FILED

NOT FOR PUBLICATION

NOV 04 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD ROCKIES, No. 19-35035

Plaintiff-Appellant, D.C. No. 9:09-cv-00160-DWM

v.

MEMORANDUM*

CHRISTOPHER SAVAGE, Kootenai National Forest Supervisor; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted October 25, 2019 Seattle, Washington

Before: CLIFTON, IKUTA, and BENNETT, Circuit Judges.

Alliance for the Wild Rockies (Alliance) appeals the district court’s 2018

order dissolving the permanent injunction against the Miller West Fisher Project

(Miller Project), and certain of the district court’s rulings in its 2010 summary

judgment order. We have jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The conclusion of the United States Forest Service (Forest Service) and the

Fish and Wildlife Service (FWS) (collectively, the Agencies) that the Miller

Project “may affect, but is not likely to adversely affect” grizzly bears in the

Cabinet-Yaak recovery zone was not arbitrary and capricious. After the FWS

issued a biological opinion and incidental take statement for the Forest Plan

Amendments for Motorized Access Management (Access Amendments), the

Agencies concluded that the Miller Project’s effects fell within the range analyzed

within these Endangered Species Act (ESA) documents. To the extent the Miller

Project would impose effects beyond what was previously analyzed, the Agencies

determined that those additional effects were “not likely to adversely affect”

grizzly bears. Therefore, the Forest Service was not required to obtain a biological

opinion specific to the Miller Project’s activities that will occur in the Cabinet-

Yaak recovery zone. See Gifford Pinchot Task Force v. U.S. Fish and Wildlife

Serv., 378 F.3d 1059, 1067–68 (9th Cir. 2004), superseded on other grounds by

Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg.

7214 (Feb. 11, 2016).

We take judicial notice of Alliance for the Wild Rockies v. Probert, No. CV

18-67, 2019 WL 4889253 (D. Mont. Oct. 3, 2019), which held that the Agencies

must reinitiate consultation regarding the implementation of the Access

2 Amendments because the Forest Service was exceeding the Access Amendments’

incidental take statement in BORZ areas. See Fed. R. Evid. 201. Because the

district court’s 2018 order dissolving the permanent injunction was based in part

on the Miller Project’s compliance with the Access Amendments’ incidental take

statement in the Cabinet Face BORZ, Probert’s conclusion that the Forest Service

is not complying with that incidental take statement in the BORZ area potentially

undermines the district court’s ruling.1 We “may remand a case to the district court

for further consideration when new cases or laws that are likely to influence the

decision have become effective after the initial consideration.” White Mountain

Apache Tribe v. State of Ariz., Dep’t of Game & Fish, 649 F.2d 1274, 1285–86

(9th Cir. 1981). Accordingly, we remand to the district court for the limited

purpose of reconsidering whether the Miller Project complies with the ESA in the

Cabinet Face BORZ. See id. This limited remand is without prejudice, meaning

Alliance is not precluded from filing a new action in district court challenging the

1 Probert is limited to the Access Amendments’ environmental effects in BORZ areas. See 2019 WL 4889253, at *6. Therefore, Probert does not cast doubt on the district court’s dissolution of the permanent injunction against the Miller Project’s activities that will occur in the Cabinet-Yaak recovery zone. 3 Forest Service’s environmental compliance. We will retain jurisdiction over any

subsequent appeals.2

We reject Alliance’s argument that the Forest Service’s analysis of the

Miller Project does not comply with the National Environmental Policy Act

(NEPA). In preparing the environmental impact statement (EIS) and supplemental

EIS for the Miller Project, the Forest Service aggregated the impacts of road

closure breaches into its analysis of the environmental baseline, and concluded that

road closure breaches were not a fundamental factor. Alliance has pointed to no

evidence in the record that the Miller Project will increase the frequency of road

closure breaches. Therefore, the Forest Service could reasonably conclude it was

not required to provide a separate analysis of the cumulative impacts of road

closure breaches. See League of Wildnerness Defs./Blue Mountains Biodiversity

Project v. Connaughton, 752 F.3d 755, 762 (9th Cir. 2014).

AFFIRMED IN PART; REMANDED IN PART.3

2 Alliance’s motions to take judicial notice are DENIED (Docket Entry Nos. 13 and 43). The Agencies’ motion to submit a declaration is DENIED (Docket Entry No. 54). 3 Each party shall bear its own costs. 4