MICHAEL DALY HAWKINS, Circuit Judge.
The Environmental Protection Information Center ("EPIC") appeals from the district court's summary judgment in favor of the United States Forest Service ("USFS"). EPIC challenges USFS's failure to prepare an Environmental Impact Statement ("EIS") in connection with the proposed Knob Timber Sale in the Klamath National Forest and further argues that the Environmental Assessment ("EA") USFS did prepare was inadequate. EPIC also contends that the project violates the National Forest Management Act ("NFMA"). We affirm.
FACTS AND PROCEDURAL HISTORY
The Knob Timber Sale (the "Project") is a vegetation management project affecting the Salmon River Ranger District of the Klamath National Forest. The Project provides for harvesting timber from approximately 578 acres, scattered among twenty-seven units throughout the forest. The stated purpose of the Project "is to maintain stand health by leading stands into a resilient condition where they can provide a sustained yield of wood products and reduce their risk to potential catastrophic fire."
USFS issued an EA for the Project in October 2002.
Soon thereafter, USFS issued a decision notice and Finding of No Significant Impact ("FONSI") selecting the proposed action alternative. USFS explained that this alternative had the best potential to achieve the Project's purposes and that it would have long-term beneficial effects for the northern spotted owl and watershed health, with only minor or negligible short-term adverse effects.
EPIC filed suit in the district court, arguing that, under the National Environmental Policy Act ("NEPA"), USFS should have prepared a full EIS instead of an EA, and that the EA itself was inadequate. EPIC also alleged that USFS violated the NFMA. The district court granted summary judgment to USFS on all claims.
STANDARD OF REVIEW
We review the district court's grant of summary judgment de novo. Native Ecosystems Council v. USFS, 428 F.3d 1233, 1238 (9th Cir.2005). Agency decisions that allegedly violate NEPA and NFMA are reviewed under the Administrative Procedure Act ("APA"), and may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in
Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir.2001) (internal quotations and citations omitted).
A. Statutory Background
An EIS is required for "major Federal actions significantly affecting the quality of the human environment. . . ." 42 U.S.C. § 4332(2)(C). The agency first prepares an EA to determine whether an action will have a significant impact, thus requiring preparation of an EIS. 40 C.F.R. § 1508.9. If the agency concludes there is no significant effect associated with the proposed project, it may issue a FONSI in lieu of preparing an EIS. 40 C.F.R. § 1508.9(a)(1).
The critical term here is "significantly." Whether a project is "significant" depends on the project's "context" and its "intensity." 40 C.F.R. § 1508.27. Context refers to the scope of the action, while intensity refers to the severity of the impact. Id. The regulations include a list of ten intensity factors, four of which EPIC argues are applicable in this case:
Id. at § 1508.27(b).
EPIC also asserts that even if an EIS is not required, the EA itself is inadequate and should be supplemented, citing many of the same reasons pertaining to its EIS arguments. We address these contentions together where appropriate.
B. Harm to the Northern Spotted Owl and its Critical Habitat
One of EPIC's primary arguments is that the Project will harm the northern spotted owl, a threatened species, and its habitat that has been designated "critical habitat" under the ESA. To resolve EPIC's contentions, it is useful to examine the backdrop of the debate and the specific Project parameters.
After significant debate and litigation, the northern spotted owl was listed as a
Debate and litigation continued, however, and ultimately the government adopted the Northwest Forest Plan ("NFP"), which provided "a comprehensive forest management plan for the entire range of the spotted owl. . . ." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1063 (9th Cir.2004). The NFP withdrew 8.8 million acres from potential timber harvesting, and designated approximately 7.4 million acres of forest land as "late successional reserves" ("LSRs").
The Project involves logging on 578 acres scattered throughout the Klamath National Forest. Of this, 125 acres has been designated as "critical habitat" for the spotted owl. All of this critical habitat is outside the LSR and is thus in the "matrix" where timber production is permitted. However, within this 125 acres, only fourteen acres of nesting habitat would actually be removed (five acres from one unit and nine from another). In the third critical habitat unit, fifty-one acres of "high" quality nesting habitat would be degraded to "moderate" quality. The remaining sixty acres within the three critical habitat units is not considered suitable for nesting and roosting but is suitable for dispersal; according to the USFS EA and the FWS Biological Opinion ("BiOp"), all of the habitat units will maintain this dispersal function post-harvest.
1. Harm to the Species
Against this backdrop, EPIC alleges that a full EIS should have been performed or, alternatively, that the analysis of the issue in the EA is inadequate. The Project, EPIC asserts, is likely to affect the northern spotted owl and its critical habitat significantly. EPIC points to portions of the FWS BiOp in which the BiOp notes that "three nest sites could be destroyed" and that the logging will remove "most, if not all, of the small amount of existing nesting habitat" within the critical habitat units.
These statements, however, must be read in context. For example, although the logging will remove existing nesting habitat from two critical habitat units, this amounts to a total of only fourteen acres. Similarly, the Project does not authorize the destruction of any existing nest sites, and surveys and seasonal restrictions operate to protect potentially occupied nest sites. The projected take of three nests or pairs of owls is based on extrapolations from nesting data, and FWS determined that this level of anticipated take was permissible under the ESA.
NEPA regulations direct the agency to consider the degree of adverse effect on a species, not the impact on individuals of that species. See Native Ecosystems, 428 F.3d at 1240 ("[I]t does not follow that the presence of some negative effects necessarily
Next, EPIC argues that an EIS was required because the effects on the spotted owl are too uncertain. EPIC focuses on a statement within the FWS BiOp in which FWS, after analyzing the Project's likely effects based on historic distributions of the spotted owl, notes that if activity centers and home ranges have changed, the effects may be distributed differently but cannot be "accurately described" without additional information. But EPIC fails to recite the remainder of the paragraph, in which FWS goes on to say:
Moreover, as this court has recently pointed out, the regulations do not anticipate the need for an EIS anytime there is some uncertainty, but only if the effects of the project are "highly" uncertain. See Native Ecosystems, 428 F.3d at 1240 ("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."); see also 40 C.F.R. § 1508.27(b)(5).
3. Increased Fire Risk in Critical Habitat
EPIC also alleges that the EA fails to disclose a concern of increased fire risk within critical habitat unit CA-22. However, the EA specifically acknowledges that in each critical habitat area, short-term fuel loading increases will occur but long-term loading will be reduced. It also recognizes that because fire risk is already low in CA-22, the overall benefit in this particular unit would be "minimal." USFS ultimately concludes that the proposed Project is still preferable to the no-action alternative because, without action, fuel loading would increase in the stand over the next five to ten years. The EA thus contains adequate disclosure of the risk and a reasoned evaluation of it, and does not reveal the need for an EIS on this ground.
4. Habitat Connectivity
EPIC further contends that the EA fails to consider habitat connectivity, noting that portions of the critical habitat contain important dispersal habitat linking the LSRs. However, both the EA and the underlying FWS BiOp address connectivity. The EA recognizes the important connectivity and dispersal nature of the habitat, and, with respect to each critical habitat unit, concludes that the dispersal function would be maintained under the Project parameters. The FWS BiOp also addresses the issue, noting that "silvicultural prescription will provide habitat suitable for dispersal within these units by maintaining a minimum canopy closure of 40 percent" and concluding that:
EPIC's claim therefore does not reveal a deficiency in the EA or a "significant" impact warranting a full EIS.
5. Reliance on FWS's "No Jeopardy" Opinion
EPIC also complains that USFS improperly relied on FWS's opinion that the Project would not "jeopardize" the northern spotted owl. EPIC argues that even if the Project does not violate the ESA by threatening the continued existence of a species, an EIS is still required if the Project "may adversely affect" the species. Clearly, NEPA and the ESA involve different standards, but this does not require USFS to disregard the findings made by FWS in connection with formal consultation mandated by the ESA. See, e.g., 40 C.F.R. §§ 1502.21, 1502.24.
Moreover, USFS did not rely solely on the "no jeopardy" conclusion, but on all of the analysis contained in the BiOp, as well as numerous other sources of information. In light of this information, USFS concluded in its FONSI that "[w]hile the Selected Alternative may affect habitat and has the potential to affect individual northern spotted owls, it will not be significant under [NEPA]." Although EPIC seems to urge that any impact to a listed species requires an EIS, USFS correctly argues that the regulation's "intensity" factor focuses on the "degree to which an action may adversely affect" a threatened species or critical habitat. See Native Ecosystems, 428 F.3d at 1240 (rejecting need for EIS despite FONSI's acknowledgment of project's impact on individual goshawks and their habitat, where USFS concluded impact on the species was not significant).
6. Reliance on LSRs
In a somewhat related argument, EPIC contends that USFS (and FWS) improperly relied on the existence of LSRs to diminish the Project's impact on critical habitat. EPIC's argument is based primarily on our recent decision in Gifford Pinchot, 378 F.3d at 1069-76.
Gifford Pinchot involved a challenge under the ESA to FWS regulations defining "adverse modification" of critical habitat and to FWS's reliance on LSRs to compensate for loss of critical habitat in various biological opinions. We invalidated the adverse modification regulation because it did not account for considerations of "recovery" as opposed to "survival" when evaluating adverse modification of critical habitat under the ESA. Id. at 1069-71. We also held that FWS's finding — that loss of critical habitat was not an adverse modification because of the existence of the LSR habitat — was arbitrary and capricious, and noted that this error was not harmless because reliance on the LSRs pervaded the BiOps. Id. at 1076 & n. 12. EPIC argues that FWS's BiOp in this case suffers from similar flaws, while admitting it has not brought an action under the ESA or challenged the BiOp itself.
In the BiOps challenged in Gifford Pinchot, FWS appears to have essentially treated the LSRs as a substitute for critical habitat. Id. at 1075-76. In contrast, although the FWS BiOp in this case does contain some discussion of LSRs, it contains a significant analysis of the Project's effect on critical habitat that is independent of the LSR discussion.
Moreover, even assuming the FWS BiOp is similarly flawed, USFS did not
Although there is some discussion of the existence of LSRs in the EA, in this case (and unlike Gifford Pinchot), reliance on the LSRs does not pervade the EA or FONSI, and USFS did not use the LSRs as a "substitute" for critical habitat.
C. Impacts to Watershed
EPIC contends that an EIS was also necessary because the Project is likely to have significant, short-term adverse impacts on the watershed and because the impacts are "uncertain." EPIC's allegation of "uncertainty" is based on the EA's use of the term "immeasurable" to describe increases in cumulative watershed effects. However, read in the proper context, this term reflects not uncertainty in projecting effects, but USFS's conclusion that any effects would be so negligible that they could not be measured: "These increases would be immeasurable and not likely to adversely affect water quality, anadromous fish habitat or species."
2. Short-term Adverse Effects
EPIC also alleges that the EA's analysis of watershed impacts does not provide the "hard look" required by NEPA, that the agency did not use high-quality information, and that the agency focused disproportionately on the long-term benefits of the Project. Although EPIC alleges that the EA contains "very limited actual analysis of watershed impacts," in fact the EA contains fifteen pages devoted to the watershed issue, describing the existing status of the watershed and the projected impacts of the Project, and including precautions and methods that would be utilized to minimize impacts.
Although "[s]ignificance cannot be avoided by terming an action temporary," 40 C.F.R. § 1508.27(b)(7), an adverse effect still must be significant to require an EIS. The EA does not ignore short-term adverse effects resulting from the Project. The EA addresses such effects throughout the analysis, concluding that both direct and indirect short-term effects will be "minor" or "negligible" for at least seven different, detailed reasons, including various protective measures incorporated into the Project parameters and the small and widely-dispersed nature of the areas affected. Although the EA expects beneficial long-term effects from the Project, it contains a reasoned evaluation of the
3. Cumulative Impacts
In determining whether an action requires an EIS, the agency must consider "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts." 40 C.F.R. § 1508.27(b)(7). EPIC asserts that the EA's analysis of cumulative effects on the watershed was seriously flawed, suggesting that the agency glossed over cumulative effects because the effects of the Project itself are small. However, the entire EA analysis of the watershed impacts is based on a "cumulative watershed effects" ("CWE") model, which incorporates the proposed action's effects together with current conditions and other reasonably foreseeable projects. The EA considers the CWE on a project level and also a larger watershed scale. EPIC does not argue that there is any particular error in using the CWE model; indeed, this court has previously refused to question this methodology, deferring instead to the agency's expertise in developing the model. Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir.1993). The agency considered cumulative watershed effects and provided a significant amount of quantified and detailed information; the EA's analysis was sufficient and did not reveal the need for an EIS.
D. Failure to Include Meteor Timber Sale
EPIC also argues that the EA's overall analysis of cumulative impacts is flawed because USFS failed to consider the impacts of the Meteor Timber Sale. Meteor and Knob were both initially part of a larger project, called "Comet," which was abandoned. When the final Knob EA was issued, the Meteor project had just been proposed, containing some of the units from the original Comet project.
Projects that are "reasonably foreseeable" should be included in the cumulative effects analysis. 40 C.F.R. § 1508.7. In the EA, USFS noted the Meteor proposal but specifically excluded it from its analysis because Meteor was "in the initial planning stage" and "specifics of the units (size and treatment prescription)" had not been identified at that time. Although "[i]t is not appropriate to defer consideration of cumulative impacts to a future date when meaningful consideration can be given now," Kern v. BLM, 284 F.3d 1062, 1075 (9th Cir.2002), nor do "we require the government to do the impractical," if not enough information is available to permit meaningful consideration, Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1215 (9th Cir.1998) (quoting Inland Empire Pub. Lands Council v. USFS, 88 F.3d 754, 764 (9th Cir.1996)). See Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 20, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (noting that once contemplated actions become more formal proposals, later impact statements on those projects will take into account the effect of the earlier proposed actions).
Moreover, later, in response to comments to the EA, USFS did analyze the effect of the Meteor project based on the information known about the proposed project at that time. Cf. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560-61 (9th Cir.2000) (considering evidence that agency rectified NEPA violation). In the comment response, USFS explained
In sum, because the parameters of the Meteor project were unknown at the time of the EA, it was not arbitrary and capricious for USFS to omit the project from its cumulative analysis. Moreover, even if USFS made a clear error of judgment by failing to include this project in the EA, it remedied this error by including a reasonably complete discussion of the issue in the comment response, based on the project parameters that were known at that point in time.
E. Reliance on Mitigation Measures
EPIC also criticizes USFS's reliance on mitigation measures to downplay the adverse effects of the Project. It argues that the EA provides no data supporting the efficacy of its mitigation measures. See Nat'l Parks, 241 F.3d at 733-35 (EIS required where effectiveness of proposed mitigation measures was too uncertain).
This case differs from National Parks, however, because instead of analyzing potential impacts of a proposed action and then developing a plan to mitigate those adverse effects, the Project incorporates mitigation measures throughout the plan of action, so that the effects are analyzed with those measures in place.
The EA also contains very specific and detailed information on the ways that the timber harvest will be conducted in order to minimize effects on wildlife or watershed. In addition to these specifically identified measures, the EA also cross-references applicable Best Management Practices ("BMPs"), attached in an appendix, which are also quite detailed. Compare Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1121 (9th Cir.2000) (upholding mitigation measures where special permit conditions were "extremely detailed," even though all details of mitigation plan were not yet finalized) with Neighbors of Cuddy Mountain v. USFS, 137 F.3d 1372, 1380 (9th Cir. 1998) (holding that "perfunctory description" of mitigation measures was inadequate). The EA also explains that there will be concurrent monitoring of the implementation and effectiveness of these BMPs to aid in timely identification of threats and the need for preventative measures or project modifications. See Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 476 (9th Cir.2000) (upholding discussion of mitigation measures in an EIS where document provides methods for ensuring environmental problems do not develop).
In short, given the specificity of the protection measures, the analysis of the
F. Failure to Consider Reasonable Range of Alternatives
EPIC also complains that the EA is inadequate because it does not analyze an adequate range of alternatives to the proposed action. We recently joined other circuits in holding that "an agency's obligation to consider alternatives under an EA is a lesser one than under an EIS," Native Ecosystems, 428 F.3d at 1246, and went on to hold that USFS considered an adequate range of alternatives when it dismissed four alternatives without detailed consideration and evaluated only two alternatives — the proposed project and a no-action alternative — in detail, id. at 1245-46.
In contrast, the EA here considered in detail a no-action alternative, the proposed Project alternative, and a third alternative that was similar to the Project but did not log any northern spotted owl critical habitat. USFS had also considered six additional alternatives, but eliminated them from detailed study for various reasons. To the extent EPIC argues that USFS did not give a sufficient explanation for rejecting these additional alternatives, the explanations were not arbitrary or capricious, and were tied to the stated purpose of the Project.
G. Short-term Increased Fire Risk
EPIC further asserts that the EA contains inadequate disclosures about short-term increases in fire risk and that the EA does not demonstrate that the Project will meet the goal of reducing overall fire risk. In addition to the discussion noted above regarding fire risk within spotted owl critical habitat, the EA also contains a general section regarding fire risk and clearly discloses both the risk and the steps that will be taken to minimize that risk.
In a similar vein, EPIC contends USFS violated NEPA by failing to document that the Project will meet its stated purpose — i.e., reducing the risk of stand-replacing fires. EPIC asserts that USFS failed to address the "body of scientific literature that directly disputes Defendant's allegations that commercial logging in mature stands will decrease fire danger." USFS responds that all project logging will be accompanied by fuel treatment, citing studies that have, in the agency's view, shown thinning combined with prescribed fire/ fuels treatment has yielded the best results in preventing catastrophic wildfires.
Thus, we conclude that the EA adequately discloses and discusses the short-term increase of fire risk, and USFS's conclusion that the Project will meet the goal of long-term risk reduction is not arbitrary or capricious.
EPIC also brings claims against USFS under the NFMA. The NFMA imposes substantive duties on USFS, including the duty to "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B). NFMA regulations effective at the time of USFS's action required:
36 C.F.R. § 219.19 (2000).
The Klamath Forest Plan identifies twenty-seven "management indicator species" or "MIS." These species are monitored because the species' "population changes are believed to indicate the effects of management activities." 36 C.F.R. § 219.19(a)(1) (2000).
EPIC asserts that USFS failed to comply with its obligations under NFMA because it "improperly relied on habitat quality" rather than undertaking a study of the actual abundance of the individual MIS. The analysis of quality and quantity of habitat, rather than actual MIS populations, is commonly referred to as the "proxy on proxy" methodology. Native Ecosystems, 428 F.3d at 1251. This methodology essentially assumes that "maintaining the acreage of habitat necessary for survival would in fact assure a species' survival." Inland Empire, 88 F.3d at 761.
Although EPIC levels a general attack on the use of habitat as a proxy for population, we have previously endorsed the practice absent some indication in the record that USFS's underlying methodology is flawed. Compare id. at 761 (assumption that maintaining habitat maintains species is "eminently reasonable"); Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1154 (9th Cir.1998) ("We agree that using habitat as a proxy for population is not arbitrary and capricious."); Gifford Pinchot, 378 F.3d at 1066-67 (approving habitat proxy method for northern spotted owl under the ESA); and Native Ecosystems, 428 F.3d at 1251 ("The record does not demonstrate any flaws in the methodology used by the Forest Service to identify goshawk habitat") with Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957, 972(9th Cir.2002) (concluding reliance on habitat existence arbitrary and capricious where forest monitoring report indicated that, because of various invalid assumptions,
In this case, EPIC does not allege any specific deficiency in USFS's methodology with respect to any of the sixteen potentially affected MIS.
We are unpersuaded that such a general statement — part of a forest-wide summary not necessarily applying to any of the MIS possibly affected by the Project — undermines the site-specific, project-specific, and species-specific analysis conducted in the MIS assessment. In addition, we have previously recognized that monitoring difficulties do not render a habitat-based analysis unreasonable, so long as the analysis uses all the scientific data currently available. See Inland Empire, 88 F.3d at 762.
The MIS Assessment supports USFS's conclusion that so little MIS habitat will be altered that the Project will have no significant impact on species population. It was not arbitrary or capricious for USFS to conclude that the Project complied with the NFMA and its viability regulations.
While the Project will have at least some short-term adverse effects on the environment, the question is to what degree. Unfortunately, EPIC "seeks to capitalize on the Forest Service's thorough and candid environmental analysis by seizing on various bits of information and data . . . to claim that substantial questions exist as to whether the[Project] may have a significant effect on the environment." See Native Ecosystems, 428 F.3d at 1240. We find that the EA provided detailed and adequate consideration of information from a wide range of sources, and that USFS's conclusion that the adverse effects would not be "significant" with the meaning of NEPA was not arbitrary and capricious. We affirm the district court's grant of summary judgment on the NEPA claims.
The record does not reveal any specific flaws in USFS's habitat proxy approach in this case, and the MIS Assessment supports USFS's conclusion that the Project complied with NFMA. We therefore also affirm the district court's grant of summary judgment on the NFMA claims.
46 Fed.Reg. 18026, 18037 (1981).