Klamath Siskiyou Wildlands Ctr v. Patricia Grantham , 642 F. App'x 742 ( 2016 )

FILED
UNITED STATES COURT OF APPEALS MAR 17 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
KLAMATH SISKIYOU WILDLANDS No. 13-16186
CENTER and KLAMATH FOREST
ALLIANCE, D.C. No. 2:11-cv-01647-MCE-
CMK
Plaintiffs - Appellants, Eastern District of California,
Sacramento
v.
PATRICIA GRANTHAM, Forest ORDER
Supervisor, Klamath National Forest; et
al.,
Defendants - Appellees.
Before: FISHER, BERZON, and WATFORD, Circuit Judges.
The panel has voted to deny appellant’s petition for panel rehearing.
The panel has voted to amend the memorandum disposition. The amended
memorandum disposition is attached hereto.
The petition for panel rehearing is DENIED. No future petitions will be
entertained.
FILED
NOT FOR PUBLICATION MAR 17 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KLAMATH SISKIYOU WILDLANDS No. 13-16186
CENTER; KLAMATH FOREST
ALLIANCE, D.C. No. 2:11-cv-01647-MCE-
CMK
Plaintiffs - Appellants,
v. AMENDED
MEMORANDUM*
PATRICIA GRANTHAM, Forest
Supervisor, Klamath National Forest;
TOM MUTZ, District Ranger, Happy
Camp/Camp Knoll Ranger District,
Klamath National Forest; UNITED
STATES FOREST SERVICE,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted November 2, 2015
Portland, Oregon
Before: FISHER, BERZON, and WATFORD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pursuant to its obligations under the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4321 et seq., the Klamath National Forest (“the KNF” or
“the Forest”) prepared an Environmental Assessment (“EA”) as part of a project
reauthorizing cattle grazing on certain federal lands. The Forest subsequently
concluded that it was not required to prepare an Environmental Impact Statement
(“EIS”) and issued a Decision Notice and Finding of No Significant Impact.
Plaintiffs Klamath Siskiyou Wildlands Center and Klamath Forest Alliance
(collectively “KS Wild”) brought suit alleging that the KNF’s actions violated
NEPA and the National Forest Management Act (“NFMA”). The district court
granted summary judgment to the KNF and awarded costs.
“Because NFMA and NEPA do not provide a private cause of action to
enforce their provisions, agency decisions allegedly violating NFMA and NEPA
are reviewed under the Administrative Procedure Act (‘APA’).” Native Ecosys.
Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). This Court may
set aside agency action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
1. The district court erred in granting summary judgment on KS Wild’s
NEPA claims. Under NEPA’s implementing regulations, in preparing an EA an
agency is required to “[b]riefly provide sufficient evidence and analysis for
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determining whether to prepare an environmental impact statement or a finding of
no significant impact.” 40 C.F.R. § 1508.9(a)(1).
In this case, the KNF identified a single “significant issue” associated with
the grazing project: cattle drifting outside of their designated allotment into the
adjacent Rogue River Siskiyou National Forest (“RRSNF”). But while the EA
explained that the KNF’s proposed action was supposed to result in little to no
cattle drift within a few years of implementation, it provided essentially no
information about the environmental impact of the drifting cattle in the RRSNF in
the past or during the period covered by the proposed action. Given this omission,
we cannot say that the KNF took the “‘hard look’ at the potential environmental
consequences of the proposed action” required by NEPA. Klamath-Siskiyou
Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004)
(quoting Churchill Cnty. v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001)).
The Forest argues that there is no available quantitative evidence of the
impact of drifting cattle on the RRSNF. But that is exactly the point—the purpose
of the EA is to require the agency to seek or develop evidence to determine
whether there is likely to be a significant environmental impact from the project.
Nor can the RRSNF’s failure to provide the relevant evidence excuse the KNF’s
omission; under NEPA, the agency preparing the EA must demonstrate that its
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proposed action will not have a significant environmental impact. Moreover, while
the KNF lacked quantitative evidence of the past or likely future impact of drifting
cattle, the record was replete with anecdotal and photographic evidence suggesting
impact from drifting cattle, which should have been discussed.
We therefore reverse the judgment of the district court and require the KNF
to prepare a new EA or to prepare an EIS, as it deems appropriate. On remand, the
KNF must develop sufficient evidence to determine the likely environmental
impact of its plan and discuss the available evidence of the impact of drifting
cattle—considered alone and cumulatively with other actions, such as grazing by
RRSNF cattle—on the RRSNF and its unique ecological characteristics. We do
not, however, require the KNF to produce an EIS unless it determines cattle drift
likely will have a significant impact on the environment.1
2. The district court properly granted summary judgment to the KNF on KS
Wild’s NFMA claim. The KNF adequately explained the reasoning behind
1
On the current record, we reject KS Wild’s final argument on the purported
“highly controversial” effects, 40 C.F.R. § 1508.27(b)(4), of the Oak Knoll Project.
The RRSNF has not registered any serious objection to the EA and has, in fact,
collaborated extensively with the KNF to address cattle drift. Any disagreement
about the seriousness of the drift problem falls short of the sort of conflicts this
court has held to be “highly controversial.” See, e.g., Sierra Club v. Bosworth, 510
F.3d 1016, 1031 (9th Cir. 2007); Sierra Club v. U.S. Forest Serv., 843 F.3d 1190,
1193 (9th Cir. 1988). The possibility remains, of course, that the Project’s as-yet-
undetermined effects in the RRSNF may ultimately prove “highly controversial.”
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authorizing grazing on some land not designated as “suitable” for grazing. Its
decision, moreover, was based on a reasonable interpretation of the governing
Forest Plan. Where, as here, an interpretation of the Forest Plan “is neither plainly
erroneous nor inconsistent with the regulation, it is accorded substantial
deference.” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir.
2003).
3. Because we reverse the district court’s grant of summary judgment to the
KNF on the NEPA claim, its order taxing costs against KS Wild must be reversed
as well.
4. Because the Federal Land Policy and Management Act provides that
expired grazing permits are to remain in effect under the same terms and
conditions “until the date on which the Secretary concerned completes any
environmental analysis and documentation for the permit or lease required under”
NEPA, 43 U.S.C. § 1752(c)(2), the effect of vacating the KNF’s Decision Notice
would be the reinstatement of earlier permits on terms less protective of Forest
resources. We therefore conclude that this case presents one of the “rare
circumstances” in which “we deem it advisable that the agency action remain in
force until the action can be reconsidered or replaced.” Humane Soc’y of U.S. v.
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Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010). The KNF’s Decision Notice will
remain in effect while the Forest discharges its obligations under NEPA.
REVERSED and REMANDED.
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