FILED

NOT FOR PUBLICATION APR 20 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SODA MOUNTAIN WILDERNESS No. 13-35438 COUNCIL; et al., D.C. No. 1:12-cv-00434-CL Plaintiffs - Appellants,

v. MEMORANDUM*

UNITED STATES BUREAU OF LAND

MANAGEMENT,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted March 2, 2015 Portland Oregon

Before: PAEZ and IKUTA, Circuit Judges and TIGAR,** District Judge.

Soda Mountain Wilderness Council and several other environmental

organizations (collectively “Soda Mountain”) appeal the district court’s grant of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jon S. Tigar, District Judge for the U.S. District Court for the Northern District of California, sitting by designation. summary judgment in favor of the Bureau of Land Management (“BLM”). Soda

Mountain challenges the validity of the BLM’s Environmental Assessment (“EA”),

and Finding of No Significant Impact (“FONSI”), for the proposed Sampson Cove

Forest Management Project (the “Project”). Soda Mountain alleges that the BLM

committed several violations of the National Environmental Policy Act (“NEPA”),

42 U.S.C. §§ 4321-4370(d), and the Federal Land Policy Management Act

(“FLPMA”), 43 U.S.C. § 1701 et seq. We have jurisdiction under 28 U.S.C. §

1291, and we affirm in part and reverse in part.

1. We review de novo a district court’s ruling on cross motions for summary

judgment. Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 970

(9th Cir. 2011). Judicial review of an agency’s compliance with NEPA and

FLPMA is governed by the Administrative Procedures Act, 5 U.S.C. §§ 701-06;

Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 554 (9th Cir. 2006).

Agency decisions may be set aside only if they are “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” Id. (quoting 5 U.S.C. §

706(2)(A)). “Agency action is valid if the agency considered the relevant factors

and articulated a rational connection between the facts found and the choices

made.” Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010) (internal

quotation marks omitted).

2 2. We agree with the district court that the BLM adequately assessed the

Project area’s wilderness characteristics. The EA relies on a 2006 wilderness

survey prepared by the BLM, which addressed the definitional elements of

wilderness in the Wilderness Act, 16 U.S.C. § 1131(c). The BLM’s decision to

rely on a report that was four years old when it issued the EA was reasonable.

Moreover, the BLM’s assessment of wilderness characteristics as described in the

2006 survey warrants our deference. See Native Ecosystems Council v. Weldon,

697 F.3d 1043, 1053 (9th Cir. 2012). In determining that the Project would not

impact the area’s wilderness characteristics, the BLM’s decision was neither

arbitrary nor capricious.

3. The BLM’s decision not to analyze the effects of the Project on the potential

expansion of the Cascade Siskiyou National Monument did not violate NEPA. An

EA is required to consider the “direct, indirect, and cumulative impacts” of an

action on the environment. Ctr. for Envtl. Law & Policy v. U.S. Bureau of

Reclamation (“Envtl. Law”), 655 F.3d 1000, 1006 (9th Cir. 2011). Here,

monument expansion was a “remote and highly speculative consequence[]” that

did not warrant analysis in the EA. See Ground Zero Ctr. for Non-Violent Action

v. U.S. Dep’t of the Navy, 383 F.3d 1082, 1090 (9th Cir. 2004). The district court

properly granted summary judgment on this issue.

3 4. When determining whether an action requires an Environmental Impact

Statement (“EIS”), an agency must consider “[w]hether the action is related to

other actions with individually insignificant but cumulatively significant impacts.”

Envtl. Protection Info. Ctr. v. U.S. Forest Serv. (“EPIC”), 451 F.3d 1105, 1014

(9th Cir. 2006) (quoting 40 C.F.R. § 1508.27(b)(7)). “Projects that are ‘reasonably

foreseeable’ should be included in the cumulative effects analysis.” Id. (quoting 40

C.F.R. § 1508.7). However, “projects need not be finalized before they are

reasonably foreseeable.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668

F.3d 1167, 1178 (9th Cir. 2011).

5. Soda Mountain argues that the BLM violated NEPA because the EA’s

cumulative impact analysis did not include any discussion of the Cottonwood

Forest Management project. As the record reflects, this project was reasonably

foreseeable at the time the BLM issued the EA for the Project. See id. Six months

before the BLM issued the Project’s EA, an interdisciplinary team (“IDT”) decided

to “spread the due dates out more for the 2011 timber sales,” including changing a

“specialist due date” for the Cottonwood EA. This note indicates that the

Cottonwood project was certain to occur. Moreover, less than one month before

the BLM issued the Project’s EA, many elements of the Cottonwood project were

already firmly established. For example, a team meeting document includes the

4 note that “[s]ilviculture prescriptions will be similar to” another project’s “with a

disease management component.” The document also states that determinations

regarding Northern Spotted Owl habitats would be complete within the next

month. Given the focus on details, implementation of the Cottonwood project was

not in question. Indeed, just two months after the BLM issued the Project’s EA, it

notified the public of the Cottonwood project. This timing is consistent with the

January and June 2010 IDT notes, and leaves little doubt that the Cottonwood

project was reasonably foreseeable in July 2010. Thus, we conclude that the

record demonstrates that the Cottonwood project was reasonably foreseeable.

Accordingly, we vacate the district court’s ruling on this issue and direct the court

to remand to the BLM for further consideration of its cumulative impact analysis

regarding the Cottonwood project, and whether that analysis affects its decision not

to issue an EIS.

6. Soda Mountain also argues that the EA’s cumulative impact analysis of the

Shale City project was inadequate. We disagree. The cumulative impact analysis

of the Shale City project was sufficient under NEPA because the EA contained

“some quantified or detailed information.” Kern v. U.S. Bureau of Land Mgmt.,

284 F.3d 1062, 1075 (9th Cir. 2002). In particular, the EA noted that the Shale

City project was of limited size, no new roads would be built in the project area,

5 the project was not expected to affect special status wildlife species, and no direct

or indirect effects to aquatic habitat were anticipated as a result of the project.

7. The BLM did not violate NEPA by failing to include in the EA a cumulative

impact analysis of the Swinning Project (formerly known as Plateau Thin). As the

government argues, the record reflects that this project falls outside the Project’s

cumulative impacts analysis area. Because Soda Mountain does not argue that the

BLM’s determination of this area was arbitrary, the BLM was under no obligation

to address the cumulative impacts of the Shale City project. See Kleppe v. Sierra

Club, 427 U.S. 390, 412 (1976).

8. In the district court, Soda Mountain also argued that the EA’s cumulative

impact analysis was insufficient because it did not address the impact of grazing

allotment renewals in the Project area. The court, however, did not address the

issue. We therefore decline to address it. Instead, on remand, the district court

should address the issue in the first instance.

9. Soda Mountain also argues that the Project’s requirements for green tree

retention violate FLPMA because they are inconsistent with the governing RMP

and the Northwest Forest Plan (“NWFP”). See 43 C.F.R. § 1610.5-3; Or. Natural

Res. Council Fund v. Brong, 492 F.3d 1120, 1125 (9th Cir. 2007). We disagree.

As the government argues, the RMP provides an exception to the minimum

6 requirement of sixteen green trees per acre on matrix lands for units where disease

is a problem. The Project incorporates that exception in providing for six to eight

green trees in diseased units. The Project’s regeneration harvest units also comply

with the green tree retention requirements in the NWFP. Finally, even if there

were a potential FLPMA violation, that circumstance would not have resulted in a

NEPA violation because whether a proposed action threatens a violation of another

law is relevant to deciding whether to prepare an EIS, EPIC, 451 F.3d at 1014, not

whether an EA is sufficient.

10. The BLM sufficiently analyzed the Project’s potential impact on bat

habitats. Under NEPA, the EA was required to “briefly provide[] evidence and

analysis for an agency’s finding regarding an environmental impact,” not “compile

an exhaustive examination of each and every tangential event that potentially could

impact the local environment.” Tri-Valley CARES v. U.S. Dep’t of Energy, 671

F.3d 1113, 1129 (9th Cir. 2012) (emphasis omitted). The EA meets that standard

in assessing the Project’s potential impact on bat habitats.

11. Finally, Soda Mountain argues that the BLM should have prepared an EIS.

Under NEPA, a federal agency must prepare an EIS for any proposal for any major

federal action “significantly affecting the quality of the human environment.” 42

U.S.C. § 4332(C); Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387

7 F.3d 989, 993 (9th Cir. 2004). If the agency concludes there is no significant effect

after preparing an EA, it may issue a FONSI. Envtl. Law, 655 F.3d at 1005. That

finding obviates the need for an EIS. Id. In reviewing the decision not to prepare

an EIS under the arbitrary and capricious standard, we must ensure that the agency

has taken a “hard look” at the consequences of its proposed action. See Ctr. for

Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 636 (9th Cir. 2010).

Contrary to Soda Mountain’s arguments, the BLM did not fail to take a hard look

at the Sampson Cove project area’s “unique characteristics” or “highly

controversial” effects. 40 C.F.R. § 1508.27(b)(3)-(4).

12. The injunction previously issued by this court shall remain in effect pending

issuance of the mandate. On remand, Soda Mountain may apply to the district

court for further injunctive relief. The district court shall remand the record to the

BLM for further consideration of the cumulative impacts of the Cottonwood

project.

AFFIRMED in part; REVERSED in part; REMANDED.

The parties shall bear their own costs on appeal.

8

FILED

Soda Mountain Wilderness Council, et al. v. U.S. Bureau of Land Mgmt., No. 13- 35438 APR 20 2015

MOLLY C. DWYER, CLERK

IKUTA, Circuit Judge, concurring in part, dissenting in part: U.S. COURT OF APPEALS

Because the Cottonwood project was not a “reasonably foreseeable” future

action at the time the Bureau of Land Management (BLM) prepared the Sampson

Cove Project environmental analysis (EA), see 40 C.F.R. § 1508.7, I dissent from

the majority’s ruling on that issue.

We do not “require the government to do the impractical.” Envtl. Protection

Info. Ctr. (EPIC) v. U.S. Forest Serv., 451 F.3d 1005, 1014 (9th Cir. 2006)

(internal quotation marks omitted). If an agency lacks enough information about

the parameters of a possible future project to “permit meaningful consideration,” it

need not address the project in the EA. Id.

Here, the majority’s claim that the BLM had enough information about the

Cottonwood project rests on two slim reeds that do not bear the weight placed on

them. The majority says “an interdisciplinary team” made a decision about the

Cottonwood project “[s]ix months before the BLM issued the Project’s EA.” Maj.

at 4. But the record shows only an internal agenda entitled “Ashland RA ID Team

Meeting” dated January 27, 2010, which contains one cryptic sentence: “In order to

spread the due dates out more for the 2011 timber sales, we changed the specialist

due dates for Cottonwood EA to November 2, 2010; to February 15, 2011 for Rio Climax, and to June 1, 2011 for Sweeper.” That’s it. Nothing in this sentence

indicates the nature of the “specialist due date” for the Cottonwood EA, or what

the nature or parameters of the project might be.1

The majority’s only other support is an internal agenda for a “Cottonwood

IDT Meeting” dated June 30, 2010, with more shorthand entries that include no

information about the location or scope of the project. Based on this document, the

majority claims that “less than one month before the BLM issued the Project’s EA,

many elements of the Cottonwood project were already firmly established.” Maj.

at 4. But only a mind reader could figure that out. The majority points to an entry

stating, in full, “Silviculture prescriptions will be similar to Plateau Thin’s with a

disease management component.” But the next entry shows that even the

silviculture prescriptions had not been finalized: “Nate will need to do stand exams

to confirm and fine tune prescriptions and marking guidelines.” And the next

states: “Nate still needs to do field verification and stand exams field work this

summer in Cottonwood.” Further entries suggest that key issues were still under

“preliminary discussion.” For instance, with respect to recreation, the agenda

1 The majority states that this note indicates that the Cottonwood project was “certain to occur.” Maj. at 4. The question, however, is not whether a project is “certain to occur,” but rather whether there is enough information available about the project to permit meaningful consideration of its cumulative impacts. See EPIC, 451 F.3d at 1014.

2 states: “[w]inter rec trails - no winter hauling,” “PCT - no cut 100' buffer,” and

“[r]oad construction?” With respect to botany, the agenda states, “few issues,

south part may be FRGE habitat.”

To the extent we can read anything into the agenda, it establishes that the

Cottonwood project was too preliminary to be “reasonably foreseeable.” See 40

C.F.R. § 1508.7. Indeed, nothing in either agenda refutes the BLM’s assertion that,

at the time the Project EA was issued, the BLM had not yet determined where the

Cottonwood Project would be located in a 45,370 acre area. The agendas are so

lacking in specific information that had the BLM titled the agenda notes “Project

Periwinkle IDT Meeting,” there would have been nary a hint that these preliminary

discussions would eventually become the Cottonwood project. And other than this

agenda for an internal team meeting, there’s not a single piece of information about

the Cottonwood project in the record—not a single clue as to its location or scope.

We have held that a future project was “reasonably foreseeable” when the

project has been formally proposed, see Ctr. for Envtl. Law & Policy v. U.S.

Bureau of Reclamation, 655 F.3d 1000, 1010 (9th Cir. 2011) (“We have define[d]

. . . reasonably foreseeable action[s], for which cumulative impacts must be

analyzed, to include proposed actions.” (alterations in original) (internal quotation

marks omitted)), or when the agency issues “a press release and Notice of Intent,”

3 N. Alaska Envtl. Ctr v. Kempthorne, 457 F.3d 969, 980 (9th Cir. 2006); see also

Ctr. for Envtl. Law & Policy, 655 F.3d at 1010 (“[W]e have previously held that an

action is not too speculative to qualify as a proposed action when the agency issues

a notice of intent to prepare an EIS.” (internal quotation marks omitted)). But we

have never held that a possible future project, documented only in notes from an

internal meeting listing action items related to future development of the project,

was “reasonably foreseeable” and “not too speculative.” See Jones v. Nat’l Marine

Fisheries Serv., 741 F.3d 989, 1000 (9th Cir. 2013) (“For any project that is not yet

proposed, and is more remote in time, by contrast, a cumulative effects analysis

would be both speculative and premature.” (internal quotation marks omitted)).

Here, the BLM did not issue a notice of intent to prepare an EIS, and the agenda

notes that do exist “are speculative and have not been reduced to specific

proposals.” See id.; see also EPIC, 451 F.3d at 1014–15 (concluding that the

Forest Service properly excluded a future project from its cumulative impacts

analysis because the project was “in the initial planning stage” and the parameters

of the project, including “specifics of the units (size and treatment prescription),”

had not been identified at the time of the EA). Indeed, the BLM did not begin the

scoping process, see 40 C.F.R. § 1501.7 (explaining that “scoping” is the process

“for determining the scope of issues to be addressed and for identifying the

4 significant issues related to a proposed action”), for the Cottonwood project until

more than two months after the Sampson Cove EA was issued.

The plaintiffs have the burden of proving that the BLM acted arbitrarily in

failing to include the Cottonwood project in its cumulative impact analysis, and

absent a showing of arbitrary action, we must assume that the BLM has exercised

its discretion appropriately. See 5 U.S.C. § 706(2)(A); Kleppe v. Sierra Club, 427

U.S. 390, 412 (1976). Here, the two agendas at issue—the only evidence adduced

by the plaintiffs—fail to show that any of the significant parameters of the

Cottonwood project were known at the time of the Project EA. We should

therefore defer to the BLM’s assertion that at the time it prepared the Sampson

Cove EA, the Cottonwood project was not far enough along for it to be reasonably

foreseeable. See Kleppe, 427 U.S. at 412. We have no authority to fault an agency

for failing to consider the cumulative impacts of contemplated future projects

before there is an “actual plan or proposal that was sufficiently well-defined to

permit meaningful consideration” of the cumulative impact of the project. See

Jones, 741 F.3d at 1001 (internal quotation marks omitted).

Because the BLM appropriately excluded the Cottonwood project from its

cumulative impact analysis, I would affirm the district court.

5