Alliance for the Wild Rockies v. Christopher Savage , 897 F.3d 1025 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD No. 16-35589
ROCKIES,
Plaintiff-Appellant, D.C. No.
9:15-cv-00054-DLC
v.
CHRISTOPHER SAVAGE, Kootenai OPINION
National Forest Supervisor;
FAYE KRUEGER, Regional
Forester of Region One of the
U.S. Forest Service; UNITED
STATES FOREST SERVICE, an
agency of the U.S. Department
of Agriculture; U.S. FISH &
WILDLIFE SERVICE, an agency of
the U.S. Department of the
Interior,
Defendants-Appellees,
and
KOOTENAI FOREST
STAKEHOLDERS COALITION, a
Montana Corporation; LINCOLN
COUNTY, a political subdivision
of the State of Montana,
Intervenor-Defendants-
Appellees.
2 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted February 9, 2017
Seattle, Washington
Filed July 26, 2018
Before: Raymond C. Fisher, Richard A. Paez,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Paez
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 3
SUMMARY*
Environmental Law
The panel reversed in part and vacated in part the district
court’s summary judgment and remanded in an action
brought by the Alliance for Wild Rockies against the United
States Forest Service, the Fish and Wildlife Service, and
others seeking to enjoin implementation of the East Reservoir
Project on the Kootenai National Forest in northwest
Montana.
The Project contemplates a number of land management
activities such as logging, thinning, and road construction and
maintenance. These activities will take place in areas where
two threatened species are present—the Canada lynx and the
Cabinet-Yaak grizzly bear.
The Alliance first asserted that the Forest Service’s
decision to approve the Project was arbitrary and capricious
because it improperly relied on the 2007 Northern Rocky
Mountains Lynx Management Direction (“Lynx
Amendment”) in determining the impact of Project activities
on lynx and lynx critical habitat. The Alliance argued that the
Forest Service should have requested reconsultation with the
Fish and Wildlife Service on the Lynx Amendment, pursuant
to the Endangered Species Act § 7, after the Fish and Wildlife
Service designated large areas of lynx critical habitat on
national forest land, including the Kootenai National Forest.
The panel noted that while this appeal was pending, the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
Forest Service reinitiated consultation with the Fish and
Wildlife Service, and after oral argument, the Fish and
Wildlife Service issued a new biological opinion for the Lynx
Amendment, completing the reconsultation process. The
panel therefore vacated the portion of the district court’s
summary judgment order that addressed the reconsultation
claim and remanded with instruction to dismiss the claim as
moot.
The panel held that the Alliance was entitled to summary
judgment on its second claim that, in approving the East
Reservoir Project, the Forest Service failed to comply with
the Motorized Vehicle Access Act (Access Amendments),
which set standards for grizzly bear habitat on Forest Service
Land. The panel held that the Forest Service’s failure to
analyze whether the Project would increase the total linear
miles of permanent roads within an area designated as the
Tobacco BORZ polygon beyond the baseline did not satisfy
the plain terms of the Access Amendments and was therefore
arbitrary and capricious. The panel reversed the district
court’s summary judgment and instructed the district court to
remand the issue to the Forest Service for further proceedings
consistent with the panel’s opinion.
COUNSEL
Rebecca Kay Smith (argued), Public Interest Defense Center,
Missoula, Montana; Timothy M. Bechtold, Bechtold Law
Firm, Missoula, Montana; for Plaintiff-Appellant.
Tamara N. Rountree (argued), Jacqueline C. Brown, John P.
Tustin, David C. Shilton, and Andrew C. Mergen, Attorneys;
John C. Cruden, Assistant Attorney General; Environment
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 5
and Natural Resources Division, United States Department of
Justice, Washington, D.C.; Kate Williams-Shuck, Attorney-
Advisor, United States Department of the Interior, Rocky
Mountain Regional Solicitor’s Office, Billings, Montana;
Alan Campbell, Attorney Advisor, United States Forest
Service, Region One, Missoula, Montana; for Defendants-
Appellees.
Lawson Emmett Fite (argued), American Forest Resource
Council, Portland, Oregon, for Intervenor-Defendants-
Appellees.
Julie A. Weis and Sara Ghafouri, Haglund Kelly LLP,
Portland, Oregon; William K. Barquin, Attorney General,
Kootenai Tribe of Idaho, Bonners Ferry, Idaho, for Amicus
Curiae Kootenai Tribe of Idaho.
6 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
OPINION
PAEZ, Circuit Judge:
Alliance for the Wild Rockies (“Alliance”) filed this
lawsuit against the United States Forest Service, several
Forest Service officials and the Fish and Wildlife Service
(“FWS”) (collectively, “Federal Defendants”) to enjoin
implementation of the East Reservoir Project (“Project”) on
the Kootenai National Forest in northwest Montana. The
Project contemplates a number of land management activities
such as logging, thinning, and road construction and
maintenance. These activities will take place in areas where
two threatened species are present—the Canada lynx1 and the
Cabinet-Yaak grizzly bear.2
Of the multiple claims Alliance initially alleged, only two
are at issue in this appeal. First, Alliance challenges the
Forest Service’s decision to approve the Project as arbitrary
and capricious because it improperly relied on the Northern
Rocky Mountains Lynx Management Direction (“Lynx
Amendment”) in determining the impact of Project activities
1
Although the Canada lynx was listed as a threatened species in 2000,
it was not until 2009 that the FWS designated the vast majority of its
critical habitat on National Forest lands. See Cottonwood Envtl. Law Ctr.
v. U.S. Forest Serv., 789 F.3d 1075, 1077–78 (9th Cir. 2015), cert. denied,
137 S. Ct. 293 (2016) (“Cottonwood”).
2
The Cabinet-Yaak grizzly bear is part of a distinct population of
grizzly bear found in the Cabinet-Yaak ecosystem of Montana and Idaho.
The grizzly bear was listed as a threatened species in 1975. 40 Fed. Reg.
31734 (1975). As of 2008, the Cabinet-Yaak grizzly bear population had
dwindled to approximately forty-two bears.
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 7
on lynx and lynx critical habitat.3 The basis for this argument
is that in 2009, after the Forest Service adopted the Lynx
Amendment in 2007, the FWS designated large areas of lynx
critical habitat on National Forest lands, including the
Kootenai National Forest. Despite this new designation of
critical habitat, the Forest Service did not request
reconsultation on the Lynx Amendment with the FWS under
ESA § 7, 16 U.S.C. § 1536(a)(2). In light of these
developments, Alliance argued that the Forest Service could
not properly rely on the Lynx Amendment until it reinitiated
consultation with the FWS, and the FWS completed
reconsultation by issuing a new biological opinion for the
Lynx Amendment. We addressed the Forest Service’s
obligation to reinitiate consultation on the Lynx Amendment
in Cottonwood Environmental Law Center v. U.S. Forest
Service, where we held that it was required to do so.
789 F.3d 1075, 1085–88 (9th Cir. 2015), cert. denied, 137 S.
Ct. 293 (2016).
While this appeal was pending, the Forest Service
reinitiated consultation with the FWS, and after we heard
argument, the FWS issued a new biological opinion for the
3
The Lynx Amendment incorporated management direction into
eighteen National Forests, including the Kootenai National Forest, by
“set[ting] specific guidelines and standards for permitting activities that
are likely to have an adverse effect on the Canada lynx.” Cottonwood,
789 F.3d at 1078. The goal of the Lynx Amendment was to conserve and
promote the recovery of the lynx while also allowing some recreation and
other activities to continue. Id.; see also U.S. Forest Service, Northern
Rockies Lynx Management Direction (March 2007), available at
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd567795.pdf
(last visited April 13, 2018).
8 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
Lynx Amendment, completing the reconsultation process.4
As a result of these events, Federal Defendants moved to
dismiss the lynx ESA § 7 reconsultation claim on the ground
that it is moot. In response, Alliance agreed but requested
that we vacate the district court’s ruling on this claim. The
Intervenor Defendants disagree and urge us to decide
Alliance’s lynx ESA claim on a theory not advanced by
Alliance or the district court. As we explain below, we agree
this claim is moot. We therefore dismiss it, and remand to
the district court with directions to vacate the part of its
summary judgment ruling that addresses this lynx related
claim and to dismiss it as moot.
Alliance’s second argument on appeal arises under
NFMA and relates to the Forest Service’s failure to comply
with the Motorized Vehicle Access Amendments (“Access
Amendments”), which set standards for grizzly bear habitat
on Forest Service land. Alliance argues that the total road
maintenance and construction in an area in which the
Cabinet-Yaak grizzly bears are found exceeds the total road
mileage “baseline” standard established by the Access
Amendments and an earlier Grizzly Bear Recovery Plan
(“Recovery Plan”). Alliance asserts that the Forest Service
acted arbitrarily and capriciously in approving the Project
without complying with this standard. The district court
rejected this claim and granted summary judgment to
Defendants. All. for the Wild Rockies v. Savage, 209 F. Supp.
3d 1181, 1194 (D. Mont. 2016). We reverse and in so doing,
we reject the Federal Defendants’ argument that Alliance
4
We may properly consider post-judgment facts that establish
mootness. See Arizonans for Official English v. Arizona, 520 U.S. 43, 68
n.23 (1997); Seven Words LLC v. Network Solutions, 260 F.3d 1089,
1094–95 (9th Cir. 2001).
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 9
waived this claim by failing to raise it during the
administrative process.
I.
A.
The Forest Service engaged in a multi-step process before
approving the Project. At the outset, after determining that
the Project area included lynx and Cabinet-Yaak grizzly bear
habitat, the Forest Service prepared a Biological Assessment
to evaluate whether the Project would adversely affect those
threatened species. The Forest Service concluded that the
Project “may affect, [but] is not likely to adversely affect”
lynx or Cabinet-Yaak grizzly bears, or their respective
habitats. The Forest Service transmitted the Biological
Assessment to the FWS, and thereafter engaged in informal
consultation with the FWS.5 In the meantime, the Forest
Service prepared and published a Draft Environmental Impact
Statement as required by NEPA, in which it reiterated its
conclusion that the Project would not adversely affect the
lynx or the Cabinet-Yaak grizzly bear. See 78 Fed. Reg.
5ESA regulations provide for two categories of ESA consultation
between the agency proposing an action (here, the Forest Service) and the
agency with wildlife expertise (here, the FWS): informal and formal. See
50 C.F.R. § 402.13 (informal consultation); 50 C.F.R. § 402.14 (formal
consultation). Informal consultation occurs when the action-proposing
agency determines in a biological assessment that the action “is not likely
to adversely affect listed species or critical habitat,” and the wildlife
agency concurs in writing, thereby terminating the consultation process.
50 C.F.R. § 402.13(a). No further interaction between the agencies is
required. Id. § 402.13(a). In contrast, formal consultation occurs when
the proposed action “may affect” listed species or critical habitat, and
requires the consulting agency (FWS) to prepare a biological opinion.
50 C.F.R. § 402.14(a)–(b), (g).
10 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
35928, 35928 (June 14, 2013); 78 Fed. Reg. 43200-01, 43200
(July 19, 2013).
After issuance of the Draft Environmental Impact
Statement, the Forest Service received the FWS’s
concurrence. The FWS agreed with the Biological
Assessment’s conclusion that the threatened species would
not be jeopardized and their habitats would not be adversely
affected. The Forest Service subsequently prepared and
published a Final Environmental Impact Statement,
followed by a Record of Decision approving the Project.
See 79 Fed. Reg. 15741-01 (Mar. 21, 2014); U.S. Forest
Service, East Reservoir Project Documents, available at
https://www.fs.usda.gov/project/?project=34594 (last visited
April 10, 2018).
B.
After the Project’s final approval, Alliance filed this
action against Federal Defendants: the Kootenai National
Forest Supervisor, the Region One Forester for the Forest
Service, the Forest Service, and the FWS. The basis for
Alliance’s claims under the ESA, NFMA and NEPA was the
allegedly erroneous analysis of the effects of the Project on
lynx and Cabinet-Yaak grizzly bears and both species’
habitats.6 The Kootenai Forest stakeholders coalition and
Lincoln County were granted leave to intervene on behalf of
the Federal Defendants.
6
Alliance also asserted claims regarding the effect of the Project on
other endangered species, such as bull trout. On appeal, Alliance does not
challenge the district court’s rejection of those claims.
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 11
Alliance filed a motion for summary judgment. Federal
Defendants and Intervenor Defendants7 filed separate cross-
motions for summary judgment. The district court granted
summary judgment to Defendants, and denied summary
judgment to Alliance. All. for the Wild Rockies, 209 F. Supp.
3d at 1199–1200. Alliance timely appealed.8
II.
We first consider the threshold jurisdictional issue of
whether Alliance’s lynx ESA § 7 reconsultation claim is
moot. Although Alliance and the Federal Defendants agree
that this claim is moot, we have an independent obligation to
determine our jurisdiction. Shell Offshore Inc. v.
Greenpeace, Inc., 815 F.3d 623, 628 (9th Cir. 2016). Upon
review of the record and the responses to the Federal
Defendants’ motion to dismiss, we conclude the claim is
moot.
A claim is moot if it “has lost its character as a live
controversy.” Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-
7
We refer to Federal Defendants and the Intervenor Defendants,
collectively, as “Defendants.”
8
The district court denied Alliance’s motion for an injunction pending
appeal. Alliance then sought an injunction from our court, which a
motions panel granted. The motions panel enjoined the Project in its
entirety. Defendants subsequently moved to modify the injunction to
permit certain activities in lynx habitat, which we granted in part and
denied in part. Because the injunction was based on the lynx ESA § 7
reconsultation claim, which as discussed below is moot, there is no
continuing basis for the injunction. See Friends of the Clearwater v.
Dombeck, 222 F.3d 552, 559 (9th Cir. 2000) (denying injunctive relief as
a result of further agency studies to supplement an EIS that initially
violated NEPA). Therefore, we vacate the injunction.
12 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
Jolly, 590 F.3d 725, 727 (9th Cir. 2009). Under Article III of
the Constitution, “a live controversy [must] persist
throughout all stages of the litigation.” Gator.com Corp. v.
L.L. Bean, Inc., 398 F.3d 1125, 1128–29 (9th Cir. 2005) (en
banc); see also Hollingsworth v. Perry, 570 U.S. 693, 705
(2013). A “court must be able to grant effective relief, or it
lacks jurisdiction and must dismiss the appeal.” Pub. Utilities
Comm’n v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996); see
also W. Coast Seafood Processors Ass’n v. Natural Res. Def.
Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011).
On appeal, Alliance advances two related ESA
arguments. First, it argues that the Forest Service’s decision
to approve the Project was arbitrary and capricious because
it relied on the Lynx Amendment before FWS completed
reconsultation as directed by our holding in Cottonwood.
Second, Alliance argues that the Forest Service’s finding of
“no adverse affect” on lynx and lynx critical habitat in the
Biological Assessment for the Project and FWS’s
concurrence in that finding before completion of the
reconsultation process was arbitrary and capricious.
Although Alliance argues that the “no adverse affect” finding
fails to satisfy the Forest Service’s definition of that term, this
argument is subsumed within Alliance’s ESA § 7
reconsultation claim.
We agree with the Federal Defendants that Alliance’s
lynx related claim is properly characterized as a
reconsultation claim under ESA § 7, as Alliance was seeking
reconsultation. We further agree with the Federal Defendants
and Alliance that this claim is moot as there is no effective
relief available to Alliance; it has obtained all that it sought
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 13
with this claim. See FERC, 100 F.3d at 1458. Lacking
jurisdiction over this claim, we dismiss it.9 Id.Alliance also argues that because this aspect of the case
is now moot, we should vacate the district court’s summary
judgment ruling as it pertains to Alliance’s reconsultation
claim. Vacatur is proper “in cases where intervening events
moot a petition for review of an agency order.” Oregon v.
FERC, 636 F.3d 1203, 1206 (9th Cir. 2011). When deciding
whether to vacate a moot judgment, “causation of mootness
is a threshold question.” Chem. Producers & Distribs. Ass’n
v. Helliker, 463 F.3d 871, 878 (9th Cir. 2006); see also
United States v. Munsingwear, 340 U.S. 36, 39 (1950). When
mootness is caused by the party seeking vacatur, then we
typically will remand to the district court to allow it to
balance the equities and determine whether it should vacate
its own order. Helliker, 463 F.3d at 878. When mootness is
not caused by actions of the party seeking vacatur, we
typically will vacate the district court’s order. Id. In this
instance, Alliance requests vacatur because the FWS
completed reconsultation on the Lynx Amendment.
Mootness was therefore caused by the Federal Defendants
who rendered the claim moot by providing the relief
9
Intervenor Defendants argue that we should affirm the district
court’s summary judgment ruling because the Forest Service effectively
completed reconsultation as required by Cottonwood when the FWS
completed consultation on a new Kootenai National Forest Plan in 2013.
Alliance, however, did not base its reconsultation claim on the Kootenai
Forest Plan and related FWS biological opinion. We therefore decline
Intervenor Defendants’ request to recast Alliance’s ESA § 7 claim,
especially where the claim it did allege is moot. See All. for the Wild
Rockies v. U.S. Dep’t of Agric., 772 F.3d 592, 601 (9th Cir. 2014)
(“Reinitiation of consultation is the precise relief sought by Alliance.
Accordingly, Alliance’s Section 7 claim is moot.”).
14 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
requested by Alliance.10 See, e.g., Idaho Dep’t of Fish &
Game v. Nat’l Marine Fisheries Serv., 56 F.3d 1071, 1075
(9th Cir. 1995) (dismissing a case as moot and vacating the
judgment below after the issuance of a new biological
opinion). Given these events, we vacate the part of the
district court’s summary judgment ruling addressing the ESA
§ 7 reconsultation claim and remand with instructions to
dismiss it as moot.11
III.
“The NFMA . . . provide[s] for forest planning and
management by the Forest Service on two levels: (1) forest
level and (2) individual project level.” Native Ecosystems
Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). “On
the forest level, the . . . []forest plan[] . . . consists of broad,
long-term plans and objectives for the entire forest.” Id.10
Intervenor Defendants argue that the ESA § 7 claim is moot as a
result of Alliance and other environmental plaintiffs filing lawsuits such
as this one to compel reconsultation on the Lynx Amendment. Therefore,
according to Intervenor Defendants it is not mere “happenstance” that
reconsultation occurred, but rather was the result of Alliance’s own
actions. This, however, reads “causation” too broadly. The FWS
“caused” the mootness by completing the reconsultation process at the
Forest Service’s request. Additionally, our holding in Cottonwood that the
Forest Service was required to reinitiate consultation with the FWS serves
to sever any causal ties to Alliance’s own actions. Cf. Helliker, 463 F.3d
at 879 (holding that vacatur was appropriate despite the fact that a party
had contributed to mootness by lobbying the state legislature to amend the
statutory scheme at issue).
11
Alliance’s unopposed motion for judicial notice of the Forest
Service’s November 2, 2016 letter requesting reconsultation (Dkt. No. 54)
is granted and the Federal Defendants’ motion to strike (Dkt. No. 61) is
denied.
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 15
“After a forest plan is approved, the Forest Service
implements the forest plan when approving or denying site-
specific projects.” Id. Failing to comply with the provisions
of a forest plan is a violation of NFMA. Native Ecosystems
Council v. U.S. Forest Serv., 418 F.3d 953, 961 (9th Cir.
2005).
The Kootenai National Forest Plan includes the “Access
Amendments,” which provide restrictions on road miles in
certain areas of the Kootenai Forest occupied by the listed
Cabinet-Yaak grizzly bears.12 Alliance argues that it was
arbitrary and capricious for Federal Defendants to conclude
that the Project would not increase the total road miles
beyond the cap provided for by the Access Amendments.
Defendants argue that Alliance waived this argument, so
we begin with a discussion of whether the claim is waived
before turning to the merits. In discussing the merits, we start
with a brief background of the Access Amendments, followed
by a discussion of Federal Defendants’ purported compliance
with the Access Amendments in evaluating the Project. We
then analyze whether Federal Defendants satisfied the clear
mandate of the Access Amendments, conclude that they
failed to do so, and reverse the district court’s grant of
summary judgment to Defendants. On remand, the district
12
In 1999, the Fish and Wildlife Service (“FWS”) found that
reclassification of the distinct population of Cabinet-Yaak grizzly bear
from threatened to endangered was “warranted but precluded by work on
other higher priority species.” 64 Fed. Reg. 26725-01, 26725 (May 17,
1999). In 2014, the FWS again considered “uplisting” the Cabinet-Yaak
grizzly bear, but declined to do so. 79 Fed. Reg. 72450, 72488 (Dec. 5,
2014). A district court, however, recently remanded that determination to
the FWS. See All. for the Wild Rockies v. Zinke, 265 F. Supp. 3d 1161,
1182 (D. Mont. 2017).
16 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
court is directed to remand this issue to the Forest Service for
further proceedings consistent with this opinion.
A.
We review de novo the district court’s decision to grant
summary judgment. Lands Council v. Powell, 395 F.3d 1019,
1026 (9th Cir. 2005). We review Federal Defendants’
compliance with NFMA under the standard provided by the
Administrative Procedure Act, meaning that we may set aside
agency action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5 U.S.C.
§ 706(2)(A). Great Old Broads for Wilderness v. Kimbell,
709 F.3d 836, 846 (9th Cir. 2013). Such review “is
deferential and narrow, requiring a high threshold for setting
aside agency action following public notice and comment.”
Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 675 (9th
Cir. 2016) (internal quotation marks omitted).
B.
At the outset, we must determine whether Alliance
waived its claim regarding the Cabinet-Yaak grizzly bear.
Defendants argue that Alliance failed to raise this argument
in a timely manner during the agency proceedings. After oral
argument, we asked for supplemental briefing to further
clarify the issue.
“Absent exceptional circumstances, . . . belatedly raised
issues may not form a basis for reversal of an agency
decision.” Havasupai Tribe v. Robertson, 943 F.2d 32, 34
(9th Cir. 1991) (per curiam). Here, Alliance did not file an
objection to the alleged increase in total linear road miles
until after issuance of the Final Environmental Impact
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 17
Statement, which, in the typical case, would be untimely. See
36 C.F.R. § 218.8(c); Havasupai Tribe, 943 F.2d at 34
(noting that issues raised after publication of the final
environmental impact statement were “belatedly raised” and
concluding that the appellant “had some obligation to raise
these issues during the comment process”).
This, however, is not a typical case; Alliance’s failure to
object at an earlier time resulted from the Forest Service’s
failure to disclose this aspect of the Project in the Draft
Environmental Impact Statement. It was first revealed in the
Final Environmental Impact Statement,13 to which Alliance
promptly objected. In other words, Alliance raised its
objection at the first available opportunity, and it is therefore
not waived. See 36 C.F.R. § 218.8(c).
C.
Having concluded that Alliance may raise this claim, we
turn to the Access Amendments, including their historical
13
Defendants’ arguments to the contrary are unavailing. Although
there was a map containing the relevant information in the agency record
(made available to the public at the Libby, Montana ranger station at the
time of publishing the Draft Environmental Impact Statement), there was
nothing in the Draft Environmental Impact Statement that would have
alerted a reader to the existence of the map. Furthermore, it would have
been erroneous to incorporate that map by reference; at a minimum, the
map should have been included in the Draft Environmental Impact
Statement appendix. See 40 C.F.R. § 1502.18(a)–(b); 46 Fed. Reg. 18026-
01, 18034 (Mar. 23, 1981). To the extent Defendants argue that some
obscure combination of maps and tables in the Draft Environmental
Impact Statement and its appendix would have put Alliance on notice, we
have reviewed those materials, find them lacking, and reject the argument.
In short, it is a futile task to attempt to divine, from those documents, the
aspect of the Project to which Alliance objects.
18 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
development. The FWS has taken certain actions to conserve
Cabinet-Yaak grizzly bears as they face extinction. See 64
Fed. Reg. 26725-01, 26732 (May 17, 1999) (the FWS
concluding that Cabinet-Yaak grizzly bears “are in danger of
extinction”). In 1993, the FWS promulgated the Grizzly Bear
Recovery Plan (“Recovery Plan”) that designates “recovery
zones” in the Kootenai National Forest where “there is a
significant likelihood of grizzly bear presence.” All. for the
Wild Rockies v. Bradford, 856 F.3d 1238, 1240 (9th Cir.
2017) (“Bradford”). “The Recovery Plan prescribes forest
management measures within these zones to protect grizzly
bears and to facilitate their survival and reproduction.” Id.Among the recovery zones is the Cabinet-Yaak recovery
zone, for which the Recovery Plan set a goal of restoring the
population to at least one-hundred bears.14
In addition to “recovery zones,” the Recovery Plan “also
designates areas outside the recovery zones that grizzly bears
sometimes frequent, called ‘Bears Outside of Recovery
Zones’ or ‘BORZ polygons’ . . . [and] prescribes less
protective management measures in BORZ polygons than in
recovery zones.” Id. Although less protective, the
protections in BORZ polygons are still meaningful.
Among the protections applicable in BORZ polygons are
those found in the Access Amendments,15 which the Forest
14
See http://www.nps.gov/noca/upload/Grizzly_bear_
recovery_plan.pdf, at 83 (last visited April 12, 2017).
15
The full title for the Access Amendments is “Motorized Access
Management within the Selkirk and Cabinet-Yaak Grizzly Bear Recovery
Zones.” See Bradford, 856 F.3d at 1240. The Access Amendments
modified the Kootenai Forest Plan; as provided in the Access
Amendments, they amended “the objectives, standards, and guidelines that
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 19
Service developed in consultation with the FWS, and which
“establish[] motorized-vehicle access restrictions in recovery
zones and BORZ polygons.” Id. As explained in the Access
Amendments, restricting motorized-vehicle access
“minimiz[es] human interactions and potential grizzly bear
mortality, reduc[es] displacement from important habitats,
and minimiz[es] habituation to humans.” In furtherance of
these goals, the Access Amendments establish a “baseline”
cap on the total linear road miles in each BORZ polygon, and
prohibit any net increase in permanent roads beyond the
applicable baseline. See id. at 1241.
D.
A portion of the Project area overlaps with part of the
Tobacco BORZ polygon (the “overlapping area”), in which
Cabinet-Yaak grizzly bears are sometimes found. The
baseline road mileage for the Tobacco BORZ polygon was
calculated in 2009, and amounts to 1,123.9 linear miles.
The Project contemplates a range of road-related activities
within the overlapping area, including constructing new
roads, decommissioning both National Forest and
“undetermined” roads, and assigning road numbers to
“undetermined” roads to incorporate them into the National
Forest road system.16 In an attempt to satisfy the Access
address grizzly bear management within the Selkirk and Cabinet-Yaak
recovery zones.”
16
The “Data Dictionary” for the Forest Service travel system provides
the following definition of “undetermined” road:
20 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
Amendments’ mandate that road mileage shall not increase
beyond the baseline, the Forest Service conducted a survey of
existing roads, including “undetermined” roads, in the
overlapping area. It then concluded that because the Project
would not increase the road mileage in the overlapping area
beyond the existing condition, it would not increase the linear
road mileage within the Tobacco BORZ polygon.
In particular, the Forest Service concluded that its
construction of 2.2 miles of new road would be more than
off-set by decommissioning 0.65 miles of National Forest
road and 1.84 miles of “undetermined” road, and that the
assignment of road numbers to 2.6 miles of “undetermined”
road would have no effect because those roads were already
existing. Based on these calculations, the Forest Service
concluded that the net effect of the Project would be a
reduction of 0.3 miles of road in the Tobacco BORZ polygon
(2.2 – 0.65 – 1.84 = –0.3). The FWS concurred in the Forest
Service’s conclusion.
Unauthorized Road or Trail. A road or trail that is
not a forest road or trail or a temporary road or trail that
is not included in a forest transportation atlas.
Unauthorized roads are categorized into two types and
recorded in the SYSTEM linear event in the Infra
Travel Routes database. The two types are:
[1.] Undetermined. Roads whose long term purpose
and need has yet to be determined, and
[2.] Not Needed. Roads not needed for long-term
management of national forest resources as determined
through an appropriate planning document.
(citations omitted).
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 21
E.
The Forest Service’s analysis was plainly insufficient.
The Access Amendments are unequivocal: the Forest Service
must examine whether a proposed project will result in road
mileage within the BORZ polygon that exceeds the Access
Amendments baseline established for that BORZ polygon.
The Forest Service did not conduct that analysis. It instead
conducted a survey of the roads existing in the overlapping
area at the time of the Project proposal (in 2011), and
analyzed the effects of the Project on its own measurement.
The Forest Service never assessed the impact of the Project
on the 1,123.9 linear mile baseline condition of the Tobacco
BORZ polygon. In other words, the Forest Service’s “failure
to measure [linear road miles] as defined by the [Access
Amendments] renders us unable to determine from the record
that the agency is complying with the forest plan standard.”
Hapner v. Tidwell, 621 F.3d 1239, 1250 (9th Cir. 2010)
(internal quotation marks omitted).
We recognize that, in some circumstances, it would be
possible for the Forest Service to comply with the Access
Amendments by measuring the impact of the project on
existing roads—but only if the Forest Service additionally
determined that the existing roads were included in the
Access Amendments baseline measurement. Here, the Forest
Service did not determine whether the existing roads it
measured (most notably, whether the particular
“undetermined” roads it measured), were included in the
baseline. Absent such a determination, it is impossible to
determine whether the Project will result in an increase in
road mileage.
22 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
An examination of the record in this case reveals the
problem with the Forest Service’s failure to make this
necessary determination. To justify the addition of 2.2 miles
of new permanent road, the Forest Service relied on the
decommissioning of 1.84 miles of “undetermined” road and
the decommissioning of 0.65 miles of National Forest road.
If, however, as Alliance argues, “undetermined” roads were
not included in the Access Amendments baseline calculation
in the first place, it would be illogical to offset the 2.2 miles
of new road construction with the decommissioning of 1.84
miles of “undetermined” road.17 The fact that we do not
know whether the “undetermined” roads at issue were
included in the Access Amendments baseline calculation is
precisely the problem. Without such information, we cannot
determine whether the Forest Service complied with the
Access Amendments.
The district court agreed that it is impossible to
determine, with certainty, whether the “undetermined” roads
at issue were included in the baseline calculation. All. for the
Wild Rockies, 209 F. Supp. 3d at 1192–94. Nonetheless, the
district court concluded that some circumstantial evidence
supported a finding that such roads were included in the
baseline, and therefore granted summary judgment to
Defendants. Id. at 1193–94. The district court’s conclusion
misses the point. The Forest Service committed clear error in
its analysis by failing to specify that the existing
undetermined roads were included in the Access
Amendments baseline calculation, and thus failed to provide
17
Likewise, if the 2.6 miles of “undetermined” road that the Project
seeks to incorporate into the National Forest road system was not included
in the Access Amendments baseline calculation, its incorporation will
result in a net increase of road mileage.
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 23
a cogent explanation for its conclusion that the Project
complies with the Access Amendments. See Ctr. for
Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d
1101, 1124 (9th Cir. 2012) (“We cannot gloss over the
absence of a cogent explanation by the agency by relying on
the post hoc rationalizations offered by defendants in their
appellate briefs.”) (quoting Humane Soc’y of U.S. v. Locke,
626 F.3d 1040, 1049 (9th Cir. 2010)). Moreover, the error
cannot be treated as harmless in light of the ambiguity in the
record as to whether the “undetermined” roads at issue were,
in fact, included in the Access Amendments baseline
calculation.18
In sum, the Forest Service’s failure to analyze whether the
Project will increase the total linear miles of permanent roads
within the Tobacco BORZ polygon beyond the baseline does
not satisfy the plain terms of the Access Amendments and
was therefore arbitrary and capricious. See Native
18
Although a non-exhaustive list, we highlight three problems with
the evidence to illuminate the ambiguity in the record. First, because
“undetermined” is a sub-category of “unauthorized” roads, it is possible
that the particular undetermined roads at issue in this case were
created—without authorization from the Forest Service—in the interim
between the measurement of the Access Amendments baseline and the
Forest Service’s survey of existing roads for the Project. Second, the
definition of “undetermined” roads indicates that it is a term that refers to
both temporary and permanent roads, but the Access Amendments are
concerned solely with permanent roads, which suggests that some (or all)
of the undetermined roads would not have been included in the baseline.
Third, the definition of “undetermined” roads indicates that such roads are
included in one database (the SYSTEM linear event in the Infra Travel
Routes database), but not in another database (the forest transportation
atlas). We do not know which database—whether one of the two provided
in the definition, or some other database—the Access Amendments
baseline calculation relied upon.
24 ALLIANCE FOR THE WILD ROCKIES V. SAVAGE
Ecosystems Council, 418 F.3d at 962–64; see also Earth
Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1018 (9th
Cir. 2012) (“A court will conclude that the Forest Service acts
arbitrarily and capriciously . . . when the record plainly
demonstrates that the Forest Service made a clear error in
judgment in concluding that a project meets the requirements
of the . . . relevant Forest Plan.”) (internal quotation marks
omitted). Likewise, the FWS’s concurrence in a proposed
action that fails to satisfy the Access Amendments was
arbitrary and capricious. On this claim, we therefore reverse
the district court’s denial of summary judgment to Alliance
and grant of summary judgment to Defendants. The district
court shall remand this issue to the Forest Service for further
proceedings consistent with this opinion. See Native
Ecosystems Council, 418 F.3d at 965–66.
IV. Conclusion
We hold that Alliance was entitled to summary judgment
on its claims that, in approving the East Reservoir Project, the
Forest Service and the FWS acted arbitrarily and capriciously
by failing to determine whether the East Reservoir Project
will result in road mileage within the Tobacco BORZ
polygon that exceeds the baseline cap provided by the Access
Amendments. With regard to Alliance’s Cabinet-Yaak
grizzly bear claim, the district court shall remand the issue to
the Forest Service for proceedings consistent with this
opinion. With regard to Alliance’s lynx reconsultation claim,
we vacate the part of the district court’s summary judgment
order that addresses this claim, Dist. Ct. Dkt. No. 67, pages
24–35; All. for the Wild Rockies, 209 F. Supp. 3d at 1194–99,
ALLIANCE FOR THE WILD ROCKIES V. SAVAGE 25
and remand with instructions to dismiss the reconsultation
claim as moot. The injunction previously issued by this court
is vacated.
REVERSED and REMANDED in part; VACATED
and REMANDED in part.
The parties shall bear their own costs on appeal.