                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 04 2012

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



                            FOR THE NINTH CIRCUIT


CONSERVATION CONGRESS and                        No. 10-17298
KLAMATH FOREST ALLIANCE,
                                                 D.C. No. CV-07-02764-LKK
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

UNITED STATES FOREST SERVICE,

              Defendant - Appellee,

SIERRA PACIFIC INDUSTRIES and
ROUGH AND READY LUMBER, LLC,

              Intervenor-Defendants -
Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Lawrence K. Karlton, District Judge, Presiding

                       Argued and Submitted May 11, 2012
                                Portland, Oregon

Before: KOZINSKI, Chief Judge, TASHIMA and TALLMAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      After the Forest Service issued a Record of Decision and Final

Environmental Impact Statement (“EIS”) for the Pilgrim Vegetation Management

Project, plaintiffs Conservation Congress and Klamath Forest Alliance brought this

action under the National Forest Management Act (“NFMA”). The district court

initially enjoined the Forest Service from proceeding with the project. See

Conservation Cong. v. U.S. Forest Serv., 555 F. Supp. 2d 1093 (E.D. Cal. 2008).

In response, the Forest Service prepared a Final Supplemental EIS to address the

deficiencies in the Final EIS, then moved under Federal Rule of Civil Procedure

60(b)(5) to dissolve the injunction. The district court granted this motion, and

plaintiffs timely appeal.

      We may set aside agency decisions under the NFMA only if they are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)

(internal quotation marks omitted), overruled on other grounds by Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “[E]ven when an agency

explains its decision with less than ideal clarity, a reviewing court will not upset

the decision on that account if the agency’s path may reasonably be discerned.”

Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009) (internal quotation marks

omitted).


                                          -2-
       A party bringing a motion under Rule 60(b)(5) must establish that a

significant change in circumstances warrants revision of the judgment. Bellevue

Manor Assocs. v. United States, 165 F.3d 1249, 1255 (9th Cir. 1999). “Motions

for relief from judgment under Rule 60(b) are reviewed for abuse of discretion.”

United States v. Asarco, Inc., 430 F.3d 972, 978 (9th Cir. 2005) (citation omitted);

see also United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc)

(if the district court identified the correct legal standard, it abuses its discretion

only if its findings of fact “were illogical, implausible, or without support in

inferences that may be drawn from facts in the record”). “Thus, although we

review the district court’s [grant of the Forest Service’s Rule 60(b)(5) motion] for

abuse of discretion, our review of the district court’s determination as to [the

merits of plaintiffs’] NFMA claim[] necessarily incorporates the APA’s arbitrary

and capricious standard.” Lands Council, 537 F.3d at 987.

       1.     The Final Supplemental EIS uses a “proxy-on-proxy” analysis: It

uses “habitat as a proxy to measure a species’ population,” and then uses “that

species’ population as a proxy for the population of others species.” Id. at 996

n.10. “We will defer to its decision to use habitat as a proxy unless the Forest

Service makes a clear error in judgment that renders its decision arbitrary and

capricious.” Id. at 998 (internal quotation marks omitted).


                                            -3-
      Plaintiffs argue that the Forest Service’s use of habitat as a proxy is arbitrary

and capricious under Lands Council because “the relationship between the species

at issue and the habitat is unclear.” Id. The Final Supplemental EIS reasonably

concludes that mule deer habitat and population are correlated and specifically

rejects the hypothesis that predation is a confounding variable. It also quotes a

study that analyzes the relationship between habitat and population of the red-

breasted nuthatch. Given this analysis in the Final Supplemental EIS, the district

court did not abuse its discretion when it dissolved the injunction.

      2.     The Forest Service was required to “consider the best available

science” in its analysis. 36 C.F.R. § 219.35(a) (2011). Plaintiffs contend that the

Forest Service neither articulated nor substantively met this standard. We disagree.

First, the Final Supplemental EIS states that it “uses the best available data to

provide indicators of the over all, landscape-level results of our management

actions” and that the report “fulfills the . . . [NFMA] requirements to monitor for

biodiversity.” PAR 3113. Second, “[w]e grant considerable discretion to agencies

on matters requiring a high level of technical expertise.” Ecology Ctr. v.

Castaneda, 574 F.3d 652, 658 (9th Cir. 2009) (internal quotation marks omitted).

Plaintiffs fail to “cite[] any scientific studies that indicate the Forest Service’s

analysis is outdated or flawed” or “indicate any scientific information directly


                                           -4-
undermining” the Forest Service’s conclusion. Id. at 659-60. We therefore

conclude that the “best available science” supports the Forest Service’s findings.

      Accordingly, the judgment of the district court is AFFIRMED.




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