Greater Hells Canyon Council v. Kris Stein ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREATER HELLS CANYON COUNCIL, No. 18-35742
an Oregon nonprofit corporation; OREGON
WILD, an Oregon nonprofit corporation, D.C. No. 2:17-cv-00843-SU
Plaintiffs-Appellants,
MEMORANDUM*
v.
KRIS STEIN, in her official capacity as
District Ranger of the Eagle Cap Ranger
District, Wallowa-Whitman National Forest;
UNITED STATES FOREST SERVICE,
Defendants-Appellees,
WALLOWA COUNTY,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted December 12, 2019
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and PRATT,** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert W. Pratt, United States District Judge for the
Judge.
Greater Hells Canyon Council and Oregon Wild (collectively, “the
Council”) appeal the district court’s grant of summary judgment in favor of
defendants, the United States Forest Service, District Ranger Kris Stein, and
Wallowa County (collectively, “the Forest Service”) for claims brought under the
National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–4370m;
the National Forest Management Act of 1976 (“NFMA”), Pub. L. No. 94-588, 90
Stat. 2949 (codified as amended in scattered sections of 16 U.S.C.); and the
Healthy Forest Restoration Act of 2003 (“HFRA”), 16 U.S.C. §§ 6501–6591e. The
parties are familiar with the facts, so we need not repeat them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s grant of summary judgment. Tri-
Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1123 (9th Cir. 2012). Under
the Administrative Procedures Act, a court “shall” set aside any agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). The court’s “role is ‘simply to ensure that the
Forest Service made no clear error of judgment that would render its action
arbitrary and capricious.’” Earth Island Inst. v. Carlton, 626 F.3d 462, 472 (9th
Cir. 2010) (citation omitted).
Southern District of Iowa, sitting by designation.
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Assuming, without deciding, that the HFRA § 603 categorical exception
requires extraordinary circumstances review, we conclude the Forest Service was
neither arbitrary nor capricious in concluding there were not extraordinary
circumstances present in the Lostine Project. See Ctr. for Biological Diversity v.
Ilano, 928 F.3d 774, 781 n.3 (9th Cir. 2019). In determining whether extraordinary
circumstances exist, the Forest Service must consider the effect of the proposed
action on seven “resource conditions.” 36 C.F.R. § 220.6(b)(1). The Forest Service
rationally concluded the Lostine Project had no effect, no adverse effect, likely no
adverse effect, or a neutral or beneficial effect on each applicable “resource
condition.”
The Lostine Project complies with NFMA’s requirement that it be consistent
with the Wallowa-Whitman Land and Resource Management Plan, as amended by
the Lostine River Wild and Scenic River Management Plan, 16 U.S.C. § 1604(i).
“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). The Forest Service reasonably interpreted its plan,
adhered to its relevant processes, documented its findings, and made rational
conclusions based on those findings.
The Forest Service adhered to the HFRA requirement that the Lostine
Project must be “developed and implemented through a collaborative process that
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(i) includes multiple interested persons representing diverse interests; and (ii)[] is
transparent and nonexclusive.” 16 U.S.C. § 6591b(b)(1)(C). Although the Council
argues the Forest Service must engage in a formal collaborative group process, this
contention is not supported by the text of the statute or its legislative history. The
Forest Service’s own internal guidelines require it to identify and involve relevant
stakeholders; design a strategy to conduct an open, inclusive, and transparent
process; and plan for implementation and evaluation as part of the collaborative
effort. The record amply supports that it did so in the Lostine Project.
Finally, the Council seeks to enter the extra-record declaration of Veronica
Warnock, its conservation director. Courts reviewing an agency decision are
limited to the administrative record, subject to narrow exceptions. Lands Council v.
Powell, 395 F.3d 1019, 1029–30 (9th Cir. 2005). “[D]istrict courts are permitted to
admit extra-record evidence: (1) if admission is necessary to determine ‘whether
the agency has considered all relevant factors and has explained its decision,’ (2) if
‘the agency has relied on documents not in the record,’ (3) ‘when supplementing
the record is necessary to explain technical terms or complex subject matter,’ or (4)
‘when plaintiffs make a showing of agency bad faith.’” Id. at 1030 (citation
omitted).
The district court did not abuse its discretion in excluding the declaration
because the declaration does not fill any holes in the administrative record, which
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contains extensive evidence about the Forest Service’s decision-making and
collaborative processes, nor does it fall under any other exception.
AFFIRMED.
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