Alliance for the Wild Rockies v. U.S. Forest Service

dissenting:

I dissent because I disagree with the majorities’ review of Plaintiff-Appellant’s best available science claim. We review the district court’s grant of summary judgment on Plaintiff-Appellant’s best available science claim de novo, with all facts read in the light most favorable to the non-moving party. Covington v. Jefferson County, 358 F.3d 626 , 641 n. 22 (9th Cir. 2004). The Administrative Procedure Act governs our review of agency decisions under the Endangered Species Act and the National Forest Management Act. Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953 (9th Cir.2003). It mandates that agency decisions be set aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2)(a). “An agency’s action is arbitrary and capricious if the agency fails to consider an important aspect of a problem,.... ” Lands Council v. Powell, 395 F.3d 1019 , 1026 (9th Cir. 2005).

Section 7 of the Endangered Species Act requires the Forest Service to consult with the Fish and Wildlife Service to ensure that the standards it incorporates in its Forest Plan are “not likely to jeopardize the continued…

MEMORANDUM *

The Alliance for the Wild Rockies appeals the summary judgment entered in favor of the United States Forest Service and United States Fish and Wildlife Service on its claims under the Endangered Species Act and the National Forest Management Act relating to the Northeast Yaak Project in Kootenai National Forest in Montana. We affirm.

The Alliance’s contentions mainly center on what it calls the “2006 Rule Set.” However, the “2006 Rule Set” was simply an internal document that is not final agency action. See Franklin v. Massachusetts, 505 U.S. 788, 797 , 112 S.Ct. 2767 , 120 L.Ed.2d 636 (1992); Stauffer Chem. Co. v. FDA, 670 F.2d 106, 108 (9th Cir.1982). It is, therefore, irrelevant.

To the extent the appeal can be read to encompass the adequacy of consultation with respect to the 1987 Forest Plan as applied in 2007, we believe that the deci-sional documents for the Northeast Yaak Project — the 2007 ROD, the 2007 Supplemental Biological Assessment, and the Final Supplemental Environment Impact Statement — are sufficient to warrant deference. See Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1080-81 (9th Cir. 2006); Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th…