Native Ecosystems Council v. Erickson

• Decision Date: 20 March 2020
• Docket Number: No. 18-35687,18-35687
• Parties: NATIVE ECOSYSTEMS COUNCIL; ALLIANCE FOR THE WILD ROCKIES, Plaintiffs-Appellants, v. MARY ERICKSON, Custer Gallatin National Forest Supervisor; et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

NATIVE ECOSYSTEMS COUNCIL;

ALLIANCE FOR THE WILD ROCKIES, Plaintiffs-Appellants, v. MARY ERICKSON, Custer Gallatin National Forest Supervisor; et al., Defendants-Appellees.

No. 18-35687

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: November 8, 2019

March 20, 2020

NOT FOR PUBLICATION

D.C. No. 9:17-cv-00053-DWM

MEMORANDUM^*

Appeal from the United States District Court for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted November 8, 2019 Portland, Oregon

Before: GILMAN,^** PAEZ, and RAWLINSON, Circuit Judges.

Appellants Native Ecosystems Council and the Alliance for the Wild Rockies appeal the district court's order granting summary judgment in favor of Defendants. We have jurisdiction under 28 U.S.C. § 1291. See Ctr. for BiologicalDiversity v. Ilano, 928 F.3d 774, 779 (9th Cir. 2019). We review claims under the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) by utilizing the Administrative Procedure Act (APA), and we may set aside agency action that was arbitrary or capricious. See id. at 779-80; see also Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013). No private cause of action exists under the Healthy Forest Restoration Act (HFRA), so asserted violations are also reviewed under the APA. See 16 U.S.C. §§ 6501, 6515; see also Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005).

1. Initially, the district court did not abuse its discretion in declining to expand the administrative record. The proffered materials, including an overlay map, do not satisfy any of the "four narrowly construed circumstances" in which we allow expansion of the administrative record. See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).

2. The United States Forest Service (Forest Service) was not required to prepare an environmental impact statement (EIS) for the designation of landscape-scale areas. Under NEPA, a federal agency need not prepare an EIS when the proposed federal action does not "change the status quo." Ilano, 928 F.3d at 780 (citation omitted). Because the designation of landscape-scale areas did not change the status quo, but only designated damaged areas of the forest, thedecision did not trigger an obligation to prepare an EIS. See id. at 780-81.

3. The Forest Service decision to categorically exclude the Smith Shields Project (Project) from NEPA was not arbitrary or capricious. An agency may issue a categorical exclusion for a project approved under HFRA in certain circumstances. See id. at 782 (citing 16 U.S.C. § 6591b(a)). The categorical exclusion applies if, among other requirements, the project "maximizes the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees promote stands that are resilient to insects and disease." 16 U.S.C. § 6591b(b)(1)(A). In this case, the Forest Service concluded, based on scientific research and analysis by its experts, that no old growth would be removed in conjunction with the Project. An agency must have discretion to rely upon the reasonable opinions of its own qualified experts. See Ilano, 928 F.3d at 783. Accordingly, there exists a reasonable basis for the Forest Service's application of the categorical exclusion.

4. The Forest Service decision to not prepare an EIS for the "Clean Up Amendments" to the Forest Plan regarding old-growth forest and elk hiding cover was not arbitrary or capricious. If, after preparing an environmental assessment (EA), an agency finds that an action would have "no significant impact" on the human environment, it may issue a finding of no significant impact (FONSI) and is not required to prepare an EIS. 40 C.F.R. §§ 1501.4, 1508.9, 1508.13; see alsoNative Ecosystems Council, 428 F.3d at 1238-39. We review "whether the agency has taken a hard look at the consequences of its actions, based its decision on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why [an action's] impacts are insignificant." Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (internal quotations, alterations, and citations omitted). We conclude that the Forest Service has complied with these requirements in the present case.

5. As to the old-growth standard, the original and amended standards both require the Forest Service to strive to maintain 10% old-growth forest. But the amendment altered the scale over which that percentage must be achieved, moving from the "timber compartment" to the "mountain range" scale.

Appellants argue that the Forest Service's FONSI regarding the old-growth amendment was arbitrary and capricious. In evaluating the amendment, the Forest Service explained that the larger scale would yield more reliable data and was more consistent with the Forest Plan's original goal of achieving habitat diversity across the landscape. The Forest Service also evaluated the effects of the amendment, determining that it would not affect wildlife associated with old-growth forest and also that it would likely cause an increase in old growth in the long term. Given these determinations, even if old growth may vary from one timber compartment to the next, it was not arbitrary or capricious for the ForestService to conclude that the new scale would not have a significant impact on the environment.

The remaining challenges to the old-growth amendment similarly fail. Appellants claim the 10% old-growth requirement, which now applies to "lands classified as forested," previously applied to a larger area. We disagree. Logically, the Forest Service can "strive to maintain" old-growth only where it exists. Accordingly, the previous standard's requirement of maintaining 10% old-growth cover in timber compartments "containing suitable timber" necessarily applied to forested areas. Appellants also argue that the Forest Service, in amending the indicator-species standard, removed the only two indicator species for old-growth forest (i.e., northern goshawk and pine marten). Again, we disagree. Northern goshawk and pine marten continue to be indicators for "mature forest," a category that includes old-growth forest. Appellants' remaining arguments that the old-growth-related amendments were significant are unavailing.

6. As to the elk hiding-cover standard, the original and amended standards both require the Forest Service to maintain at least two thirds of hiding cover. The amendment again altered the denominator. Instead of maintaining two thirds of the "hiding cover associated with key habitat components," the Forest Service must now maintain two thirds of specific tree species "on National Forest System lands" and "with at least 40% canopy cover."

Appellants first challenge these changes as unsupported by the best available science, a requirement under NFMA. 36 C.F.R. § 219.3. But in evaluating the hiding-cover amendment, the Forest Service considered a collaborative report prepared with the Montana Department of Fish, Wildlife, and Parks in 2013, which included a significant review of research on elk security.¹ The collaborative report found that stands with 40% canopy cover "consistently functioned" to meet the hiding-cover definition; that certain tree species are "naturally capable of having relatively dense (>=40%) canopy cover"; and that "a specific quantifiable cover recommendation was not supported by the scientific literature," specifically rejecting as untested prior reports recommending cover be "two-thirds of the total area." These findings support the hiding-cover amendments, and "we are required to apply the highest level of deference in our review of the Forest Service's scientific judgments in selecting the elk hiding cover methodology." Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012).

Appellants argue the Forest Service's FONSI regarding the hiding-cover amendments was arbitrary and capricious. Appellants claim the two-thirdsrequirement previously applied to the total area of the relevant landscape, but the pre-amendment standard contained no such language. Instead, the requirement was to maintain two thirds of the "hiding cover associated with key habitat components," and the standard listed examples of such key habitats and explained they would be "mapped on a site-by-site basis." Appellants similarly claim the two-thirds requirement previously applied to all forested areas and not just those on the National Forest lands. But again, the old standard contained no such language and was tied to maintaining key habitat components where they already existed. Appellants claim that the amendment reduces hiding-cover protection by now applying to only some tree species. But the Forest Service named those species simply to point out trees "naturally capable" of providing sufficient cover. The amended standard is therefore more precise but not less protective. Appellants' remaining arguments that the hiding-cover amendments were significant are unavailing.

AFFIRMED.

Rawlinson, Circuit Judge, concurring in part and dissenting in part:

Although I agree that the designation of landscape-scale areas under the Healthy Forest Restoration Act did not require the preparation of an Environmental Impact Statement (EIS), I respectfully dissent from the majority's conclusions that the Forest Plan amendments addressing old-growth and elk-hiding...