Greenpeace, Inc. v. Earl Stewart

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 28, 2018
• Docket: 17-35945
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 28 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREENPEACE, INC. and CASCADIA No. 17-35945 WILDLANDS PROJECT, D.C. No. 3:08-cv-00162-RRB Plaintiffs-Appellants,

v. MEMORANDUM*

EARL STEWART, Tongass National Forest Supervisor; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding

Argued and Submitted August 14, 2018 ** Anchorage, Alaska

Before: HAWKINS, McKEOWN, and OWENS, Circuit Judges.

Greenpeace, Inc. and Cascadia Wildlands Project (collectively,

“Greenpeace”) appeal the grant of summary judgment in favor of the United States

Forest Service, Tongass National Forest Supervisor Earl Stewart, and Alaska

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This appeal was previously referred to mediation which proved unsuccessful. Regional Forester Beth Pendleton (collectively, “USFS”) and denial of

Greenpeace’s motion to enforce in an action under the National Forest Management

Act (“NFMA”), the National Environmental Policy Act (“NEPA”), and the

Administrative Procedure Act (“APA”). Greenpeace challenges USFS’s

authorization of four timber sale projects in the Tongass National Forest. We have

jurisdiction under 28 U.S.C. § 1291, and we reverse and remand to the district court

with instructions to grant Greenpeace’s motion to enforce.1

First, it was not an abuse of discretion to strike two declarations by Dr. Victor

Van Ballenberghe because they lack any relevant information not already contained

in the administrative record. See Sw. Ctr. for Biological Diversity v. U.S. Forest

Serv., 100 F.3d 1443, 1450–51 (9th Cir. 1996) (recognizing the presumption that

courts are limited to reviewing an administrative record except in a narrow set of

circumstances).

Next, USFS violated NFMA by relying on the VolStrata classification system

and deer multiplier in approving the timber projects. See 16 U.S.C. § 1604(a), (i)

(requiring compliance with forest plans). Specifically, VolStrata, which does not

accurately measure forest structure, was too unreliable to be used in conjunction with

the proxy on proxy approach of ensuring species viability. See Lands Council v.

1 We deny Greenpeace’s motion for judicial notice, (Doc. 31). Because we do not consider Greenpeace’s citations to prior appeal briefs in its reply brief, we deny as moot USFS’s motion to strike, (Doc. 33).

2 Powell, 395 F.3d 1019, 1036 (9th Cir. 2005) (“Crucial to [the proxy on proxy]

approach . . . is that the methodology for identifying the habitat proxy be sound.”).

USFS argues that its application of an overestimating deer multiplier was harmless

because its authorization would not change under a corrected deer multiplier.

However, USFS failed to explain how its second remand calculations complied with

the 1997 Forest Plan or, under its first remand calculations, why it was authorizing

the projects despite lower-than-recommended deer habitat capabilities. See In re Big

Thorne Project, 857 F.3d 968, 975–76 (9th Cir. 2017) (holding that land

management plans do not set “hard viability minimums—like deer per square mile”

but agencies must “rationally explain” why they authorized projects when deer

carrying capacities dip below recommended viability minimums).

Finally, USFS violated NEPA by declining to supplement its NEPA

documents despite significant new circumstances. 40 C.F.R. § 1502.9(c)(1)(ii)

(requiring supplementation where there are “significant new circumstances or

information relevant to environmental concerns and bearing on the proposed action

or its impacts”). Significant new circumstances arose when USFS’s reanalysis of

the projects revealed below-guideline deer habitat capabilities. See, e.g., Friends of

the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th Cir. 2000) (“[A]n agency that

has prepared an [environmental impact statement or environmental assessment]

cannot simply rest on the original document. The agency must be alert to new

3 information that may alter the results of its original environmental analysis . . . .”).

We recognize this case has been litigated for over a decade; however, USFS

has been given multiple opportunities to correct flaws in its project analysis and has

ignored this court’s guidance. See Greenpeace, Inc. v. Cole, 445 F. App’x 925, 927

& n.3 (9th Cir. 2011) (holding that USFS failed to articulate its rationale for using

an overestimating deer multiplier and suggesting USFS either use a different data

set or explain how VolStrata represents the best available science). Thus, we reverse

the grant of summary judgment, vacate the denial of Greenpeace’s motion to

enforce, and remand with instructions to grant the motion to enforce, vacating

USFS’s approval of the four timber sale projects.

REVERSED in part, VACATED in part, and REMANDED with further

instructions.