Sharon J. Hapner v. Tom Tidwell ( 2012 )

FILED
NOT FOR PUBLICATION JAN 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHARON J. HAPNER; NATIVE No. 11-35791
ECOSYSTEMS COUNCIL; ALLIANCE
FOR THE WILD ROCKIES, D.C. No. 9:08-cv-00092-DWM
Plaintiffs - Appellants,
MEMORANDUM *
v.
TOM TIDWELL, Regional Forester of
Region One of the United States Forest
Service; UNITED STATES FOREST
SERVICE, an agency of the United States
Department of Agriculture,
Defendants - Appellees,
JANET G. HARTMAN; RONALD E.
HARTMAN,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted January 3, 2012 **
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LASNIK,
District Judge.***
Plaintiffs Sharon J. Hapner, Alliance for the Wild Rockies, and Native
Ecosystems Council (“Plaintiffs”) challenge the U.S. Forest Service’s Smith Creek
Vegetation Treatment Project (“the Project”) under the National Forest
Management Act (“NFMA”) and National Environmental Policy Act (“NEPA”).
In a prior opinion, we affirmed the district court’s grant of summary judgment in
the Service’s favor “in almost all respects.” Hapner v. Tidwell, 621 F.3d 1239,
1251 (9th Cir. 2010). Plaintiffs’ “single meritorious argument” was that the
Service violated NFMA by failing to ensure that the Project complied with an
elk-cover requirement contained in the Gallatin National Forest Plan (“the Plan”).
Id. at 1250-51. We remanded for the Service to remedy this error. Id. at 1251.
On remand, the Service field tested and revised its methodology for
calculating elk cover and determined that the Project complied with the Plan’s
requirements. The district court held that the Service’s new elk cover analysis
complied with the Plan and granted the Service’s motion to dissolve the injunction
against the Project. We affirm.
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
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We review the validity of a district court’s order dissolving an injunction for
an abuse of discretion. N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 889 (9th Cir.
1992). We review the Service’s compliance with NFMA and NEPA under the
arbitrary and capricious standard of the Administrative Procedure Act (“APA”).
Hapner, 621 F.3d at 1244 (citing 5 U.S.C. § 706(2)(A)).
In our prior opinion, we did not determine, as a factual matter, that the
logging project would reduce elk hiding cover to an amount below what the Plan
allowed. We simply concluded that the Service had not calculated elk cover
according to the definition in the Plan. As a result, the district court correctly held
that the Service, on remand, was free to recalculate elk cover without changing the
Project so long as its methodology complied with the Plan.
We agree with the district court that the Service’s revised elk cover analysis
complied with the Plan. On remand, the Service conducted extensive field
sampling and concluded that tree stands with 40% or greater canopy cover
generated a result consistent with the Plan’s definition of hiding cover. The
Service also considered other methods of calculating hiding cover and gave a
reasoned explanation why it preferred the canopy cover method. The Service’s
explanation did not “run[] counter to the evidence,” nor was it “so implausible that
it could not be ascribed to a difference in view or the product of agency expertise.”
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Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (internal
quotation marks omitted).
Similarly, the Service’s revised baseline for calculating how much elk cover
the Project would maintain is a reasonable interpretation of the relevant Plan
provision. The Plan requires that the Service maintain “at least two thirds of the
hiding cover associated with key habitat components over time.” (Emphasis
added). This phrase supports the Service’s view that the proper baseline does not
include areas that are naturally open and entirely lack the capability to provide
hiding cover now or in the future. Moreover, the revised baseline avoids the major
problem we identified with the Service’s previous interpretation because it no
longer “allow[s] iterative Service actions to whittle elk cover down to nearly
nothing.” Hapner, 621 F.3d at 1251.
Finally, we agree with the district court that Plaintiffs could not raise new
NEPA claims on remand because we remanded for the limited purpose of allowing
the Service to remedy its elk cover analysis.
We lift the stay pending resolution of the appeal that we granted on
November 30, 2011.
AFFIRMED.
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