Oregon Natural Resources Council Fund v. Brong , 492 F.3d 1120 ( 2007 )

O’SCANNLAIN, Circuit Judge,

dissenting:

Both the district court and our court have now ruled that the Bureau of Land Management (“BLM”) violated the Federal Land Policy and Management Act (“FLPMA”) and the National Environmental Policy Act (“NEPA”) in proposing the Timbered Rock Fire Salvage and Elk Creek Watershed Restoration Project (“Timbered Rock Project” or “Project”) to salvage the .remains of a disastrous fire in the Elk Creek Watershed.

With respect, I am unpersuaded that BLM violated either Act when the question is viewed under the proper standard of review. Because it appears that both courts have inappropriately substituted their own policy views for the BLM’s, I cannot concur. The majority opinion recognizes that we must not invalidate agency action where the agency can present “a rational connection between the facts found and the conclusions made.” Ante, at 1125. Unfortunately, because I can discern no rational connection between this extremely deferential standard of review and the majority’s conclusions in this case, I must respectfully dissent.

I

FLPMA authorizes the BLM to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands.” 43 U.S.C. § 1712(a). Once such plans are in place, FLPMA mandates that the BLM act “in accordance” with them. 43 U.S.C. § 1732(a). In the instant case, the governing land use plans are the Medford District Bureau of Resource Management Plan (“Medford RMP” or “RMP”), as amended by the Northwest Forest Plan (“NFP”). Our task is to determine whether the Timbered Rock Project is consistent with the Medford RMP and the NFP.

Our review must be deferential, because the BLM was interpreting its own guidelines. Forest Guardians v. U.S. Forest Service, 329 F.3d 1089, 1098 (9th Cir.2003) (“[Fjederal courts are required to defer to an agency’s reasonable interpretation of its own guidelines.”). Furthermore, we owe heightened deference where, as here, the agency’s interpretation involves its own technical expertise and complex scientific methodologies. See, e.g., Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir.2003) (“We treat EPA’s decision with great deference because we are reviewing the agency’s technical analysis and judgments, based on an evaluation of complex scientific data within the agency’s technical expertise.”).

II

The majority mistakenly reads the NFP’s requirement that the Forest Service (“Service”) “focus on” snag retention as one that “expressly limits the removal” of snags. Ante, at 1128-29. One searches in vain for any such express limitation; a requirement to “focus on” retention, I suggest, more naturally reflects a presumption that snags will' indeed need to be removed. The insistence upon its own best vision for silviculture, rather than upon the language of Congress or the professional expertise of the Service, pervades today’s majority opinion, which far exceeds our limited role in reviewing agency action.

I concede that if the NFP. posed an absolute bar to any and all snag removal, then the Forest Service has not made a showing that would overcome such a prohibition. But of course the NFP contains no such requirement, not by its plain language nor by any reasonable inference therefrom; The majority maintains that the BLM can “point to no part of the NFP to support its argument that using the some-is-enough standard satisfies the Plan.” Ante, at 1129. On the contrary, the “some is enough” standard is implicit in the language the majority relies upon. It is the majority, rather, that can point to no language in the NFP stating that “some is never enough”—rather, it simply quotes “focus on” to divine an “express limitation.”

Perhaps the majority has a better idea than the BLM about how many large snags to retain; our task, however, only requires—and only permits—us to review whether the BLM’s determination is “arbitrary and capricious,” and this the majority utterly fails to demonstrate. The majority derides the BLM’s use of averaging in analyzing snag retention levels, ante, at 1129, though it acknowledges, ante, at 1129-30, that the BLM cites to two scientific studies supporting the practice. Rather than demonstrating, as it must but cannot, that the BLM has failed to establish a rational connection between the facts in the record and its conclusions, the majority constructs its own straw man example of an egregious abuse of averaging and quotes a Justice Brandéis aphorism to boot. Ante, at 1129 n. 13. Yet, the record demonstrates that 87% of snags on BLM land would still be present after the Timbered Rock Project, and that no salvage logging would occur on roughly 63% of the forest areas affected by the fires. Justice Brandéis was a wise man, but application of his aphorism to silviculture is surely inapposite.

The folly of the majority’s analysis is also apparent in its discussion of the NFP’s explicit allowance for non-beneficial recovery of timber volume after catastrophic events. See ante at 1129-30. Though the majority opinion repeatedly derides the principle that “some is enough,” it does not seem to recognize that the only alternative to that truism is an absolute prohibition on snag removal. Yet it acknowledges that such a reading is untenable and that “salvage can occur in LSRs.” Ante, at 1130. Therefore, it too believes that some, but not all, large snags must be maintained.

Further, the majority chides the BLM for purportedly failing to “claim or offer evidence” that the Timbered Rock fire killed more trees than are needed to maintain late successional conditions. Ante, at 1130-31. On the contrary, the Final Environmental Impact Study (“FEIS”) provides multiple scientific references supporting its proposed level of snag retention—specifically relying upon the DecAID Wood Advisor, as well as upon separate 2002 studies by Rose, et al., and Ohmann.¹

It follows, therefore, that the BLM has indeed argued, and to my mind demonstrated, that the Timberland Rock Fire killed more trees than are needed to maintain late sucessional conditions. It is baffling, and in any event demonstrably false, to contend that the BLM “does not claim or offer evidence to this end.” The majority, so eager to lampoon the BLM’s position as “some is enough,” is apparently unwilling to concede that enough is enough.

Because the BLM has easily demonstrated its compliance with the NFP’s general requirement to “focus on” snag retention, and because it has shown the requisite rational connection between the facts in the record and its conclusions about how many snags to retain, I cannot join the court’s naked imposition of its own preference under the guise of a review for arbitrariness and capriciousness. With respect, I would reverse the district court.

Ill

The majority undertakes to reject the post-fire research logging proposed by the BLM under either of two tests permitting logging: first, that the activity is consistent with Late-Suecessional Reserve (“LSR”) objectives, or second, if the proposal meets any of a series of alternate criteria and no equivalent opportunities outside of the LSR exist. The majority contends that the BLM’s proposal fails the first test “for the same reasons the Project falls short with regard to snag retention.” Ante, at 1131. As I have already shown, only by ignoring the studies relied upon by the BLM and by distorting the instruction to “focus upon” snag retention into an “express limitation” upon snag removal does the majority reach its erroneous conclusion concerning snag retention. Thus, I cannot agree that the proposed research logging is inconsistent with LSR objectives.

Although it is not necessary to my dissent on this score, let me add that the BLM has also demonstrated that the research logging would be permissible under the NFP even if inconsistent with LSR objectives. This is so first because the research logging would test critical assumptions concerning salvage of fire-killed trees and second because the BLM demonstrated that there were no “equivalent opportunities outside Late-Successional Reserves.” Specifically, the BLM stated that while there are other recently burned areas in southwest Oregon, the Medford District was the only recently burned LSR. The BLM stated that research in an LSR is critical because of the manner in which LSR land is treated. These types of scientific and technical decisions are owed our deference. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir.2003) (“We treat [this] decision with great deference because we are reviewing the agency’s technical analysis and judgments, based on an evaluation of complex scientific data within the agency’s technical expertise.”).

IV

Because the majority agrees with the district court’s finding of FLPMA violations with respect to snag removal and research logging, it does not reach the district court’s further finding of a violation in the BLM’s decision not to designate 92 acres as “riparian reserves.” I would reverse the district court’s decision here as well, as the BLM persuasively argues that the district court erroneously assumed that all “unstable or potentially unstable areas” must be designated as riparian reserves, whereas the NFP indicates that the BLM should decide if an area is a riparian reserve by focusing on “when watershed analysis determines that present and future coarse woody debris needs are met.” The NFP also discusses riparian reserves in terms of their proximity to streams and rivers, not simply their stability. Because the BLM determined that the 92 acres in question were not adjacent to or related to streams or rivers, I would hold that the BLM was not in error in deciding not to designate them as riparian reserves.

Finally, the district court agreed with ONRC’s contention that the project violates the Medford RMP by providing for salvage logging on lands that might be designated “nonsuitable woodlands.” Although the RMP does state that nonsuita-ble woodlands “are not suitable for timber harvest,” elsewhere it permits such logging for various purposes, including “reducing] road construction,” improving the “safety of forest users,” and for “research studies.” Thus, the RMP’s discouragement of logging is not absolute, and the BLM’s proposed logging here would be consistent with the RMP’s discussion of permissible logging.

In sum, the district court erroneously found that the Project violated the FLPMA with respect to the removal of large snags, research logging, timber removal from nonsuitable woodlands, and the non-designation of riparian reserves, and I would reverse as to each.

V

The majority faults the BLM’s FEIS and holds that it violated NEPA. But the BLM’s FEIS is entitled to a “presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Contrary to the majority’s analysis, we ask only “whether the ... decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140, 1146 (9th Cir.2000).

The majority relies principally on two cases to support its view that the Timbered Rock Project violates NEPA. First, it cites Klamath-Siskiyou Wildlands Center v. BLM, 387 F.3d 989, 993-94 (9th Cir.2004), where this court concluded that the BLM’s Environmental Impact Statement (“EIS”) was insufficient. However, the EIS in Klamath-Siskiyou neglected all discussion of cumulative effects. Rather than specifically analyzing environmental impacts, the BLM merely listed possible environmental concerns in generic terms. From this, the Klamath-Siskiyou court had no difficulty concluding that in a cumulative impact statement, “[gjeneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.” Id. at 993-94 (citation and quotation marks omitted); see also id. at 996 (“In sum, the only mention of cumulative effects in the two EAs comes in the form of generalized con-clusory statements that the effects are not significant or will be. effectively mitigated.”).

Second, the majority points to Lands Council v. Powell, 379 F.3d 738, 745 (9th Cir.2004). Lands Council found insufficient an EIS that referenced pertinent facts, but did not contain analysis that “set forth in sufficient detail to promote an informed assessment of environmental considerations and policy choices by the public and agency personnel upon review of the [EIS].” Id. at 745.

The FEIS in this case violates neither Klamath-Siskiyou nor Lands Council. The discussion of the cumulative impacts runs 13 lengthy and detailed paragraphs. The FEIS states, for example, that:

• the fire suppression activities “increased the amount of erosion and subsequent sedimentation”;

• “[a]nother area that could potentially deliver sediment would be roads in moderate to high burn severity areas hydro-logically-connected to streams”;

• “[particular fire suppression activities] aid in reducing the amount of erodible sediment by keeping water from channeling on the firelines”;

• “[t]he potential for sediment delivery from roads paralleling streams would be greatest where cross drain spacing is insufficient ... [which] is common in the watershed”;

• “[s]ediment would also be delivered to streams from salvage logging through hauling on natural surface roads”.

The second set of cumulative effects analysis is similarly detailed, spanning 12 paragraphs.

The question, indeed, is whether the FEIS shows that the agency took a “hard look” at the environmental consequences and provided sufficient analysis such that it “foster[s] both informed decision-making and informed public participation.” Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir.2005) (citations omitted). But the FEIS satisfies those requirements here—the agency provided a sufficient analysis such that a reader could understand the likely environmental impact of the activities under consideration.

Finally, the majority holds, as did the district court, that deferred watersheds “present a distinct problem.” Ante, at 1134. The FEIS did not separately discuss the cumulative impact of logging activities on deferred watersheds, which the district court concluded was error. The majority’s analysis is logically faulty: an EIS discusses the cumulative impacts of agency sponsored activities, not the effects on particular geographic areas. For example, the FEIS discusses the cumulative impact on the environment of fire suppression and private logging. There is no further requirement that an EIS separately detail the impact of activities on areas classified as deferred watersheds. In any event, the FEIS did address the background facts related to deferred watersheds, and also discussed mass wasting, sedimentation, fisheries, soil, hydrology, vegetation, and special habitats. There is ample evidence that the BLM’s decisions in the Timbered Rock Project were indeed based on a consideration of the relevant factors, and that no clear error of judgment has been shown. Akiak, 213 F.3d at 1146. NEPA requires no more. Accordingly, I disagree with the conclusion that the BLM violated NEPA in this case, and would reverse the district court as to the alleged NEPA violations as well.

VI

For the foregoing reasons, I am convinced that the BLM has made an ample showing to demonstrate a rational connection between the facts found and the conclusions made in formulating its Timbered Rock Project. Therefore, I respectfully dissent.

1 . The district court also decided that the BLM violated the National Environmental Policy Act ("NEPA”) by using the DecAID tool as part of its analysis; the majority declines to reach this issue. I review the BLM’s decision to use DecAID very deferentially, because "[a]n agency's scientific methodology is owed substantial deference.” Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1066 (9th Cir.2004); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ("[A]n 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.”).

We must consider not whether the use of DecAID was proper, but whether the use of DecAID rendered BLM's ultimate decision arbitrary and capricious. I conclude that it does not. Most fundamentally, ONRC cannot persuasively explain why DecAID differs from other forms of modeling which we have approved implicitly or explicitly in previous cases. ONRC cites to Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir.2002), which rejected the Forest Service’s modeling approach, but Rittenhouse did so because the model employed by the Forest Service there did not accurately estimate the actual habitat. Id. at 972. While ONRC alleges that DecAID is inaccurate, it does not allege errors comparable to those in Ritten-house, where "the Forest Service's methodology for dedicating old growth is so inaccurate that it turns out there is no old growth at all in [the studied areas].” Id.

The FEIS explicitly states that the BLM is not exclusively “using the DecAID Wood Advis- or.” The BLM states that “a number of references were considered.” It proceeds to spend substantial space discussing other sources besides DecAID. At the very most, exclusive reliance on DecAID, without disclosure of its limitations and without consultation of other sources of information, might be arbitrary and capricious. Here, however, I conclude that while DecAID has limitations, the Forest Service fully disclosed those limitations. Therefore, the criticisms of DecAID itself are insufficient to overcome the deference granted to the agency’s decision to rely on a particular scientific methodology or tool. The Service's decision to use such particular methodology is entitled to deference, and I cannot say that reliance on such methodology renders the Timbered Rock Project arbitrary and capricious.