March 20 -- Federal judge Ralph Beistline in Alaska has ruled for the Forest Service in a challenge to the 2008 plan for the Tongass National Forest (In Re Big Thorne Project and 2008 Tongass Forest Plan, 14-13-RRB, D. Alaska).
Claims were brought against the Forest Service for violating NEPA and NFMA and the terms of their own forest plan.
Plaintiffs are the Southeast Alaska Conservation Council, Alaska Wilderness League, National Audubon Society, Natural Resources Defense Council, Sierra Club, Cascadia Wildlands, Center for Biological Diversity, Greater Southeast Alaska Conservation Community, Greenpeace, and The Boat Company.
Joining the Forest Service in opposition are the Alaska Forest Association, the State of Alaska, the city of Craig, and
Viking Lumber Inc.
In response to the Ninth Circuit's decision in Natural Resources Defense Council, et al. v. United States Forest Service, et al., the 1997 Forest Plan was subsequently amended through a Record of Decision (“ROD”) issued on January 23, 2008, ("2008 Forest Plan"). Relevant to the present matter, two local species are identified within the 2008 Forest Plan as management indicator species (“MIS”): the Sitka black-tailed deer (“deer”) and the Alexander Archipelago wolf (“wolf”). Using MIS the 2008 Forest Plan requires the Forest Service to “[p]rovide the abundance and distribution of habitat necessary to maintain viable populations of existing native and desirable introduced species well distributed in the planning area.”
[T]he Court finds that USFS's assessment of the timber market demand, including reliance on the Brackley Report and the Morse methodology, was reasonable and does not render the decision approving the Big Thorne project to be arbitrary and capricious.
Plaintiffs argue that a current wolf population estimate for the area was designated as a "critical need” by USFS in the Big Thorne SIR. However, this indication was with regard to the development of a Wolf Habitat Management Plan under the 2008 Forest Plan, not the Big Thorne project. While beneficial, a Wolf Habitat Management Plan is not required by NEPA, NFMA, or even the 2008 Forest Plan prior to a site-specific project.
[T]he Wolf Task Force conclusions do not undermine USFS's determination that current wolf population estimate was not essential. While part of the Wolf Task Force felt that there was a need for additional information, it only recommended USFS consider actions to reduce the risk until that information was available. Moreover, the Court must uphold an agency’s reasonable decision “even if the administrative record contains evidence for and against its decision.” Differing opinions from individuals in sister agencies or even from within the agency do not require deference from USFS in reaching its final determination, nor do they change the Court's review of the final action. USFS fully considered the various viewpoints from the task force and the draft [supplemental information report (SIR)] before reaching its final decision.
USFS not only identified the incomplete and missing current wolf population estimates, but also provided explanation as to why that information was not considered essential to a reasoned choice among the alternatives in the Big Thorne FEIS. USFS has met the regulatory requirements for incomplete information. Therefore, the Court finds that USFS did not violate section 1502.22 of NEPA.
Wolf population sustainability is only provided for in Standard and Guideline WILD1.XIV.A.2, as discussed above. However, the standard and guideline in paragraph A.2 provides for flexibility and discretion. In providing deer habitat capability, USFS is to first look at whether it is possible to provide for sufficient deer habitat capability to maintain sustainable wolf populations. Then USFS is to consider providing enough deer habitat capability to meet human harvest needs. Additionally, the habitat capability to support 18 deer per square mile represents the required density to meet both sustainable wolf populations and all human harvest needs.
Based on the plain language of the 2008 Forest Plan, the deer habitat capability provision is a guideline to ensure consideration and evaluation of deer habitat needs in USFS’s exercise of discretion, not a bare minimum deer density requirement for all agency actions. This interpretation comports with USFS’s duty to balance conflicting objectives in pursuing its multiple-use mandate under NFMA and the 2008 Forest Plan.
The record reflects that USFS did not disregard or easily dismiss Dr. Person’s statement. On the contrary, project implementation was placed on hold and a task force was convened to thoroughly evaluate the information he raised. The Wolf Task Force acknowledged the concerns raised by Dr. Person, but ultimately concluded that the complex interactions at play in the project area “were evaluated in the USFS EIS and Record of Decision.” Ultimately, USFS utilized a task force and SIR to take a hard look at Dr. Person’s statement and determined that the new impacts he suggested were not significantly different from those already considered, which kept USFS fully compliant with NEPA. The Court finds that USFS’s use of the SIR and determination of no significant new information was appropriate. A SEIS was therefore not required and USFS did not violate NEPA.
The Court finds that the 2008 Forest Plan FEIS did provide sufficient discussion of the impact and effects to the wolf population, including the effects of timber harvest and addressing the cumulative impacts. Additionally, USFS also provided sufficient information and reasonable discussion regarding wolf population viability under the 2008 Forest Plan and was not required to explain how the 2008 Forest Plan would provide for sustainable wolf populations which was not a required agency standard or statutory mandate. The Court finds that the 2008 Forest Plan FEIS discussion was “reasonably thorough” and took the requisite hard look at the environmental consequence consistent with the requirements of NEPA.
Plaintiffs repeatedly draw an incorrect connection between the statutory obligation to preserve a viable wolf population and the deer habitat capability necessary for a sustainable wolf population. As the Court has alluded to earlier in discussing the Big Thorne project, the meaning of a viable population and a sustainable population are distinct and not interchangeable.
In seeking to meet the minimum requirement of viability, the 2008 Forest Plan actually maintains a heightened goal for wolf population: sustainability. Rather than set a minimum floor for the wolf population, the deer habitat capability provision in WILD1.XIV.A.2 sets the high mark for the deer habitat capability USFS wants to meet the needs of wolves and humans alike. The addition of the qualifier “where possible” and inclusion of factors beyond modeling, act to put the plain language of the 2008 Forest Plan in line with the overarching spirit of NFMA. Under the 2008 Forest Plan, the Standard and Guideline WILD1.XIV.A no longer binds USFS to a heightened standard for deer density—that was unattainable, conflicted with competing objectives, and beyond the statutory requirement—but still preserved the agency’s aspirations for future wolf population.
It is clear that Plaintiffs desire the 2008 Forest Plan to include an explicit value for the minimum deer habitat capability necessary to support viability of wolf populations, as well as a numerical value for road density. Indeed, the Court agrees that fixed metrics throughout USFS’s wolf conservation strategy would make future challenges based to timber decisions which impact wolf populations—and their review by the courts—simpler. However, Plaintiffs have not pointed to any specific statutory requirement for such an explicit minimum threshold, nor does this Court find there to be any. This is because “NFMA does not ‘specify precisely how’ the Forest Service must demonstrate that it has met the objectives of the pertinent forest plan. Again, this is congruent with the sort of flexibility necessary to balance the objectives of NFMA.
The Court does not, however, intend for this flexibility to be construed as unenforceability. Agency actions under the 2008 Forest Plan are still subject to evaluation for their impact on wolf population viability and compliance with USFS’s wolf conservation strategy, which do set limits on just how flexible the agency can be. However, in the present case the challenge was for the failure to meet a flexible guideline rather than a statutory requirement. Accordingly, the Court finds that the 2008 Forest Plan does not violate NFMA.