                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALLIANCE FOR THE WILD ROCKIES,                   No.   14-35936

              Plaintiff-Appellant,               D.C. No. 9:13-cv-00092-DWM

 v.
                                                 MEMORANDUM*
DANIEL ASHE, Director of US Fish and
Wildlife Service; TOM TIDWELL,
Regional Forester, Chief of the US Forest
Service; FAYE KRUEGER, Regional
Forester for the Northern Region of the
United States Forest Service; PAUL
BRADFORD, Supervisor of the Kootenai
National Forest; UNITED STATES
FOREST SERVICE, an agency of the US
Department of Agriculture; U.S. FISH &
WILDLIFE SERVICE, an agency of the
US Department of the Interior,

              Defendants-Appellees.


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

                      Argued and Submitted February 9, 2017
                               Seattle, Washington


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FISHER, PAEZ and CALLAHAN, Circuit Judges.

      Alliance for the Wild Rockies (Alliance) appeals the district court’s grant of

summary judgment in favor of the United States Forest Service (USFS) and the

United States Fish and Wildlife Service (FWS) (collectively, the agencies).

Alliance alleges the agencies’ approval of the Young Dodge Project (Project) in

Montana’s Kootenai National Forest violated the Endangered Species Act (ESA)

and the National Environmental Policy Act (NEPA). The Project will partially

take place on protected habitat of the grizzly bear, a threatened species. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The grant of summary judgment is reviewed de novo. See Native

Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002). Judicial

review of agency action is governed by the Administrative Procedure Act (APA),

and we may set aside an agency’s decision only if it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” Nw. Coal. for Alts.

to Pesticides v. EPA, 544 F.3d 1043, 1047 (9th Cir. 2008) (quoting 5 U.S.C. §

706(2)(A)). The arbitrary and capricious standard is deferential, and we will

“uphold a decision of less than ideal clarity if the agency’s path may reasonably be

discerned.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co.,



                                          2
463 U.S. 29, 43 (1983) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 286 (1974)).

                                           I.

      The USFS and the FWS satisfied their obligations under the ESA. Section 7

of the ESA requires an action agency to ensure, through consultation with expert

wildlife agencies, that its actions are “not likely to jeopardize the continued

existence of any endangered species or threatened species or result in the

destruction or adverse modification of [critical] habitat of such species.” 16 U.S.C.

§ 1536(a)(2). If the action agency determines that a proposed project is not likely

to affect any listed species or critical habitat, and the expert agency issues a written

concurrence, “informal” consultation may be terminated. As long as an agency

follows proper procedures, it is entitled to change its position during the

consultation process, and “federal courts ordinarily are empowered to review only

an agency’s final action.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 659 (2007) (emphasis in original).

      The record shows the agencies independently considered impacts from non

road-related activities including post-and-pole logging, logging activities outside

of the recovery zone, helicopter use and oversized clearcuts. The agencies’

analyses of these potential impacts were rationally related to their no-adverse-


                                            3
effects conclusion. See Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1125

(9th Cir. 2007).

      For example, the Biological Assessment (BA) and the Supplemental BA

support the agencies’ determination that post-and-pole logging in the recovery

zone is not likely to adversely affect the grizzly bear. First, the BA explains that

logging activities only partially enter into the recovery zone and so impact only a

negligible amount of available habitat. Second, the Supplemental BA further

explains that logging activities fall within the range-of-effects analyzed by the

2011 Access Amendment Biological Opinion (BiOp) in that they would not result

in changes to roads open to the public or total motorized route density and do not

decrease core habitat.

      Although the first explanation is somewhat conclusory, the agencies’ “path

may reasonably be discerned” from other evidence in the record. See Motor

Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Bowman, 419 U.S. at 286)). This

evidence includes representations that post-and-pole logging will occur on only 58

acres – a small fraction of the 7,074 acres directly impacted by the Project.

Moreover, the record contains evidence showing that the low density of grizzly

bears in the area results in “greater flexibility in habitat selection” for individual

bears. Although the BiOp evaluated only impacts of roads on grizzly bears, it


                                            4
noted that so long as “road densities are moderate and adequate core habitat is

provided, it is likely that the affected bears will find needed food and shelter

resources elsewhere in their home range.” Because logging will neither increase

road density nor decrease core habitat, the BA in combination with the BiOp

explain that such activities are unlikely to adversely affect the grizzly.

      Further, the Supplemental BA found that timber harvesting outside of the

recovery zone would displace bears from 17,596 acres over the Project’s term, but

that “only a portion of these acres would be unavailable at any given time

depending on how the treatment units are divided into timber sales, which would

not be active simultaneously.” Although the BA does not provide a metric for

determining whether staggered logging will limit displacement, there is sufficient

evidence elsewhere in the record to support the agencies’ conclusion. The

agencies considered research that an “adequate quantity and quality of secure

habitat” allows grizzlies to “sustain disturbance within their home range without

injury or death,” and here, a large secure area of core habitat is located

immediately adjacent to the Project area. This same reasoning supports the

agencies’ conclusion that oversized clearcuts will not adversely affect the grizzly

bear despite the agencies’ recognition that the project exceeds recovery parameters

generally limiting openings to 40 acres.


                                            5
       As to helicopter use, the BA found that “surrounding core habitat would

serve as refuge for any bears that may be present during the prescribed burning,”

prescribed burning would not be scheduled during “important biological periods

for grizzly bear survival,” and helicopter units would be “buffered by a one mile

displacement zone.” The Supplemental BA made clear the USFS “analyzed the

affects [sic] from the use of helicopters to prescribe burn and the affect [sic] on

available grizzly bear habitat during the prescribed burn activities.” It added that

helicopter use is scheduled for a limited duration (eight hours in one day), that

there is “secure core area directly to the west to accommodate any disturbed

bears,” and that the “[s]ecure core is not impacted by helicopter activities because

roads are not being opened and activated.” The Supplemental BA also said that

planned mitigation strategies for helicopter use were within guidance parameters.

      Finally, the agencies did not act arbitrarily and capriciously in neglecting to

distinctly address the effects of locating oversized openings next to open roads.

The agencies considered the underlying concerns associated with roads and

oversized openings, including cover and visibility, and Alliance has not shown the

combined effect of these two impacts is appreciably different. The agencies did

not “entirely fail[] to consider an important aspect of the problem.” Motor Vehicle

Mfrs. Ass’n, 463 U.S. at 43.


                                           6
                                         II.

      The district court correctly concluded that Alliance waived its NEPA

argument by failing to exhaust administrative remedies. See Idaho Sporting Cong.,

Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002) (citing 5 U.S.C. § 704).

Alliance’s statements submitted during administrative review failed to adequately

apprise the USFS of Alliance’s concern that the combined effect of locating

oversized openings next to open roads poses unique risks.

                                        III.

      In sum, we are satisfied – on an independent review of the administrative

record – that the USFS and the FWS complied with the ESA, NEPA and the APA.

      AFFIRMED.




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