Conservation Congress v. Usfs , 686 F. App'x 392 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS, a non- No. 15-15737
profit organization,
D.C. No.
Plaintiff-Appellant, 2:14-cv-02228-GEB-AC
v.
MEMORANDUM*
UNITED STATES FOREST SERVICE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted March 16, 2017
San Francisco, California
Before: TALLMAN and WATFORD, Circuit Judges, and GUIROLA,** Chief
District Judge.
Conservation Congress appeals the district court’s grant of summary
judgment in favor of the United States Forest Service (“USFS”) in its action under
the National Forest Management Act (“NFMA”), the National Environmental
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Louis Guirola, Jr., Chief United States District Judge
for the Southern District of Mississippi, sitting by designation.
Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).
Conservation Congress challenges USFS’s authorization of the Porcupine
Vegetation and Road Management Project (“Project”) in the Shasta-Trinity
National Forest. Specifically, Conservation Congress alleges that USFS failed to
comply with the NFMA’s snag requirements, did not take the requisite “hard look”
at environmental consequences, and should have prepared an Environmental
Impact Statement (“EIS”) for the Project. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. USFS did not arbitrarily conclude that the Project complied with the
NFMA’s snag standards. See 16 U.S.C. §§ 1604(a), (i); Native Ecosystems
Council v. Dombeck, 304 F.3d 886, 897 (9th Cir. 2002). As part of its
environmental review, USFS conducted site visits to proposed treatment units in
2011. Those field studies determined that each treatment unit had “at least two
snags per acre greater than 15 inches [in diameter].” This finding is consistent
with the Shasta-Trinity National Forest Land and Resource Management Plan
(“Forest Plan”), which requires all treated areas of the forest to retain an average of
1.5 snags per acre greater than 15 inches in diameter at breast height and 20 feet
tall. And because the Project’s proposed treatment methods will retain all existing
snags greater than 15 inches in diameter, “unless deemed a safety hazard by the
purchaser, or in the case of a need to meet coarse woody debris (CWD)
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requirements,” USFS has shown both that proposed treatment units meet snag
standards and that treatment methods will not reduce snag numbers below Forest
Plan minimums. Lands Council v. McNair, 537 F.3d 981, 989, 994 (9th Cir. 2008)
(en banc). USFS has therefore satisfied the NFMA.
2. USFS took the required “hard look” at the Project’s anticipated effect
on snag numbers. 42 U.S.C. § 4332(2)(C); Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989); Baltimore Gas & Elec. Co. v. Nat. Res. Def.
Council, 462 U.S. 87, 89 (1983); 40 C.F.R. § 1502.16. The 2011 field studies
established a snag baseline in proposed treatment units, Am. Rivers v. FERC, 201
F.3d 1186, 1195 n.15 (9th Cir. 1999), and USFS compared that baseline to the
effect treatment methods will have on snag levels. Because the Project only
removes snags in two limited circumstances, it was reasonable for USFS to
conclude that treatment methods will not reduce snag numbers below Forest Plan
standards. USFS has therefore complied with NEPA with respect to the Project’s
effect on snag numbers.
3. USFS appropriately considered all reasonable Project alternatives. 42
U.S.C. § 4332(2)(E); Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 915
(9th Cir. 2012) (quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1246 (9th Cir. 2005)). The Project’s Environmental Analysis (“EA”)
considered a total of fourteen alternatives, five of which were discussed in detail.
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40 C.F.R. § 1502.14. USFS also considered an alternative involving no treatment
within owl habitat—Alternative 6—but ultimately decided to reject that
alternative. See id. In making this decision, USFS did not act arbitrarily. USFS
reasonably concluded that not treating 17% of the Project area would thwart the
major purposes of the Project—to improve overall forest health by reducing fuel
loads and preventing catastrophic wildfires, reduce damage from insect infestation,
and remove impediments to efficient tree growth—which would benefit the owl
and its habitat over the long term. USFS further concluded that its decision to
reject Alternative 6 was not inconsistent with its earlier management decision to
avoid logging in the Late-Successional Reserve, as that area contains some of the
highest quality owl habitat in the region. NEPA only requires USFS to consider
alternatives reasonably related to the purposes of the Project, Westlands Water
Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir. 2004), and we hold that
USFS has satisfied that standard here.
4. USFS properly analyzed the cumulative impacts of the Porcupine
Project together with other actions, and the agency used a reasonable scope in that
analysis. Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d
1000, 1007 (9th Cir. 2011); 40 C.F.R. § 1508.7. In contrast to Conservation
Congress’s claim, the Council on Environmental Quality (“CEQ”) Handbook does
not require USFS to use the owl’s “natal dispersal” distance in its analysis. The
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Handbook is not afforded the same level of deference as formal CEQ regulations,
see Andrus v. Sierra Club, 442 U.S. 347, 358 (1979), and it specifically notes that
it is “not [to] be viewed as formal CEQ guidance [or] intended to be legally
binding.” Absent a specific regulation curtailing agency deference in this case, we
will not disturb the application of both USFS and Fish & Wildlife Service expertise
to assess the impact here. Kleppe v. Sierra Club, 427 U.S. 390, 413–14 (1976).
5. Finally, USFS was not required to prepare an EIS for the Porcupine
Project, and its ultimate finding of no significant impact (“FONSI”) is supported
by the record. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.13. An EIS is not
required if there is simply some uncertainty over the Project’s anticipated effects;
rather, the Project’s effects must be “highly” uncertain. Envtl. Prot. Info. Ctr. v.
U.S. Forest Serv., 451 F.3d 1005, 1011 (9th Cir. 2006). Conservation Congress
misses this distinction. While there is some uncertainty regarding the effect fires
have on foraging habitat, USFS has explained that owls are known to avoid high
and moderate burn areas for use as roosting and nesting habitat, a habitat
considered to be of higher quality than foraging habitat. In other words, while the
uncertain effect of fires in foraging areas may cast doubt on some aspects of the
Project, the Project’s anticipated effects as a whole are not highly uncertain and do
not trigger the need for an EIS. Id.; see also 40 C.F.R. § 1508.27(b)(5).
The same conclusion applies to Conservation Congress’s claim that, because
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a limited amount of logging will occur in areas designated as critical habitat, an
EIS is required to fully explore the effect logging will have in those areas. See 40
C.F.R. §§ 1508.27(b)(3), (9). But Conservation Congress has not shown that these
logging practices will significantly affect the environment. See 42 U.S.C.
§ 4332(2)(C); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,
1212 (9th Cir. 1998). Rather, as USFS has explained, logging in designated
critical habitat will be limited to areas that support lower-quality owl habitat—and
no forest treatment will occur in nesting and roosting habitat. We think USFS has
provided a “‘convincing statement of reasons’ to explain why [the Project’s]
impacts are insignificant.” Blue Mountains, 161 F.3d at 1212 (citation omitted).
USFS’s FONSI is well supported, and USFS was therefore not required to prepare
an EIS.
Each party shall bear its own costs.
AFFIRMED.
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