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Alliance for Wild Rockies v. Pena

United States Court of Appeals, Ninth Circuit

August 1, 2017

Alliance for the Wild Rockies, Plaintiff-Appellant,
v.
Jim Pena, in his official capacity as Regional Forester of Region Six U.S. Forest Service; United States Forest Service, an agency of the United States; Rodney Smoldon, in his official capacity as Supervisor of the Colville National Forest, Defendants-Appellees, and Stevens County; Northeast Washington Forestry Coalition; Pend Oreille County, Intervenor-Defendants-Appellees.

          Argued and Submitted June 13, 2017 Seattle, Washington

         Appeal from the United States District Court No. 2:16-cv-00294-RMP for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

          Thomas John Woodbury (argued), Boise, Idaho, for Plaintiff-Appellant.

          Rudy J. Verschoor (argued) and Vanessa R. Waldref, Assistant United States Attorneys; United States Attorney's Office, Spokane, Washington; for Defendants-Appellees.

          Lawson 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.

         SUMMARY[*]

         Environmental Law/Preliminary Injunction

         The 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.

         The A 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.

         The 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.

         Specifically, 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 sediment analysis.

          OPINION

          M. SMITH, Circuit Judge.

         Alliance 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.

         BACKGROUND

         I. Statutory Schemes

         A. NFMA

         NFMA, 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).

         B. NEPA

         NEPA, 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).

         Pursuant 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.

         II. The ...


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