Native Ecosystems Council v. Weldon

Citation697 F.3d 1043
Decision Date21 September 2012
Docket NumberNo. 11–35659.,11–35659.
PartiesNATIVE ECOSYSTEMS COUNCIL, Plaintiff–Appellant, v. Leslie WELDON, in her official capacity as Regional Forester of Region One of the U.S. Forest DWM Service; United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

OPINION TEXT STARTS HERE

John Philip Meyer (argued), Cottonwood Environmental Law Center, Bozeman, MT, for the plaintiffs-appellants.

Mark Steger Smith (argued), Assistant United States Attorney, Michael W. Cotter, United States Attorney, Billings, MT, for the defendants-appellees.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:10–cv–00057–DWM.

Before: STEPHEN REINHARDT, ANDREW J. KLEINFELD and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

This case arises out of Native Ecosystems Council's (Native Ecosystems Council) appeal of the district court's grant of summary judgment in favor of the United States Forest Service (Forest Service) in an action regarding the Ettien Ridge Fuels Reduction Project (the Project) in the Lewis and Clark National Forest, located in Montana. The Project was designed to reduce the spread and intensity of potential future wildfires in the Judith Basin County Wildland–Urban Interface by removing naturally occurring wildfire fuels. Native Ecosystems Council alleges that the Forest Service violated the National Environmental Policy Act, 42 U.S.C. §§ 4321, 4331 (NEPA), and the National Forest Management Act, 16 U.S.C. §§ 1600–14 (NFMA), when it issued a Finding of No Significant Impact (FONSI) and Decision Notice approving the Project.

We hold that the Forest Service took the requisite “hard look” at the environmental impact of the Project on the elk hiding cover, and goshawk populations, in the manner required by NEPA. N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir.2011) (quoting Bering Strait Citizens for Responsible Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir.2008)). We further hold that the district court did not err in granting summary judgment to the Forest Service on Native Ecosystems Council's NFMA claims, because the Forest Service reasonably considered the “relevant factors” that could have impacted the elk hiding cover and goshawk populations in its analysis of the Project. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir.2003). Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Project is a small fuels-reduction project that involves understory thinning (cutting and logging) and burning 1. The Project was approved by the Forest Service on September 29, 2009.

The Project was initiated to benefit the Middle Fork Judith Wilderness Study Area (WSA), and to mitigate wildfire danger, particularly to Sapphire Village. The Project benefits the WSA by reducing the danger of stand-replacing crown fires 2 to the Project area. The WSA is particularly important because it provides adjacent cover for elk and other large game animals that may be temporarily displaced during Project implementation.

The Project also benefits Sapphire Village by reducing the risk of fire danger. Sapphire Village was already identified by the Federal Register as a “high risk” wildland-urban interface community, which has historically suffered from crown fires. The Project was designed to restore the Project area to its historical natural stand composition—a more open understory maintained by more frequent, low intensity fires.

The absence of fire for more than 100 years has significantly changed the Project area: Douglas-fir conifers (a high fuel load type of evergreen) have become established in stands of ponderosa pine, and the fire condition of the Project area has changed from condition class 1 (no deviation from natural vegetation) to condition classes 2 and 3 (moderate and high departure from natural vegetation characteristics). The Project treatments are intended to help restore natural maintenance of the Project area.

Following an administrative appeal by Native Ecosystems Council, the Project was reduced in size so that the total area of treatment was decreased from 1,655 acres to 832 acres. Thinning was reduced from 632 acres to 243 acres. All treatment in unroaded lands was eliminated. Temporary roads were decreased by about 70% so that only one half mile of temporary road was planned to be constructed, decommissioned and subsequently rehabilitated. The Forest Service estimated that the Project would take six to ten years to complete.

In the district court for the District of Montana, Native Ecosystems Council challenged several aspects of the Project on NEPA and NFMA grounds. Count I of Native Ecosystems Council's complaint alleged that the Forest Service violated NEPA when it failed to give renewed consideration to the Native Ecosystems Council's proposed Alternative C, following the agency's decision to reduce the scope of the Project according to Alternative B. Counts II through V of the complaint related to the effects of the Project on elk habitat and hiding cover. Specifically, Count II alleged that the Project violated NFMA because it allowed for logging in mapped elk winter range during the winter months, in violation of the Lewis and Clark National Forest Plan (Forest Plan). Count III alleged that the Forest Service violated the NFMA by failing to adhere to the Forest Plan when it neglected to analyze big game hiding cover at the drainage level. Count IV alleged a companion NEPA claim stating that the failure to analyze hiding cover at the drainage level meant that the Forest Service relied upon inaccurate or unreliable scientific information. Count V alleged a NFMA claim charging that the Project would cause higher road density than the Forest Plan allows.

Counts VI through VIII dealt with the effects of the Project on goshawk habitat.3 Count VI alleged that the Forest Service violated NFMA because it failed to adhere to the Forest Plan's monitoring requirements for the goshawk population. Count VII alleged both NFMA and NEPA violations on the grounds that the Forest Plan failed to ensure that habitat is available to maintain viable populations of goshawks. It also alleged that the Forest Service's failure to implement a scientifically reliable monitoring protocol also violated NEPA's requirement that the Forest Service act with scientific integrity in the NEPA analysis. Count VIII alleged a NEPA violation on the grounds that the agency arrived at inconsistent conclusions regarding the canopy cover and goshawk foraging habitat that will remain after the completion of the Project.

On June 7, 2011, the district court granted summary judgment in favor of the Forest Service. Specifically, the district court held that Native Ecosystems Council failed to present arguments addressing the claims set forth in Counts I, VII, and VIII of the Complaint, and therefore, that such claims were deemed abandoned.4 The district court then granted summary judgment to the Forest Service on the remainder of the claims, on the merits. Native Ecosystems Council timely appealed on August 4, 2011.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

The Administrative Procedure Act (APA) provides that we “shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law....” 5 U.S.C. § 706(2). In our determination of compliance, we conduct a “searching and careful” inquiry. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). A decision is arbitrary and capricious if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

DISCUSSION
I. Waiver

As an initial matter, we address the question of waiver:

We will review an issue that has been raised for the first time on appeal under certain narrow circumstances: (1) to prevent miscarriage of justice; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one of law. The decision to consider an issue not raised below is discretionary, and such an issue should not be decided if it would prejudice the other party.

MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086 (9th Cir.2006) (internal citations and quotations omitted). “The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of the individual cases.” Singleton v. Wulff, 428 U.S. 106, 120–21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)

In light of the interests of justice and our discretion to review issues raised on appeal, we proceed to address each of Native Ecosystems Council's challenges on the merits.

II. NEPA Claims

NEPA is a procedural statute that requires the federal government to carefully consider the impacts of and alternatives to major environmental decisions. 42 U.S.C. §§ 4321, 4331. Its purpose is to ensure that federal agencies take a “hard look” at the environmental consequences of their proposed actions before deciding to proceed. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). A court generally must be...

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