FILED
NOT FOR PUBLICATION
MAY 04 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS, No. 15-17207
Plaintiff-Appellant, D.C. No.
2:11-cv-02250-MCE-CMK
v.
SHARON HEYWOOD; UNITED MEMORANDUM*
STATES FOREST SERVICE; UNITED
STATES FISH AND WILDLIFE
SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted April 17, 2017
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and DRAIN,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
This case concerns the Gemmill Thin Project to thin trees and undergrowth
from portions of the Shasta-Trinity National Forest that contains substantial habitat
for the Northern Spotted Owl. Conservation Congress filed a broad-gauged action
in district court opposing the project as violative of several federal statutes. The
district court granted summary judgment in favor of the defendant government
agencies—the U.S. Forest Service and the Fish and Wildlife Service—and the
supervisor of the Shasta-Trinity National Forest. Conservation Congress appeals
only the dismissal of the claim that the U.S. Forest Service violated the National
Forest Management Act, 16 U.S.C. § 1604.
Specifically, Conservation Congress claims that the Gemmill Thin Project
violates the Land and Resource Management Plan (“LRMP”) for the Shasta-Trinity
National Forest. The LRMP requires any project to be “consistent” with the
Revised Recovery Plan for the Northern Spotted Owl.
The Revised Recovery Plan is cast in terms of recommendations and
guidelines for the protection of the spotted owl, not of mandatory directives to be
strictly followed by forest managers like the U.S. Forest Service. The argument of
Conservation Congress appears to be that, by requiring the Gemmill Thin Project
to be “consistent” with the recovery plan, the recommendations of the recovery
plan became mandatory. Conservation Congress relies on Ecology Ctr., Inc. v.
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Austin, where we held that an agency that treats advisory standards as binding
cannot later regard them as merely advisory, see 430 F.3d 1057, 1069 (9th Cir.
2005) overruled on other grounds by The Lands Council v. McNair, 537 F.3d 981
(9th Cir. 2008).
Here, the U.S. Forest Service did not treat the Revised Recovery Plan’s
recommendations as binding. Rather, it stated that the Gemmil Thin Project was
“consistent with” the Revised Recovery Plan and the various recommended actions
contained therein. This case is controlled by Ecology Center v. Castaneda,
recognizing that non-binding recommendations do not become mandatory by
virtue of being referenced in planning documents. See 574 F.3d 652, 660–61 (9th
Cir. 2009). Because the Revised Recovery Plan for the Northern Spotted Owl is
framed in non-binding terms, its recommendations did not become mandatory
upon being referenced in the Forest Plan.
AFFIRMED.
3