                                                                             FILED
                           NOT FOR PUBLICATION                               MAY 26 2015

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



                            FOR THE NINTH CIRCUIT


CENTER FOR BIOLOGICAL                            No. 14-16948
DIVERSITY; et al.,
                                                 D.C. No. 1:14-cv-01382-GEB-
              Plaintiffs - Appellants,           GSA

  v.
                                                 MEMORANDUM*
SUSAN SKALSKI, in her official capacity
as Forest Supervisor for the Stanislaus
National Forest and UNITED STATES
FOREST SERVICE, an agency of the
Department of Agriculture,

              Defendants - Appellees,

TUOLUMNE COUNTY; et al.,

              Intervenor-Defendants -
Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

                       Argued and Submitted May 11, 2015
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and CLIFTON, Circuit Judges and KOBAYASHI,** District Judge.

      Plaintiffs Center for Biological Diversity, Earth Island Institute, and

California Chaparral Institute appeal the district court’s denial of their motions for

a preliminary injunction and to supplement the administrative record. We have

jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

      Plaintiffs have not established a likelihood of success on the merits of their

claims under the National Environmental Policy Act. The Forest Service took the

requisite “hard look” at the impacts of the Rim Fire Restoration Project on the

California spotted owl. See Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137

F.3d 1372, 1376 (9th Cir. 1998). The Environmental Impact Statement and Record

of Decision adequately incorporated the 2014 owl occupancy survey results by

explaining that the Forest Service had reestablished six protected activity centers

where the surveys detected owl presence. The Forest Service also adequately

addressed the scientific literature on owl occupancy in post-fire, high-severity burn

habitat and, specifically, the Clark 2007, Clark et al. 2013, and Bond et al. 2009

studies. It sufficiently explained that the studies had limited implications for the




        **
             The Honorable Leslie E. Kobayashi, U.S. District Judge for the
District of Hawaii, sitting by designation.

                                           2
Project, due to both differences between conditions in the Project area and those of

the studies, and the uncertainty of the studies’ conclusions.

      The Forest Service provided a reasonable justification in the EIS for its

conclusion that, although the Project might impact individual owls, it would not

lead to the listing of the species. Unlike in Earth Island Institute v. U.S. Forest

Serv., 442 F.3d 1147 (9th Cir. 2006), where the Forest Service improperly

discounted Bond’s earlier studies and assumed that there would be no adverse

impacts of salvage logging, here the Forest Service addressed Bond et al. 2009 and

other relevant studies and acknowledged the possible short-term impacts on the

spotted owl from salvage logging. The Forest Service then analyzed the impacts

on owls according to its six indicators, before concluding there would be no long-

term trend toward listing. The Forest Service therefore engaged in “a discussion of

adverse impacts that does not improperly minimize negative side effects.” League

of Wilderness Defenders–Blue Mtns. Biodiversity Proj. v. U.S. Forest Serv., 689

F.3d 1060, 1075 (9th Cir. 2012) (quoting N. Alaska Envtl. Ctr. v. Kempthorne, 457

F.3d 969, 975 (9th Cir. 2006)).

      The Forest Service was not required to prepare a supplemental EIS to further

consider the 2014 owl occupancy survey results. The survey results did not

constitute significant new information because they did not significantly change


                                           3
the scope of the Project or the environmental consequences of the alternatives. See

40 C.F.R. § 1502.9(c)(1); Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d

1113, 1130 (9th Cir. 2012). As the Forest Service explained, none of the six new

PACs that the Forest Service established in response to the 2014 surveys would

“overlap to any meaningful degree” with the Project’s treatment units.

      The district court did not abuse its discretion in denying Plaintiffs’ motion to

supplement the administrative record. The three declarations that Plaintiffs sought

to introduce were not necessary to determine whether the Forest Service

considered all relevant factors or to explain technical terms or complex subjects.

Cf. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602-03 (9th

Cir. 2014). To the extent the declarations highlighted information on which the

Forest Service did not rely, Plaintiffs already emphasized this information in their

NEPA comments and Monica Bond’s August 21, 2014 letter and owl occupancy

data analysis. The studies that the declarations addressed were already in the

record and discussed and cited in the EIS.

      AFFIRMED.




                                          4
