                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             MAY 04 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CONSERVATION CONGRESS,                           No.   15-17207

              Plaintiff-Appellant,               D.C. No.
                                                 2:11-cv-02250-MCE-CMK
 v.

SHARON HEYWOOD; UNITED                           MEMORANDUM*
STATES FOREST SERVICE; UNITED
STATES FISH AND WILDLIFE
SERVICE,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                       Argued and Submitted April 17, 2017
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and DRAIN,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
      This case concerns the Gemmill Thin Project to thin trees and undergrowth

from portions of the Shasta-Trinity National Forest that contains substantial habitat

for the Northern Spotted Owl. Conservation Congress filed a broad-gauged action

in district court opposing the project as violative of several federal statutes. The

district court granted summary judgment in favor of the defendant government

agencies—the U.S. Forest Service and the Fish and Wildlife Service—and the

supervisor of the Shasta-Trinity National Forest. Conservation Congress appeals

only the dismissal of the claim that the U.S. Forest Service violated the National

Forest Management Act, 16 U.S.C. § 1604.

      Specifically, Conservation Congress claims that the Gemmill Thin Project

violates the Land and Resource Management Plan (“LRMP”) for the Shasta-Trinity

National Forest. The LRMP requires any project to be “consistent” with the

Revised Recovery Plan for the Northern Spotted Owl.

      The Revised Recovery Plan is cast in terms of recommendations and

guidelines for the protection of the spotted owl, not of mandatory directives to be

strictly followed by forest managers like the U.S. Forest Service. The argument of

Conservation Congress appears to be that, by requiring the Gemmill Thin Project

to be “consistent” with the recovery plan, the recommendations of the recovery

plan became mandatory. Conservation Congress relies on Ecology Ctr., Inc. v.


                                           2
Austin, where we held that an agency that treats advisory standards as binding

cannot later regard them as merely advisory, see 430 F.3d 1057, 1069 (9th Cir.

2005) overruled on other grounds by The Lands Council v. McNair, 537 F.3d 981

(9th Cir. 2008).

      Here, the U.S. Forest Service did not treat the Revised Recovery Plan’s

recommendations as binding. Rather, it stated that the Gemmil Thin Project was

“consistent with” the Revised Recovery Plan and the various recommended actions

contained therein. This case is controlled by Ecology Center v. Castaneda,

recognizing that non-binding recommendations do not become mandatory by

virtue of being referenced in planning documents. See 574 F.3d 652, 660–61 (9th

Cir. 2009). Because the Revised Recovery Plan for the Northern Spotted Owl is

framed in non-binding terms, its recommendations did not become mandatory

upon being referenced in the Forest Plan.

      AFFIRMED.




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