Alliance for the Wild Rockies v. Jim Pena
865 F.3d 1211
9th Cir.2017Background
- The A to Z Project is a 12,802-acre forest restoration and stewardship-contract project in the Colville National Forest involving timber harvests, road work, and stream/culvert restoration; Vaagen Brothers won the contract and Cramer Fish Sciences prepared the EA.
- The Forest Service issued a final EA and a FONSI in 2016 approving the project; Alliance for the Wild Rockies sued under the APA alleging NFMA and NEPA violations and moved for a preliminary injunction to halt the project.
- The district court denied the preliminary injunction, finding Alliance failed to show likelihood of success or serious questions on the merits, irreparable harm, and that the equities and public interest favored denying relief.
- On appeal the Ninth Circuit reviewed the denial for abuse of discretion and analyzed whether the EA’s methods and conclusions were arbitrary and capricious under the APA.
- Key contested analyses in the EA: (1) use of habitat proxies for pine marten viability and a proxy-on-proxy for fisher; (2) snow-intercept (cover-to-forage) calculations for big game winter range; (3) effect of temporary roads on open-road density; and (4) sediment impacts and mitigation sequencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of "habitat as a proxy" for pine marten viability (NFMA/NEPA) | EA unreliable because no recent population monitoring and no sightings since 1995 | Forest Service had habitat-knowledge (Youkey Report), EA used habitat because species are hard to detect and plan does not require monitoring | Court: proxy approach permissible; no serious questions or likelihood of success for Alliance |
| Use of proxy-on-proxy for fisher (NFMA/NEPA) | Fisher absent from site and pine marten is an imperfect MIS because fishers need larger ranges | Proxy-on-proxy valid where MIS habitat-methodology reliable; pine marten proxy upheld | Court: proxy-on-proxy acceptable; Alliance fails to raise serious questions |
| Snow-intercept cover (big game habitat; NFMA/NEPA) | EA underestimates cover loss (expert predicts 30:70) and failed to follow 1993 monitoring recommendation to analyze full winter range | Forest Service relied on contemporaneous silviculture analysis and monitoring recommendation was only a suggestion, not a mandatory correction | Court: Forest Service used reasonable science; no arbitrary or capricious error shown |
| Open road density (big game; NFMA/NEPA) | Project will add ~30 miles of temporary roads, worsening noncompliance with forest plan objective | Only a small portion affects winter range; roads are temporary and will be closed/decommissioned | Court: conclusion reasonable; no likelihood of success shown by Alliance |
| Sediment analysis (NEPA) | Gross increases in sediment from logging/roads risk exceeding fish-harm thresholds; mitigation not co-located; grazing impacts not properly considered | Forest Service projected net 0.5% decrease due to sequencing (rehab before disturbance), targeted "hot spot" mitigations account for most sediment sources, and grazing was considered | Court: reliance on net benefit, sequence, and targeted mitigation was permissible; Alliance fails to show serious questions or likelihood of success |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction Winter standard)
- Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014) (proxy methodology review)
- Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) (APA review of Forest Service NFMA/NEPA actions)
- Ecology Ctr. v. Castaneda, 574 F.3d 652 (9th Cir. 2009) (forest-plan compliance and scientific dispute limits)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (proxy must mirror reality)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (habitat-as-proxy discussion)
- Native Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010) (limitations of proxy-on-proxy where MIS absent)
- Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) (failure to follow monitoring guidance may be arbitrary when monitoring report finds plan inadequate)
- Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989 (9th Cir. 1993) (agency may consider mitigation when deciding if EIS required)