Finding its methodology “fatally flawed,” 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 its approval of grazing allotments in Southeast Montana.  In Native Ecosystems Council v. Tidwell (PDF), the court determined that the Forest Service’s use of a “habitat” proxy to evaluate impacts to the sage grouse was arbitrary and capricious without considering evidence concerning the sage grouse population. The court did not consider the recent determination by the Fish and Wildlife Service that the listing of the sage grouse under the Endangered Species Act is “warranted.” Nevertheless, the decision is evidence of 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 controversy in this case centers on the methodology the Forest Service used to assess the viability of sagebrush species in the Forest Service’s approval of grazing allotment plans. To ensure population viability and monitor the effects of management, regulations implementing NFMA 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 Forest 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 Forest 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 held that it was arbitrary and capricious for the Forest Service to rely on sage grouse habitat for its viability analysis without considering evidence concerning the sage grouse population. The court also questioned the Forest 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 Forest Service’s Environmental Assessment. Because the two analyses followed the same guidelines but resulted in different conclusions, the court found that the Forest Service’s method of measuring the sagebrush habitat was “neither reasonably reliable nor accurate.”

Because the court concluded the Forest Service’s methodology in assessing the viability for sagebrush communities in the project area was flawed, it held that the Forest Service’s approval of grazing allotments was arbitrary and capricious and violated NEPA and NFMA. The court rejected arguments from the Forest Service that population monitoring is not essential to a proper analysis of the project under NFMA as well as conclusions from experts that the Forest 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) (PDF). 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 Forest Service’s ability to plan on a forest-wide scale by relying on forest-wide indicator species. The majority responds that the Forest  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 Forest Service failed to do.