Alliance for the Wild Rockies v. Savage

897 F.3d 1025

ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant,

v. Christopher SAVAGE, Kootenai National Forest Supervisor; Faye Krueger, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture; U.S. Fish & Wildlife Service, an agency of the U.S. Department of the Interior, Defendants-Appellees,andKootenai Forest Stakeholders Coalition, a Montana Corporation; Lincoln County, a political subdivision of the State of Montana, Intervenor-Defendants-Appellees.

No. 16-35589

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2017, Seattle, Washington

Filed July 26, 2018

Rebecca Kay Smith (argued), Public Interest Defense Center, Missoula, Montana; Timothy M. Bechtold, Bechtold Law Firm, Missoula, Montana; for Plaintiff-Appellant.

Tamara N. Rountree (argued), Jacqueline C. Brown, John P. Tustin, David C. Shilton, and Andrew C. Mergen, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Kate Williams-Shuck, Attorney-Advisor, United States Department of the Interior, Rocky Mountain Regional Solicitor’s Office, Billings, Montana; Alan Campbell, Attorney Advisor, United States Forest Service, Region One, Missoula, Montana; for Defendants-Appellees.

Lawson Emmett Fite (argued), American Forest Resource Council, Portland, Oregon, for Intervenor-Defendants-Appellees.

Julie A. Weis and Sara Ghafouri, Haglund Kelly LLP, Portland, Oregon; William K. Barquin, Attorney General, Kootenai Tribe of Idaho, Bonners Ferry, Idaho, for Amicus Curiae Kootenai Tribe of Idaho.

Before: Raymond C. Fisher, Richard A. Paez, and Consuelo M. Callahan, Circuit Judges.

PAEZ, Circuit Judge:

Alliance for the Wild Rockies ("Alliance") filed this lawsuit against the United States Forest Service, several Forest Service officials and the Fish and Wildlife Service ("FWS") (collectively, "Federal Defendants") to enjoin implementation of the East Reservoir Project ("Project") on the Kootenai National Forest in northwest Montana. The Project contemplates a number of land management activities such as logging, thinning, and road construction and maintenance. These activities will take place in areas where two threatened species are present—the Canada lynx¹ and the Cabinet-Yaak grizzly bear.²

Of the multiple claims Alliance initially alleged, only two are at issue in this appeal. First, Alliance challenges the Forest Service’s decision to approve the Project as arbitrary and capricious because it improperly relied on the Northern Rocky Mountains Lynx Management Direction ("Lynx Amendment") in determining the impact of Project activities on lynx and lynx critical habitat.³ The basis for this argument is that in 2009, after the Forest Service adopted the Lynx Amendment in 2007, the FWS designated large areas of lynx critical habitat on National Forest lands, including the Kootenai National Forest. Despite this new designation of critical habitat, the Forest Service did not request reconsultation on the Lynx Amendment with the FWS under ESA § 7, 16 U.S.C. § 1536(a)(2). In light of these developments, Alliance argued that the Forest Service could not properly rely on the Lynx Amendment until it reinitiated consultation with the FWS, and the FWS completed reconsultation by issuing a new biological opinion for the Lynx Amendment. We addressed the Forest Service’s obligation to reinitiate consultation on the Lynx Amendment in Cottonwood Environmental Law Center v. U.S. Forest Service , where we held that it was required to do so. 789 F.3d 1075, 1085–88 (9th Cir. 2015), cert. denied , ––– U.S. ––––, 137 S.Ct. 293, 196 L.Ed.2d 213 (2016).

While this appeal was pending, the Forest Service reinitiated consultation with the FWS, and after we heard argument, the FWS issued a new biological opinion for the Lynx Amendment, completing the reconsultation process.⁴ As a result of these events, Federal Defendants moved to dismiss the lynx ESA § 7 reconsultation claim on the ground that it is moot. In response, Alliance agreed but requested that we vacate the district court’s ruling on this claim. The Intervenor Defendants disagree and urge us to decide Alliance’s lynx ESA claim on a theory not advanced by Alliance or the district court. As we explain below, we agree this claim is moot. We therefore dismiss it, and remand to the district court with directions to vacate the part of its summary judgment ruling that addresses this lynx related claim and to dismiss it as moot.

Alliance’s second argument on appeal arises under NFMA and relates to the Forest Service’s failure to comply with the Motorized Vehicle Access Amendments ("Access Amendments"), which set standards for grizzly bear habitat on Forest Service land. Alliance argues that the total road maintenance and construction in an area in which the Cabinet-Yaak grizzly bears are found exceeds the total road mileage "baseline" standard established by the Access Amendments and an earlier Grizzly Bear Recovery Plan ("Recovery Plan"). Alliance asserts that the Forest Service acted arbitrarily and capriciously in approving the Project without complying with this standard. The district court rejected this claim and granted summary judgment to Defendants. All. for the Wild Rockies v. Savage , 209 F.Supp.3d 1181, 1194 (D. Mont. 2016). We reverse and in so doing, we reject the Federal Defendants’ argument that Alliance waived this claim by failing to raise it during the administrative process.

I.

A.

The Forest Service engaged in a multi-step process before approving the Project. At the outset, after determining that the Project area included lynx and Cabinet-Yaak grizzly bear habitat, the Forest Service prepared a Biological Assessment to evaluate whether the Project would adversely affect those threatened species. The Forest Service concluded that the Project "may affect, [but] is not likely to adversely affect" lynx or Cabinet-Yaak grizzly bears, or their respective habitats. The Forest Service transmitted the Biological Assessment to the FWS, and thereafter engaged in informal consultation with the FWS.⁵ In the meantime, the Forest Service prepared and published a Draft Environmental Impact Statement as required by NEPA, in which it reiterated its conclusion that the Project would not adversely affect the lynx or the Cabinet-Yaak grizzly bear. See 78 Fed. Reg. 35928, 35928 (June 14, 2013) ; 78 Fed. Reg. 43200-01, 43200 (July 19, 2013).

After issuance of the Draft Environmental Impact Statement, the Forest Service received the FWS’s concurrence. The FWS agreed with the Biological Assessment’s conclusion that the threatened species would not be jeopardized and their habitats would not be adversely affected. The Forest Service subsequently prepared and published a Final Environmental Impact Statement, followed by a Record of Decision approving the Project. See 79 Fed. Reg. 15741-01 (Mar. 21, 2014) ; U.S. Forest Service, East Reservoir Project Documents, available at https://www.fs.usda.gov/project/?project=34594 (last visited April 10, 2018).

B.

After the Project’s final approval, Alliance filed this action against Federal Defendants: the Kootenai National Forest Supervisor, the Region One Forester for the Forest Service, the Forest Service, and the FWS. The basis for Alliance’s claims under the ESA, NFMA and NEPA was the allegedly erroneous analysis of the effects of the Project on lynx and Cabinet-Yaak grizzly bears and both species’ habitats.⁶ The Kootenai Forest stakeholders coalition and Lincoln County were granted leave to intervene on behalf of the Federal Defendants.

Alliance filed a motion for summary judgment. Federal Defendants and Intervenor Defendants⁷ filed separate cross-motions for summary judgment. The district court granted summary judgment to Defendants, and denied summary judgment to Alliance. All. for the Wild Rockies , 209 F.Supp.3d at 1199–1200. Alliance timely appealed.⁸

II.

We first consider the threshold jurisdictional issue of whether Alliance’s lynx ESA § 7 reconsultation claim is moot. Although Alliance and the Federal Defendants agree that this claim is moot, we have an independent obligation to determine our jurisdiction. Shell Offshore Inc. v. Greenpeace, Inc. , 815 F.3d 623, 628 (9th Cir. 2016). Upon review of the record and the responses to the Federal Defendants’ motion to dismiss, we conclude the claim is moot.

A claim is moot if it "has lost its character as a live controversy." Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly , 590 F.3d 725, 727 (9th Cir. 2009). Under Article III of the Constitution, "a live controversy [must] persist throughout all stages of the litigation." Gator.com Corp. v. L.L. Bean, Inc. , 398 F.3d 1125, 1128–29 (9th Cir. 2005) (en banc); see also Hollingsworth v. Perry , 570 U.S. 693, 705, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). A "court must be able to grant effective relief, or it lacks jurisdiction and must dismiss the appeal." Pub. Utilities Comm’n v. F.E.R.C. , 100 F.3d 1451, 1458 (9th Cir. 1996) ; see also W. Coast Seafood Processors Ass’n v. Natural Res. Def. Council, Inc. , 643 F.3d 701, 704 (9th Cir. 2011).

On appeal, Alliance advances two related ESA arguments. First, it argues that the Forest Service’s decision to approve the Project was arbitrary and capricious because it relied on the Lynx Amendment before FWS completed reconsultation as directed by our holding in Cottonwood . Second, Alliance argues that the Forest Service’s finding of "no adverse affect" on lynx and lynx critical habitat in the Biological Assessment for the Project and FWS’s concurrence in that finding before completion of the reconsultation process was arbitrary and capricious. Although Alliance argues that the "no adverse affect" finding fails to satisfy the Forest Service’s definition of that term, this argument is subsumed within Alliance’s ESA § 7 reconsultation claim.

We agree with the...