FILED
NOT FOR PUBLICATION JUN 04 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS and No. 10-17298
KLAMATH FOREST ALLIANCE,
D.C. No. CV-07-02764-LKK
Plaintiffs - Appellants,
v. MEMORANDUM*
UNITED STATES FOREST SERVICE,
Defendant - Appellee,
SIERRA PACIFIC INDUSTRIES and
ROUGH AND READY LUMBER, LLC,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted May 11, 2012
Portland, Oregon
Before: KOZINSKI, Chief Judge, TASHIMA and TALLMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
After the Forest Service issued a Record of Decision and Final
Environmental Impact Statement (“EIS”) for the Pilgrim Vegetation Management
Project, plaintiffs Conservation Congress and Klamath Forest Alliance brought this
action under the National Forest Management Act (“NFMA”). The district court
initially enjoined the Forest Service from proceeding with the project. See
Conservation Cong. v. U.S. Forest Serv., 555 F. Supp. 2d 1093 (E.D. Cal. 2008).
In response, the Forest Service prepared a Final Supplemental EIS to address the
deficiencies in the Final EIS, then moved under Federal Rule of Civil Procedure
60(b)(5) to dissolve the injunction. The district court granted this motion, and
plaintiffs timely appeal.
We may set aside agency decisions under the NFMA only if they are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)
(internal quotation marks omitted), overruled on other grounds by Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “[E]ven when an agency
explains its decision with less than ideal clarity, a reviewing court will not upset
the decision on that account if the agency’s path may reasonably be discerned.”
Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009) (internal quotation marks
omitted).
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A party bringing a motion under Rule 60(b)(5) must establish that a
significant change in circumstances warrants revision of the judgment. Bellevue
Manor Assocs. v. United States, 165 F.3d 1249, 1255 (9th Cir. 1999). “Motions
for relief from judgment under Rule 60(b) are reviewed for abuse of discretion.”
United States v. Asarco, Inc., 430 F.3d 972, 978 (9th Cir. 2005) (citation omitted);
see also United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc)
(if the district court identified the correct legal standard, it abuses its discretion
only if its findings of fact “were illogical, implausible, or without support in
inferences that may be drawn from facts in the record”). “Thus, although we
review the district court’s [grant of the Forest Service’s Rule 60(b)(5) motion] for
abuse of discretion, our review of the district court’s determination as to [the
merits of plaintiffs’] NFMA claim[] necessarily incorporates the APA’s arbitrary
and capricious standard.” Lands Council, 537 F.3d at 987.
1. The Final Supplemental EIS uses a “proxy-on-proxy” analysis: It
uses “habitat as a proxy to measure a species’ population,” and then uses “that
species’ population as a proxy for the population of others species.” Id. at 996
n.10. “We will defer to its decision to use habitat as a proxy unless the Forest
Service makes a clear error in judgment that renders its decision arbitrary and
capricious.” Id. at 998 (internal quotation marks omitted).
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Plaintiffs argue that the Forest Service’s use of habitat as a proxy is arbitrary
and capricious under Lands Council because “the relationship between the species
at issue and the habitat is unclear.” Id. The Final Supplemental EIS reasonably
concludes that mule deer habitat and population are correlated and specifically
rejects the hypothesis that predation is a confounding variable. It also quotes a
study that analyzes the relationship between habitat and population of the red-
breasted nuthatch. Given this analysis in the Final Supplemental EIS, the district
court did not abuse its discretion when it dissolved the injunction.
2. The Forest Service was required to “consider the best available
science” in its analysis. 36 C.F.R. § 219.35(a) (2011). Plaintiffs contend that the
Forest Service neither articulated nor substantively met this standard. We disagree.
First, the Final Supplemental EIS states that it “uses the best available data to
provide indicators of the over all, landscape-level results of our management
actions” and that the report “fulfills the . . . [NFMA] requirements to monitor for
biodiversity.” PAR 3113. Second, “[w]e grant considerable discretion to agencies
on matters requiring a high level of technical expertise.” Ecology Ctr. v.
Castaneda, 574 F.3d 652, 658 (9th Cir. 2009) (internal quotation marks omitted).
Plaintiffs fail to “cite[] any scientific studies that indicate the Forest Service’s
analysis is outdated or flawed” or “indicate any scientific information directly
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undermining” the Forest Service’s conclusion. Id. at 659-60. We therefore
conclude that the “best available science” supports the Forest Service’s findings.
Accordingly, the judgment of the district court is AFFIRMED.
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