ELR Citation: ELR 20732
No(s). 93-36025 (9th Cir. Mar 12, 1997)

The court holds that the U.S. Forest Service did not violate the National Forest Management Act (NFMA) or the National Environmental Policy Act (NEPA) in developing and amending a land and resource management plan (LRMP) for old growth forests in the Winema National Forest in Oregon. The court first holds that the environmental group challenging the LRMP has not met its burden of establishing that the Forest Service acted arbitrarily and capriciously in establishing the minimum management requirements for the Winema management indicator species. The studies cited in the regional guide in support of the minimum management requirements were not so outdated as to make the Forest Service's reliance on them arbitrary and capricious. Next, the court holds that the environmental group did not demonstrate that the Forest Service's adoption of the goshawk minimum management requirement was arbitrary and capricious. The Pacific Northwest Regional Forester's Draft Interim Goshawk Management Direction, which acknowledges that goshawk management in the region provides inadequate protection for the species, post-dates both the LRMP and the amendment as well as the administrative appeals of these documents. The court also holds that it will defer to the reasonable interpretation of the Forest Service in finding that the entire 6,000-acre home range called for in a study concerning goshawk management allows for a variety of types of forest, rather than only old growth. Next, the court holds that the Forest Service did not violate the NFMA in failing to designate the whiteheaded woodpecker as a management indicator species in the LRMP. The Forest Service's assertion that there is enough overlap between the habitats of the whiteheaded woodpecker and the goshawk and pileated woodpecker that the Winema LRMP provides adequate protection for the whiteheaded woodpecker is not arbitrary and capricious.

Next, the court holds that the Forest Service acted in accordance with NEPA. The government action analyzed by the environmental impact statement (EIS) in this case was the adoption of the LRMP. Because the LRMP never made an on-the-ground designation of management area acres, the EIS had no size, configuration, or connectivity considerations to analyze. Thus, the EIS cannot be faulted for failing to perform such an analysis. So long as each timber sale is evaluated to ensure that its approval would not undermine the LRMP's adopted minimum management requirements, including the habitat distribution requirements, there is no reason why the LRMP cannot fulfill its obligation to ensure the viability of existing species. And so long as the plan's goals are clear and specific enough to be implemented at the site-specific project level, it meets the requirements of the NFMA. Last, the court holds that the Forest Service did not violate NEPA by failing to respond adequately in the EIS to criticism of the Winema LRMP. Although the regional guide did not prevent the Forest Service from adopting larger habitat sizes for management indicator species in the Winema LRMP, the court concludes that the Forest Service's responses to criticisms of the LRMP show that it took a hard look at the environmental consequences of planning decisions in the EIS. A dissenting judge would hold that the EIS for the Winema LRMP was inadequate under NEPA.

[A prior decision in this litigation is published at 24 ELR 21031.]

Counsel for Plaintiffs
David B. Edelson
Natural Resources Defense Council
71 Stevenson St., Ste. 1825, San Francisco CA 94105
(415) 777-0220

Counsel for Defendants
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Before Wallace, Nelson, and Brunetti, JJ.