Native Ecosystems Council v. Leanne Marten ( 2018 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    APR 19 2018
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    NATIVE ECOSYSTEMS COUNCIL and                    No.   16-35577
    ALLIANCE FOR THE WILD ROCKIES,
    D.C. No. 9:15-cv-00098-DLC
    Plaintiffs-Appellants,
    v.                                              MEMORANDUM*
    LEANNE MARTEN, Regional Forester of
    Region One of the U.S. Forest Service; et
    al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Montana
    Dana L. Christensen, Chief Judge, Presiding
    Argued and Submitted March 5, 2018
    Seattle, Washington
    Before: RAWLINSON, CLIFTON, and CHRISTEN, Circuit Judges.
    Plaintiffs appeal the district court’s order granting summary judgment to
    Defendants. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    1. Defendants’ decision to average snag density over the Project area as a
    whole was not arbitrary and capricious. In developing the Beaverhead-Deerlodge
    National Forest Plan’s snag standard, Defendants relied on a study that “provide[d]
    the most current snag data available” on eastside Montana forests. Plaintiffs argue
    the snag standard was inconsistent with the recommendations in another study, but
    Plaintiffs’ preferred study was older than the study on which Defendants relied,
    focused on westside rather than eastside Montana forests, and did not purport to
    require Defendants to pursue a particular approach. Defendants relied on accepted
    science in determining how to calculate snag density, and this court is “at its most
    deferential when reviewing scientific judgments and technical analyses within the
    agency’s expertise.” Native Ecosystems Council v. Weldon, 
    697 F.3d 1043
    , 1051
    (9th Cir. 2012) (internal quotation marks omitted).
    The case on which Plaintiffs rely, Oregon Natural Resources Council Fund
    v. Brong, 
    492 F.3d 1120
    (9th Cir. 2007), does not counsel otherwise. Plaintiffs
    here do not allege the East Deerlodge Project is inconsistent with the goals of the
    Forest Plan, as did the plaintiffs in Brong, see 
    id. at 1124;
    instead, they allege the
    Forest Plan is inconsistent with the National Forest Management Act (NFMA).
    But NFMA does not require a particular manner of calculating snag retention. And
    unlike in Brong, here there is no evidence Defendants were “attempt[ing] to dilute
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    the effects of its proposed activities by averaging the snag retention over such a
    wide area” in order to sidestep environmental review. 
    Id. at 1130.
    Plaintiffs also did not show that the snag standard arbitrarily and
    capriciously failed to ensure the viability of cavity-nesting species. Again,
    Defendants modeled the snag standard on a scientific study, including its
    prediction that “due to the ongoing and future predicted bark beetle epidemics and
    fire many more snags will be available in the 10"+ DBH.” Defendants sought to
    effectuate the long-term goal of ensuring snag availability by retaining live trees in
    the same size class in which snags were currently unavailable, and Plaintiffs have
    not shown that snag-dependent species would not nest in snags of larger size
    expressly preserved by the Forest Plan, nor that the viability of these species would
    be threatened if snags between 10" and 15" dbh were unavailable.
    2. Plaintiffs failed to exhaust their concerns about disclosure of Riparian
    Management Objectives (RMOs) for Riparian Conservation Areas (RCAs) by not
    providing the agency with notice of their specific objections. It is undisputed that
    Plaintiffs filed comments to the Project Draft Environmental Impact Statement
    (EIS), and to the Revised Draft EIS. Plaintiffs also timely objected to the Project
    Record of Decision. But neither Plaintiffs’ comments nor their objections asked
    Defendants to disclose the quantitative RMOs nor to discuss whether Project
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    activities in RCAs were meeting, exceeding, or failing to meet RMOs. Plaintiffs’
    requests were far more general: to “disclose the results of up-to-date monitoring of
    fish habitat and watershed conditions, as required by the Forest Plan,” and to
    “evaluate watersheds in the project area for effect on water quality.” These
    statements did not put the agency on notice as to Plaintiffs’ specific concerns such
    that the agency would know to offer the detailed answers Plaintiffs now seek. See
    Idaho Sporting Cong., Inc. v. Rittenhouse, 
    305 F.3d 957
    , 965 (9th Cir. 2002)
    (observing that while plaintiffs may alert decision makers to a problem using
    general terms rather than “precise legal formulations,” claims must “be raised with
    sufficient clarity to allow the decision maker to understand and rule on the issue
    raised”). Because Plaintiffs failed to exhaust administrative procedures before
    bringing this action, see 7 U.S.C. § 6912(e), we do not address the merits of
    Plaintiffs’ NFMA or National Environmental Policy Act claims.
    AFFIRMED.
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Document Info

Docket Number: 16-35577

Filed Date: 4/19/2018

Precedential Status: Non-Precedential

Modified Date: 4/17/2021