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

No. 06-344

IN THE

Supreme Court of the United States

MINERAL COUNTY. TOWN OF SUPERIOR, ST. REGIS SCHOOL

DisTRICT, SUPERIOR SCHOOL District No. 3, MONTANA

COALITION OF ForREST COUNTIES and TRICON TIMBER LLC.

Petitioners,

V.

ECOLOGY CENTER, INC..

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF AMERICAN FOREST

RESOURCE COUNCIL, AMERICAN FOREST & PAPER

ASSOCIATION, ALASKA FOREST ASSOCIATION,

ASSOCIATED OREGON LOGGERS, CALIFORNIA

FORESTRY ASSOCIATION, INTERMOUNTAIN FOREST

ASSOCIATION, MONTANA LOGGING ASSOCIATION,

MONTANA WOOD PRODUCTS ASSOCIATION,

NORTHWEST MINING ASSOCIATION AND

WASHINGTON CONTRACT LOGGERS ASSOCIATION

IN SUPPORT OF PETITIONERS

Mark C. RUTZICK

Counsel of Record

Mark C. Rvutzick, P.C.

3407 SW Stonebrook Dr, Suite B

Portland, OR 97239-1269

$03-244-3030

Counsel for Amici Curiae

i

QUESTIONS PRESENTED

1. Does the Nationai Environmental Policy Act, 42 U.S.C. §§4321

et seq., or the National Forest Management Act, 16

U.S.C.§1604(g)(3)(B), impose on the U.S. Forest Service a

procedural requirement to conduct long-term, on-the-ground research

to definitively conclude there will be beneficial effects to wildlife

from thinning trees in old growth stands before deciding to conduct

such a project to improve forest health, reduce the risk of wildfire

and safely reintroduce prescribed fire?

2. Does the National Environmental Policy Act, 42 U.S.C. §§4321

et seq., impose on the U.S. Forest Service a procedural and

substantive requirement to collect on-site soil data for every timber

harvest unit before it completes the final environmental impact

statement?

3. Does the National Forest Management Act, 16

U.S.C.§ 1604(g)(3)(B), impose a “mandate to maintain wildlife

viability” on the U.S. Forest Service?

Table of Contents

INTEREST OF AMICI] CURIAE

SUMMARY OF ARGUMENT

THE DECISION BELOW FURTHER EXTENDS THE NINTH

CIRCUIT’S INCREASINGLY ABERRANT NEPA

JURISPRUDENCE BY SEVERELY REDUCING THE

DEFERENCE A COURT MUST GIVE A FEDERAL

AGENCY’S PREDICTIVE SCIENTIFIC JUDGMENTS,

CONTRARY TO THIS COURT’S PRECEDENTS AND IN

CONFLICT WITH RULINGS OF NINE OTHER CIRCUITS

A. The Court should exercise its supervisory powers to constrain

the remarkable and growing divergence between the Ninth

Circuit’s aberrant NEPA jurisprudence and the law of all the other

circuits 6

B. The Ninth Circuit's new deference standard departs sharply

from this Court’s well-settled precedents ................::ccseseeeeeeeeees 10

C. The Ninth Circuit’s new deference standard conflicts with

established law from nine other circuits

1. Agencies may rely on models and other expert predictive

methodologies without first conducting on-the-ground

I sitesi titin sae ieiidaesiccirtacichcsipcbaaticcndan liatliaitenitinsscaibagat 15

2. Agency models and other expert predictive methodologies are

entiudcd to particularly great judicial deference

ill

3. A party challenging an agency decision has the burden of

showing an error by the agency

CONCLUSION

Table of Authorities

Page

Federal Cases

Allegheny Def. Project Inc. v. U.S. Forest Serv., 423 F.3d 215

(3d Cir. 2005)

Amoco Prod. Co. v. Village of Gambe!?, 480 U.S. 531 (1987)

Appalachian Power Co. v. Envtl. Prot. Agency, 249 F.3d 1032

(D.C. Cir. 2001)

Appalachian Power Co. v. Envtl. Prot. Agency, 135 F.3d 791

(D.C. Cir. 1998)

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc.,

462 U.S. 87 (1983)

BCCA Appeal Group v. Envtl. Prot. Agency, 355 F.3d 817

(S” Cz 2003) caicsse. dates isbn ielpculisgsiiite Modded ten etiandideiasabenananimbeinadant 16

Bear Creek Council v. Heath, 153 Fed. Appx. 435 (9" Cir.

Bennett v. Spear, 520 U.S. 154 (1997)

Bensman v. U.S. Forest Serv., 408 F.3d 945 (7" Cir. 2005)

California Coastal Com'n v. Granite Rock Co., 480 U.S. 572

9h 7) Zoe diciadleesdasdiiieclbahintbinidiel a videapidisahilambbiladeiestbdecneiiala iia a

Cascades Wildlands Project v. Conroy, 159 Fed. Appx. 769 (9"

Cir. 2005)

Vv

Cellnet Communications, Inc. v. Fed. Communications Comm'n,

149 F.3d 429 (6" Cir. 1998)

Ctr. for Biological Diversity v. Lueckel, 417 F.3d 532 (8" Cir.

Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d. 1157

(9" Cir. 2003) 8

Cherokee Forest Voices v. U.S. Forest Serv., 182 Fed. Appx. 488

(6" Cir. 2006)

Citizens for Better Forestry v. U.S. Dep't of Agric.,

(9" Cir. 2003) 8

Citizens Comm. to Save Our Canyons v. U.S. Forest Serv., 297

F.3d 1012 (10" Cir. 2002)

City of Olmstead Falls v. Fed. Aviation Admin., 292 F.3d 26]

(D.C. Cir. 2002)

Cold Mountain v. Garber, 375 F.3d 884 (9" Cir. 2004)

Coliseum Square Ass'n, Inc. v . Jackson, - F.3d -, 2006 WL

2664455 (5" Cir. September 18, 2006)

Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162

(10" Cir. 1999)

Colorado Off Highway Vehicle Coal. v. U.S. Forest Serv., 357

F.3d 1130 (10" Cir. 2004)

Colorado Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204

(10 Cir. 2006)

VI

Commonwealth of Ky. ex rel Beshear v. Alexander, 655 F.2d 714

(6" Cir. 1981)

Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980)

Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004) .............. 6

Druid Hills Civic Ass'n v. Fed. Highway Admin., 772 F.2d 700

(11" Cir. 1985)

EarthLink, Inc. v. Fed. Communications Comm'n, 462 F.3d 1

I a a eT l

Earth Island Inst. v. Ruthenback, 459 F.3d 954 (9" Cir. 2006) .....8

Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9" Cir.

Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 (9" Cir.

2004)

Ecology Ctr. v. Castaneda, 426 F.3d 1144 (9" Cir. 2005)

Ecology Ctr. v. Kimbell, 143 Fed. Appx. 793 (9" Cir. 2005) ....... 8

Ecology Ctr. v. U. S. Forest Serv., 451 F.3d 1183 (10" Cir.

SUED ciiihecceicha nabicdgtetlndnanecsebGicediichaaiabiantiaikesbiaevedataaaamaalaere: 9,17

Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005

(9"" Cir. 2006)

Forest Conservation Council v. U.S. Forest Serv., - Fed. Appx.-,

2006 WL 2844573 (9" Cir. October 5, 2006)

Forest Conservatioa Council v. U.S. Forest Serv., 110 Fed. Appx.

26 (9 Cir. 2004)

Vil

Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9" Cir.

Forest Guardians v. Plant & Animal Inspection Serv., 309 F.3d

1141 (9 Cir. 2002)

Forest Watch v. U.S. Forest Serv., 410 F.3d 115 (2d Cir. 2005) ...9

Franklin Savings Ass'n v. Dir., Office of Thrift Supervision, 934

F.2d 1127 (10" Cir. 1991), cert. denied, 503 U.S. 937 (1992) ....18

Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d

1115 (8" Cir. 1999)

Furey v. U.S., 61 Fed. Appx. 399 (9" Cir. 2003)

Grant School Dist. No. 3 v. Dombeck, 126 Fed. Appx. 823

(9" Cir. 2005)

Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9" Cir.

Hallstrom v. Tillamook County, 493 U.S. 20 (1989)

Hannon v. Clark, 70 Fed. Appx. 519 (10" Cir. 2003)

Headwaters v. U.S. Forest Serv., 399 F.3d 1047 (9" Cir. 2005) ...8

Heartwood, Inc. v. U.S. Forest Serv , 380 F.3d 428 (8” Cir.

2604)

Hells Canyon Preservation Council v. U.S. Forest Serv.,

403 F.3d 683 (9" Cir. 2005) ............. ORME RAS KEE To EMBO IC 8

High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630 (9" Cir.

Vili

Hughes River Water Conservancy v. Johnson, 165 F.3d 283

(4" Cir. 1999)

Huls America, Inc. v. Browner, 83 F.3d 445 (D.C. Cir. 1996) ....18

Idaho Sporting Cong. v. Alexander, 45 Fed. Appx. 788 (9" Cir

6s SERN ieee NAPS oe EOL TAS POD ene me AEE 8

Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957 (9" Cir. 2002)

Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9" Cir.

MAA Sec NI RN RR TEEN Rag Sl a en NO 13

llioUlaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 2006

(9" Cir. 2006)

Indiana Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851

Cue YO Sy) se Ta al 9.16

Kleppe v. Sierra Club, 427 U.S. 390 (1976)

Lands Council v. Powell, 395 F.3d 1019 (9° Cir. 2005), amending

and superseding 379 F.3d 738 (9th Cir. 2004)... 812,13

Laub v. U.S. Dep't of Interior, 342 F.3d 1080 (9° Cir. 2003)

League of Wilderness Defenders/Blue Mountains Biodiversity

Project v. Forsgren, 309 F.3d 1181 (9" Cir. 2002) ..........ccccceeee 8

Lyng v. Northwest Indian Cemetery Prot. Ass'n, 485 U.S. 539

Marsh v. Oregon Natural Res. Council, 490 U.S. 360

IT cai A174 fe ilah ces cunsiveisaietbntrnsiniteniteinechedanapabbiiobantioniabinnsinah taser 6,10,11

iX

Meghrig v. KFC Western, Inc., 516 U.S. 469 (1996)

Montana Snowmobile Ass'n v. Wildes, 26 Fed. Appx. 762

i, Ss. AUUED wikenescncsctboscepietapheagnpensaseenibaciemamatenninimceanntes 9

Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9" Cir.

Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233

(9 Cir. 2005)

Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953

err ARNG LIED vscehs- . -sbidipciccibdonsbabieniaieundaiiamediinecantbeamboiidcie eiiecsl 8

Native Ecosystems Council v. U.S. Forest Serv., 54 Fed. Appx.

901 (9" Cir. 2003)

Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797 (9"

Cir. 2005)

Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9

Rec ATIINED schcinancestenecinonshimciatbeiptactiiisicaliaiainUeteadeliarlabeamabucidlaicntaasdbianesed 8

Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372

Gr: CHEE coccenteetis sabbadomishinstelgde tnitepacaneslaiidh giikictahelalsse Nakadiaiias 13

N. Alaska Envil. Ctr. v. Kempthorne, 457 F 3d 969 (9" Cir.

PTD eviceinsiciosbieiainsiheihenicnanapicatdindsaieadalaie: nqanmeiein ceaniieaie 8

N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533 (1 4" Cir.

1990)

Ne. Maryland Waste Disposal Auth. v. Envtl. Prot. Agency, 358

F 3d 936 (D.C. Cir. 2004)

xX

Northwoods Wilderness Recovery, Inc. v. U.S. Forest Serv., 323

F.3d 405 (6" Cir. 2003)

Northwoods Wilderness Recovery, Inc. v. U.S. Dep't of Agric.

Forest Serv., -Fed. Appx.-, 2006 WL2189118 (6" Cir. July 28,

Ouachita Watch League v. Jacobs, 463 F.3d 1163

(11" Cir. 2006)

Oregon Natural Desert Ass'n v. Shuford, -F Supp.2d-, 2006 WL

SGOD1GTS (DD. Or. Septemtes G, ZOGG) ..cccccsccocesscsessovesseccavervecsovesesees 5

Oregon Natural Desert Ass'n v. U. S. Forest Serv., -F .3d-, 2006

WL 2691392 (9" Cir. September 21, 2006)

Park County Res. Council, Inc. v. U. S. Forest Serv., 8\7 F.2d

Dy Le MDE cechcdid cdhadbsccndceinindsteaaiabibiiidetetesiubsiiciih 20

Pearson v. Powell, 96 Fed. Appx. 466 (9" Cir. 2004)

Robertson v. Methow Valley Citizens Council, 490 U.S. 332

(1989)

Robertson v. Seattle Audubon Soc 'y, 503 U.S. 429 (1992)

San Luis Obispo Mothers for Peace v. Nuclear Reg. Com'n, 449

F.3d 1016 (9 Cir. 2006)

Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Cir. 1993) .....13

Selkirk Conservation Council v. Forsgren, 336 F.3d 944 (9" Cir.

2003) EAT ALLS EEA RENE ie SELES REESE

Sierra Club v. Lynn, 502 F.2d 43, 61 (Sth Cir.1974), cert. denied,

421 U.S. 994 (1975) and 422 U.S. 1049 (1975)

4

Sierra Club v. Marita, 46 F.3d 606 (7" Cir. 1995)

Sierra Nevada Forest Prot. Campaign v, Tippin, -F .Supp.2d-,

2006 WL 1319397 (E.D. Cal. May 15, 2006)

Sierra Nevada Forest Prot. Campaign v. U.S. Forest Serv., 166

Fed. Appx. 923 (9" Cir. 2006)

Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772

ET yy 9 Fy * CRRA RARER arte aNb Ree Oma ano v ER SURO SP Ia pO RI a 9,17

Small Refiner Lead Phase-Down Task Force v. Envtl. Prot.

Agency, 705 F.2d 506 (D.C. Cir.1983)

Sur Contra La Contaminacion v. Envtl. Prot. Agency, 202 F.3d

443 (Ist Cir. 2000)

Sunshine State Bank v. Fed. Deposit Ins. hide 783 F.2d 1580

(11" Cir. 1986)

The Wilderness Soc’y v. U.S. Fish and Wildlife Serv., 353 F.3d

1051 (9" Cir. 2003), amended, 360 F.3d 1374 (9" Cir. 2004) .....10

1000 Friends of Maryland v. Browner, 265 F.3d 216 (4" Cir.

Tulare County v. Bush, 306 F.3d 1138 (D.C. Cir. 2002), cert.

denied, 540 U.S. 813 (2003)

United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926) .11

Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10" Cir. 2006) .....9

Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184 (10" Cir. 2006) ...9

Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219 (10" Cir. 2004) ...9

xii

Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205

(10" Cir. 2002)

Village of Bensenville v. Fed. Aviation Admin., 457 F.3d 52

(D.C. Cir. 2006)

Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970

(10th Cir.), cert. denied, 506 U.S. 817 (1992)

Weinberger v. Catholic Action of Hawaii/Peace Educ. Project,

454 U.S. 139 (1981)

Western Fuels Inc. v. Interstate Commerce Comm., 878 F.2d 1025

(7" Cir. 1989)

Wetlands Action Network v. U.S. Army Corps of Eng 'rs, 222 F.3d

1105 (9" Cir. 2000), cert. denied, 534 U.S. 815 (2001)

Wyoming Sawmills, Inc. v. U.S. Forest Serv., 383 F.3d 1241 (10"

Cir. 2004), cert. denied, -U.S.-, 126 S. Ct. 330 (2005) ......, 9

Federal Statutes

Administrative Procedures Act, 5 U.S.C. §706(2)(A)

Alaska National Interest Lands Conservation Act, 16 U.S.C.

§1320

Ciean Water Act, 33 U.S.C. $6125 €0 800... .........cccccccosccrsescanvenee 1,6

Coastal Zone Management Act, 16 U.S.C.8§ 145] et seq. ............ 6

Endangered Species Act, 16 U.S.C. §§1531 et seq. ...................2,6

Federal Land Policy and Management Act, 43 U.S.C. §§1701 et

Ns ciinccestessisdcetaicebarn nies (inbentediaiconbbesionaieataiesaveaaiemaabaies 1,7

xill

Nationa! Environmental Policy Act, 42 U.S.C. §§4321 et seq. .....1

National Forest Management Act, 16 U.S.C.§§1601 et seq. .........1

Resource Conservation and Recovery Act, 49 U.S.C. §§6901 et

We seepssvsessigasetrahNvspssticelcouptagiesdintebbuasinesebsiinchsgucbeseaddrngesdeckuauairess 6

Federal Regulations

40 C.F.R. §1502.22(a)

INTEREST OF AMICI CURIAE' ;

The Ninth Circuit 2-1 decision in this case creates an

intrusive new standard for judicial review of federal agency action

under the Administrative Procedures Act (APA), 5 U.S.C.

§706(2)(A) — which abandons the deference to agencies commanded

by this Court's well-settled precedents. This new standard gives

courts in the nine-state region unprecedented power to overturn U.S.

Forest Service decisions approving ecosystem restoration, fire

management, timber, mining and grazing projects on the 122 million

acres’ of the national forest system located in the nine-state region.

This ruling, based on the National Environmental Policy Act

(NEPA), 42 U.S.C. §§4321 et seg., and the National Forest

Management Act (NFMA), 16 U.S.C.§§1601 et seq., is certain to

accclerate the current flood’ of environmental litigation in the Ninth

Circuit that has resulted from a series of recent Ninth Circuit

decisions under NEPA, NFMA and other federal ‘environmental

laws. Many of these recent NEPA and NFMA decisions, which (at

least as of now) reach an apogee with this case, have compelled the

Forest Service to repeatedly revise and expand the environmental

reviews it conducts before proceeding with each and every one of the

thousands of pending and planned land management projects it

conducts in the nine-state circuit, often requiring lengthy and

expensive new environmental reviews of projects that have already

been exhaustively analyzed.

‘The parties’ letters of consent to the filing of this brief are lodged with the

Clerk. Pursuant to this Court's Rule 37.6, the amici submitting this brief and their

counsel hereby represent that no party to this case nor their counsel authored this

brief in whole or in part, and that no person other than amici paid for or made a

monetary contribution toward the preparation and submission of this brief.

“See http://www. fs.fed.us/land/staff/lar/LARO4/table4 (last visited

November 3, 2006) for documentation of state-by-state acreage.

‘Westlaw searches show that since January |, 2002 there have been over

450 district court environmental decisions within the Ninth Circuit - some 250

under NEPA and 200 more under NFMA, the Endangered Species Act. 16 U.S.C.

§$1531 et seq., Clean Water Act, 33 U.S.C. §§1251 et seq., or Federal Land Policy

and Management Act, 43 U.S.C. §$§1701 et seq., not coupled with a NEPA claim.

The pace is accelerating: in 2005 and 2006 there have been over 240 such decisions.

2

This seemingly-endless analytical loop (often called

“paralysis by analysis”) has disrupted, delayed and in many cases

completely blocked urgent Forest Service ecological restoration

projects necessitated by recent catastrophic wildfires in western

states and other urgent land management actions, which in turn has

threatened severe harm to the environment itself. As the dissenting

judge below stated: “Inaction or delay threatens the species Ecology

Center seeks to protect [and] may harm old-growth areas.” Pet. App.

35a. The very same “inaction or delay” also harms the families,

towns and enterprises within the Ninth Circuit who treasure a healthy

environment and rely on national forest system resources that the

Forest Service has found increasingly difficult to manage properly.

The amici represent many of these citizens:

Amicus American Forest Resource Council is a trade

association based in Portland, Oregon comprised of approximately

90 lumber and plywood manufacturers and forest landowners in the

states of Oregon, Washington, Idaho, California, Montana, Arizona

and six other western states that rely upon the purchase of timber

from the national forest system for some or all of the raw material

supply required to operate their processing facilitics., Most of its

members are family-owned companies, many in the third generation,

deeply rooted within the rural communities in which they operate.

Amicus American Forest & Paper Association (AF&PA) is

a national trade association based in Washington, D.C. comprised of

approximately 115 member companies that grow, harvest and

process wood and wood fiber from public and private land;

manufacture pulp, paper and paperboard products from both virgin

and recovered fiber; and produce solid wood products. AF&PA is

also the umbrella for more than 60 affiliate member associations

around the country that reach out to more than 10,000 companies.

Many of its member companies and many more members of its

association members rely on the purchase of timber from the national

forest system for some or all of the raw matcrial required to operate

their facilitics, and many forest landowning membcrs rely on timely

management of national forest lands to assure that risks from

wildfire and insect infestation do not threaten their adjacent land.

Amicus Alaska Forest Association is a trade association of

about 140 wood product manufacturers, logging and road building

companies, marine and surface transportation companies and related

enterprises, many family-owned, that operate throughout Alaska

including many in Southeast Alaska. Since about 85% of all forest

lands in Southeast Alaska are controlled by the Forest Service, many

of the association’s members rely on the national forest system to

provide most or all of the timber required to maintain wood product

manufacturing. The welfare of these family-owned businesses is

directly related to the Forest Service’s ability to actively manage

national forest system lands in Alaska.

Amicus Associated Oregon Loggers is a trade association of

approximately 1,100 contract loggers and businesses associated with

the logging industry in Oregon, virtually all family-owned

enterprises, who rely on the 15 national forests in the state ( 25% of

the state’s land base) for a substantial abeoa of their work and

economic livelihoods.

Amicus California Forestry Association ts a trade association

of approximately 200 wood product companies and forest

landowners including ninety percent of California’s primary forest

produc’s manufacturers, » “9 serve as the engine of a forest products

industry in California that »-nerates more than $15 billion in annual

sales from production and processing and provides total employment

exceeding 220,000 workers. Many of its manufacturing members

rely on timber from California’s 19 national forests (20% of the

state’s land base) to maintain the economic eee of their timber

processing facilities.

Amicus Intermountain Forest Association is a _ trade

association of 35 wood product manufacturers, forest landowners

and related enterprises, many family-owned, operating in Idaho,

Montana, Washington, Oregon and South Dakota. Many of its

members rely in particular on timber from the 15 national forests in

Idaho (39% of Idaho's land base) and the 11 national forests in

Montana (18% of Montana’s land base) for a major component of

their timber supply.

Amicus Montana Logging Association represents nearly 600

4

family-owned businesses that harvest and/or transport timber from

forest to mill in Montana. Since about two-thirds of Montana's forest

lands are controlled by the Forest Service, the welfare of these

family-owned businesses is directly related to the Forest Service’s

ability to actively manage national forest system lands in Montana.

Amicus Montana Wood Products Association is a trade

association of 16 companies and individuals involved in all facets of

the wood products industry in Montana and other western states. Its

members all have a strong interest in the national forest system

because the state, private and tribal lands in Montana can only

provide about half of the timber supply needed to maintain the

industry in the state.

Amicus Northwest Mining Association (NWMA) is a 1,500

member trade association based in Spokane, Washington whose

membership encompasses every facet of the mining industry

including geology, exploration, mining, engineering, equipment

manufacturing, technical services and sales of equipment and

supplies. NWMA members operate in cach of the nine states within

the Ninth Circuit and 22 other states, and are actively involved in

exploration and mining operations on national forest system lands,

especially in the West.

; Amicus Washington Contract Loggers Association 1s a trade

association of 980 logging companies who harvest timber on private

and public lands in the State of Washington, and have traditionally

relicd on timber from the nine national] forests in the state (21% of

the state’s land base) to generate a major component of their income.

The amici have a strong interest in this case because they"

and their members are often at the bottom of the environmental

litigation food chain, with limited or no right to participate in NEPA

lawsuits,’ but suffering the ful) brunt of litigation-driven disruptions

“Much of the Ninth Circuit’s NEPA jurisprudence lias developed at the

exclusion of amici, their members and others seeking to support federal agency

NEPA decisions because the Ninth Circuit has forged a unique rule of law denying

district court intervention as of nght to amici and other citizens who seek to support

the government in a NEPA case, except in the remedial phase after adecision on the

merits has been rendered. See, e.g., Wetlands Action Network vy. U.S. Army Corps

in natural resource decision-making. When a national forest is

enjoined from selling fire-scarred timber to local sawmills that have

no other available wood supply, it is not the Forest Service

employees who suffer but rather the men and women working on the

mill’s "green chain" who see production suspended and their jobs

cut, as well as the family-owner of the sawmill who has spent a

lifetime supporting his community, creating jobs and supplying the

American homebuilding industry. When litigation blocks mining on

a national forest, the Forest Service employees still get paid, but the

mining company employees and owners lose their livelihood.

SUMMARY OF ARGUMENT

The Court should grant the petition for review in this case

because the Ninth Circuit decision further extends that circuit’s

increasingly aberrant NEPA jurisprudence, departs from this Court’s

well-settled precedents, and creates a conflict with nine other circuits

by fashioning a new, sharply-reduced standard of deference courts

must give predictive scientific judgments of the Forest Service (and

presumably other federal agencies) in APA judicial review.

Under the new Ninth Circuit deference standard: 1) a court

may give no deference to a predictive scientific judgment of Forest

Service experts unless the agency first validates the predictive

judgment through “on-the-ground” verification; and 2) a plaintiff is

never required to meet any burden of proof, either at the

administrative level or in court proceedings, to obtain such non-

deferential judicial review.

of Eng'rs, 222 F.3d 1105, 1114 (9" Cir. 2000), cert. denied, 534 U.S. 815 (2001).

Amici and their members are often barred from participating in NEPA cases in the

Ninth Circuit under this rule. F.g., Oregon Natural Desert Ass'n v. Shuford, -

F.Supp.2d-, 2006 WL 2601073 (D. Or. September 8, 2006); Sierra Nevada Forest

Prot. Campaign v. Tippin, -F .Supp.2d-, 2006 WL 1319397 (E.D. Cal. May 15,

2006). Amici’s inability to participate in lower court NEPA litigation in the Ninth

Circuit makes review by this court even more important to protecting their interests.

6

REASONS FOR GRANTING THE PETITION

THE DECISION BELOW FURTHER EXTENDS THE NINTH

CIRCUIT’S INCREASINGLY ABERRANT NEPA

JURISPRUDENCE BY SEVERELY REDUCING THE

DEFERENCE A COURT MUST GIVE A FEDERAL

AGENCY’S PREDICTIVE SCIENTIFIC JUDGMENTS,

CONTRARY TO THIS COURT’S PRECEDENTS AND IN

CONFLICT WITH RULINGS OF NINE OTHER CIRCUITS.

A. The Court should exercise its supervisory powers to

constrain the remarkable and growing divergence

between the Ninth Circuit’s aberrant NEPA

jurisprudence and the law of all the other circuits.

There is a compelling need for the Court to exercise its

supervisory powers to achieve greater uniformity of environmental

jurisprudence generally, and NEPA jurisprudence specifically,

between the Ninth Circuit and the other circuits. S. Ct. Rule 10(a).

This Court has previously reviewed five Ninth Circuit NEPA

decisions — and in all five cases, unanimously reversed the Ninth

Circuit ruling.” In the same period the Court has reviewed seven

other Ninth Circuit environmental decisions, unanimously reversing

four of these decisions,® reversing two additional decisions with

* Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004); Robertson v.

Seattle Audubon Soc 'y, 503 U.S. 429 (1992) (NEPA and NFMA); Marsh v. Oregon

Natural Res. Council, 490 U.S. 360 (1989); Robertson v. Methow Valley Citizens

Council, 490 U.S. 332 (1989); Weinberger v. Catholic Action of Hawaii/Peace

Educ. Project, 454 U.S. 139 (1981).

“Bennett v. Spear, 520 U.S. 154 (1997) (Endangered Species Act);

Meghrig v. KFC Western, Inc., 516 U.S. 469 (1996) (Resource Conservation and

Recovery Act (RCRA), 49 U.S.C. §§6901 et seq.); Amoco Prod. Co. v. Village of

Gambell, 480 U.S. 531 (1987) (Alaska National Interest Lands Conservation Act,

16 U.S.C. §1320); Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980) (Clean

Water Act).

5

dissents’ and affirming just one.* Yet this steady stream of

corrective review has not constrained the Ninth Circuit from

developing, especially in recent years, a wmniquely activist

environmental jurisprudence under NEPA, NFMA and other laws

that contrasts sharply with the law in the other courts of appeals, and

fluctuates so rapidly that the district courts within the Ninth Circuit

are unable to apply correct legal principles more than half the time.

This divergence is particularly apparent for the Forest

Service, which manages national forests in 40 states located in every

one of the 11 geographically-based circuits, and is headquartered in

Washington, D.C. The Forest Service follows the same laws and

regulations in every national forest, relies on a single Office of

General Counsel to interpret those laws and regulations, and

performs similar land management duties throughout the country.

Forest Service managers routinely move from forest to forest and

region to region, so there are no regional differences to legal

interpretations. Although the Forest Service gets sued in every

circuit, its litigation record in the Ninth Circuit is remarkably worse

than in the rest of the country.

From January 1, 2002 to November 1, 2006, the Ninth

Circuit decided appeals in 37 cases against the Forest Service

claiming a violation of NEPA, NFMA or both laws. In the district

court, the Forest Service prevailed in 35 of these cases, while citizen

litigants won just two. In the Ninth Circuit, however, the citizen

litigants were able to win reversal of those district court rulings in 20

"Lyng v. Northwest Indian Cemetery Prot. Ass'n, 485 U.S. 539 (1988)

(reversing Ninth Circuit application of Free Exercise Clause to block construction

of Forest Service Road); California Coastal Com'n v. Granite Rock Co., 480 U.S.

572 (1987) (reversing Ninth Circuit preemption ruling concerning Federal Land

Policy and Management Act and Coastal Zone Management Act, 16 U.S.C.§§ 1451

et seq.).

“Halistrom v. Tillamook County, 493 U.S. 20 (1989) (affirming Ninth

Circuit jurisdictional! interpretation of notice provision in RCRA).

8

cases,’ W the Ninth Circuit affirmed district court rulings for

Forest Sei... in only 15 cases.'° Thus, in more than half the NEPA

and NFMA appeals, the Ninth Circuit found that the district court

had applied its precedents incorrectly, and in every case ruled against

*Oregon Natural Desers Ass'n v. U. S. Forest Serv., -F.3d-, 2006 WL

2691392 (9" Cir. September 21, 2006); Earth Island Inst. v. Ruthenback, 459 F.3d

954 (9" Cir. 2006) (aff'g in part and remanding in part 376 F.Supp.2d 994 (E.D.

Cal. 2005)); Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9" Cir. 2006);

Natural Res. Def. Council v. U.S. Forest Serv.; 421 F.3d 797 (9" Cir. 2005); Native

Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9" Cir. 2005); Ecology Ctr.

v. Kimbell, 143 Fed. Appx. 793 (9" Cir. 2005); Hells Canyon Preservation Council

v. U.S. Forest Serv., 403 F.3d 683 (9" Cir. 2005); Headwaters v. U.S. Forest Serv.,

399 F.3d 1047 (9 Cir. 2005); Lands Council v. Powell, 395 F.3d 1019 (9" Cir.

2005), amending and superseding 379 F.3d 738, 752 (9th Cir. 2004); High Sierra

Hikers Ass'n v. Blackwell, 390 F.3d 630 (9" Cir. 2004); Earth Island Inst. v. U.S.

Forest Serv., 351 F.3d 1291 (9" Cir. 2004); Laub v. U.S. Dep't of Interior, 342 F.3d

1080 (9" Cir. 2003): Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d

961 (9" Cir. 2003); Pearson v. Powell, 96 Fed. Appx. 466 (9" Cir. 2004); Cir. for

Biological Diversity v. U.S. Forest Serv., 349 F.3d. 1157 (9" Cir. 2003); Selkirk

Conservation Council v. Forsgren, 336 F.3d 944 (9" Cir. 2003); Furey v. U.S., 61

Fed. Appx. 399 (9" Cir 2003); League of Wilderness Defenders/Blue Mountains

Biodiversity Project v. Forsgren, 309 F.3d 1181 (9" Cir. 2002); Idaho Sporting

Cong. v. Rittenhouse, 305 F.3d 957 (9" Cir. 2002); Native Ecosystems Council v.

Dombeck, 304 F.3d 886 (9" Cir. 2002); Idaho Sporting Cong. v. Alexander, 45 Fed.

Appx. 788 -(9" Cir. 2002); Neighbors of Cuddy Mountain y. Alexander, 303 F.3d

1059 (9" Cir. 2002). All compilations are based on decisions reported in Westlaw.

'°Forest Conservation Council v. U.S. Forest Serv., - Fed. Appx.-, 2006

WL 2844573 (9" Cir. October 5, 2006); Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d

969 (9" Cir. 2006); Envil. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9"

Cir. 2006); Sierra Nevada Forest Prot. Campaign v. U.S. Forest Serv., 166 Fed.

Appx. 923 (9" Cir. 2006); Bear Creek Council v. Heath, 153 Fed. Appx. 435 (9"

Cir. 2005); Cascades Wildlands Project v. Conroy, 159 Fed. Appx. 769 (9" Cir.

2005) (aff'g district court); Native Ecosystems Council v. U.S. Forest Serv., 428

F.3d 1233 (9 Cir. 2005); Ecology Ctr. v. Castaneda, 426 F.3d 1144 (9" Cir. 2005);

Grant School Dist. No. 3 v. Dombeck, 126 Fed. Appx. 823 (9" Cir. 2005); Cold

Mountain v. Garber, 375 F.3d 884 (9" Cir. 2004); Forest Conservation Council v.

U.S. Forest Serv., 110 Fed. Appx. 26 (9" Cir. 2004); Forest Guardians v. U.S.

Forest Serv., 329 F.3d 1089 (9 Cir. 2003); Native Ecosystems Council v. U.S

Forest Serv., 54 Fed. Appx. 901 (9" Cir. 2003); Forest Guardians v. Plant &

Animal Inspection Serv., 309 F.3d 1141 (9 Cir. 2002); Montana Snowmobile Ass'n

v. Wildes, 26 Fed. Appx. 762 (9" Cir. 2002).

the Forest Service.

In the rest of the country, the Forest Service record is far

better. In the same period, the other 11 circuits decided 22 appeals

of district court NEPA or NFMA rulings in Forest Service cases. At

the district court level, the Forest Service prevailed in all 22 cases.

On appeal, the citizen litigants were able to obtain reversals in seven

cases,'' while the Forest Service won affirmances in 16 cases."

Thus, even though the Forest Service uniformly applied the

same set of laws and regulations throughout the country, the agency

lost 22 of 37 cases in the Ninth Circuit, but lost only seven times in

23 cases in the other 11 circuits. In both absolute numbers and

proportions of adverse rulings against the Forest Service, the Ninth

"Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11" Cir. 2006);

Cherokee Forest Voices v. U.S. Forest Serv., 182 Fed. Appx. 488 (6" Cir. 2006);

Ecology Ctr. v. U. S. Forest Serv., 451 F.3d 1183 (10" Cir. 2006) (affirming

dismissal on merits of NEPA claim but reversing and remanding on NFMA claim);

Utah Envil. Cong. v. Bosworth, 439 F.3d 1184 (10" Cir. 2006); Forest Watch v.

U.S. Forest Serv., 410 F.3d 115 (2d Cir. 2005); Utah Envil. Cong. v. Bosworth, 372

F.3d 1219 (10" Cir. 2004); Northwoods Wilderness Recovery, Inc. v. U.S. Forest

Serv., 323 F.3d 405 (6" Cir. 2003).

'? Northwoods Wilderness Recovery, Inc. v. U.S. Dep't of Agric. Forest

Serv., -Fed. Appx.-, 2006 WL 2189118 (6" Cir. July 28, 2006); Utah Envil. Cong.

v. Bosworth, 443 F.3d 732 (10" Cir. 2006); Colorado Wild, Heartwood v. U.S.

Forest Serv., 435 F.3d 1204 (10° Cir. 2006); Silverton Snowmobile Club v. U.S.

Forest Serv., 433 F.3d 772 (10" Cir. 2006); Allegheny Def. Project, Inc. v. US.

Forest Serv., 423 F.3d 215 (3d Cir. 2005): Ctr. for Biological Diversity v. Lueckel,

417 F.3d 532 (8" Cir. 2005); Bensman v. U.S. Forest Serv., 408 F.3d 945 (7" Cir.

2005); Wyoming Sawmills, Inc. v. U.S. Forest Serv., 383 F.3d 1241 (10" Cir. 2004),

cert. denied, -U.S.-, 126 S. Ct. 330 (2005); Heartwood, Inc. v. U.S. Forest Serv.,

380 F.3d 428 (8" Cir. 2004); Colorado Off Highway Vehicle Coal. v. U.S. Forest

Serv., 357 F.3d 1130 (10" Cir. 2004); Hannon v. Clark, 70 Fed. Appx. 519 (10" Cir.

2003); Indiana Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851 (7 Cir.

2003); Tulare Countv v. Bush, 306 F.3d 1138 (D.C. Cir. 2002), cert. denied, 540

U.S. 813 (2003); Citizens Comm. to Save Our Canyons v. U.S. Forest Serv., 297

F.3d1012 (10" Cir. 2002); Utah Shared Access Alliance v. U.S. Forest Serv., 288

F.3d 1205 (10 Cir. 2002).

10

Circuit is in a different legal universe than the rest of the country."’

Amici have no judicial recourse except this Court to curb the

Ninth Circuit’s aberrant environmental jurisprudence. The Ninth

Circuit has never granted a request from the government or an

industry intervenor for en banc review in an environmental case,

despite many requests for it to do so."

B. The Ninth Circuit’s new deference standard departs

sharply from this Court’s precedents.

This Court has well-settled rules prescribing the deference

a reviewing court undertaking traditional “arbitrary and capricious”

review under the APA must give a federal agency’s scientific

judgments made while exercising authority assigned to it by

Congress: When “analysis of the relevant documents ‘requires a high

level of technical expertise,” we must defer to ‘the informed

discretion of the responsible federal agencies.”” Marsh v. Oregon

Natural Res. Council, 490 U.S. at 378, quoting Kleppe v. Sierra

Club, 427 U.S. 390, 412 (1976). When a scientific determination 1s

challenged, “a reviewing court must generally be at its most

deferential.” Baltimore Gas & Elec. Co. v. Natural Res. Def.

Council, Inc., 462 U.S. 87, 103 (1983). “When specialists express

'*Nor is the Forest Service in any way unique. The Ninth Circuit has

reversed district court NEPA rulings in favor of other federal agencies or rejected

agency NEPA analysis at least 16 times since 2002, at an increasing rate. See, e.g.,

HioVlaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 2006 (9" Cir. 2006) (Army

must evaluate environmental effects of location for combat force battalion

transformation); Great Basin Mine Watch vy. Hankins, 456 F.3d 955 (9" Cir.

2006) Bureau of Land Management NEPA analysis for mme permit approval did

not individually discuss cumulative effect of each nearby mine); San Luis Obispo

Mothers for Peace v. Nuclear Reg. Com'n, 449 F.3d 1016 (9" Cir-2006)

(Commission must evaluate risk of terrorist attack in environmental impact

statement for nuclear plant licensing).

'*lt appears the Ninth Circuit has in its entire history granted en banc

review in only one environmental case, reversing a panel decision in favor of a

federal agency and granting relief to a conservation group that had sought en banc

review. The Wiidemess Soc ‘vv. U_S. Fish and Wildlife Serv. , 353 F.3d 1051 (9" Cir.

2003), amended, 360 F.3d 1374 (9 Cir. 2004), vacating 316 F.3d 913 (2003).

11

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 vy. Oregon Natural Res. Council, 490 U.S. at 378. “The

presumption of regularity supports the official acts of public officers

and, in the absence of clear evidence to the contrary, courts presume

that they have properly discharged their official duties.” United

States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926).

The Ninth Circuit majority created and applied a completely

new deference standard to the Forest Service decision in this case to

proceed with a post-wildfire treatment project on the Lolo National

Forest in Montana that includes “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 in

various areas of the forest.” Pet. App. 3a. The majority’s new

deference standard disregards this Court’s precedents and creates a

direct conflict with nine other circuits. As the dissenting judge

observed, the result of the majority’s new deference standard is that

the court “crossed the line from reviewer to decisionmaker.” Pet.

App. 26a. “[T]he majority changes our posture of review to one

where we sit at the table with Forest Service scientists and second-

guess the minutiae of the decisionmaking process.” Pet. App. 28a.

The dissenting judge also found that the majority’s new standard “is

contrary to the basic principle that we reverse agency decisions only

if they are arbitrary and capricious,” Pet. App. 36a, and concluded

that “the majority has, in effect, displaced ‘arbitrary and capricious’

review for a more demanding standard.” Pet. App. 27a.

The majority ’s new deference standard has two elements:

I. A reviewing court may give no deference to a predictive

scientific judgment of Forest Service experts, including a

judgment ba.cd on a computer model developed by Forest

Service experts, unless the agency first validates the

predictive scientific judgment through “on-the-ground”

verification. Pct. App. 9a, Pet. App. 24a (describing

elements of required validation process); and

A plaintiff is never required to meet any burden of proof,

12

either at the administrative level or in court proceedings, ‘

obtain such non-deferential judicial review of a Forest

Service decision. Pet. App. 7a.

Under its new deference standard, the majority found the

Forest Service’s predictive scientific judgments in this case are

entitled to no deference, and the Forest Service decision based on

those judgments is unlawful under NEPA and NFMA:

1. No “on-the-ground” verification means no deference to

predictive scientific judgments. The Forest Service’s scientific

experts determined that the planned treatment would benefit certain

“old-growth dependant species” found within the project area

including the black-backed woodpecker. Pet. App. 6a-8a, 12a. The

majority found the Forest Service decision unlawful because "the

Forest Service's conclusion that treating old-growth forest is

beneficial to dependent species is predicated on an unverified

hypothesis,” Pet. App. 9a, and “NFMA ‘require[s] that the

hypothesis and prediction of the model be verified with

observation.” Jd., quoting Lands Council v. Powell, 379 F.3d at

752.'* “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’ ....". Jd. The majority held that no deference is due the

agency’s preference for the predictions of its Own experts over

opposing experts because none of the experts on cither side had

“studied the effects” of the proposed action, and since their

disagreement only involves “differing hypotheses regarding the

. effects” of the proposed action, the agency experts should receive

no deference. Pet. App. 10a-1 1a. A similar lack of deference led the

majority to find the Forest Service decision unlawful under NEPA

because the Forest Service environmental impact statement (EIS)

treated the experts’ prediction “as a fact instead of an untested and

‘The majority cited no specific section of NFMA that requires on-the-

ground verification, but relied solely on the earlier Ninth Circuit Lands Council

decision which also fails to cite any such section of NFMA. The court gave no

deference to the Forest Service’s contrary interpretation of NFMA that has long

allowed reliance on models and predictions without on-the-ground validation, and

the court failed to even acknowledge any need for such deference.

13

debated hypothesis." Pet. App. 12a.

The majority not only required the Forest Service to validate

its predictions on-the-ground, but also dictated what information the

Forest Service would need to validate the predictions, and required

it to be “reasonably certain” of its conclusions:

[Ojne must know where the threshold

between “critical” and “sufficient” levels of burned

habitat lies ... [and] how much further habitat levels

have to drop before the species is downgraded from

sensitive to threatened or how the Service plans to

gencrate additional black-backed woodpecker

habitat to counter-balance losses from salvaging, the

passage of time, and ongoing fire-suppression

efforts.

Pet. App. 16a-1 7a.

The majority also dictated the procedures the Forest Service

must follow to support the required findings: 1) the Forest Service

must make available to the public the data “from which a Forest

Service expert derived her opinion,” Pet. App. 17a, quoting /daho

Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9" Cir. 1998); 2)

the agency’s EIS must contain the most definitive information

available on the viability issue or provide "a justification regarding

why more definitive information could not be provided," Pet. App.

16a, quoting Neighbors of Cuddy Mountain y. U.S. Forest Serv., 137

F.3d 1372, 1380 (9" Cir. 1998); and 3) the Forest Service must

"undertake further scientific study" to resolve any scientific

uncertainty unless "it explain{s] in the EIS why such an undertaking

[wa]s not necessary or feasible." Pet. App. 12a, quoting Seattle

Audubon Soc'y v. Espy, 998 F.2d 699, 704 (9th Cir. 1993).

The majority also used the lack of on-the-ground validation

as its basis for refusing to give any deference to spreadsheet

computcr modcls the Forest Service used to predict soil conditions

in the areas to be treated: “The ‘Forest Service's reliance on the

spreadshect models, unaccompanied by on-site spot verification of

the model's predictions, violated NFMA.”” Pet. App. 20a, quoting

Lands Council v. Powell, 379 F.3d at 752-53.

14

The dissenting judge sharply disputed the legal validity of

the majority’s “on-site spot verification” requirement:

[T]here is no legal basis to conclude that the NFMA

requires an on-site analysis where there is a

reasonable scientific basis to uphold the legitimacy

of modeling. NFMA does not impose this

substantive requirement, and it cannot be derived

from the procedural , rameters of NEPA.

Pet. App. 28a.

In explaining its lack of deference to Forest Service

predictive judgments, the majority compared the decision to treat

old-growth stands without prior on-the-ground effects verification to

allowing "a pharmaceutical company to market a drug to the general

population without first conducting a clinical trial to verify that the

drug is safe and effective." Pet. App. 9a. The dissenting judge

challenged this analogy and the majority’s new deference standard:

[T]his analogy underscores the degree to which the

majority inserts itself into the internal judgments of

the Forest Service. The [Food and Drug

Administration (FDA)] process dictates a

substantive and specific administrative course of

action in terms of clinical trials and other

requirements as a prelude to the approval of drugs

and medical devices. Neither NEPA nor NFMA

serve that function in the environmental context. To

import the notion of clinical trials from the FDA

context to soil sampling in federal forests is a leap

too far.

Pet. App. 36a. The dissenter concluded: “The majority’s rationale

cannot be reconciled with our case law requiring deference to an

agency's technical cxpertise and experience, particularly with respect

to questions involving enginccring and scientific matters.” Pet. App.

36a (citation and quotations omitted).

2. Plaintiff never has a burden of proof to show agency crror

in__administrative or judicial proceedings. The majority

acknowledged that plaintiff “Ecology Center does not offer proof

15

that the proposed treatment causes the harms it fears.” Pet. App. 7a.

Ecology Center did not challenge the agency’s predictions or

projections “at the administrative level,” Pet. App. 29a, or offer “a

credible scientific critique of the methodology” at any point. Pet.

App. 32a. The majority nonetheless considered and accepted

Ecology Center’s argument on appeal, reasoning (with no cited

authority) that Ecology Center’s failure to mect any burden of proof

was irrelevant because the Forest Service has an obligation to

provide information in its environmental analysis demonstrating that

its proposed project will benefit or be neutral to old growth

dependent species. Pet. App. 7a-8a. Even with the conceded

absence of any evidence contradicting the Forest Service’s decision,

the majority extended no presumption of regularity to the agency.

B. : The Ninth Circuit’s new deference standard conflicts

with established law from nine other circuits.

Agencies may rely on models and other expert predictive

methodologies without first conducting on-the-ground

verification.

Unlike the Ninth Circuit in this case, other circuits recognize

that scientific and technical predictions by their nature cannot be

“verified” in advance, and commonly defer to agency reliance on

predictive models and other predictive methodologies that have not

undergone_on-the-ground verification.

D.C. Circuit: “[A}]n agency's predictive judgments about

areas that are within the agency's field of discretion and expertise ...

need not rest on pure factual determinations.” EarthLink, Inc. v.

Fed. Communications Comm'n, 462 F.3d 1, 12 (D.C. Cir. 2006)

(italics and quotation omitted). Administrative agencies “‘have

undoubted power to use predictive models.”” Appalachian Power

Co. v. Envtl. Prot. Agency, 249 F.3d 1032, 1052 (D.C. Cir. 2001),

quoting Small Refiner Lead Phase-Down Task Force v. Envtl. Prot.

Agency, 705 F.2d 506, 535 (D.C. Cir.1983). In using a predictive

model, an agency has discretion to decide what data to collect, and

may consider the “need to avoid an unyielding avalanche of

information that might overwhelm the agency’s ability to reach a

16

final decision” as well as the time and burden of “conduct{ing] full

modeling with new data.” Village of Bensenville v. Fed. Aviation

Admin., 457 F.3d 52, 71 (D.C. Cir. 2006).

First Circuit: An agency’s use of a model (without on-the-

ground verification of its predictions) to evaluate a combination of

pollution control measures that are “novel” and “untested” is proper

because “the Agency’s choice of a model will be sustained if it bears

a rational relationship to the characteristics of the data to which it is

applied.” Sur Contra La Contaminacion v. Envtl. Prot. Agency, 202

F.3d 443, 448 (1st Cir. 2000) (quotation and citation omitted).

Fourth Circuit: An agency prediction using “recognized

scientific models” together with a post-implementation monitoring

program is a sufficient “hard look” under NEPA. Hughes River

Water Conservancy v. Johnson, 165 F.3d 283, 288 (4" Cir. 1999).

Fifth Circuit: “The court's role is to evaluate whether the

[agency’s] projections represent arbitrary or capricious exercises of

its authority, not whether they are accurate.”” BCCA Appeal Group

v. Envtl. Prot. Agency, 355 F.3d 817, 832 (5" Cir. 2003). “NEPA

does not demand that every federal decision be verified by reduction

to mathematical absolutes for insertion into a precise formula.”

Sierra Club v. Lynn, 502 F.2d 43, 61 (Sth Cir.1974), cert. denied,

421 U.S. 994 (1975) and 422 U.S. 1049 (1975).

Sixth Circuit: “[If] the [agency’s] judgment is a predictive

one, it cannot necessarily be proven by the record.” Cellnet

Communications, Inc. v. Fed. Communications Comm'n, 149 F.3d

429, 441 (6" Cir. 1998).

Seventh Circuit: “[T]he Forest Service was entitled to use its

own methodology to fulfill its obligations unless it was irrational.”

Indiana Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d at 863.

Eighth Circuit: “It is not for this court to second-guess what

is the best method of determining [a relevant fact], nor is it this

court's role to scrutinize the scientific value of the computerized

model. ... The [plaintiffs’] bare ‘assertion that the model was

‘seriously flawed’ is not a sufficient basis on which this court will

disregard the agency's methodology.” Friends of Boundary Waters

Wilderness v. Dombeck, 164 F.3d 1115, 1130 (8" Cir. 1999).

17

Tenth Circuit: “Here, Ecology Center [the same group that

is the respondent in this case] unpersuasively attempts to equate the

lack of a ‘hard look’ with a lack of ‘hard data.” Because the Forest

Service has conformed with NEPA's procedural requirements, we

will not second-guess the wisdom of the ultimate decision.” Ecology

Ctr. v. U.S. Forest Serv., 451 F.3d at 1190 (citation and quétation

omitted). “Courts are not in a position to decide the propriety of

competing methodologies ... but instead, should determine simply

whether the challenged method had a rational basis and took into

consideration the relevant factors.” Silverton Snowmobile Club v.

U.S. Forest Serv., 433 F.3d at 782 (permissible for Forest Service to

assume lynx are present in an area without conducting on-the-ground

verification of assumption); Colorado Envtl. Coal. v. Dombeck, 185

F.3d 1162, 1170-71 (10" Cir. 1999) (rejecting claim that Forest

Service “made assumptions without the necessary background

information and failed to make important viability findings”).

Eleventh Circuit: An agency projection that 1s “primarily a

question of probabilities [is] peculiarly subject to the expert

experience, discretion, and judgment of the [agency]. In making a

predictive judgment, the expertise of the [agency] supplements, and

may supplant, the projections placed in the record by the parties. ...

To hold otherwise would paralyze agencies merely because the

future is not subject to proof.” Sunshine State Bank v. Fed. Deposit

Ins. Corp., 783 F.2d 1580, 1582 (11" Cir. 1986) (italics, quotation

and citation omitted).

2. Agency models and other expert predictive methodologies

are entitled to particularly great judicial deference.

This court has clearly stated: “[{A] reviewing court must

[ascertain if] ... [an agency] is making predictions, within its area of

special expertise, at the frontiers of science. When examining this

kind of scientific determination, as opposed to simple findings of

fact, a reviewing court must generally be at its most deferential.”

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462

U.S. at 103. In contrast to the Ninth Circuit, the other circuits have

uniformly afforded agency scientific predictions and models the

broad discretion commandcd by this Court’s precedents.

18

D.C. Circuit: "[W]e will give an extreme degree of

deference to the agency when it is evaluating scientific data within

its technical expertise." Huls America, Inc. v. Browner, 83 F.3d 445,

452 (D.C. Cir.1996) (quotation and citation omitted). Especially

great deference is due agency use of computer models because "their

scientific nature does not easily lend itself to judicial review."

Appalachian Power Co. v. Envtl. Prot. Agency, 135 F.3d 791, 802

(D.C. Cir. 1998).

Fourth Circuit: An agency’s decision whether to rely on

existing models or develop new models requires “most deferential”

review. 1000 Friends of Maryland v. Browner, 265 F.3d 216, 237

(4" Cir. 2001)(quotation and citation omitted). “Agencies are

entitled to select their own methodology as long as the methodology

is reasonable. Courts must give deference to an agency’s decision.”

Hughes River Water Conservancy v. Johnson, 165 F.3d at 289.

Sixth Circuit: “[U |nder the arbitrary and capricious standard

of review, an agency's predictive judgments about areas that are

within the agency's field of discretion and expertise are entitled to

particularly deferential review.” Ceilnet Communications, Inc. v.

Fed. Communications Comm'n, 129 F.3d at 441.

Seventh Circuit: “We give great deference to an agency's

predictive judgments, especially those within the agency's field of

discretion and expertise.” Western Fuels Inc. v. Interstate Commerce

Comm., 878 F.2d 1025, 1030 (7" Cir. 1989) (citation and quotation

omitted).

Tenth Circuit: “[R]eviewing courts should be particularly

deferential when they are reviewing an agency's predictive

judgments, especially those within the agency's field of discretion

and expertise.” Franklin Savings Ass'n v. Dir., Office of Thrift

Supervision, 934F.2d 1127, 1146(10" Cir. 1991), cert. denied, 503

U.S. 937 (1992). An agency is only required to collect additional

information for an EIS if that information is "essential to a reasoned

choice among alternatives." Colorado Envtl. Coal. v. Dombeck, 185

F.3d at 172, citing 40 C.F.R. §1502.22(a).

19

A_party challenging an agency decision has the burden of

showing an error by the agency.

In conflict to the Ninth Circuit excusing Ecology Center

from meeting any burden to show an error by the Forest Service

either during administrative proceedings or in court, other circuits

uniformly require a plaintiff to meet such a burden.

D.C. Circuit: “ [T]he party challenging an agency's action

as arbitrary and capricious bears the burden of proof. ....[T]he burden

is On petitioners to demonstrate that [the agency's] ultimate

conclusion ... was unreasonable.” City of Olmstead Falls v. Fed.

Aviation Admin., 292 F.3d 261, 271-72 (D.C. Cir. 2002) (quotations

and citations omitted)."°

Fifth Circuit: “It is the burden of the plaintiffs [under

NEPA} to adduce evidence, not merely to make allegations or to rest

on assumptions, establishing that the [agency] was [arbitrary and

capricious] in reaching the conclusion it did.” Coliseum Square

Ass'n, Inc. v . Jackson, - F.3d -, 2006 WL 2664455 *9 (5" Cir.

September 18, 2006) (quotation and citation omitted). “The

plaintiffs had the burden of showing by a preponderance of the

evidence that the defendants failed to adhere to the requirements of

NEPA.” Druid Hills Civic Ass'n v. Fed. Highway Admin., 772 F.2d

700, 709 n. 9(11" Cir. 1985).

Sixth Circuit: “[Plaintiff] has not proffered any evidence,

either to us or to the [agency], that [an expected event] has a

significant environmental impact. Its conclusory allegation is not

sufficient [under NEPA] to withstand the [agency’s] motion for

summary judgment on this issue.” Commonwealth of Ky. ex rel

'*The D.C. Circuit's decision in Ne. Maryland Waste Disposal Auth. v.

Envil. Prot. Agency, 358 F.3d 936, 948 (D.C. Cir. 2004) that in a formal rulemaking

process the Environmental Protection Agency “must justify its basic assumptions

even if no one objects during the comment pernod” does not support the Ninth

Circuit’s decision in this case. NEPA decisions are not formal rulemaking, and a

duty to “justify basic assumptions” in a rulemaking is a far cry from a requirement

for on-the-ground verification of agency models and predictions.

20

Beshear v. Alexander, 655 F.2d 714, 720 (6" Cir. 1981).

Seventh Circuit: In a NEPA case brought under the APA,

“(t]he party challenging the agency action ... bears the burden of

proof.” Sierra Club v. Marita, 46 F.3d 606, 619 (7" Cir. 1995).

Tenth Circujt: Under NEPA, “the party challenging the

agency's decision shoulders the burden of establishing that the

[decision] was unreasonable.” Park County Res. Council, Inc. v. U.

S. Forest Serv., 817 F.2d 609, 621(10" Cir. 1985), overruled on

other grounds, Village of Los Ranchos de Albuquerque v. Marsh,

956 F.2d 970 (10th Cir.), cert. denied, 506 U.S. 817 (1992).

Eleventh Circuit: “We also cannot accept appellants’

contention that the district court erred in placing on them the burden

of introducing affirmative evidence in court to prove that the

assumptions [in an EIS] were incorrect. As plaintiffs in the district

court proceeding, appellants were required to establish by a

preponderance of the evidence that the EIS was inadequate.” N.

Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1543 (11" Cir.

1990){ footnote omitted).

CONCLUSION

For the foregoing reasons and those stated in the Petition,

amici respectfully request that the petition for a writ of certiorari be

granted.

Respectfully submitted,

MARK C., RuTzick

Counsel of Record

Mark C. Rutzick, P.C.

3407 SW Stonebrook Dr, Suite B

Portland, OR 97239-1269

503-244-3030

Counsel for Amici Curiae

November 9, 2006