NOT FOR PUBLICATION
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,
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
Standard of Review
A district court's decision to grant or deny summary judgment is reviewed de novo.
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.'"
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.'"
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 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 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 moderatecapability 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 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.
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 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."
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 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.
Conservation Congress's NEPA Challenge Regarding an Environmental Impact Statement
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.
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."