Oregon Wild v. Kent Connaughton , 575 F. App'x 736 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 23 2014
MOLLY C. DWYER, CLERK
OREGON WILD and SIERRA CLUB, No. 12-35845 U.S. COURT OF APPEALS
Plaintiffs - Appellants, D.C. No. 1:05-cv-03004-PA
v.
KENT CONNAUGHTON, Regional MEMORANDUM*
Forester, Pacific Northwest Region and
UNITED STATES FOREST SERVICE,
Defendants - Appellees,
MT. ASHLAND ASSOCIATION, DBA
Ski Ashland,
Intervenor-Defendant -
Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted May 15, 2014
Portland, Oregon
Before: GOODWIN, IKUTA, and N.R. SMITH, Circuit Judges.
The district court did not abuse its discretion in dissolving the injunction it
had issued in accordance with Oregon Natural Resources Council Fund (ONRC) v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Goodman, 505 F.3d 884, 898 (9th Cir. 2007). See N. Alaska Envtl. Ctr. v. Lujan,
961 F.2d 886, 889 (9th Cir. 1992).
I.
The district court did not abuse its discretion in finding that the Forest
Service achieved the injunction’s objective, see Horne v. Flores, 557 U.S. 433, 450
(2009), by classifying all Landslide Hazard Zone 2 (LHZ 2) land as Riparian
Reserve and subjecting the reclassified land to the scrutiny required by the Rogue
River Land Resource Management Plan (LRMP), the Northwest Forest Plan
(NWFP), and the National Forest Management Act (NFMA). The 2011 Final
Supplemental Environmental Impact Statement (SFEIS) and Supplemental Record
of Decision (SROD), which re-approved the MASA expansion, analyzed the
project in light of the LHZ 2 reclassification, considering the degree of increase to
vegetation clearing and grading within Riparian Reserves and the decrease in
forested landcover. In any event, the Forest Service’s decision was not arbitrary or
capricious, see League of Wilderness Defenders Blue Mountains Biodiversity
Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010), because (1) “[a]lthough
there is an increase in acres classified as Riparian Reserves, standards and
guidelines would continue to be met because of the design of the proposed
expansion facilities”; and (2) the addition of the remaining LHZ 2 land to Riparian
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Reserves would not “affect the attainment of Aquatic Conservation Strategy
Objectives.”
To the extent Oregon Wild and the Sierra Club raised arguments regarding
the Riparian Reserve lands as a whole, the district court did not abuse its
discretion, see 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.
1999), in declining to consider them, because they pertained to the entire Riparian
Reserve classification rather than only the portion of LHZ 2 land that the Forest
Service was required to reclassify as Riparian Reserve. Flores, 557 U.S. at 450
(noting that the injunction in question provides the scope of review when
considering whether to dissolve it). To the extent Oregon Wild and the Sierra Club
argued that the Forest Service failed to subject LHZ-2 lands to the proper scrutiny
once they were reclassified as Riparian Reserves, any error on the part of the
district court in failing to reach these arguments was harmless, because (1) the
analysis associated with the MASA expansion project appropriately considered the
NWFP’s Aquatic Conservation Strategy, as identified in the 2011 SROD; and (2)
the Forest Service did not improperly rely on mitigation as a substitute for
preventing habitat degradation, as the project was designed with the NWFP’s
Standard WR-3 in mind, and mitigation measures were implemented to further
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minimize the expansion project’s effect on Riparian Reserves, including the LHZ 2
zones that are now designated as Riparian Reserve.
II.
The district court did not abuse its discretion in finding that the Forest
Service also achieved the injunction’s objective regarding Restricted Watershed
lands. The ONRC court clarified that 35 acres of Restricted Watershed could not be
treated as Developed Recreation without a specific plan amendment. 505 F.3d at
896. The Forest Service responded to this critique in the 2011 FSEIS and SROD by
properly including those 35 acres within a 74-acre “activity area” classified as
Restricted Watershed, which amounted to “the total developed area of impact . . .
for ski area expansion with the Upper Ashland Creek watershed.”1 In addition, the
Forest Service analyzed the associated impact of the expansion project within the
activity area to ensure consistency with Restricted Watershed Management
1
Oregon Wild and the Sierra Club claim that the “activity area” should only
include the 35 acres referenced in the first appeal, which would put the project out
of compliance with MS 22 standards. We reject this argument, because (1) we
defer to the Forest Service’s interpretation of “activity area” in its forest plan, see
Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005);
(2) the Forest Service had not previously defined the “activity area,” so this does
not represent an impermissible change of position, see Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983); and (3) the
definition of Restricted Watershed in the Rogue River LRMP specifically includes
the Ashland Watershed as a Restricted Watershed area.
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Strategy (MS) 22 in the Rogue River LRMP, including detrimental soil exposure
and mineral soil exposure requirements. It found that “the project would meet all
standards and guidelines for MS 22.” In this respect too, the Forest Service’s
decision to continue the project is not arbitrary or capricious, as it complied with
applicable forest plans and therefore the NMFA. See League of Wilderness
Defenders Blue Mountains Biodiversity Project, 615 F.3d at 1130.
AFFIRMED.
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