Alliance for the Wild Rockies v. Jim Pena , 865 F.3d 1211 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES, No. 16-35856
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-00294-
RMP
JIM PENA, in his official capacity as
Regional Forester of Region Six U.S.
Forest Service; UNITED STATES OPINION
FOREST SERVICE, an agency of the
United States; RODNEY SMOLDON, in
his official capacity as Supervisor of
the Colville National Forest,
Defendants-Appellees,
and
STEVENS COUNTY; NORTHEAST
WASHINGTON FORESTRY COALITION;
PEND OREILLE COUNTY,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted June 13, 2017
Seattle, Washington
2 ALLIANCE FOR THE WILD ROCKIES V. PENA
Filed August 1, 2017
Before: DOROTHY W. NELSON, MILAN D. SMITH,
JR., and MORGAN B. CHRISTEN, Circuit Judges.
Opinion by Milan D. Smith, Jr.
SUMMARY *
Environmental Law / Preliminary Injunction
The panel affirmed the district court’s denial of a
preliminary injunction in an action challenging the North
Fork Mill Creek A to Z Project in the Colville National
Forest in Washington.
The A to Z Project is a forest restoration project, and the
Alliance for the Wild Rockies filed an action challenging the
United States Forest Service’s decision to approve the A to
Z Project.
The panel held that Alliance had not demonstrated
serious questions, much less a likelihood of success, with
respect to any of its National Forest Management Act
(“NFMA”) and National Environmental Policy Act
(“NEPA”) claims. The panel concluded, therefore, that the
district court did not abuse its discretion in denying
Alliance’s motion for a preliminary injunction.
Specifically, the panel held that the Alliance had not
shown either serious questions or a likelihood of success on
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ALLIANCE FOR THE WILD ROCKIES V. PENA 3
the merits of its NFMA or NEPA claims: based on the Forest
Service’s use of “habitat as a proxy” approach for assessing
the viability of the pine marten; based on the Forest Service’s
use of the “proxy-as-proxy” approach for assessing the
viability of the fisher; based on the Forest Service’s snow-
intercept cover analysis; and based on the Forest Service’s
open road density analysis. The panel also held that the
Alliance had not shown either serious questions or a
likelihood of success on the merits of Alliance’s NEPA
claim based on the Forest Service’s sediment analysis.
COUNSEL
Thomas John Woodbury (argued), Boise, Idaho, for
Plaintiff-Appellant.
Rudy J. Verschoor (argued) and Vanessa R. Waldref,
Assistant United States Attorneys; United States Attorney’s
Office, Spokane, Washington; for Defendants-Appellees.
Lawson Emmett Fite (argued), American Forest Resource
Council, Portland, Oregon, for Intervenor-Defendants-
Appellees.
OPINION
M. SMITH, Circuit Judge:
Alliance for Wild Rockies (Alliance) appeals the district
court’s denial of a preliminary injunction in an action
regarding the North Fork Mill Creek A to Z Project (A to Z
Project) in the Colville National Forest in Colville,
Washington. Alliance alleges that United States Forest
4 ALLIANCE FOR THE WILD ROCKIES V. PENA
Service (Forest Service) violated the National Forest
Management Act (NFMA) and the National Environmental
Policy Act (NEPA) when it approved the A to Z Project. The
district court concluded that Alliance did not satisfy any of
the four required factors for the issuance of a preliminary
injunction. We affirm.
BACKGROUND
I. Statutory Schemes
A. NFMA
NFMA, 16 U.S.C. § 1600 et seq., requires the Forest
Service to develop and implement land and resource
management plans (forest plans) for each national forest.
16 U.S.C. § 1604(a). “These plans operate like zoning
ordinances, defining broadly the uses allowed in various
forest regions, setting goals and limits on various uses (from
logging to road construction), but do not directly compel
specific actions, such as cutting of trees in a particular area
or construction of a specific road.” Citizens for Better
Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir.
2003). Of particular relevance to this appeal, forest plans
must, among other substantive requirements, (1) “provide
for diversity of plant and animal communities based on the
suitability and capability of the specific land area,”
16 U.S.C. § 1604(g)(3)(B), and (2) “insure that timber will
be harvested from National Forest System lands only where
. . . protection is provided for streams, streambanks,
shorelines, lakes, wetlands, and other bodies of water from
detrimental changes in water temperatures, blockages of
water courses, and deposits of sediment, where harvests are
likely to seriously and adversely affect water conditions or
fish habitat.” Id. § 1604(g)(3)(E)(iii). “After a forest plan is
developed, all subsequent agency action, including site-
ALLIANCE FOR THE WILD ROCKIES V. PENA 5
specific plans . . . , must comply with NFMA and the
governing forest plan.” Ecology Ctr. v. Castaneda, 574 F.3d
652, 656 (9th Cir. 2009).
B. NEPA
NEPA, 42 U.S.C. § 4321 et seq., “is a procedural statute
intended to ensure environmentally informed decision-
making by federal agencies.” W. Watersheds Project v.
Abbey, 719 F.3d 1035, 1045 (9th Cir. 2013) (quoting
Tillamook Cty. v. U.S. Army Corps of Eng’rs, 288 F.3d 1140,
1143 (9th Cir. 2002)). NEPA requires agencies to take a
“hard look” at the environmental consequences of proposed
agency actions before those actions are undertaken.
Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt.,
387 F.3d 989, 993 (9th Cir. 2004). However, “NEPA does
not mandate particular substantive results, but instead
imposes only procedural requirements.” Cold Mountain v.
Garber, 375 F.3d 884, 892 (9th Cir. 2004) (citations and
internal quotation marks omitted).
Pursuant to NEPA’s implementing regulations, the
agency proposing the action may prepare an environmental
assessment (EA) to “[b]riefly provide sufficient evidence
and analysis for determining whether to prepare an
environmental impact statement [(EIS)] or a finding of no
significant impact [(FONSI)].” 40 C.F.R. § 1508.9(a)(1).
An EA is a “concise public document” that “[s]hall include
brief discussions of the need for the proposal, . . .
alternatives, . . . the environmental impacts of the proposed
action and alternatives, and a listing of agencies and persons
consulted.” Id. § 1508.9(b). “If the EA reveals that the
proposed action will significantly affect the environment,
then the agency must prepare an EIS.” Kern v. U.S. Bureau
of Land Mgmt., 284 F.3d 1062, 1067 (9th Cir. 2002). But,
6 ALLIANCE FOR THE WILD ROCKIES V. PENA
“[i]f the EA reveals no significant effect, the agency may
issue a [FONSI].” Id.
II. The A to Z Project
The A to Z Project is a forest restoration project that
encompasses 12,802 acres within the Colville National
Forest, which is managed in accordance with the Colville
National Forest Land and Resource Management Plan
(Colville Forest Plan). The A to Z Project is generally
comprised of commercial timber harvest treatments, road
maintenance, stream restoration, and culvert replacements.
The commercial timber harvest treatments include
commercial thinning, shelterwood harvest, and aspen
restoration, with the goals of increasing tree diversity,
improving stand productivity and wildlife habitat, and
reducing the severity of insect, disease, and wildfire threats.
The project was the result of a multi-year collaboration
among elected officials, environmental organizations,
Native American tribes, the timber industry, and community
organizations.
The Forest Service is empowered to “enter into
stewardship contracting projects with private persons or
other public or private entities to perform services to achieve
land management goals for the national forests and the
public lands that meet local and rural community needs.”
16 U.S.C. § 6591c(b). Pursuant to this authority, the Forest
Service offered the A to Z Project to private contractors as a
stewardship contract. Rodney D. Smoldon, the Forest
Supervisor for the Colville National Forest, explained that
“[t]he intent of this contract [was] to manage a piece of the
Colville [National Forest] system lands from the planning
stage through completion of all product removal and service
work activities.” Pursuant to the proposal, the successful
bidder would be responsible for hiring and funding a private
ALLIANCE FOR THE WILD ROCKIES V. PENA 7
contractor to perform the required NEPA analysis of the A
to Z Project.
The Forest Service officially solicited proposals from the
public for a contractor that would conduct all of the work
required by the A to Z Project, but only a single bidder,
Vaagen Brothers Lumber, submitted a proposal. Vaagen
Brothers Lumber was awarded the contract, and it hired
Cramer Fish Sciences to perform the NEPA analysis of the
A to Z Project.
Cramer Fish Sciences prepared the EA, which was
reviewed and approved by the Forest Service. On March 11,
2015, the Forest Service released the EA for public
comment. The Forest Service subsequently retracted and
revised the EA to address concerns raised by the public, and
issued the final EA on February 16, 2016. On June 13, 2016,
Smoldon signed the FONSI and Decision Notice approving
the A to Z Project.
III. Procedural History
On August 18, 2016, Alliance filed this lawsuit
challenging the Forest Service’s decision to approve the A
to Z Project. On September 6, 2016, Alliance filed a Motion
for a Preliminary Injunction with the district court. Stevens
County, Pend Oreille County, and the Northeast Washington
Forestry Coalition subsequently intervened as defendants.
On October 14, 2016, the district court held a hearing on
Alliance’s motion. After hearing from all parties, the district
court handed down an oral decision denying Alliance’s
Motion for a Preliminary Injunction. The district court
subsequently issued a written decision memorializing its
ruling. In particular, the district court found that (1) Alliance
failed to demonstrate a likelihood of success or “serious
8 ALLIANCE FOR THE WILD ROCKIES V. PENA
questions” going to the merits of its NFMA and NEPA
claims, (2) Alliance’s allegations of harm were “too
speculative to demonstrate a concrete and particularized
harm that creates an irreparable injury,” (3) the balance of
the equities weighed against an injunction because of the A
to Z Project’s intended environmental benefits and current
impact on the local economy, and (4) public interest also
weighed against an injunction for the same reasons. On
October 17, 2016, Alliance timely appealed.
STANDARD OF REVIEW
“We review the denial of preliminary injunctive relief for
abuse of discretion.” Friends of the Wild Swan v. Weber,
767 F.3d 936, 942 (9th Cir. 2014). A district court abuses
its discretion when it “base[s] its ruling on an erroneous view
of the law or on a clearly erroneous assessment of the
evidence.” Id. (quoting Inst. of Cetacean Research v. Sea
Shepherd Conservation Soc’y, 725 F.3d 940, 944 (9th Cir.
2013)).
“Because NFMA and NEPA do not provide a private
cause of action to enforce their provisions, agency decisions
allegedly violating NFMA and NEPA are reviewed under
the Administrative Procedure Act (‘APA’).” Native
Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233,
1238 (9th Cir. 2005). Under the APA, agency action is
unlawful if it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). “An agency action is arbitrary and capricious
‘only if the agency relied on factors Congress did not intend
it to consider, entirely failed to consider an important aspect
of the problem, or offered an explanation that runs counter
to the evidence before the agency or is so implausible that it
could not be ascribed to a difference in view or the product
of agency expertise.’” Defs. of Wildlife v. Zinke, 856 F.3d
ALLIANCE FOR THE WILD ROCKIES V. PENA 9
1248, 1257 (9th Cir. 2017) (quoting Conservation Cong. v.
U.S. Forest Serv., 720 F.3d 1048, 1054 (9th Cir. 2013)).
ANALYSIS
A party seeking a preliminary injunction must meet one
of two variants of the same standard. Under the original
Winter standard, a party must show “that he is likely to
succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). Under the “sliding scale” variant of
the Winter standard, “if a plaintiff can only show that there
are ‘serious questions going to the merits’—a lesser showing
than likelihood of success on the merits—then a preliminary
injunction may still issue if the ‘balance of hardships tips
sharply in the plaintiff’s favor,’ and the other two Winter
factors are satisfied.” Shell Offshore, Inc. v. Greenpeace,
Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th
Cir. 2011)).
For the reasons explained below, we conclude that
Alliance has not demonstrated serious questions, much less
a likelihood of success, with respect to the merits of any of
its NFMA and NEPA claims. We therefore conclude that
the district court did not abuse its discretion in denying
Alliance’s motion for a preliminary injunction. We examine
each of Alliance’s claims in turn. 1
1
Alliance’s complaint asserts an additional claim that the bidding
procedure used by the Forest Service to award the A to Z Project
stewardship contract to Vaagen Brothers Lumber violated Section 472a
10 ALLIANCE FOR THE WILD ROCKIES V. PENA
I. Mixed NFMA and NEPA Pine Marten and Fisher
Claims
Alliance first contends that the EA violated the Colville
Forest Plan by using “failed” proxy analyses to conclude that
A to Z Project would not significantly impact the viability of
the pine marten and the fisher. Alliance argues that the use
of these “failed” proxy analyses does not constitute the
requisite “hard look” required by NEPA, and that the Forest
Service additionally violated NEPA by failing to prepare an
EIS to evaluate the impact of the A to Z Project on the
viability of the pine marten and the fisher.
A. Pine Marten
The Colville Forest Plan designated the pine marten as a
management indicator species 2 for furbearers who inhabit
mature conifer forests. The Colville Forest Plan then set the
following goal, measured as “core areas,” for preserving the
pine marten’s habitat: “[e]very 2 to 2 ½ miles, provide units
of at least 160 acres of conifer timber in successional stages
VI (old growth), or V (mature) where stage VI is not
currently available.” The EA explained that 24 pine marten
core areas, totaling 1,950 acres, and 217 acres of stage VI
trees were located within the A to Z Project area, but that
neither the core areas nor the stage VI trees were marked for
of NFMA. Alliance raised this claim before the district court, and briefed
this claim on appeal. However, during oral argument, Alliance conceded
this claim for the purposes of this appeal. We therefore do not address
this claim.
2
“A species chosen as a management indicator species is used as a
bellwether . . . for the other species that have the same special habitat
needs or population characteristics.” Inland Empire Pub. Lands Council
v. U.S. Forest Serv., 88 F.3d 754, 762 n.11 (9th Cir. 1996).
ALLIANCE FOR THE WILD ROCKIES V. PENA 11
timber harvesting. The EA also found that connectivity of
the core areas would be preserved because no core area
would be completely surrounded by harvest treatments. The
EA recognized that the A to Z Project would inevitably lead
to some individual pine marten being displaced, injured, or
killed by equipment or human activity, but concluded that
because the A to Z Project would not impact the pine marten
core areas and stage VI trees, there would be no impact on
the viability of the pine marten population on the project site.
The EA’s use of the pine marten’s habitat as a proxy for
the viability of the species itself is referred to as the “habitat
as a proxy” approach. The Lands Council v. McNair,
537 F.3d 981, 996–97 (9th Cir. 2008) (en banc), overruled
on other grounds by Winter, 555 U.S. at 20. “[I]f the species
is used as an indicator of the population of another species,
it is [known as] a ‘proxy-on-proxy’ approach.” Friends of
the Wild Swan, 767 F.3d at 949. Proxy approaches are
permitted “where both the Forest Service’s knowledge of
what quality and quantity of habitat is necessary to support
the species and the Forest Service’s method for measuring
the existing amount of that habitat are reasonably reliable
and accurate.” Id. (quoting Native Ecosystems Council v.
U.S. Forest Serv., 428 F.3d 1233, 1250 (9th Cir. 2005)).
However, proxy approaches must “reasonably ensure[] that
the proxy results mirror reality.” Gifford Pinchot Task Force
v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1066 (9th Cir.
2004) (internal quotation marks omitted).
Alliance concedes that the Forest Service possessed the
requisite knowledge of the pine marten’s habitat
requirements on the basis of the Youkey Report, a 2012
report produced by the Colville National Forest that
confirmed the accuracy of the habitat assumptions embodied
by the Colville Forest Plan’s pine marten core areas
12 ALLIANCE FOR THE WILD ROCKIES V. PENA
standard. Likewise, Alliance does not challenge the EA’s
identification of the pine marten’s core areas and preferred
stage VI trees within the A to Z Project site. Instead,
Alliance argues that the EA’s “habitat as a proxy” analysis
was unreliable because (1) the Colville Forest Plan requires
monitoring of the pine marten population, but the Forest
Service has failed to conduct monitoring of the pine marten
since 1995, and (2) no pine marten have been spotted on the
project site since 1995. In making this argument, Alliance
cites to Native Ecosystems Council v. Tidwell, 599 F.3d 926,
933 (9th Cir. 2010), where we explained that “[t]he proxy-
on-proxy approach’s reliability is questionable where the
[management indicator species] is absent from the project
area.”
In response, we note first that the Colville Forest Plan
does not require population monitoring of the pine marten.
The Colville Forest Plan permits the Forest Service to
monitor the pine martin through three methods: “[a]cres of
suitable habitat in defined distribution; localized population
or activity trends within specified areas.” (Emphasis added).
Because the Forest Service was not required to conduct
population monitoring of the pine marten pursuant to the
Colville Forest Plan, the Forest Service’s failure to do so
since 1995 does not categorically preclude the Forest Service
from applying the “habitat as a proxy” approach. Cf.
Tidwell, 599 F.3d at 933–34 (“[T]he Forest Service cannot
reasonably argue that the proxy-on-proxy approach allows it
to avoid separately monitoring sage grouse population
trends, as sage grouse are its chosen [management indicator
species]. This is especially true where, as here, the forest
plan requires monitoring of the [management indicator
species].” (internal citation omitted)).
ALLIANCE FOR THE WILD ROCKIES V. PENA 13
Alliance’s reliance on Tidwell is also misplaced. In
Friends of the Wild Swan v. Weber, we clarified that the
absence of the management indicator species on the project
site does not necessarily invalidate a proxy analysis.
767 F.3d at 949. We explained that Tidwell invalidated the
proxy analysis in that case “where there was no data
indicating the presence of the species in the area, no
suggestion there was difficulty monitoring the species, and a
flaw in the Forest Service’s methodology that further
undermined the use of the habitat proxy approach.” Id. We
then upheld the use of a proxy approach in Friends of the
Wild Swan, explaining that although “no [management
indicator species] were actually detected in the relatively
small project area,” this was “likely due to monitoring
difficulties.” Id. at 949–50. We also noted that the plaintiff
“[did] not level specific criticisms at the Forest Service’s
habitat methodology.” Id.
The combination of factors present in Tidwell is similarly
absent here. First, although there have been no pine marten
sightings in the project area since 1995, the pine marten has
been seen in other parts of the Colville National Forest.
Second, the EA implicitly determined that there were
difficulties monitoring the pine marten. The EA explained
that “some . . . species may be comparatively easy to locate,
[and] others may be difficult to detect due to their scarcity,
mobility, behavior, or habitat use,” and therefore, the EA
would use either “surveys or habitat-based methods” to
analyze the impact of the A to Z Project on these species.
Because the EA then used a habitat-based method for the
pine marten by identifying pine martin core areas through
the Colville National Forest database, we can infer that the
EA found pine marten to be a species that is “difficult to
detect.” Third, as described above, Alliance does not
challenge the Forest Service’s knowledge of the pine
14 ALLIANCE FOR THE WILD ROCKIES V. PENA
marten’s required habitat or the EA’s identification of this
habitat within the project site. As such, the Forest Service’s
“habitat as a proxy” analysis was neither arbitrary nor
capricious. Accordingly, Alliance has not shown either
serious questions or a likelihood of success on the merits of
a NFMA or NEPA claim based on the Forest Service’s use
of the “habitat as a proxy” approach for assessing the
viability of the pine marten.
B. Fisher
Because the fisher is a furbearer that inhabits the Colville
National Forest, the EA used the habitat of the pine marten,
the management indicator species for furbearers, to similarly
conclude that the A to Z Project would not impact the
viability of the fisher. Alliance objects to this “proxy-on-
proxy” approach on three grounds. First, Alliance argues
that because the “habitat as a proxy” approach for the pine
marten is flawed for the reasons stated above, a “proxy-on-
proxy” approach based on the pine marten is similarly
flawed. Second, Alliance argues that there have been no
sightings of the fisher on the project site. Third, Alliance
argues that the pine marten is a flawed management
indicator species for the fisher because fisher require larger
ranges.
None of these arguments is availing. The absence of
fisher sightings on the project site has no bearing on the
reliability of the “proxy-on-proxy” approach to determining
the fisher’s viability. 3 Because the “proxy-on-proxy”
approach uses a management indicator species “as an
3
In any event, the record indicates that there were “at least two
probable sightings of fisher” in other parts of the Colville National
Forest.
ALLIANCE FOR THE WILD ROCKIES V. PENA 15
indicator of the population of another species,” Friends of
the Wild Swan, 767 F.3d at 949, sightings of the management
indicator species (the pine marten), not the absent species
(the fisher), play a role in determining the reliability of the
“proxy-on-proxy” approach. See Tidwell, 599 F.3d at 933–
34. And for the reasons stated above, the absence of pine
marten sightings on the project site does not invalidate the
EA’s “habitat as a proxy” analysis of the pine marten’s
viability; because the “proxy-as-proxy” approach is based
upon the “habitat as a proxy” approach for the management
indicator species, the absence of pine marten sightings does
not invalidate the EA’s “proxy-as-proxy” analysis for the
fisher for the same reasons. In addition, although Alliance
contends that fisher require larger ranges than pine marten,
Alliance does not challenge the EA’s conclusion that fisher
prefer late and old structural stands. The EA’s analysis,
including the identification of 1950 acres of stage V trees
and 217 acres of stage VI trees within the A to Z Project,
adequately addresses and accommodates the fisher’s
preferred habitat within the project site. Alliance thus has
not shown either serious questions or a likelihood of success
on the merits of a NFMA or NEPA claim based on the Forest
Service’s use of the “proxy-as-proxy” approach for
assessing the viability of fisher.
II. Mixed NFMA and NEPA Big Game Habitat Claims
Alliance next contends that the A to Z Project violates
the Colville Forest Plan’s snow-intercept cover standard and
open road density objective for big game habitat. Alliance
argues that the Forest Service violated NEPA by failing to
recognize the decrease in snow-intercept cover and the
increase in open road density as significant environmental
impacts and failing to prepare an EIS on these two issues.
16 ALLIANCE FOR THE WILD ROCKIES V. PENA
A. Snow-Intercept Cover
The Colville Forest Plan requires management activities
to work towards a 50:50 cover-to-forage ratio in big game
winter range to provide optimum forage use for big game
species. The current cover-to-forage ratio for the big game
winter range within the project site is 90:10. The EA
concluded that the A to Z Project’s harvesting activities
would reduce the cover-to-forage ratio to 70:30, moving the
ratio closer to the Colville Forest Plan’s desired ratio.
Alliance faults this analysis on two grounds. First,
Alliance cites to its own expert report, which opined that the
harvesting activities would have a far greater negative
impact by reducing the cover-to-forage ratio to 30:70.
Second, Alliance contends that the EA failed to adhere to the
recommendation from the 1993 Colville National Forest
monitoring report to analyze snow-thermal cover in the
entire winter range for big game, not just the two areas
currently identified in Colville Forest Plan.
The conflicting conclusion proffered by Alliance’s
expert report does not demonstrate that the Forest Service’s
cover analysis was arbitrary or capricious. NFMA’s
implementing regulations require the Forest Service to “use
the best available scientific information” in the forest
planning process. 36 C.F.R. § 219.3 (imposing this standard
on “the planning process required by [36 C.F.R. § 219] for
assessment”); id. § 219.15(d) (requiring that “[a] project or
activity approval document must describe how the project or
activity is consistent with applicable plan components”).
But even with this requirement, “it is not [the] role [of a
reviewing court] to weigh competing scientific analyses.”
Castaneda, 574 F.3d at 659. A party challenging the Forest
Service’s scientific analysis cannot simply “cite studies that
support a conclusion different from the one the Forest
ALLIANCE FOR THE WILD ROCKIES V. PENA 17
Service reached” and must instead provide “scientific
studies that indicate the Forest Service’s analysis is outdated
or flawed.” Id.
The Forest Service made its cover-to-forage ratio
calculations based on its Silviculture/Fire Specialist Report,
which explained that commercial thinning “would be very
light and homogenous through the harvest unit,” would
remove “[n]o more than 20 percent of the current volume,”
and would not create openings. In contrast, Dr. Sara
Johnson, the expert upon whom Alliance relies, asserts,
without explanation, that all logging activity in the A to Z
Project will result in a loss of cover. Dr. Johnson’s analysis,
which is based on her prior experience as a Forest Service
biologist in a different national forest, does not provide
requisite “scientific information directly undermining” the
analysis of the Silviculture/Fires Specialist Report.
Castaneda, 574 F.3d at 660.
Nor did the Forest Service arbitrarily and capriciously
decline to analyze snow-thermal cover in accordance with
the recommendation from the 1993 monitoring report. In
Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957,
973–74 (9th Cir. 2002), we held that the failure to implement
a monitoring report recommendation was arbitrary and
capricious because the monitoring report made an express
finding that the Forest Plan was inadequate on that particular
issue. But here, the 1993 monitoring report only suggested
that the Colville Forest Plan standard for evaluating snow
cover was inadequate: the 1993 monitoring report disclosed
that “[m]onitoring results indicate that some revision of
management direction may be needed” because “Forest Plan
standards . . . prescribe specific minimum levels of snow
intercept cover, which may not be realistic in all
circumstances.” (Emphasis added). The 1993 monitoring
18 ALLIANCE FOR THE WILD ROCKIES V. PENA
report then recommended, as one “suggested solution,” that
snow-thermal cover be evaluated throughout the entire
biological winter range. In the absence of an express finding
that the Colville Forest Plan’s standard for evaluating snow-
thermal cover is inadequate and must be remedied by
adopting the 1993 monitoring report’s recommendation, the
Forest Service did not arbitrarily or capriciously decline to
apply the 1993 monitoring report’s recommendation of
analyzing snow-thermal cover in the entire winter range.
In sum, Alliance has not shown either serious questions
or a likelihood of success as to the merits of a NFMA or
NEPA claim based on the Forest Service’s snow-intercept
cover analysis.
B. Road Density
The Colville Forest Plan establishes an open road density
objective “of less than 1.5 miles of open road per square
mile” on big game winter range. The current open road
density in the Colville National Forest already exceeds this
objective at 1.9 miles of open road per square mile. Alliance
contends that the A to Z Project would add an additional
30 miles of new temporary roads, which will further increase
the open road density’s noncompliance with the Colville
Forest Plan. In the EA, the Forest Service concluded that the
additional new temporary roads added by the A to Z Project
would neither increase nor decrease the current level of open
road density.
The Forest Service’s conclusion was neither arbitrary
nor capricious. Only a small portion of the 30 miles of new
temporary roads would be built on big game winter range,
and all 30 miles would be decommissioned and subject to
closure treatments as soon as the project activities end.
Accordingly, Alliance has not shown either serious
ALLIANCE FOR THE WILD ROCKIES V. PENA 19
questions or a likelihood of success on the merits of a NFMA
or NEPA claim based on the Forest Service’s open road
density analysis.
III. NEPA Sediment Claims
Alliance lastly contends that the Forest Service violated
NEPA by making an arbitrary and capricious determination
that sediment accumulation in streams within the project site
resulting from the A to Z Project’s activities was not a
significant environmental impact. Alliance raises three
objections to the Forest Service’s analysis: (1) that the Forest
Service impermissibly found the sediment impact to not be
“significant” because positive sediment reduction elements
of the A to Z Project outweighed the negative sediment
accumulation elements, (2) that the A to Z Project’s
sediment reduction measures do not occur in the same
streams in which the sediment accumulation occurs, and
(3) that the Forest Service did not consider the impact of
grazing on sediment delivery.
First, while Alliance is correct that “[a] significant effect
may exist even if the Federal agency believes that on balance
the effect will be beneficial” for NEPA purposes, 40 C.F.R.
§ 1508.27(b)(1), a federal agency may nevertheless
“consider the effect of mitigation measures in determining
whether preparation of an EIS is necessary.” Friends of the
Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989,
993 (9th Cir. 1993). The Forest Service estimated that the A
to Z Project’s improvements and mitigation measures would
result in a 0.5% net decrease in sediment delivery to streams
from logging roads, but Alliance observes that the A to Z
Project’s logging and road usage would result in a 64.1%
gross increase in sediment delivery. Alliance contends that
this drastic increase in sediment delivery will result in a fine
20 ALLIANCE FOR THE WILD ROCKIES V. PENA
sediment level that exceeds the 25% threshold and thus pose
a danger to fish egg survival.
However, Alliance’s focus on the gross increase in
sediment delivery overlooks the sequence in which activities
impacting sediment delivery will occur. All of the road
maintenance and reconstruction, which will result in a 64.7%
decrease in sediment delivery, is scheduled to take place
before the road construction, logging, and stream restoration
activities, which will result in the 64.1% increase in
sediment delivery. As explained by the Forest Service’s
Hydrology Report, “[t]he outcome from this sequence would
be immediate benefit of the maintenance and reconstruction,
followed by the effects of road construction, logging,
hauling, and prescribed burning.” Alliance’s theory that the
gross increase in sediment delivery will result in a fine
sediment level that threatens fish egg survival fails for this
reason. Because (1) the road rehabilitation and restoration
works will first lower the total sediment delivery before any
potential sediment delivery is increased by the A to Z Project
activities, and (2) the net result is a 0.5% decrease in
sediment delivery, the fine sediment rate is unlikely to
increase from the current level of 23% and exceed the fish-
threatening threshold of 25%. The Forest Service
permissibly relied on both the benefit of a net sediment
reduction and the specific sequence of sediment reduction
followed by sediment increase to conclude that the A to Z
Project’s sediment accumulation activities would not create
a significant environmental impact.
Alliance’s contention that the A to Z Project’s sediment
reduction measures will not affect all areas of sediment
accumulation is similarly unavailing. Alliance argues that
the A to Z Project’s five “hot spots” mitigation projects,
which constitute 1.7 miles of road improvement, are located
ALLIANCE FOR THE WILD ROCKIES V. PENA 21
downstream of roads that will generate sediment, and
therefore will not mitigate the adverse impacts of increased
sedimentation. However, mitigation measures “need not
completely compensate for adverse environmental impacts”
for an agency to rely upon them to find no significant
environmental impact. Friends of the Payette, 988 F.2d at
993 (quoting Friends of Endangered Species, Inc. v. Jantzen,
760 F.2d 976, 987 (9th Cir. 1985)). The Hydrology Report
explained that “[i]n general, approximately one-third or less
of total road system mileage has been found to contribute
sediment to stream systems; conversely, two-thirds or more
of road system mileage did not contribute.” The five “hot
spots” locations were thus chosen because they account for
“nearly two-thirds of [the annual] sediment delivery” caused
by existing roads, thereby presenting the “best sediment
reduction opportunities.” Moreover, Alliance ignores
additional project-wide sediment mitigation measures which
include the establishment of 300 feet buffers between timber
harvesting and fish-bearing streams and road maintenance
outside of the five “hot spots.” The Forest Service’s
consideration of the A to Z Project’s “hot spots” mitigation
measures was neither arbitrary nor capricious.
Finally, the Forest Service expressly considered the
potential sediment impact from grazing in the project site.
The EA recognized that “[l]ivestock grazing would continue
on NFS lands, with improved grazing practices that are
intended to improve riparian conditions, stream habitat, and
water quality.” The EA additionally found that “the total
amount of sediment introduced into stream systems as a
result of ongoing livestock grazing of the 33 cow/calf pairs
on the North Fork Mill, Strauss, and Rodgers pastures on
NFS lands within the project area is expected to continue to
decrease as grazing management allows riparian vegetation
to become reestablished and any overgrazed areas to
22 ALLIANCE FOR THE WILD ROCKIES V. PENA
recover.” These conclusions are supported by the EA which
analyzed and ultimately approved the Colville National
Forest’s proposal to authorize this grazing activity.
Accordingly, Alliance has not shown either serious
questions or a likelihood of success on the merits of a NEPA
claim based on the Forest Service’s sediment analysis.
CONCLUSION
For the foregoing reasons, we conclude that the district
court did not abuse its discretion in concluding that Alliance
failed to demonstrate either serious questions or a likelihood
of success with respect to the merits of any of its NFMA and
NEPA claims. Because a party seeking a preliminary
injunction must satisfy all four factors under both the Winter
and “sliding scale” standards for injunctive relief, Cottrell,
632 F.3d at 1135, we need not address the remaining three
factors. The district court’s denial of Alliance’s motion for
a preliminary injunction is therefore AFFIRMED. Alliance
shall bear costs on appeal. Fed. R. App. P. 39(a)(2).