Tongass Conservation Society v. United States Forest Service

FILED
NOT FOR PUBLICATION JUN 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TONGASS CONSERVATION SOCIETY, No. 10-35232
et al.,
D.C. No. 3:10-cv-00006-TMB
Plaintiffs - Appellants,
v. MEMORANDUM *
UNITED STATES FOREST SERVICE,
US Department of Agriculture, et al.,
Defendants - Appellees,
VIKING LUMBER COMPANY, INC., et
al.,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted June 7, 2010
Seattle, Washington
Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Tongass Conservation Society, Greenpeace, and Cascadia Wildlands
(collectively, “TCS”) claim that the district court abused its discretion in holding
that TCS had a low likelihood of success on the merits of its National
Environmental Policy Act (NEPA) and National Forest Management Act (NFMA)
claims, and therefore erred in denying TCS’s motion for a preliminary injunction
to stop the Logjam Timber Sale Project (“Logjam”). Under our deferential
standard of review, we affirm the district court. See Sierra Forest Legacy v. Rey,
577 F.3d 1015, 1021 (9th Cir. 2009).
NEPA Claims. The district court did not abuse its discretion in holding that
TCS had a very low likelihood of succeeding on the merits of its claim that the
Forest Service violated NEPA by failing to take a “hard look” at the impacts of the
Logjam project on the aquatic environment, Alexander Archipelago wolves, and
the Sitka black-tailed deer. See, e.g., Native Ecosystems Council v. Tidwell, 599
F.3d 926, 937 (9th Cir. 2010). First, the record indicates that the Forest Service
considered the impacts on the aquatic environment from open, stored, and
decommissioned roads over the length of the project, and reasonably concluded
that the impacts would be minor. The record likewise indicates that the Forest
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Service considered these impacts in the context of the existing, degraded
conditions of the affected watersheds.1
Second, the record establishes that the Forest Service took a hard look at the
potential impacts of Logjam on wolves and discussed this issue extensively in the
DEIS and FEIS. Although the DEIS erroneously stated that the Alaska
Department of Fish and Game (ADF&G) did not have concerns about wolf
mortality, the DEIS contained enough information to elicit extensive, detailed
public comments on the wolf mortality analysis. Moreover, the Forest Service
corrected its error in the FEIS. Because “the NEPA goals of public participation
and informed decision-making occurred,” Westlands Water Dist. v. U.S. Dep’t of
the Interior, 376 F.3d 853, 874 (9th Cir. 2004), TCS was unlikely to succeed on its
claim that the Forest Service’s consideration of the impacts on wolves fell short of
NEPA’s requirements.
Third, the district court’s conclusion that the Forest Service took a hard look
at Logjam’s impacts to deer is supported by the record. The Forest Service
adequately accounted for impacts to deer habitat on non-federal lands within the
1
TCS’s related claim that the Forest Service did not adequately analyze the
impacts from the Logjam project in conjunction with the impacts from other
reasonably foreseeable activities was not raised in the opening brief below and not
developed in the reply brief below. Therefore, that claim was not preserved for
appeal. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990).
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project area by analyzing a worst-case scenario. The Forest Service’s decision to
focus on impacts to deer winter habitat, rather than summer habitat, was a
scientific determination within the Forest Service’s area of expertise that is entitled
to deference. See Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707
(9th Cir. 2009). Further, the Forest Service adequately explained how it analyzed
impacts on deer; the record discloses that the Forest Service considered both “high-
value deer winter range” and acres of average-snow winter and deep-snow winter
range. See Adler v. Lewis, 675 F.2d 1085, 1096 (9th Cir. 1982).
NFMA Claims. The district court did not abuse its discretion in holding that
TCS had a low likelihood of success on its claims that the Forest Service violated
NFMA by failing to comply with the requirements of the Tongass Land and
Resource Management Plan (the “Forest Plan”) regarding red culverts, wolf habitat
management plans, and modeling deer habitat. First, the Forest Service’s
determination to fix only eleven of the existing twenty-five red culverts did not
conflict with the Forest Plan. The Forest Service’s interpretation of its own plan as
not requiring it to cure pre-existing problems as a condition of implementing a new
project was a reasonable interpretation to which we defer. See Auer v. Robbins,
519 U.S. 452, 461 (1997); Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565
F.3d 545, 555 (9th Cir. 2009). Second, even if the Forest Service’s interpretation
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of the Forest Plan as requiring the implementation of a Wolf Habitat Management
Plan (WHMP) only when the Forest Service itself is concerned about wolf
mortality is unreasonable, we defer to Forest Service’s reasonable determination
that it did not have to prepare a WHMP in advance of implementing Logjam. See
id. For this reason, the Forest Service’s decision not to develop a WHMP did not
violate the plan. Third, the Forest Service’s determination that the Forest Plan
allowed it to use “alternate analysis tools,” including consideration of “[l]ocal
knowledge of habitat conditions,” for determining the impacts on deer was
reasonable. See id. Moreover, the Forest Service did consider the output of the
most recent deer habitat capability model as reported in the 2008 Forest Plan.
Finally, the Forest Service’s approval of a project that would result in less than
eighteen deer per square mile was reasonable in light of the conflicting objectives
of the Forest Plan. See Native Ecosystems Council v. Dombeck, 304 F.3d 886, 900
(9th Cir. 2002).
In sum, the district court correctly determined that TCS had a “very low
likelihood of success on the merits” of its NEPA and NFMA claims. Therefore,
even assuming the district court was correct in concluding that the balance of the
hardships and the public interest tipped in TCS’s favor, the district court did not
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abuse its discretion in denying TCS a preliminary injunction. See Wildwest Inst. v.
Bull, 472 F.3d 587, 590 (9th Cir. 2006).
AFFIRMED.
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