Opposition Brief — MINERAL COUNTY, MONTANA v. Ecology Center, Inc., 127 S. Ct. 931 (2007) (No. 06-344)

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No. 06-344 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

MINERAL COUNTY, et al.,

Petitioners,

ECOLOGY CENTER, INC.,

Respondent.

On Petition tor a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

THOMAS WOODBURY

Counsel of Record

P.O. Box 768]

Missoula. MT $9807

(406) 728-563)

November 2006

JENNIFER SOBLF

BRIAN WOLFMAN

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Respondent

i

QUESTIONS PRESENTED

Should this Court further review the Ninth Circuit’s

holding that, on the particular facts of this case, the U.S.

Forest Service was required under the National

Environmental Policy Act, 42 U.S.C. § 4321 et seq.,

and the National Forest Management Act, 16 U.S.C. §

1604(g)(3)(B), to verify its hypothesis that commercial

thinning and prescribed burning of old-growth stands

would not be harmful before implementing those

practices?

Should this Court further review the Ninth Circuit’s

holding that, in this case, the U.S. Forest Service was

required to collect on-site soil data for affected timber

harvest units?

Should this Court further review the Ninth Circuit’s

holding that a now-repealed regulation promulgated

under the National Forest Management Act and the

applicable Forest Plan require the U.S. Forest Service to

maintain wildlife viability?

ii

CORPORATE DISCLOSURE

Since the decision of the court of appeals, but prior to

the filing of this opposition, Respondent Ecology Center, Inc.,

has become WildWest Institute, Inc. Respondent is a non-

profit, non-stock corporation. Respondent has no parent,

subsidiaries, or affiliates, and no other entity owns any interest

init. For convenience, this opposition refers to Respondent as

Ecology Center, Inc.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED

CORPORATE DISCLOSURE

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

Factual Background

Proceedings Below

REASONS FOR DENYING THE WRIT

A. THE NINTH CIRCUIT CORRECTLY

IDENTiFIED THE APF. “CABLE

RULES CF LAW. ....

THE CIRCUIT COURTS AGREE THAT

NFMA AND NEPA MAY REQUIRE

THE AGENCY TO BRING FORTH

SOME EVIDENCE TO SUPPORT ITS

SRE TAR OIS ce BERG eats wi eee eh ee Rees 5

:. The Court of Appeals’ Opinion

Is Consistent with NEPA and NFMA

The Court of Appeals’ Decision Is

Consistent with the Holdings of this

Court and of the Other Courts of

iV

THERE IS NO SPLIT AMONG THE

CIRCUITS REGARDING THE

APPLICATION OF NFMA OR NEPA

TO ON-SITE VERIFICATION. ............... 13

THERE IS NO SPLIT AMO?’ s THE

CIRCUITS REGARDING WHETHER

NFMA AND ITS IMPLEMENTING

REGULATIONS HAVE A VIABILITY

The Court of Appeals Did Not Read

New Substantive Requirements into

There Is No Circuit Split as to the Role of

Viability in Plans and Projects

Governed by the 1982 Regulations

A SETTLEMENT OF RELATED

LITIGATION FURTHER UNDERMINES

THE CLAIM FOR REVIEW

CONCLUSION

Vv

TABLE OF AUTHORITIES

CASES

Baltimore Gas & Electric Co. v. Natural

Resources Defense Council, Inc.,

462 U.S. 87 (1983)

Chelsea Neighborhood Association y. U.S.

Postal Service, 516 F.2d 378 (2d Cir. 1975)

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971)

Department of Transportation vy. Public Citizen,

541 U.S. 752 (2004)

Dubois v. Department of Agriculture,

102 F.3d 1273 (1st Cir. 1996)

Environmental Protection Information Center v.

U.S. Forest Service,

451 F.3d 1005 (9th Cir. 2006)

Indiana Forest Alliance, Inc. v. U.S. Forest Service,

325 F.3d 851 (7th Cir. 2003)

Inland Empire Public Lands Council v. U.S. Forest

Service, 88 F.3d 754 (9th Cir. 1996)

Kleppe v. Sierra Club,

427 U.S. 390 (1976)

Lands Council v. Powell,

379 F.3d 738 (9th Cir. 2004)

Minnesota Public Interest Research Group v. Butz,

541 F.2d 1292 (8th Cir. 1976)

National Audubon Society v. Department of Navy,

422 F.3d 174 (4th Cir. 2005)

Ohio Forestry Association, Inc. v. Sierra Club,

523 U.S. 726.(1998)

Sierra Club v. Austin,

No. CV-03-22-M-DWM (D. Mont.)........... 18

Sierra Club v. Espy,

38 F.3d 792 (Sth Cir. 1994)

Sierra Club v. Marita,

46 F.3d 606 (7th Cir. 1995)

Sierra Club v. Martin,

168 F.3d 1 (11th Cir. 1999)

Sierra Club v. Department of Transportation,

753 F.2d 120 (D.C. Cir. 1985)

Silva v. Lynn,

482 F.2d 1282 (1st Cir. 1973)

Utah Environmental Congress v. Dale Bosworth,

443 F.3d 732 (10th Cir. 2006)

Vii

STATUTES AND REGULATIONS

5 U.S.C. § 706

16 U.S.C. § 1604 4,7, 9, 12, 16, 17

L2G PS 3 bay «2 | SARUM ARES Al Nie a mc oes, MURS EEA g 1

42 U.S.C. § 4332

36 C.F.R. § 219.19

36 C.F.R. § 219.27

WO CER, $ 1SOZ1 6.6 cd crevervescssheesresnces 4,6,7

WE Sci ee 0 AGA on eS eee new ba ei carer one eee 7

65 Fed. Reg. 67514 (Nov. 9, 2000)

MISCELLANEOUS

S. Ct. R. 10

STATEMENT OF THE CASE

Factual Background

The Lolo National Forest Plan (LNFP) was adopted in

1988. In 2000, following a series of wildfires that burned

approximately 74,000 acres of the Lolo National Forest (LNF), -

the Forest Service began developing the Lolo National Forest

Post Burn Project (the Project), which provided for logging and

road construction activities across approximately 4,600 acres.

Pet. App. 40a. In accordance with the National Environmental

Protection Act (NEPA), 42 U.S.C. § 4321 et seg., the Forest

Service prepared an Environmental Impact Statement (EIS).

The Service considered several alternatives for the Project and

eventually selected alternative number five, which involved the

commercial thinning of small diameter timber and prescribed

burning in old-growth forest stands, as well as salvage logging

of burned and insect killed timber.’ Pet. App. 3a.

The EIS had three distinct characteristics relevant to the

issues now before this Court. First, the EIS provided no

evidence that the logging and burning of old-growth stands

would benefit, or at least not harm, species that live in those

stands, such as the pileated woodpecker. Jd. 7a. Second,

despite the LNFP’s requirement that the Forest Service take

steps to maintain population viability for at-risk species, and the

fact that the Forest Service has designated the black-backed

woodpecker as a “sensitive species,” the Service did not explain

the basis for its conclusion that the removal of post-burn

habitats would not adversely affect the black-backed

woodpecker, which depends on a post-burn habitat. /d. 12a-

‘Salvage logging is the logging of dead, burned, or diseased

trees.

2

13a.’ Finally, although the Regional Soil Quality Standard

prohibited the Forest Service from taking any action that would

create detrimental soil conditions in fifteen percent of the area

to be salvage harvested, see Forest Service Manual (“FSM”) R1

Supplement 2500-99-1, the Forest Service declined to confirm

the accuracy of its estimated soil conditions by direct on-site

observation of the activity areas. Pet. App. 19a.

Procedural Background

Respondent Ecology Center, Inc., filed its complaint in

the United States District Court for the District of Montana,

challenging the Forest Service’s decision to permit commercial

logging in old-growth stands, the adequacy of the Forest

Service’s analysis of the impact of salvage logging in post-fire

habitat, and the adequacy of the Forest Service’s analysis of soil

quality. The district court denied Ecology Center’s motions for

a temporary restraining order and a preliminary injunction, Pet.

App. 41a, and later granted summary judgment in favor of the

Forest Service.

The Ninth Circuit reversed, with one judge dissenting.

The majority held that the Forest Service’s decision to permit.

logging in old-growth stands and post-fire habitats was arbitrary

and capricious because, among other things, the Forest Service

took no steps to verify its hypothesis that logging in old-growth

The Forest Service Manual defines sensitive species as

“{t]hose plant and animal species identified by a regional forester for °

which population viability is a concern, as evidenced by: (a)

[s]ignificant current or predicted downward trends in population

numbers or density[, or] (b) [s]ignificant current or predicted

downward trends in habitat capability that would reduce a species’

existing distribution.” FSM 2670.5.

3

stands was beneficial to dependent species, did not consider the

effect of salvaging on the black-backed woodpecker’s viability,

and did not directly observe the soil conditions in the affected

area. Petitioners’ request for panel rehearing and rehearing en

banc were denied, with all three panel judges voting to deny

both requests and no other judge requesting rehearing en banc.

Id. 55a.

Petitioners have now sought review in this Court. The

Forest Service—the defendant below and the agency charged

with implementing the two federal environmental laws at issue

in this case—has not sought review.

REASONS FOR DENYING THE WRIT

Contrary to Petitioners’ assertions, the court of appeals

imposed no procedural or substantive requirements on the

Forest Service other than those found in NEPA and the National

Forest Management Act (NFMA). Furthermore, the court of

appeals’ holding that the Forest Service’s decision was arbitrary

and capricious is entirely fact-based; the court correctly

identified the applicable law, and applied it to the facts before

it. Because the petition presents no legal issue that has divided

the lower courts, and because further review by this Court

would not provide meaningful guidance for future litigation, the

Court should deny the petition.

A. THE NINTH CIRCUIT CORRECTLY

IDENTIFIED THE APPLICABLE RULES OF

LAW.

In reviewing the Forest Service’s decision to treat old-

growth stands through prescribed burning and commercial

logging, the court of appeals correctly identified and applied the

4

proper standard of review in determining whether the Service

complied with NFMA and NEPA. First, the court recognized

that its review of the Forest Service’s decision under both

NFMA and NEPA is controlled by the Administrative -

Procedure Act, 5 U.S.C. § 706(2)(A), and, therefore, the court

reviewed the Forest Service’s actions only to determine if they

were “arbitrary, capricious, an abuse of discretion, or otherwise

contrary to law.” Pet. App. 5a (citing Lands Council v. Powell.

379 F.3d 738, 743 (9th Cir. 2004) (citing 5 U.S.C. § 706(2))).

Similarly, the court of appeals correctly stated the law

under NEPA. It acknowledged that NEPA does not impose

substantive requirements, but rather is designed to “force

agencies to publicly consider the environmental impacts of their

actions before going forward.” Pet. App. 6a (quotation

omitted). The court correctly noted that NEPA requires the

Forest Service to prepare a detailed EIS, which “provide[s] a

full and fair discussion of significant environmental impacts

and . . . inform[s] decisionmakers and the public of the

reasonable alternatives which would avoid or minimize adverse

impacts or enhance the quality of the human environment.” Jd.

(citing 40 C.F.R. § 1502.1).

Finally, the court correctly identified the reach of

NFMA’s procedural and substantive requirements. The court

correctly held that NFMA requires the Forest Service to develop

a land and resource iuanagement plan and that subsequent

agency action must comply with both that plan and NFMA. Jd.

5a. The court correctly identified NFMA’s mandate to preserve

diverse wildlife and to maintain soil productivity. Jd. 6a (citing

16 U.S.C. § 1604(g)). Further, the court correctly held that,

under NFMA, the agency’s choice of methodology is entitled to

deference. /d. 8a.

5

Petitioners’ request for further review is based entirely

on arguments that the court of appeals incorrectly applied the

APA’s standard of review to the facts before it. Pet. 6.

Although the court of appeals properly applied the APA’s

deferential standard, even if it had not, Petitioners’

disagreement with the lower court’s application of properly

stated rules of federal law does not provide grounds for review

by this Court. See S. Ct. R. 10.

B. THE CIRCUIT COURTS AGREE THAT

NFMA AND NEPA MAY REQUIRE THE

AGENCY TO BRING FORTH SOME

EVIDENCE TO SUPPORT ITS

HYPOTHESIS.

In requiring that the Forest Service conduct some

research to verify that treating old-growth stands will not harm

dependent species, the court of appeals’ decision is entirely -

consistent with NEPA and NFMA, as well as this Court’s

Opinions construing those Acts. As such, it does not im, use

any new substantive or procedural requirements on the Forest

Service. Notably, Petitioners do not (and cannot) argue that the

decision below is in tension with any other circuit court

decision because no split exits over whether, in some instances,

the Forest Service must conduct some research to verify a

hypothesis about the effect of a federal action on the

environment.

The Court of Appeals’ Opinion Is

Consistent with NEPA and NFMA.

The court of appeals held that, by failing to take any

steps to verify its hypothesis that treatment of old-growth stands

would not harm dependent species, the Forest Service’s

6

decision was arbitrary and capricious. Specifically, the court

held that the Forest Service acted arbitrarily and capriciously

because it did not test its hypothesis that thinning old-growth

stands by commercial logging and prescribed burning will not

harm species that depend on those stands to provide a habitat.

That decision is entirely consistent with NEPA and NFMA.

NEPA requires that an agency prepare an EIS before

undertaking a project that will significantly affect the quality of

the environment. 42 U.S.C. § 4332(2)(C). The EIS must

“provide full and fair discussion of significant environmental

impacts and shall inform decisionmakers and the public of the

reasonable alternatives which would avoid or minimize adverse

impacts or enhance the quality of the human environment.” 40

C.F.R. § 1502.1. As many courts have recognized, and as the

implementing regulation indicates, one of the purposes of an

EIS is to inform the public of the reason for an agency’s action.

See Dept. of Transp. v. Public Citizen, 541 U.S. 752, 768

(2004) (“The ‘informational role’ of an EIS is to ‘give the

public the assurance that the agency has indeed considered

environmental concerns in its decisionmaking process... .”’)

(quoting Baltimore Gas & Elec. Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87, 97 (1983)). NEPA’s

requirement that an agency prepare an EIS is not satisfied

simply by the preparation of a document based on an unverified,

unresearched hypothesis, in large part because such a bald

conclusion, without more, does not demonstrate that the agency

has properly considered the relevant environmental concerns.

In addition, without explaining why the agency believes a

proposed action will (or will not) have a specific effect, an EIS

cannot provide a “full and fair discussion of significant

environmental impacts” that may result from agency action. 40

C.F.R. § 1502.1. Put otherwise, without such an explanation,

the public will have no basis for evaluating the proposed action.

-

Contrary to Petitioners’ argument, an agency’s use of a

new scientific theory to evaluate proposed action does not

relieve the agency of verifying the accuracy of that theory.

NEPA’s implementing regulations establish that unless the cost

of obtaining information necessary to make a reasoned choice

among alternatives is exorbitant, th ; agency must include that

information in the EIS. See 40 C.F. R. § 1502.22(a) (“If the

incomplete information relevant to reasonably foreseeable

significant adverse impacts is essential to a reasoned choice

among alternatives and the overall costs of obtaining it are not

exorbitant, the agency shall include the information in the

environmental impact statement.”). In this case, the Forest

Service declined to include any information verifying its theory

that burning and commercially logging old-growth stands would

benefit, or at least not harm, the species that depend on those

stands, nor did it indicate that the cost of providing such

information would be exorbitant.’ Pet. App. 12a. To the

contrary, the Forest Service had subjected old-growth stands to

commercial logging and prescribed burning in the past, and thus

had an opportunity to directly observe the effects of those

practices on dependent species, id. 9a, as well as an affirmative

obligation to do so under the terms of the LNFP. As such, the

decision that the Forest Service acted arbitrarily and

*Any argument that data on the effect of the proposed

treatment on dependent species were not essential must fail. The

LNFP explicitly requires that the Forest Service maintain 80% of

those species dependent upon the snags (dead trees) that are normally

found in an unmanaged forest. Lolo National Forest Pian I-14.

Because NFMA requires that projects comply with the mandates set

forth in the relevant forest plan, 16 U.S.C. § 1604(i), the Service is

required under NFMA to insure that the old-growth treatment would

not harm dependent species.

8

capriciously by failing to take any steps to verify its hypothesis

is consistent with the mandates of NEPA.

A close reading of the court of appeals’ decision

underscores the narrowness of that court’s review of the Forest

Service’s action. The court’s decision does not require that the

Service reach a particular result, but rather that it follow

NEPA’s procedures. Jd. (“While the Service’s predictions may

be correct, the Service has not yet taken the time to test its

theory with any ‘on the ground analysis,’ despite the fact that it

has already treated old-growth forest elsewhere and therefore

has had the opportunity to do so.” (citation omitted)). In

challenging the Forest Service’s unverified hypothesis that

salvage logging will not destroy the black-backed woodpecker’s

habitat, the court went out of its way to make assumptions

favorable to the Forest Service’s actions, including the

assumption that the 2000 fires created post-fire habitat for

dependent species, thus reducing the impact of salvage logging.

Even assuming all conditions favorable to the Forest Service,

however, the Service failed to comply with NEPA’s procedural

requirements. For example, even if the 2000 fires created post-

burn habitat, the EIS does not indicate how much post-burn

habitat dependent species require, making meaningful review

_____of the Service’s decision to destroy some of that habitat

impossible. /d. 16a.

Like NEPA, NFMA is not satisfied by hollow

allegations that an action will not be harmful to the

environment. NFMA requires not only that the Forest Service

comply with certain procedural requirements, like those set

forth in NEPA, but that the agency take actions to advance

certain congressionally identified substantive objectives. See

Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 737

(1998). The Forest Service must protect forest resources to

9

provide for wildlife, 16 U.S.C. § 1604(g)(3)(A), and must

provide for diversity of plant and animal communities. Jd. §

1604(g)(3)(B). Under NFMA, the Forest Service is required to

develop and implement a land and resource management plan

that complies with NFMA’s substantive requirements,

including the protection of wildlife. Jd. § 1604(a). Subsequent

actions, such as the Project at issue here, must comply with both

the relevant forest plan and the substantive mandates of NFMA.

Id. § 1604(1).

By failing to verify its hypothesis that thinning old-

growth stands through burning and commercial logging will not

harm dependent species, the Forest Service could not comply

with NFMA’s substantive mandates. For instance, the LNFP

explicitly requires that “sufficient snags and dead material will

be provided to maintain 80 percent of the population of snag-

using species normally found in an unmanaged Forest.” LNFP

I-14. There is no dispute that the Forest Service failed to verify

its hypothesis that the treatment proposed would benefit, or at

least not harm, snag-dependant species such as the black-

backed woodpecker. Under NFMA, the Forest Service was

required to comply with the LNFP, 16 U.S.C. § 1604(1), and the

Service’s failure to do so here provides an additional basis for

the court’s holding that the Service violated that Act. Further,

the Forest Service’s failure to verify its hypothesis is an

especially egregious violation of NFMA because the Service

had similarly treated old-growth stands elsewhere and thus had

an opportunity to test its effects on dependent species. Pet.

App. 9a. Thus, the court’s holding that the Forest Service failed

to fulfill is responsibilities under the NFMA is entirely

consistent with the substantive requirements of that Act.

10

The Court of Appeals’ Decision Is

Consistent with the Holdings of this

Court and of the Other Courts of

Appeals.

Petitioners argue that the holding below conflicts with

this Court’s precedent, insofar as it concluded that the Forest

Service violated NEPA and NFMA by failing to provide any

evidence to support its unverified hypothesis. This Court has

repeatedly held that NEPA requires agencies to take a “hard

look” at the environmental consequences of agency action. See

Baltimore Gas, 462 U.S. at 97; Kleppe v. Sierra Club, 427 US.

390, 410 n.21 (1976); Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971). The court’s holding, that

the Forest Service violated NEPA by failing to assess whether

old-growth treatment would harm dependent species, follows

this Court’s repeated holdings that the Act requires the Service

to examine environmental consequences before taking federal

action.

Petitioners’ argument that the court of appeals should

have been especially deferential because the Forest Service was

making a prediction within its area expertise at the “frontiers of

science,” Baltimore Gas, 462 U.S. at 103, is misplaced. First,

the court did not evaluate the content of the Forest Service's

prediction, but considered only whether the EIS contained

enough information to support its conclusion. Second, unlike

the agency’s prediction in Baltimore Gas, the Forest Service’s

hypothesis as to the effect of the removal of old growth on

dependent species was neither on the frontiers of science nor

difficult to verify. In Baltimore Gas, the Court reviewed the

amount of evidence necessary to support the Nuclear

Regulatory Commission’s adoption of a table measuring the

resources used and effluents released by a light-water reactor’s

1]

fuel cycle activities over the course of a year’s operation. Jd. at

91. Thecore of the controversy was the Commission’s decision

to affix a zero value to the environmental impact of long-term

Storage of transuranic and high-level waste, because the

Commission staff believed that the technology could be

developed to isolate that waste from the environment. Jd. at 91-

92. Here, by contrast, the court reviewed only whether

commercial logging and prescribed burning of old-growth

stands would harm dependent species. As noted earlier, and

unlike in Baltimore Gas, the Forest Service was able to assess

the effect the treatments might have had because the Forest

Service had treated similar old-growth stands in the past. Pet.

App. 9a. The validity of the Forest Services’s assumption does

not depend on future technological developments, nor is it

undiscoverable.

Other circuits that have considered whether agencies

may act under NEPA without providing evidence supporting

their conclusions regarding the environmental consequences of

federal action have taken the same approach as the court below.

See Dubois v. Dept. of Agriculture, 102 F.3d 1273, 1287 (1st

Cir. 1996) (holding that NEPA requires agencies to provide

more than mere assertions, but must indicate their basis for

them); Chelsea Neighborhood Ass'n v. U.S. Postal Service, 516

F.2d 378, 389 (2d Cir. 1975) (holding that without detailed

analysis, an agency’s conclusions do not satisfy NEPA); Silva

v. Lynn, 482 F.2d 1282, 1287 (1st Cir. 1973) (holding that

NEPA requires that “the agency . . . go beyond mere assertions

and indicate their basis for them”); cf Minnesota Public

Interest Research Group v. Butz, 541 F.2d 1292, 1301-02 (8th

Cir. 1976) (holding that Forest Service’s actions were not

arbitrary and capricious because the EIS contained conclusions

supported by intensive research, including thousands of pieces

12

of information). Because no split among the circuits exists,

further review is unnecessary.

Furthermore, the court’s holding that the Forest Service

violated NFMA by failing to verify that its proposed treatment

would not harm dependent species is consistent with other

courts’ reading of that Act. Although this Court has not yet had

the opportunity to interpret NFMA, it has recognized that the

Act requires the Forest Service to create plans that provide for

coordinated use of forests. Ohio Forestry Ass'n, 523 U.S. at

737 (citing 16 U.S.C. § 1604(e), which requires forest plans to

“include coordination of outdoor recreation, range, timber,

watershed, wildlife and fish, and wilderness”). The lower

court’s decision that the Forest Service failed to comply with

NFMaA by assuming that old-growth treatment would benefit

dependent species is consistent with this Court’s understanding

of that Act.

Similarly, the holding below is consistent with the

decision of the only other circuit court to have considered

whether NFMA requires the Service to put forth at least some

evidence of its hypotheses. In that case, the Eleventh Circuit

found that by making assertions in the absence of evidence, the

Forest Service violated NFMA. See Sierra Club v. Martin, 168

F.3d 1, 5 (11th Cir. 1999) (concluding that deference should not

be accorded to Forest Service when it fails to present evidence

to support its assertions). No court has held that the Forest

Service meets its burden under NFMA in the absence of

evidence that its proposed action complies with the

congressional mandates set forth in the Act. Thus, review

should be denied on the NFMA issue as well.

13

THERE IS NO SPLIT AMONG THE

CIRCUITS REGARDING THE

APPLICATION OF NFMA OR NEPA TO ON-

SITE VERIFICATION.

Contrary to Petitioners’ argument, the court of appeals

did not impose procedural or substantive requirements not

found in NEPA. Rather, the court held only that the Forest

Service acted arbitrarily when it found, in the absence of any

concrete evidence, that the proposed project would not violate

the Regional Soil Quality Standard. The court determined that

the Service’s review of the effects of the proposed plan was

insufficient because the Service declined to directly observe the

soil in the affected areas, Pet. App. 19a, and did not conduct any

other on-site verification of soil conditions. Rather, the Forest

Service merely estimated soil conditions on the basis of maps,

samples, aerial reconnaissance, and computer modeling. The

court’s conclusion 1s consistent with the Service’s own expert,

who argued that the Service’s conclusions about the activity

areas were not reliable because the Service failed to test the

activity areas themselves, as required by the standard. Jd. 23a.

Other courts of appeals to have considered challenges to

agency action under NEPA—the Fourth and D.C. Circuits—

have reached consistent conclusions: Data gathered on-site

satisfies NEPA’s procedural requirement and may be necessary

to a full and fair discussion of the environmental impacts of a

proposed course of action. See Nat'l Audubon Soc’y v. Dept. of

Navy, 422 F.3d 174, 187 (4th Cir. 2005) (noting that the Forest

Service was required to gather on-site data to determine where

waterfowl loafed and foraged); cf Sierra Club v. Dept. of

Transp., 753 F.2d 120, 129 (D.C. Cir. 1985) (rejecting

plaintiff's challenge to FAA’s actions because the agency

gathered on-site noise measurements, thereby satisfying

14

NEPA’s procedural requirements). Like the decision below,

these cases acknowledge that, in some instances, the Forest

Service will be required to conduct some on-site data collection

to comply with the procedural requirements of NEPA and to

ensure that proposed federal action does not violate NFMA’s

substantive mandates.

Notably, Petitioners do not—and cannot—argue that

there is a split among the circuits on this question. And, indeed,

no court has held that NEPA never requires an EIS to contain

site-specific analysis. Such a per se rule would overlook a

fundamental NEPA precept: that the depth of analysis needed

for a proper EIS depends on the nature of the proposed project.

See Dubois, 102 F.3d at 1287 (“What level of detail is

sufficient depends on the nature and scope of the proposed

action.”’).

Curiously, the Forest Service acknowledged that on-site

verification would be necessary before going forward with the

Project. Pet. App. 24a. As the court of appeals observed, “[t]he

fact that the Service plans to conduct on-site verification prior

to any harvesting implies that even the Service recognizes that

its soil-quality estimates need to be verified.” Jd. Thus, the

holding that NEPA and NFMA require the Forest Service to

conduct on-site verification of its soil-quality estimates is not

only consistent with those Acts, this Court’s jurisprudence, and

the holdings of its sister courts, but is consistent with the Forest

Service’s own statements that further study of the soil effects is

necessary before implementing agency action.

15

THERE IS NO SPLIT AMONG THE

CIRCUITS REGARDING WHETHER NFMA

AND ITS IMPLEMENTING REGULATIONS

HAVE A VIABILITY MANDATE.

The court of appeals held that the Forest Service’s

decision violated NFMA because the Forest Service failed to

analyze and explain the effect salvage logging would have on

the black-backed woodpecker. Petitioners argue that the court

read a new substantiye requirement into NFMA, and that

therefore, the court’s decision conflicts with those of other

circuits. Petitioners are incorrect.

1, The Court of Appeals Did Not Read

New Substantive Requirements into

NFMA.

In requiring that the Forest Service take steps to

maintain wildlife viability, the Ninth Circuit did not read a new

substantive requirement into NFMA or its implementing

regulations. NFMA’s 1982 regulation, 36 C.F.R. § 219.19,

required the Forest Service to “maintain viable populations of

species across the forest.” Although that regulation was

repealed in 2000, Petitioners cannot and do not dispute that it

applies to the LNFP here, which was adopted in April 1986

pursuant to NFMA’s 1982 regulations.‘

‘Petitioners’ argument that neither NFMA nor its

implementing regulations contain a viability mandate assumes that

the Project is governed by the current regulations, which were not

finalized until 2005. After the 2000 repeal of the 1982 regulation, the

Forest Service was still obligated to maintain wildlife viability from

November 9, 2000, until January 2005, under transitional rules,

(continued...)

16

Additionally, LNFP explicitly adopts the mandate to

maintain wildlife viability, especially for species for which

survival is a concern, such as sensitive species. See LNFP Il-1.

Specifically, the LNFP requires that, for plants and animals for

which viability is a concern, the Forest Service must “manage

to maintain population viability.” LNFP I-14. Once a Forest

Plan is adopted, NFMA prohibits any site-specific activities

inconsistent with that plan. 16 U.S.C. § 1604(1); Inland Empire

Pub. Lands Council v. U.S. Forest Service, 88 F.3d 754, 757

(9th Cir. 1996). Accordingly, the court of appeals correctly

held that NFMA requires that the Project contain measures to

maintain wildlife viability.

Moreover, even if the Forest Service had not been

bound by the LNFP’s mandate to maintain viability, the Project

itself incorporates the 1982 regulations. See Record of

Decision, ch. 9 pg. 36 (citing 36 C.F.R. § 219.27). The Service

expressly incorporated the 1982 rules into its final decision and

was thus bound by 36 C.F.R. § 219.19’s viability mandate. See

Envtl. Protection Info. Center v. U.S. Forest Service, 451 F.3d

1005, 1017 n.8 (9th Cir. 2006) (noting that the Forest Service

‘(...continued)

which governed until the new regulations were implemented. Like

the 1982 rules, the transitional rules required the Forest Service to

maintain wildlife viability. National Forest System Land and

Resource Management Planning, 65 Fed. Reg. 67514-01, 67518

(Nov. 9, 2000); see Utah Envtl. Congress v. Dale Bosworth, 443 F.3d

732, 737 (10th Cir. 2006). Petitioners did not argue below that the

Forest Plan, and thus the Project, are governed by the new

regulations. Thus, any argument that the Plan is not governed by the

now-repealed regulation is waived and should not be considered by

this Court.

i7

is required to comply with regulations and forest plan in place

at the time of its decision).

Finally, the Project is unique insofar as it is governed by

regulations that have since been repealed. Because the court of

appeals’ decision construes regulations that apply to a small set

of the Service’s actions, the practical application of a decision

in this case is necessarily limited to plans and projects governed

by the now-repealed regulations. The Lolo National Forest is

now in the process of revising its Forest Plan under the new

rules. See http://www. fs.fed.us/rl/wmpz/ (Lolo Revised Plan

proposed on May 16, 2006). For this reason as well, this

Court’s review is unwarranted.

2. There Is No Circuit Split as to the Role

of Viability in Plans and Projects

Governed by the 1982 Regulations.

In recognizing that NFMA requires the Forest Service

to insure that its decisions will not undermine wildlife viability,

the court of appeal’s decision is consistent with the holding of

every other circuit to construe NFMA, the 1982 implementing

regulations, and the 2000 transitional rules. See Dale Bosworth,

443 F.3d at 744 (rejecting plaintiffs challenge to a project

because it was “not likely to result in a trend towards federal

listing or loss of viability”); Indiana Forest Alliance, Inc. v.

U.S. Forest Service, 325 F.3d 851, 861-62 (7th Cir. 2003) (“The

NFMA further requires that each plan set forth objectives to,

among other things, ensure a diversity of plant and animal

species and maintain the viability of desired species.”) (citing

16 U.S.C. § 1604(e)); Martin, 168 F.3d at 3 n.2 (noting that

forest management plans must “maintain the viability of native

and desired non-native vertebrate species’’); Sierra Club v.

Espy, 38 F.3d 792, 800-01 (Sth Cir. 1994) (“The regulations

18

implementing NFMA provide a minimum level of protection by

mandating that the Forest Service manage fish and wildlife

habitats to insure viable populations of species in planning

areas.”’).

Petitioners misread Sierra Club v. Marita, 46 F.3d 606

(7th Cir. 1995). There, the plaintiff argued that NFMA required

the Forest Service to maintain plant and animal diversity as

distinct from tree diversity and apply an ecological approach to

forest management. Jd. at 619. Although the court rejected the

argument that the Forest Service is obligated to incorporate

conservation biology into its diversity analysis, the Seventh

Circuit approved of the Forest Service’s population viability

analysis and emphasized the importance of analyzing the

viability of species that are endangered. Jd. at 620. Rather than

rejecting a reading of NFMA’s diversity provision that requires

the Forest Service to maintain wildlife viability, the Seventh

Circuit embraced that construction. See Indiana Forest

Alliance, 325 F.3d at 861-82. Thus, the Seventh Circuit’s

ruling underscores the circuits’ uniform approach to NFMA’s

viability mandate.

E. A SETTLEMENT OF RELATED

LITIGATION FURTHER UNDERMINES THE

CLAIM FOR REVIEW.

In contemporaneous litigation, the Sierra Club sued the

Forest Service based on similar objections to the Project. Pet.

App. 4a; see Sierra Club v. Austin, No. CV-03-22-M-DWM (D.

Mont.). Sierra Club and the Forest Service entered into a

settlement, which reduced environmental impacts that would

have been caused by the Plan. For example, after the

settlement, the number of acres of potential black-backed

19

woodpecker habitat subject to salvage logging was reduced

from 815 to 155. Pet. App. 15an.5.

As the Sierra Club settlement indicates, the parties here

are fully capable of sorting through the remaining issues

through negotiation. The successful negotiations between the

Sierra Club and the Forest Service, and the potential for similar

negotiations between the parties here, provides yet another

reason for this Court to deny review in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Jennifer Soble

Brian Wolfman

Public Citizen Litigation Group

1600 20th Street, NW

Washington, DC 20009

~ (202) 588-1000

Thomas Woodbury

Counsel of Record

P.O. Box 7681,

Missoula, MT 59807

(406) 728-5631

Counsel for Respondent

November 2006