NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 29 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILDLANDS DEFENSE; et al., No. 18-35400

Plaintiffs-Appellants, D.C. No. 1:17-cv-00408-BLW

v.

MEMORANDUM*

CECILIA SEESHOLTZ, In her official capacity as Boise National Forest Supervisor; et al.,

Defendants-Appellees,

and

BOISE FOREST COALITION, an unincorporated Idaho association; BOISE COUNTY, a political subdivision of the State of Idaho,

Intervenor-Defendants- Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted November 7, 2018 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON, ** District Judge.

Plaintiffs Wildlands Defense, Alliance for the Wild Rockies, and Native

Ecosystems Council appeal the district court’s denial of a preliminary injunction.

Plaintiffs sought to enjoin the operation of two post-fire projects (the “Projects”) in

the Boise National Forest (the “Forest”). We affirm.

“A plaintiff seeking a preliminary injunction must establish that he is likely

to succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008). “[A] stronger showing of one element may offset a weaker

showing of another”; thus, a preliminary injunction may “issue where the

likelihood of success is such that ‘serious questions going to the merits [are] raised

and the balance of hardships tips sharply in [plaintiff’s] favor.’” All. for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (third alteration in

original) (quoting Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d

810, 813 (9th Cir. 2003)).

The district court concluded that Plaintiffs had shown neither a likelihood of

** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation.

2 success nor serious questions going to the merits of their claims under the National

Environmental Policy Act (“NEPA”) or the Endangered Species Act (“ESA”).

Where a district court denies a preliminary injunction based on this first prong of

the preliminary injunction analysis, we review the district court’s decision de novo.

Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 980 (9th Cir. 1993).

Challenges to agency action under NEPA and the ESA are reviewed under

the arbitrary and capricious standard. San Luis & Delta-Mendota Water Auth. v.

Jewell, 747 F.3d 581, 601 (9th Cir. 2014). “An agency will have acted arbitrarily

and capriciously only when the ‘record plainly demonstrates that the agency made

a clear error in judgment.’” Native Ecosystems Council v. Weldon, 697 F.3d 1043,

1052 (9th Cir. 2012) (alteration omitted) (quoting Tri-Valley CAREs v. U.S. Dep’t

of Energy, 671 F.3d 1113, 1124 (9th Cir. 2012)).

1. We conclude that Defendants’ decision to forego an Environmental

Impact Statement (“EIS”) was not arbitrary and capricious. Reviewing the

determination not to prepare an EIS under the arbitrary and capricious standard

“requires us to determine whether the agency has taken a hard look at the

consequences of its actions, based its decision on a consideration of the relevant

factors, and provided a convincing statement of reasons to explain why a project’s

impacts are insignificant.” Native Ecosystems Council v. U.S. Forest Serv., 428

F.3d 1233, 1239 (9th Cir. 2005) (internal quotation marks and citation omitted).

3 In concluding that neither Project would significantly affect the

environment, the Forest Service considered, as required, both the context and

intensity of the proposed actions. See 40 C.F.R. § 1508.27. In evaluating the

context of the site-specific actions at issue, the Forest Service considered the

Projects’ impacts not only on the total area affected by the fire as Plaintiffs

contend, but also on the project areas. In any event, “[t]he ‘identification of the

geographic area’ within which a project’s impacts on the environmental resources

may occur ‘is a task assigned to the special competency of the appropriate

agencies.’” Tri-Valley CAREs, 671 F.3d at 1127 (quoting Kleppe v. Sierra

Club, 427 U.S. 390, 414 (1976)).

The Forest Service also appropriately considered cumulative impacts. See

40 C.F.R. § 1508.27(b)(7). An agency may discharge its obligation to consider

cumulative impacts “by aggregating the cumulative effects of past projects into an

environmental baseline, against which the incremental impact of a proposed

project is measured.” Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d

1105, 1111 (9th Cir. 2015). The Forest Service acted within its discretion in doing

so in this case. It was not error to include within the relevant environmental

baseline the continued existence of roads within the Forest. Additionally, the

Forest Service considered the potential for added sediment contribution to streams

from the use of roads during salvage operations.

4 Finally, although Plaintiffs cite scientific evidence suggesting that post-fire

salvage logging may impact the environment, Plaintiffs have not established that—

nor have they raised a substantial question as to whether—the Forest Service’s

non-significance determination for these specific Projects, considered in the overall

context of the fire area and in light of mitigation measures used, was arbitrary and

capricious.

2. We conclude that Plaintiffs have not raised substantial questions on the

merits of their ESA claims. The ESA mandates that federal agencies shall not take

any action that will result in the destruction or adverse modification of designated

critical habitat. 16 U.S.C. § 1536(a)(2). “Destruction or adverse modification” is

defined to include “a direct or indirect alteration that appreciably diminishes the

value of critical habitat.” 50 C.F.R. § 402.02.

Here, Defendants’ determinations that the Projects were not likely to

adversely affect bull trout or bull trout critical habitat were not arbitrary and

capricious. Defendants considered the location of impacts from Project activities

in establishing the size and location of Riparian Conservation Areas, and,

therefore, contrary to Plaintiffs’ contentions, did not ignore impacts from Project

activities outside those areas in any relevant sense. Defendants also considered the

possibility of increased sediment resulting from logging roads and salvage logging

activities, including by preparing an additional analysis after a slope failure

5 incident.

With respect to Plaintiffs’ ESA Section 7(d) claim, Plaintiffs provided

adequate notice to Defendants to invoke this court’s jurisdiction over the claim.

See 16 U.S.C. § 1540(g)(2)(A); Conservation Cong. v. Finley, 774 F.3d 611, 617-

18 (9th Cir. 2014). But the claim fails on the merits because the Forest Service, in

consultation with the Fish and Wildlife Service, already determined that the

Projects were not likely to adversely affect bull trout or bull trout critical habitat.

Thus, Section 7(d) does not preclude the Projects’ continuing operation during the

pendency of the reinitiated Boise Forest Plan consultation.

AFFIRMED.

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