Bark v. Lisa Northrop

FILED
NOT FOR PUBLICATION APR 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARK, No. 14-35398
Plaintiff - Appellant, D.C. No. 3:13-cv-01267-HZ
v.
MEMORANDUM*
LISA NORTHROP, Forest Supervisor of
the Mt. Hood National Forest and
UNITED STATES FOREST SERVICE, a
federal agency,
Defendants - Appellees,
INTERFOR, U.S., INC.,
Intervenor-Defendant -
Appellee.
BARK, No. 14-35548
Plaintiff - Appellant, D.C. No. 3:13-cv-01267-HZ
v.
LISA NORTHROP, Forest Supervisor of
the Mt. Hood National Forest and
UNITED STATES FOREST SERVICE, a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
federal agency,
Defendants - Appellees,
INTERFOR, U.S., INC.,
Intervenor-Defendant -
Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted March 2, 2015
Portland, Oregon
Before: PAEZ and IKUTA, Circuit Judges and TIGAR,** District Judge.
Appellant Bark appeals the district court’s order granting summary judgment
to the United States Forest Service on Bark’s claims that the Forest Service
violated the National Environmental Policy Act (NEPA) and the National Forest
Management Act (NFMA) because it acted arbitrarily and capriciously when it
approved the Jazz Thinning project in the Mt. Hood National Forest. See 5 U.S.C.
§ 706(2)(A), (D). We have jurisdiction under 28 U.S.C. § 1291.
**
The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
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The Forest Service did not act arbitrarily and capriciously in considering
only the proposed forest thinning plan and a no-action alternative in the
Environmental Assessment (EA), because those were the only proposed
alternatives that “could feasibly meet the project’s goal.” Cf. W. Watersheds
Project v. Abbey, 719 F.3d 1035, 1052–53 (9th Cir. 2013). Because Bark’s
proposed alternatives (as stated in its comments to the EA) were not economically
viable and did not promote the project’s stated goals, the Forest Service was not
required to consider them. See Earth Island Inst. v. U.S. Forest Serv., 697 F.3d
1010, 1022–23 (9th Cir. 2012); see also Native Ecosystems Council v. U.S. Forest
Serv., 428 F.3d 1233, 1247–49 (9th Cir. 2005).
The Forest Service adequately discussed and considered in the EA the
potential environmental impacts of the project’s proposed reconstruction and
subsequent use of temporary roads, and its determination that any impact due to the
proposed road building and use would be minimal was not arbitrary and capricious.
See Hapner v. Tidwell, 621 F.3d 1239, 1244 (9th Cir. 2010) (citing 40 C.F.R. §
1508.9(b)). In making its determination, the Forest Service reasonably relied on
the findings of its soil specialist, and we defer to the agency’s expertise. See The
Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008). The Forest Service
adequately discussed in the EA its findings that the project’s active
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decommissioning of the rebuilt roads at the end of the project would have a
beneficial effect in limiting surface runoff and erosion, that the worst-case increase
in sediment due to the project would be “short-term and undetectable at the
watershed scale,” and that the mitigation measures restricting road usage would
ensure that any input of sediment from logging trucks would be minimal
The Forest Service adequately discussed and considered in the EA the
potential environmental impacts of the loss of large woody debris and the spread of
invasive species as a result of the project, and its determination that these impacts
would be minimal was not arbitrary and capricious. See Hapner, 621 F.3d at 1244.
The Forest Service’s reasonable determination that the project would preserve 90
percent of the relevant large woody debris through the establishment of 50 to 100-
foot buffer areas around streams, and that sufficient debris would be retained at the
end of the project, was based upon agency technical expertise, to which this court
defers. See McNair, 537 F.3d at 993. The Forest Service also adequately
discussed the potential for the spread of invasive species in the EA and provided
specific project design criteria directed at mitigating these risks. See Hapner, 621
F.3d at 1244.
The Forest Service’s decision to issue a Finding of No Significant Impact
(FONSI) in lieu of an Environmental Impact Statement (EIS) was not arbitrary and
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capricious because there is not “a substantial dispute about the size, nature or
effect” of the project. See Native Ecosystems Council, 428 F.3d at 1240(alterations and internal quotation marks omitted). Like in Native Ecosystems, the
Forest Service here took a “‘hard look’ at the environmental consequences” of its
proposed action and reasonably relied on its own expert reports and technical
expertise in concluding that the impact of the project would be insignificant. See
id. at 1240–44.
The Forest Service adequately assessed and explained why the project was
consistent with the Aquatic Conservation Strategy (ACS) in both the short and
long term in the EA, and we afford “substantial deference” to the Forest Service’s
interpretation and implementation of its own Forest Plan. See Great Old Broads
for Wilderness v. Kimbell, 709 F.3d 836, 850 (9th Cir. 2013); see also Pac. Coast
Fed’n of Fishermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028,
1031–32, 1034 (9th Cir. 2001). The Forest Service examined the project’s
compliance with all nine ACS objectives in the EA, and, among other things,
reasonably determined that the project would meet the ACS’s overall purpose of
restoring and maintaining “the ecological health of watersheds and aquatic
ecosystems” by eliminating overcrowding. The Forest Service reasonably
determined that the project met ACS objective eight, “maintaining and restoring
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species composition and structural diversity,” because the thinning will allow light
to penetrate through the crowded canopy, thereby promoting the “natural
recruitment of diverse plant communities” in the short term and structural diversity
through the long-term contribution of large woody debris to the area. The Forest
Service also reasonably determined that the road decommissioning after the
project’s completion would create a more natural sediment regime, thereby
satisfying ACS objective five, “maintaining and restoring sediment regimes.”
Accordingly, the Forest Service’s determination that the project was consistent
with ACS objectives was not arbitrary and capricious.
The district court did not abuse its discretion by awarding costs to the Forest
Service because its determination that Bark would not be burdened by an award of
$2,148.57 when it has an operating budget of $574,421 was not “illogical,
implausible, or without support in inferences that may be drawn from the facts in
the record.” United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en
banc).
AFFIRMED.
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