United States Court of Appeals,

 

Eleventh Circuit.

 

No. 98-8358.

 

SIERRA CLUB, Wilderness Society, et al., Plaintiffs-Appellants,

 

v.

 

George G. MARTIN, in his official capacity as Forest Supervisor of the

Chattahoochee and

Oconee National Forests; Robert C. Joslin, Regional Forester of the United

States Forest Service for Region Eight, et al., Defendants-Appellees.

 

Feb. 18, 1999.

 

Appeal from the United States District Court for the Northern District of

Georgia. (No. 1:96-CV-0926-TWT), Thomas W. Thrash, Judge.

 

Before BIRCH and BARKETT, Circuit Judges, and ALAIMO(*), Senior District

Judge.

 

BARKETT, Circuit Judge:

 

The Sierra Club(1) appeals the district court's grant of summary judgment to

the United States Forest Service ("Forest Service") and intervenor timber

companies in connection with the Forest Service's decision to allow seven

timber sales in Georgia's Chattahoochee National Forest, which will enable

logging (including clearcutting), road building and related activities. On

appeal, Sierra Club asserts that the decision to permit the timber sales,

which it contends will damage the forest environment, was arbitrary and

capricious and thus violated the National Forest Management Act (NFMA), 16

U.S.C. ? 1600, et seq., and the substantive regulations promulgated under

NFMA. See 36 C.F.R. ?? 219.1 et seq. We reverse.

 

Background

 

The Chattahoochee and Oconee National Forests (Forest) encompass 741,000

acres in the Appalachian Mountains of northern Georgia. In 1991, the Forest

Service proposed to sell the timber rights to seven tracts within the

Forest, totaling approximately 2,000 acres. In addition to the logging

itself, the timber projects would require the construction of eighteen miles

of roads into wilderness areas of the Forest, leading to a discharge of

155.1 tons of sediment into surrounding rivers and streams.

 

The Forest Service adopted the Land and Resource Management Plan (Forest

Plan) for the Forest in 1985 and amended it in 1989.(2) Before any sales of

timber can occur within the Forest, the Plan requires the Forest Service to

conduct a site-specific study to determine whether the proposed timber sale

would harm the area or its resident species. After conducting a study of the

projected impact of the sales in question, the Forest Service determined

that there would be no adverse impact and approved the sales.

 

Sierra Club subsequently filed suit under the Administrative Procedure Act

(APA), 5 U.S.C. ? 706, contending that these timber cutting projects would

harm plant and animal species in the Forest. Sierra Club argued that, in

conducting its study, the Forest Service did not obtain, and therefore did

not consider, population inventory and population trend data for proposed,

endangered, threatened, or sensitive species of plants and animals

(collectively, "PETS species"), as required by the Forest Plan and the

Forest Service's own regulations. Without such data, Sierra Club claimed

that the study of the affected area was inadequate, making the decision to

sell the timber parcels arbitrary and capricious. Sierra Club also argued

that the decision to approve the sales violated 36 C.F.R. ?? 219.12, 219.19

& 219.26 because the Forest Service lacked the population data required by

those regulations as well. Finally, Sierra Club challenged the Forest Plan

itself, contending that it does not conform with NFMA because the proposed

clearcutting will not adequately protect the Forest's soil, watershed, fish,

and wildlife as required by the statute. See 16 U.S.C. ? 1604(g)(3)(F)(v).

 

The district court granted summary judgment to the Forest Service and timber

intervenors, holding that the Forest Service was not required to obtain the

population and population trend data for PETS species before approving the

timber sales and therefore that the Forest Service did not act arbitrarily

and capriciously. Moreover, the district court found that Sierra Club's

challenges to the timber sales under 36 C.F.R. ? 219 did not lie because the

regulations deal specifically with the formulation of forest plans, rather

than site-specific actions initiated under an extant forest plan. Sierra

Club now appeals.

 

We review grants of summary judgment de novo. Northlake Regional Medical

Center v.Waffle House System Employee Benefit Plan, 160 F.3d 1301, 1303

(11th Cir.1998). Under the APA, agency actions should be reversed if they

are found to be "arbitrary and capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. ? 706(2)(A).

 

Discussion

 

1. NFMA

 

Sierra Club first argues that the Forest Service violated NFMA by failing to

comply with the Forest Plan's requirement that population inventory

information be gathered and considered before implementing any decision

affecting areas within the Forest. For each proposed project within the

Forest, the Plan requires that the Forest Service perform a site-specific

Environmental Assessment (EA), including a Biological Evaluation (BE)(3) of

how the area will be affected by the project.(5) Specifically, the Forest

Plan states in relevant part:

 

A biological evaluation of how a project may affect any species federally

listed as threatened, endangered, or proposed, or identified by the Forest

Service as sensitive, is done as part of the site-specific environmental

analysis. This evaluation considers all available inventories of threatened,

endangered, proposed and sensitive species populations and their habitat for

the proposed treatment area. When adequate population inventory information

is unavailable, it must be collected when the site has high potential for

occupancy by a [PETS] species.

 

Pursuant to the Forest Plan, a BE was done as part of the EA for each of the

seven timber projects at issue. Thereafter, the Forest Service determined

that no further evaluations were necessary and issued Findings of No

Significant Impact (FONSIs) for each tract. The locus of this dispute is

whether the Forest Service, in conducting its BEs and EAs, adequately

researched the potential impact of the proposed timber sales before issuing

FONSIs.

 

There is no disagreement between the parties that numerous plants and

animals identified by the Forest Service as sensitive as well as several

that are endangered inhabit the proposed timber project areas. In addition,

the parties agree that the habitat in sections of the project areas are

suitable for other sensitive and endangered species. However, the Forest

Service had no population inventory information and little in the way of

population data for thirty-two of the thirty-seven vertebrate PETS species

that inhabit the Forest. Sierra Club contends that, in light of the

acknowledged presence of many PETS species in the areas at issue, the Forest

Service was required by the Forest Plan to gather population data before

permitting the timber sales to proceed. By failing to collect these data,

Sierra Club argues, the Forest Service violated the Forest Plan and the

provision of NFMA mandating compliance with the Plan.

 

The Forest Service, on the other hand, argues that its data are adequate and

that population studies are required only if the site has a high potential

for occupancy by PETS species. It maintains that its field visits and

consultation of compartment maps, CISC(5) data and Georgia Natural Heritage

Program(6) maps indicate that the sites of the timber sales either do not

have high potential for occupancy by PETS species, or suffice to demonstrate

the continued viability of those PETS species that do occupy the areas. This

habitat information, it asserts, is adequate to satisfy the requirements of

the Forest Plan. Moreover, in its view, the Forest Service has the

discretion to make determinations of potential impact based on information

other than population inventory information, strictly defined.

 

While the Forest Service's interpretation of its Forest Plan should receive

great deference from reviewing courts, "courts must overturn agency actions

which do not scrupulously follow the regulations and procedures promulgated

by the agency itself." Simmons v. Block, 782 F.2d 1545, 1550 (11th

Cir.1986). Moreover, the Forest Service cannot ignore the requirements of

the Forest Plan. As NFMA makes plain, "[r]esource plans and permits,

contracts, and other instruments for the use and occupancy of National

Forest System lands shall be consistent with the land management plans." 16

U.S.C. ? 1604(i); see also Thomas Jefferson University v. Shalala, 512 U.S.

504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (no deference due to agency

interpretation that contradicts the regulation's plain language); Florida

Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d

643 (1985) (reviewing court may remand a case to the agency "[i]f the record

before the agency does not support the agency action [or] if the agency has

not considered all relevant factors ...").

 

The Forest Service admits in numerous places in the record that sensitive

species do occur within the project sites and acknowledges that those

individuals would be destroyed by the proposed timber sales. It then notes

in each case that because the species also exist elsewhere within the

Forest, the timber projects would not significantly impact the species'

diversity or viability. Yet, the Forest Service reached this conclusion

without gathering any inventory or population data on many of the PETS

species. Though these species are, by definition, at risk, nothing in the

record indicates that the Forest Service possessed baseline population data

from which to measure the impact that their destruction in the project areas

would have on the overall forest population. We are nevertheless asked to

defer to the Forest Service's conclusion that there will be no significant

impact upon these species from the proposed timber projects. Absent record

support for the Forest Service's assertions, this we cannot do. Agency

actions must be reversed as arbitrary and capricious when the agency fails

to "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 v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9

L.Ed.2d 207 (1962)).

 

More basically, however, the Forest Service argues that nothing in the

regulations requires it to keep data on sensitive species and that it is

therefore not necessary for it to do so. While it is true that the

regulations make no such demand, the Forest Plan explicitly does so. The

Forest Plan states that when adequate population inventory information is

unavailable and the site has a high potential for occupancy by PETS species,

then the Forest Service must gather that information. Here, the Forest

Service admits that the project areas actually contain PETS species. It

nonetheless maintains that its data, though devoid of any inventory

information as to some PETS species, remain adequate to assess potential

impact upon the species, forest-wide. The information which the Forest

Service deems "adequate" is in reality no information at all in terms of

many of the PETS species. Since the agency's position is contrary to the

clear language of the Plan and the statute, it is not entitled to deference.

We consequently hold that the Forest Service's failure to gather population

inventory data on the PETS species occurring or with a high potential to

occur within the project areas is contrary to the Forest Plan and,

therefore, that the decision to approve the timber sales without considering

this information is arbitrary and capricious.

 

2. 36 C.F.R. ? 219

 

Sierra Club next claims that the Forest Service's decision to proceed with

the timber sales violated 36 C.F.R. ?? 219.19 & 219.26 because it failed to

collect population data specifically for Management Indicator Species

(MIS)(7) (as required by ? 219.19), and for all affected species (as

required by ? 219.26).

 

Section 219.26 creates a general obligation that the Forest Service gather

and keep data to ensure species diversity in the planning area. It states in

relevant part:

 

Forest Planning shall provide for the diversity of plant and animal

communities and tree species consistent with the overall multiple use

objectives of the planning area. Such diversity shall be considered

throughout the planning process. Inventories shall include quantitative data

making possible the evaluation of diversity in terms of its prior and

present condition.

 

Section 219.19 specifically requires that the Forest Service monitor the

population of Management Indicator Species, stating:

 

Fish and wildlife habitat shall be managed to maintain viable populations of

existing native and desired non-native vertebrate species in the planning

area.... (1) In order to estimate the effects of each alternative on fish

and wildlife populations, certain vertebrate and/or invertebrate species

present in the area shall be identified and selected as management indicator

species.... (6) Population trends of the management indicator species will

be monitored and relationships to habitat changes determined. [emphasis

added](8)

 

Sierra Club contends that, taken together, these two regulations obligate

the Forest Service to maintain population data on all affected species in

the planning area. Since the Forest Service lacks quantitative inventory

data on many MIS, and the data it does have indicate that the populations of

some species are inexplicably declining, Sierra Club argues that the Forest

Service's approval of the timber projects was arbitrary and capricious. See

Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856 (agency decisions

that fail to consider important aspects of the problem or that run counter

to the evidence before the agency are arbitrary and capricious).

 

The Forest Service responds first that neither ? 219.19 nor ? 219.26 apply

at the site-specific level. Rather, they are relevant only during the

formation of the Forest Plan and, because the Forest Plan is not a final

agency action, the Sierra Club cannot challenge the Forest Plan. Second, the

Forest Service contends that even if Sierra Club could bring its ? 219

challenge at the site-specific level, it would still not be entitled to

relief on the merits of its claims. The Forest Service notes that ? 219.19

does not explicitly require the Forest Service to gather data on MIS. The

regulation simply states that population trends of the MIS must be monitored

and relationships to habitat changes determined. Furthermore, the Forest

Service contends that to interpret ? 219.26 to require that data be kept on

all species makes nonsense out of ? 219.19's concept of management indicator

species. If the Forest Service must keep data on all species, it argues,

then no purpose is served by the MIS.

 

We agree that the regulations refer to the formulation of Forest Plans

rather than to specific projects proposed under already enacted Forest

Plans. Section 219 begins by explicitly stating that "[t]he regulations in

this subpart set forth a process for developing, adopting, and revising land

and resource management plans for the National Forest System," 36 C.F.R. ?

219.1, and the regulations make repeated reference to the forest planning

process. However, the planning process does not end with the Forest Plan's

approval. The obligations of the Forest Service with regard to the Forest

Plan continue throughout the Plan's existence. The regulations require that

the Forest Service monitor the plan's impact and, when necessary, revise the

plan.(9) Section 219.10(g) requires that forest plans be revised every ten

years and also whenever the Forest Supervisor "determines that conditions or

demands in the area covered by the plan have changed significantly or when

changes in ... policies, goals, or objectives would have a significant

effect on forest level programs." 36 C.F.R. ? 219.10(g). One of the purposes

of this constant oversight is to establish benchmarks in order to better

assess the impact of specific actions upon the forest environment. Sierra

Club is therefore entitled to challenge the Forest Service's compliance with

the Plan as part of its site-specific challenge to the timber sales. See

Wilderness Society v. Alcock, 83 F.3d 386, 390 (11th Cir.1996) (court will

not hear challenge to Forest Plan until site-specific action is proposed). A

contrary result would effectively make it impossible for a plaintiff to even

seek review of the Forest Service's compliance with a Forest Plan.

 

Furthermore, the Forest Service and intervenors' substantive argument--that

36 C.F.R. ?? 219.19 & 219.26 do not require the Forest Service to collect

any population data--is inconsistent with the language of the regulations.

Section 219.19(a)(6) states that "[p]opulation trends of the management

indicator species will be monitored and relationships to habitat changes

determined." It is implicit that population data must be collected before it

can be monitored and its relationships determined. Likewise, ? 219.26

requires that inventories of quantitative data be used when evaluating the

effect of management alternatives on forest diversity. Before inventories

can be evaluated, they have to be collected. Thus we find no merit to the

Forest Service's contention that they have no obligation under ? 219 to

collect population data.

 

We do agree with the Forest Service that the combination of ?? 219.26 and

219.19 require it only to collect inventory data on MIS rather than on all

species in the Forest. To read ? 219.26 to require inventory data on all

species obviates the need for MIS and reduces ? 219.19 to nonsense. On the

other hand, the Forest Service and Timber Intervenors's interpretation of ?

219.26--that they need not collect data on MIS either--would consign that

regulation to a similar fate. By their reading, ? 219.26 would have no

meaning despite its explicit requirement that quantitative inventory data be

used to measure forest diversity. Interpreting a regulation in a manner that

robs it of all meaning is unacceptable. Cf. Scott v. City of Hammond, Ind.,

741 F.2d 992, 998 (7th Cir.1984) (strong presumption against agency

interpretation that renders statute "wholly ineffective").

 

We believe that the regulations are harmonious when read together. MIS are

proxies used to measure the effects of management strategies on Forest

diversity; Section 219.19 requires that the Forest Service monitor their

relationship to habitat changes. Section 219.26 requires the Forest Service

to use quantitative inventory data to assess the Forest Plan's effects on

diversity. If ? 219.19 mandates that MIS serve as the means through which to

measure the Forest Plan's impact on diversity and ? 219.26 dictates that

quantitative data be used to measure the Plan's impact on diversity, then,

taken together, the two regulations require the Forest Service to gather

quantitative data on MIS and use it to measure the impact of habitat changes

on the Forest's diversity. To read the regulations otherwise would be to

render one or the other meaningless as well as to disregard the regulations'

directive that population trends of the MIS be monitored and that inventory

data be gathered in order to monitor the effects of the Forest Plan. See

Sierra Club v. Glickman, 974 F.Supp. 905, 936 (E.D.Tex.1997) ("The

unambiguous language of the MIS regulations requires collection of

population data.").(10)

 

Turning now to the instant case, it becomes clear that the Forest Service's

approval of the timber sales without gathering and considering data on the

MIS is arbitrary and capricious. The regulations require that MIS be

monitored to determine the effects of habitat changes. The timber projects

proposed for the Chattahoochee and Oconee National Forests amount to 2000

acres of habitat change.(11) Yet, despite this extensive habitat change and

the fact that the some MIS populations in the Forest are actually

declining,(12) the Forest Service has no population data for half of the MIS

in the Forest and thus cannot reliably gauge the impact of the timber

projects on these species.

 

For the foregoing reasons, we reverse the district court's grant of summary

judgment to the Forest Service and timber intervenors on the claims that the

Forest Service acted arbitrarily and capriciously and violated NFMA, 16

U.S.C. ? 1604, by approving the timber sales without gathering data on PETS

species despite the directive of the Forest Plan. We also find that the

agency's failure to gather inventory data on management indicator species

violated 36 C.F.R. ?? 219.19 & 219.26 and we reverse the district court's

grant of summary judgement on that claim as well.(13) REVERSED AND REMANDED

for further proceedings consistent herewith.

 

------------------------------------------------------------------------

FOOTNOTES

------------------------------------------------------------------------

 

*. Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern

District of Florida, sitting by designation.

 

------------------------------------------------------------------------

 

1. "Sierra Club" here refers to an amalgam of environmental and citizen

groups that together brought this lawsuit.

 

------------------------------------------------------------------------

 

2. NFMA requires the Forest Service to develop and maintain forest

management plans for each unit of the National Forest system. See 16 U.S.C.

? 1604(a). Such plans must set forth multiple objectives to ensure

recreational uses, maintain a diversity of plant and animal species,

maintain the viability of native and desired non-native vertebrate species,

and enable timber yield from the forests. See 16 U.S.C. ? 1604(e). NFMA also

requires the Forest Service to adopt regulations that "specify[ ] guidelines

for land management plans." 16 U.S.C. ? 1604(g)(3). Those regulations are

found at 36 C.F.R. ? 219 et seq. NFMA further requires that all permits and

contracts for the use of the forests be consistent with the forest plans.

See 16 U.S.C. ? 1604(i).

 

------------------------------------------------------------------------

 

3. The BE serves the dual purpose of complying with (1) the consultation

requirements of Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. ?

1536, to address species listed as federally threatened or endangered and

species proposed for listing under the ESA, and (2) Forest Service

regulations under NFMA regarding "sensitive" species. (Sensitive species are

plants and animals identified by a Regional Forester for which population

viability is a concern, as evidenced by significant current or predicted

downward trend in population numbers or density, or habitat capability).

Forest Service Manual ? 2670.5(19).

 

------------------------------------------------------------------------

 

4. Timber Intervenors argue that the Forest Plan is not legally enforceable.

We reject this argument as inconsistent with NFMA, which requires all

permits and contracts for the use of the forests to be consistent with the

forest plans. See 16 U.S.C. ? 1604(i); 36 C.F.R. ? 219.10(e).

 

------------------------------------------------------------------------

 

5. CISC stands for "Continuous Inventory of Stand Conditions;" it is a

monitoring system for the health of the forest's trees.

 

------------------------------------------------------------------------

 

6. The GNHP maps are not part of the record in their totality. The Forest

Service notes that the maps contain sensitive data and were redacted prior

to their inclusion in the Administrative Record. However, the materials in

the record are so truncated as to contain virtually no information at all.

We therefore cannot assess the probative value of the GNHP data.

 

------------------------------------------------------------------------

 

7. Management Indicator Species (MIS) are selected representative species

used to estimate the effects of the forest plans on forest ecosystems.

 

------------------------------------------------------------------------

 

8. See also 36 C.F.R. ? 219.12(d) which states that when preparing, revising

or amending a forest plan, the Forest Supervisor must "obtain and keep

current inventory data appropriate for planning and managing the resources

under his administrative jurisdiction.... This may require that special

inventories or studies be prepared."

 

------------------------------------------------------------------------

 

9. See Inland Empire Public Lands v. United States Forest Service, 88 F.3d

754, 760 n. 6 (9th Cir.1996) (rejecting notion that ? 219.19 applies only to

the promulgation and management of forest plans and noting that areas

contained within the boundaries of a National Forest would be covered by a

forest plan and thus would also be governed by 36 C.F.R. ? 219.19).

 

------------------------------------------------------------------------

 

10. In so finding, we respectfully differ with the Ninth Circuit's

conclusion in Inland Empire, 88 F.3d at 761, that habitat analyses suffice

to satisfy the requirements of 36 C.F.R. ? 219.19. We believe that this

finding does not conform with the clear language of the regulations, which

requires evaluation of "both amount and quality of habitat and of animal

population trends of the management indicator species." 36 C.F.R. ?

219.19(a)(2) (emphasis added). It bears noting, however, that the Inland

court reached its conclusion based on a very different set of facts. In that

case, the Forest Service had conducted a site-specific EIS and detailed

field studies before concluding that the MIS would not be significantly

harmed. Id. at 758, 761.

 

------------------------------------------------------------------------

 

11. Aside from the logging itself, the timber projects will entail the

construction of eighteen miles of roads and cause over one hundred tons of

sediment to be discharged into surrounding streams and rivers.

 

------------------------------------------------------------------------

 

12. See Sierra Club v. Martin, 992 F.Supp. 1448, 1473 (N.D.Ga.1998)

(Appendix A).

 

------------------------------------------------------------------------

 

13. Sierra Club also alleges that the Forest Service violated 16 U.S.C. ?

1604(g)(3)(F) and 36 C.F.R. ? 219.27(c)(6), both of which require that

timber harvest methods be consistent with the protection of soil, watershed,

and wildlife. Because Sierra Club has already received the relief it seeks,

we need not reach the merits of this claim.