                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WESTERN WATERSHEDS PROJECT,                      No.   15-17031

              Plaintiff-Appellant,               D.C. No.
                                                 3:14-cv-00134-HDM-VPC
 v.

JOHN RUHS, Nevada State Director;                MEMORANDUM*
BUREAU OF LAND MANAGEMENT,
an agency of the United States; U.S.
DEPARTMENT OF THE INTERIOR, an
agency of the United States,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                       Argued and Submitted April 20, 2017
                            San Francisco, California

Before: REINHARDT and BERZON, Circuit Judges, and AMON,** Chief District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Carol Bagley Amon, Chief United States District
Judge for the Eastern District of New York, sitting by designation.
      Western Watersheds Project (“WW”) appeals the district court’s grant of

summary judgment in favor of the United States Bureau of Land Management

(“BLM”) in WW’s action challenging BLM’s issuance of a final Cave Valley and

Lake Valley Watersheds Restoration Plan Environmental Assessment (“EA”),

which sought to reduce fire risks and improve habitats for greater sage-grouse by

removing trees and vegetation in eastern Nevada. WW argues that the EA violates

the National Environmental Policy Act (“NEPA”) by failing to take a “hard look”

at the Restoration Plan’s potential effects on the greater sage-grouse and its habitat,

by inadequately considering the cumulative impacts of the Restoration Plan with

past, present, and future projects in and around the project area, and by failing to

analyze the potential impacts of the project’s rangeland improvements. Because

WW has not shown that the EA is deficient under NEPA, we affirm.

      We review the district court’s grant of summary judgment de novo. Lands

Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010). Because judicial review

of agency decisions under NEPA is governed by Section 706 of the Administrative

Procedure Act, we will uphold the agency’s action “unless it is ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id.

(quoting 5 U.S.C. § 706(2)(A)). Our review “is limited to the question of whether

the agency took a ‘hard look’ at the proposed action as required by a strict reading

of NEPA’s procedural requirements.” Bering Strait Citizens for Responsible Res.

                                           2
Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947 (9th Cir. 2008). “[W]e must

defer to an agency’s decision that is ‘fully informed and well-considered,’” but we

will not overlook “a ‘clear error of judgment.’” Blue Mountains Biodiversity

Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998) (first quoting Save the

Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988); then quoting Marsh v.

Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989)).

1.    We first find unpersuasive WW’s claim that BLM violated NEPA’s

requirement to take a “hard look” at the Restoration Plan’s cumulative

environmental impacts. NEPA requires that an EA’s cumulative impacts analysis

include “a sufficiently detailed catalogue of past, present, and future projects, and

provide adequate analysis about how these projects[ ] and differences between the

projects” might impact the environment. Lands Council v. Powell, 395 F.3d 1019,

1028 (9th Cir. 2005). BLM has met this standard.

      The EA tiers to prior NEPA analyses in the Ely Proposed Resource

Management Plan (“RMP”)/Final Environmental Impact Statement (“FEIS”) and

the Final Programmatic Environmental Impact Statement on Vegetation

Treatments Using Herbicides on Bureau of Land Management Lands in 17

Western States (“Vegetation PEIS”). These documents discuss the potential

cumulative impacts of activities occurring within the Ely District, including

“[c]onservation plans for greater sage-grouse,” as well as “large, regional-scale

                                           3
trends and issues” related to chemical treatments, prescribed fire, and mechanical

treatments and their effects on vegetation. Because these prior analyses cover

larger regions, they note that site-specific analyses will be necessary in future

projects covering more narrowly defined areas. WW argues that BLM failed to

provide such site-specific analysis in the Restoration Plan’s EA. We disagree.

      The EA discusses projects occurring within and around the Restoration

Plan’s project area. Within the EA’s “Cumulative Impacts” section, the EA

explicitly states that BLM reviewed a prescribed “Cumulative Effects Study Area,”

which includes “the entire Cave Valley and Lake Valley Watersheds and nearby

areas within the surrounding watersheds.” The EA discusses several current and

future plans, many of which could affect sage-grouse and its habitat.

      The EA also addresses potential effects of the Restoration Plan on

sage-grouse and its habitat. The document makes clear that a goal of the

Restoration Plan is the “[i]mprove[ment of] sage grouse habitat,” and concludes

that sage-grouse would benefit from the project. The EA recognizes possible

harms to sage-grouse and implements its own mitigation measures to address these

harms and to support its conclusions concerning potential impacts.

      The EA also provides a chart analyzing the desired future condition (“DFC”)

of sagebrush—the primary habitat and source of food for sage-grouse—compared

to current condition percentages and the current condition percentages’ differences

                                           4
from the DFC within the Cave and Lake Valley Watersheds. The EA demonstrates

how the proposed action’s resulting percentages concerning sagebrush conditions

would be an improvement from current condition percentages within the project

area, moving the condition of sagebrush closer to the DFC. The EA states that the

analysis of the impacts of the proposed action is based on the assumption that the

objectives for the treatment units would be met through the implementation of the

Restoration Plan’s primary or adaptive management actions, and explains that it is

reasonable to expect that the objectives would be met based on the results from

past treatments.

      WW argues that the EA does not address the cumulative impacts of two past

projects that occurred within small areas of the Restoration Plan’s project area, the

Lincoln County Sage Grouse Habitat Restoration Project and the South Spring

Valley Sagebrush Habitat Restoration Project. We find WW’s arguments

unavailing, because the EA considers those projects’ impacts in its aggregated

review of past actions. Further, in those projects’ NEPA analyses, BLM

recognized that the projects’ impacts could initially be harmful to sage-grouse

habitat but concluded that the projects’ activities would benefit sagebrush

communities in the long-term.

      Furthermore, although the prior projects adopted annual monitoring regimes

to study the effects of their actions on sagebrush—actions which are identical to

                                          5
those proposed in the Restoration Plan—any data collected between the time those

projects were implemented and the Restoration Plan’s EA was issued could not

have accurately evaluated BLM’s projected results of those prior actions. The

Restoration Plan’s EA was issued four years after the initiation of the Lincoln

County and Spring Valley Projects. Studies have shown that it can take fifteen

years using reseeding to restore such ranges with the appropriate subspecies of

sagebrush and herbaceous species. The projections in the Spring Valley Project’s

NEPA analysis similarly anticipated that any increase to perennial grasses and

forbs would occur within “5 to 10 years following completion of the proposed

treatment.” In the absence of evidence by WW demonstrating that early

monitoring would nonetheless have been useful, the Court finds that BLM’s failure

to monitor the earlier projects did not render the Restoration Plan’s NEPA analysis

inadequate.

      BLM also did not violate NEPA by failing to analyze the cumulative effects

of the future Hamblin Valley Watershed Restoration Plan. Although agencies

generally must address the cumulative impacts of reasonably foreseeable future

projects in a current project’s cumulative impacts analysis, a court can in some

cases defer to the agency’s on-the-record commitment to address the combined

cumulative impacts of both projects in the future project’s cumulative impacts

analysis. See N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 980 (9th Cir.

                                          6
2006). BLM has represented to the Court that it will analyze the cumulative

impacts of the Restoration Plan combined with those of the Hamblin Valley project

in the latter’s own cumulative impacts analysis, and it will be held to that

commitment. See Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346,

1357 (9th Cir. 1994). We therefore find no violation.

2.    WW’s second challenge to the EA on appeal is that BLM violated NEPA by

approving a series of rangeland improvement projects as part of the Restoration

Plan without first taking a “hard look” at the direct ecological consequences on

sage-grouse of building the projects. WW’s arguments fail. Pursuant to NEPA’s

“hard look” requirement, an agency must prepare an up-front, coherent, and

comprehensive environmental review, Ctr. for Biological Diversity v. U.S. Forest

Serv., 349 F.3d 1157, 1166 (9th Cir. 2003) (citations omitted), and “vague and

conclusory statements, without any supporting data” will not be sufficient, Great

Basin Mine Watch v. Hankins, 456 F.3d 955, 973 (9th Cir. 2006). The EA meets

this standard. The EA provides an adequate baseline analysis of the current

conditions of sage-grouse and sagebrush within the project area. Further, the EA

provides a comprehensive environmental review of the impacts of the Restoration

Plan’s intended rangeland developments. The EA discusses potential negative

impacts to sage-grouse and provides mitigation measures specific to the rangeland

projects. The EA demonstrates that the long-term effect of the rangeland

                                           7
improvements will be beneficial to wildlife, with only minor short-term harms,

which are limited by mitigation measures. BLM’s analysis of the rangeland

improvements therefore complied with NEPA.

      AFFIRMED.




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