Alliance for the Wild Rockies v. Chip Weber ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 06 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES; No. 13-36157
FRIENDS OF THE WILD SWAN;
NATIVE ECOSYSTEMS COUNCIL, D.C. No. 9:12-cv-00090-DLC
non-profit organizations,
Plaintiffs - Appellants, MEMORANDUM*
v.
CHIP WEBER, in his official capacity as
the Forest Supervisor for the Flathead
National Forest; FAYE KRUEGER, in her
official capacity as Regional Forester for
the United States Forest Service, Region
One; UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture; U.S. FISH &
WILDLIFE SERVICE, an agency of the
U.S. Department of Interior,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted May 3, 2016
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Portland, Oregon
Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.
Alliance for the Wild Rockies, Friends of the Wild Swan, and Native
Ecosystems Council (hereinafter collectively “Alliance”) appeal the district court’s
summary judgment in favor of the United States Forest Service. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s judgment.
1. The Forest Service reasonably determined that the Project presented no
“extraordinary circumstances” and was categorically excluded from further
documentation under the National Environmental Policy Act (NEPA), 42 U.S.C. §
4331 et seq. See 36 C.F.R. § 220.6(a), (e)(6). The Biological Assessment for Bull
Trout and the Decision Memo were thorough and covered all of the substantive
areas that were relevant to bull trout and bull trout critical habitat: (1) bank
stability, (2) temperature alterations, and (3) water yield. As the district court
noted, “[t]his Project is the most innocuous logging project to be challenged in this
court to date.” The Project was dramatically reduced in scope after public
comment, implicates no road building activity, and prohibits thinning within 50
feet of a waterway unless hand tools are used and the Forest Service consults with
an on-site expert. The record shows that the Forest Service’s “no effect” finding
was “based on a consideration of the relevant factors” and there was no “clear error
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of judgment.” Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th
Cir. 1999) (citation omitted).
2. The district court properly held that the Forest Service fully complied
with the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. The Forest
Service reasonably concluded that the Project would have “no effect” on bull trout
or bull trout critical habitat, and thus had no duty to consult under section 7 of the
ESA. See Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir.
2012).
Costs are awarded to Appellees.
AFFIRMED.
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