Center for Biological Diversit v. Susan Skalski

FILED
NOT FOR PUBLICATION MAY 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 14-16948
DIVERSITY; et al.,
D.C. No. 1:14-cv-01382-GEB-
Plaintiffs - Appellants, GSA
v.
MEMORANDUM*
SUSAN SKALSKI, in her official capacity
as Forest Supervisor for the Stanislaus
National Forest and UNITED STATES
FOREST SERVICE, an agency of the
Department of Agriculture,
Defendants - Appellees,
TUOLUMNE COUNTY; et al.,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted May 11, 2015
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and CLIFTON, Circuit Judges and KOBAYASHI,** District Judge.
Plaintiffs Center for Biological Diversity, Earth Island Institute, and
California Chaparral Institute appeal the district court’s denial of their motions for
a preliminary injunction and to supplement the administrative record. We have
jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
Plaintiffs have not established a likelihood of success on the merits of their
claims under the National Environmental Policy Act. The Forest Service took the
requisite “hard look” at the impacts of the Rim Fire Restoration Project on the
California spotted owl. See Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137
F.3d 1372, 1376 (9th Cir. 1998). The Environmental Impact Statement and Record
of Decision adequately incorporated the 2014 owl occupancy survey results by
explaining that the Forest Service had reestablished six protected activity centers
where the surveys detected owl presence. The Forest Service also adequately
addressed the scientific literature on owl occupancy in post-fire, high-severity burn
habitat and, specifically, the Clark 2007, Clark et al. 2013, and Bond et al. 2009
studies. It sufficiently explained that the studies had limited implications for the
**
The Honorable Leslie E. Kobayashi, U.S. District Judge for the
District of Hawaii, sitting by designation.
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Project, due to both differences between conditions in the Project area and those of
the studies, and the uncertainty of the studies’ conclusions.
The Forest Service provided a reasonable justification in the EIS for its
conclusion that, although the Project might impact individual owls, it would not
lead to the listing of the species. Unlike in Earth Island Institute v. U.S. Forest
Serv., 442 F.3d 1147 (9th Cir. 2006), where the Forest Service improperly
discounted Bond’s earlier studies and assumed that there would be no adverse
impacts of salvage logging, here the Forest Service addressed Bond et al. 2009 and
other relevant studies and acknowledged the possible short-term impacts on the
spotted owl from salvage logging. The Forest Service then analyzed the impacts
on owls according to its six indicators, before concluding there would be no long-
term trend toward listing. The Forest Service therefore engaged in “a discussion of
adverse impacts that does not improperly minimize negative side effects.” League
of Wilderness Defenders–Blue Mtns. Biodiversity Proj. v. U.S. Forest Serv., 689
F.3d 1060, 1075 (9th Cir. 2012) (quoting N. Alaska Envtl. Ctr. v. Kempthorne, 457
F.3d 969, 975 (9th Cir. 2006)).
The Forest Service was not required to prepare a supplemental EIS to further
consider the 2014 owl occupancy survey results. The survey results did not
constitute significant new information because they did not significantly change
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the scope of the Project or the environmental consequences of the alternatives. See
40 C.F.R. § 1502.9(c)(1); Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d
1113, 1130 (9th Cir. 2012). As the Forest Service explained, none of the six new
PACs that the Forest Service established in response to the 2014 surveys would
“overlap to any meaningful degree” with the Project’s treatment units.
The district court did not abuse its discretion in denying Plaintiffs’ motion to
supplement the administrative record. The three declarations that Plaintiffs sought
to introduce were not necessary to determine whether the Forest Service
considered all relevant factors or to explain technical terms or complex subjects.
Cf. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602-03 (9th
Cir. 2014). To the extent the declarations highlighted information on which the
Forest Service did not rely, Plaintiffs already emphasized this information in their
NEPA comments and Monica Bond’s August 21, 2014 letter and owl occupancy
data analysis. The studies that the declarations addressed were already in the
record and discussed and cited in the EIS.
AFFIRMED.
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