Conservation Congress v. Usfs ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS, A Non No. 19-15753
profit Organization,
D.C. No.
Plaintiff-Appellant, 2:13-cv-01922-TLN-DMC
v.
MEMORANDUM*
UNITED STATES FOREST SERVICE;
UNITED STATES FISH AND WILDLIFE
SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted May 5, 2020
Portland, Oregon
Before: SCHROEDER, WATFORD, and HURWITZ, Circuit Judges.
In this Administrative Procedure Act action against the Forest Service and
the Fish and Wildlife Service (“FWS”), Conservation Congress challenges the
agencies’ actions in connection with the approval of the Bagley Hazard Tree
Abatement Project (“Project”), designed to identify and remove fire-damaged trees
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
that pose a danger to users of the Shasta-Trinity National Forest’s roadways. The
district court granted summary judgment to the Forest Service and FWS. We have
jurisdiction over Conservation Congress’ appeal under 28 U.S.C. § 1291, and
reviewing de novo, see Conservation Cong. v. Finley, 774 F.3d 611, 617 (9th Cir.
2014), we affirm.
1. The Forest Service adequately considered the impact of post-fire
logging on private land in its Environmental Assessment. See Klamath-Siskiyou
Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 (9th Cir. 2004); 40
C.F.R. § 1508.7. The Forest Service estimated the reasonably foreseeable impact of
private-land logging on the forest in general and on northern spotted owl habitat in
particular, and developed an “environmental baseline, against which the incremental
impact of a proposed project [was] measured.” Cascadia Wildlands v. Bureau of
Indian Affairs, 801 F.3d 1105, 1111 (9th Cir. 2015). The Forest Service detailed the
methodology used to quantify the impact of the Project, providing both the
underlying data and illustrative maps. The record does not disclose a “clear error of
judgment” by the agency. Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851,
859 (9th Cir. 1999) (citation omitted).1
1
Because this method of analyzing the impact of private-land logging satisfied
the National Environmental Policy Act, the Forest Service was not required to
consider notices of emergency timber operations in its analysis. See League of
Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d
1211, 1218 (9th Cir. 2008). We deny Conservation Congress’ motion, Dkt. 9, for
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2. Under the National Environment Policy Act, an Environmental Impact
Statement (“EIS”) is required for “major” actions “significantly affecting the quality
of the human environment.” 42 U.S.C. § 4332(C). Here, the Forest Service
reasonably concluded that the Project did not require an EIS, but rather only an
Environmental Assessment. See 40 C.F.R. § 1501.4. The Project would affect a
small percentage of suitable owl critical habitat in the Shasta-Trinity National Forest,
target only a narrow range of trees near open roads, and remove only damaged trees
hazardous to roadway users. Although the Project would involve felling hazardous
trees within two Inventoried Roadless Areas (“IRAs”) and one Late Successional
Reserve (“LSR”), the Forest Service reasonably concluded that the impact on these
areas was not significant, as only a small portion of the IRAs and LSR would be
affected.
3. The Forest Service did not err in refusing to adopt Conservation
Congress’ proposed alternative, which was to conduct no logging or felling within
IRAs, LSRs, and northern spotted owl critical habitat. Almost all of the Project area
falls within one of those areas, and complete inaction in those areas would conflict
with the Project’s objective of making existing roads safe for use. See N. Alaska
judicial notice of these California state notices of emergency timber operations. See
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602-03 (9th Cir.
2014) (stating that a reviewing court is generally limited to “the administrative
record already in existence” (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973))).
3
Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006) (holding that an agency
is not required to discuss alternatives that are “inconsistent with the basic policy
objectives for the management of the area” (cleaned up)).
4. In issuing its concurrence letter, the FWS did not violate the
Endangered Species Act by failing to follow the 2011 Northern Spotted Owl
Recovery Plan. “The Endangered Species Act does not mandate compliance with
recovery plans for endangered species.” Cascadia Wildlands, 801 F.3d at 1114 n.8;
see also Finley, 774 F.3d at 620. Even assuming that the FWS was required to “work
toward the goals set in its recovery plan,” Friends of Blackwater v. Salazar, 691 F.3d
428, 437 (D.C. Cir. 2012), the agency did just that. The concurrence letter noted
that FWS had considered the Recovery Plan and detailed why the Project was
consistent with its goals.
AFFIRMED.
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