FILED
NOT FOR PUBLICATION FEB 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE LANDS COUNCIL; HELLS No. 14-35176
CANYON PRESERVATION COUNCIL;
LEAGUE OF WILDERNESS D.C. No. 2:12-cv-00619-FVS
DEFENDERS-BLUE MOUNTAINS
BIODIVERSITY PROJECT,
MEMORANDUM*
Plaintiffs - Appellants,
v.
UNITED STATES FOREST SERVICE,
Defendant - Appellee,
And
ASOTIN COUNTY, a political
subdivision of the State of Washington;
AMERICAN FOREST RESOURCE
COUNCIL, an Oregon nonprofit
corporation,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted February 2, 2015
Seattle Washington
Before: BEA and MURGUIA, Circuit Judges, and ORRICK, District Judge.**
This case concerns the U.S. Forest Service’s South George Vegetation and
Fuels Management Project, which is a small fuels treatment and commercial timber
harvest project located within the Umatilla National Forest. Plaintiffs-appellants
filed suit to enjoin the Project, arguing that the Project violated both the National
Forest Management Act (NFMA), 16 U.S.C. §§ 1600–1687, and the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4370h. The district court
granted summary judgment in favor of the Forest Service on all claims. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
“[A]gency decisions allegedly violating NFMA and NEPA are reviewed
under the Administrative Procedure Act (‘APA’).” Native Ecosystems Council v.
U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). “Under the APA, we may
set aside an agency decision if it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). We
**
The Honorable William Horsley Orrick III, United States District
Judge for the Northern District of California, sitting by designation.
2
independently review the district court’s application of this standard. See Earth
Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012).
First, plaintiffs-appellants argue that the Project is inconsistent with the
Forest Plan, and therefore violates the NFMA, because the Project fails to retain 3
large snags per acre per dry forest unit. See 16 U.S.C. § 1604(i); Great Old Broads
for Wilderness v. Kimbell, 709 F.3d 836, 850 (9th Cir. 2013) (“After a Forest Plan
has been developed and implemented, the NFMA prohibits site-specific activities
that are inconsistent with the governing Forest Plan.”). The Forest Service
concedes that some units within the Project area do not meet the 3-large-snag
retention specification, but notes that the Project accounts for this deficiency by
prohibiting harvest of large snags in these units and retaining smaller snags and
large live trees that will one day turn into snags. The Forest Service’s
determination that these remedial measures comply with the Forest Plan’s snag
provisions was not arbitrary or capricious. See Ecology Ctr. v. Castaneda, 574
F.3d 652, 661 (9th Cir. 2009) (deferring to the Forest Service’s reasonable
interpretation of the Forest Plan’s requirements).
Second, plaintiffs-appellants argue that the Project violates the NFMA
because the Project’s proposed tree removal in a Riparian Habitat Conservation
Area fails to comply with the Forest Plan’s timber management standard. See 16
3
U.S.C. § 1604(i); Great Old Broads, 709 F.3d at 850. The Forest Service responds
that the Project is not required to satisfy the Forest Plan’s timber management
standard because the Project meets the Forest Plan’s fuels treatment standard
instead. Although the Project’s plan documents are not a model of clarity, the
documents contain multiple references to fuel management and the reduction of
forest fires in connection with the proposed tree removal. Therefore, we conclude
that the Forest Service’s reliance on the fuels treatment standard was not a post-hoc
rationalization. See Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 50 (1983).
Additionally, the Forest Service’s conclusion that the Project satisfies the
fuels treatment standard was not arbitrary or capricious. In reaching its conclusion,
the Forest Service conducted extensive research about the tributary, George Creek,
and its water temperature. “Because analysis of scientific data requires a high level
of technical expertise, [we] must defer to the informed discretion of the responsible
federal agencies.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1301 (9th
Cir. 2003). Therefore, we hold that the Forest Service has complied with the
NFMA in authorizing the South George Project.
Third, plaintiffs-appellants argue that the Forest Service violated the
NEPA’s hard-look requirement by excluding land within 300 feet of all forest
4
roads from wilderness area consideration. See 42 U.S.C. § 4332; W. Watersheds
Project v. Abbey, 719 F.3d 1035, 1047 (9th Cir. 2013) (holding that the NEPA’s
“hard look” requirement mandates “a ‘full and fair discussion of significant
environmental impacts’ in the EIS” (quoting 40 C.F.R. § 1502.1)). In the EIS, the
Forest Service analyzed whether it should include the land within 300 feet of all
forest roads as wilderness, as plaintiffs-appellants propose. Because the Forest
Service considered this alternative, it had the discretion to choose a different
boundary-marker. See Earth Island Inst., 351 F.3d at 1301 (“‘When specialists
express conflicting views, an agency must have discretion to rely on the reasonable
opinions of its own experts, even if a court may find contrary views more
persuasive.’” (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378
(1989)). Therefore, we conclude that the Forest Service has complied with the
NEPA in authorizing the South George Project.
AFFIRMED.
5