Eric Navickas v. Scott Conroy , 575 F. App'x 758 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC NAVICKAS and JAY LININGER, No. 13-35132
Plaintiffs - Appellants, D.C. No. 1:10-cv-03004-CL
v.
MEMORANDUM*
SCOTT CONROY, in his official capacity
as Forest Supervisor of the Rouge River
Siskiyou National Forest and UNITED
STATES FOREST SERVICE, a federal
agency,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted May 15, 2014
Portland, Oregon
Before: GOODWIN, IKUTA, and N.R. SMITH, Circuit Judges.
Eric Navickas and Jay Lininger (collectively, Navickas) sued Scott Conroy
and the United States Forest Service (collectively, Forest Service) alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violations of the National Forest Management Act (NFMA) and the National
Environmental Policy Act (NEPA) in the Forest Service’s analysis and adoption of
the Ashland Fire Resiliency Project (the Project). Navickas appeals from the
district court’s grant of summary judgment in favor of the Forest Service. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse in part and affirm in part.
The district court abused its discretion in admitting the third declaration
from Donald Boucher to supplement the administrative record, because the Forest
Service failed to demonstrate that the declaration satisfied any of the four narrow
exceptions to the general rule against such supplementation. See Lands Council v.
Powell, 395 F.3d 1019, 1030 (9th Cir. 2004). Contrary to the Forest Service’s
argument, the declaration’s post hoc explanation of how the implementation of the
Project could comply with the Land Resources Management Plan (LRMP) did not
show that the agency had considered relevant factors at the time it approved the
Project. For the same reason, we reject the Forest Service’s argument that the
Boucher declaration rendered Navickas’s NFMA claim regarding soil exposure in
Management Area 26 moot.
The parties have assumed that Table III-15 of the Project’s Final
Environmental Impact Statement (FEIS) is part of the Project as approved in the
Record of Decision. Although nothing in the FEIS or the Record of Decision
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states that the Project incorporates the soil exposure standards of Table III-15, the
Forest Service has not raised this argument and we will not manufacture arguments
for the parties. See Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir. 2009).
Table III-15 of the FEIS indicates that project activities will exceed the LRMP’s
soil exposure thresholds. Because the LRMP’s standards are binding as a matter of
law, 16 U.S.C. § 1604(i); see Or. Natural Res. Council Fund v. Goodman, 505
F.3d 884, 894 (9th Cir. 2007), the Forest Service acted arbitrarily and capriciously
by approving a project that will exceed those standards, see Citizens for Better
Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 2003). The record
does not support the Forest Service’s argument that notwithstanding Table III-15,
limitations imposed on the Project in other parts of the record necessarily ensure
compliance with the more protective LRMP standards. We therefore reverse the
district court’s grant of summary judgment in favor of the agency on this claim.
The district court did not err in granting summary judgment in favor of the
Forest Service on Navickas’s claim that the Project’s authorization of timber
harvests in the Ashland Research Natural Area violated NFMA. We defer to the
Forest Service’s reasonable determination of what constitutes a fuels management
activity and a fuel treatment method, and to its reasonable determination that a
decision to remove trees must have a commercial element in order for the tree
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removal to be classified as a “timber harvest.” See Earth Island Inst. v. U.S. Forest
Serv., 697 F.3d 1010, 1013 (9th Cir. 2012). Here the Forest Service reasonably
determined that the Project does not have a commercial element, and is a fuels
management activity, not a timber harvest. See Siskiyou Reg’l Educ. Project v.
U.S. Forest Serv., 565 F.3d 545, 557 (9th Cir. 2009).
Nor did the district court err when it granted summary judgment in favor of
the Forest Service on Navickas’s claim that the agency failed to perform the
required analysis under NEPA. The Forest Service has not ignored “detailed and
well-supported conclusions of its own scientists” that analysis must occur on a
different scale than the one used, nor was its selection of a geographic scale for
analysis otherwise arbitrary. Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d
957, 973–74 (9th Cir. 2002). The FEIS explained where permitted treatments will
be applied, identifying four “major strategic categories” and their component Plant
Association Groups, and explained which treatments will be applied in which areas
and to what extent. The Forest Service had no obligation to identify the specific
trees that would be removed as part of the Project. We also reject Navickas’s
NEPA argument that the agency has generated new information, in the form of a
map available online, that required supplemental NEPA analysis, because the map
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merely indicated which parts of the Project have been funded through 2014.
Accordingly, the FEIS satisfied NEPA.
Each party will bear its own costs on appeal.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED
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