Natural Resources Defense Council v. United States Forest Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATURAL RESOURCES DEFENSE 
COUNCIL; SOUTHEAST ALASKA
CONSERVATION COUNCIL; SIERRA
CLUB; NATIONAL AUDUBON SOCIETY;
THE WILDERNESS SOCIETY;
CENTER FOR BIOLOGICAL DIVERSITY,
Plaintiffs-Appellants,
No. 04-35868
v.
UNITED STATES FOREST SERVICE;  D.C. No.
CV-03-00029-J-JKS
U.S. DEPARTMENT OF AGRICULTURE;
MARK REY; DENNIS E. BSCHOR; OPINION
FORREST COLE,
Defendants-Appellees,
STATE OF ALASKA; ALASKA FOREST
ASSOCIATION,
Defendants-Intervenors-
Appellees.

Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief Judge, Presiding
Argued and Submitted
February 15, 2005—Seattle, Washington
Filed August 5, 2005
Before: Betty Binns Fletcher, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
10089
NATURAL RES. DEF. COUNCIL v. USFS 10093
COUNSEL
Thomas S. Waldo and Eric P. Jorgensen, Earthjustice, Juneau,
Alaska, and Nathaniel S.W. Lawrence, Natural Resources
Defense Council, Olympia, Washington, for the plaintiffs-
appellants.
Thomas L. Sansonetti, Assistant Attorney General, Andrew
C. Mergen, Bruce M. Landon, David C. Shilton, and Eliza-
beth Ann Peterson, Environment & Natural Resources Divi-
sion, United States Department of Justice, Washington, D.C.,
for the defendants-appellees.
Steve Silver and Ruth Hamilton Heese, Robertson, Monagle
& Eastaugh, Juneau, Alaska, and Gregg Renkes, Attorney
General for State of Alaska, and Zachary Falcon, Assistant
Attorney General for State of Alaska, for the defendants-
intervenors.
10094 NATURAL RES. DEF. COUNCIL v. USFS
OPINION
GOULD, Circuit Judge:
Plaintiffs-Appellants Natural Resources Defense Council,
Southeast Alaska Conservation Council, Sierra Club, National
Audubon Society, The Wilderness Society, and Center for
Biological Diversity (collectively “NRDC”) appeal the district
court’s final judgment in favor of Defendants-Appellees
United States Forest Service, United States Department of
Agriculture, and certain government employees acting in their
official capacity,1 dismissing administrative and environmen-
tal law challenges to the 1997 Revision to the Tongass Land
Management Plan (Plan). We must decide the legality of the
Plan adopted and the process used by the Forest Service.
NRDC claims that a Forest Service error that doubled the
projected market demand for Tongass timber2 rendered the
Plan for the Tongass National Forest arbitrary and capricious,
in violation of the Administrative Procedure Act (APA), 5
U.S.C. § 706(2)(A), and rendered arbitrary and capricious the
Forest Service’s conclusion that timber goals justified the risk
that the Plan may not ensure viable, well-distributed popula-
tions of wildlife, as required by former 36 C.F.R. § 219.19
(2000).3 NRDC also claims that the market-demand error ren-
dered misleading the Plan’s final Environmental Impact State-
ment (EIS), in violation of the National Environmental Policy
Act (NEPA), 42 U.S.C. § 4332. NRDC further challenges the
1
Intervenors-Appellees State of Alaska and Alaska Forest Association
(collectively “Intervenors”) successfully moved to intervene on the issue
of remedy if NRDC succeeds on the merits of this appeal.
2
The Forest Service admitted this error in its briefs and at oral argu-
ment.
3
The regulations in 36 C.F.R. § 219 have since been supplanted. 65 Fed.
Reg. 67,514-81 (Nov. 9, 2000). However, the former regulations are appli-
cable here because they were in effect when the plan revisions challenged
in this lawsuit were prepared.
NATURAL RES. DEF. COUNCIL v. USFS 10095
EIS on grounds that the Forest Service did not consider an
adequate range of alternatives and failed to consider the
cumulative impacts of “highgrading.”4
The government Appellees argue that under section 335 of
the 2003 Omnibus Appropriations Act, we lack jurisdiction to
review the Forest Service’s decision to adopt the Plan. Alter-
natively, they contend that the Plan was not arbitrary because
the inflated market demand projections did not influence the
Forest Service’s decision to adopt the Plan. The Intervenors
argue that, if NRDC prevails on the merits, injunctive relief
is inappropriate in this case because NRDC cannot show
irreparable harm to its interests, while the interests of the
Intervenors will be irreparably harmed if an injunction is in
place.
We have jurisdiction under 28 U.S.C. § 1291, and we
reverse.
I
Created in 1907 by President Theodore Roosevelt,5 the
Tongass National Forest is an immense forest located in
Southeast Alaska comprised of mainland and many islands
within the Alexander Archipelago. The Tongass is the
nation’s largest national forest, and the largest unspoiled and
intact temperate rainforest in the world, containing almost
4
“Highgrading” is the practice of logging disproportionately in high-
volume old-growth areas. High-volume old growth areas are superior hab-
itat for many wildlife species, including wolves, the American marten, and
marbled murrelets.
5
Known primarily in modern times for his political achievements, Presi-
dent Theodore Roosevelt was also an occasional “man of letters” who
wrote essays on varied topics including the need for conservation of wild-
life. See, e.g., Theodore Roosevelt, The Conservation of Wildlife, in 12
The Works of Theodore Roosevelt 423, 425-26 (Charles Scribner’s Sons
1926) (Jan. 20, 1915).
10096 NATURAL RES. DEF. COUNCIL v. USFS
seventeen million acres and occupying about seven percent of
Alaska’s area.6
The National Forest Management Act (NFMA) requires the
Forest Service to “develop, maintain, and, as appropriate,
revise land and resource management plans for units of the
National Forest System.” 16 U.S.C. § 1604(a). As we have
explained, NFMA embraces concepts of “multiple use” and
“sustained yield of products and services,” obligating the For-
est Service to “balance competing demands on national for-
ests, including timber harvesting, recreational use, and
environmental preservation.” Lands Council v. Powell, 379
F.3d 738, 742 n.2 (9th Cir. 2004) (quoting 16 U.S.C. § 1607
and citing 16 U.S.C. §§ 528-31), amended and superseded by
395 F.3d 1019 (9th Cir. 2005).
The original plan for the Tongass was approved in 1979,
and has since been amended twice, once in 1986 and again in
1991. By law, forest plans must be revised at least every fif-
teen years, or sooner if changed conditions warrant a revision.
16 U.S.C. § 1604(f)(5) (2004). The Record of Decision
(ROD) for the revised Plan at issue in this appeal was adopted
in May 1997. The initial “paper version” of the Plan’s EIS
was released in January 1997. The EIS was updated in May
1997.
During the public process of revising the Tongass Plan,
Congress passed the Tongass Timber Reform Act (TTRA),
which imposed additional planning requirements for the Ton-
gass. Among the requirements, Congress imposed a unique
6
According to its website, the Forest Service seeks to “balance multiple
uses of the forest resources,” which include “healthy fish and wildlife pop-
ulations, clean water, trees to support local industry, recreation opportuni-
ties unique to Alaska, and plenty of unspoiled beauty and solitude.” U.S.
Dep’t of Ag., Forest Service, at http://www.fs.fed.us/r10/tongass/forest_
facts/forest_facts.shtml (last visited May 10, 2005).
NATURAL RES. DEF. COUNCIL v. USFS 10097
duty on the Forest Service to consider the “market demand”
for timber:7
Subject to appropriations, other applicable law, and
the requirements of the National Forest Management
Act of 1976 (Public Law 94-588), except as pro-
vided in subsection (d) of this section, the Secretary
shall to the extent consistent with providing for the
multiple use and sustained yield of all renewable for-
est resources, seek to provide a supply of timber
from the Tongass National Forest which (1) meets
the annual market demand for timber from such for-
est and (2) meets the market demand from such for-
est for each planning cycle.
16 U.S.C. § 539d(a). The exception in subsection (d) provides
that “the Secretary need not consider economic factors in the
identification of lands not suited for timber production.” Id.
§ 539d(d).
During the planning process for the 1997 Revision to the
Tongass Land Management Plan, the Forest Service used the
analysis of economists David Brooks and Richard Haynes to
determine the market demand for Tongass timber, and to
assess whether the Plan would supply enough timber to meet
that demand, in accord with the Forest Service’s statutory
obligations. Over an eight-year period, Brooks and Haynes
prepared four reports with projections of the market demand
for Tongass timber.
The updated 1997 Brooks and Haynes report was the most
recent demand study available to the Forest Service. The
report gives three scenarios—low, medium, and high—to dis-
7
This required duty, to assess market demand for timber, can be seen as
a refinement of the general requirement under NFMA that the Forest Ser-
vice consider timber harvest as one of the goals to be balanced with envi-
ronmental preservation and recreational use.
10098 NATURAL RES. DEF. COUNCIL v. USFS
play a range of future average demand for Tongass timber
during the upcoming decade. The alternate scenarios are pred-
icated on variations in Alaskan timber’s competitiveness,
Alaskan timber’s share of the Japanese market, and Alaskan
mills’ share of the U.S. domestic market.
The 1997 Brooks and Haynes report projected a low sce-
nario of 68 million board feet per year (MMBF/year), a
medium scenario of 110 MMBF/year, and a high scenario of
154 MMBF/year. Prior reports projected nearly double this
demand, but were revised downward due to changed circum-
stances, such as the closing of local pulp mills, a weaker Japa-
nese market, and a decline in Alaska’s competitive position.
The Forest Service misinterpreted the 1997 Brooks and
Haynes market demand projection within the published ROD
and EIS. The Forest Service incorrectly thought that the pro-
jection numbers refer only to “sawlogs suitable for producing
lumber,” when they actually refer to “total National Forest
harvest, including both net sawlog and utility volume.”8
Because of the Forest Service’s error, the ROD and EIS pro-
ject an average market demand for Tongass timber nearly
double that which Brooks and Haynes projected. The pro-
jected demand scenarios used by the ROD and EIS are 130
MMBF/year (low), 212 MMBF/year (medium), and 296
MMBF/year (high).
The ROD and EIS examined ten alternatives in detail. The
Forest Service adopted Alternative 119 because it “best
8
“Sawlog” is the “portion of a tree that is suitable in size and quality for
the production of dimension lumber, collectively known as sawtimber.”
“Utility volume” refers to other types of wood. A figure that included only
demand for “sawlog” would therefore be significantly less than a figure
that included demand for both “sawlog” and “utility volume.”
9
The ROD originally examined in detail 11 Alternatives, but omitted
Alternative 8 from detailed consideration because of its similarity to Alter-
native 1 in environmental effect. However, the Forest Service retained the
same numbering system, hence the tenth alternative considered is called
Alternative 11.
NATURAL RES. DEF. COUNCIL v. USFS 10099
responds to multiple needs, including ensuring a healthy for-
est habitat and providing a sustainable supply of goods and
services including timber.” Alternative 11 allocates 3.9 mil-
lion acres to development land use designations (LUDs) that
allow logging, and 60% of this allocation (2.4 million acres)
is currently roadless area. Alternative 11 also establishes an
average “Allowable Sale Quantity” (ASQ)10 of 267 MMBF/
year for the next decade.11 Although the ASQ represents a
ceiling on allowable timber sales, the ROD states that “the
public can expect the amount of timber to be offered annually
to vary between 200 MMBF or less and 267 MMBF.”
Regulations in force when the Plan was adopted required
the Forest Service to “maintain viable populations of existing
native and desired non-native vertebrate species in the plan-
ning area.” 36 C.F.R. § 219.19 (2000). The Forest Service
enlisted panels of specialists to rate the degree of risk to
10
The ASQ represents the “upper decadal limit on the amount of timber
that may be offered for sale from suitable timberland on the Tongass
National Forest as part of the regularly scheduled timber sale program.”
The ASQ applies to sawlog and utility log volumes.
11
The ASQ, the development LUD acreage, and the allocated roadless
area acreage for each considered Alternative is as follows:
Alternative ASQ Development LUDs Roadless Area
1 0 .24 million acres .12 million acres
2 463 5.3 million acres 3.6 million acres
3 256 4.4 million acres 2.9 million acres
4 130 5.3 million acres 3.6 million acres
5 122 5.0 million acres 3.3 million acres
6 309 5.0 million acres 3.3 million acres
7 640 8.1 million acres 6.2 million acres
9 549 6.3 million acres 4.7 million acres
10 300 4.4 million acres 2.9 million acres
11 267 3.9 million acres 2.4 million acres
10100 NATURAL RES. DEF. COUNCIL v. USFS
wildlife viability posed by each of the Alternatives assessed
by the ROD and EIS. The level of risk was gauged for several
species by placement into one of five “Outcome” scenarios.12
The Forest Service determined that placement of a species
into Outcomes I or II would always meet the concept of “via-
ble and well distributed” as required by NFMA regulations,
and that placement of a species into Outcome III may, for
some species, sometimes meet the regulatory requirement.13
Thus, the likelihood of maintaining a species’ viability is “ex-
pressed as being greater than the sum of likelihood scores for
Outcomes I and II, but less than the sum of likelihood scores
12
Outcome I indicated that habitat would be “of sufficient quality, distri-
bution, and abundance to allow the species to maintain well distributed,
breeding populations across the Tongass.” Outcome II indicated a similar
result as Outcome I, but with low density populations, and the possibility
of temporary gaps occurring. Outcome III indicated that permanent gaps
in species distribution were likely. Outcome IV indicated that habitat
would allow continued species existence only with strong limitations on
interactions among local populations. Outcome V indicated that habitat
conditions would result in species extinction.
13
The Forest Service, and most panels, initially determined that place-
ment of a species only into Outcomes I and II would indicate a “likelihood
that viable populations will remain distributed across the Forest.” This
conclusion was modified in Appendix N of the EIS, published four months
after the “paper version” of the EIS, wherein the Forest Service deter-
mined that placement of a species into Outcome III may, for some species,
meet the concept of “viable and well distributed” as required by NFMA
regulations.
NRDC takes issue with the Forest Service’s motive for modifying its
standard. We do not; we defer to the Forest Service’s judgment on the
standard used to gauge wildlife viability as it necessarily involves scien-
tific and technical expertise, in the context of predicting how various tim-
ber programs would affect the viability and distribution of species
populations. See Nat’l Wildlife Fed’n v. United States Army Corps of
Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004) (“Where scientific and tech-
nical expertise is necessarily involved in agency decision-making, espe-
cially in the context of prediction . . . , the Supreme Court has held that
a reviewing court must be highly deferential to the judgment of the
agency. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462
U.S. 87, 103 (1983).”).
NATURAL RES. DEF. COUNCIL v. USFS 10101
for Outcomes I, II, and III.”14 The ROD concluded that the
Plan presented an acceptable level of risk to wildlife viability
when balanced against other multiple-use goals, such as “pro-
viding a sustainable supply of goods and services including
timber.”
Pursuant to the 1997 Plan, the Forest Service has autho-
rized new timber sale projects that allow logging in roadless
areas, and which NRDC challenges in this appeal. NRDC
contends that the Forest Service’s admitted error in interpret-
ing the market demand for Tongass timber (1) renders arbi-
trary and capricious the decision to adopt the Plan, (2) renders
arbitrary and capricious the Plan’s conclusion that its risk to
wildlife was acceptable, (3) makes the EIS misleading due to
exaggerated estimates of the Plan’s economic effects, and (4)
makes the range of alternatives considered by the EIS inade-
quate under NEPA because no alternative reflected the actual
market demand. NRDC also argues that the EIS failed to con-
sider the cumulative impacts of State and private logging of
high-volume old-growth forest, which NRDC contends is par-
ticularly important to certain wildlife.
14
The panel results included the following viability ranges:
Species Alt. 1 Alt. 2 Alt. 5 Alt. 9 Alt. 11
Northern 100% >20%, >85%, >10%, >71%,
Goshawk <61% <100% <61% <97%
American >93%, >19%, >66%, >13%, >36%,
Marten <100% <83% <95% <66% <91%
Alexander >94%, >63%, >84%, >48%, >83%,
Archipelago <97% <97% <97% <92% <97%
Wolf
Brown Bear >94%, >49%, >65%, >16%, >68%,
<100% <90% <98% <74% <93%
Widely >69%, >3%, >39%, >0%, >38%
Distributed <96% <18% <92% <9% <82%
Mammals
Endemic >40%, >0%, >10%, >0%, >18%
Mammals <71% <8% <55% <8% <55%
10102 NATURAL RES. DEF. COUNCIL v. USFS
The district court bifurcated the merits of the case from the
relief. The district court issued first a tentative decision, and
after receiving objections and comment, a final decision in
favor of the government Appellees because the district court
concluded that the market demand report “was not significant
to the planning process” and that “the Forest Service did not
rely on the [market demand] report.”15 The district court also
ruled against NRDC’s NEPA claims, stating that “the Gov-
ernment adequately considered the range of alternatives and
adequately justified its decisions.”
During litigation in district court, the Forest Service
announced its intent to begin construction of a road into a
roadless area pursuant to one of the Plan’s authorized timber
sales. NRDC sought a preliminary injunction and an injunc-
tion pending appeal in the district court, which the district
court denied. NRDC then sought an injunction pending appeal
in the Ninth Circuit, which was granted by a motions panel
because “NRDC has shown a likelihood of success on the
merits” and because the planned timber sale “will cause irrep-
arable injury.” Order at 2-3 (filed Oct. 18, 2004) (per curiam).16
II
We must first determine whether we have jurisdiction to
review the 1997 Revision to the Tongass Land Management
Plan. In 2003, Congress passed the Omnibus Appropriations
Act, Pub. L. 108-7 (Feb. 20, 2003), stating in part that:
The Record of Decision for the 2003 Supplemental
15
The district court concluded that the “short-term projections were
irrelevant to the long-term, programmatic goals of the revised [Tongass
Plan]” and that “the uncertainty of the projections” undermined the market
demand report’s utility.
16
The motions panel included Judges Kleinfeld, Tashima, and Gould.
Judge Kleinfeld dissented from the order granting an injunction pending
appeal.
NATURAL RES. DEF. COUNCIL v. USFS 10103
Environmental Impact Statement for the 1997 Ton-
gass Land Management Plan shall not be reviewed
under any Forest Service administrative appeal pro-
cess, and its adequacy shall not be subject to judicial
review by any court of the United States.
149 Cong. Rec. H707-01, H779 (2003). The 2003 Supple-
mental Environmental Impact Statement (SEIS) was a
response to a court order holding that the 1997 ROD violated
NEPA and NFMA because it failed to consider in the EIS
alternatives that would have recommended more wilderness
areas on the Tongass. Sierra Club v. Rey, J00-009 (D. Alaska,
Order of Mar. 30, 2001).
[1] After completing the court-ordered SEIS, the Forest
Service issued a ROD adopting Alternative 1, the “No-Action
Alternative,” which represented “the 1997 Forest Plan Revi-
sion land allocations and standards and guidelines.” The 2003
ROD thus recommended the creation of no wilderness areas
on the Tongass, other than those already recommended by the
1997 Plan. By its terms, section 335 of the 2003 Appropria-
tions Act precludes judicial review of the 2003 ROD.
[2] The government Appellees argue that Congress under-
stood that the 2003 ROD adopted or readopted the entire Ton-
gass Plan, and that Congress intended to insulate the entire
1997 Plan from judicial review. We are not persuaded. The
2003 Appropriations Act does not by its terms clearly pre-
clude judicial review of challenges to the 1997 Plan. See Rob-
ertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992)
(“Congress . . . may amend a substantive law in an appropria-
tions statute, as long as it does so clearly.”).
The 2003 ROD and SEIS were the Forest Service’s
response to a court order to reassess only the wilderness com-
ponent of the 1997 Plan. As the SEIS explains: “The purpose
and need for this SEIS is, therefore, narrow in focus and has
been developed to specifically respond to the March 2001
10104 NATURAL RES. DEF. COUNCIL v. USFS
Court order.” There is no indication that the Forest Service
intended the 2003 court-ordered response to be an entirely
new plan, or that it readopted the 1997 Plan;17 there is, how-
ever, unambiguous language indicating that the SEIS was lim-
ited in scope:
As indicated by the U.S. District Court for Alaska,
there is a need to evaluate roadless areas in the Ton-
gass National Forest and consider them for wilder-
ness recommendations; therefore, this SEIS focuses
on new wilderness recommendations. The alterna-
tives discussed below reflect this focus. The SEIS
does not consider land allocation options, such as
changing current non-development LUDs to devel-
opment LUDs. Also, it does not explore new bio-
diveristy or conservation biology strategies, nor
represent a totally new Forest Plan Revision.
We conclude that the 2003 ROD adopted only the 2003 SEIS,
and was intended to address only the wilderness element of
the 1997 Plan.18
[3] Because Congress precluded judicial review of only the
2003 ROD reassessing the wilderness recommendations of
the 1997 ROD, and not the entire 1997 Plan, and because
NRDC challenges the adequacy of the 1997 Plan, we hold
that Congress has not stripped us of our jurisdiction under 28
17
We note that NFMA allows only the “approval,” “amendment,” or
“revision” of a forest plan, and not the “readoption” of a forest plan. See
16 U.S.C. § 1604(f)(4)-(5).
18
The legislative history confirms this limited intent: “The conference
agreement retains language proposed in section 329 of the Senate bill lim-
iting review of certain elements in the land management plan for the Ton-
gass National Forest.” H.R. Conf. Rep. No. 108-10, at 1032 (2003); 149
Cong. Rec. S340-05, at S588 (daily ed. Jan 15, 2003) (Senate report sub-
mitted by Sen. Stevens) (“Limits the review of certain aspects of the Ton-
gass Land Management Plan.”).
NATURAL RES. DEF. COUNCIL v. USFS 10105
U.S.C. § 1291 to review the final decision and judgment of
the district court dismissing NRDC’s claims.19
III
[4] Having determined that we have jurisdiction to decide
the merits of NRDC’s appeal, we next must determine
whether the Forest Service’s admitted misinterpretation of
market demand for Tongass timber was a clear error of judg-
ment that renders the 1997 ROD arbitrary and capricious, in
violation of the APA.20 Under the APA, the Forest Service’s
decision must be based on “a consideration of relevant fac-
tors” and we assess whether there has been “a clear error of
judgment.” Gifford Pinchot Task Force v. United States Fish
& Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). A
“clear error of judgment” sufficient to be arbitrary and capri-
cious agency action exists when “the agency offer[s] an
explanation that runs counter to the evidence before the agen-
cy.” Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003),
amended by 352 F.3d 1186. The Forest Service must “state a
rational connection between the facts found and the decision
made.” Gifford Pinchot Task Force, 378 F.3d at 1065.
19
Alternatively, even if Congress intended in the 2003 Appropriations
Act to preclude judicial review of the entire 1997 Plan, we would retain
jurisdiction over NRDC’s appeal because appropriations acts are generally
only “in force during the fiscal year of the appropriation and do not work
a permanent change in the substantive law.” Seattle Audubon Soc’y v.
Evans, 952 F.2d 297, 304 (9th Cir. 1991) (holding that a rider that limited
judicial review of national forest management plans expired at the end of
the appropriation year). To rebut this presumption takes a clear statement
of “futurity,” such as “hereafter.” See Atl. Fish Spotters Ass’n v. Evans,
321 F.3d 220, 224-25 (1st Cir. 2003); Bldg. & Constr. Trades Dep’t, AFL-
CIO v. Martin, 961 F.2d 269, 273-74 (D.C. Cir. 1992).
20
Our review of agency action is governed by the APA; we will set
aside only agency actions that are “arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);
Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir. 1993). Our
review is narrow, but searching and careful. Marsh v. Or. Natural Res.
Council, 490 U.S. 360, 378 (1989).
10106 NATURAL RES. DEF. COUNCIL v. USFS
A
Under the TTRA, the Forest Service must “seek to provide
a supply of timber from the Tongass National Forest which
(1) meets the annual market demand for timber from such for-
est and (2) meets the market demand from such forest for
each planning cycle.” 16 U.S.C. § 539d(a). The Forest Service
sought to satisfy its obligations under the TTRA by consider-
ing market demand for Tongass timber and by seeking to
meet that demand. The Forest Service first used the Brooks
and Haynes report to assess market demand. Then, in its list
of goals and objectives, the ROD stated that the Forest Ser-
vice “will seek to provide a timber supply sufficient to meet
the annual market demand for Tongass National Forest timber
and the market demand for the planning cycle.” The ROD
thus preferred alternatives that “have a timber program poten-
tial (Allowable Sale Quantity) that allows flexibility to
respond to changing needs within the timber industry, as
reflected in the most recent demand study (see Final EIS,
Appendix M), and are responsive to communities dependent
upon timber harvesting.”
The three scenarios of average annual demand for Tongass
timber for the next decade “reflected in the most recent
demand study” were: 68 MMBF/year (low), 110 MMBF/year
(medium), and 154 MMBF/year (high). The Forest Service,
however, interpreted the Brooks and Haynes report to apply
only to sawlogs. Because “[t]he ASQ for the Forest Plan and
the annual timber sale program on the Tongass include both
sawlogs and other types of wood,” the ROD’s three scenarios
for projected average market demand were: 130 MMBF/year,
212 MMBF/year, and 296 MMBF/year. The Forest Service
used its doubled market demand figures, instead of the Brooks
and Haynes figures, to gauge the relative desirability of each
of the proposed Alternatives. Accordingly, the ROD adopted
Alternative 11, with its average annual ASQ of 267.2 MMBF/
year.
NATURAL RES. DEF. COUNCIL v. USFS 10107
The ROD explained:
Demand. Research scientists at the Pacific North-
west (PNW) Station have recently completed new
projections of demand for timber from the Tongass
National Forest. The new projections include a
medium projection that averages 110 MMBF per
year over the next decade and low and high projec-
tions that average 68 and 154 MMBF per year,
respectively, over the same time period. . . .
The projected demand is for sawlogs suitable for
producing lumber in Southeast Alaska mills. The
ASQ for the Forest Plan and the annual timber sale
program on the Tongass include both sawlogs and
other types of wood. Over the past ten years, about
52 percent of the timber volume harvested on the
Tongass has gone to Southeast Alaska sawmills. If
this ratio continues into the future, the ASQ needed
to satisfy the medium demand projection of demand
would be about 212 MMBF per year. Under the
same assumption, the ASQ needed to satisfy the low
and high projections of demand would be about 130
and 296 MMBF per year respectively. These num-
bers can be compared with the actual ASQ, which
averages 267 MMBF per year over the next decade.
[5] The Forest Service concedes that it made a mistake in
interpreting the 1997 Brooks and Haynes report, which actu-
ally accounted for both sawlogs and other types of wood, and
that its mistake doubled the demand projection scenarios.
Because the Forest Service linked the selected ASQ to the sat-
isfaction of the projected market demand scenarios, the Forest
Service’s explanation “runs counter to the evidence before the
agency.” Sierra Club, 346 F.3d at 961.
B
The Forest Service argues, and the district court held, that
the market-demand error was harmless because the projec-
10108 NATURAL RES. DEF. COUNCIL v. USFS
tions were not significant to the Regional Forester’s decision
choice among the Plan Alternatives. We disagree.
The role of harmless error in the context of agency review
is constrained. Gifford Pinchot, 378 F.3d at 1071. We have
stated that the “doctrine may be employed only when a mis-
take of the administrative body is one that clearly had no
bearing on the procedure used or the substance of decision
reached.” Id. (internal quotation marks omitted). The Forest
Service bears the burden of demonstrating harmlessness. Id.
[6] The Forest Service has not met its burden. The ROD is
clear: “We will seek to provide a timber supply sufficient to
meet the annual market demand for Tongass National Forest
timber and the market demand for the planning cycle.” We
hold that the market-demand error was not harmless because
the TTRA specifically requires the Forest Service to consider
market demand for Tongass timber, and because the record
shows that the Forest Service did seek to meet the annual
market demand and plan-cycle market demand for timber,
albeit mistakenly. In other words, we hold that the Forest Ser-
vice’s mistake had some bearing on the substance of the For-
est Service’s decision to adopt Alternative 11, with its ASQ
of 267 MMBF/year.
[7] We have said that a “[p]roper determination of the
ASQ, perhaps more than any other element of forest-wide
planning, is critical in providing ‘long-term direction.’ ”
Resources Ltd., 35 F.3d at 1305. Here, the Forest Service
linked its preferred ASQ to its mistaken view of market
demand, stating that a certain ASQ would be “needed to satis-
fy” the various market demand projection scenarios, and that
the market demand projections “can be compared with the
actual ASQ, which averages 267 MMBF per year over the
next decade.”
Common sense, as well as the record, tells us that the For-
est Service’s assessment of market demand was important for
NATURAL RES. DEF. COUNCIL v. USFS 10109
its determination through the ASQ of how much timber is
allowed to be cut. Given the competing goals to be accommo-
dated under NFMA, it is clear that trees are not to be cut nor
forests leveled for no purpose. If market demand exists for
timber, the need for timber harvest may outweigh the compet-
ing goals for environmental preservation and recreational use.
But if the demand for timber was mistakenly exaggerated, it
follows that the timber harvest goal may have been given pre-
cedence over the competing environmental and recreational
goals without justification sufficient to support the agency’s
balancing of these goals.
The ROD noted that a “key factor” in the decision to adopt
Alternative 11, as “a matter of finding a balance, within a
multiple-use context,” was “not foreclosing options for the
future that changes in public needs, economic conditions, or
new technologies may bring.” Thus, the ROD rejected Alter-
natives 4 and 5 because they “do not have a timber program
that would be adaptable to changing demands”21 and preferred
Alternatives 2, 3, 6, 10, and 11 because they “have a timber
program potential (Allowable Sale Quantity) that allows flexi-
bility to respond to changing needs within the timber industry,
as reflected in the most recent demand study (see Final EIS,
Appendix M), and are responsive to communities dependent
upon timber harvesting.”
[8] The ROD’s reasoning suggests to us that the “changing
needs within the timber industry” are reflected in the low-to-
high market demand scenarios set forth in the Brooks and
Haynes report and incorporated by the Forest Service into the
ROD and EIS. Accordingly, we hold that the Forest Service’s
21
In the Plan’s Appendix L, containing public comments and Forest Ser-
vice responses, the Forest Service expressly rejected suggestions for a
lower ASQ because they would not enable the Forest Service to “meet the
provision in the Tongass Timber Reform Act to seek to supply timber
which meets the annual market demand for timber (consistent with provid-
ing for the multiple use and sustained yield of all renewable forest
resources).”
10110 NATURAL RES. DEF. COUNCIL v. USFS
market-demand error affected the Forest Service’s assessment
of alternatives and its decision to choose Alternative 11.
The Forest Service argues that the ASQ is a ceiling on
allowable timber sales that is unrelated to market demand pro-
jections. Although the ASQ represents a ceiling, the ROD’s
rationale clearly links the ASQ to the projected market
demand. See discussion supra Part III.A.1. Reason and logic
also support this linkage. A ceiling too low to satisfy demand
could compromise one of NFMA’s multiple-use goals (timber
harvest) without justification in this record.22 Likewise, a ceil-
ing higher than needed to satisfy demand, could compromise
another of NFMA’s multiple-use goals (environmental preser-
vation) without justification in this record. Moreover, even if
the Forest Service would have adopted an ASQ greater than
the high market demand scenario to allow flexibility to
respond to changes in market demand,23 it is impossible to tell
how much greater the ASQ would need to be, or to what
extent other alternatives might have been considered in detail,
in relation to the actual market demand. See Alaska Wilder-
ness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723,
730 (“While we cannot predict what impact the elimination of
the APC contract will have on the Forest Service’s ultimate
22
We do not suggest that an ASQ can never be too low to satisfy market
demand, or that the Forest Service must in fact meet demand (as opposed
to seek to meet market demand). Here, however, the record shows that the
Forest Service preferred the ASQ that it believed best balanced NFMA’s
three multiple-use goals: recreation, environmental protection, and timber
harvest. The Forest Service acted arbitrarily because it fundamentally mis-
understood one leg of this tripodal balance, believing its scenarios of pro-
jected market demand, pertinent to the timber harvest goal, to be double
the actual amount of demand.
23
As it stands in the ROD, the chosen ASQ of 267 MMBF/year lies
between the medium (212) and high (296) market demand scenarios pro-
jected by the Forest Service. If this ratio holds, based on the correct mar-
ket demand projection scenarios, the Forest Service would have had
flexibility to respond to changing demand with an ASQ of 139 MMBF/
year (situated between the actual medium (110) and high (154) market
demand scenarios).
NATURAL RES. DEF. COUNCIL v. USFS 10111
land use decisions, clearly it affects the range of alternatives
to be considered.”).
The government Appellees also argue that the TTRA’s
market demand provisions are hortatory and envision “not an
inflexible harvest level, but a balancing of the market, the
law, and other uses, including preservation.” Alaska Wilder-
ness, 67 F.3d at 731. As our precedent indicates, the TTRA
gives flexibility to the Forest Service “to choose among vari-
ous site-specific plans, provided it follows the procedural
requirements of the applicable statutes.” Id. This does not
mean, as the Appellees argue, that the responsibility reflected
in the TTRA applies only at the project level. To give the
TTRA such a meaning would essentially negate that portion
of the statute that seeks to meet the market demand for Ton-
gass timber “for each planning cycle.” See 16 U.S.C.
§ 539d(a)(2). Moreover, even if hortatory, to satisfy the
TTRA’s earnest admonishment requires the Forest Service to
at least consider market demand and seek to meet market
demand. And this the Forest Service attempted to do, using its
own economists’ projections of the annual and plan-cycle
market demands for Tongass timber for the life of the Plan.
Yet in its attempt, the Forest Service committed a clear error
of judgment, and the Forest Service has not met its burden to
show that its error “clearly had no bearing . . . on the sub-
stance of the decision reached.”24 See Gifford Pinchot, 378
F.3d at 1071.
24
The Forest Service suggests that the TTRA’s qualifying language,
stating that the Forest Service must seek to meet market demand only “to
the extent consistent with providing for the multiple use and sustained
yield of all renewable forest resources,” 16 U.S.C. § 539d(a), means that
its mistake must be harmless because market demand considerations come
into play only after NFMA’s mandatory provisions are satisfied. Here,
however, the Forest Service considered market demand in balancing
NFMA’s multiple-use goals and in assessing the various Alternatives, but
misinterpreted the relevant data. The Forest Service’s error on demand had
a bearing on its analysis, and is not harmless under our precedent. See Gif-
ford Pinchot, 378 F.3d at 1071.
10112 NATURAL RES. DEF. COUNCIL v. USFS
C
Because the Forest Service’s “explanation [of its market
demand projections] runs counter to the evidence before the
[A]gency,” we hold that the Plan was based in part on a clear
error of judgment. See Sierra Club, 346 F.3d at 961. The For-
est Service cannot “state a rational connection between [the
proper market demand projection] found and its decision [to
select an ASQ of 267 MMBF/year].” See Gifford Pinchot,
378 F.3d at 1065.
[9] Because the law requires a market demand assessment
for the Tongass Land Management Plan, and the Forest Ser-
vice tried, but failed, to comply properly with this require-
ment, we hold that the mistaken interpretation of the Brooks
and Haynes projections was not harmless. The Forest Service
has not met its burden of showing that its misinterpretation of
the 1997 Brooks and Haynes report “clearly had no bearing
on the . . . substance of the decision” to choose Alternative 11,
and so we reverse the district court. See id. at 1071 (emphases
omitted).25
IV
We next address the NEPA arguments raised by NRDC
challenging the Forest Service’s EIS. Although the Forest
Service’s market-demand error requires it to make a new
revised forest plan for the Tongass, it does not render moot
our consideration of the NEPA issues presented to us, which
are integrally intertwined with the error of judgment that ren-
dered the Plan arbitrary and capricious. Our assessment of the
NEPA issues presented by NRDC is necessary to ensure that
25
Because we reverse the district court and hold the Plan invalid on the
above ground relating to the Forest Service’s error on market demand, we
need not address NRDC’s further argument that the Forest Service’s con-
clusion that timber goals justified the Plan’s risks to wildlife was arbitrary
and capricious.’
NATURAL RES. DEF. COUNCIL v. USFS 10113
the Forest Service prepares a lawful EIS for the new Tongass
Land Management Plan that is required by our decision today.26
Resolution of the NEPA issues raised by this appeal is also
appropriate to clarify the requirements of NEPA that the For-
est Service was bound to follow in its prior EIS. Accordingly,
we next consider whether the process used by the Forest Ser-
vice in adopting the Plan complied with NEPA.27
NEPA requires “that federal agencies carefully weigh envi-
ronmental considerations and consider potential alternatives
to the proposed action before the government launches any
major federal action.” Lands Council, 395 F.3d at 1026.
NEPA’s procedural requirements require federal agencies to
26
Although the law requires an EIS for every federal action that has a
significant impact on the environment, 42 U.S.C. § 4332(2)(c), NEPA’s
procedures do not apply to agency actions that “maintain the environmen-
tal status quo.” Kootenai Tribe v. Veneman, 313 F.3d 1094, 1114 (9th Cir.
2002). After the Forest Service discovered the market demand error, it
concluded that a supplemental EIS was not necessary. In 2003, in response
to a court order directing the Forest Service to consider recommending
more wilderness area in the Tongass Plan, the Forest Service issued the
ROD selecting the “No Action” Alternative, which represented the Plan’s
original land allocations. The 2003 ROD did not require an EIS because
it maintained that environmental status quo. Our holdings today make
clear that the Forest Service will need to prepare a new EIS because the
prior EIS did not satisfy NEPA’s requirements.
27
We review de novo a district court’s legal determinations that an
agency complied with NEPA and that the EIS is adequate. See Churchill
County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001), amended by 282
F.3d 1055 (9th Cir. 2002). We review NEPA claims under the APA and
will set aside agency actions that are adopted “without observance of pro-
cedure required by law.” 5 U.S.C. § 706(2)(D); Ctr. for Biological Diver-
sity v. United States Forest Serv., 349 F.3d 1157, 1165 (9th Cir. 2003). We
apply a “rule of reason” standard when reviewing the adequacy of an
agency’s EIS, asking “whether an EIS contains a reasonably thorough dis-
cussion of the significant aspects of the probable environmental conse-
quences.” Churchill County, 276 F.3d at 1071. Under this standard, we
make “a pragmatic judgment whether the EIS’s form, content and prepara-
tion foster both informed decision-making and informed public participa-
tion. Id.
10114 NATURAL RES. DEF. COUNCIL v. USFS
“take a ‘hard look’ at environmental consequences.” Id. at
1027 (quoting Earth Island Inst. v. United States Forest Serv.,
351 F.3d 1291, 1300 (9th Cir. 2003)).
NRDC contends that the EIS is inadequate in three
respects: (1) by inflating the market demand for Tongass tim-
ber, the EIS presents misleading information on the economic
effects of the plan; (2) the EIS examines an inadequate range
of alternatives because it fails to examine alternatives that
would maximize preservation of currently roadless areas,
while having an ASQ adequate to meet projected market
demand; and (3) the EIS fails to disclose and consider the
cumulative effects of logging of high-volume old growth for-
est on non-federal lands. We address these contentions in
turn.
A
We first consider whether the inflated assessment of market
demand by the Forest Service led it to present misleading
information in the EIS.
[10] NEPA requires federal agencies to examine the envi-
ronmental effects of a proposed project and, for those actions
that will significantly affect the environment, to inform the
public in an EIS of the relevant factors that were considered
in the decision-making process. See 42 U.S.C. § 4332(2)(C);
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc.,
462 U.S. 87, 97 (1983). NEPA is a procedural statute; NEPA
does not force an agency to choose the most environmentally
sound alternative, but it does ensure that agency action is
“fully informed and well considered.” Vt. Yankee Nuclear
Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,
558 (1978).
“Where the information in the initial EIS was so incom-
plete or misleading that the decisionmaker and the public
could not make an informed comparison of the alternatives,
NATURAL RES. DEF. COUNCIL v. USFS 10115
revision of an EIS may be necessary to provide a reasonable,
good faith, and objective presentation of the subjects required
by NEPA.” Animal Def. Council v. Hodel, 840 F.2d 1432,
1439 (9th Cir. 1988), amended by 867 F.2d 1244 (9th Cir.
1989) (internal quotation marks omitted). NRDC contends
that the economic information in the EIS for the Tongass Plan
was misleading because it was based on mistaken market
demand projections that inflated the economic benefits and
discounted the environmental impacts of the Plan.
[11] The Fourth Circuit has held that there was a NEPA
violation where an EIS inflated the economic benefits of a
proposed plan. Hughes River Watershed Conservancy v.
Glickman, 81 F.3d 437, 446-48 (4th Cir. 1996). Inaccurate
economic information may defeat the purpose of an EIS by
“impairing the agency’s consideration of the adverse environ-
mental effects” and by “skewing the public’s evaluation” of
the proposed agency action. Id. at 446; see also Nat’l Wildlife
Fed’n v. Nat’l Marine Fisheries Serv., 235 F. Supp. 2d 1143,
1157 (W.D. Wash. 2002) (“An EIS that relies upon mislead-
ing economic information may violate NEPA if the errors
subvert NEPA’s purpose of providing decisionmakers and the
public an accurate assessment upon which to evaluate the pro-
posed project.”).
[12] We hold that here the market-demand error was suffi-
ciently significant that it subverted NEPA’s purpose of pro-
viding decision makers and the public with an accurate
assessment of the information relevant to evaluate the Ton-
gass Plan. Throughout the EIS, calculations of the projected
employment effects of the Plan are based on the Forest Ser-
vice’s mistaken interpretation of the Brooks and Haynes
report. The EIS states that the “approach used by Brooks and
Haynes is representative and is used in this analysis as a base-
line projection for use in comparing expected employment
levels under different planning alternatives.” The EIS uses the
mistaken medium demand scenario of 212 MMBF/year to
predict the employment and earnings potential of each consid-
10116 NATURAL RES. DEF. COUNCIL v. USFS
ered alternative. Had the decision makers and public known
of the accurate demand forecast for Tongass timber, and the
concomitant lower employment and earnings potential, the
Forest Service may have selected an alternative with less
adverse environmental impact, in less environmentally-
sensitive areas. Presenting accurate market demand informa-
tion was necessary to ensure a well-informed and reasoned
decision, both of which are procedural requirements under
NEPA. See, e.g., Vt. Yankee Nuclear Power Corp., 435 U.S.
at 558.
The Forest Service argues that because the final EIS was
fully developed and printed before the 1997 Brooks and
Haynes report was received, the EIS analysis was complete
and gave a basis for an informed comparison. We reject the
Forest Service’s argument because it is contrary to the evi-
dence. The updated Brooks and Haynes projection scenarios
were incorporated into the final EIS through an “Errata” that
identified errors and updated the initial “paper version” of the
EIS. The Errata replaces the tables comparing employment
and business earnings predictions used in the paper EIS with
new tables of economic predictions based upon the Forest
Service’s erroneous interpretation of the Brooks and Haynes
report. The Forest Service’s final decision was made after it
relied upon its incorrect market demand assessment.
The Forest Service also contends that it adequately and cor-
rectly considered the updated Brooks and Haynes market
demand report in Appendix M, which the Forest Service
argues reasonably concluded that a supplemental EIS was not
required to address the substantial change in market condi-
tions. This contention, however, is unsupported by the record.
Appendix M discusses the 1997 Brooks and Haynes report,
and gives a correct interpretation of its projected scenarios,
but Appendix M fails to mention or correct the error made in
the economics section of the EIS. Similarly, Appendix M fails
to conduct a new analysis of employment and earnings pre-
dictions in light of the updated 1997 Brooks and Haynes
NATURAL RES. DEF. COUNCIL v. USFS 10117
report. Appendix M does not cure the misleading economic
information presented to decision makers and the public in the
EIS.
Finally, the Forest Service argues that because Appendix M
asserted that “short-term demand information is not signifi-
cant to the choice of alternatives” the economic information
presented in the EIS was not misleading. The Forest Service
also suggests in Appendix M that the Brooks and Haynes
report was unreliable and insignificant. The Forest Service’s
argument does not persuade us. In the EIS, the Forest Service
refers to the market demand projections in the 1997 Brooks
and Haynes report, which demand was misinterpreted and
doubled by the agency, as “the most reliable and defensible
estimates” because of the report’s methodology.28 The EIS
presented to decision makers and to the public a comparison
of alternatives based on an economic forecast that relies on a
flawed view of the market demand for Tongass timber. Thus,
we conclude that short-term market demand was significant
because the Forest Service presented and relied on the mis-
construed demand information to predict the Plan’s economic
effects.
28
The ROD’s reliance on the market demand projections is made more
clear by the Forest Service’s multiple references to the Brooks & Haynes
report in responding to public comments in Appendix L. For example, the
Forest Service responded to criticism of a “[l]ack of ‘genuine’ timber
demand study” by noting the several research projects it had undertaken
and concluding that “[a]fter review of the findings of each of the[ ]
studies, we have elected to utilize the predictions made by Brooks and
Haynes.”
Indeed, in previous court documents, the Forest Service argued for the
importance of the Brooks and Haynes projection numbers: “A major effort
in [seeking to meet market demand] is the preparation of demand reports
by economists Haynes and Brooks of the Pacific Northwest Forest and
Range Experiment Station.” U.S. Forest Service Opposition to Summary
Judgment in Alaska Forest Ass’n v. U.S. Forest Serv., J99-013-CV (JKS)
(D. Alaska 2000)).
10118 NATURAL RES. DEF. COUNCIL v. USFS
[13] We conclude that the Forest Service presented mis-
leading economic effects of the Plan significant to its evalua-
tion of alternatives considered by the Plan, and the public was
similarly misled in its opportunity for comment. We hold that
the Forest Service violated NEPA’s procedural requirement to
present complete and accurate information to decision makers
and to the public to allow an informed comparison of the
alternatives considered in the EIS. See Animal Def. Council,
840 F.2d at 1439; see also Hughes River Watershed Conser-
vancy, 81 F.3d at 446.
B
We next consider whether the alternatives explored by the
Forest Service were inadequate.
[14] NEPA requires agencies to “rigorously explore and
objectively evaluate all reasonable alternatives” to a proposed
plan of action that has significant environmental effects. 40
C.F.R. § 1502.14(a) (2000). This is “the heart” of an EIS. City
of Carmel-by-the-Sea v. United States Dep’t of Transp., 123
F.3d 1142, 1155 (9th Cir. 1997). “The existence of a viable
but unexamined alternative renders an environmental impact
statement inadequate.” Citizens for a Better Henderson v.
Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985); see also 36
C.F.R. § 219.12(f)(1) (2000) (“Alternatives shall be distrib-
uted between the minimum resource potential and the maxi-
mum resource potential to reflect to the extent practicable the
full range of major commodity and environmental resource
uses and values that could be produced from the forest.”).
NRDC contends that the Forest Service failed to consider
alternatives that would have a timber program potential suffi-
cient to meet or exceed market demand projections, while
protecting more intact habitat, notably habitat in high-volume
stands of old growth forest.
Many considerations went into the development and evalu-
ation of each alternative, including the level of wildlife habitat
NATURAL RES. DEF. COUNCIL v. USFS 10119
protection and the level of contribution to the local and
regional economies of southeast Alaska. We have held that
where changed circumstances affect the factors relevant to the
development and evaluation of alternatives, the Forest Service
must account for such change in the alternatives it considers.
See Alaska Wilderness, 67 F.3d at 730-31 (“While we cannot
predict what impact the elimination of the [long-term] con-
tract will have on the Forest Service’s ultimate land use deci-
sions, clearly it affects the range of alternatives to be
considered.”). Here, the Forest Service’s discovery of its error
in interpreting the Brooks and Haynes report affected the eco-
nomic and wildlife factors that the Forest Service used in
developing and evaluating the alternatives considered in
detail. See discussion supra Parts III.B and IV.A.
Specifically, the EIS considered ten alternatives with an
ASQ ranging from 0 (Alternative 1, the no logging alterna-
tive) to 640 MMBF/year (Alternative 7), and chose Alterna-
tive 11, which had an ASQ of 267 MMBF/year. The ASQ for
Alternative 11 lies between the medium and high demand sce-
narios, as incorrectly interpreted by the Forest Service in the
ROD and EIS. An analogous ASQ based on the correct mar-
ket demand projection would be around 139 MMBF/year.
Supra note 23. The EIS considered two alternatives (4 and 5)
with an ASQ situated between the actual medium and high
demand scenarios, but rejected both in part because “Alterna-
tives 4 and 5 (in addition to Alternative 1) do not have a tim-
ber program that would be adaptable to changing demands or
new technologies and would be more likely to adversely
affect communities whose primary employment comes from
timber harvesting.”
[15] Because the EIS did not examine the viable alternative
of setting the ASQ equal to any of the three correct market
demand scenarios for Tongass timber, and in light of the
TTRA’s requirement to seek to meet market demand and the
Forest Service’s awareness of its misinterpretation of the
Brooks and Haynes report, we hold that the EIS is inadequate
10120 NATURAL RES. DEF. COUNCIL v. USFS
in its consideration of alternatives, violating NEPA. See
Alaska Wilderness, 67 F.3d at 730-31.
Equally important, each of the ten alternatives considered
in the EIS allocate some currently roadless areas to LUDs that
allow development. The allocations range from .12 million
acres (Alternative 1) to 6.2 million acres (Alternative 7). If the
no logging alternative (Alternative 1) were excluded, the
range of roadless allocation considered by the alternatives is
2.4 to 6.2 million acres. Alternative 11 allocates 2.4 million
acres of roadless area to development. As a percentage of
total development LUD acreage, no alternative allocates less
than 50% to currently roadless areas. Because the range of
alternatives considered by the EIS omits the viable alternative
of allocating less unspoiled area to development LUDs, we
hold that the EIS is inadequate, in violation of NEPA. See Cit-
izens for a Better Henderson, 768 F.2d at 1057; see also Cali-
fornia v. Block, 690 F.2d 753, 767-68 (9th Cir. 1982).
C
We finally consider whether the EIS properly gauged the
cumulative effects of logging of high-volume old growth for-
est on non-federal lands.
[16] NEPA requires an agency to consider the environmen-
tal impact that “results from the incremental impact of the
action when added to other past, present and reasonably fore-
seeable actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions.” Muckle-
shoot Indian Tribe v. United States Forest Serv., 177 F.3d
800, 809 (9th Cir. 1999) (per curiam) (quoting 40 C.F.R.
§ 1508.7). An EIS must include a “useful analysis of the
cumulative impacts of past, present and future projects” in
sufficient detail to be “useful to the decisionmaker in deciding
whether, or how, to alter the program to lessen cumulative
impacts.” Id. at 810 (quoting Carmel-by-the-Sea, 123 F.3d at
1160). The Forest Service in the EIS must at a minimum pro-
NATURAL RES. DEF. COUNCIL v. USFS 10121
vide a “catalog of past projects” and a “discussion of how
those projects (and differences between the projects) have
harmed the environment.” Lands Council, 395 F.3d at 1027.
NRDC contends that the Forest Service failed to disclose the
cumulative impacts of non-federal logging of high-volume
stands on the Tongass.
High-volume old growth forests have a special economic
value for the timber industry and a special habitat value for
wildlife. According to scientists assembled by the Forest Ser-
vice to review independently the conservation measures
related to wildlife habitat for the Tongass, high-volume stands
provide a combination of large living and dead trees,
multiple canopy layers, high-nutrient forage on the
forest floor, good protection from snowfall, and
other important features leading to habitat of high
quality for wildlife adapted to Old Growth. At the
same time, these high volume classes have been,
almost exclusively, the target for past logging in
Southeast Alaska.
The EIS acknowledges that timber harvest “has been con-
centrated in the higher volume classes.” The EIS also notes
that 5% of the Tongass National Forest (about 1 million acres)
is owned by non-federal entities, and that these lands “have
been heavily developed which cumulatively impacts old-
growth forest resources.” However, the EIS does not disclose
the effect of continued “highgrading” of Tongass forest.
Moreover, the EIS does not give detail on whether or how to
lessen the cumulative impact of this practice. See Muckle-
shoot Indian Tribe, 177 F.3d at 810.
[17] We hold that the EIS fails adequately to consider the
cumulative effects of disproportionate high-volume logging
on non-federal land because “there is no catalog of past proj-
ects and no discussion of how those projects (and differences
between the projects) have harmed the environment. . . .
10122 NATURAL RES. DEF. COUNCIL v. USFS
Moreover, there is no discussion of the connection between
individual [non-federal, high-volume] harvests and the prior
environmental harms from those harvests.” See Lands Coun-
cil, 395 F.3d at 1027. The EIS is also inadequate because it
does not assess the potential impacts of reasonably foresee-
able, continued “highgrading” in the future. See Muckleshoot
Indian Tribe, 177 F.3d at 811-12.
The Forest Service argues that the Plan only establishes
guidance for future actions that may have impacts, and that
those impacts will be studied in conjunction with impacts
from past, present, and future actions on both federal and non-
federal land when those future actions are proposed. How-
ever, we held in Resources Limited Inc. v. Robertson, 35 F.3d
1300 (9th Cir. 1993), that “the Forest Service is required to
address cumulative impacts in the EIS,” and “where several
foreseeable similar projects in a geographical region have a
cumulative impact, they should be evaluated in a single EIS.”
Id. at 1305-06. In Thomas v. Peterson, 753 F.2d 754 (9th Cir.
1985), we held that “consideration of cumulative impacts
after [agency action] has already been approved is insufficient
to fulfill the mandate of NEPA. . . . [NEPA’s] purpose
requires that the NEPA process be integrated with agency
planning ‘at the earliest possible time,’ and the purpose can-
not be fully served if consideration of the cumulative effects
of successive, interdependent steps is delayed until the first
step has already been taken.” Id. at 760 (quoting 40 C.F.R.
§ 1501.2).
Here, the record shows that under the Plan, “there is a dis-
proportionate amount of harvesting planned within high-
volume low-elevation stands — areas that also provide critical
wildlife habitat and are the most valuable to several species
of concern.” Species are not impacted by the federal or non-
federal character of the lands over which they are distributed,
but the cumulative effect of “highgrading” on each type of
land may determine whether species will retain viable, well-
distributed populations in the Tongass. Cf. Resources Ltd., 35
NATURAL RES. DEF. COUNCIL v. USFS 10123
F.3d at 1306 (“[O]ne does not need control over private land
to be able to assess the impact that activities on private land
may have in the Forest.”). At least in the particular circum-
stances of this case, the cumulative impacts on wildlife viabil-
ity from continued “highgrading” by non-federal entities, as
well as by the Forest Service to the extent permissible under
NFMA, ought to be considered in a single, programmatic EIS.
See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312-
13 (9th Cir. 1990); see also LaFlamme v. Fed. Energy Regu-
latory Comm., 852 F.2d 389, 401-02 (9th Cir. 1988) (holding
that a cumulative impacts analysis was insufficient where the
agency had examined single projects in isolation because
there were several foreseeable similar projects in a geographi-
cal region that added to the cumulative impacts). A cumula-
tive effects analysis in a programmatic EIS is necessary here
for the Forest Service and public to make a rational evaluation
of this proposed federal action balancing the competing goals
of timber harvest, environmental preservation, and recre-
ational use in the Tongass.
V
We hold that the Forest Service has not met its burden of
showing that its admitted error in interpreting the market
demand report for Tongass timber was harmless, and we
reverse the district court’s final decision and judgment. The
Forest Service’s reliance on an important mistake in fact seri-
ously impaired the rationality of the Forest Service’s judg-
ment and Plan for the Tongass. The Forest Service’s error in
assessing market demand fatally infected its balance of eco-
nomic and environmental considerations, rendering the Plan
for the Tongass arbitrary and capricious in violation of the
APA.
Moreover, the EIS was misleading because it presented as
fact for decision makers and the public twice the market
demand, and economic benefit, attendant to the Plan, violat-
ing NEPA. The EIS also did not consider an adequate range
10124 NATURAL RES. DEF. COUNCIL v. USFS
of alternatives, in light of a correct interpretation of data that
the Forest Service had on market demand projections for Ton-
gass timber, again violating NEPA. Finally the Forest Service
in the EIS did not consider the cumulative impacts of past and
reasonably foreseeable future non-federal logging in high-
volume old growth forest of the Tongass, in further violation
of NEPA.
The law of NFMA requires, and the ROD attempted, a bal-
ance among the multiple uses of our national forest lands,
including timber harvest and environmental preservation;
because a critical part of this balance was interpreted incor-
rectly by the Forest Service, the district court incorrectly ren-
dered its final decision and final judgment in favor of the
government Appellees, dismissing NRDC’s claims.
We keep in place the temporary injunction until a perma-
nent injunction is considered on an appropriate record and is
entered by the district court, reflecting the requirements
imposed by our opinion.29 We REVERSE and REMAND to
29
Before a motions panel, NRDC obtained an injunction pending appeal
of one of the seven timber sales at issue in this case because the sale
would “cause irreparable injury” and because NRDC showed a “likelihood
of success on the merits.” Order at 3-4 (filed Oct. 18, 2004). Intervenors
argue that we should lift the current injunction and bar the lower court
from granting any injunctive relief. In light of our decision, we reject this
argument.
The appropriateness and scope of an injunction “raise intensely factual
issues, and for that reason should be decided in the first instance by the
district court.” Alaska Wilderness, 67 F.3d at 732. Here, the district court
has not yet conducted the relief portion of the case, and so neither NRDC
nor the Forest Service have been able to conduct discovery or submit evi-
dence as to the scope of permanent injunctive relief. Further, NRDC in its
briefing urges that we “should not consider permanent relief at this point.”
Because the record has not been developed in this respect, we retain the
current injunction provisionally and remand to the district court to conduct
such further proceedings as are appropriate, and consistent with this opin-
ion, to address the scope of permanent injunctive relief.
NATURAL RES. DEF. COUNCIL v. USFS 10125
the district court for further proceedings consistent with this
opinion.
REVERSED and REMANDED.