FILED
NOT FOR PUBLICATION MAR 22 2010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. 08-35858
et al.,
D.C. No. 6:07-cv-00071-DWM
Plaintiffs - Appellants,
v. MEMORANDUM *
TOM TIDWELL, Regional Forester; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 5, 2009
Portland, Oregon
Before: O’SCANNLAIN and N.R. SMITH, Circuit Judges, and WOLLE, ** Senior
District Judge.
Alliance for the Wild Rockies and Native Ecosystems Council (together
“Plaintiffs”) appeal the district court’s grant of summary judgment in favor of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Charles R. Wolle, United States District Judge for the
Southern District of Iowa, sitting by designation.
Defendant, the United States Forest Service (“Forest Service”), finding that the
Forest Service did not violate the National Environmental Policy Act (“NEPA”) or
the National Forest Management Act (“NFMA”) in approving the Cow Fly
Salvage Harvest project. We affirm the judgment of the district court.
1. The Forest Service first challenges Plaintiffs’ standing to bring this
action. Because Plaintiffs’ standing was not challenged before the district court,
Plaintiffs need only to have made general allegations of injury resulting from the
Forest Service’s conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992). Plaintiffs did so in their complaint.
2. Plaintiffs claim that the Forest Service violated NEPA by failing to
consider the cumulative impacts of past timber projects. NEPA establishes a
mandatory process federal agencies must follow to ensure they “take a hard look at
the environmental consequences of their actions.” Sierra Club v. Bosworth, 510
F.3d 1016, 1018 (9th Cir. 2007) (quoting Neighbors of Cuddy Mountain v.
Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002)). In order to prevail, Plaintiffs
must demonstrate that the Forest Service acted in an arbitrary and capricious
manner when it concluded that the Cow Fly Salvage Harvest qualified as a
categorical exclusion. Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851,
857 (9th Cir. 1999). The Forest Service conducted a proper investigation in
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analyzing the environmental consequences of the Cow Fly Salvage Harvest. The
Forest Service outlined a rational connection between the facts found and the
conclusions reached, and thus did not act arbitrarily and capriciously in its analysis
or its conclusion. See Bosworth, 510 F.3d at 1023.
3. Plaintiffs assert the Forrest Service committed various substantive and
procedural violations of NFMA, by failing to provide sufficient hiding cover and
security for elk and by failing to monitor management indicator species, as
required by the forest plan. We review whether the Forest Service violated
NFMA, in its plan or conduct, under the arbitrary and capricious standard. Lands
Council v. McNair, 537 F.3d 981, 994 (9th Cir. 2008) (en banc). We defer to the
Forest Service so long as it supports its conclusions “with studies that the agency,
in its expertise, deems reliable. The Forest Service must explain the conclusions it
has drawn from its chosen methodology, and the reasons it considers the
underlying evidence to be reliable.” Id. at 994. The Forest Service did just that in
its Decision Memo and its “Biological Assessment and Evaluation of Terrestrial
Wildlife Species for the Cow Fly Salvage Timber Harvest.” Those documents are
the culmination of years of investigation. The Forest Service did not act arbitrarily
and capriciously in developing a forest plan or in implementing that plan with
regards to the project area. Although Plaintiffs disagree with the data gathered and
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the conclusions drawn from that data, they are unable to demonstrate how the
Forest Service’s conclusions were arbitrary and capricious.
The grant of summary judgment in favor of the Forest Service is
AFFIRMED.
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