Alliance for the Wild Rockies v. UsfsAlliance for the Wild Rockies v. Usfs
OPINION
Appeal from the United States District Court for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Seattle, Washington
Filed August 13, 2018
Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit Judges, and Eduardo C. Robreno,* District Judge.
Opinion by Judge Murguia
SUMMARY**
Environmental Law
The panel affirmed in part and reversed in part the district court’s summary judgment in favor of the U.S. Forest Service and intervenors Adams County, Idaho and Payette Forest Coalition, and remanded, in an action alleging that the Forest Service violated environmental laws in connection with the 2003 Payette National Forest Land and Resource Management Plan and the Lost Creek Project.
The 2003 Forest Plan divided the Payette Forest into “management areas;” and the land within each management area was assigned to various categories – called Management Prescription Categories (“MPC”) – that determined how the land was managed. In 2011, the Forest
Reversing the district court, the panel held that the final 2014 Record of Decision for the Lost Creek Project, which eliminated MPC 5.2 (commodity production) in its entirety and replaced it with MPC 5.1 (restoration), was arbitrary and capricious because the standards, guidelines, and desired conditions that determined the forest conditions for MPC 5.1 were different from those for MPC 5.2. Specifically, the panel held that: the switch from MPC 5.2 to MPC 5.1 improperly resulted in the loss of binding Fire Standard 0312 under the existing Forest Plan; the elimination of the existing Fire Guideline 0313 was contrary to the Forest Plan; and the switch resulted in the imposition of new desired vegetative conditions with the potential to alter the landscape and was inconsistent with the Forest Plan. The panel concluded that the switch from MPC 5.2 to MPC 5.1 constituted a violation of the National Forest Management Act.
Reversing the district court, the panel held that the Forest Service’s decision to adopt a new definition of “old forest habitat” for the Lost Creek Project area was arbitrary and capricious, and a violation of the National Forest Management Act.
Affirming the district court, the panel held that the Lost Creek Project’s minimum road system designation was not arbitrary or capricious where the Forest Service fully explained its decision in selecting an alternative and considered each of the factors listed under
The panel held that plaintiffs’ challenge to the Forest Service’s failure to reinitiate consultation with the U.S. Fish and Wildlife Service for the endangered bull trout under Section 7 of the Endangered Species Act was moot in light of the Forest Service’s decision to reinitiate consultation for the bull trout over its entire range, including the Payette National Forest. The panel vacated the district court’s decision on this claim.
The panel instructed the district court to vacate the Forest Service’s September 2014 Record of Decision and remand to the Forest Service for further proceedings.
COUNSEL
Claudia M. Newman (argued) and Jacob Brooks, Bricklin & Newman LLP, Seattle, Washington, for Plaintiffs-Appellants.
Allen M. Brabender (argued), Sean C. Duffy, and Bridget Kennedy McNeil, Attorneys; Jeffrey H. Wood, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Kenneth D. Paur, Office of the General Counsel, Department of Agriculture, Golden, Colorado; for Defendants-Appellees.
OPINION
MURGUIA, Circuit Judge:
This case requires us to determine whether the Forest Service’s management direction for a particular section of Idaho’s Payette National Forest is consistent with the management direction that governs the forest as a whole. In September 2014, the United States Forest Service approved the Lost Creek-Boulder Creek Landscape Restoration Project (“Lost Creek Project” or “Project”), which proposed landscape restoration activities on approximately 80,000 acres of the Payette National Forest. Following approval of the Project, Plaintiffs-Appellants the Alliance for the Wild Rockies, Idaho Sporting Congress, and Native Ecosystems Council (collectively, “Alliance”) filed suit in federal court, claiming Defendants-Appellees United States Forest Service, Thomas Tidwell, Keith Lannom, and Nora Rasure (collectively, “Forest Service”) violated the National Forest Management Act (“NFMA”) by failing to adhere to the requirements of the 2003 Payette National Forest Land and Resource Management Plan (“the Payette Forest Plan” or “the 2003 Plan”). The 2003 Plan governs management decisions on all land within the Payette National Forest, including the Lost Creek Project. Specifically, the Alliance claimed that the Forest Service acted inconsistently with the Payette Forest Plan, in a manner that would harm certain habitat within the forest, when it created a new definition for “old forest habitat” and designated certain land to be managed for landscape restoration, as opposed to
In its present appeal, the Alliance challenges the district court’s grant of summary judgment in favor of the Forest Service and Intervenor-Defendants-Appellees Adams County and the Payette Forest Coalition (collectively, “Adams County”). We have jurisdiction under
I. Statutory & Factual Background
A. The NFMA
The NFMA charges the Forest Service with the management of national forest land, including planning for the protection and use of the land and its natural resources. See
B. NEPA
“NEPA is a procedural statute that requires the federal government to carefully consider the impacts of and alternatives to major environmental decisions.” Weldon, 697 F.3d at 1051. “The National Environmental Policy Act has twin aims. First, it places upon [a federal] agency the
C. The Payette National Forest
The Payette National Forest contains approximately 2,300,000 acres of national forest system lands in west central Idaho. The region is 87% forested and contains portions of the Salmon, Payette, and Weiser River systems and parts of the Salmon River Mountains. It is home to many species, including the threatened bull trout.
The Payette National Forest is managed in accordance with the 2003 Payette Forest Plan, pursuant to the NFMA. Emphasizing restoration and maintenance of vegetation and watershed conditions, the 2003 Plan divides the Payette Forest into 14 sections that are called “management areas” (“MA”). The land within each MA is assigned to various categories that determine how the land is managed. These categories are called Management Prescription Categories (“MPC”). The categories range from “Wilderness” (MPC 1.0) to “Concentrated Development” (MPC 8.0).
Relevant here, MPC 5.1 places an emphasis on landscape restoration in order to provide habitat diversity, reduced fire risk, and “sustainable resources for human use.” Timber
In 2011, the Forest Service proposed amendments to the Payette Forest Plan. The proposed amendments, which were called the Wildlife Conservation Strategy (“WCS”), would prioritize activities that would help maintain or restore habitat for certain species of wildlife that the Forest Service determined were in greatest need of conservation. Relevant here, the WCS amendments proposed deleting MPC 5.2 (commodity production) in its entirety, and replacing it with MPC 5.1 (restoration).1 The WCS amendments also proposed changes to Appendix E of the 2003 Payette Forest Plan, to include a new criteria for defining “Old Forest Habitat,” a designation that refers to older habitat marked by large trees and which is particularly good habitat for wildlife. The Forest Service released a draft environmental impact statement (“WCS DEIS”) for the proposed amendments pursuant to NEPA. However, following the public comment period on the WCS DEIS, the Forest Service stopped the process, and the WCS amendments were never adopted, leaving the 2003 Payette Forest Plan fully in effect.
D. The Lost-Creek Project
In 2012, the Forest Service initiated the Lost Creek Project, which proposed landscape restoration activities on approximately 80,000 acres of the Payette National Forest, including commercial and non-commercial logging, prescribed fires, road closures, and recreation improvements. The Project area spans three management areas, MA3 (Weiser River), MA4 (Rapid River), and MA5 (Middle Little Salmon River), and includes land designated for “restoration” (MPC 5.1) and “commercial production” (MPC 5.2) under the 2003 Plan. In the Project’s final environmental impact statement (“Project FEIS”) published in March 2014, the Forest Service states that the purpose of the Project is to move vegetation toward the Forest Plan’s “desired conditions,” which are those conditions deemed desirable to achieve the specific purpose for each MPC. The FEIS further states that the Project is “consistent with the science in the Forest’s [WCS DEIS],” which includes improving habitat for species of concern, maintaining and promoting large tree forest structure and forest resiliency, and reducing the risk of undesirable wildland fire. The Project also aims to restore certain streams, with an emphasis on restoring habitat occupied by ESA-listed species, such as the bull trout.
In September 2014, the Forest Service entered the final record of decision (ROD) for the Lost Creek Project, selecting, from the five alternatives discussed in the FEIS, a modified version of Alternative B, which implemented recreation improvement, road management, watershed
In June 2015, the Alliance filed suit in the District of Idaho, alleging the Forest Service violated the NFMA, ESA, and NEPA and acted arbitrarily and capriciously under the Administrative Procedure Act (“APA”),
II. Standard of Review
The court reviews challenges to final agency action decided on summary judgment de novo. Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir. 2003). Review is based on the administrative record. Camp v. Pitts, 411 U.S. 138, 142 (1973).
Agency decisions that allegedly violated NFMA and NEPA are reviewed under the APA. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). Under the APA, courts shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
III. Discussion
A. The Project’s Change from MPC 5.2 to MPC 5.1
The 2003 Payette Forest Plan sets forth a management directive for the Payette National Forest by establishing desired conditions for the forest, and then setting standards and guidelines designed to achieve or maintain those conditions. In sum, the desired conditions can be viewed as the long-term goals for the forest as a whole, and the Plan’s standards and guidelines set forth the manner in which the Forest Service is to achieve those goals. Any site-specific
Here, the Alliance argues that the Project is inconsistent with each of these three Forest Plan components—standards, guidelines, and desired conditions. Specifically, under the 2003 Plan, certain land is designated as MPC 5.1 (restoration) and certain land is designated as MPC 5.2 (commodity production). At issue in the present suit, the Lost Creek Project eliminates MPC 5.2 in its entirety and replaces it with MPC 5.1, which affects land in MA3. The Alliance argues that the final ROD for the Lost Creek Project is arbitrary and capricious because the standards, guidelines, and desired conditions that determine the forest conditions for MPC 5.1 are different from those for MPC 5.2. We agree. We address the Forest Plan’s standards, guidelines, and desired conditions in turn.
1. Standards
“Standards” are binding limitations typically designed to prevent degradation of current resource conditions. The switch from MPC 5.2 to MPC 5.1 resulted in the loss of at least one fire standard on MA3.
A site-specific project must comply with the standards set forth in the governing forest plan,
Adams County urges this Court to overlook this inconsistency on the ground that the fire proscriptions for MPC 5.1 and MPC 5.2 are “substantially similar,” in that only prescribed fire may be used under either category. We decline to speculate on the effects of prescribed fire on MA3, which is not discussed by the agency in support of its conclusion that the Lost Project is consistent with the Forest Plan. It is undisputed that MPC 5.1 establishes no fire standards for MA3. Rather, MPC 5.1 contains Fire Guideline 0309, which permits the “full range of treatment activities, except wildland fire use” on land within MA3. Though the Forest Service argues that the Project area will be more resilient to fire after the switch to MPC 5.1, it is not clear that Fire Guideline 0309 constitutes the complete, binding prohibition on wildland fire contained in Fire Standard 0312. Moreover, our scope of review does not include attempting to discern whether the new standards are substantially similar. See Native Ecosystems Council, 418 F.3d at 961 (“Our scope of review does not include attempting to discern which, if any, of a validly-enacted Forest Plan’s requirements the agency thinks are relevant or meaningful. If the Forest Service thinks any provision of the 1986 HNF Plan is no longer relevant, the agency should propose amendments to the HNF Plan altering its standards, in a process complying with NEPA and NFMA, rather than discount its importance in environmental compliance documents.”). In any event, a guideline does not impose a mandatory constraint on project planning and activity in the way a standard does. See
2. Guidelines
The Lost Creek Project similarly deviates from the 2003 Plan’s guidelines. “Guidelines” are a “preferred or advisable course of action” to help maintain or restore resource conditions or prevent resource degradation. A project must either comply with applicable guidelines or be designed in a way that is as effective in achieving the purpose of the applicable guidelines.
3. Desired Conditions
The switch from MPC 5.2 to MPC 5.1 similarly renders the Project inconsistent with the desired vegetative conditions set forth in the Payette Forest Plan. Unlike the strict adherence required for standards and guidelines, a site-specific project is consistent with the “desired conditions” set forth in the governing forest plan if the project “contributes to the maintenance or attainment of one or more . . . desired conditions, . . . or does not foreclose the opportunity to maintain or achieve any . . . desired conditions . . . over the long term.”
The Forest Service and Adams County concede that the switch from MPC 5.2 to MPC 5.1 constitutes a departure from the desired conditions set forth in the 2003 Plan, but urge this Court to accept that desired conditions are “flexible” and may be altered in the short term. For the reasons discussed below, although we agree with Defendants that the Plan grants the Forest Service a certain degree of flexibility in the short term, we conclude that the Plan does not permit the Forest Service to abandon desired conditions in favor of different conditions entirely, without consideration of effects in the long term. See
“Desired condition” is defined in the Payette Forest Plan as “a portrayal of the land, resource, or social and economic conditions that are expected in 50–100 years if management goals and objectives are achieved. A vision of the long-term conditions of the land.” The 2003 Plan contemplates that movement away from a desired condition in the short term may facilitate the achievement of the desired condition in the long term. The Plan’s Vegetation Guideline VEGU01 states:
During site/project-scale analysis, tradeoffs in the achievement of one or more of the vegetative components described in Appendix A may need to be considered. Current conditions of the vegetation may necessitate the need to move one component away from the desired condition in order to move another one toward the desired condition. In these situations, decisions should be based not only on which vegetative component is important to emphasize at any point in time to meet resource objectives, but also how to effectively move all components toward their desired condition over the long term.
Citing to this language, Adams County argues the Project’s switch from MPC 5.2 to MPC 5.1 is a short-term trade-off that will not preclude the Forest from moving closer to the MPC 5.2 desired conditions specified in the 2003 Plan. We disagree.
The 2003 Plan permits the Forest Service to deviate from the desired conditions in one vegetative component, if that
We reject Adams County’s contention that the switch to from MPC 5.2 to MPC 5.1 avoids any unlawful inconsistencies because desired conditions may still be achieved in the long term. Adams County relies on a “White Paper regarding MPC 5.1 vs 5.2 desired conditions,” authored by Forest Vegetation Specialist Paul Klasner, which states that the switch to MPC 5.1 does not preclude attainment of MPC 5.2 desired conditions because “[f]uture project decisions in the LCBC project area could still choose to move closer to the desired conditions for MPC 5.2 as this decision would not preclude the attainment of MPC 5.2 desired conditions.” Even assuming that Mr. Klasner’s white paper represents the official position of the agency, the abstract possibility that the Forest Service may someday revert back to the desired conditions set forth in the 2003 Forest Plan is not evidence that the present deviation will move the Forest closer toward existing desired conditions
In its remaining points, the Forest Service seeks to reassure us that MPC 5.1 is consistent with the 2003 Plan, by reference to portions of the Project FEIS and the Plan containing highly technical discussions of vegetation conditions. This is not a statement of consistency that the Court can reasonably be expected to review or that is entitled to deference. See Friends of the Wild Swan v. Weber, 767 F.3d 936, 947 (9th Cir. 2014) (“The Forest Service’s interpretation and implementation of its own forest plan is entitled to substantial deference, but we must be able to reasonably discern from the record that the Forest Service complied with the plan’s standards.” (internal quotation marks and citations omitted)); see also Nat. Res. Def. Council, 828 F.3d at 1132–33 (“[I]f the agency itself did not provide reasons to satisfy the above standard, we will not use our own line of reasoning to bolster the agency decision on grounds that it did not include in its reasoning.”). Moreover, the Forest Service’s assurances on appeal are not reflected in the record, which shows clear deviations from the desired condition set forth in the 2003 Plan. See Native Ecosystems Council v. Tidwell, 599 F.3d 926, 936 (9th Cir. 2010) (“fuzzy assurance[s]” do not erase the specific inconsistencies identified in the record). For these reasons, we conclude that the switch from MPC 5.2 to MPC 5.1, which resulted in the imposition of new desired vegetative
B. The Project’s Definition of “Old Forest”
In its second NFMA claim, the Alliance contends that the Project’s definition for “old forest habitat” is inconsistent with the definition of “old forest” in the 2003 Forest Plan. Specifically, the Alliance contends that the Project uses the criteria for “old forest habitat” found in the WCS amendments, as opposed to the Plan.
Appendix A to the 2003 Forest Plan establishes the desired vegetative conditions for “old forest.” Unlike the switch from MPC 5.2 to MPC 5.1, which was limited to land in MA3, a change to the definition of “old forest” potentially affects vegetation conditions throughout the Lost Creek Project.
Here, again, the Lost Creek Project deviates from a standard set forth in the Payette Forest Plan. In its discussion of old forest and old growth, the 2003 Plan sets forth a standard that requires maintaining at least 20 percent of the acres within each forested PVG in the large tree size class.4 This standard is aimed at helping certain species that are dependent upon large trees. Where the large tree size class constitutes less than 20 percent of the total PVG acreage, management action shall not decreases the current area occupied by the large tree size class, except where, among other things, management actions would not degrade or
The Project FEIS does not discuss this standard. It also adopts the definition of “old forest habitat” from the WCS DEIS, instead of the definitions of “old forest” and “old growth” from the 2003 Plan. On appeal the Forest Service assures the Court that there has been no change to the definition of “old forest,” only newly-added quantitative criteria that “flesh out” the Plan’s existing definition of “old forest.” In spite of these assurances on appeal, the Project FEIS clearly states that “no stands have been identified in the project area that meet all attributes that characterize old forest habitat as defined in proposed [WCS amendments].” This is facially inconsistent with the Plan, which acknowledges historic presence of both large tree size class and old growth in virtually all of the PVGs, and mandates specific percentage of large tree size class on each PVG.
On this record we cannot say that the Forest Service “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990) (citations omitted). The Forest Service’s decision to adopt a new definition of “old forest habitat” for the Project area is, accordingly, arbitrary and capricious.
C. The Project’s Minimum Road System Designation
The Alliance also challenges the Forest Service’s decision to designate a minimum road system (“MRS”) for the Lost Creek Project that exceeds the number of miles in the MRS recommended in the Forest Service’s Travel Analysis Report for the Project area. The Travel Management Rule sets forth rules for travel and
The minimum system is the road system determined to be needed to meet resource and other management objectives adopted in the relevant land and resource management plan . . . , to meet applicable statutory and regulatory requirements, to reflect long-term funding expectations, to ensure that the identified system minimizes adverse environmental impacts associated with road construction, reconstruction, decommissioning, and maintenance.
In connection with the Lost Creek Project, the Forest Service completed a travel analysis report (“the Report”), that identified 474 existing miles of roadway in the Project area. The Report makes a management recommendation for each road, which corresponds to desired conditions and activities for the existing management areas under the 2003 Payette Forest Plan. The Report’s recommended MRS reflects the roads that received recommendations in the Report for “maintain,” “maintain or improve,” or “improve.” Here, the Report recommends approximately 240 miles of roads for the MRS, 68 miles of roads for decommissioning, and 149 miles of roads for long-term closure or “LTC.”
In spite of the recommendation contained in the Report, the Project’s ROD adopts a MRS with 401 miles of roads. This is a reduction from the 474 miles of existing roads in the Project area, but an increase from the 240 miles of road recommended in the Report. We reject the Alliance’s contention that this rendered the Project’s MRS arbitrary and capricious.
In designating the MRS for the Project, the Forest Service satisfied the requirements of
Though Alternative C, the Alliance’s preferred alternative, provides the most benefits for watershed restoration, the FEIS concluded that Alternative C was financially inefficient and did not meet other management objectives under the Forest Plan. The Forest Service concluded that Alternative C was less beneficial for tree size class, left portions of the area susceptible to insects and wildfire, and would restore fewer acres for certain ESA-listed species. The Alliance does not challenge any of these conclusions.
Because the Forest Service fully explained its decision in selecting Alternative B as the appropriate MRS for the Project and considered each of the factors listed under
The Alliance contends that the Project FEIS violates NEPA by improperly incorporating—or “tiering to”—the WCS amendments. Ordinarily, an agency can avoid some of the burdens of the NEPA process by “tiering” to a prior document that has itself been the subject of NEPA review. “Tiering” is defined as “avoiding detailed discussion by referring to another document containing the required discussion,” Kern, 284 F.3d at 1073, and, under Council for Environmental Quality (“CEQ”) regulations, it is expressly permitted:
Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review. Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action.
Alternatively, where an agency merely incorporates material “by reference,” without impeding agency and public review of the action, the agency is not improperly tiering. See
The Alliance argues that the WCS amendments are policy decisions that have not undergone the full NEPA review, and are improperly relied upon in the Project FEIS to justify deviations from the policies set forth in the Payette Forest Plan. We note at the outset that because the WCS
Nevertheless, we do not find that the Forest Service’s reliance on the WCS DEIS improper. The Alliance identifies two aspects of the Project FEIS that it contends constitute improper tiering. First, in its analysis of desired conditions, the Project EIS “incorporates the science and updated data from the draft [WCS DEIS],” which is “new and/or different science, or interpretation of science than the Forest Plan.” The FEIS also “utilizes desired conditions for MPC 5.1 . . . in lieu of those for MPC 5.2, when differences exist.” Second, the Project’s analysis of wildlife species and their habitats “was completed using the best available science used in the WCS DEIS.” This included adopting the “fundamental concept of the WCS DEIS,” that species have a greater likelihood of sustainability in habitats that are within the “historic range of variability.” The Project applies the habitat groupings employed in Appendix E of the WCS in its analysis of effects of the Project on wildlife. However, notably, the Alliance does not point to any part of the Project FEIS that adopts or incorporates NEPA analysis from the WCS DEIS.
In Kern, we held that the EIS for the Coos Bay Resource Management Plan was inadequate because it illegally tiered to an agency guideline document for managing the Port Orford cedar. 284 F.3d at 1073–74. The EIS determined that
In contrast, in California ex rel. Imperial County Air Pollution Control District, we looked at an EIS regarding the transfer of water rights agreements and concluded that no improper tiering had occurred. 767 F.3d 781. There, the plaintiffs “fail[ed] to identify relevant material discussed solely in the Transfer [environmental impact report (“EIS”)]
Unlike Kern and Muckleshoot Indian Tribe, this case does not involve an EIS that lacks the required NEPA analysis. Rather, the portions of the Project FEIS identified by the Alliance show that Forest Service relied on data and science prepared for the WCS DEIS. This might be considered improper tiering, but for the fact that the Project FEIS goes on to analyze the desired conditions for MPC 5.1 and the wildlife habitat categories from the WCS amendments in the context of the present project, including analyzing the cumulative, direct and indirect effects on vegetative resources and wildlife. The Alliance has not identified any required analysis that was not performed in the Project FEIS. To the extent the Alliance challenges the adoption of WCS standards in lieu of the Payette Forest Plan’s standards, this might give rise to a separate NFMA claim, but it does not, in and of itself, constitute improper tiering under NEPA, as we have previously understood and applied that term. See
IV. The Alliance’s ESA Claim
The Alliance challenges the Forest Service’s failure to reinitiate consultation with the United States Fish and Wildlife Service for the endangered bull trout under Section 7 of the ESA. The parties now agree that in light of the Forest Service’s decision to reinitiate consultation for the bull trout over its entire range, including the Payette National Forest,
V. Injunctive Relief
Having determined that the Forest Service violated the NFMA, we must determine the appropriate relief. “Although not without exception, vacatur of an unlawful agency action normally accompanies a remand.” Alsea Valley All. v. Dep’t of Commerce, 358 F.3d 1181, 1185 (9th Cir. 2004). This is because “[o]rdinarily when a regulation is not promulgated in compliance with the APA, the regulation is invalid.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995). When equity demands, however, the regulation can be left in place while the agency reconsiders or replaces the action, or to give the agency time to follow the necessary procedures. See Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010); Idaho Farm Bureau Fed’n, 58 F.3d at 1405. A federal court “is not required to set aside every unlawful agency action,” and the “decision to grant or deny injunctive or declaratory relief under APA is controlled by principles of equity.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995). “A plaintiff seeking a preliminary injunction must establish that he is
Here, absent vacatur, the Project will result in the management of certain land for restoration, instead of commodity production, and lead to the imposition of a new definition of “old forest habitat.” These changes will result in the loss of several binding standards under the existing forest plan. This is sufficient to justify vacatur. See Idaho Sporting Cong., Inc., 305 F.3d at 966 (“If the Forest Plan’s standard is invalid, or is not being met, then the timber sales that depend upon it to comply with the Forest Act are not in accordance with law and must be set aside.” (citation omitted)). We further note that under the Project FEIS, commercial thinning is authorized on a large portion of the Project area. Adams County has not addressed any of these potential environmental harms, such as the unexplained absence of “old forest habitat” on the Project area, and therefore has not overcome the presumption of vacatur. See Alsea Valley All., 358 F.3d at 1185.
VI. Conclusion
We affirm the district court’s ruling that defendants did not act arbitrarily and capriciously in approving the Minimum Road System. We also affirm the district court’s conclusion that the Forest Service did not violate NEPA by
AFFIRMED IN PART, REVERSED and REMANDED IN PART. The parties shall bear their own costs on appeal. On remand the district court is instructed to vacate the Forest Service’s September 2014 final record of decision and remand to the Forest Service for further proceedings consistent with this Opinion.
Defendants-Appellees’ Motion to Dismiss is GRANTED. (Doc. 50.) The Alliance’s ESA claim is DISMISSED as moot. The portion of the district court’s decision and judgment with regards to the Alliance’s ESA claim is VACATED.