Greater Hells Canyon Council v. Kris Stein

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 9, 2020
• Docket: 18-35742
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREATER HELLS CANYON COUNCIL, No. 18-35742 an Oregon nonprofit corporation; OREGON WILD, an Oregon nonprofit corporation, D.C. No. 2:17-cv-00843-SU

Plaintiffs-Appellants, MEMORANDUM* v.

KRIS STEIN, in her official capacity as District Ranger of the Eagle Cap Ranger District, Wallowa-Whitman National Forest; UNITED STATES FOREST SERVICE,

Defendants-Appellees,

WALLOWA COUNTY,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted December 12, 2019 Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and PRATT,** District

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert W. Pratt, United States District Judge for the Judge.

Greater Hells Canyon Council and Oregon Wild (collectively, “the

Council”) appeal the district court’s grant of summary judgment in favor of

defendants, the United States Forest Service, District Ranger Kris Stein, and

Wallowa County (collectively, “the Forest Service”) for claims brought under the

National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–4370m;

the National Forest Management Act of 1976 (“NFMA”), Pub. L. No. 94-588, 90

Stat. 2949 (codified as amended in scattered sections of 16 U.S.C.); and the

Healthy Forest Restoration Act of 2003 (“HFRA”), 16 U.S.C. §§ 6501–6591e. The

parties are familiar with the facts, so we need not repeat them here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court’s grant of summary judgment. Tri-

Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1123 (9th Cir. 2012). Under

the Administrative Procedures Act, a court “shall” set aside any agency action that

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A). The court’s “role is ‘simply to ensure that the

Forest Service made no clear error of judgment that would render its action

arbitrary and capricious.’” Earth Island Inst. v. Carlton, 626 F.3d 462, 472 (9th

Cir. 2010) (citation omitted).

Southern District of Iowa, sitting by designation.

2 Assuming, without deciding, that the HFRA § 603 categorical exception

requires extraordinary circumstances review, we conclude the Forest Service was

neither arbitrary nor capricious in concluding there were not extraordinary

circumstances present in the Lostine Project. See Ctr. for Biological Diversity v.

Ilano, 928 F.3d 774, 781 n.3 (9th Cir. 2019). In determining whether extraordinary

circumstances exist, the Forest Service must consider the effect of the proposed

action on seven “resource conditions.” 36 C.F.R. § 220.6(b)(1). The Forest Service

rationally concluded the Lostine Project had no effect, no adverse effect, likely no

adverse effect, or a neutral or beneficial effect on each applicable “resource

condition.”

The Lostine Project complies with NFMA’s requirement that it be consistent

with the Wallowa-Whitman Land and Resource Management Plan, as amended by

the Lostine River Wild and Scenic River Management Plan, 16 U.S.C. § 1604(i).

“The Forest Service’s interpretation and implementation of its own forest plan is

entitled to substantial deference.” Native Ecosystems Council v. Weldon, 697 F.3d

1043, 1056 (9th Cir. 2012). The Forest Service reasonably interpreted its plan,

adhered to its relevant processes, documented its findings, and made rational

conclusions based on those findings.

The Forest Service adhered to the HFRA requirement that the Lostine

Project must be “developed and implemented through a collaborative process that

3 (i) includes multiple interested persons representing diverse interests; and (ii)[] is

transparent and nonexclusive.” 16 U.S.C. § 6591b(b)(1)(C). Although the Council

argues the Forest Service must engage in a formal collaborative group process, this

contention is not supported by the text of the statute or its legislative history. The

Forest Service’s own internal guidelines require it to identify and involve relevant

stakeholders; design a strategy to conduct an open, inclusive, and transparent

process; and plan for implementation and evaluation as part of the collaborative

effort. The record amply supports that it did so in the Lostine Project.

Finally, the Council seeks to enter the extra-record declaration of Veronica

Warnock, its conservation director. Courts reviewing an agency decision are

limited to the administrative record, subject to narrow exceptions. Lands Council v.

Powell, 395 F.3d 1019, 1029–30 (9th Cir. 2005). “[D]istrict courts are permitted to

admit extra-record evidence: (1) if admission is necessary to determine ‘whether

the agency has considered all relevant factors and has explained its decision,’ (2) if

‘the agency has relied on documents not in the record,’ (3) ‘when supplementing

the record is necessary to explain technical terms or complex subject matter,’ or (4)

‘when plaintiffs make a showing of agency bad faith.’” Id. at 1030 (citation

omitted).

The district court did not abuse its discretion in excluding the declaration

because the declaration does not fill any holes in the administrative record, which

4 contains extensive evidence about the Forest Service’s decision-making and

collaborative processes, nor does it fall under any other exception.

AFFIRMED.