                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 03 2012

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

                         FOR THE NINTH CIRCUIT

SHARON J. HAPNER; NATIVE                         No. 11-35791
ECOSYSTEMS COUNCIL; ALLIANCE
FOR THE WILD ROCKIES,                            D.C. No. 9:08-cv-00092-DWM

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

TOM TIDWELL, Regional Forester of
Region One of the United States Forest
Service; UNITED STATES FOREST
SERVICE, an agency of the United States
Department of Agriculture,

              Defendants - Appellees,

JANET G. HARTMAN; RONALD E.
HARTMAN,

              Intervenor-Defendants -
Appellees.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding
                          Submitted January 3, 2012 **
                                Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before:         W. FLETCHER and RAWLINSON, Circuit Judges, and LASNIK,
                District Judge.***

      Plaintiffs Sharon J. Hapner, Alliance for the Wild Rockies, and Native

Ecosystems Council (“Plaintiffs”) challenge the U.S. Forest Service’s Smith Creek

Vegetation Treatment Project (“the Project”) under the National Forest

Management Act (“NFMA”) and National Environmental Policy Act (“NEPA”).

In a prior opinion, we affirmed the district court’s grant of summary judgment in

the Service’s favor “in almost all respects.” Hapner v. Tidwell, 621 F.3d 1239,

1251 (9th Cir. 2010). Plaintiffs’ “single meritorious argument” was that the

Service violated NFMA by failing to ensure that the Project complied with an

elk-cover requirement contained in the Gallatin National Forest Plan (“the Plan”).

Id. at 1250-51. We remanded for the Service to remedy this error. Id. at 1251.

      On remand, the Service field tested and revised its methodology for

calculating elk cover and determined that the Project complied with the Plan’s

requirements. The district court held that the Service’s new elk cover analysis

complied with the Plan and granted the Service’s motion to dissolve the injunction

against the Project. We affirm.



          ***
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.

                                         2
      We review the validity of a district court’s order dissolving an injunction for

an abuse of discretion. N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 889 (9th Cir.

1992). We review the Service’s compliance with NFMA and NEPA under the

arbitrary and capricious standard of the Administrative Procedure Act (“APA”).

Hapner, 621 F.3d at 1244 (citing 5 U.S.C. § 706(2)(A)).

      In our prior opinion, we did not determine, as a factual matter, that the

logging project would reduce elk hiding cover to an amount below what the Plan

allowed. We simply concluded that the Service had not calculated elk cover

according to the definition in the Plan. As a result, the district court correctly held

that the Service, on remand, was free to recalculate elk cover without changing the

Project so long as its methodology complied with the Plan.

      We agree with the district court that the Service’s revised elk cover analysis

complied with the Plan. On remand, the Service conducted extensive field

sampling and concluded that tree stands with 40% or greater canopy cover

generated a result consistent with the Plan’s definition of hiding cover. The

Service also considered other methods of calculating hiding cover and gave a

reasoned explanation why it preferred the canopy cover method. The Service’s

explanation did not “run[] counter to the evidence,” nor was it “so implausible that

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


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

quotation marks omitted).

      Similarly, the Service’s revised baseline for calculating how much elk cover

the Project would maintain is a reasonable interpretation of the relevant Plan

provision. The Plan requires that the Service maintain “at least two thirds of the

hiding cover associated with key habitat components over time.” (Emphasis

added). This phrase supports the Service’s view that the proper baseline does not

include areas that are naturally open and entirely lack the capability to provide

hiding cover now or in the future. Moreover, the revised baseline avoids the major

problem we identified with the Service’s previous interpretation because it no

longer “allow[s] iterative Service actions to whittle elk cover down to nearly

nothing.” Hapner, 621 F.3d at 1251.

      Finally, we agree with the district court that Plaintiffs could not raise new

NEPA claims on remand because we remanded for the limited purpose of allowing

the Service to remedy its elk cover analysis.

      We lift the stay pending resolution of the appeal that we granted on

November 30, 2011.

      AFFIRMED.




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