Native Ecosystems Council; Alliance for the Wild Rockies, Plaintiffs-Appellants,
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.
and Submitted November 8, 2017 Portland, Oregon
from the United States District Court for the District of
Montana Brian M. Morris, District Judge, Presiding D.C. No.
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.
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.
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.
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.
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.
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
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 W. FLETCHER, CIRCUIT JUDGE
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.
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.
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.
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.
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
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).
Standard of Review
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