FILED
NOT FOR PUBLICATION JAN 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES; No. 14-35050
FRIENDS OF THE CLEARWATER,
D.C. No. 3:12-cv-00466-MHW
Plaintiffs - Appellants,
v. MEMORANDUM*
RICK BRAZELL, Supervisor of the Nez
Perce National Forest; FAYE KRUEGER,
Regional Forester of Region One of the
U.S. Forest Service; UNITED STATES
FOREST SERVICE, an agency of the U.S.
Department of Agriculture; U.S. FISH &
WILDLIFE SERVICE, an agency of the
U.S. Department of the Interior,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Mikel H. Williams, Magistrate Judge, Presiding
Argued and Submitted December 8, 2014
Seattle, Washington
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiffs-Appellants Alliance for the Wild Rockies and Friends of the
Clearwater (collectively “Alliance”) appeal the district court’s grant of summary
judgment in favor of federal defendants the United States Forest Service (“USFS”)
and the Fish and Wildlife Service (“FWS”). Alliance argues that the district court
erred when it affirmed USFS’s decision to implement the Little Slate Project
(“Project”)—a 2,598-acre timber thinning sale within a 36,000-acre project area in
the 2.2 million-acre Nez Perce National Forest. Alliance asserts that the agencies
violated the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et
seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.,
and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.—and therefore
the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.—by failing to
properly account for the impact of the Project on several species that live in the
project area (fisher, goshawk, pileated woodpecker, and bull trout) and those
species’ habitats. We disagree. We find that the federal agencies satisfied their
obligations under NFMA, NEPA, the ESA, and the APA before implementing the
Project to improve long-term habitat and the health of the forest. We, therefore,
AFFIRM the district court’s entry of summary judgment in favor of the federal
defendants.
2
USFS did not violate NFMA when developing the Little Slate Project.
NFMA obligates USFS to comply with the Nez Perce Forest Plan when designing
and implementing site-specific projects for the Nez Perce National Forest. See 16
U.S.C. § 1604(i); Lands Council v. McNair, 537 F.3d 981, 989 (9th Cir. 2008) (en
banc). Although the Nez Perce Forest Plan requires USFS to monitor management
indicator species (“MIS”) (including fisher, goshawk, and pileated woodpecker)
populations at the forest level, nothing in the Plan requires USFS to conduct site-
specific monitoring before implementing individual projects like the Little Slate
Project. See Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1014 (9th Cir.
2012) (noting that “NFMA and its implementing regulations provide for forest
planning and management at two levels: the forest level and at the individual
project level”). USFS appropriately evaluated the impact of the Project on MIS by
considering how the Project would affect those species’ habitats. See Ecology Ctr.
v. Castaneda, 574 F.3d 652, 664–65 (9th Cir. 2009) (approving USFS’s use of the
same methodology for monitoring MIS); Lands Council, 537 F.3d at 997–98
(same). Thus, USFS did not violate the Nez Perce Forest Plan or NFMA when it
developed the Little Slate Project without conducting a population survey of MIS
such as the fisher, goshawk, and pileated woodpecker.
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Nor did USFS violate NEPA. NEPA requires federal agencies
contemplating “major Federal action” to prepare an environmental impact
statement (“EIS”) analyzing that action. See 42 U.S.C. § 4332(C). Reviewing
courts evaluate the EIS to ensure that the agency has taken a “hard look” at the
environmental consequences of the proposed action. Ecology Ctr., 574 F.3d at
657. An EIS satisfies NEPA’s hard look requirement if it “provides a full and fair
discussion of environmental impacts.” Lands Council, 537 F.3d at 1001.
After thoroughly reviewing the Little Slate Project Final EIS, we are
satisfied that USFS took the requisite “hard look” at the Project’s potential impacts
on the species. The Little Slate Project EIS closely examines the Project’s
potential impact on fisher, goshawk, pileated woodpecker, and bull trout by
considering how the Project will degrade or improve those species’ critical
habitats. This discussion includes an analysis of any potential cumulative
environmental impact to which the Project would contribute. That is sufficient to
satisfy NEPA’s hard look requirement.
Finally, USFS and FWS satisfied their obligations under the ESA. The ESA
prohibits federal agencies from taking any action that is “likely to jeopardize the
continued existence” of any listed or threatened species or “result in the destruction
or adverse modification” of those species’ critical habitats. 16 U.S.C.
4
§ 1536(a)(2). In its Biological Opinion relating to the Little Slate Project, FWS
concluded that the Project would not jeopardize bull trout—the only listed species
relevant here—or adversely modify its critical habitat. Consistent with the ESA,
FWS based this conclusion on the “best scientific and commercial data available.”
Id. This “no jeopardy” conclusion is supported by evidence in the record that
shows that the Project, while temporarily disrupting some bull trout habitat in the
short term, will have a long-term positive impact on many of the streams in which
bull trout live and reproduce. For these reasons, FWS’s Biological Opinion is
sufficient under the ESA. Thus, neither FWS nor USFS violated the ESA or the
APA by developing or relying on FWS’s Biological Opinion.
In sum, we are satisfied—on an independent review of the administrative
record as a whole—that USFS and FWS complied with NFMA, NEPA, the ESA,
and the APA. The agencies followed all applicable law and did not “rel[y] on
factors which Congress has not intended it to consider, entirely fail[] to consider an
important aspect of the problem, offer[] an explanation for its decision that runs
counter to the evidence . . . , or” come to a conclusion that “is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.”
Motor Vehicles Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983).
5
AFFIRMED.
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