                                                                               FILED
                           NOT FOR PUBLICATION                                 MAY 27 2014

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



                            FOR THE NINTH CIRCUIT


ERIC NAVICKAS and JAY LININGER,                  No. 13-35132

              Plaintiffs - Appellants,           D.C. No. 1:10-cv-03004-CL

  v.
                                                 MEMORANDUM*
SCOTT CONROY, in his official capacity
as Forest Supervisor of the Rouge River
Siskiyou National Forest and UNITED
STATES FOREST SERVICE, a federal
agency,

              Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                       Argued and Submitted May 15, 2014
                                Portland, Oregon

Before: GOODWIN, IKUTA, and N.R. SMITH, Circuit Judges.

       Eric Navickas and Jay Lininger (collectively, Navickas) sued Scott Conroy

and the United States Forest Service (collectively, Forest Service) alleging



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violations of the National Forest Management Act (NFMA) and the National

Environmental Policy Act (NEPA) in the Forest Service’s analysis and adoption of

the Ashland Fire Resiliency Project (the Project). Navickas appeals from the

district court’s grant of summary judgment in favor of the Forest Service. We have

jurisdiction under 28 U.S.C. § 1291, and we reverse in part and affirm in part.

      The district court abused its discretion in admitting the third declaration

from Donald Boucher to supplement the administrative record, because the Forest

Service failed to demonstrate that the declaration satisfied any of the four narrow

exceptions to the general rule against such supplementation. See Lands Council v.

Powell, 395 F.3d 1019, 1030 (9th Cir. 2004). Contrary to the Forest Service’s

argument, the declaration’s post hoc explanation of how the implementation of the

Project could comply with the Land Resources Management Plan (LRMP) did not

show that the agency had considered relevant factors at the time it approved the

Project. For the same reason, we reject the Forest Service’s argument that the

Boucher declaration rendered Navickas’s NFMA claim regarding soil exposure in

Management Area 26 moot.

      The parties have assumed that Table III-15 of the Project’s Final

Environmental Impact Statement (FEIS) is part of the Project as approved in the

Record of Decision. Although nothing in the FEIS or the Record of Decision


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states that the Project incorporates the soil exposure standards of Table III-15, the

Forest Service has not raised this argument and we will not manufacture arguments

for the parties. See Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir. 2009).

Table III-15 of the FEIS indicates that project activities will exceed the LRMP’s

soil exposure thresholds. Because the LRMP’s standards are binding as a matter of

law, 16 U.S.C. § 1604(i); see Or. Natural Res. Council Fund v. Goodman, 505

F.3d 884, 894 (9th Cir. 2007), the Forest Service acted arbitrarily and capriciously

by approving a project that will exceed those standards, see Citizens for Better

Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 2003). The record

does not support the Forest Service’s argument that notwithstanding Table III-15,

limitations imposed on the Project in other parts of the record necessarily ensure

compliance with the more protective LRMP standards. We therefore reverse the

district court’s grant of summary judgment in favor of the agency on this claim.

      The district court did not err in granting summary judgment in favor of the

Forest Service on Navickas’s claim that the Project’s authorization of timber

harvests in the Ashland Research Natural Area violated NFMA. We defer to the

Forest Service’s reasonable determination of what constitutes a fuels management

activity and a fuel treatment method, and to its reasonable determination that a

decision to remove trees must have a commercial element in order for the tree


                                          3
removal to be classified as a “timber harvest.” See Earth Island Inst. v. U.S. Forest

Serv., 697 F.3d 1010, 1013 (9th Cir. 2012). Here the Forest Service reasonably

determined that the Project does not have a commercial element, and is a fuels

management activity, not a timber harvest. See Siskiyou Reg’l Educ. Project v.

U.S. Forest Serv., 565 F.3d 545, 557 (9th Cir. 2009).

      Nor did the district court err when it granted summary judgment in favor of

the Forest Service on Navickas’s claim that the agency failed to perform the

required analysis under NEPA. The Forest Service has not ignored “detailed and

well-supported conclusions of its own scientists” that analysis must occur on a

different scale than the one used, nor was its selection of a geographic scale for

analysis otherwise arbitrary. Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d

957, 973–74 (9th Cir. 2002). The FEIS explained where permitted treatments will

be applied, identifying four “major strategic categories” and their component Plant

Association Groups, and explained which treatments will be applied in which areas

and to what extent. The Forest Service had no obligation to identify the specific

trees that would be removed as part of the Project. We also reject Navickas’s

NEPA argument that the agency has generated new information, in the form of a

map available online, that required supplemental NEPA analysis, because the map




                                          4
merely indicated which parts of the Project have been funded through 2014.

Accordingly, the FEIS satisfied NEPA.

      Each party will bear its own costs on appeal.

      REVERSED IN PART, AFFIRMED IN PART, AND REMANDED




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