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Native Ecosystems Council v. Tidwell

Citation: 40 ELR 20076
No. No. 06-35890, (9th Cir., 03/09/2010)

The Ninth Circuit reversed a lower court’s grant of summary judgment to hold that the Forest Service’s approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest did not comply with the National Forest Management Act (NFMA) and NEPA. Under the forest plan, the sage grouse was designated as a management indicator species (MIS) for sagebrush communities. The plan contemplated monitoring the sage grouse to measure the effect of management activities on representative wildlife habitats. Despite its designation as an MIS, the sage grouse was virtually nonexistent in the project area. The EA therefore looked to the sagebrush habitat to assess viability for the sagebrush obligate species. The court held that, because the EA was based on a nonexistent MIS, its habitat proxy analysis was not reliable in ensuring species diversity as required under the NFMA. The reliability of the analysis was further undermined by the fact that it conflicted with that of the scientific experts. As a result of this unreliable analysis, the Forest Service’s overall study of the sage grouse habitat throughout the EA was similarly deficient. Just as the methodology applied by the Forest Service to measure habitat conditions did not meet the NFMA requirements, its flawed methodology in the complete absence of a sage grouse population did not constitute the requisite hard look mandated by NEPA. Finally, new information regarding the presence of potential nesting habitat and the corollary effect on that habitat of cattle grazing impacted the project sufficiently such that the EA should have been revised. The lower court’s judgment is therefore reversed and remanded for the Forest Service to prepare a new or supplemental EA consistent with the court’s opinion.