In re Big Thorne Project and 2008 Tongass Forest Plan, __ F.3d __, 2017 WL 2233755 (9th Cir. May 23, 2017). Plaintiffs, environmental conservation and activist organizations, brought suit against the U.S. Forest Service and Department of Agriculture (collectively, “Forest Service”) on behalf of individuals who fish, hunt, and “enjoy” Alaska’s Tongass National Forest. Id. at *3. Plaintiffs alleged that the Forest Service violated the National Forest Management Act (the “Act”) by approving either the 2008 Tongass Forest Plan or the Big Thorne logging project. Id. at *2. The Ninth Circuit affirmed the district court’s summary judgment in favor of the Forest Service, holding that the Forest Service’s approval was neither arbitrary nor capricious because the Act expressly grants the Forest Service discretion to balance competing interests, and the Forest Service reached its determination after a thorough analysis rationally supported by the evidence. Id. at *5.

The Big Thorne logging project permits timber harvesting in the Tongass National Forest, which includes rainforest on an island on which the Alexander Archipelago wolf resides. Id. at *2. The rare (but not threatened or endangered under the Endangered Species Act) wolf depends on deer living in the rainforest to survive. Id. The Forest Service adopted the Tongass Forest Plan in 2008. Id. The Forest Plan included two guidelines recommended by a team of scientists to address concerns regarding the habitat of the Alexander Archipelago wolf. Id. The first guideline, known as the “wolf provision,” stated that the Forest Service would “[p]rovide, where possible, sufficient deer habitat capability to . . . maintain sustainable wolf populations” and noted that 18 deer per square mile was generally considered to be sufficient habitat capability. Id. The second guideline, known as the “road provision,” stated that “[t]otal road densities of 0.7 to 1.0 mile per square mile or less may be necessary” to protect the wolves. Id. The Ninth Circuit rejected plaintiffs’ claim that the Forest Service’s approval of the logging project violated the Forest Plan. Id. at 4. Regulations in place at the time the Forest Plan was approved “required that national forests ‘be managed to maintain viable populations of existing native and desired non-native vertebrate species.’” Id. at *3. Under the regulations, a “viable population” meant one with enough “reproductive individuals to insure its continued existence is well distributed in the planning area.” Id. Although the “wolf provision” confusingly used the term “sustainable” rather than “viable,” the Ninth Circuit determined that the terms need not be parsed because the proper inquiry was whether the Forest Service unlawfully concluded that its Forest Plan would safeguard the continued and well-distributed existence of the Alexander Archipelago wolf. Id. The Ninth Circuit further found that the Forest Plan’s inclusion of language stating that the Forest Service would “[p]rovide, where possible, sufficient deer habitat capability to . . . maintain sustainable wolf populations” was aspirational, not obligatory. Id. Thus, the Ninth Circuit agreed that the guideline gave the Forest Service “flexibility and discretion” to balance competing objectives and did not require them to maintain viability of the wolf population. Id.

The Ninth Circuit also rejected plaintiffs’ argument that this broad discretion and the failure to set hard viability minimums were itself a violation of the Act. Id. at *4. The Ninth Circuit noted that there is no authority compelling an agency to set specific standards for protecting a species that has not been granted protection under the Endangered Species Act. Id. Furthermore, the court explained that the goal of the Act was to permit the Forest Service to “manag[e] competing uses, none to the exclusion of others.” Id. Thus, the Act could not be fairly interpreted to require the Forest Service to establish set viability minimums that could not be breached. Id.

The Ninth Circuit held that the Forest Service met its legal obligation to supply “a rational connection between the facts found and the conclusions made” because the Forest Plan concluded that it will sustain viable wolf populations, considered various alternatives, and outlined a multipart strategy to achieve its goal consistent with its analysis and discussion. Id. at *5. Accordingly, the Ninth Circuit refused to substitute its judgment for that of the Forest Service in determining the proper balance of competing interests under the Act, stating that “[i] n the end, the Service chose jobs over wolves. We have no authority to second-guess that judgment.” Id. The Ninth Circuit rejected plaintiffs’ claim that the Big Thorne logging project was inconsistent with the Forest Plan for the same reason. Id.

This article originally appeared in the American Bar Association’s “Environmental Litigation and Toxic Torts Committee Newsletter.”

Source: Lexology


John Stewart
Editor, OutdoorWire.com
Resources Consultant, California Four Wheel Drive Association
Board of Directors, BlueRibbon Coalition