Ecology Center, Inc. v. Austin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ECOLOGY CENTER, INC., 

Plaintiff-Appellant, v. DEBORAH AUSTIN, in her official capacity as Forest Supervisor for the Lolo National Forest; BRADLEY POWELL, Regional Forester of Region One of the U.S. Forest No. 03-35995 Service; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture,  D.C. No.

CV-03-00018-DWM

Defendants-Appellees, OPINION

MINERAL COUNTY; TOWN OF

SUPERIOR; ST. REGIS SCHOOL

DISTRICT NO. 6; SUPERIOR SCHOOL

DISTRICT NO. 3; MONTANA

COALITION OF FOREST COUNTIES;

TRICON TIMBER,

Defendant-Intervenors- Appellees.  Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted February 14, 2005—Seattle, Washington

Filed December 8, 2005

Before: Betty B. Fletcher, M. Margaret McKeown, and Ronald M. Gould, Circuit Judges.

16029 16030 ECOLOGY CENTER v. AUSTIN Opinion by Judge B. Fletcher; Dissent by Judge McKeown ECOLOGY CENTER v. AUSTIN 16033

COUNSEL

Thomas J. Woodbury, Forest Defense, P.C., Missoula, Mon- tana, for the…

Ecology Center, Inc. (“Ecology Center”) challenges the United States Forest Service’s (“Forest Service” or “Service”) Lolo National Forest Post Burn Project (“Project”), which was designed in the aftermath of the 2000 wildfires on the Lolo National Forest (“LNF”). Ecology Center raises a number of procedural and substantive claims under the National Environmental Policy Act (“NEPA”) and the National Forest Management Act (“NFMA”). We have jurisdiction pursuant to 28 U.S.C. § 1291 . Because we find that the Forest Service’s decision to permit logging in critical old-growth forest and post-fire habitats was arbitrary and capricious, we reverse the grant of summary judgment to the Service and remand.

I

In 2000, wildfires burned approximately 74,000 acres on the Lolo National Forest. While the fires caused considerable damage to the forest, they also created habitat for species that are dependent upon'post-fire habitats, such as the black-backed woodpecker.

In response to the 2000 fires, the Forest Service began developing the Lolo National Forest Post Burn Project and preparing the requisite Environmental Impact Statement (“EIS”). The Forest Service considered four alternatives…

dissenting:

The Ninth Circuit, like the other circuits, repeats frequently the legal mantras of administrative review in the context of environmental decisions: “arbitrary and capricious,” “hard look,” and “no second guessing.” 1 These standards are easy to *1072 articulate, but it is more difficult to know when we have crossed the line from reviewer to decisionmaker. In this case, we have gone too far.

As summarized in Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir.1998), we review agency actions “to determine if they were arbitrary or capricious, an abuse of discretion, or not in accordance with law.” The limited nature of this inquiry underscores the latitude in implementation and interpretation that Congress intended for its agents. This latitude does not relieve us of our duty to insure that the agency took a “hard look,” as required under the National Environmental Policy Act (“NEPA”), or' to insure compliance with forest plans under the National Forest Management Act (“NFMA”). Nor does record review mean that'we abdicate our obligation to scrutinize the agency’s underlying data, assumptions, and conclusions. As a reviewing court,…