                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAY 23 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: BIG THORNE PROJECT AND                    No.   15-35232
2008 TONGASS FOREST PLAN,
______________________________                   D.C. Nos.    1:14-cv-00013-RRB
                                                              1:14-cv-00014-RRB
SOUTHEAST ALASKA                                              1:14-cv-00015-RRB
CONSERVATION COUNCIL;
ALASKA WILDERNESS LEAGUE;
SIERRA CLUB; NATIONAL                            MEMORANDUM*
AUDUBON SOCIETY; NATURAL
RESOURCES DEFENSE COUNCIL,

              Plaintiffs-Appellants,

 and

CASCADIA WILDLANDS; GREATER
SOUTHEAST ALASKA
CONSERVATION COMMUNITY;
GREENPEACE; CENTER FOR
BIOLOGICAL DIVERSITY; THE
BOAT COMPANY,

              Plaintiffs,

 v.

UNITED STATES FOREST SERVICE;
UNITED STATES DEPARTMENT OF


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                           page 2

AGRICULTURE; BETH
PENDLETON, in her official capacity
as United States Forest Service Region
10 Regional Forester; FORREST
COLE, in his official capacity as Forest
Supervisor for the Tongass National
Forest; THOMAS TIDWELL, in his
official capacity as Chief of the United
States Forest Service,

            Defendants-Appellees,

STATE OF ALASKA; ALASKA
FOREST ASSOCIATION, INC.;
SOUTHEAST CONFERENCE;
VIKING LUMBER COMPANY, INC.;
CITY OF CRAIG; ICY STRAITS
LUMBER CO. INC.; SOUTHEAST
STEVEDORING CORPORATION;
ALASKA ELECTRIC LIGHT AND
POWER COMPANY; ALASKA
POWER & TELEPHONE; ALASKA
MARINE LINES, INC.; ALASKA
MINERS ASSOCIATION; FIRST
THINGS FIRST FOUNDATION;
SAMSON TUG AND BARGE
COMPANY, INC.; TYLER RENTAL,
INC.; RESOURCE DEVELOPMENT
COUNCIL OF ALASKA, INC.;
SOUTHEAST ROADBUILDERS, INC.;
BOYER TOWING, INC.; CITY OF
KETCHIKAN; KETCHIKAN
GATEWAY BOROUGH; CITY AND
BOROUGH OF WRANGELL;
FEDERAL FOREST RESOURCE
COALITION; FIRST BANK,
                                                                  page 3

           Intervenor-Defendants-
           Appellees.



In re: BIG THORNE PROJECT AND            No.   15-35233
2008 TONGASS FOREST PLAN,
______________________________           D.C. Nos.   1:14-cv-00013-RRB
                                                     1:14-cv-00014-RRB
SOUTHEAST ALASKA                                     1:14-cv-00015-RRB
CONSERVATION COUNCIL;
ALASKA WILDERNESS LEAGUE;
SIERRA CLUB; NATIONAL
AUDUBON SOCIETY; NATURAL
RESOURCES DEFENSE COUNCIL,

           Plaintiffs,

and

CASCADIA WILDLANDS; GREATER
SOUTHEAST ALASKA
CONSERVATION COMMUNITY;
GREENPEACE; CENTER FOR
BIOLOGICAL DIVERSITY; THE
BOAT COMPANY,

           Plaintiffs-Appellants,

v.

UNITED STATES FOREST SERVICE;
UNITED STATES DEPARTMENT OF
AGRICULTURE; BETH
PENDLETON, in her official capacity
as United States Forest Service Region
10 Regional Forester; FORREST
                                           page 4

COLE, in his official capacity as Forest
Supervisor for the Tongass National
Forest; THOMAS TIDWELL, in his
official capacity as Chief of the United
States Forest Service,

            Defendants-Appellees,

STATE OF ALASKA; ALASKA
FOREST ASSOCIATION, INC.;
SOUTHEAST CONFERENCE;
VIKING LUMBER COMPANY, INC.;
CITY OF CRAIG; ICY STRAITS
LUMBER CO. INC.; SOUTHEAST
STEVEDORING CORPORATION;
ALASKA ELECTRIC LIGHT AND
POWER COMPANY; ALASKA
POWER & TELEPHONE; ALASKA
MARINE LINES, INC.; ALASKA
MINERS ASSOCIATION; FIRST
THINGS FIRST FOUNDATION;
SAMSON TUG AND BARGE
COMPANY, INC.; TYLER RENTAL,
INC.; RESOURCE DEVELOPMENT
COUNCIL OF ALASKA, INC.;
SOUTHEAST ROADBUILDERS, INC.;
BOYER TOWING, INC.; CITY OF
KETCHIKAN; KETCHIKAN
GATEWAY BOROUGH; CITY AND
BOROUGH OF WRANGELL;
FEDERAL FOREST RESOURCE
COALITION; FIRST BANK,

            Intervenor-Defendants-
            Appellees.
                                                                    page 5

In re: BIG THORNE PROJECT AND              No.   15-35244
2008 TONGASS FOREST PLAN,
______________________________             D.C. Nos.   1:14-cv-00014-RRB
                                                       1:14-cv-00013-RRB
SOUTHEAST ALASKA                                       1:14-cv-00015-RRB
CONSERVATION COUNCIL;
ALASKA WILDERNESS LEAGUE;
SIERRA CLUB; NATURAL
RESOURCES DEFENSE COUNCIL,

            Plaintiffs-Appellants,

v.

UNITED STATES FOREST SERVICE;
UNITED STATES DEPARTMENT OF
AGRICULTURE; BETH
PENDLETON, in her official capacity
as United States Forest Service Region
10 Regional Forester; FORREST
COLE, in his official capacity as Forest
Supervisor for the Tongass National
Forest; THOMAS TIDWELL, in his
official capacity as Chief of the United
States Forest Service,

            Defendants-Appellees,

STATE OF ALASKA; ALASKA
FOREST ASSOCIATION, INC.;
SOUTHEAST CONFERENCE;
VIKING LUMBER COMPANY, INC.;
CITY OF CRAIG; ICY STRAITS
LUMBER CO. INC.; SOUTHEAST
STEVEDORING CORPORATION;
ALASKA ELECTRIC LIGHT AND
POWER COMPANY; ALASKA
                                                                                   page 6

POWER & TELEPHONE; ALASKA
MARINE LINES, INC.; ALASKA
MINERS ASSOCIATION; FIRST
THINGS FIRST FOUNDATION;
SAMSON TUG AND BARGE
COMPANY, INC.; TYLER RENTAL,
INC.; RESOURCE DEVELOPMENT
COUNCIL OF ALASKA, INC.;
SOUTHEAST ROADBUILDERS, INC.;
BOYER TOWING, INC.; CITY OF
KETCHIKAN; KETCHIKAN
GATEWAY BOROUGH; CITY AND
BOROUGH OF WRANGELL;
FEDERAL FOREST RESOURCE
COALITION; FIRST BANK,

              Intervenor-Defendants-
              Appellees.


                    Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Senior District Judge, Presiding

                      Argued and Submitted February 3, 2016
                               Seattle, Washington

Before:      KOZINSKI, O’SCANNLAIN and GOULD, Circuit Judges.

      The Administrative Procedure Act (APA) requires that we defer to an

agency’s decision unless it’s “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also River

Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (per
                                                                                 page 7
curiam). For claims brought under the National Environmental Policy Act

(NEPA), this means we must let the agency’s decision stand if it’s based “on a

reasoned evaluation of the relevant factors.” Greenpeace Action v. Franklin, 14

F.3d 1324, 1332 (9th Cir. 1993) (internal quotation marks and citation omitted).


      1. Plaintiffs claim that the Forest Service violated NEPA by basing its

timber projections on the Brackley Report, which failed to account for the housing-

market crash. But relying on uncertain projections doesn’t violate NEPA, and the

Forest Service didn’t rely blindly on the report. The Service trusted the 2013

projections because it believed that timber demand would rebound along with the

economy as a whole. Even if that belief turned out to be wrong, it’s still the case

that “the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v.

Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). The Service’s opinion

that the demand for timber would improve was reasonable.


      2. Plaintiffs argue that the Forest Service’s failure to ascertain the total wolf

population violated NEPA. They would be right only if knowing the precise

population were “essential to [making] a reasoned choice among alternatives.” 40

C.F.R. § 1502.22(a). But an exact number wasn’t essential because studying

changes in deer habitat and road density still allowed the Service to compare the
                                                                                 page 8
population capacities and potential impacts of its project alternatives. Thus, the

Forest Service only needed to acknowledge that it lacked precise population

estimates to comply with NEPA. See id. § 1502.22. Because it did so, the Service

did not violate the statute.


       3. Plaintiffs claim that the Forest Service violated NEPA by failing to

address the views of Dr. Person in its final Environmental Impact Statement (EIS).

But NEPA requires only that an agency address comments on a draft EIS. See id.

§ 1502.9(b). Because Dr. Person’s views didn’t take this form, the agency’s

decision not to address them didn’t violate the statute. See, e.g., Greater

Yellowstone Coal. v. Lewis, 628 F.3d 1143, 1151–52 (9th Cir. 2010).


       4. The Forest Service responded to the Fish and Wildlife Service’s

comments in the appendix of the final EIS. Plaintiffs argue that this violates

NEPA, citing our precedent in Center for Biological Diversity v. U.S. Forest

Service, 349 F.3d 1157 (9th Cir. 2003). But in that case we held only that it was

insufficient for an agency to respond to comments in intra-office memoranda

prepared after the final EIS was issued. Id. at 1168–69. NEPA’s regulations

require that the agency respond “in the final statement.” 40 C.F.R. § 1502.9(b).
                                                                              page 9
Because the appendix was in the final statement, the Service’s response was

lawful.


      5. Plaintiffs claim that the Forest Service violated NEPA by responding to

Dr. Person’s appeal statement in a Supplemental Information Report instead of a

supplemental EIS. But an agency is required to prepare a supplemental EIS only

when “[t]here are significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or its impacts.” Id. §

1502.9(c)(1)(ii). Because the Forest Service concluded that Dr. Person’s statement

didn’t contain significant new information, the Service didn’t need to prepare a

supplemental EIS.


      6. The outstanding motions for judicial notice are GRANTED.


      AFFIRMED.
