Native Ecosystems Council v. Leanne Marten ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE ECOSYSTEMS COUNCIL; No. 19-35084
MONTANA ECOSYSTEMS DEFENSE
COUNCIL, D.C. No. 9:17-cv-00077-DLC
Plaintiffs-Appellants,
MEMORANDUM*
v.
LEANNE MARTEN, in her official capacity
as Regional Forester of Region One U.S.
Forest Service; UNITED STATES FOREST
SERVICE; BILL AVEY, in his official
capacity as Supervisor of the Helena-Lewis
& Clark National Forest.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted March 5, 2020
Seattle, Washington
Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
Appellants Native Ecosystems Council and Montana Ecosystems Defense
Council (collectively, “NEC”) allege that Appellees violated the National Forest
Management Act (“NFMA”) and National Environmental Policy Act (“NEPA”) by
pursuing the Johnny Crow Wildlife Habitat Improvement Project (the “Project”).
The district court granted summary judgment to Appellees. We review that
decision de novo, Alaska Ctr. For Env’t v. U.S. Forest Serv., 189 F.3d 851, 857
(9th Cir. 1999), and affirm.
We begin with NEC’s claim that Appellees’ decision to use ecosystem
management as an analytical framework violates NFMA and NEPA. NEC’s claim
“seek[s] wholesale improvement” of an internal decision-making process. Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (emphasis omitted). The agency’s
decision to use a particular analytical framework is not a discrete “agency action”
and cannot be challenged under the Administrative Procedure Act. See 5 U.S.C. §
551(13); Norton v. S. Utah Wilderness All., 542 U.S. 55, 65 (2004) (“[W]hen an
agency is compelled by law to act . . . but the manner of its action is left to the
agency’s discretion, a court can compel the agency to act, but has no power to
specify what the action must be.”).
NEC’s other NFMA claims regarding an alleged 1982 baseline, seclusion
habitat, annual reports, public participation, and hiding cover requirements are all
meritless. Each argument is belied by the record, which demonstrates, for
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example, that the Project will provide sufficient elk hiding cover, and that the
agency has considered the effect of limited conifer removal on species requiring
seclusion. We therefore defer to the Forest Service’s judgment on these
issues. See N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,
1075 (9th Cir. 2011) (“A court generally must be at its most deferential when
reviewing scientific judgments and technical analyses within the agency’s
expertise.”) (internal quotation omitted). We pause only to note that Appellees’
failure to produce a report in 2016 does not make their decision to pursue the
Project arbitrary and capricious. See Native Ecosystems Council v. Weldon, 697
F.3d 1043, 1058 (9th Cir. 2012) (holding that a reporting inadequacy does not
violate NFMA absent a causal link between the inadequacy and the challenge to
the project).
Finally, NEC’s NEPA claims regarding Appellees’ decision to adopt the
Project under a categorical exclusion and alleged tiering to a 1993 Landscape
Analysis are also meritless. Appellees are entitled to deference with respect to
their decision to proceed by way of categorical exclusion. Alaska Ctr. for the
Env’t, 189 F.3d at 859. The record confirms that Appellees considered the
appropriate factors when determining whether to proceed by way of categorical
exclusion, including whether the cumulative effects and effects on the inventoried
roadless areas presented extraordinary circumstances precluding application of the
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exclusion. Finally, there is no evidence in the record that Appellees unlawfully
tiered their analysis.
AFFIRMED.
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