Native Ecosystems Council v. Mary Erickson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2020
• Docket: 18-35687
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIVE ECOSYSTEMS COUNCIL; No. 18-35687 ALLIANCE FOR THE WILD ROCKIES, D.C. No. 9:17-cv-00053-DWM Plaintiffs-Appellants,

v. MEMORANDUM*

MARY ERICKSON, Custer Gallatin National Forest Supervisor; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted November 8, 2019 Portland, Oregon

Before: GILMAN,** PAEZ, and RAWLINSON, Circuit Judges.

Appellants Native Ecosystems Council and the Alliance for the Wild

Rockies appeal the district court’s order granting summary judgment in favor of

Defendants. We have jurisdiction under 28 U.S.C. § 1291. See Ctr. for Biological

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Diversity v. Ilano, 928 F.3d 774, 779 (9th Cir. 2019). We review claims under the

National Environmental Policy Act (NEPA) and the National Forest Management

Act (NFMA) by utilizing the Administrative Procedure Act (APA), and we may set

aside agency action that was arbitrary or capricious. See id. at 779–80; see also

Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013).

No private cause of action exists under the Healthy Forest Restoration Act

(HFRA), so asserted violations are also reviewed under the APA. See 16 U.S.C.

§§ 6501, 6515; see also Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d

1233, 1238 (9th Cir. 2005).

1. Initially, the district court did not abuse its discretion in declining to

expand the administrative record. The proffered materials, including an overlay

map, do not satisfy any of the “four narrowly construed circumstances” in which

we allow expansion of the administrative record. See Fence Creek Cattle Co. v.

U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).

2. The United States Forest Service (Forest Service) was not required to

prepare an environmental impact statement (EIS) for the designation of landscape-

scale areas. Under NEPA, a federal agency need not prepare an EIS when the

proposed federal action does not “change the status quo.” Ilano, 928 F.3d at 780

(citation omitted). Because the designation of landscape-scale areas did not

change the status quo, but only designated damaged areas of the forest, the

2 decision did not trigger an obligation to prepare an EIS. See id. at 780–81.

3. The Forest Service decision to categorically exclude the Smith Shields

Project (Project) from NEPA was not arbitrary or capricious. An agency may issue

a categorical exclusion for a project approved under HFRA in certain

circumstances. See id. at 782 (citing 16 U.S.C. § 6591b(a)). The categorical

exclusion applies if, among other requirements, the project “maximizes the

retention of old-growth and large trees, as appropriate for the forest type, to the

extent that the trees promote stands that are resilient to insects and disease.” 16

U.S.C. § 6591b(b)(1)(A). In this case, the Forest Service concluded, based on

scientific research and analysis by its experts, that no old growth would be

removed in conjunction with the Project. An agency must have discretion to rely

upon the reasonable opinions of its own qualified experts. See Ilano, 928 F.3d at

783. Accordingly, there exists a reasonable basis for the Forest Service’s

application of the categorical exclusion.

4. The Forest Service decision to not prepare an EIS for the “Clean Up

Amendments” to the Forest Plan regarding old-growth forest and elk hiding cover

was not arbitrary or capricious. If, after preparing an environmental assessment

(EA), an agency finds that an action would have “no significant impact” on the

human environment, it may issue a finding of no significant impact (FONSI) and is

not required to prepare an EIS. 40 C.F.R. §§ 1501.4, 1508.9, 1508.13; see also

3 Native Ecosystems Council, 428 F.3d at 1238–39. We review “whether the agency

has taken a hard look at the consequences of its actions, based its decision on a

consideration of the relevant factors, and provided a convincing statement of

reasons to explain why [an action’s] impacts are insignificant.” Nat’l Parks &

Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (internal

quotations, alterations, and citations omitted). We conclude that the Forest Service

has complied with these requirements in the present case.

5. As to the old-growth standard, the original and amended standards

both require the Forest Service to strive to maintain 10% old-growth forest. But

the amendment altered the scale over which that percentage must be achieved,

moving from the “timber compartment” to the “mountain range” scale.

Appellants argue that the Forest Service’s FONSI regarding the old-growth

amendment was arbitrary and capricious. In evaluating the amendment, the Forest

Service explained that the larger scale would yield more reliable data and was

more consistent with the Forest Plan’s original goal of achieving habitat diversity

across the landscape. The Forest Service also evaluated the effects of the

amendment, determining that it would not affect wildlife associated with old-

growth forest and also that it would likely cause an increase in old growth in the

long term. Given these determinations, even if old growth may vary from one

timber compartment to the next, it was not arbitrary or capricious for the Forest

4 Service to conclude that the new scale would not have a significant impact on the

environment.

The remaining challenges to the old-growth amendment similarly fail.

Appellants claim the 10% old-growth requirement, which now applies to “lands

classified as forested,” previously applied to a larger area. We disagree.

Logically, the Forest Service can “strive to maintain” old-growth only where it

exists. Accordingly, the previous standard’s requirement of maintaining 10% old-

growth cover in timber compartments “containing suitable timber” necessarily

applied to forested areas. Appellants also argue that the Forest Service, in

amending the indicator-species standard, removed the only two indicator species

for old-growth forest (i.e., northern goshawk and pine marten). Again, we

disagree. Northern goshawk and pine marten continue to be indicators for “mature

forest,” a category that includes old-growth forest. Appellants’ remaining

arguments that the old-growth-related amendments were significant are unavailing.

6. As to the elk hiding-cover standard, the original and amended

standards both require the Forest Service to maintain at least two thirds of hiding

cover. The amendment again altered the denominator. Instead of maintaining two

thirds of the “hiding cover associated with key habitat components,” the Forest

Service must now maintain two thirds of specific tree species “on National Forest

System lands” and “with at least 40% canopy cover.”

5 Appellants first challenge these changes as unsupported by the best available

science, a requirement under NFMA. 36 C.F.R. § 219.3. But in evaluating the

hiding-cover amendment, the Forest Service considered a collaborative report

prepared with the Montana Department of Fish, Wildlife, and Parks in 2013, which

included a significant review of research on elk security.1 The collaborative report

found that stands with 40% canopy cover “consistently functioned” to meet the

hiding-cover definition; that certain tree species are “naturally capable of having

relatively dense (>=40%) canopy cover”; and that “a specific quantifiable cover

recommendation was not supported by the scientific literature,” specifically

rejecting as untested prior reports recommending cover be “two-thirds of the total

area.” These findings support the hiding-cover amendments, and “we are required

to apply the highest level of deference in our review of the Forest Service’s

scientific judgments in selecting the elk hiding cover methodology.” Native

Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012).

Appellants argue the Forest Service’s FONSI regarding the hiding-cover

amendments was arbitrary and capricious. Appellants claim the two-thirds

1 Appellants’ argument that the Forest Service improperly “tiered” to the collaborative report lacks merit. “Tiering” refers to an agency’s incorporation by reference of another NEPA document’s broad discussion of environmental impacts. See 40 C.F.R. § 1502.20. The administrative record includes the report because the Forest Service considered it, not because the Forest Service tiered to it. In any event, Appellants’ “best available science” challenge is raised under NFMA, but only NEPA’s regulations address tiering.

6 requirement previously applied to the total area of the relevant landscape, but the

pre-amendment standard contained no such language. Instead, the requirement

was to maintain two thirds of the “hiding cover associated with key habitat

components,” and the standard listed examples of such key habitats and explained

they would be “mapped on a site-by-site basis.” Appellants similarly claim the

two-thirds requirement previously applied to all forested areas and not just those

on the National Forest lands. But again, the old standard contained no such

language and was tied to maintaining key habitat components where they already

existed. Appellants claim that the amendment reduces hiding-cover protection by

now applying to only some tree species. But the Forest Service named those

species simply to point out trees “naturally capable” of providing sufficient cover.

The amended standard is therefore more precise but not less protective.

Appellants’ remaining arguments that the hiding-cover amendments were

significant are unavailing.

AFFIRMED.

7 FILED Native Ecosystems Council v. Erickson, Case No. 18-35687 MAR 20 2020 Rawlinson, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Although I agree that the designation of landscape-scale areas under the

Healthy Forest Restoration Act did not require the preparation of an Environmental

Impact Statement (EIS), I respectfully dissent from the majority’s conclusions that

the Forest Plan amendments addressing old-growth and elk-hiding cover did not

trigger the requirement for a supplemental EIS addressing the amendments.

The Forest Service amended the old-growth standard as follows:

Forest Plan Standard 6(c)(2) Amended Standard 6(c)(2) In order to achieve size and age diversity “Use fire and other management tools to of vegetation, the Forest [Service] will help achieve vegetative size and age strive to develop the following class diversity. In part, to achieve this vegetative diversity, strive to maintain a successional stages in timber minimum 10% old-growth forest on compartments containing suitable lands classified as forested at the timber: mountain range scale.”

Successional Stage\Minimum % of Area ... Old Growth 10

This amendment substantially changed the old-growth measurement by

changing the unit of measurement. Prior to the amendment, the ten percent old-

growth amount was measured at a “timber compartment level.” The amended

standard provided for the ten percent old-growth amount to be measured at the

“mountain range scale.” The effect of this change was to allow the Forest Service

1 to declare that it had complied with its old-growth standard if it could point to ten

percent over-growth anywhere on the mountain range, even if the standard was not

met in the timber compartment area being affected by a particular project. This is

such a significant change that a supplemental environmental impact statement was

warranted to insure that affected species were not negatively impacted. See Ctr.

for Biological Diversity v. Ilano, 928 F.3d 774, 779, 780 (9th Cir. 2019).

The same is true for the amendments to the elk-hiding cover standard. The

Forest Service amended that standard as follows:

Forest Plan Standard 6(a)(5): Amended Standard 6(a)(5): Maintain at least two-thirds of the Vegetation treatment projects (e.g., hiding cover associated with key timber harvest, thinning and prescribed habitat components over time. . . . Key burning) shall maintain at least habitat components are important two-thirds (2/3) of Douglas fir, features for wildlife. They include lodgepole pine, and subalpine fir moist areas (wallows, etc.); foraging conifer forest cover types (on National areas (meadows and parks); critical Forest System lands), with at least 40% hiding cover (see Glossary in Chapter canopy cover (on National Forest VI for definition); thermal cover; System lands), to function as hiding migration routes; and staging areas. cover for elk at any point in time. These areas will be mapped on a Hiding cover will be assessed for an site-by-site basis during project area elk analysis unit (EAU) which is based analysis. on a collaborative mapping effort between the local state (MDFWP) wildlife biologist and the local Forest Service wildlife biologist. . . .

The problem with the amendment is that it again substantially modified the

2 standard of measurement without adequately exploring the effect of the newly

adopted standard on available elk-hiding cover. Under the new standard, for

example, only hiding cover provided by certain types of tress was included in the

analysis. Also omitted were sources of hiding cover other than trees. These

omissions were inconsistent with the recommended amount of “good cover” from

acknowledged experts in this field. See L. JACK LYON, ET AL., COORDINATING ELK

AND TIMBER MANAGEMENT, FINAL REPORT OF THE MONTANA COOPERATIVE

ELK-LOGGING STUDY,1970-1985 9 (1985); see also Jack W. Thomas, et al.,

Wildlife Habitats in Managed Forests: the Blue Mountains of Oregon and

Washington, 553 U.S.D.A. FOREST SERVICE HANDBOOK 109 (Sept. 1979).

In sum, the Forest Service’s amendments to the Forest Plan “entirely failed

to consider [] important aspect[s] of” the amendments, rendering their adoption of

the amendments arbitrary and capricious. Hapner v. Tidwell, 621 F.3d 1239, 1244

(9th Cir. 2010) (citation omitted).