                                                                         FILED
                     UNITED STATES COURT OF APPEALS                       MAR 17 2016

                                                                      MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                      U.S. COURT OF APPEALS




KLAMATH SISKIYOU WILDLANDS                      No. 13-16186
CENTER and KLAMATH FOREST
ALLIANCE,                                       D.C. No. 2:11-cv-01647-MCE-
                                                CMK
               Plaintiffs - Appellants,         Eastern District of California,
                                                Sacramento
 v.

PATRICIA GRANTHAM, Forest                       ORDER
Supervisor, Klamath National Forest; et
al.,

               Defendants - Appellees.


Before: FISHER, BERZON, and WATFORD, Circuit Judges.

      The panel has voted to deny appellant’s petition for panel rehearing.

      The panel has voted to amend the memorandum disposition. The amended

memorandum disposition is attached hereto.

      The petition for panel rehearing is DENIED. No future petitions will be

entertained.
                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 17 2016

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



                            FOR THE NINTH CIRCUIT


KLAMATH SISKIYOU WILDLANDS                       No. 13-16186
CENTER; KLAMATH FOREST
ALLIANCE,                                        D.C. No. 2:11-cv-01647-MCE-
                                                 CMK
              Plaintiffs - Appellants,

 v.                                              AMENDED
                                                 MEMORANDUM*
PATRICIA GRANTHAM, Forest
Supervisor, Klamath National Forest;
TOM MUTZ, District Ranger, Happy
Camp/Camp Knoll Ranger District,
Klamath National Forest; UNITED
STATES FOREST SERVICE,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding

                     Argued and Submitted November 2, 2015
                                Portland, Oregon

Before: FISHER, BERZON, and WATFORD, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Pursuant to its obligations under the National Environmental Policy Act

(“NEPA”), 42 U.S.C. § 4321 et seq., the Klamath National Forest (“the KNF” or

“the Forest”) prepared an Environmental Assessment (“EA”) as part of a project

reauthorizing cattle grazing on certain federal lands. The Forest subsequently

concluded that it was not required to prepare an Environmental Impact Statement

(“EIS”) and issued a Decision Notice and Finding of No Significant Impact.

Plaintiffs Klamath Siskiyou Wildlands Center and Klamath Forest Alliance

(collectively “KS Wild”) brought suit alleging that the KNF’s actions violated

NEPA and the National Forest Management Act (“NFMA”). The district court

granted summary judgment to the KNF and awarded costs.

      “Because NFMA and NEPA do not provide a private cause of action to

enforce their provisions, agency decisions allegedly violating NFMA and NEPA

are reviewed under the Administrative Procedure Act (‘APA’).” Native Ecosys.

Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). This Court may

set aside agency action that is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

      1. The district court erred in granting summary judgment on KS Wild’s

NEPA claims. Under NEPA’s implementing regulations, in preparing an EA an

agency is required to “[b]riefly provide sufficient evidence and analysis for


                                           2
determining whether to prepare an environmental impact statement or a finding of

no significant impact.” 40 C.F.R. § 1508.9(a)(1).

      In this case, the KNF identified a single “significant issue” associated with

the grazing project: cattle drifting outside of their designated allotment into the

adjacent Rogue River Siskiyou National Forest (“RRSNF”). But while the EA

explained that the KNF’s proposed action was supposed to result in little to no

cattle drift within a few years of implementation, it provided essentially no

information about the environmental impact of the drifting cattle in the RRSNF in

the past or during the period covered by the proposed action. Given this omission,

we cannot say that the KNF took the “‘hard look’ at the potential environmental

consequences of the proposed action” required by NEPA. Klamath-Siskiyou

Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004)

(quoting Churchill Cnty. v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001)).

      The Forest argues that there is no available quantitative evidence of the

impact of drifting cattle on the RRSNF. But that is exactly the point—the purpose

of the EA is to require the agency to seek or develop evidence to determine

whether there is likely to be a significant environmental impact from the project.

Nor can the RRSNF’s failure to provide the relevant evidence excuse the KNF’s

omission; under NEPA, the agency preparing the EA must demonstrate that its


                                           3
proposed action will not have a significant environmental impact. Moreover, while

the KNF lacked quantitative evidence of the past or likely future impact of drifting

cattle, the record was replete with anecdotal and photographic evidence suggesting

impact from drifting cattle, which should have been discussed.

      We therefore reverse the judgment of the district court and require the KNF

to prepare a new EA or to prepare an EIS, as it deems appropriate. On remand, the

KNF must develop sufficient evidence to determine the likely environmental

impact of its plan and discuss the available evidence of the impact of drifting

cattle—considered alone and cumulatively with other actions, such as grazing by

RRSNF cattle—on the RRSNF and its unique ecological characteristics. We do

not, however, require the KNF to produce an EIS unless it determines cattle drift

likely will have a significant impact on the environment.1

      2. The district court properly granted summary judgment to the KNF on KS

Wild’s NFMA claim. The KNF adequately explained the reasoning behind

      1
        On the current record, we reject KS Wild’s final argument on the purported
“highly controversial” effects, 40 C.F.R. § 1508.27(b)(4), of the Oak Knoll Project.
The RRSNF has not registered any serious objection to the EA and has, in fact,
collaborated extensively with the KNF to address cattle drift. Any disagreement
about the seriousness of the drift problem falls short of the sort of conflicts this
court has held to be “highly controversial.” See, e.g., Sierra Club v. Bosworth, 510
F.3d 1016, 1031 (9th Cir. 2007); Sierra Club v. U.S. Forest Serv., 843 F.3d 1190,
1193 (9th Cir. 1988). The possibility remains, of course, that the Project’s as-yet-
undetermined effects in the RRSNF may ultimately prove “highly controversial.”

                                          4
authorizing grazing on some land not designated as “suitable” for grazing. Its

decision, moreover, was based on a reasonable interpretation of the governing

Forest Plan. Where, as here, an interpretation of the Forest Plan “is neither plainly

erroneous nor inconsistent with the regulation, it is accorded substantial

deference.” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir.

2003).

      3. Because we reverse the district court’s grant of summary judgment to the

KNF on the NEPA claim, its order taxing costs against KS Wild must be reversed

as well.

      4. Because the Federal Land Policy and Management Act provides that

expired grazing permits are to remain in effect under the same terms and

conditions “until the date on which the Secretary concerned completes any

environmental analysis and documentation for the permit or lease required under”

NEPA, 43 U.S.C. § 1752(c)(2), the effect of vacating the KNF’s Decision Notice

would be the reinstatement of earlier permits on terms less protective of Forest

resources. We therefore conclude that this case presents one of the “rare

circumstances” in which “we deem it advisable that the agency action remain in

force until the action can be reconsidered or replaced.” Humane Soc’y of U.S. v.




                                          5
Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010). The KNF’s Decision Notice will

remain in effect while the Forest discharges its obligations under NEPA.

      REVERSED and REMANDED.




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