc., 555 U.S. 7 (2008). And “[w]hen specialists express
conflicting views, an agency must have discretion to rely on
the reasonable opinions of its own qualified experts even if,
as an original matter, a court might find contrary views more
persuasive.” Id. at 1000 (internal citations and quotations
omitted).
“At a minimum, an agency must support its conclusions
with studies that the agency deems reliable.” Tri-Valley
CAREs v. U.S.D.O.E., 671 F.3d 1113, 1124 (9th Cir. 2012)
(citing Lands Council, 537 F.3d at 994). An agency will have
acted arbitrarily and capriciously only when “the record
plainly demonstrates that [the agency] made a clear error in
judgment in concluding that a project meets the requirements”
of NEPA. Id. (quoting Lands Council, 537 F.3d at 994).
11722 NATIVE ECOSYSTEMS COUNCIL v. WELDON
A. Elk Hiding Cover Methodology
Native Ecosystems Council contends that the Forest Ser-
vice’s aerial photo interpretation (PI Type) methodology is
invalid and unreliable because the Forest Service can slash
and burn an understory without affecting what would be seen
on an aerial photo due to canopy cover. Native Ecosystems
Council contends that the PI Type methodology fails to con-
sider the possibility that the removal of understory may not be
cognizable aerially if a forest has very dense vegetation and
thick canopy cover.
Native Ecosystems Council’s challenge fails to prove that
the Forest Service acted arbitrarily and capriciously in select-
ing the PI Type methodology to analyze elk hiding cover. The
Forest Service based its selection of the PI Type methodology
upon a rigorous and scientific 1982 elk logging study involv-
ing the use of a life-sized, two dimensional cutout of an elk
in various types of forest stands.5 The Forest Service noted the
characteristics of each stand in the various areas in which hid-
ing covered was measured. The stand characteristics were
then classified into different PI Types. Based upon those
descriptions, a “Montana Rule” was developed to calculate an
average percentage hiding cover by type. For any given area,
the percentage of effective cover was then determined by
multiplying the acres of each PI Type by the Montana Rule
percentages, totaling the acres providing hiding cover, and
then dividing by total acres. The “Montana Rule” percentages
were tested for accuracy in the elk logging study of 1982; in
that comparison of over 22 sites, the Montana Rule estimated
5
The Rocky Mountain Research Station of the U.S. Forest Service
(which includes the Lewis and Clark National Forest) defines “stand” as:
“a biotic community, particularly of trees, possessing sufficient uniformity
of composition, age, and spatial arrangement to be distinguishable from
adjacent communities. Stand structure refers to the composition, age, and
arrangement of the trees in a delimited biotic community.” Rocky Moun-
tain Research Station, Glossary, http://www.rmrs.nau.edu/publications/
rm_gtr_295/glossary.html (last visited August 16, 2012).
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11723
hiding cover at 46.7% (+/- 2.4%) and actual observation
determined 46.2% hiding cover. Based upon those findings,
the Forest Service determined that PI Type analysis, as
applied using the Montana Rule, is reliable. Moreover, and in
addition to the classic PI Type/Montana Rule analysis, in
order to specifically address concerns that aerial photos would
not reflect the effects of thinning on lower understory due to
canopy cover, the Forest Service created new criteria for
determining whether the understory treatments would change
the PI types. These new criteria provided that PI Type would
also be changed by the existence of “cutover,” which was
characterized as “areas with obvious evidence of man’s recent
cutting activities, such as cutting unit boundaries, characteris-
tic roading systems, etc.”
[2] Native Ecosystems Council fails to present any com-
pelling evidence that the Forest Service’s reliance on the elk
logging study was arbitrary or capricious. To the contrary,
Native Ecosystems Council fails to assert any distinguishing
facts between the 1982 elk logging study and the instant case
that would render the PI Type methodology inapposite.
Native Ecosystems Council presented no evidence that under-
story removal had not occurred prior to 1982 in any of the 11
sample areas analyzed in the elk logging study. Moreover,
Native Ecosystems Council has not proffered any evidence
that the PI Type methodology is predicated on only assessing
stands in which no understory treatment has occurred. In con-
trast, the Forest Service has demonstrated that the PI Type
methodology accounts for stocking levels and understory den-
sity because the PI Type/Montana Rule calculation is deter-
mined by the number of trees in a given area. Thus, regardless
of whether the understory was previously treated, the Forest
Service was not arbitrary or capricious in selecting the PI
Type methodology because it reasonably relied upon the 1982
elk logging study and the Montana Rule to conclude that the
methodology adequately gauged stand density.
[3] The mere fact that Native Ecosystems Council dis-
agrees with the methodology does not constitute a NEPA vio-
11724 NATIVE ECOSYSTEMS COUNCIL v. WELDON
lation. In reviewing Native Ecosystems Council’s NEPA
appeal, we may not insert our opinions in the place of those
of forest biologists. Lands Council, 537 F.3d at 988. Rather,
we are required to apply the highest level of deference in our
review of the Forest Service’s scientific judgments in select-
ing the elk hiding cover methodology. Northern Plains, 668
F.3d at 1075. Given the paucity of Native Ecosystems Coun-
cil’s factual distinctions, and the substantial deference owed
to the Forest Service’s determinations, we hold that the Forest
Service’s selection of the PI Type methodology did not vio-
late NEPA. Lands Council, 537 F.3d at 987-88.
B. Flawed Conclusions in Elk Hiding Cover Analysis
An agency decision is arbitrary and capricious if, among
other things, it “offered an explanation that runs counter to the
evidence before the agency or is so implausible that it could
not be ascribed to a difference in view or the product of
agency expertise.” Lands Council, 537 F.3d at 987 (internal
citation and quotation marks omitted). Under NEPA, the pur-
pose of an Environmental Assessment (EA) is simply to
create a workable public document that briefly provides evi-
dence and analysis for an agency’s finding regarding an envi-
ronmental impact.” Tri-Valley CAREs, 671 F.3d at 1129. We
do not require the agency “to compile an exhaustive examina-
tion of each and every tangential event that potentially could
impact the local environment. Such a task is impossible, and
never-ending. The purpose of the EA is simply to create a
workable public document that briefly provides evidence and
analysis for an agency’s finding regarding an environmental
impact.” Id. The EA must only “provide the public with suffi-
cient environmental information, considered in the totality of
the circumstances, to permit members of the public to weigh
in with their views and thus inform the agency decision-
making process.” Bering Strait Citizens, 524 F.3d at 953. We
thus defer to agency decisions so long as those conclusions
are supported by studies “that the agency deems reliable.” N.
Plains Res. Council, 66 F.3d at 1075 (emphasis added).
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11725
Native Ecosystems Council contends that the Forest Ser-
vice’s elk cover hiding analysis violated NEPA because it was
contradicted by the record based upon the following three
arguments: (1) the agency’s logging conclusion that the Proj-
ect would not thin stands below 40% density (“moderately
stocked”) was contradicted by a 2007 Forest Service silvicul-
tural report, which stated that the Project would thin stands
from being “moderately stocked” to being “poorly stocked”;
(2) the agency’s conclusion that the Project would not change
the PI Types of stands treated by prescribed burning was con-
tradicted by the fact that burning would per se alter the height,
texture, and stocking of a stand; and (3) the agency’s conclu-
sion that slashing will not produce cutover was contradicted
by the fact that slashing will produce tree stumps. We address
each of Native Ecosystems Council’s arguments in turn.
1. Logging and Thinning
Native Ecosystems Council challenges the Forest Service’s
commercial logging findings based on a 2007 silvicultural
report on the impacts of the Project that indicated that the
project goal of reducing the risk of crown fire would be met
by reducing canopy cover to less than 40 percent. Because the
threshold between a “moderately stocked” stand and a “poorly
stocked” stand is 40 percent, and a change from “moderately
stocked” to “poorly stocked” would result in a change in PI
Type, Native Ecosystems contends that the Forest Service’s
conclusion that the logging and thinning aspects of the Project
would not change PI Type is contradicted by the record.
[4] We disagree. The Forest Service based its analysis of
the impacts of logging and thinning on a 2009 revision of the
original 2007 silvicultural report upon which Native Eco-
systems Council relies. The 2007 silvicultural report was thus
superseded by the final 2009 version, which corrected previ-
ous errors6 and reflected more accurate data about the Proj-
6
The 2007 report had originally indicated that no trees greater than 15”
in diameter would be cut. This was in error. In fact, the final limitation on
11726 NATIVE ECOSYSTEMS COUNCIL v. WELDON
ect’s impacts on canopy cover. In the final 2009 silvicultural
report, which was subsequently incorporated into the third
chapter of the EA, entitled “Affected Environment and Envi-
ronmental Consequences,” the Forest Service specifically
considered the direct and indirect consequences of past, pres-
ent and reasonably foreseeable future project related activities
based upon two different alternatives: (1) no agency action
and (2) proposed action by the Project. In that chapter alone,
the Forest Service cited over thirty different studies upon
which it based its findings. Based upon those studies and its
own revised analysis in 2009, the Forest Service thus reason-
ably concluded that the Project goals could be accomplished
by reducing canopy cover to 40 percent (or lower), and there-
fore it was not necessary to thin stands below the “moderately
stocked” category.
Moreover, a separate February 2010 report supplementing
the elk hiding cover analysis confirmed the findings of the
final 2009 silvicultural report included in the EA. There, the
Forest Service concluded that the project would not change
“Effective Hiding Cover” for elk from the existing condition
(“moderately stocked”) and that broadcast burning, as well as
cutting and slashing, would not alter the PI type.
[5] Under Lands Council, the 2007 silvicultural report does
not prove that the Forest Service’s conclusion was “implausi-
ble” because it was superseded by more accurate predictions.
537 F.3d at 987. Nor does the 2007 report demonstrate that
the Forest Service’s reliance on the 2009 revisions or 2010
biologist report was contradicted by facts in the record
because the Forest Service reasonably determined the 2009
and 2010 reports were based upon corrected and more recent
data and various different studies. Id. Accordingly, because
trees subject to the thinning aspects in the final 2009 report was actually
more restrictive: prohibiting cutting of any trees greater than 14” in diame-
ter.
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11727
the Forest Service supported its findings with multiple differ-
ent studies and analyses, we defer to the Forest Service’s con-
clusion that the slashing and thinning activities would not
alter the PI of the Project area. Id.
2. Prescribed Burning
Native Ecosystems Council contends that the prescribed
burning of the Project area per se changes the character of the
treated stand by altering its height and texture, thus changing
the stand’s PI Type. Besides the outdated 2007 silvicultural
report, Native Ecosystems Council cites minimal evidence, if
any, to support its position. It contends, based on the report,
that: “Removing trees indisputably alters their height. Reduc-
ing stand density has the potential to alter the texture and
stocking of the stand.” However, Native Ecosystems Council
fails to appreciate that the Project actually serves to preserve
the distinguishing features of the PI Types of the burned
stands by removing the invasive fauna that has caused the
increased fire risk.
[6] Specifically, Native Ecosystems Council ignores the
fact that the prescribed burns will occur only “within and
adjacent to meadows,” which are assigned at PI Type of 93
(“nonforest,” defined as having generally 10 percent cover
from shrubs, grass, riparian trees, etc.) Such meadows and
adjacent areas in the Project area were actually threatened by
the invasive conifers and shrubs causing the fire danger. Thus,
the Forest Service demonstrated that the prescribed burning
would restore the status quo by limiting the shrubs and coni-
fers presently invading the meadows. Accordingly, we hold
that the Forest Service’s conclusion that the prescribed burn-
ing “preserves the meadow and does not change its PI Type,”
is supported, rather than contradicted by the evidence in the
record, and therefore does not violate NEPA. Lands Council,
537 F.3d at 987.
11728 NATIVE ECOSYSTEMS COUNCIL v. WELDON
3. Cutting and Slashing
[7] Native Ecosystems Council contends that hand slashing
will produce stumps, and that stumps are “evidence of man’s
recent cutting activities,” thus rendering Project areas “cut-
over,” and changing their PI type. However, the very docu-
ment upon which Native Ecosystems Council relies defines
“cutover” as “areas with obvious evidence of man’s cutting
activities, such as cutting unit boundaries, characteristic road-
ing systems, etc.” The mere fact that some stumps may exist
does not rise to the level of rendering a stand “cutover”—that
is why the report emphasizes “cutting unit boundaries,”
because the cutting has to be significant and widespread. We
hold that the Forest Service is entitled to substantial deference
in this interpretation of its own regulations. Forest Guardians,
329 F.3d at 1097. Moreover, Native Ecosystems Council has
presented no evidence that some stumps would constitute true
“cutover.” Indeed, the record indicates that larger trees would
be retained and “the spatial arrangement (horizontal structure)
would be irregular and random to feature groups of larger
diameter trees of similar age.” And contrary to Native Eco-
systems Council’s contentions, the temporary road to be con-
structed during the project would not constitute a “roading
system” because it would be decommissioned and rehabili-
tated after the Project is completed.
[8] Given these considerations, the Forest Service does not
rely upon facts that are contradicted by the record; rather,
Native Ecosystems Council attempts to distort the meaning of
“evidence of man’s recent cutting activities” by ignoring the
technical definitions of cutover in the EA. Such logic fails to
prove a NEPA violation. Lands Council, 537 F.3d at 987.
Accordingly, we hold that the Forest Service did not violate
NEPA in concluding that the slashing would not render the
Project area cutover.
III. NFMA Claims
[9] The NFMA and its implementing regulations provide
for forest planning and management by the Forest Service on
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11729
two levels: (1) forest level and (2) individual project level.
See generally 16 U.S.C. § 1604; see also Ohio Forestry Ass’n
v. Sierra Club, 523 U.S. 726, 729-30 (1998). On the forest
level, the Forest Service develops a Land and Resource Man-
agement Plan (forest plan), which consists of broad, long-term
plans and objectives for the entire forest. Forest plans are
designed to manage forest resources by balancing the consid-
eration of environmental and economic factors. Citizens for
Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th
Cir. 2003). The NFMA’s purpose is to require that the Forest
Service “provide for diversity of plant and animal communi-
ties” in managing national forests. 16 U.S.C. § 1604(g)(3)(B).
After a forest plan is approved, the Forest Service imple-
ments the forest plan when approving or denying site-specific
projects. Forest Guardians, 329 F.3d at 1092. Site specific
actions may include resource plans, permits, contracts, and
other instruments for occupancy or use of forest lands. Inland
Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754,
757 (9th Cir. 1996). While NFMA requires that the proposed
site-specific actions be consistent with the governing Forest
Plan, the Forest Service’s interpretation and implementation
of its own forest plan is entitled to substantial deference. For-
est Guardians, 329 F.3d at 1097. The Forest Service’s failure
to comply with the provisions of a Forest Plan is a violation
of the NFMA. Native Ecosystems Council v. U.S. Forest
Serv., 418 F.3d 953, 961 (9th Cir. 2005). Agency decisions
challenged under the NFMA may be set aside only if they are
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law. Forest Guardians, 329 F.3d at
1096-97; 5 U.S.C. § 706(2)(A). In determining whether a
decision is arbitrary or capricious, we “must consider whether
the decision was based on a consideration of the relevant fac-
tors and whether there has been a clear error of judgment.”
Morongo Band of Mission Indians v. Fed. Aviation Admin.,
161 F.3d 569, 573 (9th Cir. 1998) (internal quotation marks
and citation omitted).
11730 NATIVE ECOSYSTEMS COUNCIL v. WELDON
A. Flawed Assumptions in Elk Hiding Cover Analysis
Native Ecosystems Council contends that the Forest Ser-
vice’s elk cover hiding analysis violates NFMA because it
would reduce elk hiding cover beyond a “threshold level,” as
required under the Forest Plan. Specifically, Native Eco-
systems Council contends that because the Project would
change the PI Type of treated stands, it would therefore
reduce elk hiding cover in violation of the Forest Plan’s
requirement that elk hiding cover be “maintained.” Native
Ecosystems Council relies upon the same three “flawed
assumptions” challenged under NEPA in their NFMA claims
regarding logging and thinning, prescribed burning and cut-
ting and slashing. As was the case under NEPA, each of
Native Ecosystems Council’s challenges under NFMA also
fails.
1. Logging and Thinning
[10] Native Ecosystems Council’s first challenge regarding
the Forest Service’s assumptions about commercial logging
fails because, as we held under its NEPA challenge, the 2007
silvicultural report was corrected, updated and revised in the
final 2009 silvicultural report incorporated into the EA. The
final version of the report made clear that the Project would
not change effective hiding cover and that the burning, cutting
and slashing would not change the PI Type. Thus, for the rea-
sons discussed in our rejection of Native Ecosystems Coun-
cil’s NEPA challenge, and because of the inherent
“substantial deference” owed to agency in interpreting its own
plans, we hold that the 2009 report and confirming 2010
report support a finding that the Forest Service did not violate
its own plan. Forest Guardians, 329 F.3d at 1097, 1099.
2. Prescribed Burning
[11] Native Ecosystems Council next contends that pre-
scribed burning will change PI type, in violation of the Forest
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11731
Plan, because it will alter the height and texture of forest veg-
etation. In so doing, however, Native Ecosystems Council
fails to overcome the fact that burning will, in fact, retain the
defining characteristics of “nonforest” PI Type of 93. Based
upon this logic, we hold that the Forest Service was neither
arbitrary nor capricious in concluding that removing the
encroaching conifers, seedlings and saplings “preserves the
meadow and does not change its PI Type.” As was the case
in our review of Native Ecosystems Council’s first NFMA
challenge, we hold that the Forest Service did not violate the
NFMA in its analysis of the impact of prescribed burning on
PI Type. Forest Guardians, 329 F.3d at 1097.
3. Cutting and Slashing
[12] Finally, Native Ecosystems Council contends that cut-
ting and slashing treatments that may produce stumps render
an area “cutover,” thus altering its PI Type in violation of the
Forest Plan. As we rejected this argument in Native Eco-
systems Council’s NEPA challenge, we also do so here.
Accordingly, we hold that the Forest Service complied with
NFMA and its Forest Plan. Forest Guardians, 329 F.3d at
1097.
B. Goshawk Population
Under the NFMA, Native Ecosystems Council must show
a “specific connection” between the challenged site-specific
action and the alleged violation. Ecology Ctr. v. Castaneda,
574 F.3d 652, 658 (9th Cir. 2009). Although the threshold for
establishing a site-specific connection is not a high bar, we
may only consider “challenges to the lawfulness of a forest
plan . . . to the extent that the contested portion of the plan
‘plays a causal role with respect to the [Project].’ ” Hapner v.
Tidwell, 621 F.3d 1239, 1250 (9th Cir. 2010).
Under the Forest Plan, the goshawk is a Management Indi-
cator Species (MIS) under the “Old Growth Forest” category.
The Forest Plan standard for MIS provides:
11732 NATIVE ECOSYSTEMS COUNCIL v. WELDON
Monitor population levels of all Management Indica-
tor Species on the Forest and determine the relation-
ship to habitat trends. Population levels will be
monitored and evaluated as described in the monitor-
ing plan (Chapter V).
Chapter V monitoring item C-8 requires annual measurement
of “active nesting territories.” If there is a decrease of more
than 10% in active nesting territories, the Forest Service is
required to conduct “further evaluation” to determine why.
Native Ecosystems Council contends the Forest Service vio-
lated the NFMA by failing to satisfy the Forest Plan’s stan-
dards regarding the goshawk population on two grounds: (1)
by failing to monitor 100% of the goshawk population in the
annual monitoring reports; and (2) by failing to conduct fur-
ther studies on the goshawk nesting rates following popula-
tion decreases in excess of 10%. We address each of Native
Ecosystems Council’s arguments in turn.
1. Annual Monitoring Requirement
[13] Native Ecosystems Council may not challenge the
Forest Service’s compliance with the NFMA on the grounds
that the agency does not comply with its C-8 monitoring
requirements because there is not a sufficient site-specific
challenge. The Forest Service does not dispute that it, at some
points, failed to monitor all populations (in 2007 and 2008 the
agency left out Indian Point Territory in their monitoring
report on the grounds that it was located in a remote location
in the Bob Marshall Wilderness, thus only monitoring 98% of
populations; in 2009 the agency also neglected to monitor the
Indian Point, Lower Blacktail and Badger Junction territories,
thus monitoring only 94% of goshawk nesting territories).
However, the unmonitored territories are not in the vicinity of
the Project area, and the only nesting territory in the Project
area has always been monitored as required by the Forest
Plan. Accordingly, Native Ecosystems Council failed to prove
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11733
a site-specific challenge based upon the annual monitoring
report claims. Ecology Ctr., 574 F.3d at 658.
2. “Further Evaluation” Requirement
[14] In contrast, Native Ecosystems Council’s second
NFMA challenge to the “further evaluation” requirements for
10 percent or greater declines in goshawk nesting populations
demonstrates a sufficient, albeit tenuous, site-specific connec-
tion. We find a sufficient site specific connection here
because stand treatment has been shown to affect goshawk
nesting territories, and the Project requires significant stand
treatment in known goshawk nesting territories. See, e.g.,
Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059,
1067-68 (9th Cir. 2002). Thus, whereas the violations with
regard to the annual monitoring reports never fell within the
ambit of the Project area, there is a sufficient nexus between
the alleged violations for monitoring declining goshawk pop-
ulations and the prospective Project stand treatments.
[15] In their challenge to the Forest Service’s compliance
with its “further evaluation” requirement, Native Ecosystems
Council contends that there was an 11 percent decrease in
goshawk occupancy in 2007 and a 25 percent decrease in gos-
hawk occupancy between 2008, but that the Forest Service
never completed the “further evaluation” required under the
Forest Plan. Specifically, Native Ecosystems Council con-
tends that the Forest Service failed to determine how vegeta-
tion management activities were affecting the goshawk
population or habitat in 2007 and 2008. We disagree. In the
2007 report, the Forest Service concluded:
Many factors contribute to variability. Annual varia-
tions in weather and climate occur . . . Predation of
nests, fledglings, and adults can also affect nesting
success. These factors and others yet to be identified
all affect the annual change in percentage of active
nest areas. As outlined in our 2006 monitoring
11734 NATIVE ECOSYSTEMS COUNCIL v. WELDON
report, the direction to conduct further evaluation
when a 10% decrease is identified and does not
address any of the potential reasons for variability.
The 2007 evaluation specifically attributed the variability to
such natural conditions as “[c]old and wet weather while the
eggs are being incubated and [while] nestlings are young” and
the fact that “[w]eather also affects . . . the . . . availability of
prey.” Following the 2008 decline, the Forest Service applied
a similar analysis. Specifically, the Forest Service concluded
that “[t]he reduction was likely due to unusually cold, wet,
harsh weather during the 2008 nesting period. Wet, heavy
snow and cold, wind-driven rain occurred frequently through-
out the spring season and into early summer and probably
resulted in an unusually high failure rate.” Given the Forest
Service’s weather-based explanation for the goshawk nesting
population declines, we conclude that the Forest Service rea-
sonably conducted the requisite “further evaluation” required
under the Forest Plan.
[16] Native Ecosystems Council’s reliance on various
scholarly papers emphasizing the importance of monitoring
prey habitat for the welfare of goshawk populations fails to
prove that the Forest Service violated its own Plan when it
attributed the 2007 and 2008 declines to natural variability
and weather. Under the NFMA, the Forest Service’s interpre-
tation and implementation of its own Forest Plan is entitled to
substantial deference. Forest Guardians, 329 F.3d at 1097.
We reject Native Ecosystems Council’s argument that the
Forest Service violated the NFMA simply because the Forest
Service failed to arrive at the same conclusion regarding the
causes and need for further investigation of goshawk nesting
failure rates. All that is necessary is that the Forest Service
reasonably consider the “relevant factors” involved in the gos-
hawk population decreases in 2007 and 2008. Id. We find that
it did. Accordingly, the Forest Service complied with the
NFMA in its evaluation of goshawk population decreases, as
required under the Forest Plan.
NATIVE ECOSYSTEMS COUNCIL v. WELDON 11735
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court.