FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE 

COUNCIL; SOUTHEAST ALASKA

CONSERVATION COUNCIL; SIERRA

CLUB; NATIONAL AUDUBON SOCIETY;

THE WILDERNESS SOCIETY;

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiffs-Appellants,

No. 04-35868

v.

D.C. No.

UNITED STATES FOREST SERVICE;  CV-03-00029-J-JKS

U.S. DEPARTMENT OF AGRICULTURE;

MARK REY; DENNIS E. BSCHOR; OPINION

FORREST COLE,

Defendants-Appellees,

STATE OF ALASKA; ALASKA FOREST

ASSOCIATION,

Defendants-IntervenorsAppellees. 

Appeal from the United States District Court

for the District of Alaska

James K. Singleton, Chief Judge, Presiding

Argued and Submitted

February 15, 2005—Seattle, Washington

Filed August 5, 2005

Before: Betty Binns Fletcher, M. Margaret McKeown, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

10089
COUNSEL

Thomas S. Waldo and Eric P. Jorgensen, Earthjustice, Juneau,

Alaska, and Nathaniel S.W. Lawrence, Natural Resources

Defense Council, Olympia, Washington, for the plaintiffsappellants. 

Thomas L. Sansonetti, Assistant Attorney General, Andrew

C. Mergen, Bruce M. Landon, David C. Shilton, and Elizabeth Ann Peterson, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.,

for the defendants-appellees. 

Steve Silver and Ruth Hamilton Heese, Robertson, Monagle

& Eastaugh, Juneau, Alaska, and Gregg Renkes, Attorney

General for State of Alaska, and Zachary Falcon, Assistant

Attorney General for State of Alaska, for the defendantsintervenors.

NATURAL RES. DEF. COUNCIL v. USFS 10093
OPINION

GOULD, Circuit Judge: 

Plaintiffs-Appellants Natural Resources Defense Council,

Southeast Alaska Conservation Council, Sierra Club, National

Audubon Society, The Wilderness Society, and Center for

Biological Diversity (collectively “NRDC”) appeal the district

court’s final judgment in favor of Defendants-Appellees

United States Forest Service, United States Department of

Agriculture, and certain government employees acting in their

official capacity,1 dismissing administrative and environmental law challenges to the 1997 Revision to the Tongass Land

Management Plan (Plan). We must decide the legality of the

Plan adopted and the process used by the Forest Service. 

NRDC claims that a Forest Service error that doubled the

projected market demand for Tongass timber2 rendered the

Plan for the Tongass National Forest arbitrary and capricious,

in violation of the Administrative Procedure Act (APA), 5

U.S.C. § 706(2)(A), and rendered arbitrary and capricious the

Forest Service’s conclusion that timber goals justified the risk

that the Plan may not ensure viable, well-distributed populations of wildlife, as required by former 36 C.F.R. § 219.19

(2000).3 NRDC also claims that the market-demand error rendered misleading the Plan’s final Environmental Impact Statement (EIS), in violation of the National Environmental Policy

Act (NEPA), 42 U.S.C. § 4332. NRDC further challenges the

1

Intervenors-Appellees State of Alaska and Alaska Forest Association

(collectively “Intervenors”) successfully moved to intervene on the issue

of remedy if NRDC succeeds on the merits of this appeal. 

2The Forest Service admitted this error in its briefs and at oral argument. 

3The regulations in 36 C.F.R. § 219 have since been supplanted. 65 Fed.

Reg. 67,514-81 (Nov. 9, 2000). However, the former regulations are applicable here because they were in effect when the plan revisions challenged

in this lawsuit were prepared. 

10094 NATURAL RES. DEF. COUNCIL v. USFS
EIS on grounds that the Forest Service did not consider an

adequate range of alternatives and failed to consider the

cumulative impacts of “highgrading.”

4

The government Appellees argue that under section 335 of

the 2003 Omnibus Appropriations Act, we lack jurisdiction to

review the Forest Service’s decision to adopt the Plan. Alternatively, they contend that the Plan was not arbitrary because

the inflated market demand projections did not influence the

Forest Service’s decision to adopt the Plan. The Intervenors

argue that, if NRDC prevails on the merits, injunctive relief

is inappropriate in this case because NRDC cannot show

irreparable harm to its interests, while the interests of the

Intervenors will be irreparably harmed if an injunction is in

place. 

We have jurisdiction under 28 U.S.C. § 1291, and we

reverse. 

I

Created in 1907 by President Theodore Roosevelt,5 the

Tongass National Forest is an immense forest located in

Southeast Alaska comprised of mainland and many islands

within the Alexander Archipelago. The Tongass is the

nation’s largest national forest, and the largest unspoiled and

intact temperate rainforest in the world, containing almost

4

“Highgrading” is the practice of logging disproportionately in highvolume old-growth areas. High-volume old growth areas are superior habitat for many wildlife species, including wolves, the American marten, and

marbled murrelets. 

5Known primarily in modern times for his political achievements, President Theodore Roosevelt was also an occasional “man of letters” who

wrote essays on varied topics including the need for conservation of wildlife. See, e.g., Theodore Roosevelt, The Conservation of Wildlife, in 12

The Works of Theodore Roosevelt 423, 425-26 (Charles Scribner’s Sons

1926) (Jan. 20, 1915). 

NATURAL RES. DEF. COUNCIL v. USFS 10095
seventeen million acres and occupying about seven percent of

Alaska’s area.6

The National Forest Management Act (NFMA) requires the

Forest Service to “develop, maintain, and, as appropriate,

revise land and resource management plans for units of the

National Forest System.” 16 U.S.C. § 1604(a). As we have

explained, NFMA embraces concepts of “multiple use” and

“sustained yield of products and services,” obligating the Forest Service to “balance competing demands on national forests, including timber harvesting, recreational use, and

environmental preservation.” Lands Council v. Powell, 379

F.3d 738, 742 n.2 (9th Cir. 2004) (quoting 16 U.S.C. § 1607

and citing 16 U.S.C. §§ 528-31), amended and superseded by

395 F.3d 1019 (9th Cir. 2005). 

The original plan for the Tongass was approved in 1979,

and has since been amended twice, once in 1986 and again in

1991. By law, forest plans must be revised at least every fifteen years, or sooner if changed conditions warrant a revision.

16 U.S.C. § 1604(f)(5) (2004). The Record of Decision

(ROD) for the revised Plan at issue in this appeal was adopted

in May 1997. The initial “paper version” of the Plan’s EIS

was released in January 1997. The EIS was updated in May

1997. 

During the public process of revising the Tongass Plan,

Congress passed the Tongass Timber Reform Act (TTRA),

which imposed additional planning requirements for the Tongass. Among the requirements, Congress imposed a unique

6According to its website, the Forest Service seeks to “balance multiple

uses of the forest resources,” which include “healthy fish and wildlife populations, clean water, trees to support local industry, recreation opportunities unique to Alaska, and plenty of unspoiled beauty and solitude.” U.S.

Dep’t of Ag., Forest Service, at http://www.fs.fed.us/r10/tongass/forest_

facts/forest_facts.shtml (last visited May 10, 2005). 

10096 NATURAL RES. DEF. COUNCIL v. USFS
duty on the Forest Service to consider the “market demand”

for timber:7

Subject to appropriations, other applicable law, and

the requirements of the National Forest Management

Act of 1976 (Public Law 94-588), except as provided in subsection (d) of this section, the Secretary

shall to the extent consistent with providing for the

multiple use and sustained yield of all renewable forest resources, seek to provide a supply of timber

from the Tongass National Forest which (1) meets

the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle. 

16 U.S.C. § 539d(a). The exception in subsection (d) provides

that “the Secretary need not consider economic factors in the

identification of lands not suited for timber production.” Id.

§ 539d(d). 

During the planning process for the 1997 Revision to the

Tongass Land Management Plan, the Forest Service used the

analysis of economists David Brooks and Richard Haynes to

determine the market demand for Tongass timber, and to

assess whether the Plan would supply enough timber to meet

that demand, in accord with the Forest Service’s statutory

obligations. Over an eight-year period, Brooks and Haynes

prepared four reports with projections of the market demand

for Tongass timber. 

The updated 1997 Brooks and Haynes report was the most

recent demand study available to the Forest Service. The

report gives three scenarios—low, medium, and high—to dis7This required duty, to assess market demand for timber, can be seen as

a refinement of the general requirement under NFMA that the Forest Service consider timber harvest as one of the goals to be balanced with environmental preservation and recreational use. 

NATURAL RES. DEF. COUNCIL v. USFS 10097
play a range of future average demand for Tongass timber

during the upcoming decade. The alternate scenarios are predicated on variations in Alaskan timber’s competitiveness,

Alaskan timber’s share of the Japanese market, and Alaskan

mills’ share of the U.S. domestic market. 

The 1997 Brooks and Haynes report projected a low scenario of 68 million board feet per year (MMBF/year), a

medium scenario of 110 MMBF/year, and a high scenario of

154 MMBF/year. Prior reports projected nearly double this

demand, but were revised downward due to changed circumstances, such as the closing of local pulp mills, a weaker Japanese market, and a decline in Alaska’s competitive position.

The Forest Service misinterpreted the 1997 Brooks and

Haynes market demand projection within the published ROD

and EIS. The Forest Service incorrectly thought that the projection numbers refer only to “sawlogs suitable for producing

lumber,” when they actually refer to “total National Forest

harvest, including both net sawlog and utility volume.”

8

Because of the Forest Service’s error, the ROD and EIS project an average market demand for Tongass timber nearly

double that which Brooks and Haynes projected. The projected demand scenarios used by the ROD and EIS are 130

MMBF/year (low), 212 MMBF/year (medium), and 296

MMBF/year (high). 

The ROD and EIS examined ten alternatives in detail. The

Forest Service adopted Alternative 119 because it “best

8

“Sawlog” is the “portion of a tree that is suitable in size and quality for

the production of dimension lumber, collectively known as sawtimber.”

“Utility volume” refers to other types of wood. A figure that included only

demand for “sawlog” would therefore be significantly less than a figure

that included demand for both “sawlog” and “utility volume.” 

9The ROD originally examined in detail 11 Alternatives, but omitted

Alternative 8 from detailed consideration because of its similarity to Alternative 1 in environmental effect. However, the Forest Service retained the

same numbering system, hence the tenth alternative considered is called

Alternative 11. 

10098 NATURAL RES. DEF. COUNCIL v. USFS
responds to multiple needs, including ensuring a healthy forest habitat and providing a sustainable supply of goods and

services including timber.” Alternative 11 allocates 3.9 million acres to development land use designations (LUDs) that

allow logging, and 60% of this allocation (2.4 million acres)

is currently roadless area. Alternative 11 also establishes an

average “Allowable Sale Quantity” (ASQ)10 of 267 MMBF/

year for the next decade.11 Although the ASQ represents a

ceiling on allowable timber sales, the ROD states that “the

public can expect the amount of timber to be offered annually

to vary between 200 MMBF or less and 267 MMBF.” 

Regulations in force when the Plan was adopted required

the Forest Service to “maintain viable populations of existing

native and desired non-native vertebrate species in the planning area.” 36 C.F.R. § 219.19 (2000). The Forest Service

enlisted panels of specialists to rate the degree of risk to

10The ASQ represents the “upper decadal limit on the amount of timber

that may be offered for sale from suitable timberland on the Tongass

National Forest as part of the regularly scheduled timber sale program.”

The ASQ applies to sawlog and utility log volumes. 

11The ASQ, the development LUD acreage, and the allocated roadless

area acreage for each considered Alternative is as follows: 

Alternative ASQ Development LUDs Roadless Area

1 0 .24 million acres .12 million acres

2 463 5.3 million acres 3.6 million acres

3 256 4.4 million acres 2.9 million acres

4 130 5.3 million acres 3.6 million acres

5 122 5.0 million acres 3.3 million acres

6 309 5.0 million acres 3.3 million acres

7 640 8.1 million acres 6.2 million acres

9 549 6.3 million acres 4.7 million acres

10 300 4.4 million acres 2.9 million acres

11 267 3.9 million acres 2.4 million acres

NATURAL RES. DEF. COUNCIL v. USFS 10099
wildlife viability posed by each of the Alternatives assessed

by the ROD and EIS. The level of risk was gauged for several

species by placement into one of five “Outcome” scenarios.12

The Forest Service determined that placement of a species

into Outcomes I or II would always meet the concept of “viable and well distributed” as required by NFMA regulations,

and that placement of a species into Outcome III may, for

some species, sometimes meet the regulatory requirement.13

Thus, the likelihood of maintaining a species’ viability is “expressed as being greater than the sum of likelihood scores for

Outcomes I and II, but less than the sum of likelihood scores

12Outcome I indicated that habitat would be “of sufficient quality, distribution, and abundance to allow the species to maintain well distributed,

breeding populations across the Tongass.” Outcome II indicated a similar

result as Outcome I, but with low density populations, and the possibility

of temporary gaps occurring. Outcome III indicated that permanent gaps

in species distribution were likely. Outcome IV indicated that habitat

would allow continued species existence only with strong limitations on

interactions among local populations. Outcome V indicated that habitat

conditions would result in species extinction. 

13The Forest Service, and most panels, initially determined that placement of a species only into Outcomes I and II would indicate a “likelihood

that viable populations will remain distributed across the Forest.” This

conclusion was modified in Appendix N of the EIS, published four months

after the “paper version” of the EIS, wherein the Forest Service determined that placement of a species into Outcome III may, for some species,

meet the concept of “viable and well distributed” as required by NFMA

regulations. 

NRDC takes issue with the Forest Service’s motive for modifying its

standard. We do not; we defer to the Forest Service’s judgment on the

standard used to gauge wildlife viability as it necessarily involves scientific and technical expertise, in the context of predicting how various timber programs would affect the viability and distribution of species

populations. See Nat’l Wildlife Fed’n v. United States Army Corps of

Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004) (“Where scientific and technical expertise is necessarily involved in agency decision-making, especially in the context of prediction . . . , the Supreme Court has held that

a reviewing court must be highly deferential to the judgment of the

agency. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462

U.S. 87, 103 (1983).”). 

10100 NATURAL RES. DEF. COUNCIL v. USFS
for Outcomes I, II, and III.”

14 The ROD concluded that the

Plan presented an acceptable level of risk to wildlife viability

when balanced against other multiple-use goals, such as “providing a sustainable supply of goods and services including

timber.” 

Pursuant to the 1997 Plan, the Forest Service has authorized new timber sale projects that allow logging in roadless

areas, and which NRDC challenges in this appeal. NRDC

contends that the Forest Service’s admitted error in interpreting the market demand for Tongass timber (1) renders arbitrary and capricious the decision to adopt the Plan, (2) renders

arbitrary and capricious the Plan’s conclusion that its risk to

wildlife was acceptable, (3) makes the EIS misleading due to

exaggerated estimates of the Plan’s economic effects, and (4)

makes the range of alternatives considered by the EIS inadequate under NEPA because no alternative reflected the actual

market demand. NRDC also argues that the EIS failed to consider the cumulative impacts of State and private logging of

high-volume old-growth forest, which NRDC contends is particularly important to certain wildlife. 

14The panel results included the following viability ranges: 

Species Alt. 1 Alt. 2 Alt. 5 Alt. 9 Alt. 11

Northern 100% >20%, >85%, >10%, >71%,

Goshawk <61% <100% <61% <97%

American >93%, >19%, >66%, >13%, >36%,

Marten <100% <83% <95% <66% <91%

Alexander >94%, >63%, >84%, >48%, >83%,

Archipelago <97% <97% <97% <92% <97%

Wolf

Brown Bear >94%, >49%, >65%, >16%, >68%,

<100% <90% <98% <74% <93%

Widely >69%, >3%, >39%, >0%, >38%

Distributed <96% <18% <92% <9% <82%

Mammals 

Endemic >40%, >0%, >10%, >0%, >18%

Mammals <71% <8% <55% <8% <55%

NATURAL RES. DEF. COUNCIL v. USFS 10101
The district court bifurcated the merits of the case from the

relief. The district court issued first a tentative decision, and

after receiving objections and comment, a final decision in

favor of the government Appellees because the district court

concluded that the market demand report “was not significant

to the planning process” and that “the Forest Service did not

rely on the [market demand] report.”

15 The district court also

ruled against NRDC’s NEPA claims, stating that “the Government adequately considered the range of alternatives and

adequately justified its decisions.” 

During litigation in district court, the Forest Service

announced its intent to begin construction of a road into a

roadless area pursuant to one of the Plan’s authorized timber

sales. NRDC sought a preliminary injunction and an injunction pending appeal in the district court, which the district

court denied. NRDC then sought an injunction pending appeal

in the Ninth Circuit, which was granted by a motions panel

because “NRDC has shown a likelihood of success on the

merits” and because the planned timber sale “will cause irreparable injury.” Order at 2-3 (filed Oct. 18, 2004) (per curiam).16

II

We must first determine whether we have jurisdiction to

review the 1997 Revision to the Tongass Land Management

Plan. In 2003, Congress passed the Omnibus Appropriations

Act, Pub. L. 108-7 (Feb. 20, 2003), stating in part that:

The Record of Decision for the 2003 Supplemental

15The district court concluded that the “short-term projections were

irrelevant to the long-term, programmatic goals of the revised [Tongass

Plan]” and that “the uncertainty of the projections” undermined the market

demand report’s utility. 

16The motions panel included Judges Kleinfeld, Tashima, and Gould.

Judge Kleinfeld dissented from the order granting an injunction pending

appeal. 

10102 NATURAL RES. DEF. COUNCIL v. USFS
Environmental Impact Statement for the 1997 Tongass Land Management Plan shall not be reviewed

under any Forest Service administrative appeal process, and its adequacy shall not be subject to judicial

review by any court of the United States. 

149 Cong. Rec. H707-01, H779 (2003). The 2003 Supplemental Environmental Impact Statement (SEIS) was a

response to a court order holding that the 1997 ROD violated

NEPA and NFMA because it failed to consider in the EIS

alternatives that would have recommended more wilderness

areas on the Tongass. Sierra Club v. Rey, J00-009 (D. Alaska,

Order of Mar. 30, 2001). 

[1] After completing the court-ordered SEIS, the Forest

Service issued a ROD adopting Alternative 1, the “No-Action

Alternative,” which represented “the 1997 Forest Plan Revision land allocations and standards and guidelines.” The 2003

ROD thus recommended the creation of no wilderness areas

on the Tongass, other than those already recommended by the

1997 Plan. By its terms, section 335 of the 2003 Appropriations Act precludes judicial review of the 2003 ROD. 

[2] The government Appellees argue that Congress understood that the 2003 ROD adopted or readopted the entire Tongass Plan, and that Congress intended to insulate the entire

1997 Plan from judicial review. We are not persuaded. The

2003 Appropriations Act does not by its terms clearly preclude judicial review of challenges to the 1997 Plan. See Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992)

(“Congress . . . may amend a substantive law in an appropriations statute, as long as it does so clearly.”). 

The 2003 ROD and SEIS were the Forest Service’s

response to a court order to reassess only the wilderness component of the 1997 Plan. As the SEIS explains: “The purpose

and need for this SEIS is, therefore, narrow in focus and has

been developed to specifically respond to the March 2001

NATURAL RES. DEF. COUNCIL v. USFS 10103
Court order.” There is no indication that the Forest Service

intended the 2003 court-ordered response to be an entirely

new plan, or that it readopted the 1997 Plan;17 there is, however, unambiguous language indicating that the SEIS was limited in scope: 

As indicated by the U.S. District Court for Alaska,

there is a need to evaluate roadless areas in the Tongass National Forest and consider them for wilderness recommendations; therefore, this SEIS focuses

on new wilderness recommendations. The alternatives discussed below reflect this focus. The SEIS

does not consider land allocation options, such as

changing current non-development LUDs to development LUDs. Also, it does not explore new biodiveristy or conservation biology strategies, nor

represent a totally new Forest Plan Revision. 

We conclude that the 2003 ROD adopted only the 2003 SEIS,

and was intended to address only the wilderness element of

the 1997 Plan.18

[3] Because Congress precluded judicial review of only the

2003 ROD reassessing the wilderness recommendations of

the 1997 ROD, and not the entire 1997 Plan, and because

NRDC challenges the adequacy of the 1997 Plan, we hold

that Congress has not stripped us of our jurisdiction under 28

17We note that NFMA allows only the “approval,” “amendment,” or

“revision” of a forest plan, and not the “readoption” of a forest plan. See

16 U.S.C. § 1604(f)(4)-(5). 

18The legislative history confirms this limited intent: “The conference

agreement retains language proposed in section 329 of the Senate bill limiting review of certain elements in the land management plan for the Tongass National Forest.” H.R. Conf. Rep. No. 108-10, at 1032 (2003); 149

Cong. Rec. S340-05, at S588 (daily ed. Jan 15, 2003) (Senate report submitted by Sen. Stevens) (“Limits the review of certain aspects of the Tongass Land Management Plan.”). 

10104 NATURAL RES. DEF. COUNCIL v. USFS
U.S.C. § 1291 to review the final decision and judgment of

the district court dismissing NRDC’s claims.19

III

[4] Having determined that we have jurisdiction to decide

the merits of NRDC’s appeal, we next must determine

whether the Forest Service’s admitted misinterpretation of

market demand for Tongass timber was a clear error of judgment that renders the 1997 ROD arbitrary and capricious, in

violation of the APA.20 Under the APA, the Forest Service’s

decision must be based on “a consideration of relevant factors” and we assess whether there has been “a clear error of

judgment.” Gifford Pinchot Task Force v. United States Fish

& Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). A

“clear error of judgment” sufficient to be arbitrary and capricious agency action exists when “the agency offer[s] an

explanation that runs counter to the evidence before the agency.” Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003),

amended by 352 F.3d 1186. The Forest Service must “state a

rational connection between the facts found and the decision

made.” Gifford Pinchot Task Force, 378 F.3d at 1065. 

19Alternatively, even if Congress intended in the 2003 Appropriations

Act to preclude judicial review of the entire 1997 Plan, we would retain

jurisdiction over NRDC’s appeal because appropriations acts are generally

only “in force during the fiscal year of the appropriation and do not work

a permanent change in the substantive law.” Seattle Audubon Soc’y v.

Evans, 952 F.2d 297, 304 (9th Cir. 1991) (holding that a rider that limited

judicial review of national forest management plans expired at the end of

the appropriation year). To rebut this presumption takes a clear statement

of “futurity,” such as “hereafter.” See Atl. Fish Spotters Ass’n v. Evans,

321 F.3d 220, 224-25 (1st Cir. 2003); Bldg. & Constr. Trades Dep’t, AFLCIO v. Martin, 961 F.2d 269, 273-74 (D.C. Cir. 1992). 

20Our review of agency action is governed by the APA; we will set

aside only agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);

Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir. 1993). Our

review is narrow, but searching and careful. Marsh v. Or. Natural Res.

Council, 490 U.S. 360, 378 (1989). 

NATURAL RES. DEF. COUNCIL v. USFS 10105
A

Under the TTRA, the Forest Service must “seek to provide

a supply of timber from the Tongass National Forest which

(1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for

each planning cycle.” 16 U.S.C. § 539d(a). The Forest Service

sought to satisfy its obligations under the TTRA by considering market demand for Tongass timber and by seeking to

meet that demand. The Forest Service first used the Brooks

and Haynes report to assess market demand. Then, in its list

of goals and objectives, the ROD stated that the Forest Service “will seek to provide a timber supply sufficient to meet

the annual market demand for Tongass National Forest timber

and the market demand for the planning cycle.” The ROD

thus preferred alternatives that “have a timber program potential (Allowable Sale Quantity) that allows flexibility to

respond to changing needs within the timber industry, as

reflected in the most recent demand study (see Final EIS,

Appendix M), and are responsive to communities dependent

upon timber harvesting.” 

The three scenarios of average annual demand for Tongass

timber for the next decade “reflected in the most recent

demand study” were: 68 MMBF/year (low), 110 MMBF/year

(medium), and 154 MMBF/year (high). The Forest Service,

however, interpreted the Brooks and Haynes report to apply

only to sawlogs. Because “[t]he ASQ for the Forest Plan and

the annual timber sale program on the Tongass include both

sawlogs and other types of wood,” the ROD’s three scenarios

for projected average market demand were: 130 MMBF/year,

212 MMBF/year, and 296 MMBF/year. The Forest Service

used its doubled market demand figures, instead of the Brooks

and Haynes figures, to gauge the relative desirability of each

of the proposed Alternatives. Accordingly, the ROD adopted

Alternative 11, with its average annual ASQ of 267.2 MMBF/

year. 

10106 NATURAL RES. DEF. COUNCIL v. USFS
The ROD explained: 

Demand. Research scientists at the Pacific Northwest (PNW) Station have recently completed new

projections of demand for timber from the Tongass

National Forest. The new projections include a

medium projection that averages 110 MMBF per

year over the next decade and low and high projections that average 68 and 154 MMBF per year,

respectively, over the same time period. . . . 

The projected demand is for sawlogs suitable for

producing lumber in Southeast Alaska mills. The

ASQ for the Forest Plan and the annual timber sale

program on the Tongass include both sawlogs and

other types of wood. Over the past ten years, about

52 percent of the timber volume harvested on the

Tongass has gone to Southeast Alaska sawmills. If

this ratio continues into the future, the ASQ needed

to satisfy the medium demand projection of demand

would be about 212 MMBF per year. Under the

same assumption, the ASQ needed to satisfy the low

and high projections of demand would be about 130

and 296 MMBF per year respectively. These numbers can be compared with the actual ASQ, which

averages 267 MMBF per year over the next decade.

[5] The Forest Service concedes that it made a mistake in

interpreting the 1997 Brooks and Haynes report, which actually accounted for both sawlogs and other types of wood, and

that its mistake doubled the demand projection scenarios.

Because the Forest Service linked the selected ASQ to the satisfaction of the projected market demand scenarios, the Forest

Service’s explanation “runs counter to the evidence before the

agency.” Sierra Club, 346 F.3d at 961. 

B

The Forest Service argues, and the district court held, that

the market-demand error was harmless because the projecNATURAL RES. DEF. COUNCIL v. USFS 10107
tions were not significant to the Regional Forester’s decision

choice among the Plan Alternatives. We disagree. 

The role of harmless error in the context of agency review

is constrained. Gifford Pinchot, 378 F.3d at 1071. We have

stated that the “doctrine may be employed only when a mistake of the administrative body is one that clearly had no

bearing on the procedure used or the substance of decision

reached.” Id. (internal quotation marks omitted). The Forest

Service bears the burden of demonstrating harmlessness. Id.

[6] The Forest Service has not met its burden. The ROD is

clear: “We will seek to provide a timber supply sufficient to

meet the annual market demand for Tongass National Forest

timber and the market demand for the planning cycle.” We

hold that the market-demand error was not harmless because

the TTRA specifically requires the Forest Service to consider

market demand for Tongass timber, and because the record

shows that the Forest Service did seek to meet the annual

market demand and plan-cycle market demand for timber,

albeit mistakenly. In other words, we hold that the Forest Service’s mistake had some bearing on the substance of the Forest Service’s decision to adopt Alternative 11, with its ASQ

of 267 MMBF/year. 

[7] We have said that a “[p]roper determination of the

ASQ, perhaps more than any other element of forest-wide

planning, is critical in providing ‘long-term direction.’ ”

Resources Ltd., 35 F.3d at 1305. Here, the Forest Service

linked its preferred ASQ to its mistaken view of market

demand, stating that a certain ASQ would be “needed to satisfy” the various market demand projection scenarios, and that

the market demand projections “can be compared with the

actual ASQ, which averages 267 MMBF per year over the

next decade.” 

Common sense, as well as the record, tells us that the Forest Service’s assessment of market demand was important for

10108 NATURAL RES. DEF. COUNCIL v. USFS
its determination through the ASQ of how much timber is

allowed to be cut. Given the competing goals to be accommodated under NFMA, it is clear that trees are not to be cut nor

forests leveled for no purpose. If market demand exists for

timber, the need for timber harvest may outweigh the competing goals for environmental preservation and recreational use.

But if the demand for timber was mistakenly exaggerated, it

follows that the timber harvest goal may have been given precedence over the competing environmental and recreational

goals without justification sufficient to support the agency’s

balancing of these goals. 

The ROD noted that a “key factor” in the decision to adopt

Alternative 11, as “a matter of finding a balance, within a

multiple-use context,” was “not foreclosing options for the

future that changes in public needs, economic conditions, or

new technologies may bring.” Thus, the ROD rejected Alternatives 4 and 5 because they “do not have a timber program

that would be adaptable to changing demands”

21 and preferred

Alternatives 2, 3, 6, 10, and 11 because they “have a timber

program potential (Allowable Sale Quantity) that allows flexibility to respond to changing needs within the timber industry,

as reflected in the most recent demand study (see Final EIS,

Appendix M), and are responsive to communities dependent

upon timber harvesting.” 

[8] The ROD’s reasoning suggests to us that the “changing

needs within the timber industry” are reflected in the low-tohigh market demand scenarios set forth in the Brooks and

Haynes report and incorporated by the Forest Service into the

ROD and EIS. Accordingly, we hold that the Forest Service’s

21In the Plan’s Appendix L, containing public comments and Forest Service responses, the Forest Service expressly rejected suggestions for a

lower ASQ because they would not enable the Forest Service to “meet the

provision in the Tongass Timber Reform Act to seek to supply timber

which meets the annual market demand for timber (consistent with providing for the multiple use and sustained yield of all renewable forest

resources).” 

NATURAL RES. DEF. COUNCIL v. USFS 10109
market-demand error affected the Forest Service’s assessment

of alternatives and its decision to choose Alternative 11. 

The Forest Service argues that the ASQ is a ceiling on

allowable timber sales that is unrelated to market demand projections. Although the ASQ represents a ceiling, the ROD’s

rationale clearly links the ASQ to the projected market

demand. See discussion supra Part III.A.1. Reason and logic

also support this linkage. A ceiling too low to satisfy demand

could compromise one of NFMA’s multiple-use goals (timber

harvest) without justification in this record.22 Likewise, a ceiling higher than needed to satisfy demand, could compromise

another of NFMA’s multiple-use goals (environmental preservation) without justification in this record. Moreover, even if

the Forest Service would have adopted an ASQ greater than

the high market demand scenario to allow flexibility to

respond to changes in market demand,23 it is impossible to tell

how much greater the ASQ would need to be, or to what

extent other alternatives might have been considered in detail,

in relation to the actual market demand. See Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723,

730 (“While we cannot predict what impact the elimination of

the APC contract will have on the Forest Service’s ultimate

22We do not suggest that an ASQ can never be too low to satisfy market

demand, or that the Forest Service must in fact meet demand (as opposed

to seek to meet market demand). Here, however, the record shows that the

Forest Service preferred the ASQ that it believed best balanced NFMA’s

three multiple-use goals: recreation, environmental protection, and timber

harvest. The Forest Service acted arbitrarily because it fundamentally misunderstood one leg of this tripodal balance, believing its scenarios of projected market demand, pertinent to the timber harvest goal, to be double

the actual amount of demand. 

23As it stands in the ROD, the chosen ASQ of 267 MMBF/year lies

between the medium (212) and high (296) market demand scenarios projected by the Forest Service. If this ratio holds, based on the correct market demand projection scenarios, the Forest Service would have had

flexibility to respond to changing demand with an ASQ of 139 MMBF/

year (situated between the actual medium (110) and high (154) market

demand scenarios). 

10110 NATURAL RES. DEF. COUNCIL v. USFS
land use decisions, clearly it affects the range of alternatives

to be considered.”). 

The government Appellees also argue that the TTRA’s

market demand provisions are hortatory and envision “not an

inflexible harvest level, but a balancing of the market, the

law, and other uses, including preservation.” Alaska Wilderness, 67 F.3d at 731. As our precedent indicates, the TTRA

gives flexibility to the Forest Service “to choose among various site-specific plans, provided it follows the procedural

requirements of the applicable statutes.” Id. This does not

mean, as the Appellees argue, that the responsibility reflected

in the TTRA applies only at the project level. To give the

TTRA such a meaning would essentially negate that portion

of the statute that seeks to meet the market demand for Tongass timber “for each planning cycle.” See 16 U.S.C.

§ 539d(a)(2). Moreover, even if hortatory, to satisfy the

TTRA’s earnest admonishment requires the Forest Service to

at least consider market demand and seek to meet market

demand. And this the Forest Service attempted to do, using its

own economists’ projections of the annual and plan-cycle

market demands for Tongass timber for the life of the Plan.

Yet in its attempt, the Forest Service committed a clear error

of judgment, and the Forest Service has not met its burden to

show that its error “clearly had no bearing . . . on the substance of the decision reached.”

24 See Gifford Pinchot, 378

F.3d at 1071. 

24The Forest Service suggests that the TTRA’s qualifying language,

stating that the Forest Service must seek to meet market demand only “to

the extent consistent with providing for the multiple use and sustained

yield of all renewable forest resources,” 16 U.S.C. § 539d(a), means that

its mistake must be harmless because market demand considerations come

into play only after NFMA’s mandatory provisions are satisfied. Here,

however, the Forest Service considered market demand in balancing

NFMA’s multiple-use goals and in assessing the various Alternatives, but

misinterpreted the relevant data. The Forest Service’s error on demand had

a bearing on its analysis, and is not harmless under our precedent. See Gifford Pinchot, 378 F.3d at 1071. 

NATURAL RES. DEF. COUNCIL v. USFS 10111
C

Because the Forest Service’s “explanation [of its market

demand projections] runs counter to the evidence before the

[A]gency,” we hold that the Plan was based in part on a clear

error of judgment. See Sierra Club, 346 F.3d at 961. The Forest Service cannot “state a rational connection between [the

proper market demand projection] found and its decision [to

select an ASQ of 267 MMBF/year].” See Gifford Pinchot,

378 F.3d at 1065. 

[9] Because the law requires a market demand assessment

for the Tongass Land Management Plan, and the Forest Service tried, but failed, to comply properly with this requirement, we hold that the mistaken interpretation of the Brooks

and Haynes projections was not harmless. The Forest Service

has not met its burden of showing that its misinterpretation of

the 1997 Brooks and Haynes report “clearly had no bearing

on the . . . substance of the decision” to choose Alternative 11,

and so we reverse the district court. See id. at 1071 (emphases

omitted).25

IV

We next address the NEPA arguments raised by NRDC

challenging the Forest Service’s EIS. Although the Forest

Service’s market-demand error requires it to make a new

revised forest plan for the Tongass, it does not render moot

our consideration of the NEPA issues presented to us, which

are integrally intertwined with the error of judgment that rendered the Plan arbitrary and capricious. Our assessment of the

NEPA issues presented by NRDC is necessary to ensure that

25Because we reverse the district court and hold the Plan invalid on the

above ground relating to the Forest Service’s error on market demand, we

need not address NRDC’s further argument that the Forest Service’s conclusion that timber goals justified the Plan’s risks to wildlife was arbitrary

and capricious.’ 

10112 NATURAL RES. DEF. COUNCIL v. USFS
the Forest Service prepares a lawful EIS for the new Tongass

Land Management Plan that is required by our decision today.26

Resolution of the NEPA issues raised by this appeal is also

appropriate to clarify the requirements of NEPA that the Forest Service was bound to follow in its prior EIS. Accordingly,

we next consider whether the process used by the Forest Service in adopting the Plan complied with NEPA.27

NEPA requires “that federal agencies carefully weigh environmental considerations and consider potential alternatives

to the proposed action before the government launches any

major federal action.” Lands Council, 395 F.3d at 1026.

NEPA’s procedural requirements require federal agencies to

26Although the law requires an EIS for every federal action that has a

significant impact on the environment, 42 U.S.C. § 4332(2)(c), NEPA’s

procedures do not apply to agency actions that “maintain the environmental status quo.” Kootenai Tribe v. Veneman, 313 F.3d 1094, 1114 (9th Cir.

2002). After the Forest Service discovered the market demand error, it

concluded that a supplemental EIS was not necessary. In 2003, in response

to a court order directing the Forest Service to consider recommending

more wilderness area in the Tongass Plan, the Forest Service issued the

ROD selecting the “No Action” Alternative, which represented the Plan’s

original land allocations. The 2003 ROD did not require an EIS because

it maintained that environmental status quo. Our holdings today make

clear that the Forest Service will need to prepare a new EIS because the

prior EIS did not satisfy NEPA’s requirements. 

27We review de novo a district court’s legal determinations that an

agency complied with NEPA and that the EIS is adequate. See Churchill

County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001), amended by 282

F.3d 1055 (9th Cir. 2002). We review NEPA claims under the APA and

will set aside agency actions that are adopted “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D); Ctr. for Biological Diversity v. United States Forest Serv., 349 F.3d 1157, 1165 (9th Cir. 2003). We

apply a “rule of reason” standard when reviewing the adequacy of an

agency’s EIS, asking “whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Churchill County, 276 F.3d at 1071. Under this standard, we

make “a pragmatic judgment whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation. Id.

NATURAL RES. DEF. COUNCIL v. USFS 10113
“take a ‘hard look’ at environmental consequences.” Id. at

1027 (quoting Earth Island Inst. v. United States Forest Serv.,

351 F.3d 1291, 1300 (9th Cir. 2003)). 

NRDC contends that the EIS is inadequate in three

respects: (1) by inflating the market demand for Tongass timber, the EIS presents misleading information on the economic

effects of the plan; (2) the EIS examines an inadequate range

of alternatives because it fails to examine alternatives that

would maximize preservation of currently roadless areas,

while having an ASQ adequate to meet projected market

demand; and (3) the EIS fails to disclose and consider the

cumulative effects of logging of high-volume old growth forest on non-federal lands. We address these contentions in

turn. 

A

We first consider whether the inflated assessment of market

demand by the Forest Service led it to present misleading

information in the EIS. 

[10] NEPA requires federal agencies to examine the environmental effects of a proposed project and, for those actions

that will significantly affect the environment, to inform the

public in an EIS of the relevant factors that were considered

in the decision-making process. See 42 U.S.C. § 4332(2)(C);

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc.,

462 U.S. 87, 97 (1983). NEPA is a procedural statute; NEPA

does not force an agency to choose the most environmentally

sound alternative, but it does ensure that agency action is

“fully informed and well considered.” Vt. Yankee Nuclear

Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,

558 (1978). 

“Where the information in the initial EIS was so incomplete or misleading that the decisionmaker and the public

could not make an informed comparison of the alternatives,

10114 NATURAL RES. DEF. COUNCIL v. USFS
revision of an EIS may be necessary to provide a reasonable,

good faith, and objective presentation of the subjects required

by NEPA.” Animal Def. Council v. Hodel, 840 F.2d 1432,

1439 (9th Cir. 1988), amended by 867 F.2d 1244 (9th Cir.

1989) (internal quotation marks omitted). NRDC contends

that the economic information in the EIS for the Tongass Plan

was misleading because it was based on mistaken market

demand projections that inflated the economic benefits and

discounted the environmental impacts of the Plan. 

[11] The Fourth Circuit has held that there was a NEPA

violation where an EIS inflated the economic benefits of a

proposed plan. Hughes River Watershed Conservancy v.

Glickman, 81 F.3d 437, 446-48 (4th Cir. 1996). Inaccurate

economic information may defeat the purpose of an EIS by

“impairing the agency’s consideration of the adverse environmental effects” and by “skewing the public’s evaluation” of

the proposed agency action. Id. at 446; see also Nat’l Wildlife

Fed’n v. Nat’l Marine Fisheries Serv., 235 F. Supp. 2d 1143,

1157 (W.D. Wash. 2002) (“An EIS that relies upon misleading economic information may violate NEPA if the errors

subvert NEPA’s purpose of providing decisionmakers and the

public an accurate assessment upon which to evaluate the proposed project.”). 

[12] We hold that here the market-demand error was sufficiently significant that it subverted NEPA’s purpose of providing decision makers and the public with an accurate

assessment of the information relevant to evaluate the Tongass Plan. Throughout the EIS, calculations of the projected

employment effects of the Plan are based on the Forest Service’s mistaken interpretation of the Brooks and Haynes

report. The EIS states that the “approach used by Brooks and

Haynes is representative and is used in this analysis as a baseline projection for use in comparing expected employment

levels under different planning alternatives.” The EIS uses the

mistaken medium demand scenario of 212 MMBF/year to

predict the employment and earnings potential of each considNATURAL RES. DEF. COUNCIL v. USFS 10115
ered alternative. Had the decision makers and public known

of the accurate demand forecast for Tongass timber, and the

concomitant lower employment and earnings potential, the

Forest Service may have selected an alternative with less

adverse environmental impact, in less environmentallysensitive areas. Presenting accurate market demand information was necessary to ensure a well-informed and reasoned

decision, both of which are procedural requirements under

NEPA. See, e.g., Vt. Yankee Nuclear Power Corp., 435 U.S.

at 558. 

The Forest Service argues that because the final EIS was

fully developed and printed before the 1997 Brooks and

Haynes report was received, the EIS analysis was complete

and gave a basis for an informed comparison. We reject the

Forest Service’s argument because it is contrary to the evidence. The updated Brooks and Haynes projection scenarios

were incorporated into the final EIS through an “Errata” that

identified errors and updated the initial “paper version” of the

EIS. The Errata replaces the tables comparing employment

and business earnings predictions used in the paper EIS with

new tables of economic predictions based upon the Forest

Service’s erroneous interpretation of the Brooks and Haynes

report. The Forest Service’s final decision was made after it

relied upon its incorrect market demand assessment. 

The Forest Service also contends that it adequately and correctly considered the updated Brooks and Haynes market

demand report in Appendix M, which the Forest Service

argues reasonably concluded that a supplemental EIS was not

required to address the substantial change in market conditions. This contention, however, is unsupported by the record.

Appendix M discusses the 1997 Brooks and Haynes report,

and gives a correct interpretation of its projected scenarios,

but Appendix M fails to mention or correct the error made in

the economics section of the EIS. Similarly, Appendix M fails

to conduct a new analysis of employment and earnings predictions in light of the updated 1997 Brooks and Haynes

10116 NATURAL RES. DEF. COUNCIL v. USFS
report. Appendix M does not cure the misleading economic

information presented to decision makers and the public in the

EIS. 

Finally, the Forest Service argues that because Appendix M

asserted that “short-term demand information is not significant to the choice of alternatives” the economic information

presented in the EIS was not misleading. The Forest Service

also suggests in Appendix M that the Brooks and Haynes

report was unreliable and insignificant. The Forest Service’s

argument does not persuade us. In the EIS, the Forest Service

refers to the market demand projections in the 1997 Brooks

and Haynes report, which demand was misinterpreted and

doubled by the agency, as “the most reliable and defensible

estimates” because of the report’s methodology.28 The EIS

presented to decision makers and to the public a comparison

of alternatives based on an economic forecast that relies on a

flawed view of the market demand for Tongass timber. Thus,

we conclude that short-term market demand was significant

because the Forest Service presented and relied on the misconstrued demand information to predict the Plan’s economic

effects. 

28The ROD’s reliance on the market demand projections is made more

clear by the Forest Service’s multiple references to the Brooks & Haynes

report in responding to public comments in Appendix L. For example, the

Forest Service responded to criticism of a “[l]ack of ‘genuine’ timber

demand study” by noting the several research projects it had undertaken

and concluding that “[a]fter review of the findings of each of the[ ]

studies, we have elected to utilize the predictions made by Brooks and

Haynes.” 

Indeed, in previous court documents, the Forest Service argued for the

importance of the Brooks and Haynes projection numbers: “A major effort

in [seeking to meet market demand] is the preparation of demand reports

by economists Haynes and Brooks of the Pacific Northwest Forest and

Range Experiment Station.” U.S. Forest Service Opposition to Summary

Judgment in Alaska Forest Ass’n v. U.S. Forest Serv., J99-013-CV (JKS)

(D. Alaska 2000)). 

NATURAL RES. DEF. COUNCIL v. USFS 10117
[13] We conclude that the Forest Service presented misleading economic effects of the Plan significant to its evaluation of alternatives considered by the Plan, and the public was

similarly misled in its opportunity for comment. We hold that

the Forest Service violated NEPA’s procedural requirement to

present complete and accurate information to decision makers

and to the public to allow an informed comparison of the

alternatives considered in the EIS. See Animal Def. Council,

840 F.2d at 1439; see also Hughes River Watershed Conservancy, 81 F.3d at 446. 

B

We next consider whether the alternatives explored by the

Forest Service were inadequate. 

[14] NEPA requires agencies to “rigorously explore and

objectively evaluate all reasonable alternatives” to a proposed

plan of action that has significant environmental effects. 40

C.F.R. § 1502.14(a) (2000). This is “the heart” of an EIS. City

of Carmel-by-the-Sea v. United States Dep’t of Transp., 123

F.3d 1142, 1155 (9th Cir. 1997). “The existence of a viable

but unexamined alternative renders an environmental impact

statement inadequate.” Citizens for a Better Henderson v.

Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985); see also 36

C.F.R. § 219.12(f)(1) (2000) (“Alternatives shall be distributed between the minimum resource potential and the maximum resource potential to reflect to the extent practicable the

full range of major commodity and environmental resource

uses and values that could be produced from the forest.”).

NRDC contends that the Forest Service failed to consider

alternatives that would have a timber program potential sufficient to meet or exceed market demand projections, while

protecting more intact habitat, notably habitat in high-volume

stands of old growth forest. 

Many considerations went into the development and evaluation of each alternative, including the level of wildlife habitat

10118 NATURAL RES. DEF. COUNCIL v. USFS
protection and the level of contribution to the local and

regional economies of southeast Alaska. We have held that

where changed circumstances affect the factors relevant to the

development and evaluation of alternatives, the Forest Service

must account for such change in the alternatives it considers.

See Alaska Wilderness, 67 F.3d at 730-31 (“While we cannot

predict what impact the elimination of the [long-term] contract will have on the Forest Service’s ultimate land use decisions, clearly it affects the range of alternatives to be

considered.”). Here, the Forest Service’s discovery of its error

in interpreting the Brooks and Haynes report affected the economic and wildlife factors that the Forest Service used in

developing and evaluating the alternatives considered in

detail. See discussion supra Parts III.B and IV.A. 

Specifically, the EIS considered ten alternatives with an

ASQ ranging from 0 (Alternative 1, the no logging alternative) to 640 MMBF/year (Alternative 7), and chose Alternative 11, which had an ASQ of 267 MMBF/year. The ASQ for

Alternative 11 lies between the medium and high demand scenarios, as incorrectly interpreted by the Forest Service in the

ROD and EIS. An analogous ASQ based on the correct market demand projection would be around 139 MMBF/year.

Supra note 23. The EIS considered two alternatives (4 and 5)

with an ASQ situated between the actual medium and high

demand scenarios, but rejected both in part because “Alternatives 4 and 5 (in addition to Alternative 1) do not have a timber program that would be adaptable to changing demands or

new technologies and would be more likely to adversely

affect communities whose primary employment comes from

timber harvesting.” 

[15] Because the EIS did not examine the viable alternative

of setting the ASQ equal to any of the three correct market

demand scenarios for Tongass timber, and in light of the

TTRA’s requirement to seek to meet market demand and the

Forest Service’s awareness of its misinterpretation of the

Brooks and Haynes report, we hold that the EIS is inadequate

NATURAL RES. DEF. COUNCIL v. USFS 10119
in its consideration of alternatives, violating NEPA. See

Alaska Wilderness, 67 F.3d at 730-31. 

Equally important, each of the ten alternatives considered

in the EIS allocate some currently roadless areas to LUDs that

allow development. The allocations range from .12 million

acres (Alternative 1) to 6.2 million acres (Alternative 7). If the

no logging alternative (Alternative 1) were excluded, the

range of roadless allocation considered by the alternatives is

2.4 to 6.2 million acres. Alternative 11 allocates 2.4 million

acres of roadless area to development. As a percentage of

total development LUD acreage, no alternative allocates less

than 50% to currently roadless areas. Because the range of

alternatives considered by the EIS omits the viable alternative

of allocating less unspoiled area to development LUDs, we

hold that the EIS is inadequate, in violation of NEPA. See Citizens for a Better Henderson, 768 F.2d at 1057; see also California v. Block, 690 F.2d 753, 767-68 (9th Cir. 1982). 

C

We finally consider whether the EIS properly gauged the

cumulative effects of logging of high-volume old growth forest on non-federal lands. 

[16] NEPA requires an agency to consider the environmental impact that “results from the incremental impact of the

action when added to other past, present and reasonably foreseeable actions regardless of what agency (Federal or nonFederal) or person undertakes such other actions.” Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d

800, 809 (9th Cir. 1999) (per curiam) (quoting 40 C.F.R.

§ 1508.7). An EIS must include a “useful analysis of the

cumulative impacts of past, present and future projects” in

sufficient detail to be “useful to the decisionmaker in deciding

whether, or how, to alter the program to lessen cumulative

impacts.” Id. at 810 (quoting Carmel-by-the-Sea, 123 F.3d at

1160). The Forest Service in the EIS must at a minimum pro10120 NATURAL RES. DEF. COUNCIL v. USFS
vide a “catalog of past projects” and a “discussion of how

those projects (and differences between the projects) have

harmed the environment.” Lands Council, 395 F.3d at 1027.

NRDC contends that the Forest Service failed to disclose the

cumulative impacts of non-federal logging of high-volume

stands on the Tongass. 

High-volume old growth forests have a special economic

value for the timber industry and a special habitat value for

wildlife. According to scientists assembled by the Forest Service to review independently the conservation measures

related to wildlife habitat for the Tongass, high-volume stands

provide a combination of large living and dead trees,

multiple canopy layers, high-nutrient forage on the

forest floor, good protection from snowfall, and

other important features leading to habitat of high

quality for wildlife adapted to Old Growth. At the

same time, these high volume classes have been,

almost exclusively, the target for past logging in

Southeast Alaska. 

The EIS acknowledges that timber harvest “has been concentrated in the higher volume classes.” The EIS also notes

that 5% of the Tongass National Forest (about 1 million acres)

is owned by non-federal entities, and that these lands “have

been heavily developed which cumulatively impacts oldgrowth forest resources.” However, the EIS does not disclose

the effect of continued “highgrading” of Tongass forest.

Moreover, the EIS does not give detail on whether or how to

lessen the cumulative impact of this practice. See Muckleshoot Indian Tribe, 177 F.3d at 810. 

[17] We hold that the EIS fails adequately to consider the

cumulative effects of disproportionate high-volume logging

on non-federal land because “there is no catalog of past projects and no discussion of how those projects (and differences

between the projects) have harmed the environment. . . .

NATURAL RES. DEF. COUNCIL v. USFS 10121
Moreover, there is no discussion of the connection between

individual [non-federal, high-volume] harvests and the prior

environmental harms from those harvests.” See Lands Council, 395 F.3d at 1027. The EIS is also inadequate because it

does not assess the potential impacts of reasonably foreseeable, continued “highgrading” in the future. See Muckleshoot

Indian Tribe, 177 F.3d at 811-12. 

The Forest Service argues that the Plan only establishes

guidance for future actions that may have impacts, and that

those impacts will be studied in conjunction with impacts

from past, present, and future actions on both federal and nonfederal land when those future actions are proposed. However, we held in Resources Limited Inc. v. Robertson, 35 F.3d

1300 (9th Cir. 1993), that “the Forest Service is required to

address cumulative impacts in the EIS,” and “where several

foreseeable similar projects in a geographical region have a

cumulative impact, they should be evaluated in a single EIS.”

Id. at 1305-06. In Thomas v. Peterson, 753 F.2d 754 (9th Cir.

1985), we held that “consideration of cumulative impacts

after [agency action] has already been approved is insufficient

to fulfill the mandate of NEPA. . . . [NEPA’s] purpose

requires that the NEPA process be integrated with agency

planning ‘at the earliest possible time,’ and the purpose cannot be fully served if consideration of the cumulative effects

of successive, interdependent steps is delayed until the first

step has already been taken.” Id. at 760 (quoting 40 C.F.R.

§ 1501.2). 

Here, the record shows that under the Plan, “there is a disproportionate amount of harvesting planned within highvolume low-elevation stands — areas that also provide critical

wildlife habitat and are the most valuable to several species

of concern.” Species are not impacted by the federal or nonfederal character of the lands over which they are distributed,

but the cumulative effect of “highgrading” on each type of

land may determine whether species will retain viable, welldistributed populations in the Tongass. Cf. Resources Ltd., 35

10122 NATURAL RES. DEF. COUNCIL v. USFS
F.3d at 1306 (“[O]ne does not need control over private land

to be able to assess the impact that activities on private land

may have in the Forest.”). At least in the particular circumstances of this case, the cumulative impacts on wildlife viability from continued “highgrading” by non-federal entities, as

well as by the Forest Service to the extent permissible under

NFMA, ought to be considered in a single, programmatic EIS.

See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312-

13 (9th Cir. 1990); see also LaFlamme v. Fed. Energy Regulatory Comm., 852 F.2d 389, 401-02 (9th Cir. 1988) (holding

that a cumulative impacts analysis was insufficient where the

agency had examined single projects in isolation because

there were several foreseeable similar projects in a geographical region that added to the cumulative impacts). A cumulative effects analysis in a programmatic EIS is necessary here

for the Forest Service and public to make a rational evaluation

of this proposed federal action balancing the competing goals

of timber harvest, environmental preservation, and recreational use in the Tongass. 

V

We hold that the Forest Service has not met its burden of

showing that its admitted error in interpreting the market

demand report for Tongass timber was harmless, and we

reverse the district court’s final decision and judgment. The

Forest Service’s reliance on an important mistake in fact seriously impaired the rationality of the Forest Service’s judgment and Plan for the Tongass. The Forest Service’s error in

assessing market demand fatally infected its balance of economic and environmental considerations, rendering the Plan

for the Tongass arbitrary and capricious in violation of the

APA. 

Moreover, the EIS was misleading because it presented as

fact for decision makers and the public twice the market

demand, and economic benefit, attendant to the Plan, violating NEPA. The EIS also did not consider an adequate range

NATURAL RES. DEF. COUNCIL v. USFS 10123
of alternatives, in light of a correct interpretation of data that

the Forest Service had on market demand projections for Tongass timber, again violating NEPA. Finally the Forest Service

in the EIS did not consider the cumulative impacts of past and

reasonably foreseeable future non-federal logging in highvolume old growth forest of the Tongass, in further violation

of NEPA. 

The law of NFMA requires, and the ROD attempted, a balance among the multiple uses of our national forest lands,

including timber harvest and environmental preservation;

because a critical part of this balance was interpreted incorrectly by the Forest Service, the district court incorrectly rendered its final decision and final judgment in favor of the

government Appellees, dismissing NRDC’s claims. 

We keep in place the temporary injunction until a permanent injunction is considered on an appropriate record and is

entered by the district court, reflecting the requirements

imposed by our opinion.29 We REVERSE and REMAND to

29Before a motions panel, NRDC obtained an injunction pending appeal

of one of the seven timber sales at issue in this case because the sale

would “cause irreparable injury” and because NRDC showed a “likelihood

of success on the merits.” Order at 3-4 (filed Oct. 18, 2004). Intervenors

argue that we should lift the current injunction and bar the lower court

from granting any injunctive relief. In light of our decision, we reject this

argument. 

The appropriateness and scope of an injunction “raise intensely factual

issues, and for that reason should be decided in the first instance by the

district court.” Alaska Wilderness, 67 F.3d at 732. Here, the district court

has not yet conducted the relief portion of the case, and so neither NRDC

nor the Forest Service have been able to conduct discovery or submit evidence as to the scope of permanent injunctive relief. Further, NRDC in its

briefing urges that we “should not consider permanent relief at this point.”

Because the record has not been developed in this respect, we retain the

current injunction provisionally and remand to the district court to conduct

such further proceedings as are appropriate, and consistent with this opinion, to address the scope of permanent injunctive relief. 

10124 NATURAL RES. DEF. COUNCIL v. USFS
the district court for further proceedings consistent with this

opinion. 

REVERSED and REMANDED.

NATURAL RES. DEF. COUNCIL v. USFS 10125