Alliance for the Wild Rockies v. Christopher Savage ( 2019 )

FILED
NOT FOR PUBLICATION
NOV 04 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES, No. 19-35035
Plaintiff-Appellant, D.C. No. 9:09-cv-00160-DWM
v.
MEMORANDUM*
CHRISTOPHER SAVAGE, Kootenai
National Forest Supervisor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 25, 2019
Seattle, Washington
Before: CLIFTON, IKUTA, and BENNETT, Circuit Judges.
Alliance for the Wild Rockies (Alliance) appeals the district court’s 2018
order dissolving the permanent injunction against the Miller West Fisher Project
(Miller Project), and certain of the district court’s rulings in its 2010 summary
judgment order. We have jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The conclusion of the United States Forest Service (Forest Service) and the
Fish and Wildlife Service (FWS) (collectively, the Agencies) that the Miller
Project “may affect, but is not likely to adversely affect” grizzly bears in the
Cabinet-Yaak recovery zone was not arbitrary and capricious. After the FWS
issued a biological opinion and incidental take statement for the Forest Plan
Amendments for Motorized Access Management (Access Amendments), the
Agencies concluded that the Miller Project’s effects fell within the range analyzed
within these Endangered Species Act (ESA) documents. To the extent the Miller
Project would impose effects beyond what was previously analyzed, the Agencies
determined that those additional effects were “not likely to adversely affect”
grizzly bears. Therefore, the Forest Service was not required to obtain a biological
opinion specific to the Miller Project’s activities that will occur in the Cabinet-
Yaak recovery zone. See Gifford Pinchot Task Force v. U.S. Fish and Wildlife
Serv., 378 F.3d 1059, 1067–68 (9th Cir. 2004), superseded on other grounds by
Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg.
7214 (Feb. 11, 2016).
We take judicial notice of Alliance for the Wild Rockies v. Probert, No. CV
18-67, 2019 WL 4889253 (D. Mont. Oct. 3, 2019), which held that the Agencies
must reinitiate consultation regarding the implementation of the Access
2
Amendments because the Forest Service was exceeding the Access Amendments’
incidental take statement in BORZ areas. See Fed. R. Evid. 201. Because the
district court’s 2018 order dissolving the permanent injunction was based in part
on the Miller Project’s compliance with the Access Amendments’ incidental take
statement in the Cabinet Face BORZ, Probert’s conclusion that the Forest Service
is not complying with that incidental take statement in the BORZ area potentially
undermines the district court’s ruling.1 We “may remand a case to the district court
for further consideration when new cases or laws that are likely to influence the
decision have become effective after the initial consideration.” White Mountain
Apache Tribe v. State of Ariz., Dep’t of Game & Fish, 649 F.2d 1274, 1285–86
(9th Cir. 1981). Accordingly, we remand to the district court for the limited
purpose of reconsidering whether the Miller Project complies with the ESA in the
Cabinet Face BORZ. See id. This limited remand is without prejudice, meaning
Alliance is not precluded from filing a new action in district court challenging the
1
Probert is limited to the Access Amendments’ environmental effects in
BORZ areas. See 2019 WL 4889253, at *6. Therefore, Probert does not cast
doubt on the district court’s dissolution of the permanent injunction against the
Miller Project’s activities that will occur in the Cabinet-Yaak recovery zone.
3
Forest Service’s environmental compliance. We will retain jurisdiction over any
subsequent appeals.2
We reject Alliance’s argument that the Forest Service’s analysis of the
Miller Project does not comply with the National Environmental Policy Act
(NEPA). In preparing the environmental impact statement (EIS) and supplemental
EIS for the Miller Project, the Forest Service aggregated the impacts of road
closure breaches into its analysis of the environmental baseline, and concluded that
road closure breaches were not a fundamental factor. Alliance has pointed to no
evidence in the record that the Miller Project will increase the frequency of road
closure breaches. Therefore, the Forest Service could reasonably conclude it was
not required to provide a separate analysis of the cumulative impacts of road
closure breaches. See League of Wildnerness Defs./Blue Mountains Biodiversity
Project v. Connaughton, 752 F.3d 755, 762 (9th Cir. 2014).
AFFIRMED IN PART; REMANDED IN PART.3
2
Alliance’s motions to take judicial notice are DENIED (Docket Entry Nos.
13 and 43). The Agencies’ motion to submit a declaration is DENIED (Docket
Entry No. 54).
3
Each party shall bear its own costs.
4