Western Watersheds Project v. Douglas McKay

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2023
• Docket: 22-35706
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT; et No. 22-35706 al., D.C. No. 1:19-cv-00516-MC Plaintiffs-Appellants,

v. MEMORANDUM*

DOUGLAS C. MCKAY, District Ranger, Paisley & Silver Lake Ranger Districts, Fremont-Winema National Forests; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Argued and Submitted October 19, 2023 Portland, Oregon

Before: GILMAN,** KOH, and SUNG, Circuit Judges.

Western Watersheds Project and other environmental organizations

(collectively, “Plaintiffs”) appeal the district court’s grant of summary judgment in

* 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. favor of the U.S. Forest Service (“USFS”) on Plaintiffs’ claims under the National

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

(“NFMA”), and to the U.S. Fish and Wildlife Service (“FWS”) on Plaintiffs’

claims under the Endangered Species Act (“ESA”). We have jurisdiction under 28

U.S.C. § 1291. We affirm in part and reverse in part.

1. Plaintiffs contend that USFS’s Final Environmental Impact Statement

(“FEIS”) failed to take a “hard look” at three key issues regarding threats to

Oregon spotted frogs: (1) direct impacts such as trampling, (2) climate change and

increasing drought, and (3) population-level effects. “In reviewing the adequacy of

an EIS, we apply the ‘rule of reason’ standard, which requires a ‘pragmatic

judgment whether the EIS’s form, content and preparation foster both informed

decision-making and informed public participation.’” Native Ecosystems Council

v. Marten, 883 F.3d 783, 795 (9th Cir. 2018) (quoting Native Ecosystems Council

v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005)).

The FEIS here satisfies this standard because it “contains a ‘reasonably

thorough discussion of the significant aspects of the probable environmental

consequences.’” City of Los Angeles v. FAA, 63 F.4th 835, 849 (9th Cir. 2003)

(quoting Audubon Soc’y of Portland v. Haaland, 40 F.4th 967, 984 (9th Cir.

2022)). The FEIS rationally explained its decision to focus on habitat

characteristics rather than frog numbers. The FEIS also acknowledged the threats

2 posed by trampling (and other direct impacts) and climate change. Although the

FEIS did not specifically compare the magnitude of these particular threats across

alternatives, the FEIS included sufficient information for a reader to understand

how the different grazing strategies would affect these threats, thus allowing for an

“informed comparison of alternatives.” Marten, 883 F.3d at 795 (citation omitted).

Our review only goes that far. See Sierra Forest Legacy v. Sherman, 646 F.3d

1161, 1181 (9th Cir. 2011) (“[We] may not impose ‘upon the agency [our] own

notion of which procedures are ‘best’ . . . [and] cannot mandate that a

[Supplemental Environmental Impact Statement] include a particular graph, no

matter how helpful.” (second alteration in original) (quoting Vt. Yankee Nuclear

Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 549 (1978))). We

affirm the district court’s grant of summary judgment to USFS on the NEPA

claims.

2. Plaintiffs next argue that USFS failed to demonstrate the project’s

consistency with the Winema National Forest Plan. The use standard in the

Allotment Management Plan (“AMP”) allowing for up to 20 percent “alteration” in

fenced areas and fens is not, as Plaintiffs contend, inconsistent with the Forest

Plan’s requirement that “[t]he cumulative total area of detrimental soil conditions

in riparian areas shall not exceed 10 percent of the total riparian acreage within an

activity area.” In addition to the fact that the Forest Plan requirement is a

3 cumulative total while the AMP standard is not, the AMP’s use of “alteration” is

not specific to soil.1 USFS’s reliance on its expert report’s conclusion that the

AMP’s framework would “limit impacts on the soil resource to acceptable

thresholds of the Forest Plan” was not arbitrary and capricious. Similarly, the

AMP’s streambank standards are not inconsistent with the Forest Plan. The

AMP’s 95 percent streambank stability goal was specifically formulated “to meet

the intent of . . . the Forest plan,” and USFS has sufficiently explained why

allowing 20 percent streambank “alteration” is consistent with the Forest Plan’s 5

percent streambank “degradation” limit.

Plaintiffs further contend that USFS could not legitimately assess the new

grazing framework’s consistency with the Forest Plan without accounting for

longstanding trespass and noncompliance problems with grazing in the project

area. However, the agency acknowledged that unauthorized use would occur and

sufficiently explained why measures that had been insufficient to eliminate

unauthorized use in the past could be expected to be reasonably effective under the

new AMP. Even if, as Plaintiffs contend, USFS undercounted past trespass

incidents, the agency’s emphasis on the differences between the past grazing

1 Plaintiffs also point to the AMP’s “long-term desired condition” of “<20%

increase in bulk density,” without acknowledging that the Forest Plan provides that “an increase in soil bulk density of 20 percent or more” is the point at which compaction becomes a “detrimental soil condition.”

4 framework under which trespass issues occurred and the new grazing framework

renders any such error harmless. See Organized Vill. of Kake v. U.S. Dep’t of

Agric., 795 F.3d 956, 969 (9th Cir. 2015) (stating that the burden is on “the

opponent of the action to demonstrate [that] an error is prejudicial”). We affirm

the district court’s grant of summary judgment to USFS on the NFMA claims.

3. In contrast to the FEIS’s discussion of climate change, the discussion

of climate change in FWS’s 2018 Biological Opinion (“BiOp”) was deficient. The

BiOp does not account for climate change as a cumulative effect or baseline

condition. Although the BiOp considered how drought conditions might harm the

frogs, the BiOp nevertheless failed to consider how climate change will impact

frogs in nondrought years. The BiOp needed to consider whether the small frog

population could sustain grazing-related impacts on top of potential climate change

effects, which, according to documents in the record, include stranding and higher

egg mortality due to increased exposure to ultraviolet radiation and pathogens. See

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 930 (9th Cir.

2008) (“[A]n agency may not take action that will tip a species from a state of

precarious survival into a state of likely extinction” or action “that deepens

[existing] jeopardy by causing additional harm”).

The BiOp acknowledged the threat that low water conditions pose to Oregon

spotted frogs in Jack Creek. However, unlike the FEIS, the BiOp altogether failed

5 to engage with information in the record suggesting that climate change would

affect water levels and streamflow.2 Although the agency now contends in its

briefing to this court that the climate change information was too speculative to

affect the jeopardy determination “on the timeframe considered,” we cannot affirm

on that basis because FWS did not explain any such conclusion in the BiOp. See

Wild Fish Conservancy v. Salazar, 628 F.3d 513, 523 (9th Cir. 2010) (“[FWS] was

required to issue a comprehensive biological opinion taking a long view of the

[project’s] effects on [the listed species], or to explain adequately why any such

effort would be unproductive in assessing the long-term impact of the [project] on

the [species].”); Nat’l Wildlife Fed’n, 524 F.3d at 932 n.10 (“[W]e may not

consider [an agency’s] post hoc justification, or infer ‘an analysis that is not shown

in the record.’” (quoting Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv.,

2 For example, FWS’s own ESA listing, while finding the effects of climate change

across the entire Oregon spotted frog population uncertain, noted that climate change models project that “[s]nowmelt-dominated watersheds” such as the one at issue here will see “reduced peak spring streamflow, increased winter streamflow, and reduced late winter flow.” More specifically, the Jack Creek Oregon Spotted Frog Site Management Plan notes that “[c]hanges in climate are predicted to reduce winter snowpack and decrease spring runoff from snowmelt,” which “may reduce the amount of water in the Jack Creek system in summer and fall.” A 2009 Draft Site Management Plan for Jack Creek Spotted Frogs, included in FWS’s administrative record, states that climate change predictions suggest that “more of the perennial reaches of Jack Creek will likely become intermittent” and that “low water conditions will come earlier in the year, persist longer, and be more extreme.”

6 378 F.3d 1059, 1074 (9th Cir. 2004))).3 Because FWS failed to address available

information indicating that climate change would make low water conditions—an

acknowledged threat for Oregon spotted frogs—more frequent or severe, it failed

to consider an important aspect of the problem.

The BiOp’s reliance on mitigation strategies that would exclude cattle from

critical frog habitat during low water conditions does not render this failure

harmless. First, the agency has pointed to no information suggesting that the low

water mitigation strategies were developed with climate change in mind. See

Greater Yellowstone Coal. v. Servheen, 665 F.3d 1015, 1028–29 (9th Cir. 2011)

(finding that reliance on management strategies did not cure a BiOp’s failure to

consider a potential threat because those strategies were not developed to be

responsive to that threat).

Second, “[m]itigation measures relied upon in a biological opinion must

constitute a ‘clear, definite commitment of resources,’ and be ‘under agency

control or otherwise reasonably certain to occur.’” Ctr. for Biological Diversity v.

3 Because the “uncertainty” rationale does not appear in the BiOp, FWS’s reliance

on Turtle Island Restoration Network v. U.S. Department of Commerce, in which the “BiOp demonstrated that the [agency] considered a variety of ways in which climate change may affect sea turtles, but simply concluded that the data available was too indeterminate for the agency to evaluate potential sea-turtle impacts with any certainty,” does not help its case. 878 F.3d 725, 740 (9th Cir. 2017) (emphasis added).

7 Bernhardt, 982 F.3d 723, 743 (9th Cir. 2020) (quoting Nat’l Wildlife Fed’n, 524

F.3d at 936 & n.17). “The measures ‘must be subject to deadlines or otherwise-

enforceable obligations; and most important, they must address the threats to the

species in a way that satisfies the jeopardy and adverse modification standards.’”

Id. (quoting Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1152

(D. Ariz. 2002)). Here, the mitigation measures do not meet those requirements.

Identification of low water conditions depends on field visits, but the AMP

provides no schedule or standard for such visits, providing only that they will

occur “as possible” and “as the opportunity arises.” Absent a “specific and binding

plan[]” for these visits, it was arbitrary and capricious for FWS to rely on the

effectiveness of the low water mitigation strategies in concluding that there would

be no jeopardy. See Nat’l Wildlife Fed’n, 524 F.3d at 935–36. Moreover, even

assuming that some field visits would occur and identify low water conditions, it is

not clear that the BiOp considered harm that might occur in low water periods

during the time it would likely take to identify those conditions and implement the

low water mitigation strategies.

We also note that even if FWS could have found that extirpation of the Jack

Creek Oregon spotted frog population “would not jeopardize the survival or

recovery of the species,” FWS “did not make that finding.” Salazar, 628 F.3d at

529. “[A]n agency’s action must be upheld, if at all, on the basis articulated by the

8 agency itself.” Id. (quoting Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S.

Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005)). Further, as in

Salazar, it is “far from obvious that the extirpation of the [Jack Creek] population

would be harmless.” Id. For example, the BiOp notes that Oregon spotted frog

survival and recovery depends on maintaining populations of Oregon spotted frogs

across their current range and ensuring connectivity between populations. It thus

appears that extirpation of the Jack Creek population would “reduce appreciably

the likelihood of both the survival and recovery of [Oregon spotted frogs] by

reducing the reproduction, numbers, or distribution of th[e] species,” 50 C.F.R.

§ 402.02, and the agency has not concluded otherwise.

Therefore, we reverse the grant of summary judgment to FWS on the ESA

claim. FWS has not shown that equity demands that the BiOp be left in place. See

All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1121–22 (9th Cir.

2018) (noting that “vacatur of an unlawful agency action normally accompanies

remand” unless “equity demands” otherwise). On remand, the district court is

instructed to vacate FWS’s 2018 BiOp and remand to FWS for further proceedings

consistent with this opinion.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART. 4

4 The parties shall bear their own costs.