Native Ecosystems Council v. Leanne Marten

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 7, 2020
• Docket: 19-35084
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIVE ECOSYSTEMS COUNCIL; No. 19-35084 MONTANA ECOSYSTEMS DEFENSE COUNCIL, D.C. No. 9:17-cv-00077-DLC

Plaintiffs-Appellants, MEMORANDUM* v.

LEANNE MARTEN, in her official capacity as Regional Forester of Region One U.S. Forest Service; UNITED STATES FOREST SERVICE; BILL AVEY, in his official capacity as Supervisor of the Helena-Lewis & Clark National Forest.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted March 5, 2020 Seattle, Washington

Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. Appellants Native Ecosystems Council and Montana Ecosystems Defense

Council (collectively, “NEC”) allege that Appellees violated the National Forest

Management Act (“NFMA”) and National Environmental Policy Act (“NEPA”) by

pursuing the Johnny Crow Wildlife Habitat Improvement Project (the “Project”).

The district court granted summary judgment to Appellees. We review that

decision de novo, Alaska Ctr. For Env’t v. U.S. Forest Serv., 189 F.3d 851, 857

(9th Cir. 1999), and affirm.

We begin with NEC’s claim that Appellees’ decision to use ecosystem

management as an analytical framework violates NFMA and NEPA. NEC’s claim

“seek[s] wholesale improvement” of an internal decision-making process. Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (emphasis omitted). The agency’s

decision to use a particular analytical framework is not a discrete “agency action”

and cannot be challenged under the Administrative Procedure Act. See 5 U.S.C. §

551(13); Norton v. S. Utah Wilderness All., 542 U.S. 55, 65 (2004) (“[W]hen an

agency is compelled by law to act . . . but the manner of its action is left to the

agency’s discretion, a court can compel the agency to act, but has no power to

specify what the action must be.”).

NEC’s other NFMA claims regarding an alleged 1982 baseline, seclusion

habitat, annual reports, public participation, and hiding cover requirements are all

meritless. Each argument is belied by the record, which demonstrates, for

2 example, that the Project will provide sufficient elk hiding cover, and that the

agency has considered the effect of limited conifer removal on species requiring

seclusion. We therefore defer to the Forest Service’s judgment on these

issues. See N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,

1075 (9th Cir. 2011) (“A court generally must be at its most deferential when

reviewing scientific judgments and technical analyses within the agency’s

expertise.”) (internal quotation omitted). We pause only to note that Appellees’

failure to produce a report in 2016 does not make their decision to pursue the

Project arbitrary and capricious. See Native Ecosystems Council v. Weldon, 697

F.3d 1043, 1058 (9th Cir. 2012) (holding that a reporting inadequacy does not

violate NFMA absent a causal link between the inadequacy and the challenge to

the project).

Finally, NEC’s NEPA claims regarding Appellees’ decision to adopt the

Project under a categorical exclusion and alleged tiering to a 1993 Landscape

Analysis are also meritless. Appellees are entitled to deference with respect to

their decision to proceed by way of categorical exclusion. Alaska Ctr. for the

Env’t, 189 F.3d at 859. The record confirms that Appellees considered the

appropriate factors when determining whether to proceed by way of categorical

exclusion, including whether the cumulative effects and effects on the inventoried

roadless areas presented extraordinary circumstances precluding application of the

3 exclusion. Finally, there is no evidence in the record that Appellees unlawfully

tiered their analysis.

AFFIRMED.