Alliance for the Wild Rockies v. Paul Bradford, et al

Filing

FILED OPINION (WILLIAM A. FLETCHER, RAYMOND C. FISHER and N. RANDY SMITH) AFFIRMED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [10437331]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD
ROCKIES,
Plaintiff-Appellant,

No. 14-35786
D.C. No.
9:13-cv-00199-DLC

v.
PAUL BRADFORD, Kootenai
National Forest Supervisor;
FAYE KRUEGER, Regional
Forester of Region One of the
U.S. Forest Service; UNITED
STATES FOREST SERVICE, an
agency of the U.S. Department
of Agriculture; U.S. FISH AND
WILDLIFE SERVICE, an agency of
the U.S. Department of Interior,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted October 7, 2016
Seattle, Washington
Filed May 17, 2017

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ALLIANCE FOR THE WILD ROCKIES V. BRADFORD
Before: William A. Fletcher, Raymond C. Fisher,
and N. Randy Smith, Circuit Judges.
Opinion by Judge W. Fletcher

SUMMARY*

Environmental Law
The panel affirmed the district court’s judgment in favor
of federal officials and agencies in an action brought by
Alliance for the Wild Rockies under federal environmental
laws seeking to enjoin the U.S. Forest Service from
constructing 4.7 miles of new roads in connection with a
Forest Service project in the Kootenai National Forest.
In 2011, the Kootenai National Forest Plan was amended
by the Forest Plan Amendments for Motorized Access
Management within the Selkirk and Cabinet-Yaak Grizzly
Bear Recovery Zones (“Access Amendments”). Standard
II(B) of the Access Amendments prohibited any net
permanent increase in certain permanent roads.
The panel held that the 4.7 miles of roads at issue would
not violate the Kootenai National Forest Plan because they
would be blocked to prevent motorized access upon
completion of the Pilgrim Creek Timber Sale Project. The
panel held that it was not arbitrary and capricious for the
Forest Service to conclude that roads closed to motorized
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ALLIANCE FOR THE WILD ROCKIES V. BRADFORD

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access by berms or barriers do not count toward “linear miles
of total roads” under Standard II(B) of the Access
Amendments.
The panel concluded that because the Forest Service’s
interpretation of its own Forest Plan was reasonable, Alliance
for the Wild Rockies could not prevail on its National Forest
Management Act, Endangered Species Act, and National
Environmental Policy Act claims.

COUNSEL
Timothy M. Bechtold (argued), Bechtold Law Firm,
Missoula, Montana, for Plaintiff-Appellant.
Thekla Hansen-Young (argued), John P. Tustin, Robert P.
Stockman, and Andrew C. Mergen, Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Dana Jacobsen, Office of the Regional
Solicitor, United States Department of the Interior, Denver,
Colorado; Alan Campbell, Office of the General Counsel,
United States Department of Agriculture, Missoula, Montana;
for Defendants-Appellees.
Julie A. Weis, Haglund Kelley LLP, Portland, Oregon, for
Amicus Curiae Kootenai Tribe of Idaho.

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ALLIANCE FOR THE WILD ROCKIES V. BRADFORD
OPINION

W. FLETCHER, Circuit Judge:
Alliance for the Wild Rockies (“Alliance”) brings suit
under the National Forest Management Act (“NFMA”), the
Endangered Species Act (“ESA”), and the National
Environmental Policy Act (“NEPA”) to enjoin the U.S. Forest
Service (“Forest Service”) from constructing 4.7 miles of new
roads in connection with a Forest Service project in the
Kootenai National Forest. Alliance’s claims are premised on
the argument that the new roads will create a “net permanent
increase[] in linear miles of total roads” in violation of the
Access Amendments to the Kootenai National Forest Plan
(“Forest Plan”). We hold that the 4.7 miles of roads at issue
will not violate the Forest Plan because they will be blocked
to prevent motorized access upon completion of the project.
I. Background
In 2013, the Forest Service approved the Pilgrim Creek
Timber Sale Project (“Pilgrim Project” or “Project”) in
Montana’s Kootenai National Forest. The purpose of the
Project is to “maintain and increase forest resilience to
insects, disease and disturbance by increasing age class
diversity in lodgepole pine stands, improving growing
conditions and favoring root disease resistant species . . . ,
and improving big game forage production while providing
for the local economy through commercial timber harvest.”
The Project requires the construction of approximately
4.7 miles of new roads, to be used by Forest Service
personnel and government contractors during Project
implementation. Upon completion of the Project, the Forest

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Service will close the new roads to all motorized travel with
“an earthen barrier, rocks, or other barrier.”
The Pilgrim Project implicates several statutes. NFMA
is implicated because it requires that the Project be consistent
with the Kootenai Forest Plan. See 16 U.S.C. § 1604(i);
Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056
(9th Cir. 2012) (“NFMA requires that the proposed sitespecific actions be consistent with the governing Forest
Plan.”). The ESA is implicated because the Forest Plan
incorporates portions of the Grizzly Bear Recovery Plan,
developed after consultation with the U.S. Fish and Wildlife
Service (“Fish and Wildlife Service”). See 16 U.S.C.
§ 1536(a) (setting forth consultation requirements when a
threatened species is present in a project area). Finally,
NEPA is implicated because it requires the preparation of an
Environmental Impact Statement (“EIS”) for agency actions
“significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C).
In 1975, the Fish and Wildlife Service listed the grizzly
bear as “threatened” under the ESA, and in 1993 it
promulgated a revised Grizzly Bear Recovery Plan
(“Recovery Plan”). The Recovery Plan designates as
“recovery zones” areas in the Kootenai National Forest in
which there is a significant likelihood of grizzly bear
presence. The Recovery Plan prescribes forest management
measures within these zones to protect grizzly bears and to
facilitate their survival and reproduction. The Recovery Plan
also designates areas outside the recovery zones that grizzly
bears sometimes frequent, called “Bears Outside of Recovery
Zones” or “BORZ polygons.” The Recovery Plan prescribes
less protective management measures in BORZ polygons

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ALLIANCE FOR THE WILD ROCKIES V. BRADFORD

than in recovery zones. The Pilgrim Project is located in the
Clark Fork BORZ polygon of the Kootenai National Forest.
In 2011, the Kootenai Forest Plan was amended by the
Forest Plan Amendments for Motorized Access Management
within the Selkirk and Cabinet-Yaak Grizzly Bear Recovery
Zones (“Access Amendments”). The Record of Decision
(“ROD”) for the Access Amendments established motorizedvehicle access restrictions in recovery zones and BORZ
polygons. In developing the Access Amendments, the Forest
Service consulted with the Fish and Wildlife Service under
Section 7(a) of the ESA. See 16 U.S.C. § 1536(a); 50 C.F.R.
§ 402.14(a). As part of that process, the Fish and Wildlife
Service issued a Biological Opinion containing an Incidental
Take Statement. See 16 U.S.C. § 1532(19) (defining “take”);
see also Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife,
273 F.3d 1229, 1242 (9th Cir. 2001) (explaining 50 C.F.R.
§ 402.14(g)(7), (i)(1), which require the Fish and Wildlife
Service to issue incidental take statements in certain
circumstances). The Statement permitted incidental taking of
grizzly bears so long as the total linear miles of roads in each
BORZ polygon remained below a baseline limit specific to
that BORZ polygon: “In the BORZ, permanent increases in
linear miles of open road and/or permanent increases in linear
miles of total road beyond the standards in Table 4 of this
biological opinion will result in levels of take that exceed the
amount of incidental take we anticipate here.” In compliance
with the Incidental Take Statement, Standard II(B) of the
Access Amendments prohibits any net permanent increase in
permanent roads in a BORZ polygon. The standard specified
in Table 4 for the Clark Fork BORZ polygon is 256.1 “total
linear miles of roads.”

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In February 2013, in connection with the preparation of
the Project’s EIS, the Forest Service asked the Fish and
Wildlife Service to review the proposed Project. The Fish
and Wildlife Service responded by letter in March 2013,
writing that “the proposed action is not likely to adversely
affect the threatened grizzly bear . . . in ways other than those
analyzed in the 2011 biological opinion [prepared in
connection with the Access Amendments].” The letter
described the proposed new roads as follows:
“Approximately 4.7 miles of new, permanent road would be
constructed and closed with a permanent closure device (earth
berm, rocks, reclamation) post-harvest.” The Fish and
Wildlife Service concluded, “The proposed project would be
in compliance with the standards provided in the Access
Amendment[s].”
In May 2013, the Forest Service issued an ROD choosing
Alternative 3 of the EIS. The ROD provided:
Under Alternative 3, [there will be] 4.7 miles
of new road construction . . . . Access to new
construction . . . would be controlled post
treatment by gates or other closure devices.
These closure devices allow for motorized
access sometime in the future, which may
help fire suppression and stand-tending
operations such as pre-commercial thinning.
II. Prior Proceedings
Alliance brought suit in October 2013, challenging the
Pilgrim Project under NFMA, the ESA, and NEPA. Alliance
contended, inter alia, that the Project would create a net
increase in linear miles of total roads in violation of Standard

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ALLIANCE FOR THE WILD ROCKIES V. BRADFORD

II(B) of the Access Amendments. Alliance contended that
the Project would therefore (1) violate NFMA by failing to
comply with the Access Amendments to the Forest Plan;
(2) violate the ESA by failing to comply with the Incidental
Take Statement’s mandate incorporated into the Access
Amendments; and (3) violate NEPA by incorrectly stating in
the EIS and ROD that the Project will comply with the
Access Amendments.
Focusing on the above-quoted statement from the 2013
ROD, the district court found that the ROD “indicates that . . .
upon completion of Project activities the new roads will not
be appropriately closed with a permanent closure device as
required by Standard II(B).” The court held that, as approved
in the ROD, the Project violated NFMA, the ESA, and
NEPA. It enjoined the Project pending preparation of a
supplemental EIS.
In July 2014, the Forest Service issued a
Clarification/Amendment of the ROD.
The
Clarification/Amendment stated, “It was, and remains, our
intent that all new permanent roads constructed for the project
will be closed with a permanent closure device consistent
with the Grizzly Bear Access Amendment and Kootenai
Forest Plan.” The Clarification/Amendment amended several
sections of the 2013 ROD to make this intent clear. For
example, the following sentences were added to the ROD:
(1) “All new permanent road segments constructed for the
project will be made impassable to motorized vehicles by
installation of an earthen barrier, rocks, or other barrier.”
(2) “After completion of ha[r]vest-related activities, . . . new
roads constructed for the project will be made impassable to
motorized vehicles through installation of an earthen barrier,
rocks, or other barrier.”

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After issuing the Clarification/Amendment, the Forest
Service moved to lift the district court’s injunction. The court
granted the motion, holding that the Clarification/Amendment
made clear that the Pilgrim Project will comply with Standard
II(B) of the Access Amendments.
Alliance appeals. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
III. Standard of Review
We review de novo the district court’s decision to grant
summary judgment. Lands Council v. Powell, 395 F.3d 1019,
1026 (9th Cir. 2005). We review the Forest Service’s
compliance with NFMA, the ESA, and NEPA under the
Administrative Procedure Act (“APA”). Great Old Broads
for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013);
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d
581, 601 (9th Cir. 2014). We may set aside an agency action
under the APA if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). “[T]he Forest Service’s interpretation
and implementation of its own forest plan is entitled to
substantial deference.” Native Ecosystems Council, 697 F.3d
at 1056. In the face of ambiguity, we “defer to the Forest
Service’s reasonable interpretation of the Forest Plan’s
requirements.” Ecology Center v. Castaneda, 574 F.3d 652,
661 (9th Cir. 2009).
IV. Discussion
The sole question presented on appeal is whether the
barriered 4.7 miles of new roads count toward “linear miles
of total roads” under Standard II(B) of the Access

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ALLIANCE FOR THE WILD ROCKIES V. BRADFORD

Amendments. If they count, Alliance prevails on its claims
under NMFA, the ESA, and NEPA. If they do not, Alliance
loses on all these claims.
Alliance does not dispute that the Forest Service has
committed to use a berm, barrier, or similar closure device to
close the 4.7 miles of new roads to motorized access after the
Project is completed. However, it argues that roads closed in
this manner count as part of the linear miles of total roads.
Thus, according to Alliance, the newly constructed roads will
result in a “net permanent increase[] in linear miles of total
roads” in violation of Standard II(B).
In relevant part, Standard II(B) provides:
B. The Forest shall ensure no net permanent
increases in linear miles of total roads in any
individual BORZ area above the baseline
conditions identified in Table 16 [identical to
Table 4 in the Incidental Take Statement].
...
1. Temporary increases (not off-set) in
linear miles of total roads are acceptable
under the following conditions:
a. Newly constructed roads would be
effectively gated and would be
restricted with a CFR closure
clarifying they are not open for public
use.

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b. These roads shall be closed
immediately upon completion of
activities requiring use of the road
. . . . Roads must be closed with a
berm, guardrail or other measure that
effectively prevents motorized access,
and put in a condition such that a need
for motorized access for maintenance
is not anticipated for at least 10 years.
c.
Upon completion of a land
management project, linear miles of
total roads would be returned to or
below the baseline levels contained in
Table 16.
We hold that it was not arbitrary and capricious for the
Forest Service to conclude that roads closed to motorized
access by berms or barriers do not count toward “linear miles
of total roads.”
Standard II(B) expressly permits
“[t]emporary increases in linear miles of total roads” so long
as the roads are “closed immediately upon completion of
activities” with a “berm, guardrail or other measure that
effectively prevents motorized access.” This language
strongly suggests that roads closed in such a manner do not
fall within the “linear miles of total roads” metric. Alliance
has proffered arguments that support a different reading of
Standard II(B), but none renders the Forest Service’s
interpretation unreasonable. See Ecology Center, 574 F.3d at
661 (explaining that, in the face of ambiguity, “we defer to
the Forest Service’s reasonable interpretation of the Forest
Plan’s requirements.”); Native Ecosystems Council, 697 F.3d
at 1056 (“[T]he Forest Service’s interpretation and

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ALLIANCE FOR THE WILD ROCKIES V. BRADFORD

implementation of its own forest plan is entitled to substantial
deference.”).
At oral argument, counsel for Alliance suggested that the
Forest Service’s contemplated berms will not effectively
prevent motorized use of the new roads because all-terrain
vehicles can circumvent the berms and access the roads.
Standard II(B) permits temporary increases in linear miles of
total roads only if the roads are later “closed with a berm,
guardrail or other measure that effectively prevents motorized
access.” (Emphasis added.) Alliance has not pointed to any
evidence to refute the Forest Service’s assertion that the berm
will effectively prevent motorized use. We therefore take the
Forest Service at its word, with the understanding that any
closure that fails to effectively prevent motorized access also
fails to comply with Standard II(B) of the Access
Amendments.
Alliance’s earlier challenge to the Pilgrim Project, as
approved by the ROD, was properly sustained by the district
court because the ROD required closure only by gates, and
allowed access to the road for maintenance and other
purposes. Such closure clearly did not comply with the
manner and degree of closure required by Standard II(B).
However, the Forest Service brought the Project
into compliance with Standard II(B) when its
Clarification/Amendment amended the ROD to provide
that closure of the 4.7 linear miles of new road would be
done as required by Standard II(B).

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V. Conclusion
Because the Forest Service’s interpretation of its own
Forest Plan was reasonable, Alliance cannot prevail on its
NFMA, ESA, and NEPA claims.
AFFIRMED.