Western Watersheds Project v. Usfs

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 20, 2019
• Docket: 17-36042
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT, No. 17-36042

Plaintiff-Appellant, D.C. No. 1:15-cv-00218-REB

v. MEMORANDUM* UNITED STATES FOREST SERVICE,

Defendant-Appellee,

HERB WHITWORTH; et al.,

Intervenor-Defendants- Appellees.

Appeal from the United States District Court for the District of Idaho Ronald E. Bush, Magistrate Judge, Presiding

Argued and Submitted February 8, 2019 Seattle, Washington

Before: IKUTA and CHRISTEN, Circuit Judges, and FREUDENTHAL,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation. Western Watersheds Project (WWP) appeals the district court’s order

granting summary judgment to the United States Forest Service (Forest Service) on

the ground that WWP failed to meet its burden of showing that the Forest Service

acted arbitrarily and capriciously when it issued its 2015 annual operating

instructions (AOIs) for grazing in the Salmon-Challis National Forest. WWP also

appeals the district court’s decision to supplement the administrative record with

three declarations from Forest Service employees. We have jurisdiction over this

appeal under 28 U.S.C. § 1291.

We reject WWP’s argument that the 2015 AOIs violate Grazing Standard

GM-1 of the Inland Native Fish Strategy (INFISH), which is incorporated into the

Salmon-Challis National Forest Plan. Applying our deferential review of an

agency’s “determination in an area involving a high level of technical expertise,”

Lands Council v. McNair, 537 F.3d 981, 992–94 (9th Cir. 2008) (en banc) (internal

quotation marks omitted), we defer to the Forest Service’s exercise of its

professional judgment in adopting methodologies for ensuring compliance with

GM-1, including its implementation of the Strategy for Managing Livestock

Grazing Within Stream Riparian Communities on the Salmon-Challis National

Forest and its non-adoption of certain nonbinding recommendations in the

PACFISH/INFISH Biological Opinion Enclosure B. The record provides ample

2 evidence that the Forest Service monitored relevant benchmarks to evaluate

compliance with GM-1, including through inspections and end-of-season reports,

and reasonably concluded that the conditions were satisfactory or were impaired by

conditions other than authorized grazing practices before issuing the 2015 AOIs.

Accordingly, we defer to the Forest Service’s reasonable conclusion that the 2015

AOIs did not retard the attainment of the Riparian Management Objectives. The

Forest Service was not required to explain its reasoning in the AOIs themselves,

because even a “skeletal order[]” issued by an agency is sufficient to explain the

agency’s decision where, as here, the context allows the court to reasonably discern

the agency’s path. Alaska Dep’t of Envtl. Conservation v. E.P.A., 540 U.S. 461,

497 (2004).

We also reject WWP’s argument that the 2015 AOIs violated Sediment

Standard 5(f) of the Salmon-Challis National Forest Plan. Deferring to the Forest

Service’s technical expertise and to its decisions regarding the appropriate

methodology for monitoring its compliance with forest plan requirements, see

Lands Council v. McNair, 537 F.3d at 992–94, we hold that the Forest Service

reasonably decided to measure levels of excess sediment over time and on a forest-

wide basis, and therefore could reasonably conclude that reevaluation of grazing

activities was not required based on then-current fine sediment levels.

3 Finally, the district court did not abuse its discretion by supplementing the

administrative record with three declarations from Forest Service employees. A

district court is permitted to admit extra-record evidence “when supplementing the

record is necessary to explain technical terms or complex subject matter,” Lands

Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (internal quotation marks

omitted), and here the district court reasonably concluded that the three affidavits

merely condensed and explained existing material in the record and were “helpful

and necessary to explain a complex scientific subject.”

AFFIRMED.