                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 30 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ALLIANCE FOR THE WILD ROCKIES                    No. 09-35619
and NATIVE ECOSYSTEMS COUNCIL,
                                                 D.C. No. 6:08-cv-00011-CCL
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

TOM TIDWELL; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                            for the District of Montana
                    Charles C. Lovell, District Judge, Presiding

                        Argued and Submitted May 6, 2010
                                Portland, Oregon

Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.

       Alliance for the Wild Rockies (“Wild Rockies”) appeals the district court’s

denial of its motion for summary judgment and the district court’s grant of

summary judgment to the Forest Service on Wild Rockies’s claims the Forest


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
Service violated the National Environmental Policy Act (“NEPA”) and the

National Forest Management Act (“NFMA”) when the Forest Service approved the

Big Timber Canyon Project (“the project”)—a “sanitation harvest” of 180 acres of

timber in the Gallatin National Forest in Montana to control the infestation of the

Douglas-fir bark beetle. We affirm.

                                            I

      Wild Rockies’s opening brief included the Declaration of Michael Garrity,

which we construe as a motion to expand the record on appeal. See Fed. R. App.

P. 10(e)(2). Garrity declares that he is a member of Wild Rockies, that he has

plans to visit the proposed project area in the future, and that the project will impair

his ability to enjoy the area and observe wildlife such as the goshawk. We find, in

light of the representations made in oral argument, that this declaration, which

states it was made pursuant to 28 U.S.C. § 1746, meets the requirements of that

section, and that it is sufficient to establish Wild Rockies’s standing to bring suit.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63 (1992). We nonetheless

affirm.

                                           II

      First, the Forest Service concluded that the project’s potential impact on the

northern goshawk did not constitute an extraordinary circumstance that would


                                            2
preclude the application of the sanitation harvest categorical exclusion; this

conclusion was not arbitrary or capricious. The bird is not a federally listed

sensitive species, and the Forest Service took sufficient measures based on

scientific studies to mitigate any effect that the logging might have on the nest it

identified in unit one. It created a 40-acre no-activity zone around the nest and

banned any logging activities from March 1 to August 15—when goshawk young

are born and grow up. Wild Rockies contends these measures are insufficient

based on different scientific studies. But, although a “party may cite studies that

support a conclusion different from the one the Forest Service reached, it is not our

role to weigh competing scientific analyses.” Ecology Ctr. v. Castaneda, 574 F.3d

652, 658–59 (9th Cir. 2009).

      Second, the Forest Service was not required to consider whether the project

area’s proximity to an “inventoried roadless area” constituted an extraordinary

circumstance that would preclude the application of the sanitation harvest

categorical exclusion. The Forest Service manual states that it is an extraordinary

circumstance if a project will take place in an inventoried roadless area. However,

neither unit one nor unit two is such an area. Because the project does not take

place in an inventoried roadless area, it does not create an extraordinary

circumstance.


                                           3
      Lands Council v. Martin, 529 F.3d 1219, 1231 (9th Cir. 2008) is inapposite

because it addresses what an agency must consider in preparing an EIS, not what it

must consider in applying a categorical exclusion. Compare 40 C.F.R. § 1502.1

with 40 C.F.R. § 1508.4.

                                          III

      The Gallatin National Forest Plan requires that 10% of the area in every

timber compartment be old growth forest. The Forest Service’s determination that

its harvest would be in compliance with the 10% standard was not arbitrary or

capricious. It has calculated that 26% of the forest in the relevant timber

compartment qualifies as old growth. The harvest will reduce that by only 0.02%.

Wild Rockies contends this calculation is based on the Forest Service’s misreading

of the Forest Plan, but “[this court] defer[s] to the Forest Service’s reasonable

interpretation of the Forest Plan’s requirements.” Ecology Ctr., 574 F.3d at 661.

      The Gallatin National Forest Plan also requires that the Forest Service

maintain 30 snags per 10 acres in all forested areas. The Forest Service’s

conclusion that its project would be in compliance with the Plan’s snag standard

was not arbitrary or capricious either.

      AFFIRMED.




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