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Ninth Circuit Invalidates Forest Service Evaluation of Grazing Impacts On Sage Grouse


03/17/10

The Ninth Circuit Court of Appeals concluded that the Forest Service violated the National Forest Management Act ("NFMA") and the National Environmental Policy Act ("NEPA") in approving grazing allotments in Southeast Montana, calling the Service's methodology fatally flawed.  (Click here to read the decision.)  The Court determined that the Service's use of a "habitat" proxy to evaluate impacts to the sage grouse, without considering evidence concerning the sage grouse population, was arbitrary and capricious.  The Court did not consider the Fish and Wildlife Service's recent determination that listing the sage grouse under the Endangered Species Act is "warranted."  Nevertheless, the decision highlights the potential for future conflicts between the conservation of the sage grouse and economic activities on public lands in the West.  The decision is another example of the reluctance of the Ninth Circuit to defer to agency decisions on biological issues.     

The Forest Service's Assessment of Sagebrush Species' Viability

The controversy in Native Ecosystems Council v. Tidwell centered on the methodology the Service used to assess sagebrush species viability in the Service's approval of grazing allotment plans.  To ensure population viability and monitor the effects of management, NFMA regulations mandate the identification and selection of a management indicator species.  The applicable forest plan designated the sage grouse as the indicator species for the sagebrush wildlife habitat in the project area.  However, the sage grouse is virtually non-existent in the project area.  In the past 15 years, only two possible sage grouse sightings were noted in the project area and the project area contained no identified sage grouse breeding display sites.  To compensate for this lack of population data, the Service used a "proxy-on-proxy" approach to assess viability for the sagebrush species.  This approach allows the Service to avoid studying the population trends of the indicator species by using indicator species habitat as a proxy for indicator species population trends. 

The Ninth Circuit had previously validated the Service's use of the "proxy-on-proxy" approach.  Here, however, the Court concluded that "[r]egardless of whether the Forest Service's methodology comports with established scientific standards, the habitat proxy does not reasonably ensure viable populations of the species at issue when almost no sage grouse have been seen in the project area."  The Court also questioned the Service's application of management guidelines established for applying the proxy-on-proxy approach based on its review of an additional analysis completed by an outside expert that differed from the Service's Environmental Assessment.  Because the two analyses followed the same guidelines but resulted in different conclusions, the Court found that the Service's method of measuring the sagebrush habitat was "neither reasonably reliable nor accurate." 

Because the Court concluded the Service's methodology was flawed, it held that the Service's approval of grazing allotments was arbitrary and capricious and violated NEPA and NFMA.  The Court rejected arguments from the Service that population monitoring is not essential to a proper analysis of the project under NFMA as well as conclusions from experts that the Service's analysis was consistent with sage grouse management guidelines.    

This case is the latest example of the reluctance of the Ninth Circuit to defer to the judgment of the agency on technical matters, despite the Court's recent decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008).  In his dissent, Chief Judge Kozinski argued that that the majority overstepped its role.  Quoting the seminal Supreme Court case of Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989), Kozinski writes that "an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive."  He argues that "bare disagreement with the Service's scientific analysis doesn't make it arbitrary and capricious. . . . especially [ ] where, as here, the court bases its objections on the findings of a scientist who has actually endorsed the project being reviewed."  Kozinski points out that the Court's decision will have far-reaching implications for the Service's ability to plan on a forest-wide scale by relying on forest-wide indicator species.  The majority responds that the Service is bound to assess proposed actions on a site specific basis.  In the Court's view, this obligation means incorporating sage grouse population data in its analysis, which the Service failed to do. 

The Court has remanded the case for the Service to prepare a new or supplemental Environmental Assessment. 

You can find more information regarding the greater sage grouse on Nossaman's Endangered Species Law and Policy blog, available at www.endangeredspecieslawandpolicy.com


Lauren Valk works on transactional and litigation matters as part of Nossaman's Real Estate and Land Use & Natural Resources Practice Groups.  She can be reached at
lvalk@nossaman.com, or 949.833.7800. 

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