Greenpeace, Inc. v. Earl Stewart

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREENPEACE, INC. and CASCADIA No. 17-35945
WILDLANDS PROJECT,
D.C. No. 3:08-cv-00162-RRB
Plaintiffs-Appellants,
v. MEMORANDUM*
EARL STEWART, Tongass National Forest
Supervisor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 14, 2018 **
Anchorage, Alaska
Before: HAWKINS, McKEOWN, and OWENS, Circuit Judges.
Greenpeace, Inc. and Cascadia Wildlands Project (collectively,
“Greenpeace”) appeal the grant of summary judgment in favor of the United States
Forest Service, Tongass National Forest Supervisor Earl Stewart, and Alaska
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This appeal was previously referred to mediation which proved
unsuccessful.
Regional Forester Beth Pendleton (collectively, “USFS”) and denial of
Greenpeace’s motion to enforce in an action under the National Forest Management
Act (“NFMA”), the National Environmental Policy Act (“NEPA”), and the
Administrative Procedure Act (“APA”). Greenpeace challenges USFS’s
authorization of four timber sale projects in the Tongass National Forest. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and remand to the district court
with instructions to grant Greenpeace’s motion to enforce.1
First, it was not an abuse of discretion to strike two declarations by Dr. Victor
Van Ballenberghe because they lack any relevant information not already contained
in the administrative record. See Sw. Ctr. for Biological Diversity v. U.S. Forest
Serv., 100 F.3d 1443, 1450–51 (9th Cir. 1996) (recognizing the presumption that
courts are limited to reviewing an administrative record except in a narrow set of
circumstances).
Next, USFS violated NFMA by relying on the VolStrata classification system
and deer multiplier in approving the timber projects. See 16 U.S.C. § 1604(a), (i)
(requiring compliance with forest plans). Specifically, VolStrata, which does not
accurately measure forest structure, was too unreliable to be used in conjunction with
the proxy on proxy approach of ensuring species viability. See Lands Council v.
1
We deny Greenpeace’s motion for judicial notice, (Doc. 31). Because we
do not consider Greenpeace’s citations to prior appeal briefs in its reply brief, we
deny as moot USFS’s motion to strike, (Doc. 33).
2
Powell, 395 F.3d 1019, 1036 (9th Cir. 2005) (“Crucial to [the proxy on proxy]
approach . . . is that the methodology for identifying the habitat proxy be sound.”).
USFS argues that its application of an overestimating deer multiplier was harmless
because its authorization would not change under a corrected deer multiplier.
However, USFS failed to explain how its second remand calculations complied with
the 1997 Forest Plan or, under its first remand calculations, why it was authorizing
the projects despite lower-than-recommended deer habitat capabilities. See In re Big
Thorne Project, 857 F.3d 968, 975–76 (9th Cir. 2017) (holding that land
management plans do not set “hard viability minimums—like deer per square mile”
but agencies must “rationally explain” why they authorized projects when deer
carrying capacities dip below recommended viability minimums).
Finally, USFS violated NEPA by declining to supplement its NEPA
documents despite significant new circumstances. 40 C.F.R. § 1502.9(c)(1)(ii)
(requiring supplementation where there are “significant new circumstances or
information relevant to environmental concerns and bearing on the proposed action
or its impacts”). Significant new circumstances arose when USFS’s reanalysis of
the projects revealed below-guideline deer habitat capabilities. See, e.g., Friends of
the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th Cir. 2000) (“[A]n agency that
has prepared an [environmental impact statement or environmental assessment]
cannot simply rest on the original document. The agency must be alert to new
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information that may alter the results of its original environmental analysis . . . .”).
We recognize this case has been litigated for over a decade; however, USFS
has been given multiple opportunities to correct flaws in its project analysis and has
ignored this court’s guidance. See Greenpeace, Inc. v. Cole, 445 F. App’x 925, 927
& n.3 (9th Cir. 2011) (holding that USFS failed to articulate its rationale for using
an overestimating deer multiplier and suggesting USFS either use a different data
set or explain how VolStrata represents the best available science). Thus, we reverse
the grant of summary judgment, vacate the denial of Greenpeace’s motion to
enforce, and remand with instructions to grant the motion to enforce, vacating
USFS’s approval of the four timber sale projects.
REVERSED in part, VACATED in part, and REMANDED with further
instructions.
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