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Native Ecosystems Council v. Marten

United States Court of Appeals, Ninth Circuit

February 22, 2018

Native Ecosystems Council; Alliance for the Wild Rockies, Plaintiffs-Appellants,
v.
Leanne Marten, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture; United States Fish and Wildlife Service, an agency of the U.S. Department of the Interior, Defendants-Appellees.

          Argued and Submitted November 8, 2017 Portland, Oregon

         Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding D.C. No. 9:13-cv-00064-BMM

          Rebecca Kay Smith (argued), Public Interest Defense Center, Missoula, Montana; Timothy M. Bechtold, Bechtold Law Firm, Missoula, Montana; for Plaintiffs-Appellants.

          Jeffrey S. Beelaert (argued), Travis J. Annatoyn, Allen M. Brabender, and Andrew C. Mergen, Attorneys, Environment and Natural Resources Division; Jeffrey H. Wood, Acting Assistant Attorney General; Kathryn Williams-Shuck, United States Department of the Interior; Alan Campbell, United States Department of Agriculture; Mark S. Smith, Assistant United States Attorney; United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

          Before: Ferdinand F. Fernandez, William A. Fletcher, and Michael J. Melloy, [*] Circuit Judges.

         SUMMARY [**]

         Environmental Law

         The panel affirmed the district court's summary judgment order and order dissolving an injunction in an action challenging the United States Forest Service's proposed Lonesome Wood Vegetation Management 2 Project, designed to reduce the threat to wildlife in a populated area of the Gallatin National Forest in Montana.

         Environmental groups brought suit to enjoin the project, contending that it violated the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), the National Environmental Policy Act, and the Administrative Procedure Act. The NFMA requires that all national forests operate under land and resource management plans, or "Forest Plans." The district court initially enjoined the project but eventually granted the Forest Service's motion to dissolve the injunction.

          In 2000, Canada lynx were listed as a threatened species under the ESA; and in 2007, the Lynx Amendments were adopted to govern the management of Canada lynx habitat, and then incorporated into the forest plans for national forests, including the Gallatin National Forest.

         Concerning plaintiffs' challenge to an exemption contained in the 2007 Lynx Amendments to the Gallatin National Forest Plan, the panel declined to overrule the Forest Service's determination that a thesis prepared by Megan Kosterman - outlining important predictors for overall lynx reproductive success - did not require the Forest Service to reevaluate its approval of the project.

         Concerning plaintiffs' contention that the Forest Service was in violation of the Gallatin National Forest Plan, the panel rejected the argument that the Forest Service failed to comply with the obligation to ensure species viability. The panel also rejected the argument that the Forest Service failed to comply with its Gallatin Forest Plan obligation to monitor population trends for two management indicator species.

         Finally, the panel also rejected plaintiffs' challenges under the National Environmental Policy Act. The panel concluded that the Forest Service took a "hard look" at the project, and did not act arbitrarily or capriciously.

          OPINION

          OPINION W. FLETCHER, CIRCUIT JUDGE

         This appeal challenges the United States Forest Service's proposed Lonesome Wood Vegetation Management 2 Project ("Lonesome Wood 2" or "project"), designed to reduce the threat of wildfire in a populated area of the Gallatin National Forest in Montana. If implemented, Lonesome Wood 2 would entail thinning just over 2, 500 acres of forest land, including 495 acres of old growth forest. Appellants Native Ecosystems Council and the Alliance for the Wild Rockies (collectively, "Council") brought suit in federal district court to enjoin the project, contending that it violates the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). The district court initially enjoined the project, but after twice remanding the case to the Forest Service to remedy defects in Biological Opinions concerning two listed species under the ESA, it granted the Forest Service's motion to dissolve the injunction. We affirm.

         I. Background

         In 2005, the Forest Service assessed the risk of wildfire near Hebgen Lake in the Gallatin National Forest. The Forest Service concluded that accumulation of fuel in the area posed a serious risk to the private homes, campgrounds, and recreational areas near the lake. To mitigate the risk, the Forest Service developed and approved a project to thin large trees on about 1, 750 acres, including about 495 acres of old-growth forest; to thin small trees on about 825 acres; to slash and/or selectively burn on about 325 acres; and to build about six miles of temporary roads.

         The Forest Service issued an Environmental Assessment for Lonesome Wood 2 in December 2007, followed by a Decision Notice ("DN") and Finding of No Significant Impact ("FONSI") in April 2008. The Council filed suit challenging the project in January 2009. Before the district court could rule, grizzly bears were relisted as a threatened species under the ESA, resulting in different consultation and management criteria. The Forest Service withdrew the DN and FONSI in order to prepare an Environmental Impact Statement. A Final Environmental Impact Statement ("FEIS") was issued in October 2012, and a Record of Decision ("ROD") approving the project was issued in December 2012.

         The Council again challenged the project, filing suit in March 2013 and alleging violations of ESA, NFMA, NEPA, and the APA. The parties filed cross-motions for summary judgment. On December 5, 2014, the district court granted partial summary judgment to the Council on its ESA claim. The district court concluded that the United States Fish and Wildlife Service ("FWS"), in its Biological Opinions ("BiOps") evaluating the effect of Lonesome Wood 2 on two listed species-grizzly bears and Canada lynx-did not perform a site-specific analysis of the project's impact. Rather, FWS relied entirely on the project having satisfied the criteria for an exemption for fuel-treatment projects near human habitation, which exempted the project from otherwise-applicable standards. (We describe the exemption in detail in Section III.A., infra.) The court enjoined the project and remanded for preparation of site-specific BiOps. It granted partial summary judgment to the Forest Service on the Council's remaining claims.

         On July 1, 2015, FWS submitted new BiOps. On August 31, 2015, the district court again held the BiOps inadequate because they continued to rely on the project having satisfied the criteria for the exemption. On April 12, 2016, FWS submitted a third pair of BiOps. These BiOps specifically addressed the project's expected environmental effects. The BiOp dealing with the lynx concluded that the "the Lonesome Wood 2 project, as proposed, is not likely to jeopardize the continued existence of Canada lynx." On July 7, 2016, the court concluded that the April 2016 BiOps were sufficiently site-specific to satisfy the Forest Service's consultation obligation under the ESA. The court dissolved the injunction and allowed the project to proceed.

         The Council appealed the district court's order granting partial summary judgment to the Forest Service and its later order dissolving the injunction. We have jurisdiction over the entirety of the appeal. See 28 U.S.C. § 1291; Alsea Valley All. v. Dep't of Commerce, 358 F.3d 1181, 1184 (9th Cir. 2004).

         II. Standard of Review

         We review an agency's compliance with the ESA, NFMA, and NEPA under the "arbitrary and capricious" standard of the APA. Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1256-57 (9th Cir. 2017) (ESA); Native Ecosystems Council v. Tidwell, 599 F.3d 926, 932 (9th Cir. 2010) (NFMA); Lands Council v. Powell, 395 F.3d 1019, 1026 n.5 (9th Cir. 2005) (NEPA). The APA "requires an agency action to be upheld unless it is found to be 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Zinke, 856 F.3d at 1256-57. "An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ...


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