FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ECOLOGY CENTER, 

Plaintiff,

and

WILDWEST INSTITUTE,

Plaintiff-Appellant,

v.

BOB CASTANEDA, in his official

capacity as Forest Supervisor for

the Kootenai National Forest; No. 07-35054

ABIGAIL KIMBALL, Regional

D.C. No. Forester of Region One of the 

U.S. Forest Service; UNITED CV-06-00024-DWM

STATES FOREST SERVICE, an agency OPINION

of the U.S. Department of

Agriculture,

Defendants-Appellees,

and

F.H. STOLTZE LAND & LUMBER

CO.; FOUSTS INC.; REGEHR LOGGING

INC.; PONDERAY VALLEY FIBRE INC.;

LINCOLN COUNTY,

Defendant-Intervenors. 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Chief District Judge, Presiding

Argued and Submitted

January 20, 2009—Seattle, Washington

Filed April 17, 2009

4431
Before: Thomas M. Reavley,* Senior Circuit Judge,

Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Tallman

*The Honorable Thomas M. Reavley, Senior United States Circuit

Judge for the Fifth Circuit, sitting by designation. 

4432 WILDWEST INSTITUTE v. CASTANEDA
COUNSEL

Thomas J. Woodbury, Missoula, Montana, for the appellant.

John T. Stahr (briefed), and Charles R. Scott (argued), U.S.

Department of Justice Environment and Natural Resources

Division, Washington, D.C., for the appellees. 

OPINION

TALLMAN, Circuit Judge: 

WildWest Institute (“WildWest”) challenges the United

States Forest Service’s approval of nine timber sale and resto4436 WILDWEST INSTITUTE v. CASTANEDA
ration projects in Montana’s Kootenai National Forest

(“KNF”), claiming violations of the National Forest Management Act (“NFMA”), the National Environmental Policy Act

(“NEPA”), and Forest Service regulations. WildWest sought

declaratory and injunctive relief to prevent environmental

injury. The district court granted summary judgment in favor

of the Forest Service. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

I. Facts and Prior Proceedings

The KNF covers over 2.2 million acres in northwest Montana. The Forest Service adopted the Kootenai National Forest

Plan (“Forest Plan”) pursuant to NFMA in 1987. It is intended

to guide “all natural resource management activities and

establishes management standards” for the forest. The Forest

Plan establishes 23 Management Areas (“MA”) within the

KNF, including one related to Old Growth Timber (“MA

13”). 

To implement the Forest Plan, the Forest Service adopts

plans and projects for specific areas of the KNF. Over the

course of 2004 and 2005, the Forest Service adopted the nine

site-specific projects that are challenged here: the Bristow

Area Restoration Project, Fortine Project, West Troy Project,

Pipestone Timber Sale and Restoration Project, Lower Big

Creek Project, South McSwede Timber Sale and Restoration

Project, Alder Creek Project, Cow Creek Project, and McSutten Project. For each project, the Forest Service conducted an

extensive environmental analysis, including a draft and final

environmental impact statement (“DEIS” and “FEIS”) or an

environmental assessment. 

WildWest filed this action challenging the nine projects on

numerous grounds. The district court denied WildWest’s

motion for a preliminary injunction. The parties filed crossmotions for summary judgment, and the district court granted

summary judgment in favor of the Forest Service. Wildwest

WILDWEST INSTITUTE v. CASTANEDA 4437
Inst. v. Castaneda, 462 F. Supp. 2d 1150, 1163 (D. Mont.

2006). The district court noted that, on many of its claims,

WildWest had failed to “establish[ ] a connection between the

challenged forest-wide management practices and the lawfulness of the logging projects.” Id. at 1157. Regarding those

claims properly raised, the district court concluded the Forest

Service had complied with the relevant procedural and substantive legal requirements. Id. at 1158-63. WildWest timely

appealed. 

II. Standard of Review

We review the district court’s grant of summary judgment

de novo. McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th

Cir. 2008). 

The Administrative Procedure Act (“APA”) provides the

authority for our review of decisions under NEPA and

NFMA. Lands Council v. McNair (Lands Council II), 537

F.3d 981, 987 (9th Cir. 2008) (en banc). Under the APA, an

agency decision will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A); see Ecology Ctr., Inc. v.

Austin, 430 F.3d 1057, 1062 (9th Cir. 2005). “Review under

the arbitrary and capricious standard ‘is narrow, and [we do]

not substitute [our] judgment for that of the agency.’ ” Lands

Council II, 537 F.3d at 987 (quoting Earth Island Inst. v. U.S.

Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006)) (alterations

in original). “Rather, we will reverse a decision as arbitrary

and capricious only if the agency relied on factors Congress

did not intend it to consider, ‘entirely failed to consider an

important aspect of the problem,’ or offered an explanation

‘that runs counter to the evidence before the agency or is so

implausible that it could not be ascribed to a difference in

view or the product of agency expertise.’ ” Id. (quoting Earth

Island Inst., 442 F.3d at 1156). 

4438 WILDWEST INSTITUTE v. CASTANEDA
III. Background

A. Governing Provisions

[1] The National Forest Management Act, 16 U.S.C.

§§ 1600 et seq., provides both procedural and substantive

requirements. Procedurally, it requires the Forest Service to

develop and maintain forest resource management plans. Id.

§ 1604(a). After a forest plan is developed, all subsequent

agency action, including site-specific plans like the nine projects challenged here, must comply with NFMA and the governing forest plan. Id. § 1604(i); see Lands Council II, 537

F.3d at 989. 

[2] Substantively, NFMA requires that forest plans “provide for diversity of plant and animal communities based on

the suitability and capability of the specific land area.” 16

U.S.C. § 1604(g)(3)(B). Forest plans must also ensure that

timber will be harvested only where “soil, slope or other

watershed conditions will not be irreversibly damaged,” and

provide protection for streams from “detrimental” deposits of

sediment “where harvests are likely to seriously and adversely

affect water conditions or fish habitat.” Id. § 1604(g)(3)(E).

[3] The National Environmental Policy Act, 42 U.S.C.

§§ 4321 et seq., contains additional procedural requirements.

Its purposes are to ensure the decision-maker will have

detailed information on environmental impacts and to provide

that information to the public. Inland Empire Pub. Lands

Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996).

The Forest Service must prepare an EIS, which identifies

environmental effects and alternative courses of action, when

undertaking any management project. Id.; 42 U.S.C.

§ 4332(c). “In contrast to NFMA, NEPA exists to ensure a

process, not to mandate particular results.” Neighbors of

Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir.

2002). The agency must only take a “hard look” at its proposed action. Id. at 1070.

WILDWEST INSTITUTE v. CASTANEDA 4439
[4] Two Forest Service regulations also apply here. The

“1982 Rule” requires the Forest Service to identify and monitor management indicator species (“MIS”) and directs that

“fish and wildlife habitat shall be managed to maintain viable

populations of existing native and desired non-native vertebrate species.” 47 Fed. Reg. 43048 (Sept. 30, 1982). The KNF

Forest Plan incorporated this and several other provisions of

the 1982 Rule.

[5] The 1982 Rule was partially superceded in 2000 (the

“2000 Rule”). The 2000 Rule’s substantive provisions did not

apply to site-specific decisions made between 2000 and 2005.

69 Fed. Reg. 58,055-58 (Sept. 29, 2004). The “transition”

portions of the rule, which did apply during this time, required

the responsible officials to consider the “best available science” when implementing existing land and resource management plans. 36 C.F.R. § 219.35(a) (2001); 69 Fed. Reg.

58,057 (Sept. 29, 2004). The requirements of the superceded

1982 Rule apply only to the extent they were incorporated

into the Forest Plan.1See generally Citizens for Better Forestry v. U.S. Dep’t of Ag., 341 F.3d 961, 966-68 (9th Cir.

2003) (discussing in detail the provisions of the 1982 and

2000 Rules). 

B. The Forest Plan

The Forest Plan establishes twenty-four long-term goals,

including “provid[ing] a sustained yield of timber volume

responsive to national and regional needs” and “construct[ing]

the minimum number of roads necessary to permit the effi1The Department of Agriculture promulgated another regulation in

2005, which focused on forest-level planning. 70 Fed. Reg. 1022 (Jan. 5,

2005). On March 30, 2007, a district court issued a nationwide injunction

prohibiting application of the rule. Ctr. for a Better Forestry v. U.S. Dep’t

of Ag., 481 F. Supp. 2d 1059 (N.D. Cal. 2007). Three of the projects challenged here were implemented while the 2005 rule was still in effect, but

WildWest does not claim the Forest Service violated any part of the 2005

Rule. 

4440 WILDWEST INSTITUTE v. CASTANEDA
cient removal of timber and mineral resources.” With respect

to old-growth management, the goals also include “maintain[-

ing] diverse age classes of vegetation for viable populations

of all existing native, vertebrate, wildlife species,” and

“manag[ing] for sufficient snags and snag replacement trees

to maintain viable populations of snag-dependent species.”

With respect to fisheries and aquatic habitat, the Forest Plan

goals include “maintain[ing] or enhanc[ing] fisheries habitat.”

The Forest Plan also designates eight MIS that are monitored

as a barometer of change for a particular habitat. The pileated

woodpecker is the MIS for old-growth dependent species. 

Under the Forest Plan, the KNF is managed for two kinds

of old growth: undesignated and designated. Undesignated old

growth consists of naturally-occurring stands in nondevelopmental areas such as wilderness and primitive recreation

areas. Designated old growth, on the other hand, consists of

“existing old growth and some mature stands” in areas that

the Forest Service actively manages. Each category of old

growth—undesignated and designated—is sub-categorized

into “effective” old growth and “replacement” old growth.

Effective old growth presently meets the needs of old-growth

species; replacement old growth does not presently meet those

needs, but may do so in the future as trees grow and the habitat ages. 

Old growth areas that have been designated are assigned

for management purposes to MA 13, which describes substantive and procedural guidelines for the care of old growth. The

Forest Plan requires that “[a] minimum of 10 percent of the

Forest acreage below 5,500 feet elevation will provide oldgrowth habitat at any given time in a combination of undesignated and designated old growth in well distributed and

sufficiently large stands.” The MA 13 guidelines reiterate this

ten percent goal. 

C. Connection to Site-Specific Projects

As a preliminary matter, we note that we are precluded

from reviewing a number of WildWest’s allegations because,

WILDWEST INSTITUTE v. CASTANEDA 4441
as the district court properly found, they are not tied to sitespecific challenges. Forest-wide management practices and

monitoring efforts, or lack thereof, are generally not amenable

to suit under the APA because they do not constitute final

agency actions. Neighbors of Cuddy Mountain, 303 F.3d at

1067 (citing Lujan v. Nat’l Wildlife Fed’n, 477 U.S. 871, 891

(1990); Ecology Ctr., 192 F.3d at 925-26); see 5 U.S.C. § 704.

Challenges to forest-wide management practices or claims

that the Forest Plan does not comply with NFMA must be

made in the context of site-specific actions. Ohio Forestry

Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 734 (1998). The

plaintiff must allege a “specific connection” between the challenged site-specific action and the general practice. Id.

The district court noted that “[t]o the extent [WildWest]

attempts to challenge forest-wide management practices on

the coattails of the nine challenged logging projects, its suit

is generally permitted.” Wildwest Inst., 462 F. Supp. 2d at

1157. However, the court concluded the suit failed to establish connections between the general management practices

and the lawfulness of the logging projects. Many of WildWest’s myriad arguments and allegations on appeal suffer the

same defect. We address only those claims that WildWest has

plausibly connected to a site-specific action. 

IV. NFMA Claims

A. Best Available Science

WildWest’s first claim relates to the 2000 Rule’s “best

available science” requirement. This claim argues the best

available science undermines the assumption that ten percent

old-growth forest levels are sufficient to ensure species viability. WildWest claims that a 1995 study (the “Lesica study”)

demonstrated that historic levels of old growth in the KNF

were “magnitudes of order” higher than the ten percent level

established under the Forest Plan. WildWest claims that

study’s estimate that “20-50% of low and mid-elevation for4442 WILDWEST INSTITUTE v. CASTANEDA
ests were in old-growth condition prior to European settlement” represents the best available science and must be

reflected in the Forest Plan. WildWest also claims the Forest

Service’s own experts acknowledge historical conditions

“probably provided” a higher level of old-growth habitat,

though no such statement appears on the cited page of the

record. WildWest ties this general complaint only to the

Lower Big Creek Project. 

[6] We grant considerable discretion to agencies on matters

“requir[ing] a high level of technical expertise.” Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 377 (1989). Though a

party may cite studies that support a conclusion different from

the one the Forest Service reached, it is not our role to weigh

competing scientific analyses. Lands Council II, 537 F.3d at

988 (noting that we do not “act as a panel of scientists that

instructs the Forest Service how to validate its hypotheses

regarding wildlife viability, chooses among scientific studies

in determining whether the Forest Service has complied with

the underlying Forest Plan, and orders the agency to explain

every possible scientific uncertainty”); Greenpeace Action v.

Franklin, 14 F.3d 1324, 1333 (9th Cir. 1992) (“To set aside

the Service’s determination in this case would require us to

decide that the views of Greenpeace’s experts have more

merit than those of the Service’s experts, a position we are

unqualified to take.”). 

[7] The 1982 Rule, as incorporated into the Forest Plan,

requires only that the Forest Service maintain habitat capable

of supporting “viable populations” of old-growth dependent

species. Relying on the best available science, as required by

the 2000 Rule, the Forest Service determined that maintaining

old-growth levels of ten percent below 5500 feet was sufficient to support such species. The Forest Service’s analysis of

the scientific basis and reasoning for the ten percent standard

are set forth in the Old Growth Habitat Characteristics and

Management Guidelines (the “Old Growth Guidelines”) and

the Forest Plan FEIS. These documents discuss various charWILDWEST INSTITUTE v. CASTANEDA 4443
acteristics of old-growth dependent species and their habitat,

citing numerous scientific studies, along with competing

interests and practical concerns. The Old Growth Guidelines

conclude that “[a] review of applicable literature on wildlife

species and their habitat needs indicated that a minimum of 8-

10 percent of available wildlife habitat should provide old

growth conditions.” We hold the Forest Service met the best

available science requirement when it initially established the

ten percent old growth standard. 

[8] Moreover, WildWest has not cited any scientific studies

that indicate the Forest Service’s analysis is outdated or

flawed. See Oregon Trollers Ass’n v. Gutierrez, 452 F.3d

1104, 1120 (9th Cir. 2006) (rejecting best science claim

where “[t]here [was] no evidence in the record the [agency’s]

1986 and 1988 studies [were] outdated or flawed”) (citations

omitted). WildWest cites repeatedly to the Lesica study,

which was published after the Forest Service adopted the Forest Plan. However, Lesica’s conclusion does not bear directly

on the “viable population” standard. The fact that levels of

old-growth forest were significantly higher prior to European

settlement in no way disproves the conclusion that ten percent

is enough to support “viable populations.” 

[9] The Forest Service reviewed its management situation

in 1993, proposing several changes based on new scientific

data from the intervening years. That review acknowledges

that recent research had shown “certain forest cover types are

not as well represented as they were historically,” a conclusion similar to the one reached in the Lesica study. The Forest

Service’s 1993 review suggested several changes to the management strategy. However, alteration of the ten percent standard was not one of them. The Forest Service has carefully

considered the relevant scientific studies released since the

Forest Plan was adopted. We will not second guess the Forest

Service’s scientific analysis. See Lands Council II, 537 F.3d

at 988. 

4444 WILDWEST INSTITUTE v. CASTANEDA
In short, the Forest Service established the ten percent standard based on reasoned analysis of the best available science.

The Forest Service has also considered new relevant scientific

data since the Forest Plan was adopted in 1987. WildWest has

failed to indicate any scientific information directly undermining the conclusion that ten percent old-growth levels are

insufficient to support “viable populations” of dependent species. Accordingly, we conclude that the best available science

supports the ten percent standard, and that the standard is

therefore not arbitrary or capricious. 

B. Designation of Old Growth: Stand Size

WildWest next challenges the designation of tree stands

smaller than fifty acres as old-growth habitat. WildWest

argues that the Forest Plan requires stands of no less than fifty

acres and encourages blocks of one hundred acres or more. It

claims roughly one-third of the blocks of old growth currently

designated in Pipestone, Bristow, and South McSwede are

smaller than fifty acres. 

WildWest draws the fifty-acre requirement from the Old

Growth Guidelines, which appear as Appendix 17 to the Forest Plan. Ordinarily, such a document would not have the

force and effect of binding law. See Western Radio Servs. Co.,

Inc. v. Espy, 79 F.3d 896, 901 (9th Cir. 1996); Chrysler Corp.

v. Brown, 441 U.S. 281, 301 (1979) (holding a Forest Service

Manual and Handbook were not binding on the agency

because they did not constitute substantive law and were not

issued pursuant to the procedural requirements of the APA).

[10] However, where an otherwise advisory document has

been clearly incorporated into a Forest Plan or other binding

document, its requirements become mandatory. See Swan

View Coal., Inc. v. Barbouletos, No. 07-35065, 2009 WL

118056, at *1 (9th Cir. Jan. 6, 2009) (noting Interagency Grizzly Bear Guidelines were incorporated into the Flathead Forest Plan and treating such guidelines as binding); Res., Ltd. v.

WILDWEST INSTITUTE v. CASTANEDA 4445
Robertson, 35 F.3d 1300, 1304 (9th Cir. 1993) (finding a violation of Interagency Grizzly Bear Guidelines because project

approval was explicitly conditioned on compliance with the

guidelines). In this case, it appears that the Guidelines were

incorporated into the binding Forest Plan. The Forest Plan

states: “Specific Forest Guidelines exist and will be applied

for . . . Old growth habitat and dependent species (Appendix

17).” 

[11] However, even though the Old Growth Guidelines

were incorporated into the Forest Plan, the language at issue

here does not create a mandatory standard. We have repeatedly noted that “the presence of a few, isolated provisions cast

in mandatory language does not transform an otherwise suggestive set of guidelines into binding agency regulations.”

Terbush v. United States, 516 F.3d 1125, 1139 n.7 (9th Cir.

2008) (quoting Sabow v. United States, 93 F.3d 1445, 1453

(9th Cir. 1996)); see Chamberlin v. Isen, 779 F.2d 522, 525

(9th Cir. 1985) (reviewing Manual of Patent Examining Procedures and concluding that while “[i]t is true that the MPEP

contains some mandatory language,” for the most part, “the

MPEP only suggests or authorizes procedures for patent

examiners to follow”). 

The Old Growth Guidelines state:

[U]nits of 50-100 acres are the smallest acceptable

size . . . . While units of a minimum of 50 acres may

be acceptable in some circumstances, 50 acres

should be the exception rather than the rule. Efforts

should be made to provide old growth habitat in

blocks of 100 acres or larger. If, due to past fires or

management activities, the only remaining old

growth blocks are less than 50 acres, they may still

be useful habitat provided that several small blocks

are clustered together or are surrounded by mature

habitat. 

4446 WILDWEST INSTITUTE v. CASTANEDA
We cannot conclude that this language creates a mandatory

rule that strictly limits designation of old growth to blocks

larger than 50 acres. The section is cast in suggestive (i.e.,

“should” and “may”) rather than mandatory (e.g., “must” or

“only”) terms. See Sabow, 93 F.3d at 1452. It suggests how

old growth should be managed, not how it must be designated. As the district court correctly concluded, the Forest

Plan does not mandate stands of fifty acres or more; “rather,

such a practice is merely recommended when possible.” Wildwest Inst., 462 F. Supp. 2d at 1161. 

Our review is confined to the question of whether the Forest Service violated NFMA. If the guideline language underlying the plaintiff’s claim is merely advisory or aspirational,

the answer must be “no.” See Or. Natural Res. Council v.

Lowe, 109 F.3d 521, 527 (9th Cir. 1997) (holding Forest Service did not violate NFMA in attaining only the minimum

levels of protection required by law, though “the Forest Service itself recommends that forest planning alternatives

should adopt management guidelines above the [minimums]”). The language of Appendix 17 is not mandatory.

Moreover, Appendix 17 plainly contemplates that blocks of

less than fifty acres will be treated as relevant to forest management decisions. Therefore, regardless of whether the Forest Service has or has not designated stands smaller than fifty

acres, it has not acted arbitrarily or capriciously. 

C. Designation of Old Growth: Effective vs. Replacement 

WildWest next challenges the Forest Service’s inclusion of

some replacement old growth in its analyses, arguing that

habitat which does not presently meet the needs of old-growth

species should not count toward the ten percent minimum.

WildWest does not refer to any specific project in this section

of its brief, but does in various other sections refer to the

levels of old growth habitat in each project area. We treat the

WILDWEST INSTITUTE v. CASTANEDA 4447
claim as properly raised with respect to all nine site-specific

projects. 

[12] The general requirements of the Forest Plan state only

that “10% of the Kootenai National Forest land base below

5,500 feet in elevation will be in an old-growth timber condition.” The Forest Plan does not address whether replacement

old growth may be included in the Forest Service’s calculation to attain the ten percent level. Therefore, the Forest Service is not clearly precluded from designating effective old

growth or including effective old growth in its analyses. 

[13] Assuming the Forest plan leaves some ambiguity as to

whether replacement old growth should be included, we defer

to the Forest Service’s reasonable interpretation of the Forest

Plan’s requirements. Lands Council v. Powell (Lands Council

I), 395 F.3d 1019, 1034 (9th Cir. 2005); Idaho Sporting Cong.

v. Thomas, 137 F.3d 1146, 1154 (9th Cir. 1998) (deferring to

the Forest Service’s expertise in interpreting its Land Management Plan), overruled on other grounds by Lands Council

II, 537 F.3d at 997. 

The Forest Service’s interpretation of the ten percent standard is reasonable for two reasons. First, the Forest Plan FEIS

provides: “Long-term management, [as opposed to existing,

natural old-growth], includes recognition of existing old

growth, but also includes designation of future old growth

. . . .” (emphasis added). This language plainly indicates that

the Forest Service may include replacement old growth in its

analyses. 

Second, as the district court highlighted in a prior related

case, the KNF did not meet the ten percent standard based on

existing old growth alone at the time the Forest Plan was

adopted. Ecology Ctr., Inc. v. Castaneda, No. CV 02-200-MDWM, 2003 WL 25548017, at *4 (D. Mont. June 27, 2003).

Designation of areas not yet possessing all the characteristics

of old growth was necessary to meet the ten percent standard,

4448 WILDWEST INSTITUTE v. CASTANEDA
and to ensure careful preservation of these areas for the

future. It is therefore reasonable to interpret the Forest Plan as

permitting designation of replacement old growth to meet the

ten percent standard. Accordingly, the Forest Service did not

act in an arbitrary or capricious manner by including replacement old growth in its statistics or analyses for purposes of

meeting the ten percent standard. 

D. Failure to Meet Ten Percent Standard

The Forest Plan requires that at least ten percent of land

below 5500 feet in elevation be in old-growth condition.

Additionally, old growth must be “spread evenly through

most major drainages, and will represent the major forest

types in each drainage.” WildWest claims the KNF as a

whole, and the challenged project areas individually, fall

below the ten percent minimum. It also claims the Forest Service failed to disclose the relevant data. WildWest has properly raised this argument with respect to all nine site-specific

projects. 

The latest available data, which appears in the Monitoring

and Evaluation Report for Fiscal Years 2003-2004, indicates

that 10.5% of total KNF lands below 5500 feet are designated

effective old-growth. This alone would be sufficient to meet

the standard set forth in the Forest Plan. When replacement

old growth is included in the analysis, it reveals that 15.7%

of the forest is in old-growth condition. The number would be

higher still if undesignated old growth were included in this

analysis.2 The Monitoring and Evaluation Report concludes:

“the Forest is meeting its Forest Plan requirement for designating 10% [ ] old growth habitat well distributed across KNF

lands below 5,500 feet elevation.” 

2WildWest does not apparently challenge the inclusion of undesignated

areas in the Forest Service’s statistics, though under the Forest Plan the

Forest Service may properly include them. 

WILDWEST INSTITUTE v. CASTANEDA 4449
[14] This conclusion is also true for the nine challenged

projects. Counting only designated old growth, the record

reveals that five of the nine site-specific projects—Pipestone,

South McSwede, West Troy, McSutten, and Lower Big Creek

—meet the ten percent standard based on effective old growth

alone. The other four—Bristow, Fortine, Alder Creek, and

Cow Creek—exceed the ten percent standard when both

effective and replacement old growth are included. Again, the

numbers are higher still when undesignated old growth areas

are considered. Because we conclude that designation of

replacement old growth is proper under the Forest Plan, then

all nine projects were in compliance with the ten percent standard as of the date of the project studies. 

The projects authorize no commercial harvesting of designated effective old growth, and only limited amounts of harvesting in undesignated areas. Completion of these projects

would therefore have no impact on whether the KNF as a

whole meets the ten percent standard. Therefore, approval of

these projects was lawful under the Forest Plan. 

E. Population Viability 

[15] WildWest next argues the KNF has insufficient habitat

to support a viable population of pileated woodpeckers, the

MIS for old growth habitat. The Forest Plan requires the Forest Service to measure “[p]opulation levels of old-growth

dependent species” in order to “[m]aintain viable population[s] of old-growth dependent species.” A viable population

is defined as a one that is at least forty percent of the potential

population for any given species in the KNF. 

[16] WildWest first claims the minimum viable population

for the pileated woodpecker in the KNF is 554 breeding pairs,

which represents forty percent of the 1384 pairs the KNF was

historically able to support. However, as WildWest notes in

its brief, the KNF was historically able to support a range of

335 to 1384 pairs. WildWest does not explain why the stan4450 WILDWEST INSTITUTE v. CASTANEDA
dard must be forty percent of the range’s upper limit. If the

viability threshold is calculated as a range, which the Forest

Service does, there should be between 134 and 554 breeding

pairs. The KNF is currently home to 425 breeding pairs of

woodpeckers, well within the permissible range. Indeed, over

the course of implementing the Forest Plan, the minimum

standard of old growth coverage was raised from eight to ten

percent specifically so that the KNF could support more than

the minimum viable population. Therefore, as a general matter, the Forest Service’s decisions would not be arbitrary or

capricious so long as the KNF supports at least 134 breeding

pairs. 

WildWest also claims seven of the nine challenged projects

—McSutten, Fortine, West Troy, Lower Big Creek, Bristow,

Alder Creek, and Cow Creek—will adversely affect the

KNF’s ability to support a viable number of pileated woodpeckers. Its main argument is that any alteration to the old

growth habitat resulting from the approved projects will

impair the viability of the pileated woodpecker. We have

already rejected this general proposition. As we noted in

Lands Council II, “[a] habitat disturbance does not necessarily

mean that a species’ viability will be threatened.” 537 F.3d at

997. 

[17] Though they may have adverse effects on the woodpecker, there is no indication the nine challenged projects

would force the woodpecker population below thresholds of

viability. The facts in this case are similar to those in Lands

Council II. There, the record included studies “describing the

quality and quantity of habitat necessary to sustain the viability” of the MIS. Id. The Forest Service had analyzed the suitability of the habitat for the MIS before and after the proposed

project. Id. We concluded, “[t]hat a proposed project involves

some disturbance to the forest does not prohibit the Forest

Service from assuming that maintaining a sufficient amount

of suitable habitat will maintain a species’ viability.” Id.

WILDWEST INSTITUTE v. CASTANEDA 4451
The result is the same here. The Forest Service has carefully described both the quantity and quality of habitat that is

necessary to sustain a viable population of the pileated woodpecker and has explained its methodology for measuring oldgrowth habitat. See Native Ecosystems Council v. U.S. Forest

Serv., 428 F.3d 1233, 1250 (9th Cir. 2005). It conducted

extensive analysis for each project area, considering the

effects on indicator species, such as impact on nesting and

feeding habitat. It concluded that although the nine projects

may affect old-growth species, they do not threaten species

viability. For eight of the nine projects, the EIS explicitly

addresses the likely effects on the pileated woodpecker and

concludes the project will not impair the bird’s viability. The

only project for which the EIS does not specifically address

the effects on the pileated woodpecker is the Pipestone project. However, the Forest Service did engage in extensive analysis of the effects on three other old-growth dependent birds,

and concluded there would be no loss of viability. It also

found the project design criteria would “insure management

for sufficient snags and snag replacement trees to maintain

viable population of snag dependent species.” Snags are one

of the pileated woodpecker’s listed habitats. This is the sort

of scientific prediction to which we give great deference to

the agency. See Lands Council II, 537 F.3d at 993 (citations

omitted). 

Based on this extensive analysis, the Forest Service concluded that the challenged projects would leave sufficient old

growth to support a viable population of pileated woodpeckers. Therefore, the decision to approve the challenged projects

was not arbitrary or capricious. 

F. Use of Habitat Proxies 

WildWest next raises several challenges to the Forest Service’s use of habitat proxies. Once again, WildWest fails to

cite to the record for any specific project in this section of its

brief. However, because it has elsewhere challenged measure4452 WILDWEST INSTITUTE v. CASTANEDA
ment of and compliance with the standards for old growth, we

treat this claim as properly raised with respect to all nine projects. 

Where data on the MIS is incomplete or difficult to collect,

the Forest Service monitors the habitat of the MIS, which is

mature and old growth forest in the case of the pileated woodpecker. By studying the result of a timber sale on the habitat

of the pileated woodpecker, the Forest Service attempts to

estimate its effects on all old growth species. See Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 971-72 (9th Cir.

2002) (describing this approach). 

[18] WildWest apparently claims that both parts of the

measurement have failed—i.e., both the population target and

the designation of old-growth habitat for the pileated woodpecker are improper. As discussed above, neither of these

claims has merit. To the extent that WildWest challenges the

proxy-on-proxy approach generally, the argument is foreclosed by our case law. We have repeatedly approved “the

Forest Service’s use of the amount of suitable habitat for a

particular species as a proxy for the viability of that species.”

Lands Council II, 537 F.3d at 996 (finding “eminently reasonable” the conclusion that the challenged project would maintain a viable MIS population because it would not decrease

MIS habitat in the short-term and would promote the longterm viability of MIS habitat); id. at 996 n.10 (noting “[w]e

have also allowed the Forest Service to use habitat as a proxy

to measure a species’ population, and then to use that species’

population as a proxy for the population of other species

(proxy-on-proxy approach)”); Inland Empire, 88 F.3d at 761

(approving Forest Service’s “habitat as a proxy approach”). 

WildWest relies heavily on three cases in which management decisions based on the proxy-on-proxy approach were

invalidated. See Earth Island Inst. v. U.S. Forest Serv., 442

F.3d 1147 (9th Cir. 2006), cert. denied, 549 U.S. 1278 (2007);

Lands Council I, 395 F.3d at 1036; Idaho Sporting Cong. v.

WILDWEST INSTITUTE v. CASTANEDA 4453
Rittenhouse, 305 F.3d at 970. Such reliance is misplaced. In

each of those cases, the Forest Service failed to accurately

identify and measure the relevant habitat. See Lands Council

II, 537 F.3d at 997-98 (“[W]hen the Forest Service decides,

in its expertise, that habitat is a reliable proxy for species’ viability in a particular case, the Forest Service nevertheless must

both describe the quantity and quality of habitat that is necessary to sustain the viability of the species in question and

explain its methodology for measuring this habitat.”). We

held that reliance on habitat proxies was invalid because the

essential data underlying the decision was flawed. For

instance, in Lands Council I, the Forest Service’s database, its

“main tool for old growth calculation,” contained data that

was fifteen years old, inaccurate, and insufficient on many

variables. 395 F.3d at 1036. 

No such defect exists here. WildWest does not challenge

the Forest Service’s identification of old growth as the woodpecker’s habitat or its measurement of old-growth habitat for

purposes of the proxy. As discussed above, the Forest Service’s designations of old growth were proper, and it engaged

in extremely thorough analysis of habitat impact before

approving the projects. The record contains detailed data on

the location, condition, and amount of old growth habitat in

the affected areas. Therefore, the Forest Service’s use of the

proxy-on-proxy approach was not arbitrary or capricious. 

G. Use of Best Management Practices 

WildWest makes several allegations related to the Forest

Service’s management of watersheds and aquatic habitat in

the KNF.3 Though not listed in the Issues on Appeal, Wild3WildWest fails to connect three of the four arguments to the challenged

site-specific projects, and we therefore do not address them. Additionally,

much of WildWest’s argument on these issues appears to conflate

NFMA’s substantive requirements with NEPA’s procedural requirement

that agencies conduct cumulative impact analyses. See 40 C.F.R. § 1508.7.

To the extent these arguments challenge the Forest Service’s consideration

and disclosure of the cumulative effects of long-term management decisions, they are addressed below. 

4454 WILDWEST INSTITUTE v. CASTANEDA
West’s Opening Brief complains at length of the Forest Service’s use of Best Management Practices (“BMPs”) to protect

fisheries. It claims BMPs have “clearly failed to adequately

protect and maintain riparian areas in acceptable condition” in

watersheds impacted by all nine of the challenged projects.

We understand WildWest’s argument to be that because

BMPs have proved inadequate to protect watersheds thus far,

it is arbitrary and capricious to use BMPs to evaluate and

approve the new site-specific projects. 

We have not specifically addressed whether use of BMPs

is a reasonable management strategy. Rather, we review

BMPs according to the same standard by which we review all

agency choices with respect to models, methodologies, and

weighing scientific evidence: their choices must be supported

by reasoned analysis. For instance, we noted in Environmental Protection Information Center v. United States Forest Service, 451 F.3d 1005 (9th Cir. 2006), that references to detailed

BMPs supported the conclusion the Forest Service had taken

the requisite “hard look” at a project’s environmental consequences. Id. at 1015-16; see also Res. Ltd., Inc. v. Robertson,

35 F.3d 1300, 1306 (9th Cir. 1993) (noting use of BMPs to

ensure maintenance of water quality in action challenging

general planning strategies). Additionally, we reviewed the

substance of BMPs in Blue Mountains Biodiversity Project v.

Blackwood, 161 F.3d 1208 (9th Cir. 1998). There, we found

that disclosure of mitigation measures was inadequate

because the Forest Service relied on BMPs developed for significantly different circumstances from those existing in the

disputed project areas. Id. at 1214. 

[19] Here, the Forest Service reasonably used and relied on

BMPs. The record reveals the BMPs used in the KNF are

carefully considered and tailored to the projects for which

they are used. For instance, the Pipestone EIS, which contains

an extensive appendix of BMPs to be applied, recommends

specific practices and the results to be obtained by those practices. Unlike in Blue Mountains, the BMPs here were develWILDWEST INSTITUTE v. CASTANEDA 4455
oped for the precise circumstances at hand. So long as BMPs

are supported by reasonable scientific assumptions, reasonably appropriate for the circumstances at hand, the Forest Service is not acting in an arbitrary and capricious fashion in

relying on them. 

[20] Moreover, the Forest Service points to specific evidence indicating implementation of BMPs has been quite successful in improving some watersheds. WildWest has not

proven that the poor conditions of which they complain are a

direct result of the BMPs used in the site-specific project analyses. Nor have they proven the poor conditions can be attributed to BMPs generally, as opposed to historical practices,

other management practices, or assumptions. In light of this

evidence, the Forest Service did not act in an arbitrary and

capricious fashion in relying on BMPs in evaluating and

approving the challenged projects.

V. NEPA Claims

A. Failure to Consider and Disclose Cumulative Effects

[21] WildWest next argues the Forest Service has failed to

adequately consider and disclose the cumulative effect on

water quality and fish resulting from “chronic failure” to

implement BMPs. NEPA requires the Forest Service to perform a cumulative impact analysis in approving projects.

Kern v. BLM, 284 F.3d 1062, 1075-76 (9th Cir. 2002). This

analysis requires the EIS to analyze the impact of a proposed

project in light of that project’s interaction with the effects of

past, current, and reasonably foreseeable future projects. 40

C.F.R. § 1508.7; see Lands Council I, 395 F.3d at 1027. 

WildWest complains the cumulative impact statements do

not contain discussion of prior projects on an individual basis.

“[T]he general rule under NEPA is that, in assessing cumulative effects, the Environmental Impact Statement must give a

sufficiently detailed catalogue of past, present, and future

4456 WILDWEST INSTITUTE v. CASTANEDA
projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have

impacted the environment.” Lands Council I, 395 F.3d at

1028. In Lands Council I, we found an EIS insufficient

because “the prior harvests from different projects were not

separately discussed, neither as to their method of harvest, nor

as to the consequences of each.” Id. We have repeatedly held

that general statements about prior projects affecting environmental conditions are insufficient; “quantified or detailed

data” about the effects of specific projects is necessary. Or.

Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1134

(9th Cir. 2007); see also Klamath-Siskiyou Wildlands Ctr. v.

BLM, 387 F.3d 989, 993 (9th Cir. 2004). 

[22] However, in League of Wilderness Defenders—Blue

Mountains Biodiversity Project v. United States Forest Service, 549 F.3d 1211 (9th Cir. 2008), we provided two important clarifications of this standard. First, we held that the

Forest Service “may aggregate its cumulative effects analysis

pursuant to 40 C.F.R. § 1508.7,” the regulation defining “cumulative impact.” Id. at 1218; see, e.g., WildWest Inst. v. Bull,

547 F.3d 1162, 1173 (9th Cir. 2008) (holding Forest Service’s

analysis of cumulative impacts of past timber harvests and

other historical events satisfied “hard look” standard). Second, we noted that Lands Council I “merely reaffirms the general rule that NEPA requires adequate cataloguing of relevant

past projects in the area.” Id. (internal quotation marks omitted). The Forest Service need not catalogue events that are not

“truly significant to the action in question.” See id.; 40 C.F.R.

§ 1500.1(b); NW Envt’l Advocates v. Nat’l Marine Fisheries

Serv., 460 F.3d 1125, 1140 (9th Cir. 2006) (noting Lands

Council I required a detailed catalogue of projects in order to

“inform analysis,” and concluding that cataloguing is not

required where other projects would have no related effects).

We reiterate that an aggregated cumulative effects analysis

that includes relevant past projects is sufficient. 

[23] The Forest Service met this standard here. Generally,

the Forest Service explained in each EIS what the effects of

WILDWEST INSTITUTE v. CASTANEDA 4457
the project would be, including the existing condition of each

area along several variables. The Pipestone EIS explicitly

notes there have been no previous timber harvests in this area,

and there will therefore be no cumulative impacts. Although

the cumulative effects section of the West Troy EIS merely

refers generally to “past and proposed activities,” without listing details about those activities, other parts of the EIS give

extensive history about past actions in the area, dating all the

way back to the early 1900s. Bristow’s EIS provides data on

the cumulative effects with other pending proposals and mitigation in areas with previous harvests. The South McSwede

EIS discusses past management practices and specific details

of planned projects. Lower Big Creek’s EIS refers to a table

of Current and Reasonably Foreseeable Actions, and states

past actions were considered in the Existing Conditions section; it also notes two related plans and concludes there would

be no cumulative effects. The McSutten EIS concludes there

would be no cumulative effects from past actions or when

coupled with current and reasonably foreseeable actions. The

Fortine EIS contains a detailed aggregated discussion of existing conditions. 

We conclude the Forest Service adequately considered and

disclosed the cumulative effects for purposes of NEPA. The

record includes extensive evidence that the Forest Service

considered the relevant prior and related actions and took the

requisite hard look before approving the challenged projects.

B. Failure to Meaningfully Disclose Old Growth Data

WildWest next contends the data upon which the Forest

Services bases its conclusions about the locations and distribution of old-growth habitat is inaccessible. It claims that

“[i]n order to be verifiable (replicable) methodology, the

underlying ‘hard data’ for each polygon should reveal how

that polygon meets the relevant old-growth criteria for the

particular habitat type.” The Forest Service has claimed there

is no more user-friendly way to format the data. 

4458 WILDWEST INSTITUTE v. CASTANEDA
[24] NEPA requires that the Forest Service disclose the

hard data supporting its expert opinions to facilitate the public’s ability to challenge agency action. See Idaho Sporting

Cong. v. Thomas, 137 F.3d at 1150, overruled on other

grounds by Lands Council II, 537 F.3d at 997. We defer to an

agency’s choice of format for scientific data. See League of

Wilderness Defenders—Blue Mountains, 549 F.3d at 1218 (“It

is not for this court to tell the Forest Service what specific evidence to include, nor how specifically to present it.”). WildWest does not contend the data is actually unavailable, and

the format of the data has not apparently impaired WildWest’s ability to bring legal challenges. Therefore, the Forest

Service has fulfilled its obligations under Idaho Sporting Congress. 

C. Failure to Disclose Inadequacy of Old-Growth Habitat

Finally, WildWest argues that the Forest Service violated

NEPA by failing to disclose in NEPA documents that the

KNF no longer has adequate habitat to support a viable population of pileated woodpeckers. This is a variation of its argument that the Forest Service failed to disclose and respond to

the Lesica study, which concluded a higher level of old

growth existed prior to European settlement. 

[25] Both formulations of this argument fail. As discussed

above, the Forest Service has provided a rational basis for its

choice of a ten percent old growth minimum. Moreover, an

agency need not respond to every single scientific study or

comment. See Lands Council II, 537 F.3d at 1001-02. WildWest claims that Center for Biological Diversity v. United

States Forest Service, 349 F.3d 1157 (9th Cir. 2003), requires

the Forest Service to disclose and respond to the Lesica study

because the evidence “directly challenge[d] the scientific

basis upon which the Final EIS rest[ed].” Id. at 1167. As discussed above, however, the Lesica study did not “directly

challenge” the Forest Service’s conclusion that ten percent old

WILDWEST INSTITUTE v. CASTANEDA 4459
growth was sufficient to sustain viable populations of oldgrowth species. The record reveals the Forest Service took the

requisite hard look at and disclosed the relevant available

information in setting the ten percent standard. 

VI. Concusion

For the reasons explained above, we conclude that the Forest Service complied with the substantive requirements of

NFMA and the Forest Plan. The Forest Service also took the

requisite “hard look” at the environmental effects of the projects before approving them. The district court properly

entered summary judgment in favor of the Forest Service. 

AFFIRMED.

4460 WILDWEST INSTITUTE v. CASTANEDA