                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 22 2010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. 08-35858
et al.,
                                                 D.C. No. 6:07-cv-00071-DWM
             Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

TOM TIDWELL, Regional Forester; et al.,

             Defendants - Appellees.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                      Argued and Submitted October 5, 2009
                                Portland, Oregon

Before: O’SCANNLAIN and N.R. SMITH, Circuit Judges, and WOLLE, ** Senior
District Judge.

       Alliance for the Wild Rockies and Native Ecosystems Council (together

“Plaintiffs”) appeal the district court’s grant of summary judgment in favor of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Charles R. Wolle, United States District Judge for the
Southern District of Iowa, sitting by designation.
Defendant, the United States Forest Service (“Forest Service”), finding that the

Forest Service did not violate the National Environmental Policy Act (“NEPA”) or

the National Forest Management Act (“NFMA”) in approving the Cow Fly

Salvage Harvest project. We affirm the judgment of the district court.

      1. The Forest Service first challenges Plaintiffs’ standing to bring this

action. Because Plaintiffs’ standing was not challenged before the district court,

Plaintiffs need only to have made general allegations of injury resulting from the

Forest Service’s conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(1992). Plaintiffs did so in their complaint.

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

consider the cumulative impacts of past timber projects. NEPA establishes a

mandatory process federal agencies must follow to ensure they “take a hard look at

the environmental consequences of their actions.” Sierra Club v. Bosworth, 510

F.3d 1016, 1018 (9th Cir. 2007) (quoting Neighbors of Cuddy Mountain v.

Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002)). In order to prevail, Plaintiffs

must demonstrate that the Forest Service acted in an arbitrary and capricious

manner when it concluded that the Cow Fly Salvage Harvest qualified as a

categorical exclusion. Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851,

857 (9th Cir. 1999). The Forest Service conducted a proper investigation in


                                           2
analyzing the environmental consequences of the Cow Fly Salvage Harvest. The

Forest Service outlined a rational connection between the facts found and the

conclusions reached, and thus did not act arbitrarily and capriciously in its analysis

or its conclusion. See Bosworth, 510 F.3d at 1023.

      3. Plaintiffs assert the Forrest Service committed various substantive and

procedural violations of NFMA, by failing to provide sufficient hiding cover and

security for elk and by failing to monitor management indicator species, as

required by the forest plan. We review whether the Forest Service violated

NFMA, in its plan or conduct, under the arbitrary and capricious standard. Lands

Council v. McNair, 537 F.3d 981, 994 (9th Cir. 2008) (en banc). We defer to the

Forest Service so long as it supports its conclusions “with studies that the agency,

in its expertise, deems reliable. The Forest Service must explain the conclusions it

has drawn from its chosen methodology, and the reasons it considers the

underlying evidence to be reliable.” Id. at 994. The Forest Service did just that in

its Decision Memo and its “Biological Assessment and Evaluation of Terrestrial

Wildlife Species for the Cow Fly Salvage Timber Harvest.” Those documents are

the culmination of years of investigation. The Forest Service did not act arbitrarily

and capriciously in developing a forest plan or in implementing that plan with

regards to the project area. Although Plaintiffs disagree with the data gathered and


                                           3
the conclusions drawn from that data, they are unable to demonstrate how the

Forest Service’s conclusions were arbitrary and capricious.

      The grant of summary judgment in favor of the Forest Service is

AFFIRMED.




                                         4
