Friends of the Wild Swan v. Chip Weber , 767 F.3d 936 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF THE WILD SWAN, a non- No. 13-35817
profit organization; THE SWAN VIEW
COALITION, a non-profit D.C. No.
organization, 9:12-cv-00029-
Plaintiffs-Appellants, DLC-JCL
v.
CHIP WEBER, in his official capacity
as Forest Supervisor for the Flathead
National Forest; VICKI
CHRISTIANSEN, in her official
capacity as Acting Regional Forester
for the United States Forest Service,
Region One; UNITED STATES
FOREST SERVICE, an agency of the
United States Department of
Agriculture; DANIEL M. ASHE, in his
official capacity as Director of the
U.S. Fish & Wildlife Service; U.S.
FISH & WILDLIFE SERVICE, an
agency of the United States
Department of the Interior,
Defendants-Appellees.
FRIENDS OF THE WILD SWAN, a non- No. 13-35819
profit organization; THE SWAN VIEW
2 FRIENDS OF THE WILD SWAN V. WEBER
COALITION, a non-profit D.C. No.
organization, 9:12-cv-00059-
Plaintiffs-Appellants, DLC-JCL
v.
OPINION
VICKI CHRISTIANSEN, in her official
capacity as Acting Regional Forester
for the United States Forest Service,
Region One; CHIP WEBER, in his
official capacity as Forest Supervisor
for the Flathead National Forest;
UNITED STATES FOREST SERVICE, an
agency of the United States
Department of Agriculture; DANIEL
M. ASHE, in his official capacity as
Director of the U.S. Fish & Wildlife
Service; U.S. FISH & WILDLIFE
SERVICE, an agency of the United
States Department of the 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
April 9, 2014—Seattle, Washington
Filed September 24, 2014
FRIENDS OF THE WILD SWAN V. WEBER 3
Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Hawkins
SUMMARY*
Environmental Law
The panel affirmed the district court’s denial of two
preliminary injunctions in plaintiff environmental groups’
challenges to the United States Forest Service’s approval of
two neighboring logging projects in Montana’s Flathead
National Forest.
The panel held that plaintiffs failed to demonstrate an
imminent injury in the absence of injunctive relief with
respect to their National Environmental Policy Act claim that
the Environmental Assessments prepared by the United States
Forest Service failed to analyze sufficiently the cumulative
impact of the two logging projects in the same segment of the
Flathead River’s South Fork at the same time. The panel also
rejected plaintiffs’ related claim under NEPA that the Forest
Service should have considered the cumulative impact in
determining whether or not to prepare a full-blown
Environmental Impact Statement.
The panel also held that plaintiffs neither showed a
likelihood of success on the merits nor raised serious
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 FRIENDS OF THE WILD SWAN V. WEBER
questions on the merits of their National Forest Management
Act claims that (1) the logging projects violate a standard set
forth in the Northern Rockies Lynx Management Direction
that prohibits logging and burning that reduces snowshoe
hare, a favorite prey of the lynx; and (2) the Forest Service’s
habitat analysis did not account for the fisher, a member of
the weasel family.
Finally, the panel held that plaintiffs neither showed a
likelihood of success on the merits nor raised serious
questions on the merits of their Endangered Species Act
claim. Specifically, the panel rejected plaintiffs’ argument
that, when evaluating the effects of the action on potentially
affected species, the Forest Service defined too narrowly the
“action area” for the potentially affected species of the lynx,
grizzly bear, and bull trout.
COUNSEL
Matthew K. Bishop (argued), Western Environmental Law
Center, Helena, Montana, for Plaintiffs-Appellants.
Michael W. Cotter, United States Attorney, and Mark Steger
Smith, Assistant United States Attorney, District of Montana,
Billings, Montana; Christine R. Everett, Office of General
Counsel, United States Department of Agriculture; Kathyrn
Williams-Shuck and Amanda Koehler, Office of the Solicitor,
United States Department of the Interior; Robert G. Dreher,
Acting Assistant Attorney General, Andrew C. Mergen, J.
David Gunter, Paul D. Barker, Jr., Rickey D. Turner, Daniel
FRIENDS OF THE WILD SWAN V. WEBER 5
J. Pollak, and Matthew Littleton (argued), Attorneys,
Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C., for Defendants-
Appellees.
OPINION
HAWKINS, Circuit Judge:
These environmental appeals for injunctive relief bring
virtually identical challenges to two logging projects in
Montana’s Flathead National Forest: the Weber case
challenges the United States Forest Service’s (“Forest
Service” or “Service”) decision to authorize the Spotted Bear
River Project, and the Christiansen case challenges the
Soldier Addition II Project. Plaintiffs Friends of the Wild
Swan and The Swan View Coalition (collectively, “Wild
Swan”) appeal the district court’s simultaneous denial of
preliminary injunctions in both cases. Friends of the Wild
Swan v. Weber, 955 F. Supp. 2d 1191 (D. Mont. 2013);
Friends of the Wild Swan v. Christiansen, 955 F. Supp. 2d
1197 (D. Mont. 2013).
Wild Swan contends the district court abused its
discretion by denying its motion for injunctive relief because
the Forest Service’s approval of these projects violated the
National Environmental Policy Act (“NEPA”), the National
Forest Management Act (“NFMA”) and the Endangered
Species Act (“ESA”). Wild Swan argues the court abused its
discretion by failing to recognize its likelihood of success on
the merits and in finding a lack of irreparable harm in the
absence of an injunction. For the reasons set forth below, we
affirm.
6 FRIENDS OF THE WILD SWAN V. WEBER
FACTS AND PROCEDURAL HISTORY
The Soldier Addition Project was initially proposed in
2008. The project is located in the 2.4 million acre Flathead
National Forest, and would affect approximately 3,285 acres
on the west side of the Flathead River’s South Fork. The
project would entail a prescribed burn of 1,333 acres, harvest
of 1,128 acres of timber, thinning of 823 acres and clearing
flammable vegetation within 1.3 acres. The Soldier Addition
Project’s stated goals are to restore forest and vegetation to a
historical condition that would be more resilient and resistant
to wildfire, disease, and insect infestation, including
improving the availability of seasonal habitats and
proactively treating trees at risk of, or experiencing, high
mortality.
The Forest Service designated an “action area” and then
investigated whether the project would adversely affect
threatened species or critical habitat under the ESA, including
consultation with the U.S. Fish and Wildlife Service
(“USFWS”). That agency prepared a Biological Assessment
with respect to bull trout and its critical habitat and concluded
the proposed action was not likely to have an adverse effect.
USFWS prepared a formal Biological Opinion addressing the
project’s impact on lynx critical habitat and grizzly bears.
The Forest Service was also required to comply with the
NFMA forest plan for the area, which included directions for
the management of lynx, fisher (a member of the weasel
family), and westslope cutthroat trout. Following NEPA’s
procedural requirements, the Forest Service prepared an
Environmental Assessment (“EA”) to analyze potential
impacts, including compliance with the forest plan, and to
determine whether a full-blown Environmental Impact
FRIENDS OF THE WILD SWAN V. WEBER 7
Statement (“EIS”) was required or whether the agency could
instead issue a Finding of No Significant Impact (“FONSI”).
After proposing the Soldier Addition Project, the Forest
Service received comments from Wild Swan and other
interested parties and issued its decision authorizing the
project in May 2010. Wild Swan challenged the decision in
district court on NEPA and NFMA grounds, and the Forest
Service decided to withdraw its authorization in order to re-
examine its environmental analysis. It then issued a new EA,
considered additional comments, and ultimately issued a new
FONSI and reauthorized the project in December 2011.
In the midst of the decision-making process on the Soldier
Addition Project, in 2009 the Forest Service proposed another
nearby project on the other side of the South Fork of the
Flathead River, known as the Spotted Bear River Project.
Similar to the Soldier Addition Project, the Spotted Bear
Project proposed prescribed burns of 1,346 acres, harvest of
up to 1,193 acres of timber, thinning of up to 660 acres and
added an additional five weeks to the motorized access
season. The Spotted Bear Project also would serve similar
purposes as the Soldier Addition Project, such as improving
habitat and increasing resistance to fire and/or disease.
The Spotted Bear Project followed a similar procedural
path, gathering input from the USFWS in the form of
Biological Assessments and Biological Opinions, comments
on the project from Wild Swan and other interested parties,
and preparation of an EA for the project. The Forest Service
issued a FONSI and authorized the Spotted Bear Project in
August 2011.
8 FRIENDS OF THE WILD SWAN V. WEBER
The initial Soldier Addition Project EA was completed
before the Spotted Bear Project was proposed; however, in its
revised EA (prepared after withdrawing the initial approval
on the Soldier Addition), the Forest Service acknowledged
the Spotted Bear Project, but concluded there would be no
significant cumulative adverse effects. The Forest Service
reached the same conclusion regarding the Spotted Bear
Project.
After unsuccessfully appealing both Forest Service
decisions to the Regional Forester, Wild Swan brought two
suits in district court regarding the two projects, raising
virtually identical claims that the Forest Service had violated
NEPA, NFMA, and the ESA. On cross-motions for summary
judgment, the magistrate judge issued lengthy reports
recommending awarding judgment to the United States on all
claims.
Wild Swan not only objected to the magistrate judge’s
recommendations, but also moved for a Temporary
Restraining Order and a Preliminary Injunction to halt all
project activity pending disposition of the cases on the merits.
This motion for injunctive relief was prompted by a Forest
Service notice that it was proceeding with project
implementation by seeking bids for the “Tin Mule” timber
sale, which would involve logging a portion of the units in
each project (ten of sixty-two units in Spotted Bear and thirty-
two of forty-nine units in Soldier Addition). In both cases,
the district court denied the motion for preliminary
injunction, finding Wild Swan had not demonstrated a
likelihood of success on the merits, had not shown irreparable
harm was likely in the absence of an injunction, and that the
balance of equities tipped in favor of the Forest Service.
Wild Swan appealed.
FRIENDS OF THE WILD SWAN V. WEBER 9
STANDARD OF REVIEW
We review the denial of preliminary injunctive relief for
abuse of discretion. Perfect 10, Inc. v. Google, Inc., 653 F.3d
976, 979 (9th Cir. 2011). An abuse of discretion occurs when
the district court “based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.”
Inst. of Cetacean Research v. Sea Shepherd Conservation
Soc’y, 725 F.3d 940, 944 (9th Cir. 2013).
To obtain a preliminary injunction, a party must show that
“he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res.
Def. Council, 555 U.S. 7, 20 (2008). “[I]f a plaintiff can only
show that there are ‘serious questions going to the merits’—a
lesser showing than likelihood of success on the merits—then
a preliminary injunction may still issue if the ‘balance of
hardships tips sharply in the plaintiff's favor,’ and the other
two Winter factors are satisfied.” Shell Offshore, Inc. v.
Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)
(quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011)).1
1
Plaintiffs suggest that the district court committed legal error by not
expressly applying the alternative Cottrell test. However, any such error
was harmless, as Plaintiffs have not demonstrated either a likelihood of
success or serious questions going to the merits of their claims. See
Farris v. Seabrook, 677 F.3d 858, 864–65 (9th Cir. 2012) (where district
court analysis conflated Winter and Cottrell factors, this court may review
omitted factor de novo). As discussed in Section I.A.3. below, in the only
claim in which Plaintiffs have possibly raised a serious question on the
merits, they have failed to establish a likelihood of irreparable harm, as
required under both the Winter and Cottrell formulations.
10 FRIENDS OF THE WILD SWAN V. WEBER
Wild Swan’s underlying substantive claims are reviewed
under the Administrative Procedure Act, which allows courts
to set aside only those agency actions which are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
DISCUSSION
I. NEPA
NEPA is a procedural statute, and requires an agency
proposing a major federal action significantly impacting the
environment to prepare an EIS to analyze potential impacts
and alternatives. 42 U.S.C. § 4332(C). To determine
whether an EIS is required, the agency typically first prepares
an EA. 40 C.F.R. § 1501.4(b). The EA is not an exhaustive
examination of every possible environmental event, but must
provide sufficient evidence and analysis to determine the
reasonableness of the decision not to prepare an EIS. See Tri-
Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1129
(9th Cir. 2012); Ctr. For Biological Diversity v. Nat’l
Highway Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir.
2008). Here, with respect to both challenged projects, the
Forest Service prepared an EA and determined there was no
significant environmental impact requiring an EIS. 36 C.F.R.
§ 220.7.
A. Cumulative Impacts
Wild Swan’s principal complaint is that the EAs failed to
analyze sufficiently the cumulative impact of the two logging
projects in the same segment of the South Fork at the same
time, especially with respect to sediment in the river and the
effects on the local grizzly bear and lynx populations. NEPA
FRIENDS OF THE WILD SWAN V. WEBER 11
regulations require the Service to consider cumulative effects
which “result[] from the incremental impact of the action
when added to other past, present, and reasonably foreseeable
future actions” with the goal of making sure that
“individually minor but collectively significant” actions are
properly analyzed. 40 C.F.R. § 1508.7; see also Kern v.
BLM, 284 F.3d 1062, 1078 (9th Cir. 2002) (purpose is to
avoid “the tyranny of small decisions”). We have noted that
the Forest Service must take a “hard look” at all actions, and
give a “sufficiently detailed catalogue of past, present, and
future projects, and provide an adequate analysis about how
these projects . . . are thought to have impacted the
environment.” Te-Moak Tribe v. U.S. DOI, 608 F.3d 592,
603 (9th Cir. 2010) (internal quotation marks omitted).
A recurring theme in this appeal is whether the agency
gave sufficient reasons for limiting the geographic scope of
its cumulative effects analysis to one side of the river or the
other. “[A]n agency has the discretion to determine the
physical scope used for measuring environmental impacts.”
Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957, 973
(9th Cir. 2002). Identifying the appropriate geographic scope
“is a task assigned to the special competency of the
appropriate agenc[y],” Kleppe v. Sierra Club, 427 U.S. 390,
414 (1976), and the agency must balance need for a
comprehensive analysis versus considerations of practicality,
while also keeping in mind that use of a larger analysis area
can dilute the apparent magnitude of environmental impacts.
See Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944,
958–59 (9th Cir. 2003). Nonetheless, the agency’s choice
may not be arbitrary, and it must provide a reasoned decision
and support for its chosen level of analysis. Rittenhouse,
305 F.3d at 973.
12 FRIENDS OF THE WILD SWAN V. WEBER
1. Lynx
In analyzing each proposed project’s effect on lynx, the
agency considered the total effects on lynx analysis units
touched by the project. A lynx analysis unit (“LAU”) is a
large area that approximates the home range of a female lynx
and contains sufficient habitat to support lynx survival and
reproduction. The Soldier Addition Project affected portions
of three LAUs on one side of the river (covering
approximately 122 square miles); the Spotted Bear Project
affects portions of four different LAUs on the other side of
the river (covering approximately 174 square miles).
The LAUs were not determined with reference to either
project. Rather, over a decade ago the agency divided the
Flathead National Forest into LAUs using the best-available
science. The boundaries of the LAUs remain constant and
are not adjusted for individual projects. Because a single
LAU may be too small to assess fully direct, indirect, and
cumulative impacts, and because lynx wander outside the
boundaries of a single LAU, the lynx guidance documents
indicate that “project impacts must be assessed within the
context of two or more LAUs.” As noted, here the Forest
Service used three and four LAUs per project.
The agency did not act arbitrarily and capriciously by
defining the geographic scope for studying cumulative effects
in this fashion. The groups of LAUs for each project cover
several thousand acres, the boundaries were developed
independent of these projects, and there is no overlap between
the three LAUs touched by the Soldier Addition Project and
the four LAUs affected by the Spotted Bear Project.
Although Wild Swan argues the agency should have also
considered effects from the neighboring project because the
FRIENDS OF THE WILD SWAN V. WEBER 13
lands are adjacent, the agency has to draw a line somewhere
and has offered a reasonable justification for why it drew the
line where it did. See Inland Empire Public Lands Council v.
USFS, 88 F.3d 754, 764 & n.14 (9th Cir. 1996) (noting it
would be difficult to determine when land stops being
“adjacent”).
Lynx may roam beyond the boundaries of an individual
LAU, but that is why the guidance documents recommend the
use of multiple units, as the Forest Service did here. In
addition, as noted above, expanding the analysis area further
would work to dilute the project’s apparent environmental
impact. See Selkirk, 336 F.3d at 960. The selection of these
geographic areas for considering cumulative effects on lynx
was neither arbitrary nor capricious, and Wild Swan has not
demonstrated a likelihood of success or serious questions
going to its NEPA claim with respect to lynx.
2. Grizzly Bear
The agency analyzed the impacts of the Soldier Addition
Project within the geographic scope of three grizzly bear
subunits that touch the project area (approximately 129
square miles), and the Spotted Bear Project with respect to
three other subunits (approximately 115 square miles). Like
a LAU, a grizzly bear subunit for the Flathead National
Forest approximates a female’s home range and includes a
distribution of habitat by season and elevation. Also like a
LAU, the bear management units and subunits were
developed several years ago by an interagency committee and
are not project-specific.
Wild Swan argues the Forest Service should have
evaluated the cumulative effects with respect to the larger
14 FRIENDS OF THE WILD SWAN V. WEBER
Bear Management Unit (BMU), rather than the smaller
subunits, relying on our decision in Selkirk, 336 F.3d at
958–60. The agency explains, however, that national forests
in different ecosystems divide grizzly units differently, thus
necessitating different approaches to analyzing cumulative
effects depending on the particular forest/ecosystem. For
example, in Selkirk, this court approved a NEPA analysis at
the BMU level, but in that smaller ecosystem each BMU
approximated the size of a female grizzly’s home range. Id.
at 960; see also id. at 949 (Selkirk Mountains divided into ten
BMUs; Interagency Grizzly Bear Committee “considered that
each unit would provide an appropriate area in which to
monitor and analyze the bears”).
In contrast, the Flathead National Forest is part of the 5.7
million acre Northern Continental Divide Ecosystem, and
within this larger ecosystem, each subunit approximates a
female grizzly’s home range.2 The agency further points out
that if it analyzed the cumulative effects at the BMU level
instead, the analysis area would be approximately 800 square
miles, which would be impractically large and would dilute
the project’s apparent environmental impact. See Selkirk,
336 F.3d at 960 (expanding the analysis area could dilute the
effects of proposed project).
As with the lynx, the selection of these boundaries for
analyzing the cumulative effects on the grizzly bear was
neither arbitrary nor capricious and Wild Swan has not
2
Although Wild Swan also argues that these subunits were to be used
only to measure compliance with a road access amendment to the forest
plan, the Biological Opinion the Forest Service obtained from the USFWS
indicated that the subunits were “the basic scale for the analysis of impacts
associated with access management and vegetation management projects.”
FRIENDS OF THE WILD SWAN V. WEBER 15
demonstrated serious questions or a likelihood of prevailing
on this claim.
3. Fisheries
Wild Swan further argues that the Forest Service failed to
analyze adequately the potential cumulative impact of the two
projects on the native fishery, particularly the risk of
increased sedimentation on the bull trout and westslope
cutthroat trout within the main channel of the South Fork of
the Flathead River, even though the projects will occur in the
same segment of the South Fork (across the river from one
another).
For its analysis area, the Forest Service selected a roughly
seven-mile stretch along the Flathead River, beginning at its
confluence with the Spotted Bear River and continuing
downstream to the Hungry Horse Reservoir. The upstream
point was chosen because the greatest risk of sediment
discharge from either project would be from the possibility of
runoff from a severe rainstorm shortly after a prescribed burn,
and the substantial majority of burn units and other project
improvements, such as culvert upsizing, are located
downstream of that confluence point.
The endpoint of the Service’s cumulative analysis was the
entrance to the Hungry Horse Reservoir. The Service did not
consider areas downstream of the reservoir because the
reservoir is so large that it would have a “very significant
buffering effect” so that there would be “virtually no
measurable effect of any proposed management activity to
water quality or water quantity” in or downstream from the
reservoir. The Service has offered reasonable justifications
16 FRIENDS OF THE WILD SWAN V. WEBER
for selecting the beginning and endpoint along the river that
are not arbitrary or capricious. Rittenhouse, 305 F.3d at 973.
The EAs also addressed each project’s potential sediment
impact on this main channel of the South Fork,3 but
concluded there would be little significant impact because:
(1) 99% of the potential sediment would occur only in the
“worst-case scenario,” i.e., if there were a high-intensity
rainstorm shortly after a prescribed burn, which the EAs
concluded was not likely based upon recent local fire history4;
and (2) even if the worst-case scenario occurred, it would be
diluted by the considerably larger flow of the South Fork and
“not . . . outside the range of natural variability” in that
system.
Relying in large part on the hydrology discussion, the
EAs also analyzed each project’s impacts on fisheries,
including fish and fish habitat within the agency’s defined
cumulative effects area. The EAs concluded that although
there could be “short-term negative effect[s] on the westslope
cuttroat trout,” in light of the robust population in the area,
the action would not likely contribute towards a loss of
viability to the population or species. Similarly, noting that
bull trout do not spawn within the project area, there would
be “no adverse modification of critical habitat” for that
species, and determined that the projects would actually
improve the habitat quality in the long term.
3
The EA for each project recognized the potential to discharge
additional sediment to the South Fork of the Flathead River.
4
This is because most high-intensity storms occur during the summer,
and the prescribed burns in the project are scheduled for spring or fall.
FRIENDS OF THE WILD SWAN V. WEBER 17
Wild Swan correctly points out that the EAs did not
specifically consider the impact to the main channel of South
Fork if the “worst-case” scenario for both projects occurred
and delivered sediment to the main channel simultaneously.
However, even assuming Wild Swan has shown a possibility
of success on this issue or at least serious questions on the
merits, we nonetheless affirm the denial of the preliminary
injunction because Wild Swan has not established a
likelihood of irreparable harm to the fisheries in the absence
of an injunction. See Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“[P]laintiffs
must establish that irreparable harm is likely, not just
possible, in order to obtain a preliminary injunction.”). Both
EAs indicate it is highly unlikely that the “worst-case
scenario” event (intense storm following prescribed burn) for
either project would ever occur because of the seasonal
timing of the burns, and thus it appears doubly unlikely that
all potential sediment discharge from both projects would
occur simultaneously.
Wild Swan has not shown any likelihood that the
prescribed burns for each project would occur at exactly the
same time. In fact, the project decisions state that because
conditions must be ideal, the prescribed burns could take up
to ten years to complete. In addition, according to the Forest
Service declaration submitted in response to the motion for
injunctive relief, at that time only limited thinning/prep work
for some burns was proposed, with the possibility of
prescribed burns in two of the fifteen Spotted Bear treatment
units and four of the seven Soldier Addition treatment units
later that fall, and then only if weather conditions cooperated.
The district court did not abuse its discretion by determining
Wild Swan has not demonstrated an imminent injury in the
absence of injunctive relief. See Caribbean Marine Servs. v.
18 FRIENDS OF THE WILD SWAN V. WEBER
Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“[P]laintiff must
demonstrate immediate threatened injury as a prerequisite to
preliminary injunctive relief.”).
B. Need for an EIS
Wild Swan’s second argument regarding NEPA is
essentially a logical extension of the first: that the Forest
Service should have considered the cumulative impacts from
the neighboring project in determining whether or not to
prepare a full-blown EIS. The agency must prepare an EIS if
substantial questions are raised as to whether a project may
cause significant environmental impacts. Ocean Advocates
v. USACE, 402 F.3d 846, 864 (9th Cir. 2005). One factor for
the agency to consider is “[w]hether the action is related to
other actions with individually insignificant but cumulatively
significant impacts.” 40 C.F.R. § 1508.27(b)(7).
As discussed above, with respect to the lynx and grizzly
bear, the Forest Service prepared a separate EA for each
project and its FONSI addressed the cumulative effects within
geographic areas that are larger than those affected by the
particular project, but limited to one side of the river.
Because Wild Swan has not demonstrated that the Forest
Service acted arbitrarily in delineating the geographic
boundaries of its cumulative effects analysis, we affirm the
denial of the preliminary injunction because Wild Swan has
not demonstrated a likelihood of success on the merits of its
NEPA claim. Cf. Great Basin Mine Watch v. Hankins,
456 F.3d 955, 969 (9th Cir. 2006). As also discussed above,
the Forest Service sufficiently addressed the effects of each
project on the fisheries, but even if the Forest Service should
have also considered the cumulative impact of both worst-
case sediment scenarios on the main channel of the South
FRIENDS OF THE WILD SWAN V. WEBER 19
Fork, there is no immediate risk of irreparable injury
justifying a preliminary injunction.
II. NFMA
Under the NFMA, the Forest Service is obligated to
ensure all project decisions are consistent with the general
forest plan, 16 U.S.C. §1604(i), which in this case is the
Flathead National Forest Plan. The “Forest Service’s
interpretation and implementation of its own forest plan is
entitled to substantial deference,” Native Ecosystems Council
v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012), but we must
be able to “reasonably discern from the record that the Forest
Service complied” with the plan’s standards. Native
Ecosystems Council v. USFS, 418 F.3d 953, 961–62 (9th Cir.
2005).
A. VEG S6 for Lynx
Wild Swan contends that the project violates Standard
VEG S6 in the 2007 Northern Rockies Lynx Management
Direction. This standard prohibits logging and burning that
reduces “snowshoe hare [a favorite prey of the lynx] habitat
in multi-story mature or late successional forests” except in
“areas that have potential to improve winter snowshoe hare
habitat but presently have poorly developed understories that
lack dense horizontal cover.” The Lynx Direction defines
“winter snowshoe hare habitat” as “places where young trees
or shrubs grow densely–thousands of woody stems per
acre–and tall enough to protrude above the snow during
winter, so snowshoe hare can browse on the bark and small
20 FRIENDS OF THE WILD SWAN V. WEBER
twigs.”5 It also defines “multi-story mature” as a forest stage
of development similar to “old multi-story structural stage”
but with trees that are generally not as old and less abundant
decaying trees.
The parties agree that portions of both projects involve
“multi-story mature” forests, but disagree as to whether there
is snowshoe hare habitat within such areas. See Friends of
the Wild Swan v. USFS, 875 F. Supp. 2d 1199, 1204–05 (D.
Mont. 2012) (to trigger VEG S6 project must occur in multi-
story mature forest and reduce snowshoe hare habitat). The
Forest Service analyzed lynx habitat maps, computer GIS
analysis, and aerial photographs, and then performed on-the-
ground field inspections to verify whether habitat existed
within the proposed treatment units. Areas found to have
quality snowshoe hare habitat were dropped from the project.
Wild Swan contends, however, that in conducting this
analysis, the Forest Service used a new methodology that
contravenes the definitions of VEG S6. Wild Swan argues
that the Lynx Direction considers only two variables: stand
structure (mature or young) and stem density (number of trees
per acre). The Forest Service, however, also analyzed the
amount of “horizontal cover” provided, which is defined in
the Lynx Direction as “visual obscurity or cover provided by
habitat structures that extend to the ground or snow surface
primarily provided by tree stems and tree boughs, but also
includes herbaceous vegetation, snow, and landscape
topography.” Pursuant to a draft guidance for assessing
horizontal cover, if the percentage of horizontal cover was
more than 35% in winter or 48% in summer then the area was
5
Low density includes approximately 1000–2500 trees per acre and high
density includes approximately 2500 trees per acre.
FRIENDS OF THE WILD SWAN V. WEBER 21
considered snowshoe hare habitat and VEG S6 applied.
While Wild Swan argues this is a significant change that
required public notice and an amendment to the Forest Plan,
the Forest Service contends the new guidance was merely a
means of assessing compliance with the existing standard.
The analysis in the Lynx Direction under “[e]valuating
the amount of winter snowshoe hare habitat” primarily
focuses on stand and stem density, but it does not appear that
these are the only factors to be considered. For example,
even in multi-storied forests with high tree density, the Lynx
Direction indicates it “may provide good foraging habitat
where small trees occur in dense, irregular clumps
underneath the overstory.” Likewise, in multi-story forests
with lower density, the Direction indicates there may be
quality habitat “depending on how the trees are distributed.”
Further, as noted above, areas with poorly developed
understories that lack dense horizontal cover are excepted
from VEG S6.
In light of the deference we must apply to the Forest
Service’s scientific judgments regarding methodology and its
interpretation of its own forest plans, see Weldon, 697 F.3d at
1053, the Forest Service’s use of a methodology for assessing
the amount of quality horizontal cover within these areas of
potential hare habitat is not likely a change from VEG S6 but
more likely a means of assessing compliance with the
existing standard. The district court did not abuse its
discretion by determining Wild Swan has not demonstrated
a likelihood of success on the merits of its NFMA claim
regarding VEG S6, nor has Plaintiff raised serious questions
on the merits of this claim.
22 FRIENDS OF THE WILD SWAN V. WEBER
B. Viability Standard for Fisher
The fisher is a medium-sized, forest-dependent member
of the weasel family. It is a sensitive species and a
management indicator species (“MIS”) in the Flathead
National Forest. The fisher is “an indicator that the needs of
other forest carnivores are met, as well as wildlife that use
closed-canopy . . . forests, particularly [moist] forests
associated with riparian zones.” As a sensitive species, the
Forest Service is required to monitor the “change in
population status” and distribution of the fisher and ensure
“project decisions will not result in loss of species viability or
create significant trends towards federal listing” of the
species.
The Forest Service indicated in the EA that “fishers are
more difficult to detect than most species . . . and monitoring
results are often inconclusive.” Wild Swan argues that instead
the monitoring methods are failing to confirm the presence of
fisher in the area. The Forest Service explains, however, that
the fisher is a “low-density carnivore,” which does not live or
travel in packs but is a solitary and territorial creature that
requires large home ranges of about fifteen square miles. For
example, in high-quality habitats in British Columbia, fisher
density is estimated at between 0.01 and 0.0154 per km. A
2010 study of historical records indicated that the fisher is
one of the lowest-density carnivores in Montana, making “the
likelihood of seeing fisher in a specific project area . . . very
low.”
Nonetheless, the Forest Service used all available
population data, including information from the Montana
Department of Fish, Wildlife & Parks that its personnel had
encountered fisher tracks for the past several years in the
FRIENDS OF THE WILD SWAN V. WEBER 23
course of winter track surveys, and available trapping data
regarding fisher harvests in the region, which yielded
consistent results over the past decade.6 Indeed, there were
481 fisher sightings in Montana, “with numerous sightings in
Northwest Montana within the last ten years.” Based on the
available data, the agency found no reason to believe that the
fisher population in the project area was in decline.
The Forest Service acknowledged that the proposed
projects would affect small portions of fisher habitat from the
removal of mature forest stands (818 acres in Spotted Bear;
1092 acres in Soldier Addition). It concluded, however, that
the impacts would be negligible and would not harm
population viability because a significant amount of sufficient
habitat for fisher would remain in the area. This is commonly
referred to as using habitat as a proxy for viability; in turn, if
the species is used as an indicator of the population of another
species, it is a “proxy-on-proxy” approach.
The use of this proxy approach is appropriate “where both
the Forest Service’s knowledge of what quality and quantity
of habitat is necessary to support the species and the Forest
Service’s method for measuring the existing amount of that
habitat are reasonably reliable and accurate.” Native
Ecosystems Council v. USFS, 428 F.3d 1233, 1250 (9th Cir.
2005). We have generally accepted the use of habitat as a
proxy for population “absent some indication in the record
that USFS’s underlying methodology is flawed,” Envt’l Prot.
6
The fisher data appear to be statewide in Montana, versus the specific
area affected by the project. However, with respect to trapping, the EA
explains that the trapping season in the state is December to February, a
time at which all roads to the actual project area have been closed for the
season.
24 FRIENDS OF THE WILD SWAN V. WEBER
Info. Ctr. (“EPIC”) v. USFS, 451 F.3d 1005, 1017 (9th Cir.
2006), that is, so long as the habitat proxy “reasonably
ensures that the proxy results mirror reality.” Gifford Pinchot
Task Force v. USF&WS, 378 F.3d 1059, 1066 (9th Cir.
2004). For example, in Native Ecosystems Council v.
Tidwell, 599 F.3d 926 (9th Cir. 2010), we invalidated the use
of the proxy-on-proxy approach where there was no data
indicating the presence of the species in the area, no
suggestion there was difficulty monitoring the species, and a
flaw in the Forest Service’s methodology that further
undermined the use of the habitat proxy approach. Id. at
933–35.
However, “[m]onitoring difficulties do not render a
habitat-based analysis unreasonable, so long as the analysis
uses all the scientific data currently available.” The Lands
Council v. McNair, 537 F.3d 981, 998 (9th Cir. 2008) (en
banc), overruled in part on other grounds by Winter, 555 U.S.
at 20; see also Inland Empire, 88 F.3d at 763 n.12 (noting
that there was no reliable and cost-effective method of
counting individual members of a small, reclusive species
such as the pileated woodpecker).7
Here, in analyzing the habitat, the Forest Service used the
best available scientific data to define potential fisher habitat,
taking into consideration factors such as the maturity of the
forest, proximity to riparian features, and connectivity of
habitat areas. With respect to the Spotted Bear Project, the
Service determined that approximately 44% of the total
7
Similar to Inland Empire, here the Forest Service indicates that to
obtain reliable data, a trapping/telemetry study would be necessary but
that there is no ongoing fisher research in the Flathead National Forest on
which to rely.
FRIENDS OF THE WILD SWAN V. WEBER 25
project area was potential fisher habitat, and that only 3% of
that habitat would be affected by the proposed project. With
respect to Soldier Addition, approximately 57% of the project
area is potential fisher habitat, with only 3–4% being affected
by the proposed project. The Service also consulted the
primary researcher on fisher populations in Idaho and
Montana, who indicated he “could not quantify the effect of
such a fine-scale habitat change.”
Wild Swan does not level specific criticisms at the Forest
Service’s habitat methodology, other than to complain that no
fisher were actually detected in the relatively small project
area. As explained above, given the creature’s solitary nature
and wide dispersal patterns, this is unsurprising and likely due
to monitoring difficulties, but not necessarily indicative of a
decline in population. See Lands Council v. McNair,
629 F.3d 1070, 1082 (9th Cir. 2010). The district court did
not abuse its discretion in determining that Wild Swan has not
shown a likelihood of success on its NFMA claim, nor has
Plaintiff raised serious questions on the merits of this claim.
See EPIC, 451 F.3d at 1017.
III. ESA
Section 7 of the ESA requires the Forest Service to
consult with the USFWS to ensure the proposed project is
“not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the
destruction or adverse modification of critical habitat for such
species.” 16 U.S.C. § 1536(a)(2). In this case, potentially
affected species include bull trout, lynx and grizzly bear.
When evaluating the effects of the action, the agency is to
consider direct and indirect effects to the species and/or
critical habitat, together with other activities added to the
26 FRIENDS OF THE WILD SWAN V. WEBER
environmental baseline, which includes “the past and present
impacts of all Federal . . . activities in the action area, [and]
the anticipated impacts of all proposed Federal projects in the
action area . . . .” 50 C.F.R. § 402.02. The choice of
appropriate action areas “requires application of scientific
methodology and, as such, is within the agency’s discretion.”
Native Ecosystems Council v. Dombeck, 304 F.3d 886, 902
(9th Cir. 2002).
Similar to its NEPA argument above, Wild Swan
contends the Forest Service utilized an unduly narrow “action
area” and that it should have, instead, considered the Soldier
Addition and Spotted Bear Projects together. With respect to
the lynx and the grizzly bear, the agency’s justification for its
choice of analysis area is the same as in the NEPA analysis
set forth above, and we likewise conclude that Wild Swan has
not demonstrated a likelihood of success or serious questions
on the merits of its ESA claims with respect to these animals.
With respect to the bull trout, Wild Swan argues that the
action area was too narrowly defined to exclude the main
channel of the South Fork. As also discussed above, the
Forest Service did include what it considered to be the
relevant portions of that channel in the bull trout action area,
and gave reasons for selecting the upper and lower limits of
the river that are not arbitrary or capricious. There is no bull
trout spawning habitat within this particular stretch of the
river. Although some critical habitat does exist within this
action area, the Forest Service and USFWS agreed each
project was not likely to affect the habitat or species
adversely. This informal consultation satisfied the
requirements of the ESA and no formal consultation was thus
required. See 50 C.F. R. § 402.13; see also Conservation
Congress v. USFS, 720 F.3d 1048, 1056–57 & n.7 (9th Cir.
FRIENDS OF THE WILD SWAN V. WEBER 27
2013). The district court did not abuse its discretion by
determining Wild Swan has not demonstrated a likelihood of
success or serious questions on the merits of its ESA claims.
CONCLUSION
For the foregoing reasons, we conclude the district court
did not abuse its discretion by denying Wild Swan’s motion
for a preliminary injunction.
AFFIRMED.