and Submitted June 13, 2017 Seattle, Washington
from the United States District Court No. 2:16-cv-00294-RMP
for the Eastern District of Washington Rosanna Malouf
Peterson, District Judge, Presiding
John Woodbury (argued), Boise, Idaho, for
J. Verschoor (argued) and Vanessa R. Waldref, Assistant
United States Attorneys; United States Attorney's Office,
Spokane, Washington; for Defendants-Appellees.
Emmett Fite (argued), American Forest Resource Council,
Portland, Oregon, for Intervenor-Defendants-Appellees.
Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and MORGAN B.
CHRISTEN, Circuit Judges.
panel affirmed the district court's denial of a
preliminary injunction in an action challenging the North
Fork Mill Creek A to Z Project in the Colville National
Forest in Washington.
to Z Project is a forest restoration project, and the
Alliance for the Wild Rockies filed an action challenging the
United States Forest Service's decision to approve the A
to Z Project.
panel held that Alliance had not demonstrated serious
questions, much less a likelihood of success, with respect to
any of its National Forest Management Act ("NFMA")
and National Environmental Policy Act ("NEPA")
claims. The panel concluded, therefore, that the district
court did not abuse its discretion in denying Alliance's
motion for a preliminary injunction.
the panel held that the Alliance had not shown either serious
questions or a likelihood of success on the merits of its
NFMA or NEPA claims: based on the Forest Service's use of
"habitat as a proxy" approach for assessing the
viability of the pine marten; based on the Forest
Service's use of the "proxy-as-proxy" approach
for assessing the viability of the fisher; based on the
Forest Service's snow-intercept cover analysis; and based
on the Forest Service's open road density analysis. The
panel also held that the Alliance had not shown either
serious questions or a likelihood of success on the merits of
Alliance's NEPA claim based on the Forest Service's
SMITH, Circuit Judge.
for Wild Rockies (Alliance) appeals the district court's
denial of a preliminary injunction in an action regarding the
North Fork Mill Creek A to Z Project (A to Z Project) in the
Colville National Forest in Colville, Washington. Alliance
alleges that United States Forest Service (Forest Service)
violated the National Forest Management Act (NFMA) and the
National Environmental Policy Act (NEPA) when it approved the
A to Z Project. The district court concluded that Alliance
did not satisfy any of the four required factors for the
issuance of a preliminary injunction. We affirm.
16 U.S.C. § 1600 et seq., requires the Forest
Service to develop and implement land and resource management
plans (forest plans) for each national forest. 16 U.S.C.
§ 1604(a). "These plans operate like zoning
ordinances, defining broadly the uses allowed in various
forest regions, setting goals and limits on various uses
(from logging to road construction), but do not directly
compel specific actions, such as cutting of trees in a
particular area or construction of a specific road."
Citizens for Better Forestry v. U.S. Dep't of
Agric., 341 F.3d 961, 966 (9th Cir. 2003). Of particular
relevance to this appeal, forest plans must, among other
substantive requirements, (1) "provide for diversity of
plant and animal communities based on the suitability and
capability of the specific land area, " 16 U.S.C. §
1604(g)(3)(B), and (2) "insure that timber will be
harvested from National Forest System lands only where . . .
protection is provided for streams, streambanks, shorelines,
lakes, wetlands, and other bodies of water from detrimental
changes in water temperatures, blockages of water courses,
and deposits of sediment, where harvests are likely to
seriously and adversely affect water conditions or fish
habitat." Id. § 1604(g)(3)(E)(iii).
"After a forest plan is developed, all subsequent agency
action, including site- specific plans . . ., must comply
with NFMA and the governing forest plan." Ecology
Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009).
42 U.S.C. § 4321 et seq., "is a procedural
statute intended to ensure environmentally informed
decision-making by federal agencies." W. Watersheds
Project v. Abbey, 719 F.3d 1035, 1045 (9th Cir. 2013)
(quoting Tillamook Cty. v. U.S. Army Corps of
Eng'rs, 288 F.3d 1140, 1143 (9th Cir. 2002)). NEPA
requires agencies to take a "hard look" at the
environmental consequences of proposed agency actions before
those actions are undertaken. Klamath-Siskiyou Wildlands
Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th
Cir. 2004). However, "NEPA does not mandate particular
substantive results, but instead imposes only procedural
requirements." Cold Mountain v. Garber, 375
F.3d 884, 892 (9th Cir. 2004) (citations and internal
quotation marks omitted).
to NEPA's implementing regulations, the agency proposing
the action may prepare an environmental assessment (EA) to
"[b]riefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact
statement [(EIS)] or a finding of no significant impact
[(FONSI)]." 40 C.F.R. § 1508.9(a)(1). An EA is a
"concise public document" that "[s]hall
include brief discussions of the need for the proposal, . . .
alternatives, . . . the environmental impacts of the proposed
action and alternatives, and a listing of agencies and
persons consulted." Id. § 1508.9(b).
"If the EA reveals that the proposed action will
significantly affect the environment, then the agency must
prepare an EIS." Kern v. U.S. Bureau of Land
Mgmt., 284 F.3d 1062, 1067 (9th Cir. 2002). But,
"[i]f the EA reveals no significant effect, the agency
may issue a [FONSI]." Id.