SEACC, et al v. USFS, et al

Filing

FILED OPINION (ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN and RONALD M. GOULD) AFFIRMED. Judge: AK Authoring, Judge: RMG Dissenting. FILED AND ENTERED JUDGMENT. [10444328] [15-35232, 15-35233, 15-35244]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IN RE BIG THORNE PROJECT
AND 2008 TONGASS FOREST
PLAN,

SOUTHEAST ALASKA
CONSERVATION COUNCIL;
ALASKA WILDERNESS
LEAGUE; SIERRA CLUB;
NATIONAL AUDUBON
SOCIETY; NATURAL
RESOURCES DEFENSE
COUNCIL,
Plaintiffs-Appellants,
and
CASCADIA WILDLANDS;
GREATER SOUTHEAST
ALASKA CONSERVATION
COMMUNITY; GREENPEACE;
CENTER FOR BIOLOGICAL
DIVERSITY; THE BOAT
COMPANY,
Plaintiffs,
v.

No. 15-35232
D.C. Nos.
1:14-cv-00013-RRB
1:14-cv-00014-RRB
1:14-cv-00015-RRB

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IN RE BIG THORNE PROJECT

UNITED STATES FOREST
SERVICE; UNITED STATES
DEPARTMENT OF
AGRICULTURE; BETH
PENDLETON, in her official
capacity as United States
Forest Service Region 10
Regional Forester; FORREST
COLE, in his official capacity
as Forest Supervisor for the
Tongass National Forest;
THOMAS TIDWELL, in his
official capacity as Chief of
the United States Forest
Service,
Defendants-Appellees,
STATE OF ALASKA; ALASKA
FOREST ASSOCIATION, INC.;
SOUTHEAST CONFERENCE;
VIKING LUMBER COMPANY,
INC.; CITY OF CRAIG; ICY
STRAITS LUMBER CO. INC.;
SOUTHEAST STEVEDORING
CORPORATION; ALASKA
ELECTRIC LIGHT AND POWER
COMPANY; ALASKA POWER &
TELEPHONE; ALASKA
MARINE LINES, INC.; ALASKA
MINERS ASSOCIATION; FIRST
THINGS FIRST FOUNDATION;
SAMSON TUG AND BARGE
COMPANY, INC.; TYLER

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IN RE BIG THORNE PROJECT
RENTAL, INC.; RESOURCE
DEVELOPMENT COUNCIL OF
ALASKA, INC.; SOUTHEAST
ROADBUILDERS, INC.; BOYER
TOWING, INC.; CITY OF
KETCHIKAN; KETCHIKAN
GATEWAY BOROUGH; CITY
AND BOROUGH OF
WRANGELL; FEDERAL
FOREST RESOURCE
COALITION; FIRST BANK,
Intervenor-DefendantsAppellees.

IN RE BIG THORNE PROJECT
AND 2008 TONGASS FOREST
PLAN,

SOUTHEAST ALASKA
CONSERVATION COUNCIL;
ALASKA WILDERNESS
LEAGUE; SIERRA CLUB;
NATIONAL AUDUBON
SOCIETY; NATURAL
RESOURCES DEFENSE
COUNCIL,
Plaintiffs,
and
CASCADIA WILDLANDS;

No. 15-35233
D.C. Nos.
1:14-cv-00013-RRB
1:14-cv-00014-RRB
1:14-cv-00015-RRB

3

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IN RE BIG THORNE PROJECT

GREATER SOUTHEAST
ALASKA CONSERVATION
COMMUNITY; GREENPEACE;
CENTER FOR BIOLOGICAL
DIVERSITY; THE BOAT
COMPANY,
Plaintiffs-Appellants,
v.
UNITED STATES FOREST
SERVICE; UNITED STATES
DEPARTMENT OF
AGRICULTURE; BETH
PENDLETON, in her official
capacity as United States
Forest Service Region 10
Regional Forester; FORREST
COLE, in his official capacity
as Forest Supervisor for the
Tongass National Forest;
THOMAS TIDWELL, in his
official capacity as Chief of
the United States Forest
Service,
Defendants-Appellees,
STATE OF ALASKA; ALASKA
FOREST ASSOCIATION, INC.;
SOUTHEAST CONFERENCE;
VIKING LUMBER COMPANY,
INC.; CITY OF CRAIG; ICY
STRAITS LUMBER CO. INC.;

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IN RE BIG THORNE PROJECT
SOUTHEAST STEVEDORING
CORPORATION; ALASKA
ELECTRIC LIGHT AND POWER
COMPANY; ALASKA POWER &
TELEPHONE; ALASKA
MARINE LINES, INC.; ALASKA
MINERS ASSOCIATION; FIRST
THINGS FIRST FOUNDATION;
SAMSON TUG AND BARGE
COMPANY, INC.; TYLER
RENTAL, INC.; RESOURCE
DEVELOPMENT COUNCIL OF
ALASKA, INC.; SOUTHEAST
ROADBUILDERS, INC.; BOYER
TOWING, INC.; CITY OF
KETCHIKAN; KETCHIKAN
GATEWAY BOROUGH; CITY
AND BOROUGH OF
WRANGELL; FEDERAL
FOREST RESOURCE
COALITION; FIRST BANK,
Intervenor-DefendantsAppellees.

5

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IN RE BIG THORNE PROJECT

IN RE BIG THORNE PROJECT
AND 2008 TONGASS FOREST
PLAN,

SOUTHEAST ALASKA
CONSERVATION COUNCIL;
ALASKA WILDERNESS
LEAGUE; SIERRA CLUB;
NATURAL RESOURCES
DEFENSE COUNCIL,
Plaintiffs-Appellants,
v.
UNITED STATES FOREST
SERVICE; UNITED STATES
DEPARTMENT OF
AGRICULTURE; BETH
PENDLETON, in her official
capacity as United States
Forest Service Region 10
Regional Forester; FORREST
COLE, in his official capacity
as Forest Supervisor for the
Tongass National Forest;
THOMAS TIDWELL, in his
official capacity as Chief of
the United States Forest
Service,
Defendants-Appellees,

No. 15-35244
D.C. Nos.
1:14-cv-00014-RRB
1:14-cv-00013-RRB
1:14-cv-00015-RRB

OPINION

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IN RE BIG THORNE PROJECT
STATE OF ALASKA; ALASKA
FOREST ASSOCIATION, INC.;
SOUTHEAST CONFERENCE;
VIKING LUMBER COMPANY,
INC.; CITY OF CRAIG; ICY
STRAITS LUMBER CO. INC.;
SOUTHEAST STEVEDORING
CORPORATION; ALASKA
ELECTRIC LIGHT AND POWER
COMPANY; ALASKA POWER &
TELEPHONE; ALASKA
MARINE LINES, INC.; ALASKA
MINERS ASSOCIATION; FIRST
THINGS FIRST FOUNDATION;
SAMSON TUG AND BARGE
COMPANY, INC.; TYLER
RENTAL, INC.; RESOURCE
DEVELOPMENT COUNCIL OF
ALASKA, INC.; SOUTHEAST
ROADBUILDERS, INC.; BOYER
TOWING, INC.; CITY OF
KETCHIKAN; KETCHIKAN
GATEWAY BOROUGH; CITY
AND BOROUGH OF
WRANGELL; FEDERAL
FOREST RESOURCE
COALITION; FIRST BANK,
Intervenor-DefendantsAppellees.

7

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IN RE BIG THORNE PROJECT
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Senior District Judge, Presiding
Argued and Submitted February 3, 2016
Seattle, Washington
Filed May 23, 2017
Before: Alex Kozinski, Diarmuid F. O’Scannlain
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Gould

SUMMARY*

National Forest Management Act
The panel affirmed the district court’s summary judgment
in favor of the United States in an action alleging that the
United States Forest Service violated the National Forest
Management Act by approving either the Big Thorne logging
project or the 2008 Tongass Forest Plan under which Big
Thorne was authorized.
Plaintiffs alleged that the 2008 Tongass Forest Plan
unlawfully damages the habitat of the indigenous Alexander
Archipelago wolf, and that the Forest Service violated its self*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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imposed obligation under the Plan by failing to ensure the
wolf’s sustainability. The panel held that the Plan’s provision
pertaining to sustainability was discretionary. The panel held
that because the Forest Service was only obligated to consider
sustainability “where possible,” there was no law to apply in
second-guessing the agency. The panel held that it was aware
of no authority compelling the agency to set a specific
standard or benchmark for protecting the viability of a species
that was neither endangered nor threatened. The panel noted
that the Forest Service’s Record of Decision specifically
concluded that the Forest Plan would “sustain viable
populations of the Alexander Archipelago wolf,” and the
panel concluded that Forest Service’s discussion of viability
wasn’t arbitrary or capricious. The panel further held that the
Big Thorne Project was consistent with the Forest Plan.
In a concurrently filed memorandum disposition, the
panel also dismissed plaintiffs’ claims under the National
Environmental Policy Act.
Judge Gould dissented from the portion of the majority’s
discussion of the issues relating to the National Forest
Management Act, and concurred in the court’s reasoning
concerning the National Environmental Policy Act, as
presented in the concurrently filed memorandum disposition.
Judge Gould stated that the Forest Plan presently provides no
mechanism to ensure wolf population viability, and that the
agency’s rationale and reasoning process was too summary
and conclusory. Judge Gould would vacate the decision of
the Forest Service and remand for further proceedings, which
at a minimum would include both a thorough assessment
of the viability of the Alexander Archipelago wolf if the
project proceeds, and an explanation of its reasoning

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IN RE BIG THORNE PROJECT

sufficient to satisfy Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

COUNSEL
Holly Anne Harris (argued), Thomas S. Waldo, and Eric P.
Jorgensen, Earthjustice, Juneau, Alaska, for PlaintiffsAppellants/Plaintiffs.
Christopher Winter (argued), Ralph Bloemers, and Oliver
Stiefel, Crag Law Center, Portland, Oregon; Gabriel Scott,
Cordova, Alaska; for Plaintiffs/Plaintiffs-Appellants.
Allen M. Brabender (argued), Emily Polachek, and David
Glazer, Attorneys; John C. Cruden, Assistant Attorney
General; Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C.; James
Ustasiewski and Kate Baldridge, Office of General Counsel,
United States Department of Agriculture; for DefendantsAppellees.
Richard Goeken (argued), Smith Currie & Hancock LLP,
Washington, D.C.; Thomas E. Lenhart (argued), Senior
Assistant Attorney General; Craig W. Richards, Attorney
General; Office of the Attorney General, Juneau, Alaska;
Julie A. Weis, Haglund Kelley LLP, Portland, Oregon; James
F. Clark, Law Offices of James F. Clark, Juneau, Alaska;
Steven W. Silver, Robertson Monagle and Eastaugh, Reston,
Virginia; for Intervenor-Defendants-Appellees.

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IN RE BIG THORNE PROJECT

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OPINION
KOZINSKI, Circuit Judge:
Big Thorne is a logging project in Alaska’s Tongass
National Forest. The United States Forest Service approved
the logging to help revive the lackluster economy of
southeastern Alaska. But the project has been met with howls
of protest from the plaintiffs in this case, who claim that Big
Thorne unlawfully damages the habitat of an indigenous
wolf. The district court dismissed all challenges, and we
must now decide whether the Forest Service violated the
National Forest Management Act (NFMA) by approving
either the Big Thorne project or the 2008 Tongass Forest Plan
(Forest Plan) under which Big Thorne was authorized.
FACTS
Big Thorne allows timber to be harvested from Alaska’s
Prince of Wales Island. The island, which is the size of
Delaware, is the largest in a chain that makes up Alaska’s
Alexander Archipelago. Like most of the archipelago, Prince
of Wales Island is covered in old-growth rainforest. Big
Thorne authorizes logging on nearly 6,200 acres and the
construction of more than 80 miles of roads.
Logging and road construction will trench on the habitat
of the Alexander Archipelago wolf. This rare wolf preys on
a species of deer that thrives in the old-growth rainforest,
which provides suitable shelter and forage during periods of
heavy snow. A smaller forest will support fewer deer, which,
in turn, will support fewer wolves. The new roads will
compound that effect by letting wolf and deer hunters range
deeper into the forest.

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IN RE BIG THORNE PROJECT

Concerns about the fate of the wolf are not new. This
discrete and insular canine is confined to the islands of the
archipelago and surrounding coastline, and is thus sensitive
to changes in local habitat. In 1993, environmental groups
petitioned to have the wolf listed under the Endangered
Species Act. The Fish and Wildlife Service denied the
petition,1 but nonetheless helped convene a team of scientists
to prepare a “wolf conservation assessment.” The assessment
recommended that the wolf be protected by maintaining the
deer population and limiting road density.
The Forest Service used these recommendations in 2008
as the basis for two “standards and guidelines” adopted in the
Forest Plan. The first of these—known as the “wolf
provision”—encourages the Forest Service to “[p]rovide,
where possible, sufficient deer habitat capability to . . .
maintain sustainable wolf populations” (emphasis added). A
sufficient habitat capability “is generally considered to equate
to . . . 18 deer per square mile.” The second guideline—the
“road provision”—provides that “[t]otal road densities of 0.7
to 1.0 mile per square mile or less may be necessary” to
protect the wolves (emphasis added).
Even before Big Thorne was approved, the project area
had insufficient habitat capability to support 18 deer per
square mile, and road densities were above the recommended

1

In response to several renewed petitions, the Fish and Wildlife
Service concluded in early 2016 that “listing the Alexander Archipelago
wolf is not warranted at this time throughout all or a significant portion of
its range, including [Prince of Wales Island].” 12-Month Finding on a
Petition To List the Alexander Archipelago Wolf as an Endangered or
Threatened Species, 81 Fed. Reg. 435, 435 (Jan. 6, 2016).

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maximum. The logging project will further reduce deer
habitat capability and increase road density.
The Forest Service nevertheless put the welfare of local
loggers and their families above that of the wolves, and
approved Big Thorne. More concerned with wolves than
jobs, plaintiffs filed three lawsuits, pressing a variety of
challenges in an attempt to derail the project. The district
court consolidated the cases and granted Alaska’s motion to
intervene. It then granted summary judgment to the
defendants on all claims. Plaintiffs appeal.
DISCUSSION
We consider whether the Forest Service violated the
NFMA by approving the Forest Plan or the Big Thorne
logging project.2 This dual inquiry tracks the two tiers of the
agency’s legal obligations. First, the NFMA requires that the
Forest Service develop “land and resource management
plans,” commonly called forest plans, that set broad goals and
guidelines for each national forest. 16 U.S.C. § 1604(a), (e),
(g); Citizens for Better Forestry v. U.S. Dep’t of Agric.,
341 F.3d 961, 966 (9th Cir. 2003). Second, after a forest plan
is developed, all subsequent agency actions within that
national forest—projects like Big Thorne—must comply with
both the NFMA and the relevant forest plan. 16 U.S.C.
§ 1604(i); see also Lands Council v. McNair, 537 F.3d 981,
989 (9th Cir. 2008) (en banc), abrogated in part on other

2

The district court also dismissed plaintiffs’ claims brought under the
National Environmental Policy Act. We dispose of those claims, and
several outstanding motions for judicial notice, in a memorandum
disposition filed concurrently.

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grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7 (2008).
The Administrative Procedure Act provides our standard
of review. We set aside an agency’s actions “only if they are
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Or. Nat. Res. Council Fund v.
Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (internal
quotation marks omitted) (discussing 5 U.S.C. § 706(2)(A)).
A. The Forest Plan
1. While “generalized harm” to the environment isn’t
enough to supply standing, the Supreme Court has
emphasized that particularized harm to “recreational” or even
“mere esthetic interests” is sufficient. Summers v. Earth
Island Inst., 555 U.S. 488, 494 (2009). We have previously
held that a plaintiff has standing to challenge a
“programmatic” agency decision (like a forest plan) when he
suffers harm that is “fairly traceable” to that program. See
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d
1075, 1081 (9th Cir. 2015) (internal quotation marks
omitted).
Plaintiffs present voluminous declarations amply
demonstrating that they are challenging the Forest Plan as a
result of specific applications and not, as defendants claim, on
its face. The declarants use sites affected by the Forest Plan
for fishing, hunting, and to “enjoy the solitude” available only
in “remote, undeveloped areas on the Tongass.” Unlike the
single individual affidavit before the Supreme Court in
Summers, 555 U.S. at 495—which was inadequate to
establish standing—these declarations are sufficient to show

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that actions approved under the Forest Plan will cause
particularized injury to the plaintiffs.
2. The NFMA’s regulations at the time of the Forest Plan
required that national forests “be managed to maintain viable
populations of existing native and desired non-native
vertebrate species.” 36 C.F.R. § 219.19 (2000) (emphasis
added).3 This regulation defined a viable population as one
with enough “reproductive individuals to insure its continued
existence is well distributed in the planning area.” Id. So our
question is whether the Forest Service unlawfully concluded
that its Forest Plan would safeguard the continued and welldistributed existence of the Alexander Archipelago wolf.
Some plaintiffs argue that this is the wrong question.
They claim that the “wolf provision” of the Forest Plan in fact
mandates a “sustainable” wolf population, not merely a viable
one. Sustainability is the more demanding standard, and
plaintiffs claim that the Forest Service violated its selfimposed obligation by failing to ensure sustainability.
The difference between sustainability and viability is not
sharply defined, and is made fuzzier still by the parties, who
occasionally conflate the two—as when they refer to

3

This regulation has been superseded. We apply a superseded
regulation “only to the extent” it was incorporated into the relevant Forest
Plan. Ecology Ctr. v. Castaneda, 574 F.3d 652, 657 (9th Cir. 2009). The
Forest Plan, which has not been updated since 2008, does mention the
superseded regulation, and the parties don’t dispute that the old regulation
applies. Applying the current regulation would not change the result
because the new regulation gives Forest Service officials even more
leeway to “determine whether or not the plan components . . . maintain a
viable population of each species of conservation concern within the plan
area.” 36 C.F.R. § 219.9(b).

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“sustaining viable” wolf populations, or repeatedly (if
obscurely) ponder the forest’s ability to “sustain wolves.”
We need not map the precise contours of these concepts,
however, because the Forest Plan provision that mentions
sustainability is discretionary: It states only that the Service
“[p]rovide, where possible, sufficient deer habitat capability
to . . . maintain sustainable wolf populations” (emphasis
added). This is an aspiration, not an obligation. Because the
Forest Service is only obligated to consider sustainability
“where possible,” there is no law for us to apply in secondguessing the agency. See Heckler v. Chaney, 470 U.S. 821,
832 (1985) (construing 5 U.S.C. § 701(a)(2)). We agree with
the district court that the provision gives the Service the kind
of “flexibility and discretion” that is consistent with its
mission of balancing competing objectives.
Plaintiffs argue that such broad discretion must itself be
a problem: If the “sustainability” provision merely expresses
an aspiration, the Forest Plan must violate the NFMA by
failing to provide any enforceable mechanism for maintaining
population minimums that comply with the viability
regulations. The argument appears to be that the Forest Plan
must set hard viability minimums—like deer per square
mile—below which the Service may not go.
This argument is neither viable nor sustainable. We’re
aware of no authority compelling the agency to set a specific
standard or benchmark for protecting the viability of a species
that is neither endangered nor threatened. This makes sense
when we consider our constellation of federal statutes: The
NFMA is fundamentally different from the Endangered
Species Act, which has a single-minded focus on protecting
species that are near extinction. Because the Alexander
Archipelago wolf is not entitled to such protection—despite

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IN RE BIG THORNE PROJECT

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the best efforts of environmental groups—its treatment is
guided by the less animal-friendly NFMA. The NFMA is
about managing competing uses, none to the exclusion of
others. See 16 U.S.C. § 1604(e).
As the dissent notes, the Forest Plan does incorporate a
superseded regulation requiring the agency to “maintain
viable populations” of native vertebrate species. See
36 C.F.R. § 219.19 (2000); see also supra note 3. But,
contrary to the dissent’s suggestion, we have repeatedly and
emphatically stressed that the Service is not required to
identify a specific “mechanism” for securing viability. We
have rejected the idea that the Service “must assess
population viability in terms of actual population size,
population trends, or the population dynamics of other
species”; even if such methods are desirable, they are flatly
“not required.” Inland Empire Pub. Lands Council v. U.S.
Forest Serv., 88 F.3d 754, 761 n.8 (9th Cir. 1996). Indeed,
we are “especially” deferential “when questions of scientific
methodology are involved,” like how to protect viability. Id.
at 760. More recently, our en banc opinion in Lands Council
v. McNair again made clear that courts may not “require a
particular type of proof that a project would maintain a
species’ population.” 537 F.3d at 997. Instead, an agency
need only supply “a rational connection between the facts
found and the conclusions made.” Or. Nat. Res. Council
Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007) (citation
and quotation marks omitted). This rational connection can
be supplied with studies or models or experts—or really any
legitimate evidence, so long as the agency describes a
reasonable fit between its means and ends.
There’s no question that the agency understood and met
this obligation. The Record of Decision specifically

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IN RE BIG THORNE PROJECT

concludes that the Forest Plan will “sustain viable populations
of the Alexander Archipelago wolf.” The Service outlined a
multi-part strategy for protecting the wolf, which included
“providing core habitats with low road density, maintaining
wolf harvest within sustainable limits through regulations,
and providing adequate deer habitat to support an abundant
and stable deer population.” The Service extensively
discussed the management and modeling concerns of
alternative forest plans, and concluded that all alternatives
had between a “moderately high” and “very high” probability
of protecting wolf viability. The Service’s Record of
Decision specifically incorporates this discussion, along with
a longer discussion in the 1997 Forest Plan. Could the
Service’s discussion have been longer, better, or different?
Perhaps. But we decline to substitute our own policy wisdom
for the agency’s.4
In short, the Service met its legal obligations, and
plaintiffs’ remaining challenges to the Forest Plan—a
potpourri of contentions that the Service misinterpreted one
thing or failed to consider another—amount to the sort of
quibbling that can’t overcome our deferential standard of
review. San Luis & Delta-Mendota Water Auth. v. Jewell,
747 F.3d 581, 601 (9th Cir. 2014). The Forest Service’s
discussion of viability wasn’t arbitrary or capricious.

4

The dissent’s focus on population changes on Prince of Wales
Island, dissent at 25–26, is puzzling for two reasons. First, the Forest
Service’s obligation is to protect viability in the Tongass Forest as a
whole, not every slice of it—in this case, an island that is less than 10%
of the total national forest. Second, the effects of the Big Thorne Project
tell us nothing about whether the agency complied with its legal
obligations in adopting the Forest Plan many years earlier.

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The NFMA gives the Forest Service flexibility because
the Service has many different goals—conservation,
commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2);
McNair, 537 F.3d at 993–94. The statute reflects a
congressional judgment that balancing these goals calls for
policy judgments—judgments that often require trade-offs
among worthy objectives, such as wolves and logging jobs.
Congress left such judgments to a politically responsive
agency with relevant expertise. See 63C Am. Jur. 2d Public
Lands § 86 (2016) (“[T]he proper mix of uses within an area
is left to the discretion of the Forest Service.”). Depending
on the circumstances, lumber might be more important than
wolves. And even when wolves are more important than
lumber, it might be better to build fewer roads rather than
allow for more deer. Courts are not well-equipped to police
the substance of these judgments. Instead, we employ
procedural tools: In a nutshell, the agency must rationally
explain why it did what it did. Or. Nat. Res. Council Fund,
492 F.3d at 1125. This isn’t the only way to structure a
modern administrative state, and its emphasis on procedure
will produce results that some despise. But we have an
Administrative Procedure Act, not an Administrative Policy
Act.
B. The Big Thorne Project
Even if the Forest Service lawfully implemented the
Forest Plan, it must also ensure the Big Thorne Project is
consistent with that plan. 16 U.S.C. § 1604(i); McNair,
537 F.3d at 989.
Plaintiffs claim the Service failed to do this. But almost
all of their arguments proceed from the same false premise as
their objections to the Forest Plan—namely, they assume that

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it’s a sustainable population that counts, rather than a viable
one. And the premise is wrong for the same reason: The
sustainability provision of the Forest Plan is discretionary.
The Forest Service must consider protecting sustainable
populations “where possible.” If the Service decides that a
sustainable wolf population conflicts with other appropriate
forest goals, the Service has discretion to pursue those goals
instead.
And that’s just what the Forest Service did. It repeatedly
emphasized that it was expanding timber supply from the
Tongass in the service of its multiple-use mandate. The
Service also pointed out that none of Big Thorne’s proposed
land met the Forest Plan’s suggested sustainability
minimums; thus, these goals wouldn’t have been met even in
the absence of a logging plan. In the end, the Service chose
jobs over wolves. We have no authority to second-guess that
judgment. See supra p. 16.
Big Thorne’s environmental impact statement does
contain scattered references to both sustainability and
viability. But plaintiffs are off-base in suggesting that a few
scattered references to sustainability—a common term that’s
deployed incautiously throughout the record and briefs—can
transform the Service’s legal obligation, which is to protect
viability alone.5 To conclude that the Service intended to
saddle itself with an extra obligation would require us to
overlook the agency’s numerous references to viability in the

5
Once more, the Service’s obligation is to protect viability in the
Tongass National Forest as a whole, not in each individual Tongass
project area. Plaintiffs’ claims that the Service failed to explain how it
would maintain wolf viability in the Big Thorne area thus, once again,
misunderstand the Service’s obligations.

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documents approving Big Thorne—as when it concluded in
its impact statement that the plan was “designed to ensure the
maintenance of viable populations of all vertebrate species
[in] the Tongass by means of a comprehensive approach.”
Because that conclusion accurately described the
Service’s legal obligations and was rationally explained, the
judgment below is
AFFIRMED.

GOULD, Circuit Judge, dissenting in part:
I dissent from the portion of the majority’s discussion of
the issues relating to the National Forest Management Act
(NFMA), and concur in the court’s reasoning concerning the
National Environmental Policy Act (NEPA). Hence I join in
full both the judgment and the reasoning of the court as
presented in the memorandum disposition filed concurrently
with the published opinion. But I regret I cannot fully join
the NFMA analysis, and hence I respectfully dissent in part.
Addressing the NFMA issues, that statute explicitly
serves up for agency action a catalog of potential competing
uses of the forest. The agency administering NFMA, the
United States Forest Service (Forest Service), is explicitly to
consider managing the forests having in mind environmental
considerations but also economic considerations. See Native
Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir.
2012) (“Forest plans are designed to manage forest resources
by balancing the consideration of environmental and
economic factors.”); 16 U.S.C. § 1604. One purpose of the

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NFMA is to encourage conservation of natural resources in
our national forests. But another purpose is to support a
timber industry that can provide much needed jobs to those
living in forested areas in or near our national forests.
It is obvious that once the agency makes a decision in the
normal case and gives more weight, for example, to creating
jobs than to protecting trees, the scope of review available for
a federal court will be extremely limited under the
Administrative Procedures Act. We are to “hold unlawful
and set aside agency action, findings, and conclusions found
to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Our review under the Administrative Procedure Act of the
agency’s final administrative action is not generally a review
of substance or policy, but rather of procedure. As is wellstated by the majority, “we have an Administrative Procedure
Act, not an Administrative Policy Act.”
Given that agency action in substance is likely to be
upheld when proper procedures are followed, it is all the
more important to look carefully at whether the decision of
the agency here is procedurally sound. I conclude that it is
not.
For one thing, the applicable regulation governing the
content of a forest plan, states that viable populations of
wildlife in the forests are to be maintained. The NFMA aims
to foster diversity of plant and animal communities as part of
its mission to meet multiple-use objectives. 18 U.S.C.
§ 1604(g)(3)(B). The NFMA itself does not say that the wolf
species must be maintained at specific numbers and as
previously stated, the statute sets out competing potential uses
of the forest that must be balanced by the responsible federal

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agency. The majority poses the issue as a choice between
wolves and jobs, but it is not so simple as that.
Although the NFMA does not require viability, the
agency has a duty to ensure the viability of surrounding
wildlife if it incorporates 36 C.F.R. § 219.19 (2000) into its
forest plan. See Ecology Ctr. v. Castaneda, 574 F.3d 652,
657 (9th Cir. 2009). And here, the Forest Service did
incorporate the regulation in its forest plan by noting that it is
directed “to manage wildlife habitat to maintain viable and
well distributed populations to ensure continued existence in
the planning area.” By so doing, “the forest plan must
comply with substantive requirements of the [NFMA]
designed to ensure continued diversity of plant and animal
communities and the continued viability of wildlife in the
forest . . . .” Idaho Sporting Cong., Inc. v. Rittenhouse,
305 F.3d 957, 961–62 (9th Cir. 2002). Specifically,
36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat
shall be managed to maintain viable populations of existing
native and desired non-native vertebrate species in the
planning area.” Our law is clear that an agency must abide by
its own regulations. See Nat’l Ass’n of Home Builders v.
Norton, 340 F.3d 835, 852 (9th Cir. 2003); see also United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266
(1954).
Here, the majority is so preoccupied with the issue
whether “sustainability” is a discretionary term imposing no
restraint on the Forest Service, that it fails to assess
adequately whether the remaining population of the
Alexander Archipelago wolf will be viable after the project
proceeds. A viable population is “one which has the
estimated numbers and distribution of reproductive
individuals to insure its continued existence is well

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distributed in the planning area.” 36 C.F.R. § 219.19 (2000).
There is a difference between a viable population and a
sustainable population. The latter must contain a larger
number of wolves because it is a population “capable of
sustaining harvest.” The Forest Service has recognized this
distinction: “[M]inimum viable populations for many species
may not satisfy the public need for wildlife populations
depended upon to meet subsistence and/or sport hunting
uses.”
As quoted above, the language of the regulation states in
pertinent part that a population of wildlife in the forest shall
be maintained, so that is a “viable” population. It does not
matter if the term sustainable population is hemmed in by the
discretionary words “if possible.” Instead, what is important
is that there is a non-discretionary obligation in the Forest
Plan for the Forest Service to maintain a “viable” population
of the Alexander Archipelago wolf.1
Although the Forest Service concluded that the Forest
Plan ensured the viability of the Alexander Archipelago wolf
and also concluded that the Big Thorne Project was consistent
with the Plan, the Forest Plan and the Big Thorne project do
not demonstrate that it will manage old growth habitat in a
manner that insures the viability of the wolf in well
distributed populations throughout the Tongass National
Forest. The agency is not obligated to provide a sustainable
1

The majority argues that our precedent rejects the idea that the
Forest Service needs to identify a “mechanism” to secure viability, and
has rejected the idea that viability must be assessed in terms of population
size, trends, or dynamics. But the problem here is not that the agency
didn’t use a particular “mechanism” to assess viability, the problem is
rather that the agency just did not really grapple with assessing whether
current wolf populations are viable. Nor does the majority.

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wolf population, but it must ensure viable wolf populations
consistent with its substantive obligation under 36 C.F.R.
§ 219.19. The Forest Plan presently provides no mechanism
to ensure wolf population viability.
For another thing, the agency’s rationale and reasoning
process is too summary and conclusory, and fails to deal with
the entire problem before it. When the agency opts to protect
jobs rather than wolves, it would normally be allowed to
make that choice. But the Supreme Court in State Farm
elaborated on when we should consider an agency’s action to
be arbitrary and capricious. The Court stated that “the agency
must examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made.’” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines
v. United States, 371 U.S. 156, 168 (1962)).
That problem is presented here. The agency’s assessment
of the plight of the wolves in the Tongass National Forest is
in my view inadequate.2 In the mid 1990s, 250–350 wolves
were thought to inhabit the Alexander Archipelago. The Big
Thorne project area, located on the Prince of Wales Island,
had sufficient habitat to support 45–50 wolves, making up
three separate packs and a portion of a fourth pack. A
project, funded primarily by the Forest Service, estimated that
by fall 2012, only about 29 wolves and only two remaining

2
The majority criticizes my specific discussion of the Prince of Wales
Island, because it only covers less than 10% of the Tongass National
Forest. I do so because the island includes unique, temperate old-growth
rainforest habitat, and because deer populations depend on a sufficient
quantity, distribution, and quality of winter old-growth habitat.

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packs remained in the Big Thorne project area. By spring of
2013, researchers could only account for a mere six to seven
wolves left in the project area. Another researcher observed
that “numbers seem to indicate that the population of wolves
in the central portion of Prince of Wales Island is approaching
zero.”
The Alexander Archipelago wolf and the Sitka blacktailed deer, as the Forest Service explained, are closely
interrelated. Survival of the wolves depends on survival of
the deer on which the wolves feed, which in turn depends on
maintenance of the old growth forest habitat on which the
deer depends. Deer populations depend on a sufficient
quantity, distribution, and quality of winter old-growth
habitat. It is inescapable that logging reduces this habitat.
The Forest Service, aware that wolves depend on deer for
their survival, and that those deer to survive depend on old
growth forest habitat, has stressed that maintaining sufficient
deer habitat capability, and thus greater number of deer, was
“the most important factor” in sustaining wolf viability in the
Tongass National Forest. In fact, the destruction of deer
habitat capability is, as the agency has explained, “the most
important factor limiting wolf viability.” Yet the Forest Plan
does not support deer habitat capability numbers, and nothing
in the record supports the Forest Service’s contention that
viable wolf populations will remain relying on the other two
prongs of habitat reserves and wolf mortality management.
Perhaps it cannot be said that the agency could never
conclude on the limited evidence that a group of animals will
or will not survive as a consequence of forest activities. But
here the record is too sparse for definitive conclusion, and
what evidence exists in the record shows drastically
decreasing wolf population over the past decades and a

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project that diminishes deer habitat capability, further
threatening the wolves.
I would remand for more proceedings before the district
court in which the Forest Service could better explain its
reasoning and position relating to threatened habitat needed
by the wolves that will be lost if the pending project is
approved. I urge the majority to reassess its conclusions,
remand for more development of the record and pertinent
conclusions, and also give guidance (1) as to the
interpretation of the term “viable” in its context; and also
(2) on when and under what circumstances the agency would
be free to modify its restrictive regulation on viable
populations.
Hence I respectfully dissent in part. I would vacate the
decision of the Forest Service and remand for its further
proceedings, which at a minimum need to include both a
thorough assessment of viability of the Alexander
Archipelago wolf if the project proceeds, and an explanation
of its reasoning sufficient to satisfy State Farm. Perhaps the
agency can satisfactorily explain itself. But explain it must
do for the decision to be procedurally correct. And who
knows, perhaps in going through the rigorous explanation of
whether the Alexander Archipelago wolf will continue to
exist in viable numbers, the agency may learn more, which
could lead it to take some different action more favorable to
wolf and human communities. At a minimum, the agency, by
explaining itself, will help to fully inform the public about the
issues presented in balancing wolf survival, adequacy of deer
habitat, and impact on jobs and pertinent communities caused
by the final agency action.