                                                                            FILED
                           NOT FOR PUBLICATION                              APR 15 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BARK,                                            No. 14-35398

              Plaintiff - Appellant,             D.C. No. 3:13-cv-01267-HZ

  v.
                                                 MEMORANDUM*
LISA NORTHROP, Forest Supervisor of
the Mt. Hood National Forest and
UNITED STATES FOREST SERVICE, a
federal agency,

              Defendants - Appellees,

INTERFOR, U.S., INC.,

              Intervenor-Defendant -
Appellee.



BARK,                                            No. 14-35548

              Plaintiff - Appellant,             D.C. No. 3:13-cv-01267-HZ

  v.

LISA NORTHROP, Forest Supervisor of
the Mt. Hood National Forest and
UNITED STATES FOREST SERVICE, a

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

              Defendants - Appellees,

INTERFOR, U.S., INC.,

              Intervenor-Defendant -
Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                       Argued and Submitted March 2, 2015
                                Portland, Oregon

Before: PAEZ and IKUTA, Circuit Judges and TIGAR,** District Judge.

      Appellant Bark appeals the district court’s order granting summary judgment

to the United States Forest Service on Bark’s claims that the Forest Service

violated the National Environmental Policy Act (NEPA) and the National Forest

Management Act (NFMA) because it acted arbitrarily and capriciously when it

approved the Jazz Thinning project in the Mt. Hood National Forest. See 5 U.S.C.

§ 706(2)(A), (D). We have jurisdiction under 28 U.S.C. § 1291.




       **
             The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.

                                         2
      The Forest Service did not act arbitrarily and capriciously in considering

only the proposed forest thinning plan and a no-action alternative in the

Environmental Assessment (EA), because those were the only proposed

alternatives that “could feasibly meet the project’s goal.” Cf. W. Watersheds

Project v. Abbey, 719 F.3d 1035, 1052–53 (9th Cir. 2013). Because Bark’s

proposed alternatives (as stated in its comments to the EA) were not economically

viable and did not promote the project’s stated goals, the Forest Service was not

required to consider them. See Earth Island Inst. v. U.S. Forest Serv., 697 F.3d

1010, 1022–23 (9th Cir. 2012); see also Native Ecosystems Council v. U.S. Forest

Serv., 428 F.3d 1233, 1247–49 (9th Cir. 2005).

      The Forest Service adequately discussed and considered in the EA the

potential environmental impacts of the project’s proposed reconstruction and

subsequent use of temporary roads, and its determination that any impact due to the

proposed road building and use would be minimal was not arbitrary and capricious.

See Hapner v. Tidwell, 621 F.3d 1239, 1244 (9th Cir. 2010) (citing 40 C.F.R. §

1508.9(b)). In making its determination, the Forest Service reasonably relied on

the findings of its soil specialist, and we defer to the agency’s expertise. See The

Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008). The Forest Service

adequately discussed in the EA its findings that the project’s active


                                           3
decommissioning of the rebuilt roads at the end of the project would have a

beneficial effect in limiting surface runoff and erosion, that the worst-case increase

in sediment due to the project would be “short-term and undetectable at the

watershed scale,” and that the mitigation measures restricting road usage would

ensure that any input of sediment from logging trucks would be minimal

      The Forest Service adequately discussed and considered in the EA the

potential environmental impacts of the loss of large woody debris and the spread of

invasive species as a result of the project, and its determination that these impacts

would be minimal was not arbitrary and capricious. See Hapner, 621 F.3d at 1244.

The Forest Service’s reasonable determination that the project would preserve 90

percent of the relevant large woody debris through the establishment of 50 to 100-

foot buffer areas around streams, and that sufficient debris would be retained at the

end of the project, was based upon agency technical expertise, to which this court

defers. See McNair, 537 F.3d at 993. The Forest Service also adequately

discussed the potential for the spread of invasive species in the EA and provided

specific project design criteria directed at mitigating these risks. See Hapner, 621

F.3d at 1244.

      The Forest Service’s decision to issue a Finding of No Significant Impact

(FONSI) in lieu of an Environmental Impact Statement (EIS) was not arbitrary and


                                           4
capricious because there is not “a substantial dispute about the size, nature or

effect” of the project. See Native Ecosystems Council, 428 F.3d at 1240

(alterations and internal quotation marks omitted). Like in Native Ecosystems, the

Forest Service here took a “‘hard look’ at the environmental consequences” of its

proposed action and reasonably relied on its own expert reports and technical

expertise in concluding that the impact of the project would be insignificant. See

id. at 1240–44.

      The Forest Service adequately assessed and explained why the project was

consistent with the Aquatic Conservation Strategy (ACS) in both the short and

long term in the EA, and we afford “substantial deference” to the Forest Service’s

interpretation and implementation of its own Forest Plan. See Great Old Broads

for Wilderness v. Kimbell, 709 F.3d 836, 850 (9th Cir. 2013); see also Pac. Coast

Fed’n of Fishermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028,

1031–32, 1034 (9th Cir. 2001). The Forest Service examined the project’s

compliance with all nine ACS objectives in the EA, and, among other things,

reasonably determined that the project would meet the ACS’s overall purpose of

restoring and maintaining “the ecological health of watersheds and aquatic

ecosystems” by eliminating overcrowding. The Forest Service reasonably

determined that the project met ACS objective eight, “maintaining and restoring


                                           5
species composition and structural diversity,” because the thinning will allow light

to penetrate through the crowded canopy, thereby promoting the “natural

recruitment of diverse plant communities” in the short term and structural diversity

through the long-term contribution of large woody debris to the area. The Forest

Service also reasonably determined that the road decommissioning after the

project’s completion would create a more natural sediment regime, thereby

satisfying ACS objective five, “maintaining and restoring sediment regimes.”

Accordingly, the Forest Service’s determination that the project was consistent

with ACS objectives was not arbitrary and capricious.

         The district court did not abuse its discretion by awarding costs to the Forest

Service because its determination that Bark would not be burdened by an award of

$2,148.57 when it has an operating budget of $574,421 was not “illogical,

implausible, or without support in inferences that may be drawn from the facts in

the record.” United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en

banc).

         AFFIRMED.




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