Mineral County v. Ecology Ctr., Inc. - Response (Acquiescence)

No. 06-344

In the Supreme Court of the United States

MINERAL COUNTY, MONTANA, ET AL., PETITIONERS

v.

ECOLOGY CENTER, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR FEDERAL RESPONDENTS

PAUL D. CLEMENT
Solicitor General
Counsel of Record

SUE ELLEN WOOLDRIDGE
Assistant Attorney General

AARON P. AVILA
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals failed to apply the proper standard of review under the Administrative Procedure Act in evaluating whether the Forest Service had complied with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq.

In the Supreme Court of the United States

No. 06-344

MINERAL COUNTY, MONTANA, ET AL., PETITIONERS

v.

ECOLOGY CENTER, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR FEDERAL RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-37a) is reported at 430 F.3d 1057. The opinion of the district court (Pet. App. 40a-53a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on December 8, 2005 (Pet. App. 38a-39a). A petition for rehearing was denied on May 8, 2006 (Pet. App. 54a- 55a). On August 1, 2006, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including September 7, 2006, and the petition was filed on that date. The jurisdiction of this Court is in voked under 28 U.S.C. 1254(1).

STATEMENT

In 2000, wildfires burned approximately 74,000 acres on the Lolo National Forest in western Montana. Pet. App. 3a. Respondent Forest Service developed the July 2002 Lolo National Forest Post Burn Project (Post-Burn Project) to deal with the aftermath of the fires by treat ing 4500 of those acres. Respondent Ecology Center, Inc., filed a suit against the federal respondents pursu ant to the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., challenging the Post-Burn Project under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., and the National Forest Manage ment Act of 1976 (NFMA), 16 U.S.C. 1600 et seq. Pet. App. 3a.1 Petitioners intervened as defendants. The district court granted summary judgment to the federal respondents and to petitioners. Id. at 40a-53a. A di vided panel of the Ninth Circuit reversed and remanded. Id. at 1a-37a.

1. a. NEPA requires that federal agencies prepare an environmental impact statement (EIS) for major fed eral actions significantly affecting the quality of the hu man environment. 42 U.S.C. 4332(2)(C). NEPA is a procedural statute and does not mandate a particular substantive result. Robertson v. Methow Valley Citi zens Council, 490 U.S. 332, 350-351 (1989).

b. NFMA governs the Forest Service's management of the National Forest System. See generally Ohio For estry Ass'n v. Sierra Club, 523 U.S. 726, 728 (1998). NFMA directs the Forest Service to develop a land and resource management plan (forest plan) for each unit of the system to provide for the multiple use and sustained yield of the various natural resources, including timber and wildlife. See 16 U.S.C. 1604(a) and (e). A forest plan is a broad, long-term programmatic planning docu ment that establishes the goals and objectives for units of the National Forest System. Such a plan guides man agement of forest resources, ensuring consideration of both economic and environmental factors. 16 U.S.C. 1604(g)(1)-(3). NFMA also directs the Secretary to specify guidelines for forest plans to "provide for diver sity of plant and animal communities based on the suit ability and capability of the specific land area in order to meet overall multiple-use objectives." 16 U.S.C. 1604(g)(3)(B).

c. Judicial review of a Forest Service decision ap proving a project is governed by the APA, which permits a court to set aside final agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A). As this Court has often explained, while a court's inquiry must be thorough, the APA's standard of review is highly defer ential and narrow. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983). A court's inquiry is limited to whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 105 (1983).

2. Following the 2000 fires on the Lolo National Forest, many of the Forest's resources were left in an unacceptable condition and susceptible to further degra dation, through more fires or insect infestation, in the absence of management intervention. Pet. App. 3a; C.A. Forest Service Supp. E.R. 115 (Supp. E.R.). The Forest Service therefore developed a project to address those conditions. After publication of a draft environmental impact statement and extensive public involvement and comment, the Forest Service issued a final environmen tal impact statement (FEIS) for its proposal in July 2002. Ibid. The FEIS identified and gave detailed anal ysis to four alternative courses of action to rejuvenate the Lolo National Forest's resources, and it analyzed the benefits and risks of each alternative. Supp. E.R. 47-50.2 The FEIS for the project exceeds 1900 pages, with more than 250 pages analyzing the affected envi ronment (Chapter 3), 160 pages analyzing the environ mental consequences (Chapter 4), and 150 detailed maps. See Pet. App. 27a (McKeown, J., dissenting).3

In a July 2002 Record of Decision, the Forest Service selected a slightly modified version of FEIS Alternative 5 as the Post-Burn Project. Pet. App. 3a. The Post-Burn Project included a number of activities to improve the condition of the Lolo National Forest. One set of activi ties included the treatment of old-growth and potential old-growth stands of trees. Id. at 6a-7a. Those treat ments involve the thinning of small-diameter, non-old- growth trees to better replicate the forest's historic structure. Ibid. The Forest Service concluded that such thinning would reduce the risk of stand-destroying fires and bark-beetle infestation, thereby providing for the enhancement of existing old-growth stands and recruit ment of new ones, as well as a reduction in the risk that existing old-growth stands would be lost to fire or in sects. Id. at 6a; id. at 34a-35a (McKeown, J., dissent ing); Supp. E.R. 156-157, 172-173, 211-219, 238-239, 647, 688.

In September 2002, respondent Ecology Center filed an administrative challenge to the Forest Service's Re cord of Decision. After its administrative appeal was denied, Ecology Center filed suit in the United States District Court for the District of Montana, alleging that the Post-Burn Project violated NFMA and NEPA. Pet. App. 3a, 40a-41a.

3. The district court rejected Ecology Center's claims. Pet. App. 40a-53a. The court concluded that "[t]he record demonstrates that the [Forest Service] took the requisite hard look at the impacts of this pro ject on both the animal species at issue, and on old growth and soil conditions." Id. at 49a. The court noted that "[t]he Forest Service considered the impacts of this project on the goshawk, pileated woodpecker, and black-backed woodpecker" and "concluded that the pro posed activities would have no cumulative negative im pacts, based on the evidence in the record before the agency." Ibid. (citations omitted). The court also ob served that the Forest Service "evaluate[d] current and historical soil conditions on the Lolo National Forest and identifie[d] the predicted impacts of the Project on those conditions." Ibid.

The district court viewed Ecology Center's argu ments as "disput[ing] management decisions of the For est Service." Pet. App. 50a. The court noted that it "[wa]s not in a position to settle scientific disputes," and concluded that "[i]f opinions of experts conflict, as the record before the Court suggest[ed], the Court defers to the expertise of the agency." Ibid.

4. A divided panel of the Ninth Circuit reversed and remanded. Pet. App. 1a-37a.

a. The court first concluded that the Forest Ser vice's decision to remedy uncharacteristic forest devel opment and to reduce the risk of fires and insect infesta tion through the old-growth treatment measures was arbitrary and capricious. Id. at 6a-12a. The court ac knowledged that the Forest Service had "cite[d] a num ber of studies that indicate such treatment is necessary to correct uncharacteristic forest development resulting from years of fire suppression," and that the Post-Burn Project "is designed to leave most of the desirable old- growth trees in place and to improve their health." Id. at 6a. The court further acknowledged that "Ecology Center does not offer proof that the proposed treatment causes the harms it fears" to old-growth habitat and species that are dependent on that habitat. Id. at 7a. Nevertheless, expressing the view that the Forest Ser vice did "not offer proof that the proposed treatment benefits-or at least does not harm-old growth de pendent species," the court accepted Ecology Center's argument that the Forest Service "cannot be reasonably certain" that treating the old-growth habitat would be consistent with a mandate the court perceived in NFMA to ensure species diversity and viability. Id. at 7a-8a; see id. at 8a-11a.

In so holding, the court rejected the Forest Service's reliance on evidence in the administrative record that supported its conclusion, as well as the Service's choice of scientific methodology to reach that conclusion. Pet. App. 8a. The court recognized that the Forest Service had relied upon a study documenting that two old- growth-dependent species were observed foraging else where in "treated old-growth forest," and had concluded that the treatment of old-growth forest would not sub stantially affect such species because-(1) it has observed the short-term effects of thinning old-growth stands via commercial logging and pre scribed burning on forest composition, (2) it has rea son to believe that certain old-growth dependent spe cies would prefer the post-treatment composition of old-growth forest stands, and (3) its assumption that treatment does not harm old-growth dependent spe cies is therefore reasonable.

Ibid. The court, however, dismissed this determination as "an unverified hypothesis," because, in the court's view, the Forest Service had failed to engage in suffi cient "on the ground analysis" to test its rationale. Id. at 9a (quoting Lands Council v. Powell, 379 F.3d 738, 752 (9th Cir. 2004), amended, 395 F.3d 1019 (9th Cir. 2005)). The court reasoned:

Just as it would be arbitrary and capricious for a pharmaceutical company to market a drug to the general population without first conducting a clinical trial to verify that the drug is safe and effective, it is arbitrary and capricious for the Forest Service to irreversibly "treat" more and more old-growth forest without first determining that such treatment is safe and effective for dependent species.

Ibid. For similar reasons, the court concluded that the Forest Service's decision violated NEPA with respect to treatment of old-growth forests. Id. at 11a-12a.

b. The court of appeals next concluded that the For est Service violated NFMA and NEPA by failing to ex amine adequately the Post-Burn Project's potential im pact on the black-backed woodpecker, a species that inhabits post-burn areas. Pet. App. 12a-18a. Although the court recognized that the 2000 fires had greatly ex panded the potential habitat available for the black- backed woodpecker and that only limited timber activity would occur in the identified potential habitat, id. at 14a,4 the court concluded that "[t]o be reasonably cer tain that the post-Project habitat levels would be suffi cient to ensure species viability, one must know where the threshold between 'critical' and 'sufficient' levels of burned habitat lies." Id. at 16a. Because the Forest Service had not identified the "threshold" the court be lieved to be necessary, the court held that there was an insufficient basis for the Forest Service's conclusion that the Post-Burn Project would not adversely affect the viability of the black-backed woodpecker. Id. at 16a-18a.

c. Finally, the court of appeals concluded that the Forest Service's soil-quality analysis was inadequate. Pet. App. 18a-25a. According to the court, the methodol ogy used by the Forest Service-which included "estimat[ing] soil conditions on the basis of maps, sam ples from throughout the Forest, aerial reconnaissance, and computer modeling"-"was insufficiently reliable." Id. at 19a. In the court's view, the Forest Service en gaged in insufficient on-the-ground observations of soil conditions within the Post-Burn Project area. Id. at 25a. The court also faulted the Forest Service's conclusion that it was meeting soil quality standards because in the court's view the analysis should have included more in formation, such as the qualifications of the soil scientists conducting the analysis, more information on the meth odology utilized, and discussion of how field observa tions confirmed the Forest Service's estimates. The court found that this information was necessary for the Forest Service to "be certain" that the Post-Burn Pro ject complies with NFMA. Id. at 22a-24a.

d. Judge McKeown dissented. Pet. App. 26a-37a. In her view, the majority's approach "represents an un precedented incursion into the administrative process." Id. at 27a. She criticized the majority for changing the court's "posture of review to one where we sit at the ta ble with Forest Service scientists and second-guess the minutiae of the decisionmaking process." Id. at 28a. That approach, she concluded, was contrary to "two firmly established lines of precedent in administrative law." Id. at 36a. First, she observed that the "arbitrary and capricious" standard of review does not countenance "flyspeck[ing] the agency's analysis," such as "rejecting the Forest Service's soil analysis field checks and its observations and historical data in treated old-growth forests." Ibid. Second, she believed that the "majority's rationale cannot be reconciled with our case law requir ing '[d]eference to an agency's technical expertise and experience,' particularly 'with respect to questions in volving engineering and scientific matters.'" Id. at 36a- 37a (citations omitted).

DISCUSSION

We agree with petitioners that the court of appeals' decision is in error in a number of important respects. The federal respondents did not file their own petition because, inter alia, it is not yet clear whether the ap proach articulated by the Ninth Circuit, in fact, intro duces a new and even more stringent standard of review in land-management cases under the APA than the Ninth Circuit has applied in recent years. Nevertheless, the fact remains that the Ninth Circuit impermissibly second-guessed scientific judgments of a federal agency that were amply supported by the administrative record and departed from the standards this Court has held to be applicable to agency factual and scientific judgments under the APA. Accordingly, the federal respondents do not oppose the petition for a writ of certiorari.

1. The court of appeals' decision is incorrect, and the approach the court used to review the Forest Service's Post-Burn Project is mistaken.

a. As the dissenting judge recognized (e.g., Pet. App. 27a, 36a-37a), the court of appeals intruded substantially into the Forest Service's decision-making process in a manner that departs markedly from the arbitrary-and- capricious standard of review called for by the APA. The Ninth Circuit repeatedly referred, for example, to whether the evidence was sufficiently strong to allow the Forest Service-or indeed the court of appeals itself-to be "certain" or "reasonably certain" that the Post-Burn Project would not cause the adverse effects feared by respondent Ecology Center. Id. at 8a, 16a, 18a, 22a. Nothing in NFMA or the APA requires that degree of certitude concerning the impact on certain selected re sources before a land-management agency can act. Moreover, although the court acknowledged that Ecol ogy Center offered no proof that its posited fears with respect to the treatment of the identified old-growth stands would be realized, id. at 7a, the court neverthe less rejected the Forest Service's reasoned and record- based decision to treat those stands. While recognizing the "scientific uncertainty surrounding the treatment of old-growth stands," the court rejected the Forest Ser vice's decision in the face of that uncertainty as resting on an "unverified hypothesis," id. at 9a, and placed the burden on the agency to disprove Ecology Center's claims in court. Id. at 7a-8a.

In so doing, the court imposed its own judgment as to how much information is useful or desirable for an agency to have in hand before the agency decides on a particular course of action in the face of scientific uncer tainty. Pet. App. 7a-8a. For example, the court con cluded that the Forest Service had not engaged in what the court deemed to be sufficient "on the ground analy sis" with respect to treating the old-growth stands, id. at 9a, or collected sufficient "on-site" soil samples to assess the Post-Burn Project's potential effect on soil quality. Id. at 22a-24a. In essence, the Ninth Circuit established its own "bright-line rules, such as requiring an on-site, walk the territory inspection," and "assesse[d] the detail and quality of the analysis-even in the absence of contrary scientific evidence in the re cord." Id. at 29a-30a (McKeown, J., dissenting).

The court of appeals' improper impositions on the agency's decisionmaking process is epitomized by its wholly inapposite reliance on the standards for clinical trials of new drugs. See Pet. App. 9a. The majority faulted the Forest Service for not undertaking a compa rable analysis before it took any action in the 74,000- acre burn area. Ibid. But, as the dissent explained, the statutory and regulatory regime applicable to the "FDA process dictates a substantive and specific administra tive course of action in terms of clinical trials and other requirements as a prelude to the approval of drugs and medical devices." Id. at 36a. "Neither NEPA nor NFMA serve that function in the environmental con text," ibid., and neither statute, much less the APA, con tains any requirements remotely similar to the rigorous statutory and regulatory requirements that must be met before marketing a new drug. It therefore is plainly inappropriate to import the notion of clinical trials, and the proofs that those entail, to the very different and difficult task of managing federal lands for multiple uses and sustained yield in a dynamic environment. Ibid.; see Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. 528. "'Multiple use management' is a deceptively simple term that describes the enormously complicated task of strik ing a balance among the many competing uses to which land can be put." Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 58 (2004). That is especially so where, as here, circumstances required a prompt affir mative response by the Forest Service to prevent fur ther deterioration in forest conditions. In short, nothing in the highly deferential standard of APA judicial review of decisions under NFMA and NEPA warrants imposi tion by the courts of the sort of heightened requirements on which the court of appeals relied.

In addition, the court of appeals misstated NFMA's substantive mandate. See Pet. App. 6a, 8a. NFMA di rects the Secretary to specify guidelines for forest plans to "provide for diversity of plant and animal communi ties based on the suitability and capability of the specific land area in order to meet overall multiple-use objec tives." 16 U.S.C. 1604(g)(3)(B). The government agrees with petitioners (Pet. 17-19) that NFMA itself does not contain a "viability" requirement. See Sierra Club v. Marita, 46 F.3d 606, 620 (7th Cir. 1995). A provision to manage habitat to maintain viable populations of certain species was once found in NFMA regulations that were originally promulgated in 1982, but those regulations have since been superseded. Compare 36 C.F.R. 219.19 (2000) (last codification of the 1982 NFMA regulations), with 36 C.F.R. Pt. 219 (2005). It is true that the forest plan in this case provided for management of resources to maintain population viability of certain "sensitive" species. Supp. E.R. 573; see Pet. App. 18a. But the court of appeals exceeded the scope of its authority in holding that the Forest Service's decision that the Post- Burn Project would not undermine the viability of one such species, the black-backed woodpecker, was arbi trary and capricious, because the 2000 fire created a substantial amount of new post-fire habitat for that spe cies. See id. at 14a. Contrary to the court of appeals' view (id. at 16a-17a), in light of that greatly increased habitat, nothing in NFMA or NEPA required the Forest Service to specify a particular threshold below which the viability of the black-backed woodpecker would be jeop ardized in order to conclude that the modest timber har vesting (with mitigation measures) in the project at is sue here would not have that effect. And the court's imposition of that requirement was in any event based on the court's further (and unwarranted) insistence that the Forest Service must be "reasonably certain" of its scientific judgments. See id. at 16a.5

b. The proper inquiry under the APA is whether the agency acted arbitrarily or capriciously on the basis of the administrative record, including the comments sub mitted to it during the administrative process. Under this Court's decision in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the development of procedures, determinations as to what evidence to seek, and decisions about how much evidence is sufficient in a particular case to warrant going forward, are within the province of the agency, not the reviewing court. Id. at 543.

That is particularly true with respect to the types of scientific judgments at issue here. The court of appeals should have deferred to the agency's largely predictive scientific judgments within its area of expertise. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an origi nal matter, a court might find contrary views more per suasive."); Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983) (where an agency "is making predictions, within its area of special expertise, at the frontiers of science," and the reviewing court is called on to examine "this kind of scientific determination, as opposed to sim ple findings of fact, a reviewing court must generally be at its most deferential"). The Forest Service was faced with a deteriorating situation because of the prospect of disease or fire that would harm the forest and the spe cies that depend upon it. See Pet. App. 34a-35a (McKeown, J., dissenting) (observing that it was uncontroverted that "inaction may harm old-growth ar eas"). The agency had to act, even in the face of uncer tainty, relying on the information it had in hand.

Moreover, the Forest Service's decision at issue here was rendered at the conclusion of an agency proceeding in which the Federal Rules of Evidence and other formal judicial-type procedures do not apply. For that reason, as well, and especially in light of the deference owed to an agency's scientific judgments, the court of appeals had no authority under the APA's arbitrary-and-capri cious standard of review to impose its own standards for, e.g., the reliability and verification of scientific or other studies and evidence, see Pet. App. 8a-11a, 14a, 16a, 20a- 21a & n.13, 24a, the methodology used to determine whether the Post-Burn Project would threaten the via bility of a sensitive species, see id. at 16a-17a; see pp. 7- 8, supra, or the qualifications and documentation prac tices of agency personnel who conduct surveys, see id. at 23a-24a.

Under the APA, the court in a case such as this must limit its review of the Forest Service's factual conclu sions to whether those conclusions are supported by "substantial evidence" in the administrative record. Under the APA's arbitrary-and-capricious standard of review, "substantial evidence" is the most stringent standard that could apply to questions of evidentiary sufficiency for factual determinations. See Dickinson v. Zurko, 527 U.S. 150, 164 (1999); see also, e.g., Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1134 (10th Cir. 2006); Association of Data Processing v. Board of Governors, 745 F.2d 677, 683-684 (D.C. Cir. 1984) (Scalia, J., joined by R.B. Ginsburg, J.). That standard is more deferential even than the "clearly erro neous" standard for appellate review of trial court find ings. Zurko, 527 U.S. at 162, 164. Under the substantial-evidence standard, an agency's fact-based conclusion must be sustained unless no reasonable fact- finder could have reached that conclusion based on the administrative record. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under that standard, the evidence in an administrative record is sufficient to sustain an agency's fact-based decision if the evidence is such that it would justify, in a jury trial, a refusal to take a factual decision away from the jury. See Illinois Cent. R.R. v. Norfolk & W. Ry., 385 U.S. 57, 66 (1966) (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939)); see also Zurko, 527 U.S. at 162; Elias- Zacarias, 502 U.S. at 481.

If the Forest Service's decision and the administra tive record had been viewed under that standard, its decision to proceed with the Post-Burn Project clearly should have been sustained. As Judge McKeown con cluded, the administrative record is "huge," including "a 1900+ page [FEIS], 150 detailed maps and 20,000 pages of background information," Pet. App. 27a, and that re cord amply supports the agency's conclusions, id. at 29a- 31a, 34a-35a. The record evidence was more than suffi cient with respect to each of the issues on which the court of appeals faulted the agency's decision to with stand review under the substantial-evidence/directed- verdict standard of review under the APA.

2. The Ninth Circuit has improperly second-guessed an important agency decision with respect to scientific judgments that were the subject of a lengthy and in- depth deliberation and review. The government remains firmly of the view that the Forest Service's decision was in full compliance with both NFMA and NEPA and is amply supported by the administrative record. If this Court is inclined to grant the petition, the federal re spondents would support petitioners on the merits.

Nonetheless, the government did not file its own pe tition for a writ of certiorari. Precisely because the Ninth Circuit's decision represents a substantial devia tion from well-settled modes of review of administrative decisionmaking, it is in tension with, but not clear con flict with, decisions of other courts of appeals. No other circuit has expressly considered and rejected the Ninth Circuit's approach with respect to, e.g., whether the agency or reviewing court must be "certain" or "reason ably certain" about possible impacts of its decisions, or the possible need for studies analogous to clinical trials for new drugs. Nor is it clear that the Ninth Circuit has adopted that standard as a distinct, new rule of law, so much as it has drifted away even further from the kind of deferential review that this Court has made clear should govern judicial review of agency actions. The degree to which the Ninth Circuit will apply this plainly erroneous approach as a distinct test in future cases, or to which this case may instead be an aberration, remains to be seen. Accordingly, the government had concerns whether this case precisely satisfies the Court's tradi tional criteria for plenary review.

That said, if the decision here does represent the enunciation of new standards that the Ninth Circuit will use to review scientific judgments in agency decisions, the decision will have significant negative implications for the implementation of federal land-management pro grams. The Ninth Circuit encompasses 122.2 million of the 192.7 million acres of National Forest System lands, see http://www.fs.fed.us/land/staff/lar/LAR05/ table1.htm, http://www.fs.fed.us/land/staff/lar/LAR05/ table6.htm (last modified Sept. 2005), and an additional 197.3 million acres of public lands under the jurisdiction of the Bureau of Land Management. See 190 Bureau of Land Management, DOI, Public Land Statistics 2005, BLM/BC/ST-06/001+1165 (June 2006), available at http://www.blm.gov/natacq/pls05/pls1-3_05.pdf. The court's clear deviation from established precedent of this Court thus could have great practical significance given the vast expanse of federal lands and the numer ous planned and potential federal projects located within the Ninth Circuit.

CONCLUSION

The federal respondents do not oppose the petition for a writ of certiorari.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

SUE ELLEN WOOLDRIDGE
Assistant Attorney General

AARON P. AVILA
Attorney

NOVEMBER 2006

1 The federal respondents are Deborah L. R. Austin, in her official capacity as Forest Supervisor for the Lolo National Forest, Abigail Kimbell, who succeeded defendant Bradley Powell as Regional Forester for Region One of the Forest Service, and the Forest Service, an agency of the United States Department of Agriculture.

2 One of those alternatives was a "no action" alternative under which the Forest Service would conduct no post-burn management. Two additional alternatives were considered, but eliminated from detailed study.

3 The overall administrative record includes more than 20,000 pages of supporting information. See Pet. App. 27a (McKeown, J., dissent ing).

4 As authorized by the Record of Decision, the Post-Burn Project included salvage harvesting in 815 acres of the 9870 acres of potential black-backed woodpecker habitat created by the 2000 fires. As a result of a settlement in other litigation challenging the Post-Burn Project, Sierra Club, Inc. v. Austin, 82 Fed. Appx. 570 (9th Cir. 2003), the 815 acres was reduced to 155 acres. Pet. App. 4a n.1, 14a & n.5.

5 Although the Forest Service defended its July 2002 Record of Decision under the 1982 regulations, the Forest Service subsequently clarified in September 2004 that the 1982 regulations did not apply to site-specific decisions that were made after the 1982 regulations were superseded but under a forest plan adopted while the 1982 regulations were still in effect; rather, regulations promulgated in 2000 (which have themselves since been superseded) governed. 69 Fed. Reg. 58,057 (2004). The 2000 regulations required the agency to "consider the best available science when implementing * * * the plan." 36 C.F.R. 219.35(a) and (d) (2001). Neither the courts below nor any party took issue with the agency's reliance in this case on the 1982 regulations, inasmuch as the project was required to be consistent with the forest plan, which was adopted under 1982 regulations and therefore contained a parallel provision for maintaining the viability of certain species. See 16 U.S.C. 1604(i).