Ninth overturns post-burn
'We misconstrued NFMA, made three key errors'
by John Q. Murray
Judges aren't professional land managers.
The Ninth Circuit Court of Appeals acknowledged as much July 2, after spending the past few years micromanaging the Forest Service in a series of court decisions that forest industry groups called "increasingly aberrant."
In a landmark ruling July 2, the Ninth acknowledged that it erred in its interpretation of a key environmental law and botched Mineral County's post-burn case.
"We misconstrued what the NFMA (National Forest Management Act) requires of the Forest Service," a panel of 11 judges admitted in a ruling released July 2. "We made three key errors in [the post-burn case]...Today, we correct those errors." The ruling in "Lands Council v. McNair," involving an Idaho project, overturned a 2-1 decision from 2005 in "Ecology Center v. Austin." McNair and Austin are the forest supervisors for the Idaho Panhandle and Lolo national forests, respectively.
The dramatic ruling concluded by suggesting that the Ninth should weigh other public interests in the future, not just claims of potential environmental damage.
"Though preserving environmental resources is certainly in the public’s interest, the [Idaho Panhandle] Project benefits the public’s interest in a variety of other ways," the ruling stated. "According to the Forest Service, the Project will decrease the risk of catastrophic fire, insect infestation, and disease, and further the public’s interest in aiding the struggling local economy and preventing job loss."
The ruling was everything that Mineral County leaders had hoped to hear from the Ninth three years ago, when the San Francisco-based appeals court took up the Lolo post-burn case (see related story, "Mineral County an unlikely, feisty player in national legal drama, http://www.clarkforkchronicle.com/article.php/20080709075110759).
In Ecology Center, Inc. v. Austin, the court grafted onto a case known as "Lands Council I" a broad rule that, in effect, required the Forest Service to always conduct on-the-ground analysis to support its scientific judgments.
Lands Council I questioned the reliability of the Forest Service’s methods in analyzing soils. The Forest Service had not taken soil samples, but instead had relied on aerial photographs and samples from other areas in the forest.
Despite the Forest Service’s representation that it had “tested similar soils within the Forest, and similar soils act the same way,” the Ninth rejected the Forest Service’s choice of scientific methodology because it was based entirely on a spreadsheet model with no on-site inspection or verification.
The Ninth ruled that to be reliable, the Forest Service must verify its methods with on-the-ground observation and analysis. By not doing so, the Ninth ruled in Lands Council I that the Forest Service had violated NFMA.
In Ecology Center, the Ninth extended its on-the-ground analysis requirement to the Lolo's post burn project.
"We held that in order to comply with the NFMA, the Forest Service was required to conduct on-the-ground analysis to verify its soil quality analysis and to establish the reliability of its hypothesis that 'treating old-growth forest is beneficial to dependent species.' "
The Ecology Center suggested that the analysis had to be conducted in the location of the proposed action.
As in Lands Council I, the Ninth in Ecology Center rejected the Forest Service’s argument that its on-the-ground soil analysis was sufficiently reliable because it utilized data from areas with ecological characteristics similar to the proposed harvest units. But the 2-1 ruling from 2005 went even further.
"We made three key errors in Ecology Center," the court wrote. "First, we read the holding of Lands Council I too broadly. Second, we created a requirement not found in any relevant statute or regulation. And, third, we defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors."
The case had created a dangerous precedent, expanding the requirement for on-the-ground analysis beyond soil analysis, the Ninth's panel suggested.
"Ecology Center established a far-reaching rule that the Forest Service must always verify its methodology with on-the-ground analysis, regardless of the context," the ruling stated, and then quickly wiped out that requirement: "The Forest Service is at liberty, of course, to use on-the-ground analysis if it deems it appropriate or necessary, but it is not required to do so."
Judge M. Margaret McKeown, who had dissented from the original 2-1 Ecology Center decision by the Ninth, was on the 11-judge en banc panel that threw it out July 2.
As Judge McKeown explained in her dissent in Ecology Center: "There is no legal basis to conclude that the NFMA requires an on-site analysis where there is a reasonable scientific basis to uphold the legitimacy of modeling. NFMA does not impose this substantive requirement, and it cannot be derived from the procedural parameters of NEPA.”
The July 2 decision reaffirmed that the law requires the courts to defer to the agency in areas involving a “high level of technical expertise,” being most deferential when the agency is “making predictions, within its [area of] special expertise, at the frontiers of science.”
Sister circuits have also ruled that they must conduct a “particularly deferential review” of an “agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise . . . as long as they are reasonable.”
And other cases have established that the courts cannot impose their own notions of which procedures are ‘best’ or most likely to further some "vague, undefined public good."
The judges concluded by leaving the science to scientists.
"Thus, as non-scientists, we decline to impose bright-line rules on the Forest Service regarding particular means that it must take in every case to show us that it has met the NFMA’s requirements. Rather, we hold that the Forest Service must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable. The Forest Service must explain the conclusions it has drawn from its chosen methodology, and the reasons it considers the underlying evidence to be reliable. We will conclude that the Forest Service acts arbitrarily and capriciously only when the record plainly demonstrates that the Forest Service made a clear error in judgment in concluding that a project meets the requirements of the NFMA and relevant Forest Plan.
"For these reasons, we overrule Ecology Center and affirm that Lands Council I’s requirement of on-the ground analysis was limited to the circumstances of that particular case," the court concluded.
###
See also:
Mineral County an unlikely, feisty player in national legal drama
http://www.clarkforkchronicle.com/article.php/20080709075110759
by John Q. Murray
Judges aren't professional land managers.
The Ninth Circuit Court of Appeals acknowledged as much July 2, after spending the past few years micromanaging the Forest Service in a series of court decisions that forest industry groups called "increasingly aberrant."
In a landmark ruling July 2, the Ninth acknowledged that it erred in its interpretation of a key environmental law and botched Mineral County's post-burn case.
"We misconstrued what the NFMA (National Forest Management Act) requires of the Forest Service," a panel of 11 judges admitted in a ruling released July 2. "We made three key errors in [the post-burn case]...Today, we correct those errors." The ruling in "Lands Council v. McNair," involving an Idaho project, overturned a 2-1 decision from 2005 in "Ecology Center v. Austin." McNair and Austin are the forest supervisors for the Idaho Panhandle and Lolo national forests, respectively.
The dramatic ruling concluded by suggesting that the Ninth should weigh other public interests in the future, not just claims of potential environmental damage.
"Though preserving environmental resources is certainly in the public’s interest, the [Idaho Panhandle] Project benefits the public’s interest in a variety of other ways," the ruling stated. "According to the Forest Service, the Project will decrease the risk of catastrophic fire, insect infestation, and disease, and further the public’s interest in aiding the struggling local economy and preventing job loss."
The ruling was everything that Mineral County leaders had hoped to hear from the Ninth three years ago, when the San Francisco-based appeals court took up the Lolo post-burn case (see related story, "Mineral County an unlikely, feisty player in national legal drama, http://www.clarkforkchronicle.com/article.php/20080709075110759).
In Ecology Center, Inc. v. Austin, the court grafted onto a case known as "Lands Council I" a broad rule that, in effect, required the Forest Service to always conduct on-the-ground analysis to support its scientific judgments.
Lands Council I questioned the reliability of the Forest Service’s methods in analyzing soils. The Forest Service had not taken soil samples, but instead had relied on aerial photographs and samples from other areas in the forest.
Despite the Forest Service’s representation that it had “tested similar soils within the Forest, and similar soils act the same way,” the Ninth rejected the Forest Service’s choice of scientific methodology because it was based entirely on a spreadsheet model with no on-site inspection or verification.
The Ninth ruled that to be reliable, the Forest Service must verify its methods with on-the-ground observation and analysis. By not doing so, the Ninth ruled in Lands Council I that the Forest Service had violated NFMA.
In Ecology Center, the Ninth extended its on-the-ground analysis requirement to the Lolo's post burn project.
"We held that in order to comply with the NFMA, the Forest Service was required to conduct on-the-ground analysis to verify its soil quality analysis and to establish the reliability of its hypothesis that 'treating old-growth forest is beneficial to dependent species.' "
The Ecology Center suggested that the analysis had to be conducted in the location of the proposed action.
As in Lands Council I, the Ninth in Ecology Center rejected the Forest Service’s argument that its on-the-ground soil analysis was sufficiently reliable because it utilized data from areas with ecological characteristics similar to the proposed harvest units. But the 2-1 ruling from 2005 went even further.
"We made three key errors in Ecology Center," the court wrote. "First, we read the holding of Lands Council I too broadly. Second, we created a requirement not found in any relevant statute or regulation. And, third, we defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors."
The case had created a dangerous precedent, expanding the requirement for on-the-ground analysis beyond soil analysis, the Ninth's panel suggested.
"Ecology Center established a far-reaching rule that the Forest Service must always verify its methodology with on-the-ground analysis, regardless of the context," the ruling stated, and then quickly wiped out that requirement: "The Forest Service is at liberty, of course, to use on-the-ground analysis if it deems it appropriate or necessary, but it is not required to do so."
Judge M. Margaret McKeown, who had dissented from the original 2-1 Ecology Center decision by the Ninth, was on the 11-judge en banc panel that threw it out July 2.
As Judge McKeown explained in her dissent in Ecology Center: "There is no legal basis to conclude that the NFMA requires an on-site analysis where there is a reasonable scientific basis to uphold the legitimacy of modeling. NFMA does not impose this substantive requirement, and it cannot be derived from the procedural parameters of NEPA.”
The July 2 decision reaffirmed that the law requires the courts to defer to the agency in areas involving a “high level of technical expertise,” being most deferential when the agency is “making predictions, within its [area of] special expertise, at the frontiers of science.”
Sister circuits have also ruled that they must conduct a “particularly deferential review” of an “agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise . . . as long as they are reasonable.”
And other cases have established that the courts cannot impose their own notions of which procedures are ‘best’ or most likely to further some "vague, undefined public good."
The judges concluded by leaving the science to scientists.
"Thus, as non-scientists, we decline to impose bright-line rules on the Forest Service regarding particular means that it must take in every case to show us that it has met the NFMA’s requirements. Rather, we hold that the Forest Service must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable. The Forest Service must explain the conclusions it has drawn from its chosen methodology, and the reasons it considers the underlying evidence to be reliable. We will conclude that the Forest Service acts arbitrarily and capriciously only when the record plainly demonstrates that the Forest Service made a clear error in judgment in concluding that a project meets the requirements of the NFMA and relevant Forest Plan.
"For these reasons, we overrule Ecology Center and affirm that Lands Council I’s requirement of on-the ground analysis was limited to the circumstances of that particular case," the court concluded.
###
See also:
Mineral County an unlikely, feisty player in national legal drama
http://www.clarkforkchronicle.com/article.php/20080709075110759