Friends of the Wild Swan v. Tim Garcia ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF THE WILD SWAN, a non- No. 14-35463
profit organization; ALLIANCE FOR THE
WILD ROCKIES, a non-profit D.C. No. 9:11-cv-00125-DWM
organization; MONTANA ECOSYSTEMS
DEFENSE COUNCIL, a non-profit
organization; NATIVE ECOSYSTEMS MEMORANDUM*
COUNCIL, a non-profit organization,
Plaintiffs - Appellants,
v.
TIM GARCIA, in his official capacity as
Forest Supervisor for the Lolo 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 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
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
Donald W. Molloy, District Judge, Presiding
Argued and Submitted May 3, 2016
Portland, Oregon
Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.
Friends of the Wild Swan, Alliance for the Wild Rockies, Montana
Ecosystems Defense Council, and Native Ecosystems Council (collectively,
“Plaintiffs”) appeal the district court’s summary judgment in favor of the United
States Forest Service, United States Fish & Wildlife Service, and three individuals
(collectively, the “Government Defendants”) in this suit challenging the decision
authorizing the Colt Summit Restoration and Fuels Reduction Project (“the
Project”). We have jurisdiction under 28 U.S.C. § 1291, and affirm in part, vacate
in part, and remand.
1. The “identification of the geographic area” that will be impacted by the
Project “is a task assigned to the special competency of the appropriate agencies.”
Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976); see also Idaho Sporting Cong.,
Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002) (“Ordinarily, an agency has
the discretion to determine the physical scope used for measuring environmental
impacts.”). The Forest Service appropriately justified its decision to look only at
the Clearwater Lynx Analysis Unit in measuring the Project’s impact on the lynx
and its critical habitat, noting, for example, that the Unit “would comprise more than
2
1 female homerange” and that the Project in total would impact “less than 10% of
the Clearwater LAU.”
2. Plaintiffs contend that formal consultation under 50 C.F.R. § 402.14between the Forest Service and the Fish and Wildlife Service was required because
the Government Defendants failed to apply definitions in the Fish & Wildlife
Service’s Consultation Handbook and incorrectly found the Project “not likely to
adversely affect” the Canada lynx. But, Plaintiffs did not preserve this issue for
appeal; they failed to raise it either in opposition to the Government Defendants’
motion for summary judgment or in response to the Government Defendants’
motions to dissolve the injunction. Thus, the issue is waived. See, e.g., Broad v.
Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996) (declining to reach the merits of
an issue that was not raised in the district court).
3. The Forest Service relied at least in part on “the standards in the 2007
Northern Rockies Lynx Management Direction” (the “Lynx Amendments”) in
analyzing the Project’s effects. In Cottonwood Environmental Law Center v.
United States Forest Service, issued after the decision below, we held that, because
of procedural flaws, “the Forest Service must reinitiate consultation on the Lynx
Amendments.” 789 F.3d 1075, 1085 (9th Cir. 2015). We therefore vacate the
district court’s determination that the Forest Service complied with the Endangered
Species Act, 16 U.S.C. § 1531 et seq., in relation to the lynx and lynx critical habitat.
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On remand, the district court should consider in the first instance the Government
Defendants’ argument that the Forest Service performed sufficient independent
analysis of the Project to render any reliance on the Lynx Amendments harmless.
4. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
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