Oregon Wild v. Kent Connaughton

FILED
NOT FOR PUBLICATION
OCT 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON WILD, an Oregon nonprofit No. 14-35251
corporation; SIERRA CLUB, a California
nonprofit corporation; CENTER FOR D.C. No. 1:12-cv-02244-PA
BIOLOGICAL DIVERSITY,

Plaintiffs-Appellants, MEMORANDUM*

v.

KENT CONNAUGHTON, Regional
Forester, Pacific Northwest Region,
U.S. Forest Service; UNITED STATES
FOREST SERVICE, a federal agency,

Defendants-Appellees,

and

MT. ASHLAND ASSOCIATION,

Intervenor-Defendant-
Appellee.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 Argued and Submitted October 6, 2016
Portland, Oregon

Before: THOMAS, Chief Judge, and CLIFTON and NGUYEN, Circuit Judges.

Plaintiffs appeal the district court’s order granting summary judgment for

the United States Forest Service and Regional Forester Kent Connaughton

(together, the Forest Service) on Plaintiffs’ National Environmental Policy Act

claims challenging the Forest Service’s failure to prepare a supplemental

environmental impact statement for the Mount Ashland ski area expansion project.

We affirm.1

NEPA requires agencies to prepare environmental impact statements for

federal actions “significantly affecting” the environment. 42 U.S.C. § 4332(C).

NEPA further requires agencies to prepare supplemental environmental impact

statements when “[t]here are significant new circumstances or information relevant

to environmental concerns” that bear on “the proposed action or its impacts.” 40

C.F.R. § 1502.9(c)(1). An agency’s refusal to prepare supplemental NEPA analysis

is reviewed under the Administrative Procedure Act, Or. Nat. Desert Ass’n v.

Bureau of Land Mgmt., 625 F.3d 1092, 1109 (9th Cir. 2010), and will be reversed

1
We deny Plaintiffs’ requests for judicial notice. Plaintiffs have failed to
establish that the statements asserted in the documents to be noticed are not subject
to reasonable dispute. See Fed. R. Evid. 201(b).
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only if the agency’s decision was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). “Whether new

information requires supplemental analysis is a classic example of a factual dispute

the resolution of which implicates substantial agency expertise.” Tri-Valley CAREs

v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (internal quotation

marks omitted). Deference towards the agency “is highest when reviewing an

agency’s technical analyses and judgments involving the evaluation of complex

scientific data within the agency’s technical expertise.” League of Wilderness Defs.

Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010).

On appeal, Plaintiffs identify five categories of new information relating to

the expansion project that they contend trigger supplemental NEPA analysis. As

explained below, the Forest Service took a “hard look” at each category of

information and reasonably determined that no supplemental NEPA analysis was

required. Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095, 1107 (9th Cir.

2016). The Forest Service therefore was not arbitrary or capricious in failing to

prepare supplemental NEPA analysis here.

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 1. Invalidated Aquatic Conservation Strategy amendments.2 The Forest

Service was not arbitrary or capricious in failing to prepare supplemental NEPA

analysis in response to the Western District of Washington’s 2007 decision

invalidating certain amendments to the Northwest Forest Plan’s Aquatic

Conservation Strategy. See Pac. Coast Fed’n of Fishermen’s Ass’ns v. Nat’l

Maritime Fisheries Servs., 482 F. Supp. 2d 1248 (W.D. Wash. 2007). The Forest

Service provided substantial, uncontroverted evidence establishing that the Forest

Service considered all nine objectives identified in the pre-amendment version of

the Aquatic Conservation Strategy when preparing the 2004 environmental impact

statement. This included (1) excerpts from a 2003 draft environmental impact

statement expressly analyzing the expansion project’s compliance with all nine

Aquatic Conservation Strategy objectives and (2) excerpts from the 2007 new

information review and 2011 supplemental record of decision identifying specific

2
As an initial matter, we disagree with the Forest Service that Plaintiffs’
NEPA claims are barred on appeal to the extent they are based on the invalidated
Aquatic Conservation Strategy amendments. Plaintiffs’ National Forest
Management Act claims and NEPA claims are different claims raising different
theories of liability: the NFMA claims allege substantive failure to comply with
federal environmental law, and the NEPA claims allege procedural failure to
prepare certain disclosures. Consistent with this distinction, the district court
resolved the claims separately, staying the NFMA claims pending appeal and
entering Rule 54(b) judgment for the Forest Service on the NEPA claims.
Plaintiffs’ NEPA claims are therefore properly raised on appeal.
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portions from the 2004 environmental impact statement and record of decision that

effectively, although not expressly, analyzed the expansion project’s compliance

with all nine Aquatic Conservation Strategy objectives.

2. New Total Maximum Daily Load limits. In their opening brief, Plaintiffs

fail to explain how the Oregon Department of Environmental Quality’s new Total

Maximum Daily Load limits for sedimentation pollution in Reeder Reservoir

trigger supplemental NEPA analysis. For example, Plaintiffs do not address

whether or how the expansion project would cause sedimentation discharge to

exceed the daily load limits until their reply brief, where they assert, with no

evidentiary support, that logging associated with the expansion project risks

increased sedimentation discharge. This argument is therefore waived. See

WildEarth Guardians v. EPA, 759 F.3d 1064, 1072 (9th Cir. 2014). Moreover,

even if Plaintiffs did not waive their argument with regard to the Total Maximum

Daily Load limit, their claim would fail on the merits because the Oregon

Department of Environmental Quality, which promulgated the Total Maximum

Daily Load limit, did not indicate that the expansion project would be incompatible

with the limit.

3. Geological mapping project. The Forest Service was not arbitrary or

capricious in failing to prepare supplemental NEPA analysis in response to the

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Oregon Department of Geological and Mineral Industries’s (DOGAMI) geological

mapping project, for two reasons. First, to the extent that Plaintiffs challenge the

technology used by the Forest Service in the first geological mapping project, this

argument concerns scientific methodology for which great deference is given to the

Forest Service. Allen, 615 F.3d at 1130. Second, the Forest Service conducted

detailed, site-specific geological mapping analysis in connection with the 2004

environmental impact statement and found no increased landslide risks related to

the expansion project. The Forest Service therefore was not required to conduct

additional geological mapping analysis in response to the inconclusive results from

the DOGAMI geological mapping project, which ultimately found only that certain

areas in northern Mount Ashland contained glacial deposits that posed no increased

landslide risks.

4. Expiration of the wetlands delineation. The Forest Service was not

arbitrary or capricious in failing to prepare supplemental NEPA analysis in

response to the Army Corps of Engineers’ expired wetlands delineation. The

expired wetlands delineation would trigger supplemental NEPA analysis only if

the new wetlands delineation differed “significant[ly]” from the expired wetlands

delineation. 40 C.F.R. § 1502.9(c)(1). Here, however, the record evidence suggests

6
that, given the alpine environment of the expansion area, the new wetlands

delineation likely will not differ from the expired wetlands delineation.3

5. New climate change documents. Plaintiffs identify ten documents

published after the 2004 environmental impact statement that purportedly present

significant new information regarding climate change in the expansion area. These

documents include eight climate change studies and two internal climate change

guidance memoranda from the Forest Service and Council on Environmental

Quality. For each document, the Forest Service provided a reasonable explanation

establishing why the document was either irrelevant or otherwise provided no

significant new information regarding the potential impact of climate change on

Mount Ashland ski area operations. Plaintiffs do not challenge the reasonableness

of these explanations, and, given the Forest Service’s technical expertise regarding

the effect of climate change on national forests, we must give these explanations

our “highest” deference. Allen, 615 F.3d at 1130. Accordingly, we cannot say that

3
Because Plaintiffs fail to establish that the expired wetlands delineation
presents significant new information regarding the environmental consequences of
the expansion project, we need not address Plaintiffs’ argument that, under South
Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 588 F.3d 718
(9th Cir. 2009), participation in the Army Corps of Engineers’ permitting process
does not discharge the Forest Service’s disclosure obligations under NEPA.
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the Forest Service was arbitrary or capricious in failing to prepare supplemental

NEPA analysis in response to these climate change documents.

AFFIRMED.

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