League of Wilderness Defenders/Blue Mountains Biodiversity Project v. United States Forest Service , 585 F. App'x 613 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEAGUE OF WILDERNESS No. 13-35054
DEFENDERS/BLUE MOUNTAINS
BIODIVERSITY PROJECT, an Oregon D.C. No. 3:10-cv-01397-SI
nonprofit corporation,
Plaintiff - Appellant, MEMORANDUM*
v.
UNITED STATES FOREST SERVICE,
an agency of the United States Department
of Agriculture; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted July 9, 2014
Portland, Oregon
Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
Appellant League of Wilderness Defenders/Blue Mountains Biodiversity
Project (“LOWD”) appeals the district court’s summary judgment ruling granting
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
in part and denying in part the parties’ cross-motions for summary judgment on
LOWD’s claims against the United States Forest Service (“Forest Service”)
relating to the Forest Service’s approval of a project to apply herbicides in the
Wallowa-Whitman National Forest (the “Project”). We affirm in part, reverse in
part, and remand.
1. Although the district court granted relief to LOWD on one of its
National Environmental Policy Act (“NEPA”) claims and remanded that claim to
the Forest Service, we conclude that the court’s judgment is final under 28 U.S.C.
§ 1291. The remand order does not require the Forest Service to reconsider any of
the issues LOWD raises on appeal. It is therefore “meaningless” as to the relevant
appellate issues. In these circumstances, the district court’s judgment is final for
the purposes of this appeal. Sierra Forest Legacy v. Sherman, 646 F.3d 1161,
1175–76 (9th Cir. 2011). Thus, this court has jurisdiction under § 1291. Id.; see
also HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1229 (9th Cir.
2014).
2. In approving the Project, the Forest Service did not violate the
National Forest Management Act (“NFMA”) by failing to discuss in the
Environmental Impact Statement (“EIS”) that the project would be consistent with:
(1) the Interim Strategies for Managing Anadromous Fish-producing Watersheds
2
in Eastern Oregon and Washington, Idaho, and Portions of California
(“PACFISH”), and (2) the Inland Native Fish Strategy (“INFISH”). PACFISH and
INFISH are strategies for managing riparian habitats and are incorporated into the
Forest Plan. The Forest Service’s analysis of impacts to riparian habitats
contained in the portions of its EIS addressing the Endangered Species Act
(“ESA”) and setting forth the Project Design Features is sufficient for us to
“reasonably . . . ascertain . . . that the Forest Service is in compliance with”
PACFISH/INFISH, including the riparian management objectives (“RMOs”) and
standard RA-3. Native Ecosystems Council v. U.S. Forest Serv., an agency of U.S.
Dep’t of Agric., 418 F.3d 953, 963 (9th Cir. 2005). We therefore affirm the district
court’s ruling on LOWD’s NFMA claim.
3. The Forest Service did, however, violate the NEPA. The Forest
Service recognized that the Project might “potentially affect[]” riparian conditions
and the potential impact on riparian habitats was identified as a significant issue.
Because PACFISH/INFISH provides the approved strategy for managing riparian
habitats and the criteria for assessing whether such habitats are adequately
maintained, the Forest Service was required, under NEPA, to include an explicit
PACFISH/INFISH analysis in its EIS. See 40 C.F.R. § 1502.2(d); Oregon Natural
Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1109 (9th Cir. 2010)
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[hereinafter ONDA]. Although the analysis contained in the portions of the EIS
discussing the ESA and the Project Design Features addressed issues relevant to
the PACFISH/INFISH analysis, the Forest Service never stated in the EIS that it
relied upon those discussions to conclude that the Project was consistent with
PACFISH/INFISH. Moreover, on appeal, the Forest Service expressly disclaims
that it satisfied its obligation to analyze the Project’s consistency with
PACFISH/INFISH “by proxy” through its discussion of the Project Design
Features and ESA analysis, and maintains that it had no duty to perform a
“consistency analysis” of the PACFISH/INFISH standards. In ONDA, we rejected
the Forest Service’s argument that its consideration of certain resource values
could serve as a proxy for an analysis of wilderness characteristics in part because
“the BLM never purported to have developed such a proxy methodology” and had
“firmly maintained that . . . it need not address the fate of non-WSA lands with
wilderness characteristics at all.” Id. at 1121. We explained that “courts may not
accept . . . post hoc rationalizations for agency action.” Id. at 1120. Here, in light
of the EIS, and the Forest Service’s position on the need to show consistency with
PACFISH/INFISH, we similarly cannot conclude that the Forest Service fulfilled
its obligation to analyze PACFISH/INFISH consistency in the EIS as required by
NEPA. See id. Accordingly, we reverse the district court’s summary judgment
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ruling on LOWD’s NEPA claim and remand for further proceedings consistent
with this memorandum disposition. The parties shall bear their own costs on
appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
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FILED
OCT 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
League of Wilderness Defenders v. United States Forest Service, No. 13-35054
WATFORD, Circuit Judge, concurring in part and dissenting in part:
For the reasons given by the district court, I would affirm in full.