NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BLUE MOUNTAINS BIODIVERSITY No. 23-3049 PROJECT, an Oregon nonprofit corporation, D.C. No. 2:21-cv-01033-HL Plaintiff - Appellant,
v. MEMORANDUM*
UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; CRAIG P. TRULOCK, Forest Supervisor, Malheur National Forest, in his official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding
Argued and Submitted October 22, 2024 Portland, Oregon
Before: HAMILTON, ** VANDYKE, and H.A. THOMAS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David F. Hamilton, United States Circuit Judge for the Court of Appeals, 7th Circuit, sitting by designation. Blue Mountains Biodiversity Project (“Blue Mountains”) appeals the district
court’s decisions granting summary judgment for the U.S. Forest Service (the
“Service”) and awarding the Service its costs. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
We review a grant of summary judgment de novo and review the agency’s
decision to approve the Camp Lick Project (the “Project”) under the Administrative
Procedure Act to determine whether the approval was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Or. Nat. Desert Ass’n
v. U.S. Forest Serv., 957 F.3d 1024, 1032 (9th Cir. 2020). We review a district
court’s award of claimed costs for abuse of discretion. Ass’n of Mexican-Am.
Educators v. California, 231 F.3d 572, 592 (9th Cir. 2000) (en banc).
1. The Service did not violate the National Forest Management Act
(“NFMA”) by adopting site-specific amendments that apply to the Project Area,
rather than forest-wide amendments. NFMA provides the Service with broad
discretion to amend a forest plan in “any manner whatsoever.” 16 U.S.C.
§ 1604(f)(4); see also Forest Guardians v. Dombeck, 131 F.3d 1309, 1312 (9th Cir.
1997). Here, the “Forest Service’s decision to limit the scope of the amendment was
informed by site-specific characteristics and Forest Service expertise.” Lands
Council v. Martin, 529 F.3d 1219, 1228 (9th Cir. 2008). The Service explained that
deviations in tree stand density and the prevalence of certain species of trees outside
2 23-3049 of the historical norms (particularly the grand and Douglas firs) put the Project Area
at greater risk of severe wildfires, insect infestations, and disease. These conditions
in the Project Area necessitated a site-specific amendment, above and beyond
conditions in the Malheur National Forest (“Forest”) as a whole. The adopted
amendments specifically addressed the Project Area’s underlying concerns,
allowing for the removal of the tree species crowding out the historically prevalent
species and the thinning of certain tree stands to promote conditions for old growth,
thereby reducing the tree density and catastrophic wildfire risk. Thus, the Service
complied with NFMA because it provided a “rational connection between” these
site-specific attributes “and the choice” to adopt a site-specific amendment. Martin,
529 F.3d at 1228; see also Native Ecosystems Council v. Dombeck, 304 F.3d 886,
900 (9th Cir. 2002).
2. The Service complied with the National Environmental Policy Act
(“NEPA”) with respect to each of Blue Mountains’ four claims.
First, Blue Mountains argues the Service did not adequately assess the
Project’s cumulative impacts, “the incremental impact of the action when added to
other past, present, and reasonably foreseeable future actions.” 40 C.F.R. §1508.7;
see Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002).1 We
1 “The Council on Environmental Quality (‘CEQ’) issues regulations to guide agencies in determining what actions are subject to NEPA requirements.” Blue
3 23-3049 give considerable deference to the Service’s determination of the geographical scope
of its cumulative impacts analysis. See Sierra Club v. Bosworth, 510 F.3d 1016,
1030 (9th Cir. 2007) (recognizing that the geographic scope determination “is a task
assigned to the special competency of the appropriate agencies”). Here, the
Service’s decision to use different geographic scopes when assessing the cumulative
impact on different resources and wildlife was based upon a reasoned “application
of scientific methodology.” Dombeck, 304 F.3d at 902. We will not disturb the
Service’s exercise of informed discretion. See League of Wilderness Defs. Blue
Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010).
The Service also provided “some quantified or detailed information” and a
“useful analysis of the cumulative impacts of past, present, and future projects.”
Ocean Advocs. v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 868 (9th Cir. 2005).
The Service concluded, after considering numerous studies and data, that the Project
would result in increased acreage of relatively large old-growth trees over time.
Again, we provide the highest deference to this “fully informed and well considered”
finding. Id.
Second, Blue Mountains contends the Service violated NEPA by failing to
Mountains Biodiversity Project v. Jeffries, 99 F.4th 438, 446 (9th Cir. 2024). Because the parties do not dispute that the pre-2020 regulations govern this case, we cite to and apply the pre-2020 regulations. See City of Los Angeles v. Fed. Aviation Admin., 63 F.4th 835, 841 n.2 (9th Cir. 2023).
4 23-3049 consider the cumulative impacts on aquatic habitat. Here too, the Service’s chosen
geographic scope was supported by “a reasoned decision and support for its chosen”
geographic scope. Friends of the Wild Swan v. Weber, 767 F.3d 936, 943 (9th Cir.
2014). Service experts considered multiple factors, such as the Forest’s topography
and drainage patterns, to determine the geographic scope for analyzing the
cumulative impact on aquatic species. The Service concluded that “[m]easurable
effects from proposed activities are unlikely to extend downstream of” the chosen
analysis area. Similarly, the Service’s decision not to consider every other project
with restoration efforts in the Forest was proper, since the Service concluded any
impacts on aquatic habitat from the Camp Lick Project would not extend to these
other locations. The Service did not err in reaching these “technical analyses and
judgments,” to which we again defer. Allen, 615 F.3d at 1130.
Third, Blue Mountains argues the Service violated NEPA’s requirement that
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BLUE MOUNTAINS BIODIVERSITY No. 23-3049 PROJECT, an Oregon nonprofit corporation, D.C. No. 2:21-cv-01033-HL Plaintiff - Appellant,
v. MEMORANDUM*
UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; CRAIG P. TRULOCK, Forest Supervisor, Malheur National Forest, in his official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding
Argued and Submitted October 22, 2024 Portland, Oregon
Before: HAMILTON, ** VANDYKE, and H.A. THOMAS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David F. Hamilton, United States Circuit Judge for the Court of Appeals, 7th Circuit, sitting by designation. Blue Mountains Biodiversity Project (“Blue Mountains”) appeals the district
court’s decisions granting summary judgment for the U.S. Forest Service (the
“Service”) and awarding the Service its costs. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
We review a grant of summary judgment de novo and review the agency’s
decision to approve the Camp Lick Project (the “Project”) under the Administrative
Procedure Act to determine whether the approval was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Or. Nat. Desert Ass’n
v. U.S. Forest Serv., 957 F.3d 1024, 1032 (9th Cir. 2020). We review a district
court’s award of claimed costs for abuse of discretion. Ass’n of Mexican-Am.
Educators v. California, 231 F.3d 572, 592 (9th Cir. 2000) (en banc).
1. The Service did not violate the National Forest Management Act
(“NFMA”) by adopting site-specific amendments that apply to the Project Area,
rather than forest-wide amendments. NFMA provides the Service with broad
discretion to amend a forest plan in “any manner whatsoever.” 16 U.S.C.
§ 1604(f)(4); see also Forest Guardians v. Dombeck, 131 F.3d 1309, 1312 (9th Cir.
1997). Here, the “Forest Service’s decision to limit the scope of the amendment was
informed by site-specific characteristics and Forest Service expertise.” Lands
Council v. Martin, 529 F.3d 1219, 1228 (9th Cir. 2008). The Service explained that
deviations in tree stand density and the prevalence of certain species of trees outside
2 23-3049 of the historical norms (particularly the grand and Douglas firs) put the Project Area
at greater risk of severe wildfires, insect infestations, and disease. These conditions
in the Project Area necessitated a site-specific amendment, above and beyond
conditions in the Malheur National Forest (“Forest”) as a whole. The adopted
amendments specifically addressed the Project Area’s underlying concerns,
allowing for the removal of the tree species crowding out the historically prevalent
species and the thinning of certain tree stands to promote conditions for old growth,
thereby reducing the tree density and catastrophic wildfire risk. Thus, the Service
complied with NFMA because it provided a “rational connection between” these
site-specific attributes “and the choice” to adopt a site-specific amendment. Martin,
529 F.3d at 1228; see also Native Ecosystems Council v. Dombeck, 304 F.3d 886,
900 (9th Cir. 2002).
2. The Service complied with the National Environmental Policy Act
(“NEPA”) with respect to each of Blue Mountains’ four claims.
First, Blue Mountains argues the Service did not adequately assess the
Project’s cumulative impacts, “the incremental impact of the action when added to
other past, present, and reasonably foreseeable future actions.” 40 C.F.R. §1508.7;
see Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002).1 We
1 “The Council on Environmental Quality (‘CEQ’) issues regulations to guide agencies in determining what actions are subject to NEPA requirements.” Blue
3 23-3049 give considerable deference to the Service’s determination of the geographical scope
of its cumulative impacts analysis. See Sierra Club v. Bosworth, 510 F.3d 1016,
1030 (9th Cir. 2007) (recognizing that the geographic scope determination “is a task
assigned to the special competency of the appropriate agencies”). Here, the
Service’s decision to use different geographic scopes when assessing the cumulative
impact on different resources and wildlife was based upon a reasoned “application
of scientific methodology.” Dombeck, 304 F.3d at 902. We will not disturb the
Service’s exercise of informed discretion. See League of Wilderness Defs. Blue
Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010).
The Service also provided “some quantified or detailed information” and a
“useful analysis of the cumulative impacts of past, present, and future projects.”
Ocean Advocs. v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 868 (9th Cir. 2005).
The Service concluded, after considering numerous studies and data, that the Project
would result in increased acreage of relatively large old-growth trees over time.
Again, we provide the highest deference to this “fully informed and well considered”
finding. Id.
Second, Blue Mountains contends the Service violated NEPA by failing to
Mountains Biodiversity Project v. Jeffries, 99 F.4th 438, 446 (9th Cir. 2024). Because the parties do not dispute that the pre-2020 regulations govern this case, we cite to and apply the pre-2020 regulations. See City of Los Angeles v. Fed. Aviation Admin., 63 F.4th 835, 841 n.2 (9th Cir. 2023).
4 23-3049 consider the cumulative impacts on aquatic habitat. Here too, the Service’s chosen
geographic scope was supported by “a reasoned decision and support for its chosen”
geographic scope. Friends of the Wild Swan v. Weber, 767 F.3d 936, 943 (9th Cir.
2014). Service experts considered multiple factors, such as the Forest’s topography
and drainage patterns, to determine the geographic scope for analyzing the
cumulative impact on aquatic species. The Service concluded that “[m]easurable
effects from proposed activities are unlikely to extend downstream of” the chosen
analysis area. Similarly, the Service’s decision not to consider every other project
with restoration efforts in the Forest was proper, since the Service concluded any
impacts on aquatic habitat from the Camp Lick Project would not extend to these
other locations. The Service did not err in reaching these “technical analyses and
judgments,” to which we again defer. Allen, 615 F.3d at 1130.
Third, Blue Mountains argues the Service violated NEPA’s requirement that
agencies prepare an Environmental Impact Statement (“EIS”) for “major Federal
actions significantly affecting the quality of the human environment.” 42 U.S.C.
§ 4332(C). The Service considered each of CEQ’s ten “intensity” factors for
assessing significance as part of its Finding of No Significant Impact (“FONSI”).
See 40 C.F.R. § 1508.27(b).
As to the first of the four factors that Blue Mountains challenges on appeal,
the project is not “highly controversial.” 40 C.F.R. § 1508.27(b)(4). Blue
5 23-3049 Mountains does not show a “scientific controvers[y]” over the use of site-specific
amendments in the Forest, Wild Wilderness v. Allen, 871 F.3d 719, 728 (9th Cir.
2017), or the length of time that trees will take to regrow, all of which the Service
considered in its Environmental Assessment (“EA”) and FONSI. Instead, Blue
Mountains simply shows “the existence of opposition to a use” in the Forest.
WildEarth Guardians v. Provencio, 923 F.3d 655, 673 (9th Cir. 2019) (quoting
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir.
2005)) (emphasis omitted).
For the remaining three factors Blue Mountains raises—that there are
“cumulatively significant impacts,” adverse effects to “an endangered or threatened
species or its habitat,” and violations of other environmental laws, 40 C.F.R.
§ 1508.27(b)(7), (9), (10)—Blue Mountains simply rehashes its separate NEPA and
NFMA claims. Those claims independently fail, and thus Blue Mountains cannot
show the Service violated NEPA.
Blue Mountains finally argues that the Service violated NEPA by preparing a
Supplemental Information Report (“SIR”) rather than a supplemental EA or EIS.
Supplementation of an EA or EIS is only required when there 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). An SIR is appropriate,
as here, for considering information made available to the Service after issuing its
6 23-3049 EA. See Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 565–66 (9th Cir.
2000). And the Service’s analysis in its SIR of the new projects in the Forest that
were approved subsequent to the EA was proper because the Service “determine[d]
that the impact will not be significantly different from those it already considered.”
Earth Island Inst. v. U.S. Forest Serv., 87 F.4th 1054, 1069 (9th Cir. 2023). Just as
with the prior projects that the Service considered in its cumulative impacts analysis,
the new projects were outside of the relevant analysis area, and thus their potential
effects were within the scope and range of effects already considered in the EA.
3. Finally, the district court did not abuse its discretion by awarding costs to
the Service. Awarding costs to prevailing parties is a default presumption and
district courts have broad discretion in making this determination. See Save Our
Valley v. Sound Transit, 335 F.3d 932, 944–45 (9th Cir. 2003). The Service filed
two declarations and a contractor’s invoice with enough detail for the district court
to assess the allowability and reasonableness of the claimed costs. See In re Online
DVD-Rental Antitrust Litig., 779 F.3d 914, 928 (9th Cir. 2015).
The district court’s judgment is AFFIRMED.
7 23-3049