NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES, No. 17-35381
Plaintiff-Appellant, D.C. No. 2:16-cv-00433-BLW
v.
MEMORANDUM*
MARY FARNSWORTH, Forest Supervisor,
Idaho Panhandle National Forest; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted November 7, 2017
Portland, Oregon
Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges.
After a series of wildfires in 2015, the United States Forest Service proposed
and then adopted two projects—the Tower Fire Salvage and Restoration Project and
the Grizzly Fire Salvage and Restoration Project—that authorized removing certain
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
burned trees and reforesting areas within the Idaho Panhandle National Forests.
Alliance for the Wild Rockies brought suit and sought a preliminary injunction to
stop the Forest Service from implementing the two projects. The district court
refused to issue a preliminary injunction, and Alliance appealed. This Court affirms.
To obtain a preliminary injunction in this context, Alliance must show “that
there is a likelihood of irreparable harm; that there are at least serious questions on
the merits [of its claim]; that the balance of hardships tips sharply in [Alliance’s]
favor; and that the public interest favors a preliminary injunction.” All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Alliance first claims that the Forest Service failed to adequately involve the
public in the two projects, as required by law. When proposing a project that will
impact the environment, a federal agency typically must prepare an environmental
assessment (“EA”) that evaluates the project’s potential environmental effects. 40
C.F.R. § 1501.4(b); see id. § 1508.9. When preparing the EA, “[t]he agency shall
involve environmental agencies, applicants, and the public, to the extent
practicable.” 40 C.F.R. § 1501.4(b); see also id. §§ 1500.1(b), 1506.6(a). As the
district court noted, the Forest Service undertook numerous efforts to involve the
public in the projects. Based on “the totality of [these] circumstances,” Alliance has
not shown there are serious questions on the merits of its claim that the Forest
Service did not adequately involve the public. Bering Strait Citizens for Responsible
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Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 953 (9th Cir. 2008); see Cal.
Trout v. FERC, 572 F.3d 1003, 1017 (9th Cir. 2009). Also, contrary to Alliance’s
argument, the plain text of 36 C.F.R. § 218.25(a)(1)(i) does not appear to require the
Forest Service to conduct a public-comment period on a project’s EA, rather than on
the project itself. Alliance therefore has not raised serious questions on the merits
of its claim that the Forest Service erred by conducting public-comment periods on
the projects themselves, rather than on the EAs.
Alliance also challenges the emergency situation determinations (“ESDs”) for
the projects. As done by the district court, this Court reviews the decisions to issue
the projects’ ESDs under the arbitrary-or-capricious standard of review. After
issuing a final decision for a project, the Forest Service typically must temporarily
delay implementing the project. See 36 C.F.R. § 218.26 (requiring a ninety-day
objection period). But the Forest Service may immediately implement the project
when an ESD is issued that recognizes that at least one enumerated “emergency
situation” related to the project exists. See id. § 218.21. Here, the Chief of the Forest
Service issued an ESD for each project based on two such emergency situations,
including hazards to human health and safety posed by the dead and dying burned
trees. See id. § 218.21(b). Alliance challenges this asserted reason. Based on the
risks from the dead and dying burned trees, however, the Chief’s decisions to issue
ESDs were neither arbitrary nor capricious. See FERC v. Elec. Power Supply Ass’n,
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136 S. Ct. 760, 782 (2016); Yazzie v. EPA, 851 F.3d 960, 968 (9th Cir. 2017).
Alliance thus has not raised serious questions on the merits of this claim.
Alliance last contends that the Forest Service erred by not preparing an
environmental impact statement (“EIS”) for either project. The Forest Service must
prepare an EIS for a project after determining that the project is expected to
“significantly affect[] the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C); see 40 C.F.R. § 1508.11. In evaluating the project’s effects, the Forest
Service must consider the project’s context and intensity. 40 C.F.R. § 1508.27.
Because the Forest Service determined that neither project would significantly affect
the quality of the human environment, the Forest Service did not prepare an EIS for
either project. Alliance challenges those determinations, which this Court reviews
under the arbitrary-or-capricious standard of review. Based on the record, the Court
concludes that the Forest Service conducted the requisite analysis of each project’s
context and intensity. See All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1221
(9th Cir. 2017). Also, in rejecting the conclusions of scientific studies that Alliance
presented regarding the projects’ environmental effects, the Forest Service was
“entitled to rely upon the reasonable views of [its] experts over the views of other
experts.” Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the Navy, 860
F.3d 1244, 1254 (9th Cir. 2017) (citation omitted). Alliance thus has not raised
serious question on the merits of its claim that the Forest Service erred by not
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preparing an EIS for either project.
The Court concludes that Alliance has failed to show it has raised serious
questions on the merits of its claims. See Cottrell, 632 F.3d at 1135. The district
court’s order denying the motion for injunctive relief is therefore AFFIRMED.
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