Center for Biological Diversit v. Usfs , 408 F. App'x 64 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 09-17521
DIVERSITY; et al.,
D.C. No. 3:09-cv-08116-FJM
Plaintiffs - Appellants,
v. MEMORANDUM *
UNITED STATES FOREST SERVICE
and U.S. FISH AND WILDLIFE
SERVICE,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted December 7, 2010
San Francisco, California
Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.
The Center for Biological Diversity (“the Center”) appeals the district
court’s decision granting the U.S. Forest Service (“Forest Service”) and the U.S.
Fish and Wildlife Service’s (“FWS”) cross-motion for summary judgment. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court found that FWS’ “letter of concurrence” regarding the impacts of the
Warm Fire Recovery Project on the Mexican spotted owl (“MSO”) and its critical
habitat did not violate the Endangered Species Act (“ESA”). The district court also
found that the Forest Service did not violate the National Forest Management Act
(“NFMA”) or the National Environmental Policy Act (“NEPA”) in determining
that the Warm Fire Recovery Project is not likely to affect the population trend of
the sensitive Allen’s lappet-browed bat. This Court has jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm the district court’s order granting defendants’ cross-
motion for summary judgment.
This Court reviews the district court’s grant of summary judgment de novo.
Bader v. N. Line Layers, Inc., 503 F.3d 813, 816 (9th Cir. 2007). Judicial review
of agency action is governed by the Administrative Procedure Act (“APA”), and
we must set aside an agency’s decision if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Northwest Coalition for
Alternatives to Pesticides v. EPA, 544 F.3d 1043, 1047 (9th Cir. 2008) (quoting 5
U.S.C. § 706(2)(A)). The arbitrary and capricious standard is deferential, and
courts will “uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
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Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Bowman Transp., Inc.
v. Arkansas-Best Freight Sys., Inc. 419 U.S. 281, 286 (1974)).
I. ESA Claim
Section 7 of the ESA requires federal agencies to ensure, through
consultation with expert wildlife agencies, that their actions are “not likely to
jeopardize the continued existence of any endangered species . . . or result in the
destruction or adverse modification of [critical] habitat of such species.” 16 U.S.C.
§ 1536(a)(2). If the action agency determines that a proposed project is “not likely
to affect” any listed species or critical habitat, and the expert agency issues a
written concurrence, so-called “informal” consultation can be terminated. As long
as an agency follows proper procedures, it is fully entitled to change its mind
during the consultation process, and “federal courts ordinarily are empowered to
review only an agency’s final action.” Nat’l Ass’n of Home Builders v. Defenders
of Wildlife, 551 U.S. 644, 659 (2007) (emphasis in original).
In this case, a thorough review of the administrative record reveals that FWS
satisfied the requirements of ESA. The path to FWS’ final decision can be
discerned from the beginning of the consultation process to its letter of
concurrence. In the scoping comments that FWS issued on February 7, 2007, it
wrote that “[b]ased upon the description of the project area, the threatened
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Mexican spotted owl . . . may occur in the area.” As the consultation continued,
however, the Forest Service presented evidence that allowed FWS to “conclude
that there is not a resident population” of MSO in the project area. In other words,
FWS “‘considered the relevant factors and articulated a rational connection
between the facts found and the choices made,’” Arrington v. Daniels, 516 F.3d
1106, 1112 (9th Cir. 2008) (quoting Ranchers Cattlemen Action Legal Fund v. U.S.
Dep’t of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005)). The same is true of FWS’
consideration of the MSO’s critical habitat.
FWS’ concurrence also relied, in part, on the fact that the Forest Service had
incorporated design features that “include[d] active management to enhance
recovery of MSO habitat.” Between the time of the scoping comments and the
letter, the Forest Service had incorporated many of FWS’ suggestions, including
design features to protect soils, an increase in the number of large snags that would
be retained, and revisions to its final Biological Assessment to address the effects
on primary constituent elements. FWS’ letter reflects a holistic assessment of all
the recommendations it had made and the extent to which they had been
incorporated into the Forest Service’s Biological Assessment.
For all of these reasons, FWS’ decision to concur in the Warm Fire
Recovery Project complied with the requirements of ESA.
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II. NFMA and NEPA Claims
The NFMA requires that site-specific projects be consistent with the
applicable forest plan. 16 U.S.C. § 1604(i). Under the Kaibab Forest Plan, this
requires the Forest Service to “document the effect of the selected action on the
viability of the population of . . . sensitive species,” including the Allen’s lappet-
browed bat. A “viable population” is defined, in turn, “as one that has the
estimated numbers and distribution of reproductive individuals to insure [sic] its
continued existence and is well distributed in the planning area.”
As the district court emphasized, the Ninth Circuit has held that the Forest
Service may rely solely on habitat information in analyzing whether a project
maintains species viability. Lands Council v. McNair, 537 F.3d 981, 996 (9th Cir.
2008), overruled on other grounds by Am. Trucking Ass’ns Inc. v. City of Los
Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The Forest Service must also
“describe the quantity and quality of habitat that is necessary to sustain the
viability of the species in question and explain its methodology for measuring this
habitat.” Id. at 998 (citations omitted). This approach provides that a showing of
sustained habitat operates as a “proxy for the viability of that species.” Id. This
Court “will defer to [the] decision to use habitat as a proxy unless the Forest
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Service makes a ‘clear error of judgment’ that renders its decision arbitrary and
capricious.” Id. at 998 (citations omitted).
The Forest Service’s decision to use habitat as a proxy for species viability
was consistent with NFMA. First of all, the Forest Service pointed out that
“[p]onderosa pine has the type of bark most suitable to provide roosting habitat”
for bats, and “[f]ield reviews in the summer of 2007 noted that many of the
ponderosa pine still had bark attached.” Though “[l]ittle is known about microsite
conditions related to site selection by roosting bats,” “[a]ssuming loose bark is the
only criteria, the [project] area could support an increase in bat numbers due to the
large numbers of standing dead trees.” When it comes to numbers, the Forest
Service noted the fact that “at least five to seven snags per acre will be retained on
mixed conifer sites, with three to five large snags per acre retained elsewhere.”
Either figure exceeds (1) the Forest Plan’s requirements, calling for the retention of
“at least 2 snags per acre” of ponderosa pine, (2) the mean levels that the Rabe
study found adequate for bats (2.6-4.3 snags/acre; 6.5-10.6 snags/hectare), and (3)
historical levels in Geographical Area 13. The Forest Service’s methods for
making these determinations are clear from the record, and its actions comply with
the requirements of NFMA.
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Finally, “NEPA exists to ensure a process, not to mandate particular results.”
Neighbors of Cuddy Mt. v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002). “It
requires agencies . . . to prepare an Environmental Impact Statement (“EIS”)
whenever they propose to undertake any major Federal action [] significantly
affecting the quality of the human environment.” Id. (internal quotations omitted).
The goal of NEPA is two-fold: “(1) to ensure that the agency will have detailed
information on significant environmental impacts when it makes decisions; and (2)
to guarantee that this information will be available to a larger audience.” Id.(citations omitted). Here, the Forest Service produced a lengthy EIS in which it
provided the public with the detailed data and analysis underlying its determination
regarding the Allen’s lappet-browed bat. This EIS satisfies the Forest Service’s
obligations under NEPA.
AFFIRMED.
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