Conservation Congress v. United States Forest Service

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

CONSERVATION CONGRESS, a non- No. 15-15737
profit organization,
D.C. No.
Plaintiff-Appellant, 2:14-cv-02228-GEB-AC

v.
MEMORANDUM*
UNITED STATES FOREST SERVICE,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted March 16, 2017
San Francisco, California

Before: TALLMAN and WATFORD, Circuit Judges, and GUIROLA,** Chief
District Judge.

Conservation Congress appeals the district court’s grant of summary

judgment in favor of the United States Forest Service (“USFS”) in its action under

the National Forest Management Act (“NFMA”), the National Environmental

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Louis Guirola, Jr., Chief United States District Judge
for the Southern District of Mississippi, sitting by designation.
Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).

Conservation Congress challenges USFS’s authorization of the Porcupine

Vegetation and Road Management Project (“Project”) in the Shasta-Trinity

National Forest. Specifically, Conservation Congress alleges that USFS failed to

comply with the NFMA’s snag requirements, did not take the requisite “hard look”

at environmental consequences, and should have prepared an Environmental

Impact Statement (“EIS”) for the Project. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

1. USFS did not arbitrarily conclude that the Project complied with the

NFMA’s snag standards. See 16 U.S.C. §§ 1604(a), (i); Native Ecosystems

Council v. Dombeck, 304 F.3d 886, 897 (9th Cir. 2002). As part of its

environmental review, USFS conducted site visits to proposed treatment units in

2011. Those field studies determined that each treatment unit had “at least two

snags per acre greater than 15 inches [in diameter].” This finding is consistent

with the Shasta-Trinity National Forest Land and Resource Management Plan

(“Forest Plan”), which requires all treated areas of the forest to retain an average of

1.5 snags per acre greater than 15 inches in diameter at breast height and 20 feet

tall. And because the Project’s proposed treatment methods will retain all existing

snags greater than 15 inches in diameter, “unless deemed a safety hazard by the

purchaser, or in the case of a need to meet coarse woody debris (CWD)

2
requirements,” USFS has shown both that proposed treatment units meet snag

standards and that treatment methods will not reduce snag numbers below Forest

Plan minimums. Lands Council v. McNair, 537 F.3d 981, 989, 994 (9th Cir. 2008)

(en banc). USFS has therefore satisfied the NFMA.

2. USFS took the required “hard look” at the Project’s anticipated effect

on snag numbers. 42 U.S.C. § 4332(2)(C); Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350 (1989); Baltimore Gas & Elec. Co. v. Nat. Res. Def.

Council, 462 U.S. 87, 89 (1983); 40 C.F.R. § 1502.16. The 2011 field studies

established a snag baseline in proposed treatment units, Am. Rivers v. FERC, 201

F.3d 1186, 1195 n.15 (9th Cir. 1999), and USFS compared that baseline to the

effect treatment methods will have on snag levels. Because the Project only

removes snags in two limited circumstances, it was reasonable for USFS to

conclude that treatment methods will not reduce snag numbers below Forest Plan

standards. USFS has therefore complied with NEPA with respect to the Project’s

effect on snag numbers.

3. USFS appropriately considered all reasonable Project alternatives. 42

U.S.C. § 4332(2)(E); Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 915

(9th Cir. 2012) (quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d

1233, 1246 (9th Cir. 2005)). The Project’s Environmental Analysis (“EA”)

considered a total of fourteen alternatives, five of which were discussed in detail.

3
40 C.F.R. § 1502.14. USFS also considered an alternative involving no treatment

within owl habitat—Alternative 6—but ultimately decided to reject that

alternative. See id. In making this decision, USFS did not act arbitrarily. USFS

reasonably concluded that not treating 17% of the Project area would thwart the

major purposes of the Project—to improve overall forest health by reducing fuel

loads and preventing catastrophic wildfires, reduce damage from insect infestation,

and remove impediments to efficient tree growth—which would benefit the owl

and its habitat over the long term. USFS further concluded that its decision to

reject Alternative 6 was not inconsistent with its earlier management decision to

avoid logging in the Late-Successional Reserve, as that area contains some of the

highest quality owl habitat in the region. NEPA only requires USFS to consider

alternatives reasonably related to the purposes of the Project, Westlands Water

Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir. 2004), and we hold that

USFS has satisfied that standard here.

4. USFS properly analyzed the cumulative impacts of the Porcupine

Project together with other actions, and the agency used a reasonable scope in that

analysis. Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d

1000, 1007 (9th Cir. 2011); 40 C.F.R. § 1508.7. In contrast to Conservation

Congress’s claim, the Council on Environmental Quality (“CEQ”) Handbook does

not require USFS to use the owl’s “natal dispersal” distance in its analysis. The

4
Handbook is not afforded the same level of deference as formal CEQ regulations,

see Andrus v. Sierra Club, 442 U.S. 347, 358 (1979), and it specifically notes that

it is “not [to] be viewed as formal CEQ guidance [or] intended to be legally

binding.” Absent a specific regulation curtailing agency deference in this case, we

will not disturb the application of both USFS and Fish & Wildlife Service expertise

to assess the impact here. Kleppe v. Sierra Club, 427 U.S. 390, 413–14 (1976).

5. Finally, USFS was not required to prepare an EIS for the Porcupine

Project, and its ultimate finding of no significant impact (“FONSI”) is supported

by the record. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.13. An EIS is not

required if there is simply some uncertainty over the Project’s anticipated effects;

rather, the Project’s effects must be “highly” uncertain. Envtl. Prot. Info. Ctr. v.

U.S. Forest Serv., 451 F.3d 1005, 1011 (9th Cir. 2006). Conservation Congress

misses this distinction. While there is some uncertainty regarding the effect fires

have on foraging habitat, USFS has explained that owls are known to avoid high

and moderate burn areas for use as roosting and nesting habitat, a habitat

considered to be of higher quality than foraging habitat. In other words, while the

uncertain effect of fires in foraging areas may cast doubt on some aspects of the

Project, the Project’s anticipated effects as a whole are not highly uncertain and do

not trigger the need for an EIS. Id.; see also 40 C.F.R. § 1508.27(b)(5).

The same conclusion applies to Conservation Congress’s claim that, because

5
a limited amount of logging will occur in areas designated as critical habitat, an

EIS is required to fully explore the effect logging will have in those areas. See 40

C.F.R. §§ 1508.27(b)(3), (9). But Conservation Congress has not shown that these

logging practices will significantly affect the environment. See 42 U.S.C.

§ 4332(2)(C); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,

1212 (9th Cir. 1998). Rather, as USFS has explained, logging in designated

critical habitat will be limited to areas that support lower-quality owl habitat—and

no forest treatment will occur in nesting and roosting habitat. We think USFS has

provided a “‘convincing statement of reasons’ to explain why [the Project’s]

impacts are insignificant.” Blue Mountains, 161 F.3d at 1212 (citation omitted).

USFS’s FONSI is well supported, and USFS was therefore not required to prepare

an EIS.

Each party shall bear its own costs.

AFFIRMED.