Neighbors of the Mogollon Rim v. Usfs

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEIGHBORS OF THE MOGOLLON RIM, No. 22-15259
INC.,
D.C. No. 2:20-cv-00328-DLR
Plaintiff-Appellant,
v. MEMORANDUM*
UNITED STATES FOREST SERVICE;
UNITED STATES FISH AND WILDLIFE
SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted February 8, 2023
Submission Withdrawn February 17, 2023
Resubmitted May 3, 2023
Phoenix, Arizona
Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.
The United States Forest Service (“USFS”) authorized cattle grazing on
several grazing allotments in the Tonto National Forest, in central Arizona.
Plaintiff Neighbors of the Mogollon Rim, whose members live in private
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
subdivisions on inholdings within one of the allotments, challenged the agency’s
decision. The district court held that the Forest Service complied with the
procedural requirements of the National Environmental Policy Act (“NEPA”)
when it prepared an Environmental Assessment (“EA”) and issued a decision
notice and a Finding of No Significant Impact. The court also held that the grazing
plan complied with the National Forest Management Act (“NFMA”) because it
was consistent with the Tonto Forest Plan. Plaintiff timely appeals.
Reviewing de novo the district court’s grant of summary judgment, Pac.
Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1091 (9th Cir. 2012),
we reverse and remand with instructions. We partially vacate the EA and the
accompanying decision notice.
1. The Forest Service violated NEPA by inadequately considering and
inadequately explaining the possible effects of the proposed agency action. See
Sierra Club v. Bosworth, 510 F.3d 1016, 1018 (9th Cir. 2007) (“NEPA is a
procedural statute that . . . ‘provides the necessary process to ensure that federal
agencies take a hard look at the environmental consequences of their actions.’”
(quoting Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070 (9th
Cir. 2002))). Here, the EA has three major flaws.
First, the agency did not consider a reasonable range of alternatives. When
reviewing whether an agency considered an adequate range of alternatives, the
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“touchstone for [the] inquiry” is whether the “selection and discussion of
alternatives fosters informed decision-making and informed public participation.”
Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir. 2004)
(quoting California v. Block, 690 F.2d 753, 767 (9th Cir. 1982)).
The EA considered only a “no-grazing” alternative and the proposed action.
Plaintiff maintains that the Forest Service should have considered a third
alternative that authorized some grazing on the Bar X ranch, but not on the
Colcord/Turkey Pasture. The Forest Service failed to give full and meaningful
consideration to Plaintiff’s proposed alternative, which maintains the status quo as
to the closure of the Colcord/Turkey Pasture to grazing. See W. Watersheds
Project v. Abbey, 719 F.3d 1035, 1050–53 (9th Cir. 2013) (“The existence of a
viable but unexamined alternative renders an [EA] inadequate.” (alteration in
original) (quoting Westlands Water Dist., 376 F.3d at 868)).
The EA’s primary rationale for rejecting Plaintiff’s proposed alternative was
that it would not advance the purpose and need of the project. The agency argues
that, because the Colcord/Turkey Pasture is designated as “suitable” for livestock
grazing by the Tonto Forest Plan, any alternative that excluded grazing on that
pasture would be inconsistent with the EA’s purpose and need. But that argument
misconstrues the role of the Forest Plan. The designation of land as suitable for
grazing does not eliminate the requirement for an appropriate NEPA analysis
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before grazing is authorized.
The EA also rejected the potential third alternative because “[t]he scope of
current management places it within the range of alternatives between the No
Grazing and the Proposed action.” To be sure, there is no minimum number of
alternatives that must be considered: the focus is on the substance of the
alternatives, not their number. Native Ecosystems Council v. USFS, 428 F.3d
1233, 1246 (9th Cir. 2005). But analyzing Plaintiff’s proposed alternative is
critical in this case. The agency did not consider maintaining the status quo, or any
other option between “no grazing” and the proposed alternative. Thus, the only
alternative considered by the EA that met the purpose and need of the project was
the proposed action. See High Country Conservation Advocs. v. USFS, 951 F.3d
1217, 1224 (10th Cir. 2020) (holding that the agency’s rationale for eliminating an
alternative that protected some land while leaving other land open to coal
exploration exhibited a “one-sided approach [that] conflicts with the agency’s
obligation under NEPA to ‘provide legitimate consideration to alternatives that fall
between the obvious extremes’” (quoting Colo. Env’t Coal. v. Dombeck, 185 F.3d
1162, 1175 (10th Cir. 1999))). Studying an alternative that excludes the
Colcord/Turkey Pasture from grazing would not require the Forest Service to adopt
that plan. Instead, it would allow the agency and the public to consider fully the
effects of the different alternatives and express informed opinions. See W.
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Watersheds Project, 719 F.3d at 1053–54 (remanding for consideration of
alternative grazing plans that could feasibly meet the agency’s grazing goals while
better preserving cultural objects).
Second, the EA failed to consider adequately the potential effects of the
agency’s action on residents of the neighboring communities. The EA asserts that
any effect on the Colcord and Ponderosa Communities would not be significant
because “these subdivisions have always been within an active grazing allotment.”
But that reasoning overstates the importance of the Forest Plan’s designation of
that area as “suitable” for grazing and ignores the fact that the Colcord/Turkey
Pasture has not actually been grazed for more than forty years, except in 2015.
The agency’s conclusory statement is insufficient to satisfy NEPA’s requirements.
See Bark v. USFS, 958 F.3d 865, 872 (9th Cir. 2020) (concluding that the agency
violated NEPA by relying on a vague and uncertain analysis instead of
meaningfully considering the effects of the proposed project).
The EA also states that “it [is] the responsibility of private landowners . . . to
construct a lawful fence to keep out cattle.” But the cited Arizona law addresses
only whether liability attaches if trespassing cattle cause property damage. Ariz.
Rev. Stat. Ann. § 3-1427. It does not create a mandate such that landowners
adjacent to grazing allotments must fence their land. The lack of potential tort
liability under state law does not dictate, or even inform, whether a federal
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agency’s action causes cognizable effects under NEPA. For the purposes of
NEPA, the Arizona law does not place a burden on landowners of constructing
fences to avoid conflicts.
The EA does analyze the potential for same place-same time encounters with
respect to recreational users and suggests possible adjustments to minimize those
conflicts, such as fencing popular dispersed recreation corridors or adjusting
grazing schedules. Yet the EA does not discuss whether the permittee should
maintain fencing or adjust grazing schedules to mitigate the prospect of encounters
with landowners, residents, and car traffic in that area. Additional analysis of same
place-same time encounters with residents and landowners is necessary to support
the Forest Service’s conclusion that the grazing plan will not have a significant
effect.
Third, the EA contains significant misstatements and errors that frustrate
NEPA’s goals of fostering informed decisionmaking and public participation. “An
agency fails to meet its ‘hard look’ obligation when it relies on incorrect
assumptions or data . . . or presents information that is so incomplete or misleading
that the decisionmaker and the public could not make an informed comparison of
alternatives.” Native Ecosystems Council v. Marten, 883 F.3d 783, 795 (9th Cir.
2018) (brackets omitted) (citation and internal quotation marks omitted).
The EA and the decision notice authorize 30% more grazing than is
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supported by the Forest Service’s grazing capacity analysis. The EA provides no
explanation for this discrepancy, and the Forest Service now contends that this
flaw is a typographical error. Plaintiff, however, maintains that there is a
substantive error that resulted in permitting livestock numbers that exceed the
agency’s own grazing capacity analysis. Regardless of which explanation is
correct, the error “materially affected the substance of the agency’s decision.”
Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095, 1104 (9th Cir. 2016); see
WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920, 926 (9th Cir.
2015) (“[T]he data the Forest Service provides to the public to substantiate its
analysis and conclusions must . . . be accurate.”).
Additionally, the historical grazing data are inaccurate and do not allow for
proper comparison to the proposed action. That error alone may not be enough to
render the NEPA analysis inadequate, but it is compounded by other
methodological choices that prevent the public from making an informed
comparison between the proposed alternatives and the current conditions. See Nat.
Res. Def. Council v. USFS, 421 F.3d 797, 811 (9th Cir. 2005) (“NEPA does not
force an agency to choose the most environmentally sound alternative, but it does
ensure that agency action is ‘fully informed and well considered.’” (quoting Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558
(1978))).
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Accordingly, we remand for the district court to enter an order directing the
agency to determine whether to prepare a new EA or to prepare an Environmental
Impact Statement (“EIS”).
2. We decline to reach Plaintiff’s argument that the Forest Service’s
decision not to prepare an EIS was arbitrary and capricious. See WildEarth
Guardians v. Provencio, 923 F.3d 655, 669 (9th Cir. 2019) (explaining that a
plaintiff must “raise ‘substantial questions whether a project may have a significant
effect’ on the environment” to prevail on a claim that the agency’s decision not to
prepare an EIS was arbitrary and capricious (quoting Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998))). The significant
flaws in the EA undermine the Forest Service’s conclusion that the proposed action
would have no significant effect on the environment. Because the seriously
inadequate EA creates significant uncertainty, we cannot “categorically decide”
that the agency could not support its conclusions in a revised EA. Ctr. for
Biological Diversity v. NHTSA, 538 F.3d 1172, 1226 (9th Cir. 2008). The “EA is
so procedurally flawed that we cannot determine whether the proposed rule or
project may have a significant effect.” Id. at 1225. A full EIS may be necessary,
but we leave that decision for the agency to consider in the first instance on
remand. See W. Watersheds Project, 719 F.3d at 1053–54 (holding that the agency
failed to consider a reasonable range of alternatives and remanding for the agency
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to either remedy the deficiencies in the EA or prepare a more detailed EIS).
3. We also decline to reach Plaintiff’s NFMA claim. After redoing the
NEPA analysis, the agency may decide to make different choices. See Or. Nat.
Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1124 (9th Cir. 2010)
(“NEPA is not a paper exercise, and new analyses may point in new directions.”).
Thus, it is not necessary to consider whether the current grazing plan complies
with NFMA, because a revised grazing plan may be substantively different.
4. We grant Plaintiff’s request for partial vacatur of the EA and
accompanying decision notice. “Although not without exception, vacatur of an
unlawful agency action normally accompanies a remand.” All. for the Wild
Rockies v. USFS, 907 F.3d 1105, 1121 (9th Cir. 2018) (emphasis omitted) (citing
Alsea Valley All. v. Dep’t of Com., 358 F.3d 1181, 1185 (9th Cir. 2004)).
“Whether agency action should be vacated depends on how serious the agency’s
errors are ‘and the disruptive consequences of an interim change that may itself be
changed.’” Cal. Cmtys. Against Toxics v. U.S. EPA, 688 F.3d 989, 992 (9th Cir.
2012) (per curiam) (quoting Allied–Signal, Inc. v. U.S. Nuclear Regul. Comm’n,
988 F.2d 146, 150–51 (D.C. Cir. 1993)).
The agency’s errors here are significant and vacatur will not cause an
environmental harm. Thus, the presumption of vacatur is not overcome. Cf.
Pollinator Stewardship Council v. U.S. EPA, 806 F.3d 520, 532 (9th Cir. 2015)
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(“When deciding whether to vacate rulings by the EPA, we consider whether
vacating a faulty rule could result in possible environmental harm, and we have
chosen to leave a rule in place when vacating would risk such harm.”); All. for the
Wild Rockies, 907 F.3d at 1121–22 (vacating agency action because the
government failed to address potential environmental harms and thus could not
overcome the presumption of vacatur).
In this case, partial vacatur is sufficient to prevent the harms flowing from
the inadequate NEPA analysis. See N. Cheyenne Tribe v. Norton, 503 F.3d 836,
843–44 (9th Cir. 2007) (upholding a partial injunction because it was sufficient to
remedy the failures of the agency’s NEPA analysis). The main flaws in the EA are
related to the authorization of grazing on the Colcord/Turkey Pasture and the
increase in permitted livestock. On remand, we order the district court to partially
vacate the EA and the accompanying decision notice to the extent that they allow
grazing on the Colcord/Turkey Pasture and authorize more than the equivalent of
374 adult cattle.1
1
The grazing capacity analysis calculated that the Colcord/Turkey Pasture could
support 1,154 Animal Unit Months (“AUMs”). If the Colcord/Turkey Pasture is
excluded from grazing, the grazing capacity analysis calculated that the remaining
Bar X and associated Driveway pastures could support 5,927 AUMs. It is unclear
from the EA whether the agency intended to use a conversion factor of 1.0 or 1.32.
Because our grant of partial vacatur is intended to ensure that grazing is not
authorized beyond the level supported by the EA, we err on the side of caution and
apply a conversion factor of 1.32. Thus, we calculate that the carrying capacity of
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REVERSED and REMANDED for further proceedings consistent with
this disposition.
the reduced grazing area is the equivalent of 374 adult cattle, where adult cattle
may include cow/calf pairs.
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