9th Circuit takes out NFMA diversity requirement

In a 2-1 decision, which allowed the Big Thorne timber project to proceed on the Tongass National Forest, the Ninth Circuit Court of Appeals affirmed a district court opinion that the Forest Service had complied with NFMA when it adopted forest plan direction related to managing old growth forest for deer to support viability of Alexander Archipelago wolves (an at-risk species).  The dissent pointed out that prior Ninth Circuit precedent had established that:

the forest plan must comply with substantive requirements of the [NFMA] designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest . . . .” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961–62 (9th Cir. 2002). Specifically, 36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” Our law is clear that an agency must abide by its own regulations.

The majority (both judges appointed by republican presidents) charted a new course, citing a a BLM case that had nothing to do with NFMA:

Instead, an agency need only supply “a rational connection between the facts found and the conclusions made.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007).

Instead of recognizing the language of NFMA that requires plans to “provide for plant and animal diversity,” the majority opinion cites language that refers to the Multiple-Use Sustained-Yield Act (contained in a case that was not about forest plans).  It concludes:

The NFMA gives the Forest Service flexibility because the Service has many different goals—conservation, commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2); McNair, 537 F.3d at 993–94. The statute reflects a congressional judgment that balancing these goals calls for policy judgments—judgments that often require trade-offs among worthy objectives, such as wolves and logging jobs.

In other words, NFMA did not take away any of the discretion provided by MUSYA.  This should be news to a lot of people, including the Forest Service.  This case would be a really good candidate for en banc review by the Ninth Circuit.

Here’s a local news story.

14 Comments

  1. Here’s some more information about this timber sale, already posted on this blog over the past few years.

    5 Groups Appeal Tongass Timber Sale: 6,000 acres of old-growth would be logged, 46 miles of new roads constructed (here)

    SNIP: The project would log 148 million board feet of timber [enough to fill 29,600 log trucks], including over 6,000 acres of old-growth forest from heavily hammered Prince of Wales Island. 46 miles of new logging roads would be built and another 36 miles would be reconstructed.

    U.S. Forest Service Scalped on Tongass Timber Sales (here)

    SNIPS – According to PEER (Public Employees for Environmental Responsibility):

    Recent timber sales from Alaska’s vast Tongass National Forest have been financial as well as ecological debacles, according to internal reports released today by Public Employees for Environmental Responsibility (PEER). In violation of its own policies, the U.S. Forest Service let timber operators benefit by cherry-picking more valuable trees and leaving intended salvage trees standing.

    A June 20, 2016 Forest Service “Washington Office Activity Review” examined two large Tongass timber sales and found –

    • Staggering monetary losses in each, “close to 2 million” in one sale, an amount “more than double the original stumpage” according to a post-harvest Monitoring Report. In the other sale, Forest Service maladministration led to “a reduction in sale value exceeding $1,700,000”;

    • Despite being stewardship sales to improve forest health, the agency allowed companies to ignore prescriptions by “favoring removal in the larger diameter, more valuable species groups, such as western red cedar and spruce” while significantly undercutting far less valuable hemlock; and

    • Required law enforcement timber theft prevention inspections appear to have been bypassed. Nor could the forest produce a written contract or other “pertinent documentation” for this high-volume sale. That sale also allowed “purchaser selection of trees without prior marking” and the forest’s only follow-on monitoring was completely “reliant on the purchaser’s own data.”

    • You have posted some serious accusations here. I am not sure they could be substantiated. How does the FS lose millions of dollars on a timber sale? Did they spend that much on putting the sale up?
      Wasn’t it sold at a public auction to the highest bidder?
      Also about only logging only the most valuable species, your photo shows a clearcut where they have taken all trees. (Maybe the photo is not of the actual sale?)
      Timber theft? Aren’t the logs scaled by a third party? Aren’t all loads required to have FS tickets on them? Do you mean to suggest that timber companies are thieves?
      Also your comments about the judges. I am to understand that if the judges side with the FS they are timber industry lobbyists and if they side with the environmentalists they are only following the law?

      • Howdy Bob.

        All of the information posted above is from PEER (Public Employees for Environmental Responsibility). If you go to the link to the previous post on this blog you find that all of PEER’s accusations are fully cited and explored in more detail, and as such, all of your questions are answered if you take the time to look through PEER’s information.

        Also, I personally didn’t make any comments about the judges. I simply shared the comments about the 3 judges on the panel that were written by someone who works on these issues daily, and was shared on a public lands law/policy list-serve.

  2. OK, Jon, I am confused. The newspaper article you linked said ”

    “The court held that it was aware of no authority compelling the agency to set a specific standard or benchmark for protecting the viability of a species that was neither endangered nor threatened. The court noted that the Forest Service’s Record of Decision specifically concluded that the Forest Plan would “sustain viable populations of the Alexander Archipelago wolf,” and the court concluded that Forest Service’s discussion of viability was not arbitrary or capricious. The court further held that the Big Thorne Project was consistent with the Forest Plan.”

    So it sounds as if the FS has made a case that the wolf pops would be viable and the court is going with the FS. Can you please help me link this to what you said about NFMA?

  3. That’s a good question, and I have a complicated answer. Here is the key language from the opinion (condensed):

    ** Indeed, we are especially deferential when questions of scientific methodology are involved, like how to protect viability. An agency need only supply a rational connection between the facts found and the conclusions made. There’s no question that the agency understood and met this obligation. The Record of Decision concludes that the Forest Plan will “sustain viable populations of the Alexander Archipelago wolf.” (The opinion then briefly discusses the plan and NEPA analysis without including what the plan actually said, but elsewhere suggesting it was “aspirational.”) **

    If you read this in the context of the court’s other statements about NFMA discretion and “balancing,” the court is not holding that the plan will sustain viable populations. It is simply using the ROD’s statements about viability as evidence that the FS used an appropriate “methodology” to evaluate tradeoffs. Forest plan decisions are not a “methodology” the way that term was used in the project cases cited by the majority. The court is viewing the issue as procedural rather than substantive. Maybe this is a distinction without a difference, but it could instead change what has always been regarded as a constraint on national forest management to protect species into a discretionary goal.

    • The Court can’t know whether anything will work to “sustain viable populations” The Forest Service and litigants can’t know that either, it seems to me. All anyone can rule on is whether the Forest Service followed required practices in “figuring out what it needs to do for viable populations” and whether “the Forest Service is doing what it said it would do when it figured it out.”
      In other cases, the Court has deferred to agencies on technical subjects for various reasons, can’t remember the cases. Could this be something similar?

  4. FWIW: Here’s something someone wrote on a list-serve about the 3 judges in this case.

    “O’Scainnlon is a timber industry lobbyist appointed directly to the 9th by Reagan. Everyone (in the Circuit) knows his bias. Kozinski is Donald Trump in robes. He’s notoriously biased. Gould is a really smart judge who applies law to the facts. Everyone knows his reputation.”

      • Soooo, perhaps the substance of the comment (ie giving some details about the background of the 3 judges in this ruling) is much more important than the identification of who made it.

        Like Jon Haber said, “This case would be a really good candidate for en banc review by the Ninth Circuit.”

    • This seems like an argument for “deciding land management practices in a courtroom is like using a rice cooker to heat a pizza- you get something out, but it’s not anything anyone would want.”
      I think I need a better analogy ;)/

      • Which makes you wonder why some people/groups are so anxious to get to court? If the end product is distasteful to everyone (or most everyone), why invest in that outcome? And yes, I’m aware of this site’s debate on the supposed financial motives of envirommental/conservation groups.

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