                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 01 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALLIANCE FOR THE WILD ROCKIES;                   No. 14-35069
NATIVE ECOSYSTEMS COUNCIL,
                                                 D.C. No. 9:12-cv-00055-DLC
              Plaintiffs - Appellees,

 v.                                              MEMORANDUM*

VICKI CHRISTENSEN, Interim Regional
Forester of Region One of the U.S. Forest
Service; UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture; UNITED
STATES FISH AND WILDLIFE
SERVICE, an agency of the U.S.
Department of Interior,

              Defendants - Appellants.



ALLIANCE FOR THE WILD ROCKIES;                   No. 14-35123
NATIVE ECOSYSTEMS COUNCIL,
                                                 D.C. No. 9:12-cv-00055-DLC
              Plaintiffs - Appellants,

 v.

VICKI CHRISTENSEN, Interim Regional
Forester of Region One of the U.S. Forest

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Service; UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture; UNITED
STATES FISH AND WILDLIFE
SERVICE, an agency of the U.S.
Department of Interior,

              Defendants - Appellees.


                  Appeals from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                 Argued May 3, 2016 Submitted November 1, 2016
                                Portland, Oregon

Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.

      Federal Defendants United States Forest Service (“Forest Service”) and

United States Fish & Wildlife Service (“FWS”) appeal the district court’s grant of

summary judgment enjoining two projects in the Gallatin National Forest—the

Bozeman Municipal Watershed Project and the East Boulder Project—for violating

the Endangered Species Act (“ESA”) by failing to adequately assess impacts on

lynx critical habitat. Plaintiffs, Alliance for the Wild Rockies and the Native

Ecosystems Council, cross-appeal the district court’s grant of summary judgment

to the Federal Defendants concerning the projects’ compliance with ESA and the




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National Environmental Policy Act (“NEPA”) as they relate to impacts on grizzly

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

      1.     Lynx

      The district court did not err in holding that the federal agencies must

reinitiate ESA § 7(a)(2) consultation on the Northern Rocky Mountains Lynx

Management Direction (“Lynx Amendments”) and the specific Gallatin National

Forest projects. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075

(9th Cir. 2015), cert. denied, — U.S. —, 2016 WL 2840129 (Oct. 11, 2016), is

controlling. There, we held that reinitiation was required on the Lynx

Amendments because FWS later designated additional critical lynx habitat not

contained in the Amendments’ coverage area. Id. at 1088. The same claim

regarding the Lynx Amendments is raised here, and because the habitat

assessments for the projects in this case rely on the pre-designation version of the

Lynx Amendments, Cottonwood applies to both claims. The Forest Service must

reinitiate consultation with FWS.

      Further, the district court did not abuse its discretion in granting injunctive

relief to Plaintiffs. See W. Watershed Project v. Matejko, 468 F.3d 1099, 1107 (9th

Cir. 2006) (standard of review). For alleged ESA violations, the traditional

preliminary injunction standard does not apply. See Amoco Prod. Co. v. Vill. of


                                           3
Gambell, 480 U.S. 531, 545 (1987); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194

(1978); Cottonwood, 789 F.3d at 1088, 1090. Rather, Plaintiffs must only show

they have or will suffer an irreparable injury to obtain injunctive relief.

Cottonwood, 789 F.3d at 1091.

      Although the district court erred in applying a burden shifting approach and

presuming irreparable injury, see id., the error was harmless, as we are satisfied

from the record that Plaintiffs have suffered such an injury. Plaintiffs use the

project areas for wildlife viewing, and the projects will clearly cause harm to

significant portions of lynx habitat. See All. for the Wild Rockies v. Cottrell, 632

F.3d 1127, 1135 (9th Cir. 2011) (finding irreparable injury where plaintiffs’

recreational use of a forest was harmed by logging that impacted portions of the

forest). This injury supports injunctive relief.

      2.     Grizzly Bears

      The district court did not err in holding that the 2006 Travel Plan Biological

Opinion and incidental take statement utilized the best available science. Courts

grant considerable discretion to agencies on technical issues and do not weigh

competing scientific analyses. Ecology Ctr. v. Castaneda, 574 F.3d 652, 658–59

(9th Cir. 2009). Here, the federal agencies identified the “secure habitat” standard

as the best available science and adhered to it for the Travel Plan’s incidental take


                                           4
statement. The Schwartz study does not undermine that finding. Nor does it say

that the best available science necessarily requires the use of “road density” to

measure impacts on grizzly bear populations. In fact, the agencies did consider

road density in their analyses of the forest projects and the 2006 plan. As such, the

district court properly granted summary judgment to Defendants on this issue.

      The district court also properly held that the Gallatin Forest projects comply

with the 2006 Travel Plan Biological Opinion and incidental take statement. Both

projects repeatedly state that road use will not impart any effects on grizzly bears

or their habitat in addition to those analyzed in the 2006 Biological Opinion.

Further, the Forest Service is required to monitor secure habitat percentages on an

annual basis under the incidental take statement. This monitoring requirement

makes it unnecessary for the Forest Service to calculate project-specific effects on

secure habitat percentages. Thus, the Forest Service did not act arbitrarily or

capriciously in determining that the Gallatin Forest projects comply with the 2006

Travel Plan, see Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983) (standard of review); Friends of the Wild Swan v. Weber, 767

F.3d 936, 943 (9th Cir. 2014) (noting that agencies must balance the need for

comprehensive analysis against considerations of practicality), and the district

court properly granted summary judgment in the agencies’ favor.


                                           5
      The Forest Service did, however, fail to comply with the annual monitoring

and reporting requirements of the 2006 Travel Plan. But Plaintiffs’ claim is moot.

While the 2006 Travel Plan originally required the Forest Service to use travel

planning areas as the unit of measure, the incidental take statement was later

amended to allow for use of bear analysis units. Therefore, this panel can no

longer provide a remedy, see Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d

827, 836 (9th Cir. 2014), and, notwithstanding the district court’s error, we affirm

its grant of summary judgment on this issue.

      Finally, the district court did not err in holding that the duration of helicopter

logging was an adequate surrogate measure of grizzly bear takes. In the 2009

Bozeman Project Biological Opinion, the Forest Service thoroughly discussed

helicopter logging’s relative impact on grizzly bears, both in roaded areas and

“inventoried roadless areas.” The agency also adequately explained why grizzly

bear takes due to helicopter logging are difficult to quantify and detect, requiring

the use of a surrogate measure. From these considerations, the Forest Service

concluded that the proposed project length—144 days—would likely result in

“only a low level of incidental take” of female grizzly bears. It therefore decided

to cap the safe-harbor at that length, triggering the need to reinitiate consultation

should helicopters be required for more than 144 days. See Ariz. Cattle Growers’


                                           6
Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1249 (9th Cir. 2001). Because the

agency’s determination was not arbitrary and capricious, the district court did not

err.

       Each party shall bear its own costs.

       AFFIRMED.




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