FILED
NOT FOR PUBLICATION MAR 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS; No. 09-16182
CITIZENS FOR BETTER FORESTRY;
KAREN WILSON; MARY LEE D.C. No. 2:08-cv-02483-GEB-
STEFFENSEN, DAD
Plaintiffs - Appellants,
MEMORANDUM *
v.
UNITED STATES FOREST SERVICE,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted February 12, 2010
San Francisco, California
Before: HALL and McKEOWN, Circuit Judges, and ZILLY, ** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
Conservation Congress, Citizens for Better Forestry, Mary Lee Steffensen,
and Karen Wilson (“Conservation Congress”) appeal the district court’s order on
cross-motions for summary judgment in favor of the United States Forest Service
and against Conservation Congress. This is an action challenging the Forest
Service’s planned forest-thinning project (the “East Fork II Project”) in the East
Fork South Fork Trinity River Watershed in the Shasta-Trinity National Forest
(“STNF”). The district court held that the Forest Service complied with the
National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600, et seq., and the
National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court’s
decision.
I. Background
The East Fork II Project proposes forest thinning on approximately 931
acres of the STNF. The purpose of the Project is to make the forest more resilient
to wildfire. The Forest Service disclosed the expected environmental impacts of
the Project in the East Fork II Environmental Assessment (“EA”). The Forest
Service prepared the East Fork II EA in an effort to comply with this Court’s ruling
in Environmental Protection Information Center v. United States Forest Service,
No. 05-17093, 234 Fed. Appx. 440 (9th Cir. May 9, 2007), which concerned the
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project in its original form (the “East Fork I Project”). On April 9, 2008, the Forest
Service issued a Decision Notice and Finding of No Significant Impact for the East
Fork II Project.
II. Standard of Review
A district court’s decision to grant or deny summary judgment is reviewed
de novo. See Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th
Cir. 2001). Conservation Congress’s NFMA and NEPA challenges are reviewed
under the Administrative Procedure Act (“APA”). See The Lands Council v.
McNair, 537 F.3d 981, 987 (9th Cir. 2008) (“Lands Council II”). Under the APA,
an agency action may be held unlawful and set aside if “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
III. Analysis
A. Conservation Congress’s NFMA Challenge Regarding
Pacific Fisher
NFMA imposes a substantive duty “to provide for diversity of plant and
animal communities,” 16 U.S.C. § 1604(g)(3)(B), and this “duty to maintain viable
populations ‘applies with special force to “sensitive” species.’” Ecology Ctr., Inc.
v. Austin, 430 F.3d 1057, 1068 (9th Cir. 2005), overruled on other grounds, Lands
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Council II, 537 F.3d at 990. The Pacific fisher is a furbearing mammal, which is
designated as a “sensitive” species in Forest Service Region 5. To manage for
“diversity,” the STNF’s Land and Resource Management Plan (“LRMP”) provides
that “management indicators will be managed to average moderate levels of habitat
capability models.” The LRMP sets forth a habitat capability model (“HCM”) for
the Pacific fisher. The LRMP also sets forth a “Monitoring Action Plan” for the
Pacific fisher that requires the Forest Service to “[d]etermine population and
habitat trends within designated fisher . . . habitat.” The LRMP’s Monitoring
Action Plan allows for “field review of project planning using habitat capability
models.”
Conservation Congress argues that NFMA and the LRMP require the Forest
Service to directly monitor Pacific fisher populations in addition to fisher habitat.
We disagree. The Ninth Circuit has “repeatedly approved ‘the Forest Service’s use
of the amount of suitable habitat for a particular species as a proxy for the viability
of that species,’” and its use of “‘habitat as a proxy to measure a species’
population.’” Ecology Ctr. v. Castaneda, 574 F.3d 652, 664 (9th Cir. 2009)
(quoting Lands Council II, 537 F.3d at 996 & n.10).
Conservation Congress argues that the Forest Service failed to disclose how
much habitat will be degraded from high- to moderate-capability fisher habitat as a
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result of reducing crown cover below the 70% required for high-capability fisher
habitat. The Forest Service responds, correctly, that there is no requirement to
manage to high capability. The LRMP only requires management “to average
moderate levels of habitat capability models.” The Pacific Fisher Addendum,
which the Forest Service considered as part of its environmental assessment of the
Project, found that “[t]here is no specific evidence that changes in canopy closure,
while retaining key habitat components such as large trees, would cause significant
scale or intensity changes in fisher behavior,” and that “[t]he thinning treatments
would change vegetation, though these changes in vegetation would not
significantly alter habitat for fisher.” Based on these findings, the Pacific Fisher
Addendum found that “there is no change in the population trend.” Conservation
Congress has failed to demonstrate that these findings are arbitrary and capricious.
Conservation Congress argues that the Project will “eliminate the suitability”
of fisher habitat in Riparian Reserves as a result of logging to within 50 feet of the
high water mark, leaving only a 100-foot riparian travel corridor for the Pacific
fisher. Conservation Congress correctly points out that the fisher HCM provides
that moderate-capability fisher habitat requires a 300- to 600-foot riparian travel
corridor. Conservation Congress has failed, however, to support its assumption
that forest thinning will eliminate the suitability of the habitat to function as a
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riparian travel corridor. Moreover, as noted in the Pacific Fisher Addendum, only
74 acres of Riparian Reserves (< 1% of the capable fisher habitat in the assessment
area) will be thinned, and these acres are associated only with “intermittent and
ephemeral streams.” Riparian travel corridors associated with perennial streams
will be undisturbed by the Project. The EA concluded that “[b]ecause fisher are
highly mobile, the project is of small scale and not proposed in primary travel
corridors . . . , and the occurrence of suitable habitat surrounding project units,
disturbance-related effects are likely to be minor.” Conservation Congress has
failed to demonstrate that these findings are arbitrary and capricious.
Conservation Congress argues that the Forest Service’s reliance on the availability
of oak hardwoods in evaluating the suitability of post-Project fisher habitat is
misplaced because only low-capability fisher habitat lists hardwoods. This
argument fails because, as noted in the fisher HCM, both high- and moderate-
capability habitats include “Montane Hardwood Conifer” and “Montane Riparian.”
Furthermore, deciduous trees (such as oak hardwoods) may comprise up to 50% of
the tree canopy for high-capability fisher habitat, and up to 75% of the tree canopy
for moderate-capability fisher habitat.
Conservation Congress argues that the Forest Service failed to analyze how
much suitable fisher habitat would remain in the Project area after the Project was
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completed. The EA, however, classified about two-thirds of the acres in the
Project area as capable fisher habitat, using the fisher HCM, and found that
“current habitat capability levels . . . will not change.”
Lastly, Conservation Congress argues the Forest Service improperly relied
on “anecdotal evidence” to satisfy its NFMA obligations. Conservation Congress
has failed to show that the Forest Service did not consider the best scientific data.
See Ecology Ctr. v. Castaneda, 574 F.3d at 659-60.
B. Conservation Congress’s NFMA Challenge Regarding
Management Indicators
Conservation Congress argues that the Forest Service’s use of habitat
components to monitor management indicator assemblages violates NFMA’s
“diversity” requirement, 16 U.S.C. § 1604(g)(3)(B), and the LRMP’s requirement
to monitor the impacts of site-specific projects on management indicator species.
Conservation Congress’s central complaint is that the Forest Service failed to
survey for management indicator species in the Project area. This argument fails
because the LRMP does not identify any management indicator species. Although
the LRMP “recommends for monitoring” twenty-two species “that are highly
associated with the habitats and habitat components on the Shasta-Trinity National
Forests,” the LRMP does not label these species as “management indicator
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species.” Instead, the LRMP identifies nine “wildlife assemblages” of
“management indicators,” which the Forest Service refers to as “management
indicator assemblages.” The LRMP allows the Forest Service to use “habitat
components to represent the assemblages.” NFMA does not require the Forest
Service to verify its prediction regarding the effect of the East Fork II Project on
the management indicator assemblages with “observation or on-the-ground
analysis.” See Lands Council II, 537 F.3d at 990. The district court properly held
that the Forest Service complied with NFMA in its analysis of management
indicator assemblages.
C. Conservation Congress’s NEPA Challenge to the Environmental
Assessment
Conservation Congress argues that the Forest Service violated NEPA by not
adequately disclosing the Project’s impacts on several sensitive, threatened and
endangered species and on water quality in the East Fork II EA. The Forest
Service conducted a thorough analysis of the impacts of the Project on the
Northern Spotted Owl and disclosed “resource protection measures” to minimize
the impacts. We reject Conservation Congress’s “cumulative impacts” and
“activity centers” arguments with respect to the Northern Spotted Owl. Regarding
the Pacific fisher and other sensitive species, Conservation Congress has failed to
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identify any specific deficiencies in the Forest Service’s analyses. Instead,
Conservation Congress argues that the Forest Service violated NEPA by not
monitoring the fisher or other sensitive species. NEPA is a procedural statute, and
Conservation Congress has failed to provide any legal authority that would impose
a duty on the Forest Service under NEPA to monitor species populations.
Conservation Congress asserts that the EA fails to adequately disclose impacts on
coho and Chinook salmon without identifying any specific deficiencies in the
Forest Service’s analyses. As far as water quality is concerned, the Forest Service
complied with NEPA by completing a Cumulative Watershed Effects analysis and
obtaining an analysis by a geologist. We reject Conservation Congress’s argument
that the Forest Service violated NEPA by not following all of the recommendations
set forth in the Watershed Analysis. The EA adequately disclosed impacts
resulting from increased sediment yield and adequately addressed how the
proposed forest thinning in Riparian Reserves will attain the Aquatic Conservation
Strategy objectives.
D. Conservation Congress’s NEPA Challenge Regarding an
Environmental Impact Statement
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Conservation Congress argues that the Forest Service violated NEPA by not
preparing an Environmental Impact Statement (“EIS”). Conservation Congress has
failed “to raise substantial questions” that the Project may significantly affect the
Pacific fisher, the Northern Spotted Owl, salmon and fish habitat, and water
quality. See Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,
1212 (9th Cir. 1998). Conservation Congress has failed to demonstrate that the
Forest Service’s proxy on proxy approach to monitoring the Pacific fisher
translates into “highly uncertain” effects. See Lands Council II, 537 F.3d at 996-
97 (“[T]he Forest Service’s assumption that maintaining acreage necessary for
survival would ensure a species’ survival” has been held to be “eminently
reasonable.”). We give the Forest Service “great deference as it made a scientific
prediction within the scope of its technical expertise.” See Ctr. for Biological
Diversity v. Kempthorne, 588 F.3d 701, 712 (9th Cir. 2009). Conservation
Congress has failed to demonstrate that the Project may significantly affect water
quality as a result of the reduced Watershed Condition Class rating for the Dark
Canyon subwatershed in light of the short-term nature of this impact.
Conservation Congress has “cherry pick[ed] information and data out of the
administrative record” to support its position, but this “does not mean that a project
is highly controversial or highly uncertain.” See Native Ecosystems Council v.
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U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005). Conservation Congress
waived its cumulative impacts argument by not raising the issue during the public
comment period and administrative appeals process. See Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 764-65 (2004); Barron v. Ashcroft, 358 F.3d 674, 677 (9th
Cir. 2004).
E. Conservation Congress’s NEPA Challenge Regarding A
Supplemental Analysis
Conservation Congress argues that the Forest Service violated NEPA by
failing to prepare a supplemental NEPA analysis based on the monitoring of
previously logged areas, and the November 2007 finding that two landings were
not draining properly and were concentrating runoff and delivering sediment to
Prospect Creek. Conservation Congress has failed to demonstrate that the
requirement to supplement applies to environmental assessments, and even if it
does, that the information presented constituted “significant new circumstances.”
See 40 C.F.R. § 1502.9(c)(1)(ii). The information was not significant because, as
the November 2007 study indicated, “[m]ost of the roads were properly shaped and
drained.” The information was not new because the EA analyzed the Project’s
effects as a result of increased erosion and sediment. The Forest Service’s decision
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not to supplement the EA cannot be held to be a “clear error of judgment.” See
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).
AFFIRMED.
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