FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIVE ECOSYSTEMS COUNCIL; 

ALLIANCE FOR THE WILD ROCKIES

WILDWEST INSTITUTE,

Plaintiffs -Appellants,

v.

TOM TIDWELL, in his official

capacity as Northern Region

Regional Forester; BRUCE RAMSEY,

in his official capacity as

Supervisor of the BeaverlandDeerlodge National Forest; MARK 

PETRONI, in his official capacity as

District Ranger of the Madison

River Ranger District of the

Beaverhead-Deerlodge National

Forest; UNITED STATES FOREST

SERVICE, an agency of the U.S.

Department of Agriculture,

Defendants-Appellees,

MADISON COUNTY; BEAVERHEAD

COUNTY, MONTANA,

Defendants-intervenors-Appellees, 

3705
SITZ ANGUS RANCH; GARY L. 

CLARK; MOOSE CREEK GRAZING

No. 06-35890 ASSOCIATION; MAX L. ROBINSON,

SR.; MAX J. ROBINSON, JR.; D.C. No.

M  ONTANA STOCKGROWERS CV-04-00127-DWM

ASSOCIATION; MONTANA WOOL OPINION

GROWERS ASSOCIATION,

Intervenors-Appellees. 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Chief District Judge, Presiding

Argued and Submitted

November 19, 2008—Seattle, Washington

Filed March 9, 2010

Before: Alex Kozinski, Chief Judge, Betty B. Fletcher, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson;

Dissent by Chief Judge Kozinski

3706 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
COUNSEL

Thomas J. Woodbury, Missoula, Montana, on behalf of

plaintiff-appellants Native Ecosystems Council, Alliance for

the Wild Rockies, and Wildwest Institute.

Robert H. Oakley, Washington, D.C., on behalf of defendantappellees Tom Tidwell, Bruce Ramsey, Mark Petroni, and the

United States Forest Service.

John E. Bloomquist, Helena, Montana, on behalf of

intervenor-appellees Sitz Angus Ranch, Gary L. Clark,

Moorse Creek Grazing Association, Max L. Robinson Sr.,

Max L. Robinson, Jr., Montana Stockgrowers Association,

and Montana Wool Growers.

OPINION

RAWLINSON, Circuit Judge: 

Plaintiffs-Appellants Native Ecosystems Council, Alliance

for the Wild Rockies, and Wildwest Institute (collectively

NEC) appeal the district court’s summary judgment in favor

of Defendants-Appellees Tom Tidwell, Bruce Ramsey, Mark

Petroni, and the United States Forest Service (collectively

Forest Service); Defendants-Intervenors-Appellees Madison

County and Beaverhead County; and Intervenors-Appellees

Sitz Angus Ranch, Gary L. Clark, Moose Creek Grazing

Association, Max L. Robinson Sr., Max L. Robinson, Jr.,

Montana Stockgrowers Association, and Montana Wool

Growers Association; and (collectively IntervenorsAppellees). NEC argues that the district court erred in finding

3710 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
that Forest Service approval of a project to update grazing

allotments in the Beaverhead-Deerlodge National Forest complies with the Forest Service’s obligation to ensure species

diversity as required under the National Forest Management

Act (NFMA). It also contends that the district court erred in

concluding that the Environmental Assessment undertaken by

the Forest Service project satisfied the National Environmental Policy Act (NEPA). We agree with NEC on both counts.

Because the Forest Service’s environmental assessment was

based on a nonexistent management indicator species (MIS),

its habitat proxy analysis was not reliable. The Forest Service

also failed to take the requisite “hard look” at the project as

required by NEPA. We therefore reverse the district court’s

summary judgment in favor of the Forest Service, and remand

for further proceedings consistent with this opinion.

I. BACKGROUND

A. Project area and Allotment Management Plan

(AMP) Proposal1

The Antelope Basin/Elk Lake project area is in the

Beaverhead-Deerlodge National Forest (BDNF) in Southwest

Montana. The project area is approximately 48,000 acres and

forms the southeast portion of the Gravelly Mountain Range.

Most of the project area is open, mountain sagebrush/

grasslands with some scattered timber along streams. 

1An AMP is “a document, prepared in consultation with lessees or permittees, that applies to livestock operations on public lands, and (1) prescribes the manner and extent to which livestock operations will be

conducted in order to meet multiple use, sustained-yield, economic, and

other needs and objectives, (2) describes range improvements to be

installed and maintained, and (3) contains such other provisions relating

to livestock grazing and other objectives found by the Secretary to be consistent with the provisions of [the Federal Land Policy Management Act].”

Antelope Basin/Elk Lake AMP Updates, Environmental Assessment,

Revised (Environmental Assessment), Chapter 1, p. 2 (December 2002).

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3711
Three Forest Service activities have most affected the sagebrush ecosystem in the project area: 1) herbicide application

to control sagebrush densities;2 2) burning to control sagebrush densities;3

 and 3) livestock grazing. Sheep and cattle

have grazed a majority of the project area over the past century. 

As part of a settlement agreement in an unrelated case, the

Forest Service agreed to a schedule for completing NEPA

environmental analyses and decisions for the authorization of

livestock grazing and associated resource protection measures. The Environmental Assessment at issue in this case

contains the NEPA analysis underlying some of the livestock

allotments listed in the agreed-upon schedule. 

The project area was divided into eleven grazing allotments. The project proposed updating AMPs for these eleven

allotments. The updated allotments would determine “where

livestock can graze, when grazing would occur and what specific guidelines would be established to regulate the intensity

of grazing.” As of the time of the proposal, the prior AMPs

for all eleven allotments were ten years or older.

The proposal specifically identified the goals established in

the BDNF Land Resource Forest Plan (Forest Plan)4 which

governed the proposed project. These goals included maintaining a sufficient number of diverse habitats to support

native wildlife and providing opportunities for grazing by

domestic livestock without compromising extant forest

resources. The proposal also stated that no further “sage brush

control measures” such as burning or herbicides are contemplated in the project area in the near future. 

2From 1960 to 1974, approximately 5865 acres were treated with herbicides. 

3

6,491 acres were burned from 1982-1988, and 6,476 acres from 1992

- 2000. 

4The NFMA requires the Forest Service to develop a forest plan for

each unit of the National Forest System. See 16 U.S.C. § 1604(a). 

3712 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
The Forest Service prepared an initial Environmental

Assessment for the proposed AMPs, and issued a revised

Environmental Assessment after receiving public comments.

The revised Assessment specifically addressed concerns

regarding the project’s impact on sage grouse, as well as other

sagebrush habitat obligates. The Environmental Assessment

considered three options for updating the AMPs: (1) Alternative A, which continued the status quo; (2) Alternative B, the

preferred alternative, which modified the AMPs to protect

riparian habitat while allowing grazing;5 and (3) Alternative

C, which banned grazing altogether. The United States Fish

and Wildlife Service issued a Biological Evaluation concluding that adoption of the preferred alternative was not likely to

adversely affect or jeopardize the continued existence of any

listed species. 

In November, 2003, District Ranger Mark Petroni released

a Decision Notice and Finding of No Significant Impact (DN/

FONSI) reflecting the administrative decision to proceed with

Alternative B. The DN/FONSI concluded that the project was

not a major federal action with significant effect on the quality of the human environment, and therefore no Environmental Impact Statement (EIS) was warranted under NEPA.

5Alternative B proposed revising the AMPs in numerous ways: reducing

animal unit months from 11,225 to 10,453; eliminating the Elk Mountain

allotment; changing boundaries to create a new, Two Drinks allotment;

excluding livestock from a portion of Elk Lake and all of Elk Springs

Creek; limiting allowable upland forage utilization to fifty percent; limiting riparian forage to fifty-five percent; possibly eliminating livestock

from the upper regions of Narrows Creek; and constructing structural

improvements as needed. The proposal included construction of 6.75

miles of new fence, a new reservoir, 26 new water troughs, 5.75 miles of

new pipeline, and relocating 5 miles and removing 2 miles of existing

fence. For all allotments, livestock would be moved to the next pasture or

removed from the allotment once certain utilization thresholds were met.

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3713
B. The Sage Grouse

To facilitate its goals of wildlife diversity, the governing

Forest Plan designates certain wildlife as “management indicator species” (MIS). These species are monitored to measure

the effect of various activities on corresponding wildlife habitats. The objective of monitoring the MIS is to ensure the viability of wildlife species existing in the forest. The sage

grouse is one such MIS for the sagebrush wildlife habitat. 

The sage grouse is entirely dependent on sagebrush ecosystems. The sage grouse population in southwestern Montana has trended downward for the past decade. There are no

identified active sage grouse leks in the project area.6 The

closest known active lek is approximately eleven miles west

of the project area. See A Review of USFS Management Activities and Their Relationship to Sage grouse in the Antelope

Basin/Elk Lake Area of Southwestern Montana, J.W. Connelly (September, 2004) (hereinafter, “Connelly Review”). In

the past fifteen years, only two possible sage grouse sightings

have been noted in the project area. 

Approximately 21,000 acres (40% of the project area) are

considered to have potential sage grouse habitat. Only 1,900

acres are considered to have potential sage grouse nesting and

early brood rearing habitat. 

C. Supplemental Information Report

In December 2004, the Forest Service issued a Supplemental Information Report (“SIR”) concerning the sage grouse,

6A lek is a “breeding display site[ ], typically occurr[ing] in open areas

surrounded by sagebrush. Male sage grouse apparently construct leks “opportunistically at sites within or adjacent to potential nesting habitat.”

Guidelines to Manage Sage grouse Populations and Their Habitats, John

W. Connelly, Michael A. Schroeder, Alan R. Sands and Clait E. Braun,

Wildlife Society Bulletin, Vol. 28, p. 970 (2000) (hereinafter, “Connelly

Guidelines”). 

3714 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
and specifically discussed information that had been released

after the Environmental Assessment. The SIR evaluated the

findings of three primary works as they related to the proposed project: (1) Conservation Assessment of Greater Sage

grouse and Sagebrush Habitats, J.W. Connelly, S.T. Knick,

M.A. Schroeder and S.J. Stiver, Western Association of Fish

and Wildlife Agencies (June, 2004) (hereinafter, “Conservation Assessment”); (2) Management Plan and Conservation

Strategies for Sage grouse in Montana - Final Draft Plan,

Montana Sage grouse Work Group (March, 2004); and (3)

habitat modeling completed in 2004 by the Forest Service surveying active and inactive sage grouse leks in the vicinity of

the project area. 

To inform its analysis, the Forest Service requested that

Connelly undertake a site-specific review of the project area

in light of the new information concerning the sage grouse.

Connelly’s findings were documented in the September, 2004

Connelly Review. The review concluded that the Environmental Assessment’s conclusions were “reasonable and supported

by the available evidence. Effects to sage grouse resulting

from project implementation will likely be minimal.” 

After considering the newly available information and the

Connelly Review, the District Ranger determined that the

Environmental Assessment’s conclusions remained accurate.

The SIR retained the determination of minimal effects to sage

grouse from project implementation, and did not recognize a

need to further revise the Environmental Assessment or prepare an EIS. 

D. Procedural Background

NEC filed an administrative appeal of the District Ranger’s

decision that no EIS was warranted. Then-Regional Forester,

Abigail Kimbell, upheld the District Ranger’s decision. 

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3715
After NEC filed a complaint in district court seeking

declaratory and injunctive relief, each party moved for summary judgment. The district court granted summary judgment

to the Forest Service and the Intervenors. NEC filed a timely

appeal, invoking our jurisdiction under 21 U.S.C. § 1291.7

II. STANDARDS OF REVIEW

“We review de novo the district court’s grant of summary

judgment.” Lands Council v. Martin, 529 F.3d 1219, 1225

(9th Cir. 2008) (citation omitted). We review agency decisions for compliance with the NFMA and NEPA under the

Administrative Procedure Act (APA). See Envtl. Prot. Info.

Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1008 (9th Cir. 2006).

The APA directs us to “hold unlawful and set aside agency

action, findings, and conclusions found to be . . . arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review under the

arbitrary and capricious standard is narrow and we do not substitute our judgment for that of the agency.” Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870, 875 (9th Cir. 2009)

(citation, alterations and internal quotation marks omitted).

“The [agency] has an obligation, however, to state a rational

connection between the facts found and the decision made.”

Id. (citation and internal quotation marks omitted).

III. DISCUSSION

A. Compliance with the NFMA

[1] “The NFMA sets forth the statutory framework and

7On appeal, NEC does not challenge the district court’s conclusion that

it failed to exhaust its administrative remedies with respect to its arguments regarding the northern goshawk, flammulated owl, grayling, lake

trout, and boreal toad. Nor does NEC renew its claims under the Clean

Water Act. Accordingly, we consider these arguments waived. See Eng v.

Cooley, 552 F.3d 1062, 1072 (9th Cir. 2009). 

3716 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
specifies the procedural and substantive requirements under

which the Forest Service is to manage National Forest System

lands.” Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir.

2008) (en banc). Procedurally, “all management activities

undertaken by the Forest Service must comply with the forest

plan, which in turn must comply with the [NFMA].” Idaho

Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th

Cir. 2002). Substantively, the NFMA also places a duty on the

Forest Service to “provide for diversity of plant and animal

communities based on the suitability and capability of the

specific land area . . . ” 16 U.S.C. § 1604(g)(3)(B). “In order

to ensure compliance with the forest plan and the [NFMA],

the Forest Service must conduct an analysis of each ‘site specific’ action, such as a timber sale, to ensure that the action

is consistent with the forest plan.” Idaho Sporting, 305 F.3d

at 962 (citation omitted). 

[2] Regulations implementing the statute, in effect at the

time the Forest Service issued its final decision, required the

Forest Service to manage fish and wildlife habitat “to maintain viable populations of existing . . . species.” 36 C.F.R.

§ 219.19 (2000). To ensure population viability and monitor

the effects of management, the regulations mandated the identification and selection of a management indicator species

(MIS). See id. at 219.19(a)(1). The regulations also provided

that “[p]opulation trends of the management indicator species

will be monitored and relationships to habitat changes determined . . . ” Id. at 219.19(a)(6).8

The Forest Plan incorporated specific species diversity

maintenance goals, explaining that:

8This regulation is no longer in effect, as “new regulations have eliminated the MIS concept . . . ” Envtl. Prot. Info. Ctr., 451 F.3d at 1017 n.8;

see also 36 C.F.R. § 219.16 (2008). However, the Forest Service is “required to comply with the regulations and forest plan in place at the time

of its decision.” Envtl. Prot. Info. Ctr., 451 F.3d at 1017 n.8. 

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3717
Maintenance and enhancement of wildlife habitat

has high priority in the management of the Forest.

Viable populations of all existing wildlife species

will be maintained by providing a diversity of habitats throughout the Forest. Wildlife indicator species

have been identified and will be monitored to ensure

that assumptions concerning the effects of management activities on wildlife habitat and populations

are appropriate.

United States Forest Service, Forest Plan, Beaverhead

National Forest (Forest Plan), 1986, p. II-3. The Forest Plan

designated the sage grouse as the MIS for sagebrush communities. The Forest Plan contemplated monitoring the sage

grouse as an indicator species “to measure the effect of management activities on representative wildlife habitats with the

objective of ensuring that viable populations of existing native

and desirable non-native vertebrate species are maintained.”

Id. 

[3] Despite its designation as an MIS, the sage grouse is

virtually non-existent in the project area. Because actual sage

grouse population data is unavailable, the Environmental

Assessment looked to the sagebrush habitat to assess viability

for the sagebrush obligate species. This is known as the

“proxy-on-proxy” approach, whereby the Forest Service

“use[s] habitat as a proxy to measure a species’ population,

and then [ ] use[s] that species’ population as a proxy for the

population of other species.” McNair, 537 F.3d at 997 n.10.

[4] The proxy-on-proxy approach effectively allows the

Forest Service “to avoid studying the population trends of the

Indicator Species by using Indicator Species habitat as a

proxy for Indicator species population trends.” Lands Council

v. Powell, 395 F.3d 1019, 1036 (9th Cir. 2005), as amended.

Use of this approach however, is appropriate “only where

both the Forest Service’s knowledge of what quality and

quantity of habitat is necessary to support the species and the

3718 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
Forest Service’s method for measuring the existing amount of

that habitat are reasonably reliable and accurate.” Native Ecosystems Council v. United States Forest Service, 428 F.3d

1233, 1250 (9th Cir. 2005). Underlying the proxy-on-proxy

approach is the “assum[ption] that maintaining the acreage of

habitat necessary for survival would in fact assure a species’

survival.” Envtl. Prot. Info. Ctr., 451 F.3d at 1017 (citation

and internal quotation marks omitted). Thus, “[t]he test for

whether the habitat proxy is permissible . . . is whether it reasonably ensures that the proxy results mirror reality.” Gifford

Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059, 1066 (9th Cir. 2004) (citations and internal quotation marks omitted).

[5] The proxy-on-proxy approach’s reliability is questionable where the MIS is absent from the project area.9

 Regardless of whether the Forest Service’s methodology comports

with established scientific standards, the habitat proxy “does

not reasonably ensure viable populations of the species at

issue,” when almost no sage grouse have been seen in the

project area for fifteen years. Idaho Sporting, 305 F.3d at 972.

There is simply no basis to evaluate the Forest Service’s

assertion that the sagebrush habitat is sufficient to sustain viable sage grouse populations when sage grouse cannot be

found in the project area. Therefore, the Forest Service cannot

reasonably argue that the proxy-on-proxy approach allows it

to avoid separately monitoring sage grouse population trends,

as sage grouse are its chosen MIS. See Powell, 395 F.3d at

9We have recognized that “monitoring difficulties do not render a

habitat-based analysis unreasonable, so long as the analysis uses all the

scientific data currently available.” McNair, 537 F.3d at 998 (citation

omitted). Here, however, the government does not cite any “monitoring

difficulties” that prevent detection of the sage grouse. Cf., id. (noting that

although surveys did not locate any animal, the Forest Service’s method

for detecting the bird may have been flawed). In this case, the Forest Service resorted to a habitat analysis, not because monitoring the sage grouse

was difficult, but because there were admittedly no sage grouse in the

project area to monitor. 

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3719
1036 (noting that the proxy-on-proxy result is aimed at establishing “species population trends”) (emphasis added). This is

especially true where, as here, the forest plan requires monitoring of the MIS. See Earth Island Institute v. USFS, 442

F.3d 1147, 1175-76 (9th Cir. 2006) (rejecting the use of habitat monitoring where the forest plan required population monitoring), abrogated on other grounds by Winter v. Natural

Res. Def. Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 375

(2008). 

We do not share our dissenting colleague’s perception that

the Forest Service can meet its obligations to the environment

by naming a virtually non-existent species to serve as a proxy

for critical habitat in the targeted area. Far from usurping the

agency’s role, our opinion holds the agency to its statutory

responsibility to fully study the effects of the planned agency

action, and “to maintain viable populations of existing . . .

species.” 36 C.F.R. § 219.19 (emphasis added). It is unfathomable how the Forest Service could meet its responsibility

to maintain existing species by selecting as a proxy a species

that is virtually non-existent in the targeted area. A “report of

two sage grouse being taken illegally from the project area [of

48,000 acres] in 2002,” see Dissenting Opinion, p. 3730, just

doesn’t cut it. 

Our colleague in dissent also criticizes this result as undermining the Forest Service’s ability to develop one integrated

plan for each unit of the National Forest System. See Dissenting Opinion, pp. 3731-32. The law does not support this contention. The Forest Service is bound to assess proposed

actions on a “site specific” basis for compliance with the Forest Plan and NFMA. See 18 U.S.C. § 1604(i); see also Inland

Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754,

757 (9th Cir. 1996) (explaining that both the Forest Plan and

site-specific project stages must fully comply with the

NFMA); Or. Natural Desert Ass’n v. U.S. Forest Serv., 465

F.3d 977, 980 (9th Cir. 2006) (explaining that AMPs are plans

for specific allotments). If the Forest Service decided to select

3720 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
a project site consisting of the head ranger’s backyard, see

Dissenting Opinion, p. 3732, it must indeed analyze that particular site to determine the effects of the proposed action. If

the MIS were absent from that site, it is difficult to see how

an assessment of the MIS could demonstrate that the proposed

action at that site complied with either the NFMA or a Forest

Plan based on monitoring of the MIS. 

Indeed, the record strongly suggests that the Forest Service’s methodology in applying the proxy-on-proxy approach

is flawed. In preparing its Biological Evaluation, the Forest

Service expressly relied on the Connelly Guidelines in determining whether sage grouse habitat was sufficient. However,

at least some of these guidelines assume the presence of birds

as indicators of habitat health. See Connelly Guidelines, pp.

975-76. The Connolly Guidelines specifically note that “quantitative data from population and habitat monitoring are necessary to implement the guidelines correctly.” Id. at p. 975

(emphasis added). Moreover, in the Conservation Assessment,

p. 4-15, generated after the Connelly Guidelines, Connelly

and his co-authors recognized that “populations of sagegrouse have been extirpated at places throughout their former

range concomitant with habitat loss and degradation, so that

the species’ current distribution is less closely aligned with

that of sagebrush.” (citation omitted). Thus, the very guidelines used by the Forest Service militate against the Forest

Service’s assertion that evaluation of the sagebrush habitat in

the complete absence of a sage grouse population meets its

obligation under the NFMA to ensure population viability of

the sage grouse and other sagebrush obligates. 

In response to the argument that population monitoring is

essential to a proper analysis of the project under the NFMA,

the Forest Service repeatedly argues that population monitoring is outside the scope of the project, which is meant solely

to consider updating grazing allotment protocols. However, to

meet NFMA requirements, the Forest Service needed to consider and preserve the project species. As the Conservation

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3721
Assessment, p. 1-3, noted, “land-use perspectives have goals

to maximize a particular function that may have objectives

competing with other resource use. For example, evaluation

of sagebrush communities primarily based on their ability to

provide forage for livestock may result in extensive alterations that are unsuitable for greater sage grouse and other

species dependent on sagebrush habitats.” (citations omitted).

[6] Because the habitat proxy failed to track the MIS population, the proxy-on-proxy approach was unreliable in ensuring overall diversity in this case. In applying the proxy-onproxy approach to evaluate whether the project complied with

the Forest Service’s duty to ensure wildlife diversity, the Forest Service did not adequately consider evidence that, despite

the Forest Service’s asserted compliance with the Connelly

Guidelines, the sage grouse population continued to trend

downward over several decades. This omission on the part of

the Forest Service would suggest that the agency has “failed

to consider an important aspect of the problem,” or has

offered an explanation for its decision that runs counter to the

evidence in the record, and its decision is therefore arbitrary

and capricious. Motor Vehicle Mfrs. Assn., Inc. v. State Farm

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

[7] The record further suggests that in addition to failing to

monitor and incorporate sage grouse population data in its

analysis, the Forest Service failed to adhere to the Connelly

Guidelines in assessing the sagebrush habitat. In conducting

its environmental analysis, the Forest Service failed to identify the nesting habitat in the project area later noted by Connelly and addressed in the Connelly Review. The

Environmental Assessment stated that there are no known

nesting grounds in the project area, noting that “[n]esting conditions . . . are not met within the project area during the sage

grouse nesting season (May to mid-June).” The Forest Service

concluded that the absence of nesting habitat “appears to be

limited by growing conditions and plant physiology, not by

past years’ cattle grazing . . .” The Forest Service ostensibly

3722 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
relied upon the Connelly Guidelines in reaching this conclusion. However, Connelly concluded that there were at least

1900 acres of nesting habitat in the project area. See Connelly

Review pp. 11-12. Indeed, Connelly specifically stated that

this area has “relatively high canopy coverage of grasses and

forbs with adequate height for nesting habitat.” Connelly

Review p. 12. “In short,” he concluded, “the area seems to

have all the characteristics associated with productive sage

grouse breeding habitat.” Id. (citing the Connelly Guidelines).

[8] The discrepancy between the Forest Service’s conclusions and Connelly’s conclusions, where both ostensibly

applied the Connelly Guidelines, strongly suggests that the

Forest Service’s method of measuring the sagebrush habitat is

neither reasonably reliable nor accurate. See Native Ecosystems, 428 F.3d at 1250. This flaw in the Forest Service’s

methodology further undermines the reliability of the Forest

Service’s use of the proxy-on-proxy approach. See Powell,

395 F.3d at 1036 (holding that the proxy-on-proxy approach

failed to comply with NFMA where habitat analysis was

flawed). 

The Forest Service’s analysis of the 1900 acres of breeding

habitat also contradicted Connelly’s view of whether cattle

grazing would interfere with the sage grouse breeding period.

The AMPs would allow cattle grazing in the area as soon as

June 1. The Forest Service noted in the Environmental

Assessment that the nesting season usually takes place from

May to mid-June. In the SIR, the Forest Service concluded

that the grazing season was compatible with sage grouse

breeding, because cattle generally did not graze in that region

until late June.10 However, the Connelly Review referenced

scientific studies suggesting that “[t]he hatching period for

most sage grouse populations generally occurs from mid-May

10The SIR also inaccurately described the nesting season as occurring

in April and May, contrary to the statement in the Environmental Assessment. 

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3723
until early June.” Connelly Review, p. 4 (emphasis added).

Connelly stated that “there is some evidence that grouse using

high elevation area may not begin nesting until mid-May.” Id.

(emphasis added) (citation omitted). Connelly cited evidence

that “5 of 6 nesting hens (83%) initiated nesting between 10

May and 17 June in the Sawtooth Valley of central Idaho,” an

area with a similar elevation range as the project area. Id.

(citation omitted). He noted that yet another scientist “also

reported that sage grouse may nest well into June . . . ” Id.

(citation omitted). 

Our colleague in dissent does not deny that inconsistencies

exist between the Forest Service’s analysis and Dr. Connelly’s conclusions. Instead, the dissent takes refuge in Dr. Connelly’s fuzzy assurance that the contemplated actions “are

generally consistent with the current sage-grouse management

guidelines.” Dissenting Opinion, p. 3733 (quoting Connelly

Review). However, that general observation in no way erases

the specific discrepancies between Dr. Connelly’s studies and

the Forest Service’s analysis. 

[9] In sum, under the facts of this case, where the MIS

population has consistently declined and has not appeared in

the Project Area in nearly two decades, and where the agency’s analysis conflicted with that of the scientific experts, the

Forest Service’s use of the proxy-on-proxy approach to ensure

viability of sagebrush obligates did not comply with the dictates of the NFMA to monitor population trends of the sage

grouse as the selected MIS. See Earth Island Institute, 442

F.3d at 1175-76. The District Ranger’s determination that the

project would have minimal effects on the sage grouse was

not derived from a reliable methodology. See id. at 1176

(holding that the Forest Service acted arbitrarily and capriciously by relying on inadequate habitat monitoring of the

MIS). Accordingly, we reverse the district court’s grant of

summary judgment in favor of Defendants on the Plaintiffs’

NFMA claim. 

3724 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
B. Compliance with NEPA

[10] “In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results.” Neighbors of Cuddy

Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002)

(citation omitted). “NEPA requires a federal agency ‘to the

fullest extent possible,’ to prepare ‘a detailed statement on the

environmental impact’ of ‘major Federal actions significantly

affecting the quality of the human environment.’ ” Ctr. for

Biological Diversity v. Nat’l Highway Traffic Safety Admin.,

538 F.3d 1172, 1185 (9th Cir. 2008) (citations and alteration

omitted). 

As a preliminary step, an agency may prepare an environmental assessment “in order to determine whether a proposed

action may significantly affect the environment . . . ” Id. (citation, alteration and internal quotation marks omitted). “If the

agency concludes in the [environmental assessment] that there

is no significant effect from the proposed project, the federal

agency may issue a finding of no significant impact

(‘FONSI’) in lieu of preparing an EIS.” Native Ecosystems

Council, 428 F.3d at 1239 (citations omitted). “If an agency

decides not to prepare an EIS, it must supply a convincing

statement of reasons to explain why a project’s impacts are

insignificant. The statement of reasons is crucial to determining whether the agency took a hard look at the potential environmental impact of a project.” Center for Biological

Diversity, 538 F.3d at 1220 (citations and internal quotation

marks omitted). 

[11] As discussed above, the Forest Service’s use of the

nonexistent sage grouse as an MIS to assess the project’s

impact on all sagebrush species’ diversity was flawed. As a

result, its overall study of the sage grouse habitat throughout

the Environmental Assessment was similarly deficient. Just as

the methodology applied by the Forest Service to measure

habitat conditions did not meet the NFMA requirements, its

flawed methodology in the complete absence of a sage grouse

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3725
population does not constitute the requisite “hard look” mandated by NEPA. See Native Ecosystems Council v. USFS, 418

F.3d 953, 964-65 (9th Cir. 2005) (recognizing that the Forest

Service’s reliance on incorrect assumptions and/or data violated NFMA and did not meet the agency’s obligation to take

a “hard look” under NEPA). 

We cannot say that the results of the Environmental

Assessment would have differed if an appropriate MIS for

sagebrush obligates had been selected. In the absence of that

analysis, we reverse and remand for the Forest Service to

undertake a new or revised Environmental Assessment. See

Earth Island Institute, 442 F.3d at 1153 (reversing and

remanding due to defects in the Forest Service analysis). 

Finally, we note that the Forest Service’s decision not to

supplement the Environmental Assessment following the

Connelly Review’s discussion of the 1900 acres of nesting

habitat fails to comply with the agency’s obligations to supplement an environmental assessment when “[t]here are significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or

its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii); see Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 560 (9th Cir.

2006). 

The Forest Service’s justifications for its decision not to

further revise the Environmental Assessment are unpersuasive. Although the Forest Service suggests that it made no

“estimate of the amount of breeding/nesting habitat in the

allotments[,]” the record clearly reflects otherwise. The Forest

Service in fact analyzed the impact of the project on late

brood-rearing habitat. This approach was taken precisely

because the sagebrush habitat in the project area was “not

considered to be nesting habitat.” However, Connelly’s

assessment of the project specified that the “[p]roposed management will likely have little effect on this habitat unless

offtake results in average herbaceous height <18 cm in mid to

3726 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
late June . . . ” Connelly Assessment p. 13. The Environmental

Assessment, predicated on the assumption that no nesting

habitat existed in the project area, did not address anticipated

offtake results under the project at all. Nor did the SIR discuss

the potential effect of grazing on nesting habitat. 

The Forest Service’s efforts to minimize the importance of

the potential nesting habitat further emphasizes the shortcomings of the Environmental Assessment. The Forest Service

suggests that the 1900 acres identified by Connelly as potential breeding habitat is less reliable because Connelly “made

this identification on the basis of the quality of the vegetation,

not on any documented breeding in this area.” However, this

argument undermines the Forest Service’s overarching position that reliance on habitat alone is sufficient to predict sage

grouse viability. Moreover, it highlights the fact that the new

information regarding potential nesting habitat directly contradicts the Environmental Assessment, which concluded

without explanation that nesting habitat is unavailable

because of the nature of the vegetation (and not as a result of

grazing). 

Ultimately, the Forest Service attempts to avoid preparing

a supplemental environmental assessment by suggesting that

weather presents an immediate bar to the use of the identified

habitat for nesting. However, the scientists who identified this

habitat considered weather patterns. For example, Connelly

noted that late brood-rearing habitats “are generally used from

July to early September but vary annually due to annual

weather conditions.” And Glenn Hockett, the NEC expert,

specifically rejected the premise that weather conditions foreclose the use of the nesting habitat. In his declaration, he

noted:

Although the Antelope Basin/Elk Lake area does

receive a lot of snow in the winter, it melts in the

spring. The importance of ephemeral (temporary),

water sources from melting snow banks may play an

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3727
important role in the sage grouse habitat suitability

for nesting and early brood rearing on the project

area.

Hockett Decl., December 24, 2003, p. 6. Thus, the Forest Service’s conclusory assertion in the DN/FONSI that nesting is

impossible because of weather conditions is undermined by

the scientists’ observations. 

Given the presence of potential nesting habitat and the corollary effect on that habitat of cattle grazing, the 2004 information impacted the project sufficiently that the

environmental assessment should have been further revised.

See Klamath Siskiyou, 468 F.3d at 560. We note that a revised

environmental assessment considering the issues addressed

above might come to a different conclusion than the original

environmental assessment and necessitate the preparation of

an environmental impact statement.

IV. CONCLUSION

[12] Because the methodology utilized by the Forest Service violated both the NFMA and NEPA, we reverse the district court’s grant of summary judgment in favor of

Defendants, and remand this case for the agency to prepare a

new or supplemental environmental assessment consistent

with this opinion. 

REVERSED AND REMANDED.

KOZINSKI, Chief Judge, dissenting: 

The majority oversteps the limited role of a court reviewing

an agency’s decision. First, it holds that the Forest Service’s

216-page Environmental Assessment, six sage-grouse projectarea surveys, and bevy of supplemental reports all amount to

3728 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
a “ ‘clear error of judgment’ that would render its action ‘arbitrary and capricious’ ” under the National Forest Management

Act. The Lands Council v. McNair, 537 F.3d 981, 993 (9th

Cir. 2008). Second, on the basis of these same substantive

criticisms, the majority holds that the Service’s analysis was

too flawed to satisfy the National Environmental Protection

Act’s “hard look” requirement. See, e.g., Native Ecosystems

Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir.

2005) (“Determining whether the Forest Service took the requisite ‘hard look’ is judged against the APA’s arbitrary and

capricious standard.”). 

But ours is only the modest task of ensuring the Service

didn’t perform an arbitrary and capricious analysis or come to

an arbitrary or capricious conclusion. The Service did neither

so the majority is wrong to overturn its decision.

I

The National Forest Management Act requires the Forest

Service to develop a general resource management plan for

every forest in the National Forest System. 16 U.S.C. § 1604.

Forest Plans permit productive uses of forests (such as grazing) while preserving the habitat to support viable populations

of all pre-existing plant and animal life. Id.; 36 C.F.R.

§ 219.19 (2000). To keep track of animal populations, the

Forest Service designates a small number of “management

indicator species” to monitor as proxies for all the forest’s

animals. 36 C.F.R. § 219.19(a)(1). And, rather than go out

and individually count every animal, the Service often monitors indicator species’ habitat as a proxy for their population.

We’ve long endorsed this proxy-on-proxy approach. See, e.g.,

Inland Empire Public Lands Council v. U.S. Forest Serv., 88

F.3d 754, 761 (9th Cir. 1996). 

Forest Plans, by definition, cover entire forests.

Beaverhead-Deerlodge National Forest is the largest national

forest in Montana and, at 3.36 million acres, it is roughly the

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3729
size of Connecticut. In the Beaverhead-Deerlodge National

Forest Plan, sage grouse are the indicator species for sagebrush dependent animals forest-wide. The Antelope Basin/Elk

Lake project site, at 48,000 acres (1.4% of the total forest), is

just a bit larger than the District of Columbia. The Service

analyzed the project’s potential effects on the Forest Plan as

NFMA required and, as the Forest Plan required, it used sage

grouse as the indicator species for sagebrush-dependent animals. 

But that isn’t good enough for the majority, which holds

that it was arbitrary and capricious for the Service to rely on

sage grouse because grouse are “virtually non-existent in the

project area.” Maj. at 3718. When grouse are “absent from the

project area . . . the Forest Service cannot reasonably argue

that the proxy-on-proxy approach allows it to avoid separately

monitoring sage grouse population trends.” Id. at 3719. This

rule—that a project analysis is arbitrary and capricious unless

there is proof that each indicator species lives in the project

area—is entirely new. It has at least four problems. 

First, the majority doesn’t apply its new requirement fairly

to the record. The record does not show, and the Service does

not concede, that there are no sage grouse in the Antelope

Basin/Elk Lake project site. The record shows only that no

sage grouse “have been observed in the project area in the

past 15 years and sage grouse surveys in 2001-2003 did not

find sage grouse or their sign.” On the other hand, there is a

report of two sage grouse being taken illegally from the project area in 2002. Rather than meaning that few sage grouse

live in the project area, this could just mean the sage grouse

in the project area are difficult to find. We’ve repeatedly

approved habitat monitoring when the indicator species is difficult to detect. See, e.g., McNair, 537 F.3d at 998. The majority notes that “the government does not cite any ‘monitoring

difficulties’ that prevent detection of the sage grouse.” Maj.

at 3719 n.9. But why would it have? Courts have never

required that showing before. We can hardly fault the Service

3730 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
for not providing an unnecessary justification in defense of a

well-established method. Creating new requirements and

applying them retroactively is the kind of “gotcha” jurisprudence we may not engage in. 

Second, the majority’s rule conflicts with our cases approving proxy-on-proxy analysis without requiring the indicator

species to be present in the project area. For example, in

Native Ecosystems Council v. United States Forest Service,

plaintiffs challenged the Service’s performing proxy-on-proxy

analysis without showing a viable population of the indicator

species. 428 F.3d at 1250. We sided with the Service, explaining that “[o]ur case law permits the Forest Service to meet the

wildlife species viability requirements by preserving habitat,”

provided that the habitat is monitored using reliable methods.

Id.; see also 36 C.F.R. § 219.19 (“[H]abitat shall be managed

to maintain viable populations . . . .” ). This is plainly inconsistent with the majority’s requirement that the Service prove

that each indicator species lives in the project area. Indeed,

requiring the Service to prove that each indicator species lives

in the project area effectively requires it to directly monitor

each animal’s population—precisely the cumbersome task

that proxy-on-proxy is meant to avoid. 

Third, the majority’s new rule will make it much harder for

the Service to plan on a forest-wide scale, rely on forest-wide

indicator species and administer general Forest Plans. Whenever one of the Forest Plan’s indicator species is absent or

impossible to detect, the Service will have to make an ad hoc

exception. Today’s majority requires a stand-in indicator species for a project area that is 1.4% of the total forest. Tomorrow’s might do so for 0.14%. Pretty soon, before the Service

can allow grazing in the head ranger’s backyard it’ll have to

prove no adverse impact on the gophers. This flies in the face

of NFMA. See, e.g., 16 U.S.C. § 1604(f)(1) (The Forest Service shall “form one integrated plan for each unit of the

National Forest System.”) (emphasis added); Idaho Sporting

Cong., Inc. v. Rittenhouse, 305 F.3d 959, 962 (9th Cir. 2002)

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3731
(“[T]he Forest Service must conduct an analysis of each ‘site

specific’ action, such as a timber sale, to ensure that the action

is consistent with the forest plan.”). 

The majority argues that “[i]f the Forest Service decided to

select a project site consisting of the head ranger’s backyard . . . it must indeed analyze that particular site to determine the effects of the proposed action.” Maj. at 3720-21.

Nobody disputes that. See p. 3729-30 supra. It’s at the next

step of the analysis where we differ: the majority’s requirement that the Service come up with all-new indicator species

if it can’t prove that the species listed in the Forest Plan live

in the project site. The entire point of a forest-wide plan is

that complying with its forest-wide standards will ensure

forest-wide species and habitat preservation. Although the

Service must ensure that grazing in the backyard doesn’t hurt

any sage grouse habitat, it’s not required to demonstrate that

sage grouse actually live in the yard. 

Fourth, it’s not clear that an indicator species’ absence from

a particular project area undermines the Service’s habitat

analysis. NFMA’s goal is preservation of animal life across

the forest, which is necessarily determined using the Forest

Plan and the Forest Plan’s indicator species. See, e.g., Inland

Empire Pub. Lands Council v. U. S. Forest Serv., 88 F.3d

754, 757 (9th Cir. 1996) (“[S]ite-specific projects must be

consistent with the stage-one, forest-wide plan.”). If sage

grouse are a proxy for all the animals that rely on sagebrush,

and the Service can show that it’s reliably maintaining sagebrush at the levels required for sage grouse, then NFMA has

been satisfied. The absence of grouse in a particular part of

the forest may make it harder to double-check these methods,

but in this case nobody disputes the reliability of Connelly’s

Guidelines, which are part of the administrative record. John

W. Connelly, et al., Guidelines to Manage Sage Grouse Populations and Their Habitats, 28 Wildlife Society Bulletin 967

(2000). 

3732 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
The majority also criticizes more specific aspects of the

Service’s scientific analysis. But bare disagreement doesn’t

make the Service’s analysis arbitrary and capricious. See

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)

(“When specialists express conflicting views, an agency must

have discretion to rely on the reasonable opinions of its own

qualified experts even if, as an original matter, a court might

find contrary views more persuasive.”). This is especially true

where, as here, the court bases its objections on the findings

of a scientist who has actually endorsed the project being

reviewed. The majority’s central criticism is that “the very

guidelines used by the Forest Service militate against the Forest Service’s assertion” that sage grouse can be monitored by

monitoring sagebrush. Maj. at 3721. The majority bases this

assertion almost entirely on supposed inconsistencies between

the Service’s analysis and the work of Dr. Connelly (the

Guidelines’ author). E.g., id. (“Connelly and his co-authors

recognized that ‘populations of sage-grouse have been extirpated at places throughout their former range concomitant

with habitat loss and degradation, so that the species’ current

distribution is less closely aligned with that of sagebrush.’ ”).

But Dr. Connelly published a lengthy review of the Service’s project analysis (also in the administrative record)

explaining that “[t]he actions authorized by the Antelope

Basin/Elk Lake Environment Assessment are generally consistent with the current sage-grouse management guidelines.”

John W. Connelly, A Review of USFS Management Activities

and Their Relationship to Sage-Grouse in the Antelope Basin/

Elk Lake Area of Southwestern Montana (September 15,

2004) at 14 (hereinafter Connelly Review). Connelly found

that “[t]he conclusions in the Anteleope Basin/Elk Lake Allotment Management Plan EA . . . are reasonable and supported

by the available evidence. Effects to sage grouse resulting

from project implementation will likely be minimal. . . . The

actions authorized . . . appear [to] take a pro-active approach

to managing for potential sage grouse habitat.” Id. at 14.

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3733
Courts are ill-equipped to second guess scientists, particularly

scientists who are interpreting their own scientific evidence.

II

As the majority acknowledges, NEPA imposes no substantive requirements but merely “exists to ensure a process.”

Maj. at 3725 (quotation omitted). Nonetheless, the majority

concludes that the Service’s use of the Forest Plan’s management indicator species to evaluate the Antelope Basin/Elk

Lake Allotment Management Plan did not constitute “the requisite ‘hard look’ mandated by NEPA.” Maj. at 3726. This

NEPA holding doubles down on the same point the majority

makes about NFMA—that no project can be undertaken without studying animals that actually live in the project site. But

the majority never explains why violating NFMA’s substantive requirements is necessarily enough to fail the more

lenient NEPA requirement of a “hard look” that doesn’t “rely

on incorrect assumptions or data.” Native Ecosystems Council

v. U. S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005). Even

if NFMA limited the Service to indicator species that live in

the project area (it doesn’t), a species’ absence doesn’t necessarily make the Service’s extensive analysis of the project

area totally unreliable. 

The majority also criticizes the Service for not supplementing its Environmental Assessment in the wake of the Connelly

Review. But this criticism is hollow on two levels. First, it

ignores the fact that the Connelly Review endorsed the Service’s position. See pp. 3733-34 supra. Why (and how) would

the Service “respond” to an unqualified endorsement? Take a

bow? Second, the majority’s premise—that the Service never

addressed the Review’s finding that some of the project area

was suitable for nesting, maj. at 3726-27—is factually inaccurate. The Supplemental Information Report explains on page

five that “[c]attle do not enter the Elk Lake Allotment, where

1,900 acres of possible nesting habitat was identified, until

June 26 or later.” (emphasis added). It reiterates the point on

3734 NATIVE ECOSYSTEMS COUNCIL v. TIDWELL
page twelve: “likelihood of disturbance by livestock to nesting sage grouse appears to be minimal as normally the range

is not ready for livestock grazing until after the peak of sagegrouse egg incubation.” The Service clearly considered the

Review’s finding. It’s just that the Service—like the Review’s

author—concluded that the project was consistent with these

findings. A hard look is a hard look no matter what the Service sees, even if judges see something else.

* * *

The majority acts as both legislature and biologist. It acts

as legislature by inventing new NFMA requirements and as

biologist by dissecting reports about sage grouse in a misguided effort at second-guessing those reports’ authoring scientists. We should abstain from this sort of law office science.

The Service has already printed hundreds of pages analyzing

the Antelope Basin/Elk Lake’s suitability for summer grazing.

Both NFMA and NEPA were satisfied. We have no authority

to stand in the way.

NATIVE ECOSYSTEMS COUNCIL v. TIDWELL 3735