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Inland Empire Pub. Lands Council v. U.S. Forest Serv.

ELR Citation: 26 ELR 21412
Nos. 95-35730, 88 F.3d 754/(9th Cir., 07/03/1996)

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), or NFMA regulations in deciding to award eight timber sales in the Upper Sunday Creek Watershed region of the Kootenai National Forest in northwest Montana. The court first upholds the Forest Service's "population viability analyses," required under 36 C.F.R. §219.9. The habitat-management analysis that the Forest Service conducted for the black-backed woodpecker, lynx, fisher, and boreal owl was not plainly erroneous or inconsistent with its duty to maintain viable populations of vertebrate species. The analysis' methodological assumption that maintaining the acreage of habitat necessary for survival would in fact assure a species' survival is eminently reasonable. The court holds that the less rigorous analyses that the Forest Service performed for the bull charr trout and the wet-sloped cutthroat trout were not arbitrary and capricious, as neither species would be affected by the timber sales. And although data is lacking on the flammulated owl's nesting and feeding habitat requirements, an analysis that uses all the scientific data currently available is a sound one. The court further holds that the Forest Service satisfied its obligation to evaluate planning alternatives for projects that affect management indicator species when it estimated the alternatives' effects on the population of the management indicator species by analyzing the amount of the species' habitat that would be reduced by each alternative. The court next holds that the Forest Service's environmental impact statement (EIS) for the sales satisfied NEPA's cumulative impact analysis requirements even though the Forest Service did not consider how the project would affect the populations of sensitive species living adjacent to the project area. Plaintiffs' argument that the Forest Service should not be able to define the scope of its population analysis on the basis of project boundaries does not appear to be a cumulative impact challenge. Further, adopting plaintiffs position as a rule of law would be impractical. The court holds that even assuming that the Forest Service could not confine its analyses to the project boundaries, the EIS is nevertheless valid, because for five of the species, the Forest Service extended its analysis to the entire watershed. Finally, the court denies plaintiffs attorney fees.

Counsel for Plaintiffs
Patti A. Goldman
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright, Hall, and Trott, JJ.