F I L E D

United States Court of Appeals

Tenth Circuit

April 6, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UTAH ENVIRONMENTAL

CONGRESS,

Plaintiff-Appellant,

v. No. 05-4102

DALE BOSWORTH, in his official

capacity as Chief of the United States

Forest Service; UNITED STATES

FOREST SERVICE; MARY

ERICKSON, in her official capacity as

Supervisor of the Fishlake National

Forest; and D. FRED HOUSTON, in

his official capacity as Richfield

District Ranger of the Fishlake

National Forest,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:04-CV-643-DAK)

Joel Ban, WildLaw, Salt Lake City, Utah, for Plaintiff-Appellant.

Mark R. Hagg, Attorney, Environment & Natural Resources Division, Department

of Justice, Washington, D.C. (Kelly A. Johnson, Acting Assistant Attorney

General, and Todd S. Aagaard, Attorney, Environment & Natural Resources

Division, Department of Justice, Washington, D.C., and Elise Foster, Of Counsel,

United States Department of Agriculture, Ogden, Utah, with him on the brief), for

Defendants-Appellees.
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Before HENRY , EBEL , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

In 2004, the United States Forest Service approved a 123-acre timberthinning project to treat beetle-infested trees in Utah’s Fishlake National Forest. 

Its approval was made pursuant to a categorical exclusion, a streamlined process

allowing minor projects to be quickly implemented so long as they have no

significant effect on the environment. As a result of this decision, Utah

Environmental Congress (“UEC”) appealed to the district court arguing that the

project violated a number of environmental and regulatory provisions. We agree

with the district court that the Forest Service properly implemented this project

under a categorical exclusion. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Background

A. Statutory and Regulatory Framework

1. National Environmental Policy Act

The National Environmental Policy Act (“NEPA”) requires federal agencies

such as the Forest Service to analyze environmental consequences before
1

 The Council on Environmental Quality is responsible for implementing

NEPA’s planning requirements by promulgating binding regulations. See 42

U.S.C. §§ 4342, 4344(3); 40 C.F.R. §§ 1501–08. Agencies, such as the Forest

Service, comply with the Council’s regulations by adopting supplemental

procedures. 

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initiating actions that potentially affect the environment.1

 In conducting this

analysis, the Forest Service must prepare one of the following: (1) an

environmental impact statement, (2) an environmental assessment, or (3) a

categorical exclusion. An environmental impact statement involves the most

rigorous analysis, and is required if a proposed action will “significantly affect[]

the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R.

§ 1502.4. 

If an agency is uncertain whether the proposed action will significantly

affect the environment, it may prepare a considerably less detailed environmental

assessment. 40 C.F.R. § 1508.9. An environmental assessment provides

“sufficient evidence and analysis” to determine whether a proposed project will

create a significant effect on the environment. Id. If so, the agency must then

develop an environmental impact statement; if not, the environmental assessment

results in a “Finding of No Significant Impact,” and no further agency action is

required. Id.

In certain narrow instances, however, an agency is not required to prepare

either an environmental assessment or an environmental impact statement. This
2

 This number excludes seven categories created by the Secretary of

Agriculture which do not involve physical projects within the National Forest

system but instead involve activities such as budget proposals, educational

programs, and legal counseling. See Forest Service Handbook, Ch. 30, § 31.11. 

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occurs when the proposed action falls within a categorical exclusion, i.e., those

actions predetermined not to “individually or cumulatively have a significant

effect on the human environment.” Id. § 1508.4. The Forest Service has created

a list of 24 such categories.2 See Forest Service Handbook 1909.15

(Environmental Policy and Procedures Handbook), Ch. 30, §§ 31.12, 31.2,

http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsh?1909.15 (last visited March

24, 2006) [hereinafter Forest Service Handbook]. Examples include small

acreage timber-thinning and harvesting, as well as the construction of trails,

utility lines, and meteorological sampling sites. See id.

Federal law limits categorical exclusions in one critical respect: a proposed

action is precluded from categorical exclusion if “extraordinary circumstances”

exist such that “a normally excluded action may have a significant environmental

effect.” 40 C.F.R. § 1508.4. Extraordinary circumstances may exist, for example,

where a proposed action—albeit small in scope—significantly affects inventoried

roadless areas, archaeological sites, flood plains, or federally listed threatened or

endangered species habitat. Forest Service Handbook, Ch. 30, § 30.3.

2. National Forest Management Act
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Under the National Forest Management Act of 1976 (“NFMA”), the Forest

Service must develop a land and resource management plan, commonly known as

a forest plan, for each unit of the National Forest System. 16 U.S.C. § 1604(a),

(e), (g)(3)(B). The Forest Service manages each forest unit at two different

levels: (1) programmatic and (2) project. Colo. Envtl. Coal. v. Dombeck, 185

F.3d 1162, 1167–68 (10th Cir. 1999).

At the programmatic level, the Forest Service creates general, forest-wide

planning goals memorialized in a forest plan. Because the Forest Service must

account for a variety of different interests, each forest plan envisions the forest

will be used for multiple purposes, including “outdoor recreation, range, timber,

watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). At the

same time, the forest plan provides for “diversity of plant and animal

communities based on the suitability and capability of the specific land area.” Id.

§ 1604(g)(3)(B). 

At the project or site-specific level, the Forest Service implements the

forest plan by approving or disapproving particular projects using an

environmental impact statement, an environmental assessment, or a categorical

exclusion. Projects must comply with the applicable forest plan. Silverton

Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th Cir. 2006); see 16

U.S.C. § 1604(i).
3

 A transition period for the 2000 regulations was created in order that the

individual units of the Forest Service would have ample time “to incorporate

regional guide direction into agency procedures or plan decisions,” thereby

“ensur[ing] consistency among national forests and grasslands.” 65 Fed. Reg.

(continued...)

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3. Implementing Regulations

Before a forest plan may be created, NFMA “explicitly requires the

Secretary of Agriculture to issue regulations that set out the process for the

development and revision of land management plans for units of the National

Forest System, and regulations that establish management planning standards and

guidelines . . . .” 47 Fed. Reg. 43,026, 43,037 (Sept. 30, 1982). Of particular

concern in this case are planning rules the Forest Service adopted in 1979 and

revised in 1982, codified at 36 C.F.R. § 219 (1982), which govern Forest Service

management at both the programmatic and project levels. See generally id. In

November 2000, the Forest Service substantially amended these regulations,

known as the 1982 planning rules, replacing them with the 2000 planning rules,

codified at 36 C.F.R. § 219 (2001). 65 Fed. Reg. 67,568 (Nov. 9, 2000).

The 2000 planning rules were not immediately promulgated. Instead, the

new regulations contained transition provisions which provided that, beginning on

November 9, 2000, until the promulgation of the new, final rule, the Forest

Service should consider “the best available science in implementing a forest

plan.”3

 36 C.F.R. § 219.35(a), (d) (2001). These transition provisions remained
3

(...continued)

67,514, 67,527 (Nov. 9, 2000).

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on the books until January 2005 when the new rules were finally implemented. 36

C.F.R. §§ 219.1 to .16 (2005); 70 Fed. Reg. 1,023 (Jan. 5, 2005). The 2005 rules

retained the best available science standard, requiring the “Responsible Official

[to] take into account the best available science” by “document[ing] how the best

available science was taken into account in the planning process,” and evaluating

and disclosing substantial uncertainties and risks in that science. 36 C.F.R. §

219.11(a) (2005) (emphasis added).

B. The Seven Mile Project

The Seven Mile Spruce Beetle Management Project (“Seven Mile Project”

or “Project”) sitting within the 1,424,479 acres of the Fishlake National Forest in

south-central Utah, is located approximately 22 miles east of Richfield, Utah. 

Because it sits within the Fishlake National Forest, the Seven Mile Project is

governed by the Fishlake Forest Plan (“the Forest Plan” or “Plan”). See U.S.

Dep’t of Agric., Forest Service Region 4, Land and Resource Management Plan

for the Fishlake National Forest,

http://www.fs.fed.us/r4/dixie/projects/FParea/LiveDocs/Fishlake.pdf (last visited

March 24, 2006) [hereinafter Forest Plan]. The Project involves a selective

harvest of beetle-infested mature, dead, diseased, or dying Englemann spruce
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timber stands covering approximately 123 acres. By implementing the Project,

the Forest Service plans to prevent an epidemic infestation of spruce beetle from

spreading into adjacent stands and killing the spruce. In so doing, the Forest

Service hopes to protect mature stands, preserve wildlife habitat, and reduce the

risk of wildfire. 

The Forest Service ultimately approved the Seven Mile Project under

categorical exclusion 14 (“Category 14”) in 2004. However, consideration of this

particular project had begun over five years earlier. Beginning in June 1999, the

Seven Mile Project was approved under another timber harvest categorical

exclusion known as Category 4. When a federal district court in Illinois

invalidated Category 4 later that year, Heartwood, Inc. v. U.S. Forest Serv., 73 F.

Supp. 2d 962 (S.D. Ill. 1999), the Forest Service opted to prepare an

environmental assessment for the Seven Mile Project, which was completed in

June 2000. The Regional Forester deemed this environmental assessment

inadequate; consequently, another draft environmental assessment for the Project

was prepared in September 2003. At the same time the Forest Service was

completing this revised environmental assessment, a new set of categorical

exclusions was adopted by the Department of Agriculture, which included

Category 14. 

 Category 14 applies to small acreage timber-thinning projects. 
4

 The district ranger wrote, “This decision supercedes, and is essentially the

same as my former decision with the exception that the 0.75 mile of road

reconstruction will not be implemented as part of this decision.” J.A. 549.

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Specifically, it excludes from NEPA review “commercial and noncommercial

sanitation harvest of trees to control insects or disease not to exceed 250 acres,

requiring no more than 1/2 mile of temporary road construction, including

removal of infested/infected trees and adjacent live uninfested/uninfected trees as

determined necessary to control the spread of insects or disease.” Forest Service

Handbook, Ch. 30, § 31.2(14). 

Finding Category 14 would apply to the Seven Mile Project, the Fishlake

National Forest district ranger issued a Decision Memorandum in May 2004. He

concluded that “[Category 14] is appropriate in this situation because there are no

extraordinary circumstances related to the proposed action.” J.A. 535. The

district ranger replaced the original Decision Memorandum in October 2004 with

a new Memorandum, but left the project largely unmodified.4

 

In sum, the local forest officials found “that the spruce beetle infestation in

the Seven Mile Project area has escalated substantially during the past 8 years . . .

[and] at least 80 percent mortality will occur in non-infested spruce in the absence

of thinning.” Id. at 551. The district manager assured that (1) “three snags per

acre will be retained . . . [as well as] snags containing nest cavities or offering

potential nesting opportunities . . . to provide for [foraging and nesting] for three-
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toed woodpeckers;” (2) although “no sensitive species are known to occur in the

project area, and suitable habitat has not been found,” local forest rangers “will

continue to survey the project area for all sensitive species during pre- and posttreatment activities;” and (3) if any goshawk are discovered during the “ongoing

surveys [] being conducted for the northern goshawk,” the Forest Service will act

appropriately “to conserve this species.” Id. at 550.

C. Decision Below 

Following the Forest Service’s authorization of the Seven Mile Project,

UEC filed suit in district court, alleging the Forest Service’s authorization of the

Seven Mile Project violated NEPA, NFMA, and the Administrative Procedures

Act (“APA”). In April 2005, the district court found in favor of the Forest

Service on all claims. The district court concluded that the Forest Service did not

act arbitrarily in applying Category 14. Furthermore, the court found that the

Forest Service adequately monitored the management indicator species in

accordance with the Fishlake Forest Plan. In reaching these conclusions, the

court held that the 1982 planning rules were not applicable to the Seven Mile

Project and instead applied the 2000 planning rules.

II. Standard of Review

Because neither NEPA nor NFMA provide a private right of action, this

court reviews the Forest Service’s approval of the Seven Mile Project as a final
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agency action under the APA. Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219,

1223 n.3 (10th Cir. 2004) (“UEC I”); Colo. Farm Bureau Fed’n v. U.S. Forest

Serv., 220 F.3d 1171, 1173 (10th Cir. 2000). We consider the district court’s

decision de novo. Am. Wildlands v. Browner, 260 F.3d 1192, 1196 (10th Cir.

2001). However, we will not overturn the agency’s decision unless it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). 

While administrative agencies generally are afforded a presumption of

regularity, an agency’s decision will nonetheless be arbitrary and capricious “if

the agency . . . entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983). Furthermore, we must determine whether

the disputed decision was based on consideration of the relevant factors and

whether there has been a clear error of judgment. Id. Deference to the agency is

especially strong where the challenged decisions involve technical or scientific

matters within the agency’s area of expertise. Marsh v. Or. Natural Res. Council,

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

In reviewing conflicting interpretations of an agency’s statutes and
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regulations, this court grants “substantial deference” to the agency’s interpretation

of its own regulations. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,

1576 (10th Cir. 1994). We may reject the agency’s interpretation only when it is

“unreasonable, plainly erroneous, or inconsistent with the regulation’s plain

meaning.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir. 1993).

III. Analysis

UEC appeals the district court’s approval of the Seven Mile Project raising

three primary allegations of error: (1) the Forest Service acted arbitrarily and

capriciously by failing to consider the cumulative impact of the Seven Mile

Project on fish and wildlife; (2) the district court improperly used the Forest

Service’s 2000 transition provisions, as opposed to the 1982 planning rules, to

evaluate the Seven Mile Project; and (3) the Forest Service failed to collect

adequate data for management indicator species in violation of the Fishlake

National Forest Plan and NEPA. We discuss, and reject, each of UEC’s

contentions in the following sections. 

A. Categorical Exclusion of the Seven Mile Project

We first address UEC’s argument that the Forest Service acted arbitrarily

and capriciously by authorizing the Seven Mile Project pursuant to Category 14’s

exclusion. UEC raises two separate claims: (1) the Seven Mile Project should not

have been categorically excluded because use of an exclusion is appropriate only
5

 UEC also argues that the environmental assessment completed in 2003

violated NEPA because the Forest Service never presented the draft

environmental assessment to the public for comment nor properly finalized it

through issuance of a “Finding of No Significant Impact.” Aple.’s Br. 25–36. 

Both contentions are without merit since the Forest Service ultimately authorized

the Seven Mile Project pursuant to Category 14. By its terms, environmental

assessments are not required for categorically excluded projects unless

extraordinary circumstances are found. The draft environmental assessment about

which UEC complains was prepared prior to the Project’s authorization under

Category 14 and has no relevance here.

6

 “‘Cumulative impact’ is the impact on the environment which results from

the incremental impact of the action when added to other past, present, and

reasonably foreseeable future actions regardless of what agency (Federal or

non-Federal) or person undertakes such other actions. Cumulative impacts can

result from individually minor but collectively significant actions taking place

over a period of time.” 40 C.F.R. § 1508.7 (2005). Cumulative impact is

synonymous with cumulative effects. Id. § 1508.8(b).

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when the Forest Service first conducts a preliminary analysis determining that the

proposed project will have no significant or cumulative effects on the

environment, and (2) the existence of extraordinary circumstances here precludes

categorical exclusion of the Seven Mile Project.5 

1. Cumulative Impact6

UEC’s first claim is that “in order for an agency to determine whether a

project may be categorically excluded, the agency must [definitively] determine,

based on cumulative effects, whether categorical exclusion is appropriate.” 

Aplt.’s Br. 27–28. Specifically, UEC asserts the Seven Mile Project should not

have been categorically excluded because the Forest Service conducted an

inadequate analysis of the Project’s cumulative effects on the forest. UEC points
7

 Management indicator species “are a ‘bellwether’ for other species that

have the same special habitat needs or population characteristics . . . .” Utah

Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1190 (10th Cir. 2006) (internal citation

and quotations omitted). They “serve as a proxy for determining the effects of

management activities on other species.” Id. (internal citation and quotation

omitted). 

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to three specific omissions by the Forest Service, which it contends, demonstrate

the failure to conduct an adequate cumulative impact analysis. The Forest Service

failed to (1) analyze the Project’s effect on management indicator species;7 (2)

create an appropriate cumulative effects boundary encompassing the entire Project

area and areas adjacent to the Project where the Project’s effects could be

perceived; and (3) analyze the Project’s effect on sensitive species located outside

the Project area but nonetheless still within the cumulative effects boundary as

well as analyze the impact of other projects occurring within the cumulative

effects boundary. In addressing this argument, the Forest Service counters that

UEC’s argument would effectively render useless the purpose of categorical

exclusions generally. We agree.

Federal regulations define the term “categorical exclusion” as: 

[A] category of actions which do not individually or cumulatively have

a significant effect on the human environment and which have been

found to have no such effect in procedures adopted by a Federal agency

in implementation of these regulations . . . . Any procedures under this

section shall provide for extraordinary circumstances in which a

normally excluded action may have a significant environmental effect.

 40 C.F.R. § 1508.4 (2003) (emphasis added). By definition, then, a categorical
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exclusion does not create a significant environmental effect; consequently, the

cumulative effects analysis required by an environmental assessment need not be

performed. That assessment has already been conducted as a part of the creation

of the exclusion, which UEC does not challenge in this action.

Because the Seven Mile Project fell within the general confines of Category

14, a point that UEC also does not dispute, the Project was predetermined to have

no significant effect. Under the regulation, only if extraordinary circumstances

were present would the Forest Service need to perform further analysis in the

form of an environmental assessment. See Nat’l Trust for Historic Preservation

v. Dole, 828 F.2d 776, 781 (D.C. Cir. 1987) (noting that “[b]y definition,

[categorical exclusions] are categories of actions that have been predetermined

not to involve significant environmental impacts, and therefore require no further

agency analysis absent extraordinary circumstances”). 

We agree that it may be conceptually possible for a large number of small

projects to collectively create conditions that could significantly effect the

environment. But the regulation itself contains a provision to address that

concern, namely the extraordinary circumstances exception. And the

extraordinary circumstances safety-valve is more than capable of addressing

specific harms allegedly created by specific projects, which we turn to next. 

Accordingly, the Forest Service did not act arbitrarily in failing to conduct
8

 The district court reviewed this issue, finding that the Forest Service had

performed extensive studies of both the Project itself and Category 14 generally. 

To the extent the district court’s analysis addresses cumulative effects unrelated

to the potential for extraordinary circumstances, this analysis was unnecessary. 

Because the Seven Mile Project met the general requirements for Category 14, no

further agency action was required absent extraordinary circumstances.

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any cumulative effects analysis unrelated to the existence of extraordinary

circumstances.8

2. Extraordinary Circumstances

UEC next claims that even if the Forest Service was not required to do a

preliminary cumulative effects analysis, the Forest Service nonetheless exhibited

a clear error in judgment in failing to find extraordinary circumstances. To

determine whether extraordinary circumstances exist, the Forest Service must

consider if the proposed action may have a potentially significant impact on

certain “resource conditions.” Forest Service Handbook, Ch. 30, § 30.3, ¶ 2. The

resource conditions are defined in the Forest Service Handbook as follows:

(a) Federally listed threatened or endangered species or designated critical

habitat, species proposed for federal listing or proposed critical habitat, or

proposed critical habitat, or Forest Service sensitive species.

(b) Floodplains, wetlands, or municipal watersheds.

(c) Congressionally designated areas such as wilderness, wilderness study

areas, or national recreation areas. 

(d) Inventoried roadless areas.

(e) Research natural areas.
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(f) American Indians’ and Alaska Natives’ religious or cultural sites.

(g) Archaeological sites, or historic properties or areas.

Id. 

Here, UEC claims subpart (a) is triggered because the Seven Mile Project

will have “guaranteed effects” on the three-toed woodpecker and the northern

goshawk. Aplt.’s Br. 38. Therefore, UEC argues, the Forest Service was required

to perform an environmental assessment. In particular, UEC claims the Forest

Service, while finding “no impact” on the northern goshawk, conceded in its

Decision Memorandum that the Project “may affect” the three-toed woodpecker. 

In light of the Forest Service’s uncertainty, UEC argues, it should invoke the

extraordinary circumstances exception. The Forest Service, on the other hand,

interprets the applicable regulations to require a significant environmental effect,

not just any effect as asserted by UEC.

The regulatory language guides our analysis. In general, environmental

regulations do not place a heavy burden on federal agencies to detail actions

which will have only insignificant effects on the health of the environment. For

example, “a detailed statement by the responsible official on the environmental

impact of [a] proposed action” is required only for “Federal actions significantly

affecting the quality of the human environment . . . .” 42 U.S.C. § 4332(C)

(emphasis added); see 68 Fed. Reg. 44,598, 44,600 (July 29, 2003) (noting that
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the Forest Service’s “scarce resources” should be concentrated on “major Federal

actions and not expend[ed] . . . analyzing agency actions where experience has

demonstrated the insignificance of effects”) (emphasis added).

The analysis is no different with regard to the Forest Service’s use of

categorical exclusions. As we already discussed, the presence of an extraordinary

circumstance precludes the application of a categorical exclusion. And such a

circumstance exists only where a proposed action “may have a significant

environmental effect.” 40 C.F.R. § 1508.4 (emphasis added); Forest Service

Handbook, Ch. Zero Code, § 05; see 40 C.F.R. § 1508.4 (defining categorical

exclusion as a category of actions that do not “individually or cumulatively have a

significant effect on the human environment”) (emphasis added).

This language plainly requires that an action first may produce a significant

effect before a federal agency engage in further analysis. This is only logical

given the substantial analytical and evidentiary burdens triggered when a project

is ineligible for categorical exclusion. By relying on categorical exclusions, the

Forest Service promotes efficiency in its NEPA review process while avoiding

unnecessary analysis. See Fund for Animals v. Babbitt, 89 F.3d 128, 130 (2d Cir.

1996) (noting that “[t]he [Counsel on Environmental Quality] has authorized the

use of categorical exclusions to promote efficiency in the NEPA review process”).

UEC contends that despite this provision, an effect need not be significant,
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but merely predicted by the Forest Service, to trigger extraordinary circumstances. 

Thus, even a de minimis effect on a threatened species would bar application of

the exclusion. In support of this proposition, it cites two statements from the

Forest Service Handbook. First, the Handbook notes that “[t]he mere presence of

one or more [] resource conditions does not preclude use of a categorical

exclusion; instead, [i]t is the degree of the potential effect of a proposed action on

these resource conditions that determines whether extraordinary circumstances

exist.” Forest Service Handbook, Ch. 30, 

§ 30.3, ¶ 2 (emphasis added). Second, the Handbook requires the Forest Service

to prepare an environmental assessment if, based on its evaluation, “it is

uncertain whether the proposed action may have a significant effect on the

environment.” Id. ¶ 3 (emphasis added); see 40 C.F.R. § 1508.27 (noting that the

term “significantly” as used in NEPA requires consideration of both context and

intensity; one intensity factor considered is “the degree to which the possible

effects on the human environment are highly uncertain or involve unique or

unknown risks.”). 

While it is true that the Handbook refers to the “degree of the potential

effect of a proposed action on a resource condition,” the regulation itself requires

the potential for a “significant environmental effect.” We must interpret the

language found in the Handbook in light of the entire regulation and its
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accompanying policy. See United States v. Shewmaker, 936 F.2d 1124, 1127

(10th Cir. 1991) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285

(1956)) (“In expounding a statute, we must not be guided by a single sentence or

member of a sentence, but look to the provisions of the whole law, and to its

object and policy.”). We must also be careful not to disrupt the plain language of

the regulation itself. See Hartford Underwriters Ins. Co. v. Union Planters Bank,

N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s language is plain, the sole

function of the courts—at least where the disposition required by the text is not

absurd—is to enforce it according to its terms.”) (internal quotation marks

omitted). Considering the purpose of categorical exclusions in light of these

factors and affording the agency’s interpretation substantial deference, we

conclude that an extraordinary circumstance is found only when there exists a

potential for a significant effect on a resource condition. See Citizens’ Comm. to

Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1023 (10th Cir. 2002)

(“When reviewing an agency’s interpretation and application of its categorical

exclusions under the arbitrary and capricious standard, courts are deferential.”). 

 In this light, we review UEC’s contention that the Forest Service erred in

evaluating whether the Seven Mile Project would significantly affect the threetoed woodpecker and the northern goshawk. The Forest Service found that

although the Seven Mile Project will have “no impact” on the northern goshawk,
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it “may affect, but is not likely to result in a trend toward federal listing or loss of

viability for the three-toed woodpecker.” J.A. 535. 

Although UEC argues the Forest Service expressed “uncertainty” with

regard to the two species, the Forest Service decision can hardly be construed to

express such doubt. In evaluating the Seven Mile Project’s effect on the northern

goshawk, the Forest Service relied on helicopter and ground surveys documenting

and confirming the lack of goshawk habitat in the proposed area. Id. at 511, 516. 

Explaining the lack of effect on the three-toed woodpecker, the Forest Service

stated that while “it may impact individuals, individual territories, and cause

displacement within the project area,” the Project “would not contribute to a trend

towards federal listing or a loss of population viability,” id. at 516, since adequate

woodpecker habitat would be preserved throughout the forest, and the Project

would provide some long-term habitat improvements where intermediate

harvesting or under-burning occurred. Id. at 512, 516. 

These conclusions were based on a review of the species and habitat

conducted as a part of the analysis leading to the agency’s Decision

Memorandum, including a biological evaluation of both species. Id. at 509–16. 

Additionally, the species monitoring performed by the Forest Service, although

not consistently conducted on an annual basis, was more than ample to determine

whether extraordinary circumstances existed. See id. at 298–300 (helicopter
9

 We note that additional evidence may have been available to the district

court regarding effects to these species. UEC, however, provided us with a joint

appendix that excerpted only portions of the administrative record. Because many

of UEC’s cites in its brief were to other portions of the administrative record, we

could not verify them and were limited to the record before us. See 10th Cir. R.

10(b)(2) (2006) (“If the appellant intends to urge on appeal that a finding or

conclusion is unsupported by the evidence or is contrary to the evidence, the

appellant must include in the record a transcript of all evidence relevant to that

finding or conclusion.”).

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surveys of goshawk nests for years 1998–2000); id. at 289–97 (surveys for

goshawk for years 1999, 2000, 2002, and 2003); id. at 301–05 (surveys for threetoed woodpeckers for years 1998, 2000, 2002); id. at 386–452 (survey for threetoed woodpeckers for year 2000).9

 

In sum, although the Forest Service found some possible effects, none were

potentially significant. As the Handbook clearly states, “[t]he mere presence of

one or more of these resource conditions does not preclude use of a categorical

exclusion.” Because we afford the Forest Service substantial deference in

interpreting its own regulations and because the agency exhibited no clear error of

judgment in its factual determinations, we find that the Forest Service has not

acted arbitrarily in concluding the Seven Mile Project did not trigger a finding of

extraordinary circumstances. 

Accordingly, the Forest Service did not violate the APA when it

categorically excluded the Seven Mile Project.

B. 1982 and 2000 NFMA Regulations
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We next address UEC’s contention that the district court should have

applied the 1982 planning rules, instead of the 2000 transition provisions, when

reviewing the Forest Service’s compliance with the regulations’ species

monitoring requirements. UEC argues two points: (1) the 2000 transition

provisions were not effective at the time of the Project’s implementation; and (2)

even if the transition provisions were in effect, the Fishlake Forest Plan

incorporates the 1982 regulations for purposes of projects considered in the

Fishlake National Forest. The Forest Service disputes both arguments,

contending the 2000 transition provisions were effective for purposes of the

Project and that the Forest Plan’s species monitoring program is independent of

the 1982 rules. 

Deciding whether the 1982 regulations apply to the Project, either of their

own accord or by virtue of the Forest Plan, is important because the 1982

regulations and the 2000 transition provisions contain key differences governing

species monitoring. The 1982 rules, for example, require the Forest Service to

monitor the “[p]opulation trends of the management indicator species” and

determine “relationships to habitat changes.” 36 C.F.R. § 219.19(a)(6). And we

have held that these obligations apply to “project level as well as plan level

management actions.” UEC I, 372 F.3d at 1225. Conversely, the 2000 transition

provisions contain no such explicit language governing monitoring but merely
-24-

require “the responsible official [to] consider the best available science in

implementing” a forest plan. 36 C.F.R. § 219.35(a), (d) (2001); 65 Fed. Reg.

67,514, 67,579 (Nov. 9, 2000). See generally Utah Envtl. Cong. v. Bosworth, 439

F.3d 1184, 1190 (10th Cir. 2006) (“UEC II”) (quoting Forest Watch v. U.S.

Forest Serv., 410 F.3d 115, 117 (2d Cir. 2005), for the proposition that “the

standards of the 1982 Rules and the 2000 Transitional Rule are–at least–distinct .

. . .”).

1. Implementation of the 2000 Transition Provisions

We begin with UEC’s first argument: the 2000 transition provisions,

although implemented in November 2000, are nonetheless inapplicable to the

Seven Mile Project.

To be sure, courts have expressed considerable confusion in applying the

2000 transition provisions. See 69 Fed. Reg. 58,055, 58,055 (Sept. 29, 2004). 

They have reached varying conclusions regarding the applicability of the

provisions to projects approved during the transition period. See, e.g., UEC II,

439 F.3d at 1189–90, 1195 (applying the 1982 rules because the Forest Service

conceded their applicability; the court noted it did not resolve the question of the

2000 transition provisions’ applicability); Forest Watch, 410 F.3d at 118 (holding

that the “plain language of the 2000 Transitional Rule” requires that “projects

‘implemented’ during the transition period must comply with the best available
-25-

science standard”); Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797,

800 n.3 (9th Cir. 2005) (holding that the applicable NFMA planning regulations

are those in effect at the time “the plan revisions challenged in this lawsuit were

prepared”); Defenders of Wildlife v. Johanns, No. 04-4512, 2005 WL 2620564, at

*7 (N.D. Cal. Oct. 14, 2005) (unpublished opinion) (applying Natural Resources

to conclude that the “2004 Interpretative Rule may continue to be applied in cases

where the challenged action was taken during the 2004 Interpretative Rule’s

effective period”); Clinch Coal. v. Damon, 316 F. Supp. 2d 364, 381 (W.D. Va.

2004) (suggesting the 1982 planning rule would apply to a 2001 decision);

Shawnee Trail Conservancy v. Nicholas, 343 F. Supp. 2d 687, 707 (S.D. Ill. 2004)

(noting that “[o]n November 9, 2000, the Department of Agriculture made

wholesale changes to the relevant regulations, making prior citations obsolete”). 

In an attempt to address this confusion, the Forest Service issued an

interpretative rule on September 29, 2004. Introducing the rule, the Forest

Service explained: 

[I]t is clear that site-specific decisions entered into during the transition

period are not to comply with the substantive provisions of the 2000

planning rule. This interpretative rule clarifies that until a new final

rule is promulgated, the transition provisions of the 2000 planning rule,

as amended by the May 2002 interim final rule remain in effect . . . .

69 Fed. Reg. 58,055, 58,056 (Sept. 29, 2004). The interpretative provision

emphasized that “responsible officials consider the best available science in
10 The relevant language governing the transition is found in 36 C.F.R. 

§ 219.35(a)–(d) (2001):

(a) The transition period begins on November 9, 2000 and ends upon the

completion of the revision process (§ 219.9) for each unit of the National Forest

System. During the transition period, the responsible official must consider the

best available science in implementing and, if appropriate, amending the current

plan.

(b) If, as of November 9, 2000, a plan revision or amendment has been initiated

under the 1982 planning regulations in effect prior to November 9, 2000 (See 36

CFR part 219, revised as of July 1, 2000.) and if a notice of availability of a draft

environmental impact statement or an environmental assessment is published by

May 9, 2001 in the Federal Register, the responsible official may complete the

amendment or revision process under the 1982 regulations or adjust the process to

conform to the provisions of this subpart.

(c) If a review of lands not suited for timber production is required before the

completion of the revision process, the review must take place as described by the

provisions of § 219.28, except as provided in paragraph (b) of this section.

(d) Site-specific decisions made by the responsible official 3 years from

November 9, 2000 and afterward must be in conformance with the provisions of

this subpart.

-26-

implementing national forest land management plans and, as appropriate, plan

amendments.” Id. 

As to the continuing vitality of the 1982 provisions:

[T]he 1982 planning rule may continue to be used only for plan

amendments and revisions upon election of the responsible official.

Appropriate plan amendments and projects proposed during the

transition period should be developed considering the best available

science in accordance with § 219.35 paragraph (a).10

Id. As we explained in UEC II, “the 2000 regulations rendered the 1982 rule

inoperative for project-specific decisions made after November 9, 2000. The
11 In its brief, UEC directed us to our opinion in UEC II for the proposition

that the 1982 rules are applicable. However, the UEC II panel recently granted a

limited rehearing to modify the original opinion. This modified opinion removed

nearly all reference to its earlier rationale for finding the 1982 rules’

applicability. Significantly, the UEC II court continued to find the 1982 rules

applicable, but solely due to the Forest Service’s concession that it elected to

apply the 1982 rules. See UEC II, 439 F.3d at 1189 (stating that “[s]ignificantly,

and thankfully, the Forest Service now concedes on appeal that it has waived any

argument that the 2000 regulations apply”). The panel concluded its opinion,

stating “[w]e do not address whether the agency should apply the 1982 rule or the

2005 rule’s transition provision during further proceedings.” Id. at 1195. 

-27-

interpretative rule stated that, during the transition period between November

2000 and promulgation of a final rule, the Forest Service should use the ‘best

available science’ under § 219.35(a) for project decisions.” UEC II, 439 F.3d at

1189. 

We afford an agency’s interpretation of its own regulations “substantial

deference,” Olenhouse, 42 F.3d at 1576, except in those instances where such

interpretation is “unreasonable, plainly erroneous, or inconsistent with the

regulation’s plain meaning.” Bar MK Ranches, 994 F.2d at 738. We recognize,

of course, that although interpretative rules can inform our decision, they do not

have the force and effect of law in the adjudicatory process. Shalala v. Guernsey

Mem’l Hosp., 514 U.S. 87, 99 (1995). 

In conducting our analysis, then, we are guided primarily by the plain

meaning of the 2000 transition provisions as well as the Forest Service’s

interpretative rule.11 However, before looking at this language, it is important to
-28-

distinguish the terms used to define a forest plan generally from those used to

define specific projects implemented under a forest plan. This distinction is

crucial because the 2000 transition provisions endorse different standards for

forest plans generally and individual projects in particular. Thus, when the Forest

Service employs the term “plan,” as in “plan amendments and revisions,” “plan”

refers to forest plans generally. On the other hand, when the Forest Service uses

the term “project” or “implementing the plan,” the term refers to individual

projects. 

With this distinction in mind, we turn to the text. The transition provisions

mandate that “[d]uring the transition period, the responsible official must consider

the best available science in implementing . . . the current plan.” 36 C.F.R. 

§ 219.35(a) (emphasis added); cf. § 219.35(b) (“If, as of November 9, 2000, a

plan revision or amendment has been initiated under the 1982 planning

regulations . . . the responsible official may complete the amendment or revision

process under the 1982 regulations”) (emphasis added). This language is the sole

direction to the Forest Service regarding project-level actions. Nonetheless, it

leaves little doubt that the Forest Service is limited to consideration of the best

available science when approving a project during the transition period. The

interpretative rule confirms this interpretation, stating in no uncertain terms that

“projects proposed during the transition period should be developed considering
-29-

the best available science.” 69 Fed. Reg. 58,055, 58,056 (Sept. 29, 2004)

(emphasis added). While it is true that interpretative rules are not legally binding

on this court, an agency’s interpretation should be given substantial deference

unless the interpretation is plainly erroneous. Here, the interpretative rule clearly

concludes the 1982 rules are no longer applicable for projects proposed during the

transition period. Thus, any projects proposed during the transition period must

conform with the best available science standard set forth in the 2000 transition

provisions.

While there may be many different interpretations for the term “proposed,”

under any definition we would conclude that the Seven Mile Project was proposed

during the transition period. The district ranger gave his final approval to the

Project in October 2004, well within the transition period. But even if we looked

to the time the Forest Service issued its first Decision Memorandum, that takes us

back only to May 2004. To be sure, initial evaluation of the Project began in

1999. But this initial evaluation is irrelevant to the ultimate discretion exercised

by the Forest Service. The Forest Service’s previous two attempts to create the

Seven Mile Project, first by categorical exclusion and later by environmental

assessment, both unequivocally rejected by the Regional Forester, do not bear on

the 2004 decision. Category 14 was not created until 2003. The Forest Service

did not begin a proposal under Category 14 until April 2004. Because the agency
-30-

action arose from a categorical exclusion not developed until 2003 and because

the transition provisions were clearly in place at that time, the 1982 rules are not

applicable.

As a final matter, the interpretative rule would have constrained the Forest

Service’s conduct in this instance. The interpretative rule was issued on

September 29, 2004. The final authorization of the Seven Mile Project occurred

in October 2004. As the interpretative rule clarifies, “[T]he provisions of the

1982 planning rule may continue to be used only for plan amendments and

revisions upon election of the responsible official. Appropriate plan amendments

and projects proposed during the transition period should be developed

considering the best available science . . . .” 69 Fed. Reg. 58,055, 58,056 (Sept.

29, 2004) (emphasis added); see 70 Fed. Reg. 1023, 1024 (Jan. 5, 2005) (noting

that the 2002 interim rule allowed “Forest Service managers to elect to continue

preparing plan amendments and revisions under the 1982 planning rule”)

(emphasis added). While our court may not be bound by the interpretative rule,

certainly the agency itself is. In this respect, then, beginning on September 29,

2004, the date the interpretative rule was issued, the Forest Service was obligated

to consider the best available science, and not the 1982 rules, in its

implementation of the Seven Mile Project. In other words, the section of the 1982

rules which imposed an obligation on the Forest Service to monitor management
-31-

indicator species over the life of a project, see UEC I, 372 F.3d at 1225, simply

could not have any effect as to those project-level actions taken after the

interpretative rule was issued. 

2. Effect of the Fishlake Forest Plan 

Finally, UEC argues that the Fishlake Forest Plan incorporated the 1982

regulations as its governing provision, as evidenced by the Forest Plan’s detailed

species monitoring requirements. The 1982 regulations, UEC argues, must

therefore be followed even if they have been subsequently repealed or modified. 

We disagree.

No party disputes that the Forest Plan envisions a species monitoring

program for the Fishlake National Forest. It identifies, for example, several

management indicator species and states in its “Implementation” chapter that the

Forest Service will use “Population Trends” for management indicator species

monitoring. However, the Forest Plan does not explicitly require that the Forest

Service comply with the monitoring requirements of the 1982 rules. Nor can such

an obligation be reasonably implied. According to the Fishlake Forest Plan, it

was “developed under implementing regulations of . . . Title 36, Code of Federal

Regulations, Part 219 . . . .” Record of Decision for Fishlake National Forest

Plan, at 1. Yet, an extensive search of the Forest Plan reveals that it does not

explicitly reference or adopt § 219.19 of the 1982 rules, concerning the selection
12 The Fishlake Forest Plan also recognizes that Forest Service regulations

may change. While the Plan generally remains constant, the regulations are fluid. 

“During implementation of this Forest Plan, the Fishlake will be guided by

existing and future laws, regulations, policies, and guidelines. The Forest Plan is

designed to supplement, not replace, direction from these sources.” Forest Plan,

at V-1 (emphasis added).

-32-

and monitoring of management indicator species.12 Therefore, we cannot read the

Forest Plan to adopt the 1982 rules.

That is not to say, however, that the Forest Plan does not include some

requirements related to monitoring. It does. And the Forest Service must comply

with the Fishlake Forest Plan during the transition period. See 16 U.S.C. 

§ 1604(i) (“Resource plans and permits, contracts, and other instruments for the

use and occupancy of National Forest System lands shall be consistent with the

land management plans.”); Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 730

(1998) (opining that before the Forest Service can begin a project, it must “ensure

that the project is consistent with the [applicable] Plan”); see also 36 C.F.R. 

§ 219.14(f) (2005) (“For units with plans . . . in effect prior to November 9, 2000,

the Responsible Official may comply with any obligations relating to management

indicator species by considering data and analysis relating to habitat unless the

plan specifically requires population monitoring or population surveys for the

species.”); 69 Fed. Reg. 58,055, 58,056 (Sept. 29, 2004) (requiring “[p]rojects

implementing land management plans [to] be consistent with the provisions of the

governing plan”). But, it is only those requirements that arise solely from the
13 Although UEC points to UEC II for the proposition that the 1982 rules

apply, there is a principled distinction between the two cases: the instant

appellees never conceded, either in its briefs or during oral argument, that the

1982 rules apply. See UEC II, 439 F.3d at 1189. Nor may UEC I offer support

since the question of the 1982 rules’ applicability was never raised before that

court. See UEC I, 372 F.3d at 1221 n.1 (finding the 1982 regulations applied

since they were “[t]he regulations in effect at the time of the disputed Forest

Service decisions in this case”). 

-33-

Forest Plan, not from the 1982 rules, to which the Forest Service must adhere. 

In sum, the 1982 planning rules are not applicable to the Seven Mile

Project. Instead, the Project is subject to the transition provisions of the 2000

planning rules as interpreted by the Forest Service. Accordingly, in implementing

a project under the Forest Plan, the Forest Service “must consider the best

available science.” 36 C.F.R. § 219.35(a) (2001).13 Since UEC does not argue

that the Forest Service failed to consider the best available science when it

implemented the Seven Mile Project, we find no error in the district court’s order

affirming the agency’s decision.

C. The Fishlake Forest Plan Monitoring Program

Finally, we address UEC’s challenge alleging the Forest Service failed to

comply with the Fishlake Forest Plan because it neither conducted annual

population trend surveys nor collected adequate population trend data for multiple

management indicator species. In essence, UEC argues that the Forest Plan

requires the collection of annual population trend data as a condition precedent to

the approval of the Seven Mile Project.
-34-

Although conceding that individual projects must be consistent with the

applicable forest plan, the Forest Service contends it was not required to monitor

management indicator species as a condition precedent to approval of the Project. 

It justifies this assertion with two separate arguments: (1) a court may only review

a claim of inadequate species monitoring under a forest plan if some relationship

exists between the required monitoring and the challenged project; and (2) the

Fishlake Forest Plan does not require data collection at the project-level. In any

event, the Forest Service argues, the compiled population trend data satisfied the

monitoring obligations under the Plan.

We agree with the Forest Service that monitoring of management indicator

species was not a condition precedent to approval of the Seven Mile Project. In

so holding, we conclude that the Fishlake Forest Plan does not require the

application of its monitoring requirements to a categorically excluded project, and

in any case, the Forest Service conducted MIS monitoring as set forth in the Plan. 

1. Application of a Forest Plan’s Monitoring Requirements to a 

 Categorically Excluded Project

As we have already noted, our jurisdiction in this case arises under the

APA, since neither NEPA nor NFMA provide UEC a private cause of action. 

Under the APA, a case may only be ripe for review if the federal conduct at

question constitutes a final agency action. 5 U.S.C. § 704; Colo. Farm Bureau

Fed’n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th Cir. 2000). 
-35-

Ordinarily, a forest plan’s forest-wide monitoring program is not subject to

judicial review because it does not constitute final agency action. Ecology Ctr.,

Inc. v. U.S. Forest Serv., 192 F.3d 922, 925–26 (9th Cir. 1999); see also Norton v.

S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (holding that Bureau of Land

Management’s failure to implement an off-road vehicle monitoring program was

not a final agency action). In limited circumstances, however, we may review a

monitoring program to the extent it bears on the approval of a particular project. 

See Ecology Ctr., 192 F.3d at 926 n.6 (concluding that plaintiff may “raise claims

pertaining to inadequate monitoring by bringing an APA challenge to a final

decision”); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1067 (9th

Cir. 2002) (“Of course, not all forest-wide practices may be challenged on the

coattails of a site-specific action; there must be a relationship between the

lawfulness of the site-specific action and the practice challenged.”). In other

words, if a project’s approval is conditioned upon the fulfillment of certain

monitoring obligations, a plaintiff may bring a claim of deficient monitoring. 

Without such a relationship, a claim of deficient monitoring simply is not

cognizable. 

UEC has not shown a connection between the monitoring program and the

Seven Mile Project. More fundamentally, no showing has been made that the

applicable Forest Service regulations and directives conditioned approval of the
-36-

Seven Mile Project, a project proposed pursuant to a categorical exclusion, on the

successful monitoring of management indicator species at either a forest-wide or

project level. 

A categorical exclusion, by definition, only covers projects that will have

no significant or cumulative effect on the environment. As such, relatively little

analysis is required of the Forest Service once it determines that a project fits

within the four corners of a categorical exclusion. This is because the Forest

Service previously did the heavy lifting when it created the categorical

exclusion—it conducted an extensive environmental analysis and determined that

any project approved under a categorical exclusion would not produce a

significant or cumulative effect on the environment in the absence of

extraordinary circumstances. See, e.g., Colo. Wild v. U.S. Forest Serv., 435 F.3d

1204, 1210 (10th Cir. 2006) (explaining that the Forest Service performed “onsite, post-implementation assessments of [the sample] projects’ environmental

effects” in order to determine whether the proposed categorical exclusion would

create a significant effect on the environment). Thus, to require monitoring,

documentation, and review of population trend data for species which do not

trigger an extraordinary circumstance would defeat the very purpose of the

categorical exclusion. 

To be sure, the Fishlake Forest Plan in describing the monitoring
-37-

requirements for management indicator species does not explicitly exempt

categorically excluded projects from such monitoring. However, monitoring is

required only where such data is relevant. And pre-implementation monitoring of

management indicator species is relevant only where population trend data is

necessary to evaluate a proposed project’s actual effect on the environment—such

as where (1) a proposed project will create a significant impact on the

environment, thus requiring an environmental impact statement, or (2) a proposed

project’s impact is uncertain, thus requiring an environmental assessment. See

Forest Plan, at V-2 (noting that the monitoring program assists in determining

“whether the effects of implementation are as predicted”). 

In contrast, monitoring is merely cumulative in the case of a categorical

exclusion because the Forest Service has already performed an extensive

environmental analysis of representative projects that fall within the exclusion. 

See Colo. Wild, 435 F.3d at 1210–11 (describing the Forest Service’s

development of Category 14). The only exceptions are those projects where

extraordinary circumstances may be present. Thus, small projects amenable to a

categorical exclusion—small construction projects and low acreage forest

treatment— require monitoring of those species which may trigger an

extraordinary circumstance. 

It finally should be noted the Fishlake Forest Plan itself provides that it is
14 We are careful to distinguish analysis of those species which trigger

application of extraordinary circumstances under a categorical exclusion—an

issue we squarely addressed and resolved in supra Part III.A.2. 

-38-

designed to “supplement, not replace, direction” from “existing and future laws,

regulations, policies, and guidelines.” Id. at V-1. Such is the case here: the

Seven Mile Project was pre-determined to produce no significant effects on the

environment and otherwise determined not to involve any extraordinary

circumstances, therefore being approved pursuant to a categorical exclusion. 

In sum, approval of a project under a categorical exclusion is not only

meant to be analytically simple, but easy to implement. Consequently, neither

Forest Service regulations nor the Forest Plan requires monitoring of management

indicator species as a condition precedent to the approval of a categorically

excluded project.14 Accordingly, the Forest Service had no obligation to conform

with the monitoring program set forth in the Fishlake Forest Plan before it

approved the Seven Mile Project.

2. Population Trend Data

In any event, we hold that the Forest Service collected adequate population

trend data to conclude that the Seven Mile Project could be approved pursuant to

a categorical exclusion. The Forest Plan requires annual population trend

monitoring of management indicator species including, “Bonneville Cutthroat

Trout, threatened plant species, nongame species, and macroinvertebrates.” 
-39-

Forest Plan, at Table V-1. UEC alleges that the Forest Service has not complied

with this provision in several respects, resulting in inadequate data by which to

measure the Project’s effect on fish and bird species. 

a) Aquatic Management Indicator Species

First, UEC argues the Forest Service failed to collect population trend data

for Bonneville Cutthroat Trout, macroinvertebrates, and resident trout (including

brown, brook, cutthroat, rainbow, and lake trout). We disagree. 

Forest-wide trends for these species have been documented. See J.A 504

(Bonneville Cutthroat Trout); id. at 505 (resident trout); id. at 506

(macroinvertebrates); see also Fishlake National Forest Plan Monitoring and

Evaluation Report (Dec. 2003) (population trend data covering 1977–2002). 

Project-level data, however, were not collected because no fish-bearing streams

and lakes exist within the cumulative effects area. See J.A. 510 (“No streams,

lakes, or ponds present within the proposed project area.”). 

b) Avian Management Indicator Species

UEC also asserts that the Forest Service failed to collect annual population

trend data for various avian species, in particular the hairy woodpecker, western

bluebird, Lincoln’s sparrow, song sparrow, Brewer’s sparrow, yellow warbler,

and vesper sparrow. Again, we disagree.

Population trend data for each of these management indicator species,
-40-

sufficient to satisfy the Forest Service’s monitoring obligations under the Plan,

have been detailed in the Life History and Analysis of Endangered, Threatened,

Candidate, Sensitive, and Management Indicator Species of the Fishlake National

Forest (2004) (“Life History Report”) as well as other documentation related to

the Project. While we recognize that the Forest Service did not collect annual

population trend data in every instance, its data was nonetheless ample to support

the district ranger’s decision to approve the Seven Mile Project pursuant to a

categorical exclusion.

Hairy Woodpecker. Forest-wide population trend data is available for the

hairy woodpecker from 1968 to 1998, 2001, and 2002, showing a stable

population which is “likely viable” across the Forest. See J.A. 157–61 (Life

History Report); id. at 203–08 (Cavity Nesting Study); id. at 528–29

(Environmental Assessment). Project-level data from 2001 is available. See id.

at 205–07 (Cavity Nesting Study). 

Western Bluebird. Forest-wide data shows an upward trend in the western

bluebird population, based on data collected from 1968 to 1998, 2001, and 2002. 

See id. at 161–66 (Life History Report); id. at 203–08 (Cavity Nesting Study); id.

at 528–29 (Environmental Assessment). Project-level data from 2001 is

available. See id. at 205–07 (Cavity Nesting Study). 

Lincoln’s Sparrow. Forest-wide data shows an upward trend in the
-41-

Lincoln’s sparrow population, based on data collected from 1968 to 1998, 2001,

and 2002. See id. at 161–66 (Life History Report); id. at 531 (Environmental

Assessment); id. at 250–87 (Riparian Bird Survey). Additionally, district-level

data from 2002 is available. See id. at 251–54, 260, 267–69, 275 (Riparian Bird

Survey). However, project-level data for this species has not been collected

because, although the Lincoln’s sparrow may use the Seven Mile Valley area for

breeding or nesting habitat during the spring and summer, it would not use the

Project area itself. Id. at 531. 

Song Sparrow. Forest-wide data shows a slightly upward trend in the song

sparrow population based on data collected from 1968 to 1998, and 2002. See id.

at 177–81 (Life History Report); id. at 531 (Environmental Assessment); id. at

250–87 (Riparian Bird Survey). Additionally, district-level data from 2002 is

available. See id. at 251–54, 260, 267–69, 275 (Riparian Bird Survey). However,

like the Lincoln’s sparrow, project-level data is not available because the song

sparrow would not use the Project area for breeding and nesting. Id. at 531.

Yellow Warbler. Forest-wide data shows a stable, to slightly upward trend

in the yellow warbler population, based on data collected from 1968 to 1998, and

2002. See id. at 182–86 (Life History Report); id. at 531 (Environmental

Assessment); id. at 250-87 (Riparian Bird Survey). District-level data from 2002

is also available. See id. at 251–54, 260, 267–69, 275 (Riparian Bird Survey). 
-42-

However, like both the Lincoln’s sparrow and the song sparrow, no project-level

data is available because the yellow warbler does not use the Project area for

breeding and nesting. Id. at 531.

Brewer’s Sparrow. Forest-wide data shows an upward trend in the

Brewer’s sparrow population, based on data collected from 1968 to 1998, and

2002. See id. at 187–92 (Life History Report). However, no suitable nesting or

breeding habitat is found within the Project area, and consequently no projectlevel data is available. Id. at 530 (Environmental Assessment). 

Vesper Sparrow. Finally, forest-wide data shows a stable or slightly

upward trend in the vesper sparrow population, based on data collected from 1968

to 1998, and 2002. See id. at 193–97 (Life History Report). However, no suitable

nesting or breeding habitat is found within the Project area, and consequently no

project-level data is available. Id. at 530 (Environmental Assessment). 

* * * 

Accordingly, since the Forest Plan’s monitoring obligations are

inapplicable to projects subject to categorical exclusions such as the Seven Mile

Project, and because, even if applicable, the Forest Service collected adequate

population trend data for approval of a categorically excluded project, UEC has

failed to demonstrate the Forest Service’s approval of the Seven Mile Project is

arbitrary and capricious.
-43-

IV. Conclusion

We AFFIRM the district court’s order finding the Seven Mile Spruce Beetle

Management Project in compliance with the Administrative Procedures Act, the

National Environmental Policy Act, and the National Forest Management Act.