Native Ecosystems Council v. Mary Erickson ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE ECOSYSTEMS COUNCIL; No. 18-35687
ALLIANCE FOR THE WILD ROCKIES,
D.C. No. 9:17-cv-00053-DWM
Plaintiffs-Appellants,
v. MEMORANDUM*
MARY ERICKSON, Custer Gallatin
National Forest Supervisor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted November 8, 2019
Portland, Oregon
Before: GILMAN,** PAEZ, and RAWLINSON, Circuit Judges.
Appellants Native Ecosystems Council and the Alliance for the Wild
Rockies appeal the district court’s order granting summary judgment in favor of
Defendants. We have jurisdiction under 28 U.S.C. § 1291. See Ctr. for Biological
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Diversity v. Ilano, 928 F.3d 774, 779 (9th Cir. 2019). We review claims under the
National Environmental Policy Act (NEPA) and the National Forest Management
Act (NFMA) by utilizing the Administrative Procedure Act (APA), and we may set
aside agency action that was arbitrary or capricious. See id. at 779–80; see also
Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013).
No private cause of action exists under the Healthy Forest Restoration Act
(HFRA), so asserted violations are also reviewed under the APA. See 16 U.S.C.
§§ 6501, 6515; see also Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1238 (9th Cir. 2005).
1. Initially, the district court did not abuse its discretion in declining to
expand the administrative record. The proffered materials, including an overlay
map, do not satisfy any of the “four narrowly construed circumstances” in which
we allow expansion of the administrative record. See Fence Creek Cattle Co. v.
U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).
2. The United States Forest Service (Forest Service) was not required to
prepare an environmental impact statement (EIS) for the designation of landscape-
scale areas. Under NEPA, a federal agency need not prepare an EIS when the
proposed federal action does not “change the status quo.” Ilano, 928 F.3d at 780
(citation omitted). Because the designation of landscape-scale areas did not
change the status quo, but only designated damaged areas of the forest, the
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decision did not trigger an obligation to prepare an EIS. See id. at 780–81.
3. The Forest Service decision to categorically exclude the Smith Shields
Project (Project) from NEPA was not arbitrary or capricious. An agency may issue
a categorical exclusion for a project approved under HFRA in certain
circumstances. See id. at 782 (citing 16 U.S.C. § 6591b(a)). The categorical
exclusion applies if, among other requirements, the project “maximizes the
retention of old-growth and large trees, as appropriate for the forest type, to the
extent that the trees promote stands that are resilient to insects and disease.” 16
U.S.C. § 6591b(b)(1)(A). In this case, the Forest Service concluded, based on
scientific research and analysis by its experts, that no old growth would be
removed in conjunction with the Project. An agency must have discretion to rely
upon the reasonable opinions of its own qualified experts. See Ilano, 928 F.3d at
783. Accordingly, there exists a reasonable basis for the Forest Service’s
application of the categorical exclusion.
4. The Forest Service decision to not prepare an EIS for the “Clean Up
Amendments” to the Forest Plan regarding old-growth forest and elk hiding cover
was not arbitrary or capricious. If, after preparing an environmental assessment
(EA), an agency finds that an action would have “no significant impact” on the
human environment, it may issue a finding of no significant impact (FONSI) and is
not required to prepare an EIS. 40 C.F.R. §§ 1501.4, 1508.9, 1508.13; see also
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Native Ecosystems Council, 428 F.3d at 1238–39. We review “whether the agency
has taken a hard look at the consequences of its actions, based its decision on a
consideration of the relevant factors, and provided a convincing statement of
reasons to explain why [an action’s] impacts are insignificant.” Nat’l Parks &
Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (internal
quotations, alterations, and citations omitted). We conclude that the Forest Service
has complied with these requirements in the present case.
5. As to the old-growth standard, the original and amended standards
both require the Forest Service to strive to maintain 10% old-growth forest. But
the amendment altered the scale over which that percentage must be achieved,
moving from the “timber compartment” to the “mountain range” scale.
Appellants argue that the Forest Service’s FONSI regarding the old-growth
amendment was arbitrary and capricious. In evaluating the amendment, the Forest
Service explained that the larger scale would yield more reliable data and was
more consistent with the Forest Plan’s original goal of achieving habitat diversity
across the landscape. The Forest Service also evaluated the effects of the
amendment, determining that it would not affect wildlife associated with old-
growth forest and also that it would likely cause an increase in old growth in the
long term. Given these determinations, even if old growth may vary from one
timber compartment to the next, it was not arbitrary or capricious for the Forest
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Service to conclude that the new scale would not have a significant impact on the
environment.
The remaining challenges to the old-growth amendment similarly fail.
Appellants claim the 10% old-growth requirement, which now applies to “lands
classified as forested,” previously applied to a larger area. We disagree.
Logically, the Forest Service can “strive to maintain” old-growth only where it
exists. Accordingly, the previous standard’s requirement of maintaining 10% old-
growth cover in timber compartments “containing suitable timber” necessarily
applied to forested areas. Appellants also argue that the Forest Service, in
amending the indicator-species standard, removed the only two indicator species
for old-growth forest (i.e., northern goshawk and pine marten). Again, we
disagree. Northern goshawk and pine marten continue to be indicators for “mature
forest,” a category that includes old-growth forest. Appellants’ remaining
arguments that the old-growth-related amendments were significant are unavailing.
6. As to the elk hiding-cover standard, the original and amended
standards both require the Forest Service to maintain at least two thirds of hiding
cover. The amendment again altered the denominator. Instead of maintaining two
thirds of the “hiding cover associated with key habitat components,” the Forest
Service must now maintain two thirds of specific tree species “on National Forest
System lands” and “with at least 40% canopy cover.”
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Appellants first challenge these changes as unsupported by the best available
science, a requirement under NFMA. 36 C.F.R. § 219.3. But in evaluating the
hiding-cover amendment, the Forest Service considered a collaborative report
prepared with the Montana Department of Fish, Wildlife, and Parks in 2013, which
included a significant review of research on elk security.1 The collaborative report
found that stands with 40% canopy cover “consistently functioned” to meet the
hiding-cover definition; that certain tree species are “naturally capable of having
relatively dense (>=40%) canopy cover”; and that “a specific quantifiable cover
recommendation was not supported by the scientific literature,” specifically
rejecting as untested prior reports recommending cover be “two-thirds of the total
area.” These findings support the hiding-cover amendments, and “we are required
to apply the highest level of deference in our review of the Forest Service’s
scientific judgments in selecting the elk hiding cover methodology.” Native
Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012).
Appellants argue the Forest Service’s FONSI regarding the hiding-cover
amendments was arbitrary and capricious. Appellants claim the two-thirds
1
Appellants’ argument that the Forest Service improperly “tiered” to the
collaborative report lacks merit. “Tiering” refers to an agency’s incorporation by
reference of another NEPA document’s broad discussion of environmental
impacts. See 40 C.F.R. § 1502.20. The administrative record includes the report
because the Forest Service considered it, not because the Forest Service tiered to it.
In any event, Appellants’ “best available science” challenge is raised under
NFMA, but only NEPA’s regulations address tiering.
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requirement previously applied to the total area of the relevant landscape, but the
pre-amendment standard contained no such language. Instead, the requirement
was to maintain two thirds of the “hiding cover associated with key habitat
components,” and the standard listed examples of such key habitats and explained
they would be “mapped on a site-by-site basis.” Appellants similarly claim the
two-thirds requirement previously applied to all forested areas and not just those
on the National Forest lands. But again, the old standard contained no such
language and was tied to maintaining key habitat components where they already
existed. Appellants claim that the amendment reduces hiding-cover protection by
now applying to only some tree species. But the Forest Service named those
species simply to point out trees “naturally capable” of providing sufficient cover.
The amended standard is therefore more precise but not less protective.
Appellants’ remaining arguments that the hiding-cover amendments were
significant are unavailing.
AFFIRMED.
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FILED
Native Ecosystems Council v. Erickson, Case No. 18-35687
MAR 20 2020
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Although I agree that the designation of landscape-scale areas under the
Healthy Forest Restoration Act did not require the preparation of an Environmental
Impact Statement (EIS), I respectfully dissent from the majority’s conclusions that
the Forest Plan amendments addressing old-growth and elk-hiding cover did not
trigger the requirement for a supplemental EIS addressing the amendments.
The Forest Service amended the old-growth standard as follows:
Forest Plan Standard 6(c)(2) Amended Standard 6(c)(2)
In order to achieve size and age diversity “Use fire and other management tools to
of vegetation, the Forest [Service] will help achieve vegetative size and age
strive to develop the following class diversity. In part, to achieve this
vegetative diversity, strive to maintain a
successional stages in timber minimum 10% old-growth forest on
compartments containing suitable lands classified as forested at the
timber: mountain range scale.”
Successional Stage\Minimum % of Area
...
Old Growth 10
This amendment substantially changed the old-growth measurement by
changing the unit of measurement. Prior to the amendment, the ten percent old-
growth amount was measured at a “timber compartment level.” The amended
standard provided for the ten percent old-growth amount to be measured at the
“mountain range scale.” The effect of this change was to allow the Forest Service
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to declare that it had complied with its old-growth standard if it could point to ten
percent over-growth anywhere on the mountain range, even if the standard was not
met in the timber compartment area being affected by a particular project. This is
such a significant change that a supplemental environmental impact statement was
warranted to insure that affected species were not negatively impacted. See Ctr.
for Biological Diversity v. Ilano, 928 F.3d 774, 779, 780 (9th Cir. 2019).
The same is true for the amendments to the elk-hiding cover standard. The
Forest Service amended that standard as follows:
Forest Plan Standard 6(a)(5): Amended Standard 6(a)(5):
Maintain at least two-thirds of the Vegetation treatment projects (e.g.,
hiding cover associated with key timber harvest, thinning and prescribed
habitat components over time. . . . Key burning) shall maintain at least
habitat components are important two-thirds (2/3) of Douglas fir,
features for wildlife. They include lodgepole pine, and subalpine fir
moist areas (wallows, etc.); foraging conifer forest cover types (on National
areas (meadows and parks); critical Forest System lands), with at least 40%
hiding cover (see Glossary in Chapter canopy cover (on National Forest
VI for definition); thermal cover; System lands), to function as hiding
migration routes; and staging areas. cover for elk at any point in time.
These areas will be mapped on a Hiding cover will be assessed for an
site-by-site basis during project area elk analysis unit (EAU) which is based
analysis. on a collaborative mapping effort
between the local state (MDFWP)
wildlife biologist and the local Forest
Service wildlife biologist. . . .
The problem with the amendment is that it again substantially modified the
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standard of measurement without adequately exploring the effect of the newly
adopted standard on available elk-hiding cover. Under the new standard, for
example, only hiding cover provided by certain types of tress was included in the
analysis. Also omitted were sources of hiding cover other than trees. These
omissions were inconsistent with the recommended amount of “good cover” from
acknowledged experts in this field. See L. JACK LYON, ET AL., COORDINATING ELK
AND TIMBER MANAGEMENT, FINAL REPORT OF THE MONTANA COOPERATIVE
ELK-LOGGING STUDY,1970-1985 9 (1985); see also Jack W. Thomas, et al.,
Wildlife Habitats in Managed Forests: the Blue Mountains of Oregon and
Washington, 553 U.S.D.A. FOREST SERVICE HANDBOOK 109 (Sept. 1979).
In sum, the Forest Service’s amendments to the Forest Plan “entirely failed
to consider [] important aspect[s] of” the amendments, rendering their adoption of
the amendments arbitrary and capricious. Hapner v. Tidwell, 621 F.3d 1239, 1244
(9th Cir. 2010) (citation omitted).
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