FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE BIG THORNE PROJECT

AND 2008 TONGASS FOREST

PLAN,

SOUTHEAST ALASKA

CONSERVATION COUNCIL;

ALASKA WILDERNESS

LEAGUE; SIERRA CLUB;

NATIONAL AUDUBON

SOCIETY; NATURAL

RESOURCES DEFENSE

COUNCIL,

Plaintiffs-Appellants,

and

CASCADIA WILDLANDS;

GREATER SOUTHEAST

ALASKA CONSERVATION

COMMUNITY; GREENPEACE;

CENTER FOR BIOLOGICAL

DIVERSITY; THE BOAT

COMPANY, 

Plaintiffs,

v.

No. 15-35232

D.C. Nos. 

1:14-cv-00013-RRB

1:14-cv-00014-RRB

1:14-cv-00015-RRB
2 IN RE BIG THORNE PROJECT

UNITED STATES FOREST

SERVICE; UNITED STATES

DEPARTMENT OF

AGRICULTURE; BETH

PENDLETON, in her official

capacity as United States

Forest Service Region 10

Regional Forester; FORREST

COLE, in his official capacity

as Forest Supervisor for the

Tongass National Forest;

THOMAS TIDWELL, in his

official capacity as Chief of

the United States Forest

Service, 

Defendants-Appellees,

STATE OF ALASKA; ALASKA

FOREST ASSOCIATION, INC.;

SOUTHEAST CONFERENCE;

VIKING LUMBER COMPANY,

INC.; CITY OF CRAIG; ICY

STRAITS LUMBER CO. INC.;

SOUTHEAST STEVEDORING

CORPORATION; ALASKA

ELECTRIC LIGHT AND POWER

COMPANY; ALASKA POWER &

TELEPHONE; ALASKA

MARINE LINES, INC.; ALASKA

MINERS ASSOCIATION; FIRST

THINGS FIRST FOUNDATION;

SAMSON TUG AND BARGE

COMPANY, INC.; TYLER
IN RE BIG THORNE PROJECT 3

RENTAL, INC.; RESOURCE

DEVELOPMENT COUNCIL OF

ALASKA, INC.; SOUTHEAST

ROADBUILDERS, INC.; BOYER

TOWING, INC.; CITY OF

KETCHIKAN; KETCHIKAN

GATEWAY BOROUGH; CITY

AND BOROUGH OF

WRANGELL; FEDERAL

FOREST RESOURCE

COALITION; FIRST BANK, 

Intervenor-DefendantsAppellees.

IN RE BIG THORNE PROJECT

AND 2008 TONGASS FOREST

PLAN,

SOUTHEAST ALASKA

CONSERVATION COUNCIL;

ALASKA WILDERNESS

LEAGUE; SIERRA CLUB;

NATIONAL AUDUBON

SOCIETY; NATURAL

RESOURCES DEFENSE

COUNCIL, 

Plaintiffs,

and

CASCADIA WILDLANDS;

No. 15-35233

D.C. Nos. 

1:14-cv-00013-RRB

1:14-cv-00014-RRB

1:14-cv-00015-RRB
4 IN RE BIG THORNE PROJECT

GREATER SOUTHEAST

ALASKA CONSERVATION

COMMUNITY; GREENPEACE;

CENTER FOR BIOLOGICAL

DIVERSITY; THE BOAT

COMPANY, 

Plaintiffs-Appellants,

v.

UNITED STATES FOREST

SERVICE; UNITED STATES

DEPARTMENT OF

AGRICULTURE; BETH

PENDLETON, in her official

capacity as United States

Forest Service Region 10

Regional Forester; FORREST

COLE, in his official capacity

as Forest Supervisor for the

Tongass National Forest;

THOMAS TIDWELL, in his

official capacity as Chief of

the United States Forest

Service,

Defendants-Appellees,

STATE OF ALASKA; ALASKA

FOREST ASSOCIATION, INC.;

SOUTHEAST CONFERENCE;

VIKING LUMBER COMPANY,

INC.; CITY OF CRAIG; ICY

STRAITS LUMBER CO. INC.;
IN RE BIG THORNE PROJECT 5

SOUTHEAST STEVEDORING

CORPORATION; ALASKA

ELECTRIC LIGHT AND POWER

COMPANY; ALASKA POWER &

TELEPHONE; ALASKA

MARINE LINES, INC.; ALASKA

MINERS ASSOCIATION; FIRST

THINGS FIRST FOUNDATION;

SAMSON TUG AND BARGE

COMPANY, INC.; TYLER

RENTAL, INC.; RESOURCE

DEVELOPMENT COUNCIL OF

ALASKA, INC.; SOUTHEAST

ROADBUILDERS, INC.; BOYER

TOWING, INC.; CITY OF

KETCHIKAN; KETCHIKAN

GATEWAY BOROUGH; CITY

AND BOROUGH OF

WRANGELL; FEDERAL

FOREST RESOURCE

COALITION; FIRST BANK,

Intervenor-DefendantsAppellees.
6 IN RE BIG THORNE PROJECT

IN RE BIG THORNE PROJECT

AND 2008 TONGASS FOREST

PLAN,

SOUTHEAST ALASKA

CONSERVATION COUNCIL;

ALASKA WILDERNESS

LEAGUE; SIERRA CLUB;

NATURAL RESOURCES

DEFENSE COUNCIL,

Plaintiffs-Appellants,

v.

UNITED STATES FOREST

SERVICE; UNITED STATES

DEPARTMENT OF

AGRICULTURE; BETH

PENDLETON, in her official

capacity as United States

Forest Service Region 10

Regional Forester; FORREST

COLE, in his official capacity

as Forest Supervisor for the

Tongass National Forest;

THOMAS TIDWELL, in his

official capacity as Chief of

the United States Forest

Service, 

Defendants-Appellees,

No. 15-35244

D.C. Nos. 

1:14-cv-00014-RRB

1:14-cv-00013-RRB

1:14-cv-00015-RRB

OPINION
IN RE BIG THORNE PROJECT 7

STATE OF ALASKA; ALASKA

FOREST ASSOCIATION, INC.;

SOUTHEAST CONFERENCE;

VIKING LUMBER COMPANY,

INC.; CITY OF CRAIG; ICY

STRAITS LUMBER CO. INC.;

SOUTHEAST STEVEDORING

CORPORATION; ALASKA

ELECTRIC LIGHT AND POWER

COMPANY; ALASKA POWER &

TELEPHONE; ALASKA

MARINE LINES, INC.; ALASKA

MINERS ASSOCIATION; FIRST

THINGS FIRST FOUNDATION;

SAMSON TUG AND BARGE

COMPANY, INC.; TYLER

RENTAL, INC.; RESOURCE

DEVELOPMENT COUNCIL OF

ALASKA, INC.; SOUTHEAST

ROADBUILDERS, INC.; BOYER

TOWING, INC.; CITY OF

KETCHIKAN; KETCHIKAN

GATEWAY BOROUGH; CITY

AND BOROUGH OF

WRANGELL; FEDERAL

FOREST RESOURCE

COALITION; FIRST BANK,

Intervenor-DefendantsAppellees.
8 IN RE BIG THORNE PROJECT

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, Senior District Judge, Presiding

Argued and Submitted February 3, 2016

Seattle, Washington

Filed May 23, 2017

Before: Alex Kozinski, Diarmuid F. O’Scannlain

and Ronald M. Gould, Circuit Judges.

Opinion by Judge Kozinski;

Dissent by Judge Gould

SUMMARY*

National Forest Management Act

The panel affirmed the district court’s summary judgment

in favor of the United States in an action alleging that the

United States Forest Service violated the National Forest

Management Act by approving either the Big Thorne logging

project or the 2008 Tongass Forest Plan under which Big

Thorne was authorized.

Plaintiffs alleged that the 2008 Tongass Forest Plan

unlawfully damages the habitat of the indigenous Alexander

Archipelago wolf, and that the Forest Service violated its self-

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
IN RE BIG THORNE PROJECT 9

imposed obligation under the Plan by failing to ensure the

wolf’s sustainability. The panel held that the Plan’s provision

pertaining to sustainability was discretionary. The panel held

that because the Forest Service was only obligated to consider

sustainability “where possible,” there was no law to apply in

second-guessing the agency. The panel held that it was aware

of no authority compelling the agency to set a specific

standard or benchmark for protecting the viability of a species

that was neither endangered nor threatened. The panel noted

that the Forest Service’s Record of Decision specifically

concluded that the Forest Plan would “sustain viable

populations of the Alexander Archipelago wolf,” and the

panel concluded that Forest Service’s discussion of viability

wasn’t arbitrary or capricious. The panel further held that the

Big Thorne Project was consistent with the Forest Plan. 

In a concurrently filed memorandum disposition, the

panel also dismissed plaintiffs’ claims under the National

Environmental Policy Act. 

Judge Gould dissented from the portion of the majority’s

discussion of the issues relating to the National Forest

Management Act, and concurred in the court’s reasoning

concerning the National Environmental Policy Act, as

presented in the concurrently filed memorandum disposition. 

Judge Gould stated that the Forest Plan presently provides no

mechanism to ensure wolf population viability, and that the

agency’s rationale and reasoning process was too summary

and conclusory. Judge Gould would vacate the decision of

the Forest Service and remand for further proceedings, which

at a minimum would include both a thorough assessment

of the viability of the Alexander Archipelago wolf if the

project proceeds, and an explanation of its reasoning
10 IN RE BIG THORNE PROJECT

sufficient to satisfy Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

COUNSEL

Holly Anne Harris (argued), Thomas S. Waldo, and Eric P.

Jorgensen, Earthjustice, Juneau, Alaska, for PlaintiffsAppellants/Plaintiffs.

Christopher Winter (argued), Ralph Bloemers, and Oliver

Stiefel, Crag Law Center, Portland, Oregon; Gabriel Scott,

Cordova, Alaska; for Plaintiffs/Plaintiffs-Appellants.

Allen M. Brabender (argued), Emily Polachek, and David

Glazer, Attorneys; John C. Cruden, Assistant Attorney

General; Environment & Natural Resources Division, United

States Department of Justice, Washington, D.C.; James

Ustasiewski and Kate Baldridge, Office of General Counsel,

United States Department of Agriculture; for DefendantsAppellees.

Richard Goeken (argued), Smith Currie & Hancock LLP,

Washington, D.C.; Thomas E. Lenhart (argued), Senior

Assistant Attorney General; Craig W. Richards, Attorney

General; Office of the Attorney General, Juneau, Alaska;

Julie A. Weis, Haglund KelleyLLP, Portland, Oregon; James

F. Clark, Law Offices of James F. Clark, Juneau, Alaska;

Steven W. Silver, Robertson Monagle and Eastaugh, Reston,

Virginia; for Intervenor-Defendants-Appellees.
IN RE BIG THORNE PROJECT 11

OPINION

KOZINSKI, Circuit Judge:

Big Thorne is a logging project in Alaska’s Tongass

National Forest. The United States Forest Service approved

the logging to help revive the lackluster economy of

southeastern Alaska. But the project has been met with howls

of protest from the plaintiffs in this case, who claim that Big

Thorne unlawfully damages the habitat of an indigenous

wolf. The district court dismissed all challenges, and we

must now decide whether the Forest Service violated the

National Forest Management Act (NFMA) by approving

either the Big Thorne project or the 2008 Tongass Forest Plan

(Forest Plan) under which Big Thorne was authorized.

FACTS

Big Thorne allows timber to be harvested from Alaska’s

Prince of Wales Island. The island, which is the size of

Delaware, is the largest in a chain that makes up Alaska’s

Alexander Archipelago. Like most of the archipelago, Prince

of Wales Island is covered in old-growth rainforest. Big

Thorne authorizes logging on nearly 6,200 acres and the

construction of more than 80 miles of roads.

Logging and road construction will trench on the habitat

of the Alexander Archipelago wolf. This rare wolf preys on

a species of deer that thrives in the old-growth rainforest,

which provides suitable shelter and forage during periods of

heavy snow. A smaller forest will support fewer deer, which,

in turn, will support fewer wolves. The new roads will

compound that effect by letting wolf and deer hunters range

deeper into the forest.
12 IN RE BIG THORNE PROJECT

Concerns about the fate of the wolf are not new. This

discrete and insular canine is confined to the islands of the

archipelago and surrounding coastline, and is thus sensitive

to changes in local habitat. In 1993, environmental groups

petitioned to have the wolf listed under the Endangered

Species Act. The Fish and Wildlife Service denied the

petition,1

but nonetheless helped convene a team of scientists

to prepare a “wolf conservation assessment.” The assessment

recommended that the wolf be protected by maintaining the

deer population and limiting road density.

The Forest Service used these recommendations in 2008

as the basis for two “standards and guidelines” adopted in the

Forest Plan. The first of these—known as the “wolf

provision”—encourages the Forest Service to “[p]rovide,

where possible, sufficient deer habitat capability to . . .

maintain sustainable wolf populations” (emphasis added). A

sufficient habitat capability “is generallyconsidered to equate

to . . . 18 deer per square mile.” The second guideline—the

“road provision”—provides that “[t]otal road densities of 0.7

to 1.0 mile per square mile or less may be necessary” to

protect the wolves (emphasis added).

Even before Big Thorne was approved, the project area

had insufficient habitat capability to support 18 deer per

square mile, and road densities were above the recommended

1

In response to several renewed petitions, the Fish and Wildlife

Service concluded in early 2016 that “listing the Alexander Archipelago

wolf is not warranted at this time throughout all or a significant portion of

its range, including [Prince of Wales Island].” 12-Month Finding on a

Petition To List the Alexander Archipelago Wolf as an Endangered or

Threatened Species, 81 Fed. Reg. 435, 435 (Jan. 6, 2016).
IN RE BIG THORNE PROJECT 13

maximum. The logging project will further reduce deer

habitat capability and increase road density.

The Forest Service nevertheless put the welfare of local

loggers and their families above that of the wolves, and

approved Big Thorne. More concerned with wolves than

jobs, plaintiffs filed three lawsuits, pressing a variety of

challenges in an attempt to derail the project. The district

court consolidated the cases and granted Alaska’s motion to

intervene. It then granted summary judgment to the

defendants on all claims. Plaintiffs appeal.

DISCUSSION

We consider whether the Forest Service violated the

NFMA by approving the Forest Plan or the Big Thorne

logging project.2 This dual inquiry tracks the two tiers of the

agency’s legal obligations. First, the NFMA requires that the

Forest Service develop “land and resource management

plans,” commonly called forest plans, that set broad goals and

guidelines for each national forest. 16 U.S.C. § 1604(a), (e),

(g); Citizens for Better Forestry v. U.S. Dep’t of Agric.,

341 F.3d 961, 966 (9th Cir. 2003). Second, after a forest plan

is developed, all subsequent agency actions within that

national forest—projects like BigThorne—must complywith

both the NFMA and the relevant forest plan. 16 U.S.C.

§ 1604(i); see also Lands Council v. McNair, 537 F.3d 981,

989 (9th Cir. 2008) (en banc), abrogated in part on other

2 The district court also dismissed plaintiffs’ claims brought under the

National Environmental Policy Act. We dispose of those claims, and

several outstanding motions for judicial notice, in a memorandum

disposition filed concurrently.
14 IN RE BIG THORNE PROJECT

grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7 (2008).

The Administrative Procedure Act provides our standard

of review. We set aside an agency’s actions “only if they are

arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” Or. Nat. Res. Council Fund v.

Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (internal

quotation marks omitted) (discussing 5 U.S.C. § 706(2)(A)).

A. The Forest Plan

1. While “generalized harm” to the environment isn’t

enough to supply standing, the Supreme Court has

emphasized that particularized harm to “recreational” or even

“mere esthetic interests” is sufficient. Summers v. Earth

Island Inst., 555 U.S. 488, 494 (2009). We have previously

held that a plaintiff has standing to challenge a

“programmatic” agency decision (like a forest plan) when he

suffers harm that is “fairly traceable” to that program. See

Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d

1075, 1081 (9th Cir. 2015) (internal quotation marks

omitted).

Plaintiffs present voluminous declarations amply

demonstrating that they are challenging the Forest Plan as a

result of specific applications and not, as defendants claim, on

its face. The declarants use sites affected by the Forest Plan

for fishing, hunting, and to “enjoy the solitude” available only

in “remote, undeveloped areas on the Tongass.” Unlike the

single individual affidavit before the Supreme Court in

Summers, 555 U.S. at 495—which was inadequate to

establish standing—these declarations are sufficient to show
IN RE BIG THORNE PROJECT 15

that actions approved under the Forest Plan will cause

particularized injury to the plaintiffs.

2. The NFMA’s regulations at the time of the Forest Plan

required that national forests “be managed to maintain viable

populations of existing native and desired non-native

vertebrate species.” 36 C.F.R. § 219.19 (2000) (emphasis

added).3 This regulation defined a viable population as one

with enough “reproductive individuals to insure its continued

existence is well distributed in the planning area.” Id. So our

question is whether the Forest Service unlawfully concluded

that its Forest Plan would safeguard the continued and welldistributed existence of the Alexander Archipelago wolf.

Some plaintiffs argue that this is the wrong question. 

They claim that the “wolf provision” of the Forest Plan in fact

mandates a “sustainable” wolf population, not merelya viable

one. Sustainability is the more demanding standard, and

plaintiffs claim that the Forest Service violated its selfimposed obligation by failing to ensure sustainability.

The difference between sustainability and viability is not

sharply defined, and is made fuzzier still by the parties, who

occasionally conflate the two—as when they refer to

3 This regulation has been superseded. We apply a superseded

regulation “only to the extent” it was incorporated into the relevant Forest

Plan. Ecology Ctr. v. Castaneda, 574 F.3d 652, 657 (9th Cir. 2009). The

Forest Plan, which has not been updated since 2008, does mention the

superseded regulation, and the parties don’t dispute that the old regulation

applies. Applying the current regulation would not change the result

because the new regulation gives Forest Service officials even more

leeway to “determine whether or not the plan components . . . maintain a

viable population of each species of conservation concern within the plan

area.” 36 C.F.R. § 219.9(b).
16 IN RE BIG THORNE PROJECT

“sustaining viable” wolf populations, or repeatedly (if

obscurely) ponder the forest’s ability to “sustain wolves.” 

We need not map the precise contours of these concepts,

however, because the Forest Plan provision that mentions

sustainability is discretionary: It states only that the Service

“[p]rovide, where possible, sufficient deer habitat capability

to . . . maintain sustainable wolf populations” (emphasis

added). This is an aspiration, not an obligation. Because the

Forest Service is only obligated to consider sustainability

“where possible,” there is no law for us to apply in secondguessing the agency. See Heckler v. Chaney, 470 U.S. 821,

832 (1985) (construing 5 U.S.C. § 701(a)(2)). We agree with

the district court that the provision gives the Service the kind

of “flexibility and discretion” that is consistent with its

mission of balancing competing objectives.

Plaintiffs argue that such broad discretion must itself be

a problem: If the “sustainability” provision merely expresses

an aspiration, the Forest Plan must violate the NFMA by

failing to provide any enforceable mechanismfor maintaining

population minimums that comply with the viability

regulations. The argument appears to be that the Forest Plan

must set hard viability minimums—like deer per square

mile—below which the Service may not go.

This argument is neither viable nor sustainable. We’re

aware of no authority compelling the agency to set a specific

standard or benchmark for protecting the viability of a species

that is neither endangered nor threatened. This makes sense

when we consider our constellation of federal statutes: The

NFMA is fundamentally different from the Endangered

Species Act, which has a single-minded focus on protecting

species that are near extinction. Because the Alexander

Archipelago wolf is not entitled to such protection—despite
IN RE BIG THORNE PROJECT 17

the best efforts of environmental groups—its treatment is

guided by the less animal-friendly NFMA. The NFMA is

about managing competing uses, none to the exclusion of

others. See 16 U.S.C. § 1604(e).

As the dissent notes, the Forest Plan does incorporate a

superseded regulation requiring the agency to “maintain

viable populations” of native vertebrate species. See

36 C.F.R. § 219.19 (2000); see also supra note 3. But,

contrary to the dissent’s suggestion, we have repeatedly and

emphatically stressed that the Service is not required to

identify a specific “mechanism” for securing viability. We

have rejected the idea that the Service “must assess

population viability in terms of actual population size,

population trends, or the population dynamics of other

species”; even if such methods are desirable, they are flatly

“not required.” Inland Empire Pub. Lands Council v. U.S.

Forest Serv., 88 F.3d 754, 761 n.8 (9th Cir. 1996). Indeed,

we are “especially” deferential “when questions of scientific

methodology are involved,” like how to protect viability. Id.

at 760. More recently, our en banc opinion in Lands Council

v. McNair again made clear that courts may not “require a

particular type of proof that a project would maintain a

species’ population.” 537 F.3d at 997. Instead, an agency

need only supply “a rational connection between the facts

found and the conclusions made.” Or. Nat. Res. Council

Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007) (citation

and quotation marks omitted). This rational connection can

be supplied with studies or models or experts—or really any

legitimate evidence, so long as the agency describes a

reasonable fit between its means and ends.

There’s no question that the agency understood and met

this obligation. The Record of Decision specifically
18 IN RE BIG THORNE PROJECT

concludes that the ForestPlan will “sustain viable populations

of the Alexander Archipelago wolf.” The Service outlined a

multi-part strategy for protecting the wolf, which included

“providing core habitats with low road density, maintaining

wolf harvest within sustainable limits through regulations,

and providing adequate deer habitat to support an abundant

and stable deer population.” The Service extensively

discussed the management and modeling concerns of

alternative forest plans, and concluded that all alternatives

had between a “moderately high” and “very high” probability

of protecting wolf viability. The Service’s Record of

Decision specifically incorporates this discussion, along with

a longer discussion in the 1997 Forest Plan. Could the

Service’s discussion have been longer, better, or different?

Perhaps. But we decline to substitute our own policy wisdom

for the agency’s.4

In short, the Service met its legal obligations, and

plaintiffs’ remaining challenges to the Forest Plan—a

potpourri of contentions that the Service misinterpreted one

thing or failed to consider another—amount to the sort of

quibbling that can’t overcome our deferential standard of

review. San Luis & Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581, 601 (9th Cir. 2014). The Forest Service’s

discussion of viability wasn’t arbitrary or capricious.

4 The dissent’s focus on population changes on Prince of Wales

Island, dissent at 25–26, is puzzling for two reasons. First, the Forest

Service’s obligation is to protect viability in the Tongass Forest as a

whole, not every slice of it—in this case, an island that is less than 10%

of the total national forest. Second, the effects of the Big Thorne Project

tell us nothing about whether the agency complied with its legal

obligations in adopting the Forest Plan many years earlier.
IN RE BIG THORNE PROJECT 19

The NFMA gives the Forest Service flexibility because

the Service has many different goals—conservation,

commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2);

McNair, 537 F.3d at 993–94. The statute reflects a

congressional judgment that balancing these goals calls for

policy judgments—judgments that often require trade-offs

among worthy objectives, such as wolves and logging jobs. 

Congress left such judgments to a politically responsive

agency with relevant expertise. See 63C Am. Jur. 2d Public

Lands § 86 (2016) (“[T]he proper mix of uses within an area

is left to the discretion of the Forest Service.”). Depending

on the circumstances, lumber might be more important than

wolves. And even when wolves are more important than

lumber, it might be better to build fewer roads rather than

allow for more deer. Courts are not well-equipped to police

the substance of these judgments. Instead, we employ

procedural tools: In a nutshell, the agency must rationally

explain why it did what it did. Or. Nat. Res. Council Fund,

492 F.3d at 1125. This isn’t the only way to structure a

modern administrative state, and its emphasis on procedure

will produce results that some despise. But we have an

Administrative Procedure Act, not an Administrative Policy

Act.

B. The Big Thorne Project

Even if the Forest Service lawfully implemented the

Forest Plan, it must also ensure the Big Thorne Project is

consistent with that plan. 16 U.S.C. § 1604(i); McNair,

537 F.3d at 989.

Plaintiffs claim the Service failed to do this. But almost

all of their arguments proceed from the same false premise as

their objections to the Forest Plan—namely, they assume that
20 IN RE BIG THORNE PROJECT

it’s a sustainable population that counts, rather than a viable

one. And the premise is wrong for the same reason: The

sustainability provision of the Forest Plan is discretionary. 

The Forest Service must consider protecting sustainable

populations “where possible.” If the Service decides that a

sustainable wolf population conflicts with other appropriate

forest goals, the Service has discretion to pursue those goals

instead.

And that’s just what the Forest Service did. It repeatedly

emphasized that it was expanding timber supply from the

Tongass in the service of its multiple-use mandate. The

Service also pointed out that none of Big Thorne’s proposed

land met the Forest Plan’s suggested sustainability

minimums; thus, these goals wouldn’t have been met even in

the absence of a logging plan. In the end, the Service chose

jobs over wolves. We have no authority to second-guess that

judgment. See supra p. 16.

Big Thorne’s environmental impact statement does

contain scattered references to both sustainability and

viability. But plaintiffs are off-base in suggesting that a few

scattered references to sustainability—a common term that’s

deployed incautiously throughout the record and briefs—can

transform the Service’s legal obligation, which is to protect

viability alone.5 To conclude that the Service intended to

saddle itself with an extra obligation would require us to

overlook the agency’s numerous references to viability in the

5 Once more, the Service’s obligation is to protect viability in the

Tongass National Forest as a whole, not in each individual Tongass

project area. Plaintiffs’ claims that the Service failed to explain how it

would maintain wolf viability in the Big Thorne area thus, once again,

misunderstand the Service’s obligations.
IN RE BIG THORNE PROJECT 21

documents approving Big Thorne—as when it concluded in

its impact statement that the plan was “designed to ensure the

maintenance of viable populations of all vertebrate species

[in] the Tongass by means of a comprehensive approach.”

Because that conclusion accurately described the

Service’s legal obligations and was rationally explained, the

judgment below is

AFFIRMED.

GOULD, Circuit Judge, dissenting in part:

I dissent from the portion of the majority’s discussion of

the issues relating to the National Forest Management Act

(NFMA), and concur in the court’s reasoning concerning the

National Environmental Policy Act (NEPA). Hence I join in

full both the judgment and the reasoning of the court as

presented in the memorandum disposition filed concurrently

with the published opinion. But I regret I cannot fully join

the NFMA analysis, and hence I respectfully dissent in part.

Addressing the NFMA issues, that statute explicitly

serves up for agency action a catalog of potential competing

uses of the forest. The agency administering NFMA, the

United States Forest Service (Forest Service), is explicitly to

consider managing the forests having in mind environmental

considerations but also economic considerations. See Native

Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir.

2012) (“Forest plans are designed to manage forest resources

by balancing the consideration of environmental and

economic factors.”); 16 U.S.C. § 1604. One purpose of the
22 IN RE BIG THORNE PROJECT

NFMA is to encourage conservation of natural resources in

our national forests. But another purpose is to support a

timber industry that can provide much needed jobs to those

living in forested areas in or near our national forests.

It is obvious that once the agency makes a decision in the

normal case and gives more weight, for example, to creating

jobs than to protecting trees, the scope of review available for

a federal court will be extremely limited under the

Administrative Procedures Act. We are to “hold unlawful

and set aside agency action, findings, and conclusions found

to be arbitrary, capricious, an abuse of discretion, or

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

Our review under the Administrative Procedure Act of the

agency’s final administrative action is not generally a review

of substance or policy, but rather of procedure. As is wellstated by the majority, “we have an Administrative Procedure

Act, not an Administrative Policy Act.”

Given that agency action in substance is likely to be

upheld when proper procedures are followed, it is all the

more important to look carefully at whether the decision of

the agency here is procedurally sound. I conclude that it is

not.

For one thing, the applicable regulation governing the

content of a forest plan, states that viable populations of

wildlife in the forests are to be maintained. The NFMA aims

to foster diversity of plant and animal communities as part of

its mission to meet multiple-use objectives. 18 U.S.C.

§ 1604(g)(3)(B). The NFMA itself does not say that the wolf

species must be maintained at specific numbers and as

previouslystated, the statute sets out competing potential uses

of the forest that must be balanced by the responsible federal
IN RE BIG THORNE PROJECT 23

agency. The majority poses the issue as a choice between

wolves and jobs, but it is not so simple as that.

Although the NFMA does not require viability, the

agency has a duty to ensure the viability of surrounding

wildlife if it incorporates 36 C.F.R. § 219.19 (2000) into its

forest plan. See Ecology Ctr. v. Castaneda, 574 F.3d 652,

657 (9th Cir. 2009). And here, the Forest Service did

incorporate the regulation in its forest plan by noting that it is

directed “to manage wildlife habitat to maintain viable and

well distributed populations to ensure continued existence in

the planning area.” By so doing, “the forest plan must

comply with substantive requirements of the [NFMA]

designed to ensure continued diversity of plant and animal

communities and the continued viability of wildlife in the

forest . . . .” Idaho Sporting Cong., Inc. v. Rittenhouse,

305 F.3d 957, 961–62 (9th Cir. 2002). Specifically,

36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat

shall be managed to maintain viable populations of existing

native and desired non-native vertebrate species in the

planning area.” Our law is clear that an agencymust abide by

its own regulations. See Nat’l Ass’n of Home Builders v.

Norton, 340 F.3d 835, 852 (9th Cir. 2003); see also United

States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266

(1954).

Here, the majority is so preoccupied with the issue

whether “sustainability” is a discretionary term imposing no

restraint on the Forest Service, that it fails to assess

adequately whether the remaining population of the

Alexander Archipelago wolf will be viable after the project

proceeds. A viable population is “one which has the

estimated numbers and distribution of reproductive

individuals to insure its continued existence is well
24 IN RE BIG THORNE PROJECT

distributed in the planning area.” 36 C.F.R. § 219.19 (2000). 

There is a difference between a viable population and a

sustainable population. The latter must contain a larger

number of wolves because it is a population “capable of

sustaining harvest.” The Forest Service has recognized this

distinction: “[M]inimum viable populations for many species

may not satisfy the public need for wildlife populations

depended upon to meet subsistence and/or sport hunting

uses.”

As quoted above, the language of the regulation states in

pertinent part that a population of wildlife in the forest shall

be maintained, so that is a “viable” population. It does not

matter if the term sustainable population is hemmed in by the

discretionary words “if possible.” Instead, what is important

is that there is a non-discretionary obligation in the Forest

Plan for the Forest Service to maintain a “viable” population

of the Alexander Archipelago wolf.1

Although the Forest Service concluded that the Forest

Plan ensured the viability of the Alexander Archipelago wolf

and also concluded that the BigThorne Project was consistent

with the Plan, the Forest Plan and the Big Thorne project do

not demonstrate that it will manage old growth habitat in a

manner that insures the viability of the wolf in well

distributed populations throughout the Tongass National

Forest. The agency is not obligated to provide a sustainable

1 The majority argues that our precedent rejects the idea that the

Forest Service needs to identify a “mechanism” to secure viability, and

has rejected the idea that viability must be assessed in terms of population

size, trends, or dynamics. But the problem here is not that the agency

didn’t use a particular “mechanism” to assess viability, the problem is

rather that the agency just did not really grapple with assessing whether

current wolf populations are viable. Nor does the majority.
IN RE BIG THORNE PROJECT 25

wolf population, but it must ensure viable wolf populations

consistent with its substantive obligation under 36 C.F.R.

§ 219.19. The Forest Plan presently provides no mechanism

to ensure wolf population viability.

For another thing, the agency’s rationale and reasoning

process is too summary and conclusory, and fails to deal with

the entire problem before it. When the agency opts to protect

jobs rather than wolves, it would normally be allowed to

make that choice. But the Supreme Court in State Farm

elaborated on when we should consider an agency’s action to

be arbitrary and capricious. The Court stated that “the agency

must examine the relevant data and articulate a satisfactory

explanation for its action including a ‘rational connection

between the facts found and the choice made.’” Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines

v. United States, 371 U.S. 156, 168 (1962)).

That problem is presented here. The agency’s assessment

of the plight of the wolves in the Tongass National Forest is

in my view inadequate.2In the mid 1990s, 250–350 wolves

were thought to inhabit the Alexander Archipelago. The Big

Thorne project area, located on the Prince of Wales Island,

had sufficient habitat to support 45–50 wolves, making up

three separate packs and a portion of a fourth pack. A

project, funded primarily by the Forest Service, estimated that

by fall 2012, only about 29 wolves and only two remaining

2 The majority criticizes my specific discussion ofthe Prince of Wales

Island, because it only covers less than 10% of the Tongass National

Forest. I do so because the island includes unique, temperate old-growth

rainforest habitat, and because deer populations depend on a sufficient

quantity, distribution, and quality of winter old-growth habitat.
26 IN RE BIG THORNE PROJECT

packs remained in the Big Thorne project area. By spring of

2013, researchers could only account for a mere six to seven

wolves left in the project area. Another researcher observed

that “numbers seem to indicate that the population of wolves

in the central portion of Prince of Wales Island is approaching

zero.”

The Alexander Archipelago wolf and the Sitka blacktailed deer, as the Forest Service explained, are closely

interrelated. Survival of the wolves depends on survival of

the deer on which the wolves feed, which in turn depends on

maintenance of the old growth forest habitat on which the

deer depends. Deer populations depend on a sufficient

quantity, distribution, and quality of winter old-growth

habitat. It is inescapable that logging reduces this habitat. 

The Forest Service, aware that wolves depend on deer for

their survival, and that those deer to survive depend on old

growth forest habitat, has stressed that maintaining sufficient

deer habitat capability, and thus greater number of deer, was

“the most important factor” in sustaining wolf viability in the

Tongass National Forest. In fact, the destruction of deer

habitat capability is, as the agency has explained, “the most

important factor limiting wolf viability.” Yet the Forest Plan

does not support deer habitat capability numbers, and nothing

in the record supports the Forest Service’s contention that

viable wolf populations will remain relying on the other two

prongs of habitat reserves and wolf mortality management.

Perhaps it cannot be said that the agency could never

conclude on the limited evidence that a group of animals will

or will not survive as a consequence of forest activities. But

here the record is too sparse for definitive conclusion, and

what evidence exists in the record shows drastically

decreasing wolf population over the past decades and a
IN RE BIG THORNE PROJECT 27

project that diminishes deer habitat capability, further

threatening the wolves.

I would remand for more proceedings before the district

court in which the Forest Service could better explain its

reasoning and position relating to threatened habitat needed

by the wolves that will be lost if the pending project is

approved. I urge the majority to reassess its conclusions,

remand for more development of the record and pertinent

conclusions, and also give guidance (1) as to the

interpretation of the term “viable” in its context; and also

(2) on when and under what circumstances the agency would

be free to modify its restrictive regulation on viable

populations.

Hence I respectfully dissent in part. I would vacate the

decision of the Forest Service and remand for its further

proceedings, which at a minimum need to include both a

thorough assessment of viability of the Alexander

Archipelago wolf if the project proceeds, and an explanation

of its reasoning sufficient to satisfy State Farm. Perhaps the

agency can satisfactorily explain itself. But explain it must

do for the decision to be procedurally correct. And who

knows, perhaps in going through the rigorous explanation of

whether the Alexander Archipelago wolf will continue to

exist in viable numbers, the agency may learn more, which

could lead it to take some different action more favorable to

wolf and human communities. At a minimum, the agency, by

explaining itself, will help to fully inform the public about the

issues presented in balancing wolf survival, adequacy of deer

habitat, and impact on jobs and pertinent communities caused

by the final agency action.