Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding D.C. No. 2:05-cv-00953-MCE-GGH
The opinion of the court was delivered by: W. Fletcher, Circuit Judge:
Argued and Submitted May 10, 2010-San Francisco, California
Before: Stephen Reinhardt, William A. Fletcher and N. Randy Smith, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge N.R. Smith
The national forests of the Sierra Nevada Mountains ("the Sierras") are home to a rich array of fauna, including at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded: "The aquatic/riparian systems are the most altered and impaired habitats in the Sierra."
The Sierra Nevada Forest Plan applies to all of the national forests in the Sierras. In January 2001, the United States Forest Service ("Forest Service") issued a Final Environmental Impact Statement ("2001 EIS") recommending amendments to the Forest Plan. The amendments were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. In January 2001, under the administration of President Clinton, the Forest Service adopted a modified version of the preferred alternative recommended in the 2001 EIS. The parties refer to this as the 2001 Framework.
In November 2001, under the administration of newly elected President Bush, the Chief of the Forest Service asked for a review of the 2001 Framework. In January 2004, the Forest Service issued a Final Supplemental Environmental Impact Statement ("2004 EIS") recommending significant changes to the 2001 Framework. The Forest Service adopted the preferred alternative in the 2004 EIS. The parties refer to this as the 2004 Framework.
Plaintiff-Appellant Pacific Rivers Council ("Pacific Rivers") brought suit in federal district court challenging the 2004 Framework as inconsistent with the National Environmental Protection Act ("NEPA") and the Administrative Procedure Act ("APA"). The gravamen of Pacific Rivers' complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians. On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.
Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service's analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service's analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court.
Stretching along a north-south axis for more than 400 miles, the Sierra Nevada Mountains form one of the longest continuous mountain ranges in the lower 48 states. The Forest Service manages nearly 11.5 million acres of land under the Sierra Nevada Forest Plan. The Forest Plan is a Land and Resource Management Plan ("LRMP") formulated and promulgated pursuant to the National Forest Management Act ("NFMA"). See 16 U.S.C. § 1604. NFMA requires the Forest Service to provide for and to coordinate multiple uses of the national forests, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). An LRMP adopted pursuant to NFMA guides all management decisions within the forests subject to that LRMP. Individual projects are developed according to the guiding principles and management goals expressed in the LRMP. See Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 729-31 (1998).
The Sierra Nevada Forest Plan applies to the eleven national forests that run the length of the Sierras from Southern California to the California-Oregon border - the Sequoia, Inyo, Sierra, Stanislaus, Humboldt-Toiyabe, Eldorado, Tahoe, Plumas, Lassen, and Modoc National Forests, and the Lake Tahoe Basin Management Unit. The area encompassed by the Plan amounts to more than 5% of the total forest land managed by the Forest Service. See http://www.fs.fed.us/r5/sierra/about/ (National Forests encompass 191 million acres). The forests support substantial economic activity, including logging and grazing, as well as recreation. The forests comprise dozens of complex ecosystems. They include iconic natural landmarks such as Mt. Whitney, Mono Lake, Lake Tahoe, and giant sequoia trees.
As part of its mandate to manage the national forests, the Forest Service took major steps in the 1990s to improve the ecological health of the Sierras. In November 1998, the Forest Service published a Notice of Intent to prepare an Environmental Impact Statement ("EIS") analyzing a number of proposed changes to the Sierra Nevada Forest Plan. The Forest Service cited the need to "improve national forest management direction for five broad problems: (1) conservation of old-forest ecosystems, (2) conservation of aquatic, riparian, and meadow ecosystems, (3) increased risk of fire and fuels buildup, (4) introduction of noxious weeds, and (5) sustaining hardwood forests."
In 2000, after nearly a decade of study, the Forest Service proposed a number of changes to the Forest Plan to ensure "the ecological sustainability of the entire Sierra Nevada ecosystem and the communities that depend on it." The Forest Service issued a Draft EIS evaluating eight alternatives for implementing the objectives outlined in the Notice of Intent. Following public comment, scientific review and consultation with other agencies, the Forest Service released a Final EIS in January, 2001.
The 2001 EIS designated the "Modified Alternative 8" as the preferred alternative. In a Record of Decision issued January 12, 2001, the Forest Service adopted this alternative. This is the "2001 Framework."
The Forest Service received over 200 timely administrative appeals. The Chief of the Forest Service, newly appointed by the incoming administration, did not respond directly to the appeals. Rather, he directed the Regional Forester to reevaluate the 2001 Framework with respect to three fire-related issues. First, the Chief directed him "to re-evaluate the decision for possibilities of more flexibility in aggressive fuels treatment." Second, he directed him "to re-evaluate the decision based on possible new information associated with the National Fire Plan," a ten-year strategy developed by Congress, federal agencies, Indian Tribes and western States to restore fire-adapted ecosystem health. Third, he directed him to re-evaluate limitations placed by the 2001 Framework on the Herger-Feinstein Quincy Library Group Forest pilot project dealing with fire prevention.
In December 2001, the Regional Forester appointed an Amendment Review Team. The Regional Forester added non-fire-related issues to the issues identified by the Chief. In addition to the fire-related issues, he asked the Review Team to "identify opportunities" in three areas: first, to "reduce the unintended and adverse impacts [of the 2001 Framework] on grazing permit holders"; second, to "reduce the unintended and adverse impacts [of the 2001 Framework] on recreation users and permit holders"; and, third, to "reduce the unintended and adverse impacts [of the 2001 Framework] on local communities."
In June 2003, the Forest Service issued a Draft Supplemental EIS, based on the work of the Review Team. The Draft focused on a comparison of two alternatives. "Alternative S1" was the 2001 Framework. "Alternative S2" was the "preferred alternative." Alternative S2 proposed substantially more logging and associated activities than the 2001 Framework. It also proposed to reduce restrictions on grazing by commercial and recreational livestock.
The Draft was criticized by the staff of the Forest Service's Washington Office for Watershed, Fish, Wildlife, Air and Rare Plants. The staff wrote a letter complaining that there was no discussion of the effects of the logging and logging-related activities on fish:
Aquatic and Riparian: There needs to be a discussion of the effects of the new alternatives on riparian ecosystems, streams and fisheries. It is not sufficient to dismiss these effects as within the range of impacts discussed in the  framework . . . without further analysis, given the activities proposed in Alternative S2. If the treatments [proposed in Alternative S2] will be sufficient to have their intended effect, there is a high likelihood that there will be significant and measurable direct, indirect and cumulative effects on the environment, which need to be analyzed and disclosed in this document.
(Emphasis added.) The letter also raised concerns that the Draft did not adequately analyze the impact of changed grazing standards on riparian environments, streams and fisheries.
The Forest Service issued the 2004 EIS in January 2004 without adding the discussion of "riparian ecosystems, streams and fisheries" that the staff letter had said was needed. The Regional Forester adopted Alternative S2 shortly afterwards in a Record of Decision. Over 6,000 administrative appeals were filed objecting to the Record of Decision. The Forest Service Chief approved the Record Of Decision without change in November 2004. This is the "2004 Framework."
Both the 2001 and 2004 Frameworks are written in general terms, rather than addressing specific sites at which the logging and logging-related activities will take place. But there are substantial differences between the 2001 and 2004 Frameworks. Relevant to this appeal are changes in authorized logging and logging-related activities, and changes in grazing standards for commercial and recreational livestock.
The most substantial changes are in logging and logging-related activities. The 2004 Framework allows the harvesting of substantially more timber than the 2001 Framework. The 2001 Framework allowed the harvesting of 30 million board feet of salvage timber per year during the Framework's first and second decades. By contrast, the 2004 Framework allows the harvesting of three times that amount of salvage timber - 90 million board feet per year during its first and second decades. The 2001 Framework allowed the harvesting of 70 million board feet of green timber per year during its first decade and 20 million board feet per year during its second decade. By contrast, the 2004 Framework allows the harvesting of 4.7 and 6.6 times that amount of green timber - 329 million board feet per year during its first decade and 132 million board feet per year during its second decade. The totals for salvage timber for the two decades are 600 million board feet under the 2001 Framework, and 1.8 billion board feet under the 2004 Framework. The totals for green timber for the two decades are 900 million board feet under the 2001 Framework, and 4.6 billion board feet under the 2004 Framework. Stated differently, compared to the 2001 Framework, the 2004 Framework allows the harvesting of an additional 4.9 billion board feet of timber - 1.2 billion board feet of salvage timber and 3.7 billion board feet of green timber - during its first two decades.
The 2004 Framework also allows the harvesting of larger trees than the 2001 Framework. For example, under the 2001 Framework, trees up to 30 inches in breast-height-diameter could be harvested in the wetter west side of the Sierras, but only up to 24 inches in the drier east side. Under the 2004 Framework, trees up to 30 inches in breast-height-diameter can be harvested on both the west and east sides.
The 2004 Framework substantially increases the total acreage to be logged. Under the 2004 Framework, about 15% fewer acres will be subject to prescribed burns than under the 2001 Framework, but about 250% more acres will be logged "mechanically." Further, under the 2004 Framework, more logging will be conducted close to streams than under the 2001 Framework. The 2004 EIS states, with more than the usual amount of obfuscating bureaucratese:
The spatial location of strategically placed area treatments*fn1 under Alternatives S1 [the 2001 Framework] and S2 [the 2004 Framework] are the same, but they are different than previously considered. For example, analysis in the [2001 EIS] was based on the assumption that the area treatments would be placed*fn2 primarily on the upper two-thirds of slopes, thus minimizing overlap with RCAs*fn3 associated with perennial, intermittent, and ephemeral streams. However, this assumption is no longer valid. Consequently, under Alternatives S1 and S2, treatments are not limited to any geographic position.*fn4 As a result, more treatments within RCAs are expected.*fn5
Alternative S1 requires that portions of treatment areas be left in an untreated condition.*fn6 It is likely that riparian areas would be priorities for retention to meet this requirement.*fn7 Alternative S2 does not require retention of untreated areas within treatment units so that fire behavior and fire effects are effectively reduced within the entire unit.*fn8
The 2001 Framework limited soil "compaction" in project areas close to streams to 5% of the area, but the 2004 Framework places no limit on "disturbances" in such areas.
The 2004 Framework allows substantially more construction of new, and reconstruction of existing, logging roads than the 2001 Framework. Under the 2001 Framework, 25 miles of new roads were to be constructed, and 655 miles of existing roads were to be reconstructed, during the first decade. Under the 2004 Framework, 115 miles of new roads are to be constructed, and 1,520 miles of existing roads reconstructed, during the first decade. However, under the 2001 Framework, 950 miles of roads were to be decommissioned, compared with 1,175 miles of old roads that are to be decommissioned under the 2004 Framework. The 2004 Framework also allows an additional 215 miles of temporary roads (43 miles of temporary roads per year for 5 years) and slates an additional 3,200 miles of roads for maintenance (640 miles per year for five years).
Finally, grazing restrictions under the 2001 Framework are reduced in the 2004 Framework. Under the 2001 Framework, commercial livestock (cattle and sheep), as well as recreational livestock (pack and saddle stock used by commercial outfitters) were to be excluded from meadows known to be occupied by Yosemite Toads during the toads' breeding and rearing seasons, as well as from meadows where surveys to determine the presence (or absence) of Yosemite Toads had not yet been performed. The 2004 Framework allows commercial livestock to graze in meadows where surveys to determine the presence of Yosemite Toads have not yet been performed. Further, the 2004 Framework eliminates the categorical exclusion of recreational pack stock and saddle stock from toad-occupied meadows during the breeding and rearing season, and allows managers to develop project-based plans to mitigate effects on the toad.
Other restrictions on grazing have also been reduced. The 2004 Framework divides habitat-protecting restrictions on grazing into several categories based on the adverse impacts on the grazing permittee: the greater the adverse impact, the more habitat-protecting effort is required on the part of the permittee. The 2004 EIS describes the effect of the 2004 Framework on 47 grazing permittees (amounting to 11% of the "active allotments"). Under the 2001 Framework, there were no permittees on whom the regulations had no adverse impact. The regulations had a low adverse impact on 11 permittees, a medium adverse impact on 17, a high adverse impact on 12, and a very high adverse impact on 7. Under the 2004 Framework, those numbers are, respectively, 14, 7, 10, 9, and 7. That is, a total of 14 grazing permittees who had been adversely impacted by habitat-protecting regulations under the 2001 Framework are not adversely impacted at all under the 2004 Framework. For three of those permittees, the change effected by the 2004 Framework is to move from a high adverse impact to no impact at all - that is, to move from regulations requiring "substantial" habitat-protective effort by the permittee to regulations requiring no effort whatsoever by the permittee.
The 2004 EIS predicts that the 2004 Framework will reduce the annual acreage burned by wildfires. Under the 2001 Framework, the estimated annual acreage of wildfires was 64,000 acres during the first decade, and 63,000 acres during the fifth decade. Under the 2004 Framework, the estimated annual acreage of wildfires is 60,000 acres during the first decade, and 49,000 acres during the fifth decade, resulting in a total reduction of 18,000 acres over two decades.
Pacific Rivers filed suit in May 2005, alleging that the 2004 Framework was adopted in violation of NEPA and the APA. On appeal, Pacific Rivers contends that the 2004 EIS fails to take a "hard look" at the environmental impact of the 2004 Framework on fish and amphibians. We conclude that the 2004 EIS does not comply with NEPA with respect to fish, but does comply with respect to amphibians.
We review de novo questions of Article III justiciability, including standing. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003). We also review de novo a district court's decision on summary judgment that an agency complied with NEPA. Or. Natural Desert Ass'n v. Bureau of Land Mgmt., 531 F.3d 1114, 1130 (9th Cir. 2008). Judicial review of an agency's compliance with NEPA is governed by the APA, which requires this court to set aside the agency's action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (quoting 5 U.S.C. § 706(2)(A)).
"[W]e will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, 'entirely failed to consider an important aspect of the problem,' or offered an explanation 'that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.' " The Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006)), overruled on other grounds by Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008).
"In reviewing the adequacy of an EIS, we employ a rule of reason to determine whether the EIS contains a reasonably thorough discussion of the significant aspects of probable environmental consequences." Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir. 2002) (internal quotation marks omitted). "Once an agency has an obligation to prepare an EIS, the scope of the analysis of environmental consequences in that EIS must be appropriate to the action in question. . . . If it is reasonably possible to analyze the environmental consequences in an EIS . . . , the agency is required to perform that analysis." Id. at 1072.
The Forest Service argues for the first time on appeal that Pacific Rivers lacks standing under Article III of the Constitution. Questions of Article III jurisdiction can be raised at any time. See Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707 (9th Cir. 2009).
 To have standing under Article III, a plaintiff must establish that (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000). To have standing to seek injunctive relief under Article III
a plaintiff must show that he is under threat of suffering "injury in fact" that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Summers v. Earth Island Inst., 129 S.Ct. 1142, 1149 (2009). An organization may sue on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are ger- mane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Laidlaw, 528 U.S. at 181.
The Forest Service contends that because Pacific Rivers challenges amendments to a Land and Resource Management Plan rather than a specific project under the LRMP, it has failed to allege a threat of a "concrete and particularized" injury that is "actual or imminent." The Forest Service also contends that Pacific Rivers' members have not specified which parts of the national forests in the Sierras they use.
The Forest Service relies heavily on the Supreme Court's decision in Summers. The plaintiffs in Summers challenged nationwide regulations promulgated by the Forest Service that exempted sales of salvage timber of 250 acres or less from NEPA requirements to prepare an EIS or an Environmental Assessment ("EA"). Id. at 1147. The plaintiffs initially challenged a specific sale of salvage timber. After the district court issued a preliminary injunction, the parties settled the dispute over that sale. Id. at 1148. On appeal, both before the Ninth Circuit and before the Supreme Court, the plaintiffs continued to challenge the validity of the exemption for 250 acres or less, though now there was no specific sale at issue. They could make only a general statement that they would visit national forests in the future and might come in contact with a parcel of 250 acres or less on which a salvage-timber sale had been conducted without an EIS or an EA. Id. at 1149-50.
The Supreme Court concluded that there was only a remote chance, "hardly a likelihood," that such visits would bring plaintiffs into contact with land affected by the challenged regulations. Id. at 1150. The Court noted that the regulation at issue applied to all national forest land (190 million acres) and that the size of the affected parcels was small (250 acres or less). Id. "Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact." Id.
Summers is substantially different from this case. Pacific Rivers introduced into evidence in the district court a declaration of its Chairman, Bob Anderson. Anderson declares that he lives in South Lake Tahoe, that he and his wife own property at Mono Lake, and that they "frequently hike and climb in the Sierra Nevada Range." Anderson declares further that Pacific Rivers has over 750 members, some of whom live in California. He states:
My first Sierra Nevada backpacking trip was to the Mineral King area in 2000, during which time I also fished. I plan to continue these activities as long as the management of Sierra Nevada national forests does not prevent me from doing so. I have garnered great personal solace in the knowledge that Sierra Nevada native species and the watersheds that support them persist despite over a century's worth of impacts from grazing, mining, logging, road building, dam construction, and related activities. The same is true ...