                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 02 2015

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



                            FOR THE NINTH CIRCUIT


ALLIANCE FOR THE WILD ROCKIES;                   No. 14-35050
FRIENDS OF THE CLEARWATER,
                                                 D.C. No. 3:12-cv-00466-MHW
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

RICK BRAZELL, Supervisor of the Nez
Perce National Forest; FAYE KRUEGER,
Regional Forester of Region One of the
U.S. Forest Service; UNITED STATES
FOREST SERVICE, an agency of the U.S.
Department of Agriculture; U.S. FISH &
WILDLIFE SERVICE, an agency of the
U.S. Department of the Interior,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Idaho
                  Mikel H. Williams, Magistrate Judge, Presiding

                     Argued and Submitted December 8, 2014
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiffs-Appellants Alliance for the Wild Rockies and Friends of the

Clearwater (collectively “Alliance”) appeal the district court’s grant of summary

judgment in favor of federal defendants the United States Forest Service (“USFS”)

and the Fish and Wildlife Service (“FWS”). Alliance argues that the district court

erred when it affirmed USFS’s decision to implement the Little Slate Project

(“Project”)—a 2,598-acre timber thinning sale within a 36,000-acre project area in

the 2.2 million-acre Nez Perce National Forest. Alliance asserts that the agencies

violated the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et

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

and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.—and therefore

the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.—by failing to

properly account for the impact of the Project on several species that live in the

project area (fisher, goshawk, pileated woodpecker, and bull trout) and those

species’ habitats. We disagree. We find that the federal agencies satisfied their

obligations under NFMA, NEPA, the ESA, and the APA before implementing the

Project to improve long-term habitat and the health of the forest. We, therefore,

AFFIRM the district court’s entry of summary judgment in favor of the federal

defendants.




                                           2
      USFS did not violate NFMA when developing the Little Slate Project.

NFMA obligates USFS to comply with the Nez Perce Forest Plan when designing

and implementing site-specific projects for the Nez Perce National Forest. See 16

U.S.C. § 1604(i); Lands Council v. McNair, 537 F.3d 981, 989 (9th Cir. 2008) (en

banc). Although the Nez Perce Forest Plan requires USFS to monitor management

indicator species (“MIS”) (including fisher, goshawk, and pileated woodpecker)

populations at the forest level, nothing in the Plan requires USFS to conduct site-

specific monitoring before implementing individual projects like the Little Slate

Project. See Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1014 (9th Cir.

2012) (noting that “NFMA and its implementing regulations provide for forest

planning and management at two levels: the forest level and at the individual

project level”). USFS appropriately evaluated the impact of the Project on MIS by

considering how the Project would affect those species’ habitats. See Ecology Ctr.

v. Castaneda, 574 F.3d 652, 664–65 (9th Cir. 2009) (approving USFS’s use of the

same methodology for monitoring MIS); Lands Council, 537 F.3d at 997–98

(same). Thus, USFS did not violate the Nez Perce Forest Plan or NFMA when it

developed the Little Slate Project without conducting a population survey of MIS

such as the fisher, goshawk, and pileated woodpecker.




                                          3
      Nor did USFS violate NEPA. NEPA requires federal agencies

contemplating “major Federal action” to prepare an environmental impact

statement (“EIS”) analyzing that action. See 42 U.S.C. § 4332(C). Reviewing

courts evaluate the EIS to ensure that the agency has taken a “hard look” at the

environmental consequences of the proposed action. Ecology Ctr., 574 F.3d at

657. An EIS satisfies NEPA’s hard look requirement if it “provides a full and fair

discussion of environmental impacts.” Lands Council, 537 F.3d at 1001.

      After thoroughly reviewing the Little Slate Project Final EIS, we are

satisfied that USFS took the requisite “hard look” at the Project’s potential impacts

on the species. The Little Slate Project EIS closely examines the Project’s

potential impact on fisher, goshawk, pileated woodpecker, and bull trout by

considering how the Project will degrade or improve those species’ critical

habitats. This discussion includes an analysis of any potential cumulative

environmental impact to which the Project would contribute. That is sufficient to

satisfy NEPA’s hard look requirement.

      Finally, USFS and FWS satisfied their obligations under the ESA. The ESA

prohibits federal agencies from taking any action that is “likely to jeopardize the

continued existence” of any listed or threatened species or “result in the destruction

or adverse modification” of those species’ critical habitats. 16 U.S.C.


                                           4
§ 1536(a)(2). In its Biological Opinion relating to the Little Slate Project, FWS

concluded that the Project would not jeopardize bull trout—the only listed species

relevant here—or adversely modify its critical habitat. Consistent with the ESA,

FWS based this conclusion on the “best scientific and commercial data available.”

Id. This “no jeopardy” conclusion is supported by evidence in the record that

shows that the Project, while temporarily disrupting some bull trout habitat in the

short term, will have a long-term positive impact on many of the streams in which

bull trout live and reproduce. For these reasons, FWS’s Biological Opinion is

sufficient under the ESA. Thus, neither FWS nor USFS violated the ESA or the

APA by developing or relying on FWS’s Biological Opinion.

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

record as a whole—that USFS and FWS complied with NFMA, NEPA, the ESA,

and the APA. The agencies followed all applicable law and did not “rel[y] on

factors which Congress has not intended it to consider, entirely fail[] to consider an

important aspect of the problem, offer[] an explanation for its decision that runs

counter to the evidence . . . , or” come to a conclusion that “is so implausible that it

could not be ascribed to a difference in view or the product of agency expertise.”

Motor Vehicles Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983).


                                            5
AFFIRMED.




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