                             NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                        APR 7 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

NATIVE ECOSYSTEMS COUNCIL,                      No.    18-36067

                Plaintiff-Appellant,            D.C. No. 9:17-cv-00153-DWM

and
                                                MEMORANDUM*
ALLIANCE FOR THE WILD ROCKIES,

                Plaintiff,

 v.

LEANNE MARTEN, Regional Forester of
Region One of the U.S. Forest Service; et
al.,

                Defendants-Appellees,

MONTANA WOOD PRODUCTS
ASSOCIATION, a Montana Corporation; et
al.,

      Intervenor-Defendants-
      Appellees.

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

                     Argued and Submitted November 8, 2019

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                   Portland, Oregon

Before: GILMAN,** PAEZ, and RAWLINSON, Circuit Judges.

      Native Ecosystems Council (NEC) appeals the district court’s grant of

summary judgment in favor of the U.S. Forest Service. The court held that the

Service’s designation of certain Montana forest lands as “landscape-scale areas”

under the Healthy Forests Restoration Act (HFRA), 16 U.S.C. § 6501 et seq., and

the Service’s approval of the Moose Creek Vegetation Project did not violate either

HFRA or the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

      Because HFRA and NEPA do not provide private causes of action to enforce

their provisions, the arbitrary-or-capricious standard set out in the Administrative

Procedure Act, 5 U.S.C. § 551 et seq., governs challenges to agency decisions

alleged to violate those statutes. See 5 U.S.C. § 706(2)(A); Native Ecosystems

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

      1. NEC has standing to pursue this appeal. Its claim to standing is based on

the declarations of Sara Johnson, its executive director. Johnson declared that she

has visited the area around the Project site seven times, including five times since

2008, and has concrete plans to visit the site in the future.

      “Repeated recreational use itself, accompanied by a credible allegation of



      **
            The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

                                           2                                   18-36067
desired future use, can be sufficient, even if relatively infrequent, to demonstrate

that environmental degradation of the area is injurious to that person.” Ecological

Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000). Johnson

averred that she “use[s] the affected area” and is a person “for whom the aesthetic

and recreational values of the area will be lessened by the challenged activity.”

See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

183 (2000) (citation and internal quotation marks omitted). That is sufficient to

qualify as an injury in fact. Accordingly, Johnson would have standing to sue in

her own right, and thus NEC has standing by extension. See id. at 181.

      2. NEC’s contention that the Forest Service violated the law by designating

areas under HFRA without engaging in a NEPA analysis is foreclosed by our

recent decision in Center for Biological Diversity v. Ilano, 928 F.3d 774 (9th Cir.

2019). The Ilano court held that landscape-area designations under HFRA do not

trigger a requirement for NEPA analysis. Id. at 780–81. Because Ilano controls

the outcome on this issue, NEC’s challenge must be rejected.

      3. The approval of the Moose Creek Vegetation Project did not contravene

HFRA’s mandate regarding the retention of old-growth and large trees, see 16

U.S.C. § 6591b(b)(1)(A), for several reasons. First, the Forest Service’s decision

to focus primarily on preserving larger old-growth patches in order to satisfy

HFRA was not arbitrary or capricious. Its determination that “in very small patch


                                          3                                      18-36067
sizes, old growth cannot provide the environment needed for many species to

function” is the classic sort of scientific judgment that is within the Forest

Service’s expertise and is entitled to substantial deference. See N. Plains Res.

Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011).

      Second, HFRA’s statutory text states that a treatment project must

“maximize[ ] the retention of old-growth and large trees, as appropriate for the

forest type, to the extent that the trees promote stands that are resilient to insects

and disease . . .” 16 U.S.C. § 6591b(b)(1)(A) (emphasis added). HFRA’s

command to maximize old-growth retention is specifically conditioned on that

resilience. The Forest Service made an expert judgment that stands of trees below

a certain size are not as effective in accomplishing this goal—a judgment that,

again, is entitled to substantial deference.

      Finally, NEC focuses on one unit within the Project, called Unit 7, and on a

field survey of that area conducted in 2016. It asks us to conclude that this survey,

rather than the Forest Service’s “Old Growth Report,” represents the best scientific

information. NEC argues that the Forest Service erred by not taking the survey

into account. This argument, however, fails to acknowledge that the survey does

not draw any conclusions about the presence of old growth in Unit 7. By contrast,

the Old Growth Report covered the entire Project area and was conducted for the

specific purpose of assessing old-growth conditions.


                                           4                                     18-36067
      4. The Forest Service’s determination that no extraordinary circumstances

existed that would require further procedures under NEPA before approving the

Moose Creek Vegetation Project was not arbitrary or capricious. NEC’s argument

to the contrary is premised largely on its assertion that the Forest Service failed to

consider the cumulative impacts of the Project. It contends, specifically, that the

forest clearing to be conducted through the Project, combined with past logging,

would have a significant cumulative impact on species that thrive on “snag

habitat.”

      This assertion, however, is belied by the record. The Forest Service

conducted a “Snag Habitat Report” to estimate the Project’s effect on snags (which

are standing dead trees). That Report concluded that for all forest types except

one, the number of snags per 100 acres would exceed the standards set by the

governing Forest Plan. The sole exception was for a type of tree where the sample

size was very small and of which no harvesting is scheduled under the Project.

      NEC does not address this point at all. Nor does it offer any other good

reason to conclude that the Forest Service’s determination that no extraordinary

circumstances existed was arbitrary or capricious. It simply asserts, without any

details, that the Moose Creek Vegetation Project will have unspecified cumulative

impacts. We reject this argument.

      For all of the above reasons, we AFFIRM.


                                           5                                    18-36067
                                                                                FILED
Native Ecosystems Council v. Marten, Case No. 18-36067                           APR 7 2020
Rawlinson, Circuit Judge, concurring in the judgment:                        MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

      I concur in the judgment affirming the decision of the district court. I agree

that Appellant Native Ecosystems Council has standing to pursue this appeal. I

also agree that Appellant’s challenge to the designation of areas to be included in a

treatment project pursuant to the Healthy Forests Restoration Act without an

analysis under the National Environmental Policy Act (NEPA) is foreclosed by our

recent decision in Center for Biological Diversity v. Ilano, 928 F.3d 774, 780 (9th

Cir. 2019). In addition, I concur in the disposition’s conclusion that the United

States Forest Service did not act arbitrarily and capriciously in identifying tree

“stands that are resilient to insects and disease” pursuant to old-growth survey data.

16 U.S.C. § 65916b(b)(1)(A). Finally, the determination that no extraordinary

circumstances existed to otherwise trigger a NEPA analysis was not arbitrary or

capricious. See 40 C.F.R. § 1508.4 (equating extraordinary circumstances with “a

significant environmental effect”). In my view, no additional analysis is required

to resolve this case.




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