FILED
NOT FOR PUBLICATION
APR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES, No. 14-35936
Plaintiff-Appellant, D.C. No. 9:13-cv-00092-DWM
v.
MEMORANDUM*
DANIEL ASHE, Director of US Fish and
Wildlife Service; TOM TIDWELL,
Regional Forester, Chief of the US Forest
Service; FAYE KRUEGER, Regional
Forester for the Northern Region of the
United States Forest Service; PAUL
BRADFORD, Supervisor of the Kootenai
National Forest; UNITED STATES
FOREST SERVICE, an agency of the US
Department of Agriculture; U.S. FISH &
WILDLIFE SERVICE, an agency of the
US Department of the Interior,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted February 9, 2017
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FISHER, PAEZ and CALLAHAN, Circuit Judges.
Alliance for the Wild Rockies (Alliance) appeals the district court’s grant of
summary judgment in favor of the United States Forest Service (USFS) and the
United States Fish and Wildlife Service (FWS) (collectively, the agencies).
Alliance alleges the agencies’ approval of the Young Dodge Project (Project) in
Montana’s Kootenai National Forest violated the Endangered Species Act (ESA)
and the National Environmental Policy Act (NEPA). The Project will partially
take place on protected habitat of the grizzly bear, a threatened species. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The grant of summary judgment is reviewed de novo. See Native
Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002). Judicial
review of agency action is governed by the Administrative Procedure Act (APA),
and we may set aside an agency’s decision only if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Nw. Coal. for Alts.
to Pesticides v. EPA, 544 F.3d 1043, 1047 (9th Cir. 2008) (quoting 5 U.S.C. §
706(2)(A)). The arbitrary and capricious standard is deferential, and we will
“uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co.,
2
463 U.S. 29, 43 (1983) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974)).
I.
The USFS and the FWS satisfied their obligations under the ESA. Section 7
of the ESA requires an action agency to ensure, through consultation with expert
wildlife agencies, that its actions are “not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the
destruction or adverse modification of [critical] habitat of such species.” 16 U.S.C.
§ 1536(a)(2). If the action agency determines that a proposed project is not likely
to affect any listed species or critical habitat, and the expert agency issues a written
concurrence, “informal” consultation may be terminated. As long as an agency
follows proper procedures, it is entitled to change its position during the
consultation process, and “federal courts ordinarily are empowered to review only
an agency’s final action.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 659 (2007) (emphasis in original).
The record shows the agencies independently considered impacts from non
road-related activities including post-and-pole logging, logging activities outside
of the recovery zone, helicopter use and oversized clearcuts. The agencies’
analyses of these potential impacts were rationally related to their no-adverse-
3
effects conclusion. See Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1125
(9th Cir. 2007).
For example, the Biological Assessment (BA) and the Supplemental BA
support the agencies’ determination that post-and-pole logging in the recovery
zone is not likely to adversely affect the grizzly bear. First, the BA explains that
logging activities only partially enter into the recovery zone and so impact only a
negligible amount of available habitat. Second, the Supplemental BA further
explains that logging activities fall within the range-of-effects analyzed by the
2011 Access Amendment Biological Opinion (BiOp) in that they would not result
in changes to roads open to the public or total motorized route density and do not
decrease core habitat.
Although the first explanation is somewhat conclusory, the agencies’ “path
may reasonably be discerned” from other evidence in the record. See Motor
Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Bowman, 419 U.S. at 286)). This
evidence includes representations that post-and-pole logging will occur on only 58
acres – a small fraction of the 7,074 acres directly impacted by the Project.
Moreover, the record contains evidence showing that the low density of grizzly
bears in the area results in “greater flexibility in habitat selection” for individual
bears. Although the BiOp evaluated only impacts of roads on grizzly bears, it
4
noted that so long as “road densities are moderate and adequate core habitat is
provided, it is likely that the affected bears will find needed food and shelter
resources elsewhere in their home range.” Because logging will neither increase
road density nor decrease core habitat, the BA in combination with the BiOp
explain that such activities are unlikely to adversely affect the grizzly.
Further, the Supplemental BA found that timber harvesting outside of the
recovery zone would displace bears from 17,596 acres over the Project’s term, but
that “only a portion of these acres would be unavailable at any given time
depending on how the treatment units are divided into timber sales, which would
not be active simultaneously.” Although the BA does not provide a metric for
determining whether staggered logging will limit displacement, there is sufficient
evidence elsewhere in the record to support the agencies’ conclusion. The
agencies considered research that an “adequate quantity and quality of secure
habitat” allows grizzlies to “sustain disturbance within their home range without
injury or death,” and here, a large secure area of core habitat is located
immediately adjacent to the Project area. This same reasoning supports the
agencies’ conclusion that oversized clearcuts will not adversely affect the grizzly
bear despite the agencies’ recognition that the project exceeds recovery parameters
generally limiting openings to 40 acres.
5
As to helicopter use, the BA found that “surrounding core habitat would
serve as refuge for any bears that may be present during the prescribed burning,”
prescribed burning would not be scheduled during “important biological periods
for grizzly bear survival,” and helicopter units would be “buffered by a one mile
displacement zone.” The Supplemental BA made clear the USFS “analyzed the
affects [sic] from the use of helicopters to prescribe burn and the affect [sic] on
available grizzly bear habitat during the prescribed burn activities.” It added that
helicopter use is scheduled for a limited duration (eight hours in one day), that
there is “secure core area directly to the west to accommodate any disturbed
bears,” and that the “[s]ecure core is not impacted by helicopter activities because
roads are not being opened and activated.” The Supplemental BA also said that
planned mitigation strategies for helicopter use were within guidance parameters.
Finally, the agencies did not act arbitrarily and capriciously in neglecting to
distinctly address the effects of locating oversized openings next to open roads.
The agencies considered the underlying concerns associated with roads and
oversized openings, including cover and visibility, and Alliance has not shown the
combined effect of these two impacts is appreciably different. The agencies did
not “entirely fail[] to consider an important aspect of the problem.” Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 43.
6
II.
The district court correctly concluded that Alliance waived its NEPA
argument by failing to exhaust administrative remedies. See Idaho Sporting Cong.,
Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002) (citing 5 U.S.C. § 704).
Alliance’s statements submitted during administrative review failed to adequately
apprise the USFS of Alliance’s concern that the combined effect of locating
oversized openings next to open roads poses unique risks.
III.
In sum, we are satisfied – on an independent review of the administrative
record – that the USFS and the FWS complied with the ESA, NEPA and the APA.
AFFIRMED.
7