## Facts

- The U.S. Forest Service approved the Mission Brush Project in the Idaho Panhandle National Forests, authorizing selective logging and related treatments on about 3,829 acres within a larger analysis area.
- The agency stated that the project’s aims included reducing fire risk, improving forest health and watershed conditions, improving wildlife habitat conditions, and producing timber.
- The project area included stands with old-growth characteristics and habitat used by wildlife species associated with mature forests, including species discussed in the record such as the flammulated owl.
- The Forest Service evaluated project effects on wildlife primarily through habitat-based analysis and modeling rather than direct population counts, and it relied on a mix of existing data, project-level analysis, and field work reflected in the administrative record.
- The Lands Council and Wild West Institute sued under the APA, alleging violations of NFMA and NEPA and seeking to stop the project through a preliminary injunction.
- The U.S. District Court for the District of Idaho denied the preliminary injunction.
- A three-judge Ninth Circuit panel reversed and ordered entry of a preliminary injunction, but the Ninth Circuit granted rehearing en banc “to clarify” its approach to reviewing Forest Service decisions.

## Issues

1. Whether, under the APA’s arbitrary-and-capricious standard, the Forest Service likely violated NFMA and the governing forest plan by using habitat conditions as a proxy for wildlife viability and by not conducting the site-specific verification plaintiffs claimed was required.
2. Whether the Forest Service likely violated NEPA by failing to take the required hard look at environmental consequences, including addressing scientific uncertainty and the analysis of effects on wildlife and other resources.
3. Whether the district court abused its discretion in denying a preliminary injunction under Ninth Circuit standards (likelihood of success/irreparable harm or serious questions with hardships tipping sharply).

## Decision

- The en banc Ninth Circuit vacated the prior panel opinion and affirmed the district court’s order denying a preliminary injunction.
- The court held the district court did not abuse its discretion because plaintiffs had not shown a sufficient likelihood of success on the merits of their NFMA or NEPA claims.
- The court emphasized that judicial review of Forest Service scientific and technical judgments under the APA is highly deferential and rejected the view that courts should act as a “panel of scientists” to dictate methodology or demand explanations for every uncertainty.
- On NFMA, the court held that the Forest Service may use habitat as a proxy for species viability when the approach is reasonably explained and supported by the record; the court rejected a categorical rule that habitat proxies are forbidden whenever there is appreciable habitat disturbance.
- The court rejected a categorical requirement that the Forest Service must always perform a particular kind of “on-the-ground” field verification study before approving a project, absent a specific statutory, regulatory, or forest-plan command.
- The court overruled *Ecology Center, Inc. v. Austin*, 430 F.3d 1057 (9th Cir. 2005), and overruled *Idaho Sporting Congress v. Thomas*, 137 F.3d 1146 (9th Cir. 1998), to the extent it suggested habitat could not be used as a proxy when there is appreciable habitat disturbance.
- On NEPA, the court concluded the Forest Service’s environmental review satisfied NEPA’s procedural requirements because it considered the relevant environmental consequences and responded adequately to significant scientific concerns raised during the process.

## Legal Principles

- Under the APA, a court sets aside agency action only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; where an agency makes scientific or technical judgments, review is strongly deferential.
- Courts may not require an agency to use particular methodologies or conduct particular studies unless a statute, regulation, or binding forest-plan provision requires them.
- NFMA’s consistency requirement is satisfied where the agency reasonably applies the governing forest plan and supports its conclusions in the administrative record; NFMA does not automatically require direct population counts for all species.
- The Forest Service may use habitat conditions as a proxy for assessing species status or viability when it provides a rational connection between the habitat analysis and its conclusions and the record supports that link.
- NEPA is procedural: it requires an agency to take a hard look at environmental consequences, disclose relevant information, and respond to significant issues raised, but it does not compel a particular substantive outcome.
- A district court’s denial of a preliminary injunction is reviewed for abuse of discretion; in the Ninth Circuit, a plaintiff must show either (1) likelihood of success and the possibility of irreparable injury, or (2) serious questions on the merits with the balance of hardships tipping sharply in the plaintiff’s favor.

## Conclusion

In *Lands Council v. McNair*, the en banc Ninth Circuit reset its approach to Forest Service project challenges by applying deferential APA review to agency scientific and technical judgments, allowing habitat-based proxies for wildlife analysis under NFMA when reasonably explained and supported, finding NEPA’s hard-look process satisfied, and affirming the district court’s denial of a preliminary injunction while vacating the earlier panel decision and limiting or overruling prior Ninth Circuit cases that had imposed judge-made methodological demands.


Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008)