Conservation Congress v. United States Forest Service; United States Fish and Wildlife Service

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS,
Plaintiff-Appellant,
v.
UNITED STATES FOREST SERVICE;
UNITED STATES FISH AND WILDLIFE
SERVICE,
Defendants-Appellees,
TRINITY RIVER LUMBER,
Intervenor-Defendant-
Appellee.
No. 17-16153
D.C. No.
2:13-cv-01977-JAM-DB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted May 16, 2019
Seattle, Washington
Before: HAWKINS and W. FLETCHER, Circuit Judges, and SEEBORG,**
District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
FILED
JUN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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On cross motions for summary judgment, the district court largely rejected
appellant Conservation Congress’s claims that appellees United States Fish and
Wildlife Service (“FWS”) and the United States Forest Service (“USFS”) violated
both the National Environmental Policy Act (“NEPA”) and the Endangered
Species Act (“ESA”) when approving “the Smokey Project”—a plan to administer
fuel and vegetative treatments to further habitat and fire management goals in the
Mendocino National Forest in Northern California. The district court initially
issued a “Final Judgment” that ordered a limited remand for USFS to prepare a
supplemental NEPA analysis and enjoined the removal of trees in the project area
having a diameter of 20 inches or greater. The district court subsequently issued an
order granting appellee’s motion to amend the judgment and dissolve the
injunction, which represents a final judgment over which we have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
We review de novo a grant of summary judgment. See League of Wilderness
Defs. v. USFS, 689 F.3d 1060, 1068 (9th Cir. 2012). The agency’s compliance with
the law, however, is reviewed under the Administrative Procedure Act’s
deferential “arbitrary and capricious” standard. 5 U.S.C. § 706(2)(A); Lands
Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008)), overruled on other grounds
by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). To the extent the
appeal implicates the district court’s lifting of the injunction, the court reviews for

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abuse of discretion. Native Ecosystems Council v. Marten, 883 F.3d 783, 789 (9th
Cir. 2018).
There was no error in finding that USFS’s clarification on remand that
“Limited Operating Periods” (“LOPs”) applied only to “units” near known spotted
owl activity centers, rather than to “all units,” did not constitute a “post-decisional
elimination” of a “core mitigation measure” that would give rise to a NEPA
violation. The record fully supports the district court’s conclusion that on remand
USFS “provided a reasoned, clear, and thorough analysis for its conclusions,” and
that the Project had not changed. The application of the LOPs was disclosed
throughout the decision-making process, and whatever ambiguity may have been
introduced by the erroneous inclusion of the phrase “all units” in one appendix did
not cause prejudice or skew the results such that the clarification on remand could
not cure the issue.
The district court also correctly determined USFS did not violate NEPA by
analyzing the impacts of the Smokey Project in too limited of a geographical area.
USFS’s environmental assessment (which incorporated the analysis of the FWS
biological assessment), considered impacts in 35,023 acres comprising the
treatment units and land within a 1.3-mile radius of those units. That scope was
based on FWS’s recommendation to analyze impacts within the spotted owl’s
“home range,” and appears to account for the location and movement patterns of

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the spotted owls, thereby warranting deference to the agencies’ judgment.
Conservation Congress’s suggestion that a meaningful analysis required
consideration of the entire Buttermilk late successional reserve reflects a different
judgment as to the best way to evaluate the project, but it does not establish a
NEPA violation.
The district court did not err in finding that USFS adequately analyzed
potential alternatives to the project. On remand, USFS specifically considered
alternatives with several different diameter cap limits on trees to be felled and
concluded none were viable. Although Conservation Congress suggests the
alternatives considered were arbitrary, it makes no attempt to show USFS’s
conclusions were unsound. Conservation Congress instead argues that USFS
should have considered undertaking forest thinning at federal expense. Whatever
arguments might support such a policy, however, Conservation Congress has not
shown it is improper for USFS to carry out its forest management mandates by
contracting with private parties for timber removal.
The district court also did not err in declining to require a full Environmental
Impact Statement (“EIS”) for the Smokey Project. The district court appropriately
held the agency to its “hard look” obligations, League of Wilderness Defenders v.
Connaughton, 752 F.3d 755, 762-3 (9th Cir. 2014) (citing 40 C.F.R. § 1502.1),
when it issued the limited remand. Conservation Congress has not shown how the

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district court’s subsequent determination that the injunction should be lifted
without requiring a full EIS was erroneous.
Finally, the district court correctly found no ESA violation. Conservation
Congress contends both that there is no valid biological opinion from the FWS and
that USFS was required under ESA Section 7(a)(2) to re-initiate formal
consultation with FWS upon clarifying the LOP requirements of the plan. Both
arguments, however, rest on the premise that the LOP requirements were
substantively modified on remand, a position that, as noted above, is untenable.
AFFIRMED.

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