                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 16 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CONSERVATION CONGRESS;                           No. 09-16182
CITIZENS FOR BETTER FORESTRY;
KAREN WILSON; MARY LEE                           D.C. No. 2:08-cv-02483-GEB-
STEFFENSEN,                                      DAD

             Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

UNITED STATES FOREST SERVICE,

             Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                     Argued and Submitted February 12, 2010
                            San Francisco, California

Before: HALL and McKEOWN, Circuit Judges, and ZILLY, ** Senior District
Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
      Conservation Congress, Citizens for Better Forestry, Mary Lee Steffensen,

and Karen Wilson (“Conservation Congress”) appeal the district court’s order on

cross-motions for summary judgment in favor of the United States Forest Service

and against Conservation Congress. This is an action challenging the Forest

Service’s planned forest-thinning project (the “East Fork II Project”) in the East

Fork South Fork Trinity River Watershed in the Shasta-Trinity National Forest

(“STNF”). The district court held that the Forest Service complied with the

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

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

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court’s

decision.

      I.     Background

      The East Fork II Project proposes forest thinning on approximately 931

acres of the STNF. The purpose of the Project is to make the forest more resilient

to wildfire. The Forest Service disclosed the expected environmental impacts of

the Project in the East Fork II Environmental Assessment (“EA”). The Forest

Service prepared the East Fork II EA in an effort to comply with this Court’s ruling

in Environmental Protection Information Center v. United States Forest Service,

No. 05-17093, 234 Fed. Appx. 440 (9th Cir. May 9, 2007), which concerned the


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project in its original form (the “East Fork I Project”). On April 9, 2008, the Forest

Service issued a Decision Notice and Finding of No Significant Impact for the East

Fork II Project.

      II.      Standard of Review

      A district court’s decision to grant or deny summary judgment is reviewed

de novo. See Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th

Cir. 2001). Conservation Congress’s NFMA and NEPA challenges are reviewed

under the Administrative Procedure Act (“APA”). See The Lands Council v.

McNair, 537 F.3d 981, 987 (9th Cir. 2008) (“Lands Council II”). Under the APA,

an agency action may be held unlawful and set aside if “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A).

      III.     Analysis

               A.   Conservation Congress’s NFMA Challenge Regarding

                    Pacific Fisher

      NFMA imposes a substantive duty “to provide for diversity of plant and

animal communities,” 16 U.S.C. § 1604(g)(3)(B), and this “duty to maintain viable

populations ‘applies with special force to “sensitive” species.’” Ecology Ctr., Inc.

v. Austin, 430 F.3d 1057, 1068 (9th Cir. 2005), overruled on other grounds, Lands


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Council II, 537 F.3d at 990. The Pacific fisher is a furbearing mammal, which is

designated as a “sensitive” species in Forest Service Region 5. To manage for

“diversity,” the STNF’s Land and Resource Management Plan (“LRMP”) provides

that “management indicators will be managed to average moderate levels of habitat

capability models.” The LRMP sets forth a habitat capability model (“HCM”) for

the Pacific fisher. The LRMP also sets forth a “Monitoring Action Plan” for the

Pacific fisher that requires the Forest Service to “[d]etermine population and

habitat trends within designated fisher . . . habitat.” The LRMP’s Monitoring

Action Plan allows for “field review of project planning using habitat capability

models.”

      Conservation Congress argues that NFMA and the LRMP require the Forest

Service to directly monitor Pacific fisher populations in addition to fisher habitat.

We disagree. The Ninth Circuit has “repeatedly approved ‘the Forest Service’s use

of the amount of suitable habitat for a particular species as a proxy for the viability

of that species,’” and its use of “‘habitat as a proxy to measure a species’

population.’” Ecology Ctr. v. Castaneda, 574 F.3d 652, 664 (9th Cir. 2009)

(quoting Lands Council II, 537 F.3d at 996 & n.10).

      Conservation Congress argues that the Forest Service failed to disclose how

much habitat will be degraded from high- to moderate-capability fisher habitat as a


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result of reducing crown cover below the 70% required for high-capability fisher

habitat. The Forest Service responds, correctly, that there is no requirement to

manage to high capability. The LRMP only requires management “to average

moderate levels of habitat capability models.” The Pacific Fisher Addendum,

which the Forest Service considered as part of its environmental assessment of the

Project, found that “[t]here is no specific evidence that changes in canopy closure,

while retaining key habitat components such as large trees, would cause significant

scale or intensity changes in fisher behavior,” and that “[t]he thinning treatments

would change vegetation, though these changes in vegetation would not

significantly alter habitat for fisher.” Based on these findings, the Pacific Fisher

Addendum found that “there is no change in the population trend.” Conservation

Congress has failed to demonstrate that these findings are arbitrary and capricious.

      Conservation Congress argues that the Project will “eliminate the suitability”

of fisher habitat in Riparian Reserves as a result of logging to within 50 feet of the

high water mark, leaving only a 100-foot riparian travel corridor for the Pacific

fisher. Conservation Congress correctly points out that the fisher HCM provides

that moderate-capability fisher habitat requires a 300- to 600-foot riparian travel

corridor. Conservation Congress has failed, however, to support its assumption

that forest thinning will eliminate the suitability of the habitat to function as a


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riparian travel corridor. Moreover, as noted in the Pacific Fisher Addendum, only

74 acres of Riparian Reserves (< 1% of the capable fisher habitat in the assessment

area) will be thinned, and these acres are associated only with “intermittent and

ephemeral streams.” Riparian travel corridors associated with perennial streams

will be undisturbed by the Project. The EA concluded that “[b]ecause fisher are

highly mobile, the project is of small scale and not proposed in primary travel

corridors . . . , and the occurrence of suitable habitat surrounding project units,

disturbance-related effects are likely to be minor.” Conservation Congress has

failed to demonstrate that these findings are arbitrary and capricious.

Conservation Congress argues that the Forest Service’s reliance on the availability

of oak hardwoods in evaluating the suitability of post-Project fisher habitat is

misplaced because only low-capability fisher habitat lists hardwoods. This

argument fails because, as noted in the fisher HCM, both high- and moderate-

capability habitats include “Montane Hardwood Conifer” and “Montane Riparian.”

Furthermore, deciduous trees (such as oak hardwoods) may comprise up to 50% of

the tree canopy for high-capability fisher habitat, and up to 75% of the tree canopy

for moderate-capability fisher habitat.

      Conservation Congress argues that the Forest Service failed to analyze how

much suitable fisher habitat would remain in the Project area after the Project was


                                            6                                      09-16182
completed. The EA, however, classified about two-thirds of the acres in the

Project area as capable fisher habitat, using the fisher HCM, and found that

“current habitat capability levels . . . will not change.”

      Lastly, Conservation Congress argues the Forest Service improperly relied

on “anecdotal evidence” to satisfy its NFMA obligations. Conservation Congress

has failed to show that the Forest Service did not consider the best scientific data.

See Ecology Ctr. v. Castaneda, 574 F.3d at 659-60.

      B.     Conservation Congress’s NFMA Challenge Regarding

             Management Indicators

      Conservation Congress argues that the Forest Service’s use of habitat

components to monitor management indicator assemblages violates NFMA’s

“diversity” requirement, 16 U.S.C. § 1604(g)(3)(B), and the LRMP’s requirement

to monitor the impacts of site-specific projects on management indicator species.

Conservation Congress’s central complaint is that the Forest Service failed to

survey for management indicator species in the Project area. This argument fails

because the LRMP does not identify any management indicator species. Although

the LRMP “recommends for monitoring” twenty-two species “that are highly

associated with the habitats and habitat components on the Shasta-Trinity National

Forests,” the LRMP does not label these species as “management indicator


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species.” Instead, the LRMP identifies nine “wildlife assemblages” of

“management indicators,” which the Forest Service refers to as “management

indicator assemblages.” The LRMP allows the Forest Service to use “habitat

components to represent the assemblages.” NFMA does not require the Forest

Service to verify its prediction regarding the effect of the East Fork II Project on

the management indicator assemblages with “observation or on-the-ground

analysis.” See Lands Council II, 537 F.3d at 990. The district court properly held

that the Forest Service complied with NFMA in its analysis of management

indicator assemblages.

      C.     Conservation Congress’s NEPA Challenge to the Environmental

             Assessment

      Conservation Congress argues that the Forest Service violated NEPA by not

adequately disclosing the Project’s impacts on several sensitive, threatened and

endangered species and on water quality in the East Fork II EA. The Forest

Service conducted a thorough analysis of the impacts of the Project on the

Northern Spotted Owl and disclosed “resource protection measures” to minimize

the impacts. We reject Conservation Congress’s “cumulative impacts” and

“activity centers” arguments with respect to the Northern Spotted Owl. Regarding

the Pacific fisher and other sensitive species, Conservation Congress has failed to


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identify any specific deficiencies in the Forest Service’s analyses. Instead,

Conservation Congress argues that the Forest Service violated NEPA by not

monitoring the fisher or other sensitive species. NEPA is a procedural statute, and

Conservation Congress has failed to provide any legal authority that would impose

a duty on the Forest Service under NEPA to monitor species populations.

Conservation Congress asserts that the EA fails to adequately disclose impacts on

coho and Chinook salmon without identifying any specific deficiencies in the

Forest Service’s analyses. As far as water quality is concerned, the Forest Service

complied with NEPA by completing a Cumulative Watershed Effects analysis and

obtaining an analysis by a geologist. We reject Conservation Congress’s argument

that the Forest Service violated NEPA by not following all of the recommendations

set forth in the Watershed Analysis. The EA adequately disclosed impacts

resulting from increased sediment yield and adequately addressed how the

proposed forest thinning in Riparian Reserves will attain the Aquatic Conservation

Strategy objectives.




      D.     Conservation Congress’s NEPA Challenge Regarding an

             Environmental Impact Statement




                                          9                                     09-16182
      Conservation Congress argues that the Forest Service violated NEPA by not

preparing an Environmental Impact Statement (“EIS”). Conservation Congress has

failed “to raise substantial questions” that the Project may significantly affect the

Pacific fisher, the Northern Spotted Owl, salmon and fish habitat, and water

quality. See Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,

1212 (9th Cir. 1998). Conservation Congress has failed to demonstrate that the

Forest Service’s proxy on proxy approach to monitoring the Pacific fisher

translates into “highly uncertain” effects. See Lands Council II, 537 F.3d at 996-

97 (“[T]he Forest Service’s assumption that maintaining acreage necessary for

survival would ensure a species’ survival” has been held to be “eminently

reasonable.”). We give the Forest Service “great deference as it made a scientific

prediction within the scope of its technical expertise.” See Ctr. for Biological

Diversity v. Kempthorne, 588 F.3d 701, 712 (9th Cir. 2009). Conservation

Congress has failed to demonstrate that the Project may significantly affect water

quality as a result of the reduced Watershed Condition Class rating for the Dark

Canyon subwatershed in light of the short-term nature of this impact.

Conservation Congress has “cherry pick[ed] information and data out of the

administrative record” to support its position, but this “does not mean that a project

is highly controversial or highly uncertain.” See Native Ecosystems Council v.


                                           10                                    09-16182
U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005). Conservation Congress

waived its cumulative impacts argument by not raising the issue during the public

comment period and administrative appeals process. See Dep’t of Transp. v. Pub.

Citizen, 541 U.S. 752, 764-65 (2004); Barron v. Ashcroft, 358 F.3d 674, 677 (9th

Cir. 2004).

      E.      Conservation Congress’s NEPA Challenge Regarding A

              Supplemental Analysis

      Conservation Congress argues that the Forest Service violated NEPA by

failing to prepare a supplemental NEPA analysis based on the monitoring of

previously logged areas, and the November 2007 finding that two landings were

not draining properly and were concentrating runoff and delivering sediment to

Prospect Creek. Conservation Congress has failed to demonstrate that the

requirement to supplement applies to environmental assessments, and even if it

does, that the information presented constituted “significant new circumstances.”

See 40 C.F.R. § 1502.9(c)(1)(ii). The information was not significant because, as

the November 2007 study indicated, “[m]ost of the roads were properly shaped and

drained.” The information was not new because the EA analyzed the Project’s

effects as a result of increased erosion and sediment. The Forest Service’s decision




                                         11                                  09-16182
not to supplement the EA cannot be held to be a “clear error of judgment.” See

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).

      AFFIRMED.




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