                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                             FOR THE NINTH CIRCUIT                               MAY 23 2014

                                                                             MOLLY C. DWYER, CLERK
OREGON WILD and SIERRA CLUB,                      No. 12-35845                U.S. COURT OF APPEALS



              Plaintiffs - Appellants,            D.C. No. 1:05-cv-03004-PA
  v.

KENT CONNAUGHTON, Regional                        MEMORANDUM*
Forester, Pacific Northwest Region and
UNITED STATES FOREST SERVICE,

              Defendants - Appellees,

MT. ASHLAND ASSOCIATION, DBA
Ski Ashland,

              Intervenor-Defendant -
Appellee.

                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                        Argued and Submitted May 15, 2014
                                 Portland, Oregon

Before: GOODWIN, IKUTA, and N.R. SMITH, Circuit Judges.

       The district court did not abuse its discretion in dissolving the injunction it

had issued in accordance with Oregon Natural Resources Council Fund (ONRC) v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Goodman, 505 F.3d 884, 898 (9th Cir. 2007). See N. Alaska Envtl. Ctr. v. Lujan,

961 F.2d 886, 889 (9th Cir. 1992).

                                          I.

      The district court did not abuse its discretion in finding that the Forest

Service achieved the injunction’s objective, see Horne v. Flores, 557 U.S. 433, 450

(2009), by classifying all Landslide Hazard Zone 2 (LHZ 2) land as Riparian

Reserve and subjecting the reclassified land to the scrutiny required by the Rogue

River Land Resource Management Plan (LRMP), the Northwest Forest Plan

(NWFP), and the National Forest Management Act (NFMA). The 2011 Final

Supplemental Environmental Impact Statement (SFEIS) and Supplemental Record

of Decision (SROD), which re-approved the MASA expansion, analyzed the

project in light of the LHZ 2 reclassification, considering the degree of increase to

vegetation clearing and grading within Riparian Reserves and the decrease in

forested landcover. In any event, the Forest Service’s decision was not arbitrary or

capricious, see League of Wilderness Defenders Blue Mountains Biodiversity

Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010), because (1) “[a]lthough

there is an increase in acres classified as Riparian Reserves, standards and

guidelines would continue to be met because of the design of the proposed

expansion facilities”; and (2) the addition of the remaining LHZ 2 land to Riparian


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Reserves would not “affect the attainment of Aquatic Conservation Strategy

Objectives.”

      To the extent Oregon Wild and the Sierra Club raised arguments regarding

the Riparian Reserve lands as a whole, the district court did not abuse its

discretion, see 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.

1999), in declining to consider them, because they pertained to the entire Riparian

Reserve classification rather than only the portion of LHZ 2 land that the Forest

Service was required to reclassify as Riparian Reserve. Flores, 557 U.S. at 450

(noting that the injunction in question provides the scope of review when

considering whether to dissolve it). To the extent Oregon Wild and the Sierra Club

argued that the Forest Service failed to subject LHZ-2 lands to the proper scrutiny

once they were reclassified as Riparian Reserves, any error on the part of the

district court in failing to reach these arguments was harmless, because (1) the

analysis associated with the MASA expansion project appropriately considered the

NWFP’s Aquatic Conservation Strategy, as identified in the 2011 SROD; and (2)

the Forest Service did not improperly rely on mitigation as a substitute for

preventing habitat degradation, as the project was designed with the NWFP’s

Standard WR-3 in mind, and mitigation measures were implemented to further




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minimize the expansion project’s effect on Riparian Reserves, including the LHZ 2

zones that are now designated as Riparian Reserve.

                                          II.

      The district court did not abuse its discretion in finding that the Forest

Service also achieved the injunction’s objective regarding Restricted Watershed

lands. The ONRC court clarified that 35 acres of Restricted Watershed could not be

treated as Developed Recreation without a specific plan amendment. 505 F.3d at

896. The Forest Service responded to this critique in the 2011 FSEIS and SROD by

properly including those 35 acres within a 74-acre “activity area” classified as

Restricted Watershed, which amounted to “the total developed area of impact . . .

for ski area expansion with the Upper Ashland Creek watershed.”1 In addition, the

Forest Service analyzed the associated impact of the expansion project within the

activity area to ensure consistency with Restricted Watershed Management



      1
        Oregon Wild and the Sierra Club claim that the “activity area” should only
include the 35 acres referenced in the first appeal, which would put the project out
of compliance with MS 22 standards. We reject this argument, because (1) we
defer to the Forest Service’s interpretation of “activity area” in its forest plan, see
Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005);
(2) the Forest Service had not previously defined the “activity area,” so this does
not represent an impermissible change of position, see Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983); and (3) the
definition of Restricted Watershed in the Rogue River LRMP specifically includes
the Ashland Watershed as a Restricted Watershed area.

                                          -4-
Strategy (MS) 22 in the Rogue River LRMP, including detrimental soil exposure

and mineral soil exposure requirements. It found that “the project would meet all

standards and guidelines for MS 22.” In this respect too, the Forest Service’s

decision to continue the project is not arbitrary or capricious, as it complied with

applicable forest plans and therefore the NMFA. See League of Wilderness

Defenders Blue Mountains Biodiversity Project, 615 F.3d at 1130.

      AFFIRMED.




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