                              NOT FOR PUBLICATION                        FILED
                       UNITED STATES COURT OF APPEALS                    MAY 18 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


    FRIENDS OF THE WILD SWAN, a non-                 No.   14-35463
    profit organization; ALLIANCE FOR THE
    WILD ROCKIES, a non-profit                       D.C. No. 9:11-cv-00125-DWM
    organization; MONTANA ECOSYSTEMS
    DEFENSE COUNCIL, a non-profit
    organization; NATIVE ECOSYSTEMS                  MEMORANDUM*
    COUNCIL, a non-profit organization,

               Plaintiffs - Appellants,

       v.

    TIM GARCIA, in his official capacity as
    Forest Supervisor for the Lolo National
    Forest; FAYE KRUEGER, in her official
    capacity as Regional Forester for the United
    States Forest Service, Region One;
    UNITED STATES FOREST SERVICE, an
    agency of the United States Department of
    Agriculture; DANIEL M. ASHE, in his
    official capacity as Director of the U.S. Fish
    & Wildlife Service; U.S. FISH &
    WILDLIFE SERVICE, an agency of the
    United States Department of the Interior,

               Defendants - Appellees.

                      Appeal from the United States District Court
                              for the District of Montana

*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
                   Donald W. Molloy, District Judge, Presiding

                        Argued and Submitted May 3, 2016
                                Portland, Oregon

Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.

      Friends of the Wild Swan, Alliance for the Wild Rockies, Montana

Ecosystems Defense Council, and Native Ecosystems Council (collectively,

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

States Forest Service, United States Fish & Wildlife Service, and three individuals

(collectively, the “Government Defendants”) in this suit challenging the decision

authorizing the Colt Summit Restoration and Fuels Reduction Project (“the

Project”). We have jurisdiction under 28 U.S.C. § 1291, and affirm in part, vacate

in part, and remand.

      1.     The “identification of the geographic area” that will be impacted by the

Project “is a task assigned to the special competency of the appropriate agencies.”

Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976); see also Idaho Sporting Cong.,

Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002) (“Ordinarily, an agency has

the discretion to determine the physical scope used for measuring environmental

impacts.”). The Forest Service appropriately justified its decision to look only at

the Clearwater Lynx Analysis Unit in measuring the Project’s impact on the lynx

and its critical habitat, noting, for example, that the Unit “would comprise more than




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1 female homerange” and that the Project in total would impact “less than 10% of

the Clearwater LAU.”

      2.     Plaintiffs contend that formal consultation under 50 C.F.R. § 402.14

between the Forest Service and the Fish and Wildlife Service was required because

the Government Defendants failed to apply definitions in the Fish & Wildlife

Service’s Consultation Handbook and incorrectly found the Project “not likely to

adversely affect” the Canada lynx. But, Plaintiffs did not preserve this issue for

appeal; they failed to raise it either in opposition to the Government Defendants’

motion for summary judgment or in response to the Government Defendants’

motions to dissolve the injunction. Thus, the issue is waived. See, e.g., Broad v.

Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996) (declining to reach the merits of

an issue that was not raised in the district court).

      3.     The Forest Service relied at least in part on “the standards in the 2007

Northern Rockies Lynx Management Direction” (the “Lynx Amendments”) in

analyzing the Project’s effects.     In Cottonwood Environmental Law Center v.

United States Forest Service, issued after the decision below, we held that, because

of procedural flaws, “the Forest Service must reinitiate consultation on the Lynx

Amendments.” 789 F.3d 1075, 1085 (9th Cir. 2015). We therefore vacate the

district court’s determination that the Forest Service complied with the Endangered

Species Act, 16 U.S.C. § 1531 et seq., in relation to the lynx and lynx critical habitat.


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On remand, the district court should consider in the first instance the Government

Defendants’ argument that the Forest Service performed sufficient independent

analysis of the Project to render any reliance on the Lynx Amendments harmless.

      4.    Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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