McKEOWN, Circuit Judge.
Native Ecosystems Council ("Native Ecosystems") appeals the district court's grant of summary judgment to the United States Forest Service ("Forest Service") in connection with the Forest Service's approval of the Jimtown Vegetation Project ("Jimtown Project") in the Helena National Forest. To lower the potential for a catastrophic fire, the Jimtown Project involves thinning, prescribed burning, and weed management on approximately 1,500 acres in an area of the Helena National Forest prone to high intensity fires.
Native Ecosystems claims the Forest Service violated the National Environmental Policy Act ("NEPA"),
The Helena National Forest encompasses nearly one million acres in western Montana. The Forest Service manages the Helena National Forest according to the 1986 Helena Forest Plan. See 16 U.S.C. § 1604(a). Parts of the Helena National Forest consist of dry ponderosa pine stands, and are characterized by the Forest Service as "fire dependent ecosystems." Over the past ninety years, however, the Forest Service suppressed fires in this ecosystem, leading to what it describes as "dense stocking and intense competition for moisture and nutrients on these sites." In the Forest Service's view, prevention of low-intensity, periodic fires has led to an increase in the likelihood of large, stand-replacing fires. Because forests are more dense, fires spread from small understory trees to the crowns of the older overstory trees, rather than burning at a low-intensity on the floor and understory of the forest.
Due to nearly a century of fire suppression, the Forest Service has witnessed an increase in stand-replacing wildfires in the Northwest. In December 2000, the Forest Service published an EA for the Jimtown Project, a resource management project in the Helena National Forest designed to reduce the potential for a large-scale, high intensity, stand-replacing fire in the Jimtown vicinity. According to the Forest Service, a fire in the vicinity of the Jimtown Project—the July 2000 Cave Gulch fire which burned more than 27,000 acres of the Helena National Forest—evidences the area's potential for "intense and extensive stand replacing fires."
The proposed Jimtown Project lies just 150 yards north of a nest area used by a pair of northern goshawks in the summers of 2000 and 2002. The Forest Service has designated goshawks as a sensitive species,
The Forest Service completed a Biological Evaluation for the Jimtown Project, and concluded that the project "[m]ay impact individuals or habitat but [is] unlikely to contribute to a trend towards Federal listing or cause a loss of viability to the population or species." In particular, the proposed Jimtown Project would "open up" 720 acres of forest habitat, making it less attractive to goshawks for foraging. The Biological Evaluation also concluded that the primary threat to goshawks is loss
The Helena National Forest Plan also designated goshawks as a management indicator species for old-growth forest in the Helena National Forest. Forest Service planning regulations direct the Forest Service to select management indicator species for the purpose of monitoring the effects of management activities in various types of habitat. 36 C.F.R. § 219.19(a)(1), (6) (2000).
After considering comments filed in response to the Jimtown Project EA, including comments filed by Native Ecosystems, the Forest Service issued a Decision Notice and Finding of No Significant Impact ("DN/FONSI") in May 2001. In the DN/FONSI, the Forest Service partially rested its decision not to prepare an EIS on the fact that the Forest Service prepared an EIS in 1996 for a substantially similar and larger management project in the Helena National Forest—the Bull-Sweats Project. The Bull-Sweats Project was located about four miles north of the Jimtown Project and applied the same treatment techniques to an area more than two-times the size of the Jimtown Project area. The Forest Service noted in the DN/FONSI that environmental monitoring associated with the Bull-Sweats Project demonstrated that the type of treatments proposed in the Jimtown Project "do not have significant effects."
The DN/FONSI also included an amendment to the Helena National Forest Plan. The project area, whether the Forest Service implements the Jimtown Project or opts for the no-action alternative, is out of compliance with the Helena National Forest Plan's hiding cover/road density standard designed to protect big game.
Native Ecosystems filed an administrative appeal challenging the DN/FONSI, which the Forest Service denied. In October 2001, Native Ecosystems filed suit in federal court in Montana. In July 2003, while the case was pending in district court, a wildfire burned portions of the Jimtown Project area. One-thousand acres burned in the Jimtown fire, and approximately eighty percent of the trees died or were expected to die within the year following the fire. The fire burned about 370 acres of the 830 acres proposed for thinning and underburning in the proposed Jimtown Project. The Forest Service published a Supplemental Information Report ("SIR") that concluded that the Jimtown Fire, and the subsequent reduction of the thinning and underburning portion of the project to 460 acres, did not change its conclusion that the Jimtown Project would not have a significant effect on the environment.
The district court granted the Forest Service's motion for summary judgment. With respect to the claims pending on appeal, the district court rejected Native Ecosystems's claim that the Forest Service violated NEPA by failing to consider reasonable alternatives to the Jimtown Project in addition to the EA's "no action" alternative and the proposed project alternative.
I. STANDARD OF REVIEW
We review the district court's grant of summary judgment de novo. Neighbors of Cuddy Mountain v. U.S. Forest Serv. ("Neighbors of Cuddy Mountain I"), 137 F.3d 1372, 1376 (9th Cir.1998). Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq.; Neighbors of Cuddy Mountain v. Alexander ("Neighbors of Cuddy Mountain II"), 303 F.3d 1059, 1065, 1067 (9th Cir.2002). Under the APA, we may set aside an agency decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998).
II. NEPA CLAIMS
NEPA requires agencies to prepare an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA's implementing regulations provide that an agency shall prepare an EA to determine whether a proposed federal action
NEPA requires us to analyze whether the Forest Service took a "hard look" at the likely effects of the proposed Jimtown Project. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1216 (9th Cir.1998). In other words, the Forest Service must "undertake a thorough environmental analysis before concluding that no significant environmental impact exists." Id. Determining whether the Forest Service took the requisite "hard look" is judged against the APA's arbitrary and capricious standard. Id.
A. PREPARATION OF AN ENVIRONMENTAL ASSESSMENT RATHER THAN AN ENVIRONMENTAL IMPACT STATEMENT
Native Ecosystems seeks to compel the Forest Service to prepare an EIS, rather than simply an EA, for the Jimtown Project. An agency is required to prepare an EIS where there are substantial questions about whether a project may cause significant degradation of the human environment. See Idaho Sporting Congress, 137 F.3d at 1149. As we have explained:
In benchmarking whether the Jimtown Project may have a significant effect on the environment, we turn to the NEPA regulations that define "significantly." 40 C.F.R. § 1508.27 (2000). Whether a project is significant depends on both the project's context and its intensity. Id. A project's intensity will be evaluated based on various factors, three of which are relevant to Native Ecosystems's appeal: 1) "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." id. § 1508.27(b)(4); 2) "[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks," id. § 1508.27(b)(5); and 3) "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts," id. § 1508.27(b)(7).
1. FOREST SERVICE'S PROJECT-SPECIFIC CONCLUSION OF NO SIGNIFICANT IMPACT
Native Ecosystems seeks to capitalize on the Forest Service's thorough and candid environmental analysis by seizing on various bits of information and data in the Jimtown Project NEPA documents (the EA, DN/FONSI, SIR and Biological Evaluation) to claim that substantial questions exist as to whether the Jimtown Project may have a significant effect on the environment. The Biological Evaluation and DN/FONSI acknowledged that the Jimtown Project may impact individual goshawks and their habitat, but determined that this impact was not significant.
The presence of negative effects regarding the impact of the Jimtown Project on goshawks or even information favorable to Native Ecosystems's position in the project's NEPA documents, however, does not mean Native Ecosystems has demonstrated that the Jimtown Project's impacts are "highly controversial" or "highly uncertain." A project is "highly controversial" if there is a "`substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use.'" Blue Mountains, 161 F.3d at 1212 (quoting Sierra Club v. U.S. Forest Serv., 843 F.2d 1190, 1193 (9th Cir.1988)). Further, in explaining the "highly uncertain" standard, we stated:
National Parks, 241 F.3d at 731-32 (alteration in original) (citations omitted) (quoting Sierra Club, 843 F.2d at 1195).
The use of the word "highly" in the NEPA regulations to modify "controversial" and "uncertain" means that information merely favorable to Native Ecosystems's position in the NEPA documents does not necessarily raise a substantial question about the significance of the project's environmental effects. Rather, as our explanation of the NEPA regulations makes clear, something more must exist for this court to label a project highly controversial or highly uncertain. Simply because a challenger can cherry pick information and data out of the administrative record to support its position does not mean that a project is highly controversial or highly uncertain.
Under Native Ecosystems's theory, any information included in an EA and its supporting NEPA documents that admits impacts on wildlife species and their habitat would trigger the preparation of an EIS. Not only would such a standard deter candid disclosure of negative information, it does not follow that the presence of some negative effects necessarily rises to the level of demonstrating a significant effect on the environment. We decline to interpret NEPA as requiring the preparation of an EIS any time that a federal agency discloses adverse impacts on wildlife species or their habitat or acknowledges information favorable to a party that would prefer a different outcome. NEPA permits a federal agency to disclose such impacts without automatically triggering the "substantial questions" threshold. In short, NEPA requires us to determine whether the Forest Service took a "hard look" at the environmental consequences of a proposed action.
a. GOSHAWK HABITAT COMPONENTS
Native Ecosystems asserts that as to the goshawks, the project is highly controversial and highly uncertain because the Forest Service failed to abide by a 1992 Forest Service report, "Management Recommendations for the Northern Goshawk in the Southwestern United States" ("Reynolds Report"). According to Native Ecosystems, the EA failed to address the Reynolds Report goshawk habitat recommendations pertaining to old growth, post-fledgling family areas, and canopy cover. This argument fails because the Forest Service referenced the Reynolds Report multiple times in the various Jimtown NEPA documents and specifically addressed each of these habitat recommendations.
Although the Reynolds Report recommends maintaining a certain percentage of old growth in a goshawk's home range, it is significant that no old growth exists in the project area. As a result, the Jimtown Project is not capable of negatively impacting the old growth component of the Jimtown goshawk home range. It can hardly be said that a controversy or uncertainty exists under these circumstances. More pointedly, Native Ecosystems's concern that the Forest Service fails to demonstrate in the EA that it has set aside sufficient old growth habitat for goshawks ignores the very purpose of the Jimtown Project—creation of a landscape that permits large trees to mature into old growth. The DN/FONSI explained that "[o]ne of the goals of the project is to create a stand structure that will allow old-growth to develop on the site over the long term and remain intact in the face of fire," an objective that precisely meets Native Ecosystems's concern.
Both the Biological Evaluation and DN/FONSI cite the Reynolds Report habitat designations, including the nesting, post-fledgling, and foraging area acreage recommendations, and discuss their impact at length before concluding that the Jimtown Project will not deprive the nearby goshawk home ranges of these necessary components. Native Ecosystems complains that the Forest Service failed to specifically delineate a post-fledgling family area to be preserved around the 2000 and 2002 goshawk nest stand 150 yards from the Jimtown Project area. The Biological Evaluation and DN/FONSI establish that the Forest Service took a hard look at the available post-fledgling family area habitat in the vicinity of the Jimtown Project. Indeed, the Forest Service's point-by-point response to Native Ecosystems's post-SIR comments underscores our conclusion that the Forest Service took a hard look and fairly considered the Reynolds Report habitat recommendations:
Finally, Native Ecosystems urges that the Forest Service's failure to disclose the canopy closure in the area before and after the project makes the impact of the project on goshawk habitat "highly uncertain." Although the NEPA documents did not specify percentages of canopy cover in the same manner as delineated in the Reynolds Report, the Forest Service did not ignore the impact of changes to canopy closure in the project area. Nothing in the law or the science mandates wholesale adoption of the details of the Reynolds Report. Ultimately, while the Forest Service concluded that the project would reduce suitable habitat by about 720 acres, due in part to reduced canopy cover as a result of the thinning component of the project, the project would leave intact sufficient acreage to provide for resident goshawks—about 6,780 acres of mostly forested habitat.
The Forest Service's goshawk habitat analysis and consideration of the Reynolds Report demonstrate the project is neither highly controversial nor highly uncertain. Native Ecosystems's effort to identify conflicts between the Jimtown Project and the Reynolds Report does not raise substantial questions that would trigger the need for an EIS. In fact, as the Reynolds Report explained, current forest conditions put the existing goshawk habitat in jeopardy and thus the proposed thinning and burning would actually be necessary to sustain goshawks and their prey. The push-pull situation of the goshawk is a reality not a fiction. While the Reynolds Report outlines ideal goshawk habitat conditions, including optimum old-growth, post-fledgling, and canopy cover prescriptions, the Report also recognizes that stand-replacing fires wipe out these critical habitat components in their entirety. The proposed Jimtown Project seeks to balance the sometimes conflicting goshawk habitat needs as outlined in the Reynolds Report, and thereby makes a reasoned and reasonable choice between the competing goals of preserving the goshawk's current habitat and promoting a sustainable, long-term habitat for the goshawk.
b. IMPACT ON GOSHAWK PREY
Native Ecosystems also contends substantial questions are raised by the uncertain effects of the Jimtown Project on red squirrels, which serve as prey for the goshawk. In support of this challenge, Native Ecosystems seizes on the conclusion in the EA that certain species, including the red squirrel, would decline in the project area as a result of the changed habitat. Native Ecosystems reads the EA as saying that red squirrel populations would suffer a "sharp decline" as a result of the project. The EA's statement is much less dramatic in context:
The identification of potential declines does not permit us to leap to the conclusion
Where other prey species will be available, Native Ecosystems's focus on the red squirrel does not demonstrate that the project's effects are highly uncertain.
c. RELIANCE ON THE BULL-SWEATS EIS
Native Ecosystems challenges the Forest Service's reliance on the Bull-Sweats Project EIS as a demonstration that the Jimtown Project will not have a significant effect on the environment. The 1996 Bull-Sweats Project was simply a larger version of the same type of fuels reduction project proposed for the Jimtown area. The Forest Service prepared an EIS for Bull-Sweats, which was incorporated by reference into the Jimtown documentation. In concluding that an EIS was not necessary for the Jimtown Project, the Forest Service observed that the proposed management practices were not unique and that monitoring of other projects, particularly the nearby Bull-Sweats Project, documented that such projects did not have significant effects.
Native Ecosystems points to a Forest Service monitoring log to conclude, based on a lack of goshawk sightings in the Bull-Sweats Project area after 1998, that the project somehow eliminated goshawks resident in the project area prior to the Bull-Sweats thinning. The Forest Service offers a very different interpretation of the log, noting that field monitoring showed that goshawks in the Bull-Sweats area change nest sites each year regardless of logging activity and that goshawks are not averse to occupying nest sites close to logged areas. Further, according to the Forest Service, the monitoring data "demonstrates that thinning can be done in a way that will not eliminate local goshawk territories, but that large stand replacement fires will eliminate them." (citations to administrative record omitted). We defer to the Forest Service's explanation of the log.
Native Ecosystems tries to create a facade of high controversy by citing to comments submitted by Dr. Sara Jane Johnson, a wildlife biologist and representative of Native Ecosystems. Dr. Johnson concluded the monitoring log demonstrated that the Bull-Sweats Project eliminated a pair of goshawks. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Forest Service's conclusion that the Bull-Sweats Project did not have a significant effect on goshawks and their habitat (and its reliance on this conclusion in the Jimtown EA and DN/FONSI) was not arbitrary and capricious.
In summary, the Forest Service's consideration and application of the Reynolds Report goshawk habitat recommendations in its NEPA documentation defeats Native Ecosystems's attempt to characterize the Jimtown Project's impacts as highly uncertain or controversial. Dr. Johnson's interpretation of the Reynolds Report and goshawk monitoring data simply does not
2. CUMULATIVE EFFECTS ANALYSIS
Although we conclude that the project-specific challenges to the Jimtown Project EA withstand scrutiny, our analysis does not end there. In determining whether an action is significant for the purposes of preparing an EIS, an agency must consider "whether the action is related to other actions with individually insignificant but cumulatively significant impacts." 40 C.F.R. § 1508.27(b)(7) (2000).
Id. In accord with the regulatory directives, the Forest Service offered extensive analysis of the cumulative impacts of the Jimtown Project. A review of the DN/FONSI reveals an articulate and careful cumulative effects analysis that took into consideration the impacts of the Cave Gulch fire, the 1986 North Hills fire, two minor thinning projects, and the Bull-Sweats Project. The DN/FONSI recognized that within the cumulative effects area—defined as 29,900 acres—three goshawk home ranges exist, and within each home range, the Forest Service identified the necessary components of goshawk habitat. The DN/FONSI then detailed, from a quantitative perspective, the impact of the project on nest sites and acreage suitable as goshawk habitat. The Forest Service concluded the Jimtown Project's impact on the immediate goshawk home range will not cause it to fall below the Reynolds Report acreage recommendations for nesting, post-fledgling family, and foraging areas, let alone result in a cumulatively significant effect when considered in light of other recent projects and fires in this area of the Helena National Forest. Because significant evidence in the record supports the Forest Service's conclusion that the goshawk's home range will remain viable under the Jimtown Project, we conclude that the Forest Service easily satisfies the standard we articulated in Neighbors of Cuddy Mountain I: "To `consider' cumulative effects, some quantified or detailed information is required. Without such information, neither the courts nor the public, in reviewing the Forest Service's decisions, can be assured that the
B. CONSIDERATION OF RANGE OF ALTERNATIVES
NEPA requires federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). The alternatives provision of NEPA applies whether an agency is preparing an EIS or an EA, and NEPA's implementing regulations require an EA to include "brief discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b) (2000); see also Bob Marshall Alliance, 852 F.2d at 1229 ("[A]ny proposed federal action involving unresolved conflicts as to the proper use of resources triggers NEPA's consideration of alternatives requirement, whether or not an EIS is also required."). In short, NEPA "requires that alternatives ... be given full and meaningful consideration." Bob Marshall Alliance, 852 F.2d at 1229.
Native Ecosystems discredits the Jimtown EA as insufficient because it did not consider a reasonable range of alternatives to the proposed project. Native Ecosystems's argument is confusing. In one breath, Native Ecosystems faults the Forest Service for failing to consider a "range" of alternatives—suggesting that its concern is with the number of alternatives considered by the Forest Service. In the next breath, Native Ecosystems faults the Forest Service for failing to consider an alternative to the Jimtown Project that would "comply" with the Helena National Forest's Forest Plan—suggesting that its concern is with the substance of the alternatives considered by the Forest Service.
If Native Ecosystems is simply concerned with the number of alternatives considered by the Forest Service in the Jimtown Project EA, Native Ecosystems's claim fails. The Forest Service's Jimtown Project EA considered a total of six alternatives, four of which were raised but rejected without detailed consideration. Of the six proposed alternatives, two alternatives—a "no action" alternative and the "preferred alternative" (the proposed Jimtown Project)—were the focus of the EA and given detailed consideration by the Forest Service. Native Ecosystems ignores the four alternatives dismissed by the agency, and contends that the EA's development of only two alternatives failed to meet NEPA's requirements.
NEPA and its implementing regulations only require the following with respect to the number of alternatives that must be considered by an agency: 1) the agency must consider "appropriate" alternatives to recommended courses of action, 42 U.S.C. § 4332(2)(E); 2) an EIS must "[r]igorously explore and objectively evaluate all reasonable alternatives" and must explain why it has eliminated an alternative from detailed study, 40 C.F.R. § 1502.14(a) (2000) (emphasis added); 3) the agency must consider a "no action" alternative, id. § 1502.14(d); and 4) the
To the extent that Native Ecosystems is complaining that having only two final alternatives—no action and a preferred alternative—violates the regulatory scheme, a plain reading of the regulations dooms that argument. So long as "all reasonable alternatives" have been considered and an appropriate explanation is provided as to why an alternative was eliminated, the regulatory requirement is satisfied. In short, the regulation does not impose a numerical floor on alternatives to be considered.
Nor have we previously imposed a numerical requirement as the bellwether of reasonableness. Rather, the substance of the alternatives has been a focus, not the sheer number of alternatives considered. See Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 813-14 (9th Cir.1999) (noting that the Forest Service failed to consider an adequate range of alternatives because its EIS included a "no action" alternative and two nearly identical action alternatives, none of which were "more consistent with [the agency's] basic policy objectives than the alternatives that were the subject of final consideration."); see also W. Land Exch. Project v. Dombeck, 47 F.Supp.2d 1196, 1211-12 (D.Or.1999) (concluding that the Forest Service met its statutory obligations where it had considered and dismissed six alternative plans that did not meet the purpose and needs of the proposed project).
We turn now to the substance of the alternatives considered by the Forest Service, and the potential alternatives raised by Native Ecosystems, to determine whether the Forest Service considered "appropriate" and "reasonable" alternatives under NEPA. In undertaking this analysis, we join our sister circuits in holding that an agency's obligation to consider alternatives under an EA is a lesser one than under an EIS. In rejecting any alternatives, the agency must only include "brief discussions of the need for the proposal, of alternatives required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b) (2000). See Mt. Lookout—Mt. Nebo Prop. Prot. Ass'n v. Fed. Energy Regulatory Comm'n, 143 F.3d 165, 172 (4th Cir.1998) ("The rigor with which an agency must consider alternatives is greater when the agency determines that an EIS is required for a particular federal action."); Sierra Club v. Espy, 38 F.3d 792, 803 (5th Cir.1994) (same); Friends of the Ompompanoosuc v. Fed. Energy Regulatory Comm'n, 968 F.2d 1549, 1558 (2d Cir.1992) (same).
In judging whether the Forest Service considered appropriate and reasonable alternatives, we focus first on the stated purpose for the Jimtown Project. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 (9th Cir.1992) (bench-marking
Alternatives that do not advance the purpose of the Jimtown Project will not be considered reasonable or appropriate. See Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 868 (9th Cir.2004) ("The `range of alternatives that must be considered in the EIS need not extend beyond those reasonably related to the purposes of the project.'" (quoting Laguna Greenbelt, Inc. v. U.S. Dep't of Transp., 42 F.3d 517, 524 (9th Cir.1994))).
According to Native Ecosystems, the Forest Service did not consider a "reasonable" range of alternatives because it failed to consider an alternative that would fully comply with the current Helena National Forest Plan. Native Ecosystems first claims the Forest Service should have considered an alternative that did not involve commercial harvest as part of the thinning portion of the Jimtown Project.
The EA's preferred alternative proposes to offer the commercial sale of any marketable timber from the thinning component of the Jimtown Project. The project area is designated as a livestock grazing area under the Helena National Forest Plan, which provides: "Timber harvest may be used as a tool to improve forage production [in designated livestock grazing areas]. However, forested land is classified as unsuitable for timber management." Native Ecosystems's insistence that this designation prevents a commercial timber harvest in the Jimtown Project area is a misinterpretation of the plan, which does not prohibit commercial timber harvest on the project lands—only "timber management." "Timber management" is defined as "the purposeful growing, tending, harvesting, and regeneration of regulated crops of trees to be cut into logs, bolts or other round sections for industrial or consumer use."
The Forest Service will not engage in "timber management" in the Jimtown Project area if it adopts the EA's preferred alternative. Rather, the Forest Service would be thinning to reduce fire risk; a service contractor will be permitted to sell
Native Ecosystems also asks us to invalidate the EA because the Forest Service did not consider an alternative that would not require an amendment of the Helena National Forest Plan's hiding cover/road density standard.
Native Ecosystems's proposed alternative also would have been redundant. The DN/FONSI makes clear that if Native Ecosystems wanted an alternative that did not involve amending the Helena National Forest Plan and moved the project area
We are not persuaded by Native Ecosystems's reliance upon Muckleshoot Indian Tribe to support its demand for a "no forest plan amendment" alternative. In Muckleshoot, we faulted the Forest Service for failing to consider "an alternative that was more consistent with its basic policy objectives than the alternatives that were the subject of final consideration." 177 F.3d at 813.
In light of Native Ecosystems's failure to raise substantial questions that demonstrate the Jimtown Project may have a significant effect on the environment, the Forest Service's consideration of a "no action" alternative and its "preferred" alternative met its statutory and regulatory duty to prepare appropriate alternatives for the Jimtown Project EA.
III. NATIONAL FOREST MANAGEMENT ACT CLAIMS
NFMA creates a two-step process for the management of our national forests. Neighbors of Cuddy Mountain I, 137 F.3d at 1376. The Forest Service must first develop a Land Resource Management Plan ("Forest Plan") for each unit of the National Forest System. 16 U.S.C. § 1604(f)(1). For individual management actions within a forest unit, all relevant plans, contracts, or permits must be consistent with each forest's overall management plan. Id. § 1604(I).
In addition, NFMA imposes substantive requirements on the Forest Service's management of the national forests. Neighbors of Cuddy Mountain I, 137 F.3d at 1376. NFMA requires that forest plans "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area." 16 U.S.C. § 1604(g)(3)(B). The Forest Service's NFMA regulations further require:
36 C.F.R. § 219.19 (2000). The duty to ensure viable populations "applies with special force" to sensitive species. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 759 (9th Cir.1996).
Native Ecosystems claims the Forest Service failed to comply with the substantive wildlife requirements of the NFMA. Specifically, Native Ecosystems claims the Forest Service failed to ensure goshawk viability, in violation of the NFMA, by failing to discuss forest-wide goshawk population trends and the impacts the Jimtown Project would have on goshawk viability
Although Native Ecosystems admits that the Forest Service has monitored goshawks in the Helena National Forest for more than eight years, Native Ecosystems claims this monitoring fails to establish the existence of a viable population of goshawks. The record contains a 2002 Goshawk Nest Monitoring Report that chronicles goshawk sightings and goshawk nests from 1995 through 2002 in the Helena National Forest. The record also contains a 2003 chart listing goshawk sightings and nests from 1992 through 2003. On the basis of these reports, Native Ecosystems claims that there is not a viable population of goshawks in the Helena National Forest, or at least that goshawk viability cannot be presumed based on these charts. According to Native Ecosystems, the Forest Service must positively demonstrate forest-wide goshawk viability before proceeding with the Jimtown Project. See Neighbors of Cuddy Mountain II, 303 F.3d at 1069 ("[C]ompliance with NFMA's forest-wide species viability requirements is relevant to the lawfulness of any individual timber sale.").
In contrast, the Forest Service views its responsibility under NFMA to ensure the viability of animal species as a duty to ensure adequate habitat for wildlife species, not an obligation to ensure the actual viability of a species in every locale. See 36 C.F.R. § 219.19 (2000) ("[H]abitat shall be managed to maintain viable populations...."); see also id. § 219.19(a)(6) ("Population trends of the management indicator species will be monitored and relationships to habitat changes determined."). Because the Forest Service concluded that the Jimtown Project will not have a significant effect on goshawk habitat, the Forest Service concludes that the project meets NFMA's species viability requirement by preserving goshawk habitat. In addition, the Forest Service contends Native Ecosystems misinterpreted the two goshawk observation charts and argues that the charts demonstrate a nearly fifty percent occupancy rate of potential goshawk home ranges.
Our case law permits the Forest Service to meet the wildlife species viability requirements by preserving habitat, but only where both the Forest Service's knowledge of what quality and quantity of habitat is necessary to support the species and the Forest Service's method for measuring the existing amount of that habitat are reasonably reliable and accurate. Compare Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1154 (9th Cir.1998) (holding that under the circumstances of that case the Forest Service could use habitat as a proxy for population if the Forest Service performed further analysis and showed
We recently explained the proxy-on-proxy approach to ensuring species viability under the NFMA:
Lands Council v. Powell, 395 F.3d 1019, 1036 (9th Cir.2005) (footnotes and internal citations omitted).
The record does not demonstrate any flaws in the methodology used by the Forest Service to identify goshawk habitat. Both the Forest Service and Native Ecosystems endorse the habitat recommendations in the Reynolds Report as the best available science on goshawk habitat. The Forest Service's habitat analysis revealed that even if the Jimtown Project thinning area is not used by the nearby goshawk pair, there will be ample habitat available to them. A goshawk home range should contain approximately 5,400 acres of foraging habitat. The Jimtown Project will diminish the goshawk foraging habitat in the goshawk home range by approximately 480 acres (720 acres prior to the Jimtown Fire), leaving at least 6,780 acres of suitable foraging habitat in the relevant goshawk home range. The remaining foraging habitat exceeds the Reynolds Report recommendation of 5,400 acres of foraging habitat per goshawk home range. Given that the Jimtown Project area does not contain old growth forest and is designed to create an ecosystem that can support old-growth in the long-term, and given that the NEPA documents incorporate the Reynolds Report habitat recommendations, we conclude that the Forest Service satisfied NFMA's species viability requirements by demonstrating that adequate goshawk habitat is preserved.
While the Forest Service experts predict that goshawks will use the thinned area of the Jimtown Project for foraging, there will still be sufficient foraging habitat even if the goshawks avoid the project area after thinning. The long-term benefit of preventing stand-replacing fires, which completely destroy goshawk habitat, is preferable over any short-term benefit the goshawks might receive from retaining the dense forest structure in the project area. The Forest Service considered the relevant factors and there has not been a clear error of judgment.
Consequently, we uphold the agency action under the APA's arbitrary and capricious standard.
Native Ecosystems included another document that was not part of the administrative record in its original Excerpts of Record ("Goshawks in the North Big Belt Landscape Through 2003"). The Forest Service's brief urged us to ignore this goshawk monitoring log. Native Ecosystems removed the 2003 log from its amended Excerpts of Record and moved the log to Appendix 1 of its amended opening brief. During oral argument, counsel for the Forest Service informed the court that it may use the 2003 log as demonstrative evidence of information in the administrative record. We will ignore the Forest Service's request that the panel disregard the 2003 log.
DN/FONSI, Attachment 1 at 21 (alteration in original).