August 22, 2019

Tenth Circuit: Forest Service’s Management Plans Did Not Violate National Forest Management Act or Environmental Protection Act

The Tenth Circuit Court of Appeals issued its opinion in Biodiversity Conservation Alliance v. Jiron on Tuesday, August 5, 2014.

Biodiversity sued the U.S. Forest Service in two separate cases involving Forest Service actions in the Black Hills National Forest. In the first case, filed in the U.S. District Court for the District of Wyoming, Biodiversity claimed the Forest Service failed to comply with various statutes and regulations. The district court denied Biodiversity’s petition for review. In the second case, filed in the U.S. District Court for the District of Colorado, Biodiversity argued the Forest Service had violated a settlement agreement and moved for relief. The district court dismissed Biodiversity’s motion. Biodiversity appealed both rulings and the cases were consolidated for appellate review.

In 1976, the National Forest Management Act (NFMA) took effect, and the Forest Service created a plan under which it managed the Black Hills National Forest. In 1992, the Forest Service decided to revise the plan, and in 1997 it issued its revised forest plan. Biodiversity challenged the 1997 plan in an administrative proceeding, and its appeal was decided by the Chief of the Forest Service in 1999. The Chief determined that although most of the plan complied with the NFMA and the National Environmental Protection Act (NEPA), there were some shortcomings, which the Chief described specifically in his ruling.

Before the Chief issued his 1999 ruling, the Forest Service began implementing its 1997 forest plan. Biodiversity administratively challenged some aspects of the plan, and eventually Biodiversity and the Forest Service entered into a settlement agreement. The settlement agreement included Phase I and Phase II plans for implementation, and the Colorado federal district court retained jurisdiction to enforce the settlement agreement. Phase I was implemented in 2001, and the Forest Service incorporated some of the Chief’s recommendations from the 1999 ruling. From 2001 through 2005, the Forest Service conducted a more detailed analysis of the Black Hills National Forest in preparation for the Phase II amendment. Also during this time, several wildfires ravaged the forest, and a mountain pine beetle infestation spread from 5,200 acres to 100,000 acres. As a result, the Phase II amendment was adjusted to address fire and insect issues.

The Forest Service considered six alternatives to implement the 1997 plan, and ultimately chose the sixth alternative even though some species would be adversely affected because the sixth plan would reduce wildfire risks and reduce the pine beetle infestation. In October 2005, the Forest Service began implementing Alternative 6 as the Phase II amendment. In 2006, Biodiversity challenged the Phase II amendment, but the Chief upheld it. In separate administrative cases, Biodiversity also challenged nine specific projects implemented as part of the Phase II amendment. The Chief denied all nine challenges, upholding the last in January 2011.

Biodiversity filed suit in Wyoming federal district court in October 2011, petitioning for agency review under the Administrative Procedures Act. In November 2012, the Wyoming court upheld the Forest Service’s action, and it denied a motion for reconsideration in April 2013. Biodiversity timely appealed.

Meanwhile, the Beaver Park litigation initiated by Biodiversity in 1999 lay dormant. After its defeat in Wyoming, Biodiversity attempted in May 2013 to reopen the Colorado case. The district court denied its motion, determining that laches barred enforcement of Biodiversity’s rights under the settlement agreement. Biodiversity timely appealed this ruling also, and the appeals were consolidated for Tenth Circuit review.

The Tenth Circuit reviewed Biodiversity’s challenges as final agency actions under the Administrative Procedures Act. Both parties agreed that each of Biodiversity’s plaintiffs established Article III standing. Biodiversity pursued review under 5 U.S.C. § 706(2)(A), arguing that the agency action was arbitrary and capricious. Biodiversity asserted violations of the NFMA and the NEPA.

The Tenth Circuit conducted a detailed analysis of each implicated section of the NFMA and NEPA. Where sections were ambiguous, the Tenth Circuit deferred to the Forest Service’s interpretation unless that interpretation was manifestly unreasonable. Regarding the population data requirement, the Tenth Circuit found that the regulation was ambiguous, and although Biodiversity raised a competing interpretation, deference was due to the Forest Service because its resolution of the ambiguity was reasonable. Regarding the Forest Service’s species viability analyses generally, Biodiversity argued that the Phase II amendment failed to ensure species viability for the Northern Goshawk, snag-dependent species, and sensitive plants. The Forest Service examined these particular species and adopted a different approach than that proposed by Biodiversity. Biodiversity failed to explain why its analysis was preferential to the Forest Service’s, however, so the Tenth Circuit deferred to the Forest Service’s scientific analyses.

Biodiversity argued the Phase II amendment failed to provide heightened protections for Research Natural Areas (RNAs) and Botanical Areas. Specifically, it alleged the Forest Service allowed livestock to graze on RNAs without specific management plans in place. However, there are no timelines for implementation of RNA management plans, and the Forest Service developed a plan as part of the 2005 Phase II implementation. Biodiversity failed to show that the Forest Service’s delay was unreasonable. As for the Botanical Areas, the Forest Service addressed these in its 1997 plan. Although Biodiversity argued the Forest Service failed to adequately monitor the well-being of the Botanical Areas, the Tenth Circuit’s APA review is narrow and examines only if the Forest Service had a rational explanation, which the Tenth Circuit found it did.

Biodiversity argued that the Forest Service failed to conduct a proper suitability and capability analysis for livestock grazing. The Tenth Circuit found no reason to conclude the Forest Service’s analysis was unreasonable, erroneous, or inconsistent with the regulation.

Biodiversity also argued that the Forest Service violated NEPA because it failed to consider no grazing alternatives in its Phase II amendment, it failed to take a “hard look” at how the amendment would affect sedimentation in Black Hills waterways, and it failed to take a “hard look” at historical grazing practices before authorizing grazing. The Tenth Circuit found no error in the Forest Service’s actions, finding instead that the Forest Service considered two no grazing alternatives, it contemplated sedimentation using Biodiversity’s proposed resources, and the Forest Service considered past grazing practices in determining that Alternative 6 was the best way to implement Phase II.

Turning to the Colorado claim, the Tenth Circuit agreed with the district court that the doctrine of laches barred Biodiversity’s assertion of the breach of settlement agreement claims. Biodiversity waited 6 1/2 years to file its suit alleging breach of the agreement, and that delay was unreasonable. The district court ruled the delay prejudiced the Forest Service, and the Tenth Circuit found no reason to disturb those findings.

The Tenth Circuit affirmed the Wyoming court’s denial of Biodiversity’s petition to review under the APA and affirmed the Colorado court’s dismissal of Biodiversity’s action to enforce the settlement agreement.

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