Lands Council v. United States Forest Service

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NOT FOR PUBLICATION FEB 18 2015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.

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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

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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

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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.

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