NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILDLANDS DEFENSE; et al., 

Plaintiffs-Appellants, 

 v. 

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-DefendantsAppellees.

No. 18-35400 

D.C. No. 1:17-cv-00408-BLW 

MEMORANDUM*

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.

FILED

NOV 29 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

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.
 3 

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).
 4 

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. 
 5 

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 
 6 

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.