FILED
NOT FOR PUBLICATION JUN 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES No. 09-35619
and NATIVE ECOSYSTEMS COUNCIL,
D.C. No. 6:08-cv-00011-CCL
Plaintiffs - Appellants,
v. MEMORANDUM *
TOM TIDWELL; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted May 6, 2010
Portland, Oregon
Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.
Alliance for the Wild Rockies (“Wild Rockies”) appeals the district court’s
denial of its motion for summary judgment and the district court’s grant of
summary judgment to the Forest Service on Wild Rockies’s claims the Forest
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Service violated the National Environmental Policy Act (“NEPA”) and the
National Forest Management Act (“NFMA”) when the Forest Service approved the
Big Timber Canyon Project (“the project”)—a “sanitation harvest” of 180 acres of
timber in the Gallatin National Forest in Montana to control the infestation of the
Douglas-fir bark beetle. We affirm.
I
Wild Rockies’s opening brief included the Declaration of Michael Garrity,
which we construe as a motion to expand the record on appeal. See Fed. R. App.
P. 10(e)(2). Garrity declares that he is a member of Wild Rockies, that he has
plans to visit the proposed project area in the future, and that the project will impair
his ability to enjoy the area and observe wildlife such as the goshawk. We find, in
light of the representations made in oral argument, that this declaration, which
states it was made pursuant to 28 U.S.C. § 1746, meets the requirements of that
section, and that it is sufficient to establish Wild Rockies’s standing to bring suit.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63 (1992). We nonetheless
affirm.
II
First, the Forest Service concluded that the project’s potential impact on the
northern goshawk did not constitute an extraordinary circumstance that would
2
preclude the application of the sanitation harvest categorical exclusion; this
conclusion was not arbitrary or capricious. The bird is not a federally listed
sensitive species, and the Forest Service took sufficient measures based on
scientific studies to mitigate any effect that the logging might have on the nest it
identified in unit one. It created a 40-acre no-activity zone around the nest and
banned any logging activities from March 1 to August 15—when goshawk young
are born and grow up. Wild Rockies contends these measures are insufficient
based on different scientific studies. But, although a “party may cite studies that
support a conclusion different from the one the Forest Service reached, it is not our
role to weigh competing scientific analyses.” Ecology Ctr. v. Castaneda, 574 F.3d
652, 658–59 (9th Cir. 2009).
Second, the Forest Service was not required to consider whether the project
area’s proximity to an “inventoried roadless area” constituted an extraordinary
circumstance that would preclude the application of the sanitation harvest
categorical exclusion. The Forest Service manual states that it is an extraordinary
circumstance if a project will take place in an inventoried roadless area. However,
neither unit one nor unit two is such an area. Because the project does not take
place in an inventoried roadless area, it does not create an extraordinary
circumstance.
3
Lands Council v. Martin, 529 F.3d 1219, 1231 (9th Cir. 2008) is inapposite
because it addresses what an agency must consider in preparing an EIS, not what it
must consider in applying a categorical exclusion. Compare 40 C.F.R. § 1502.1
with 40 C.F.R. § 1508.4.
III
The Gallatin National Forest Plan requires that 10% of the area in every
timber compartment be old growth forest. The Forest Service’s determination that
its harvest would be in compliance with the 10% standard was not arbitrary or
capricious. It has calculated that 26% of the forest in the relevant timber
compartment qualifies as old growth. The harvest will reduce that by only 0.02%.
Wild Rockies contends this calculation is based on the Forest Service’s misreading
of the Forest Plan, but “[this court] defer[s] to the Forest Service’s reasonable
interpretation of the Forest Plan’s requirements.” Ecology Ctr., 574 F.3d at 661.
The Gallatin National Forest Plan also requires that the Forest Service
maintain 30 snags per 10 acres in all forested areas. The Forest Service’s
conclusion that its project would be in compliance with the Plan’s snag standard
was not arbitrary or capricious either.
AFFIRMED.
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