FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD ROCKIES,

Plaintiff-Appellant,

v.

JIM PENA, in his official capacity as 

Regional Forester of Region Six U.S. 

Forest Service; UNITED STATES 

FOREST SERVICE, an agency of the 

United States; RODNEY SMOLDON, in 

his official capacity as Supervisor of 

the Colville National Forest,

Defendants-Appellees,

and

STEVENS COUNTY; NORTHEAST 

WASHINGTON FORESTRY COALITION;

PEND OREILLE COUNTY,

Intervenor-Defendants-Appellees.

No. 16-35856

D.C. No.

2:16-cv-00294-

RMP

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted June 13, 2017

Seattle, Washington
2 ALLIANCE FOR THE WILD ROCKIES V. PENA

Filed August 1, 2017

Before: DOROTHY W. NELSON, MILAN D. SMITH, 

JR., and MORGAN B. CHRISTEN, Circuit Judges.

Opinion by Milan D. Smith, Jr.

SUMMARY*

Environmental Law / Preliminary Injunction

The panel affirmed the district court’s denial of a 

preliminary injunction in an action challenging the North 

Fork Mill Creek A to Z Project in the Colville National 

Forest in Washington.

The A to Z Project is a forest restoration project, and the 

Alliance for the Wild Rockies filed an action challenging the 

United States Forest Service’s decision to approve the A to 

Z Project.

The panel held that Alliance had not demonstrated 

serious questions, much less a likelihood of success, with 

respect to any of its National Forest Management Act 

(“NFMA”) and National Environmental Policy Act 

(“NEPA”) claims. The panel concluded, therefore, that the 

district court did not abuse its discretion in denying 

Alliance’s motion for a preliminary injunction.

Specifically, the panel held that the Alliance had not 

shown either serious questions or a likelihood of success on 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ALLIANCE FOR THE WILD ROCKIES V. PENA 3

the merits of its NFMA or NEPA claims: based on the Forest 

Service’s use of “habitat as a proxy” approach for assessing 

the viability of the pine marten; based on the Forest Service’s 

use of the “proxy-as-proxy” approach for assessing the 

viability of the fisher; based on the Forest Service’s snowintercept cover analysis; and based on the Forest Service’s 

open road density analysis. The panel also held that the 

Alliance had not shown either serious questions or a 

likelihood of success on the merits of Alliance’s NEPA 

claim based on the Forest Service’s sediment analysis.

COUNSEL

Thomas John Woodbury (argued), Boise, Idaho, for 

Plaintiff-Appellant.

Rudy J. Verschoor (argued) and Vanessa R. Waldref,

Assistant United States Attorneys; United States Attorney’s 

Office, Spokane, Washington; for Defendants-Appellees.

Lawson Emmett Fite (argued), American Forest Resource 

Council, Portland, Oregon, for Intervenor-DefendantsAppellees.

OPINION

M. SMITH, Circuit Judge:

Alliance for Wild Rockies (Alliance) appeals the district 

court’s denial of a preliminary injunction in an action 

regarding the North Fork Mill Creek A to Z Project (A to Z 

Project) in the Colville National Forest in Colville, 

Washington. Alliance alleges that United States Forest 
4 ALLIANCE FOR THE WILD ROCKIES V. PENA

Service (Forest Service) violated the National Forest 

Management Act (NFMA) and the National Environmental 

Policy Act (NEPA) when it approved the A to Z Project. The 

district court concluded that Alliance did not satisfy any of 

the four required factors for the issuance of a preliminary 

injunction. We affirm.

BACKGROUND

I. Statutory Schemes

A. NFMA

NFMA, 16 U.S.C. § 1600 et seq., requires the Forest 

Service to develop and implement land and resource 

management plans (forest plans) for each national forest. 

16 U.S.C. § 1604(a). “These plans operate like zoning 

ordinances, defining broadly the uses allowed in various 

forest regions, setting goals and limits on various uses (from 

logging to road construction), but do not directly compel 

specific actions, such as cutting of trees in a particular area 

or construction of a specific road.” Citizens for Better 

Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 

2003). Of particular relevance to this appeal, forest plans 

must, among other substantive requirements, (1) “provide 

for diversity of plant and animal communities based on the 

suitability and capability of the specific land area,” 

16 U.S.C. § 1604(g)(3)(B), and (2) “insure that timber will 

be harvested from National Forest System lands only where 

. . . protection is provided for streams, streambanks, 

shorelines, lakes, wetlands, and other bodies of water from 

detrimental changes in water temperatures, blockages of 

water courses, and deposits of sediment, where harvests are 

likely to seriously and adversely affect water conditions or 

fish habitat.” Id. § 1604(g)(3)(E)(iii). “After a forest plan is 

developed, all subsequent agency action, including site-
ALLIANCE FOR THE WILD ROCKIES V. PENA 5

specific plans . . . , must comply with NFMA and the 

governing forest plan.” Ecology Ctr. v. Castaneda, 574 F.3d 

652, 656 (9th Cir. 2009).

B. NEPA

NEPA, 42 U.S.C. § 4321 et seq., “is a procedural statute 

intended to ensure environmentally informed decisionmaking by federal agencies.” W. Watersheds Project v. 

Abbey, 719 F.3d 1035, 1045 (9th Cir. 2013) (quoting 

Tillamook Cty. v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 

1143 (9th Cir. 2002)). NEPA requires agencies to take a 

“hard look” at the environmental consequences of proposed 

agency actions before those actions are undertaken. 

Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 

387 F.3d 989, 993 (9th Cir. 2004). However, “NEPA does 

not mandate particular substantive results, but instead 

imposes only procedural requirements.” Cold Mountain v. 

Garber, 375 F.3d 884, 892 (9th Cir. 2004) (citations and 

internal quotation marks omitted).

Pursuant to NEPA’s implementing regulations, the 

agency proposing the action may prepare an environmental 

assessment (EA) to “[b]riefly provide sufficient evidence 

and analysis for determining whether to prepare an 

environmental impact statement [(EIS)] or a finding of no 

significant impact [(FONSI)].” 40 C.F.R. § 1508.9(a)(1). 

An EA is a “concise public document” that “[s]hall include 

brief discussions of the need for the proposal, . . .

alternatives, . . . the environmental impacts of the proposed 

action and alternatives, and a listing of agencies and persons 

consulted.” Id. § 1508.9(b). “If the EA reveals that the 

proposed action will significantly affect the environment,

then the agency must prepare an EIS.” Kern v. U.S. Bureau 

of Land Mgmt., 284 F.3d 1062, 1067 (9th Cir. 2002). But, 
6 ALLIANCE FOR THE WILD ROCKIES V. PENA

“[i]f the EA reveals no significant effect, the agency may 

issue a [FONSI].” Id.

II. The A to Z Project

The A to Z Project is a forest restoration project that 

encompasses 12,802 acres within the Colville National 

Forest, which is managed in accordance with the Colville 

National Forest Land and Resource Management Plan 

(Colville Forest Plan). The A to Z Project is generally 

comprised of commercial timber harvest treatments, road 

maintenance, stream restoration, and culvert replacements. 

The commercial timber harvest treatments include 

commercial thinning, shelterwood harvest, and aspen 

restoration, with the goals of increasing tree diversity, 

improving stand productivity and wildlife habitat, and 

reducing the severity of insect, disease, and wildfire threats. 

The project was the result of a multi-year collaboration 

among elected officials, environmental organizations, 

Native American tribes, the timber industry, and community 

organizations.

The Forest Service is empowered to “enter into 

stewardship contracting projects with private persons or 

other public or private entities to perform services to achieve 

land management goals for the national forests and the 

public lands that meet local and rural community needs.” 

16 U.S.C. § 6591c(b). Pursuant to this authority, the Forest 

Service offered the A to Z Project to private contractors as a 

stewardship contract. Rodney D. Smoldon, the Forest 

Supervisor for the Colville National Forest, explained that 

“[t]he intent of this contract [was] to manage a piece of the 

Colville [National Forest] system lands from the planning 

stage through completion of all product removal and service 

work activities.” Pursuant to the proposal, the successful 

bidder would be responsible for hiring and funding a private 
ALLIANCE FOR THE WILD ROCKIES V. PENA 7

contractor to perform the required NEPA analysis of the A 

to Z Project.

The Forest Service officially solicited proposals from the 

public for a contractor that would conduct all of the work 

required by the A to Z Project, but only a single bidder, 

Vaagen Brothers Lumber, submitted a proposal. Vaagen 

Brothers Lumber was awarded the contract, and it hired 

Cramer Fish Sciences to perform the NEPA analysis of the

A to Z Project.

Cramer Fish Sciences prepared the EA, which was 

reviewed and approved by the Forest Service. On March 11, 

2015, the Forest Service released the EA for public 

comment. The Forest Service subsequently retracted and 

revised the EA to address concerns raised by the public, and 

issued the final EA on February 16, 2016. On June 13, 2016, 

Smoldon signed the FONSI and Decision Notice approving 

the A to Z Project.

III. Procedural History

On August 18, 2016, Alliance filed this lawsuit 

challenging the Forest Service’s decision to approve the A 

to Z Project. On September 6, 2016, Alliance filed a Motion 

for a Preliminary Injunction with the district court. Stevens 

County, Pend Oreille County, and the Northeast Washington 

Forestry Coalition subsequently intervened as defendants.

On October 14, 2016, the district court held a hearing on 

Alliance’s motion. After hearing from all parties, the district 

court handed down an oral decision denying Alliance’s 

Motion for a Preliminary Injunction. The district court 

subsequently issued a written decision memorializing its 

ruling. In particular, the district court found that (1) Alliance 

failed to demonstrate a likelihood of success or “serious 
8 ALLIANCE FOR THE WILD ROCKIES V. PENA

questions” going to the merits of its NFMA and NEPA 

claims, (2) Alliance’s allegations of harm were “too 

speculative to demonstrate a concrete and particularized 

harm that creates an irreparable injury,” (3) the balance of 

the equities weighed against an injunction because of the A 

to Z Project’s intended environmental benefits and current 

impact on the local economy, and (4) public interest also 

weighed against an injunction for the same reasons. On 

October 17, 2016, Alliance timely appealed.

STANDARD OF REVIEW

“We review the denial of preliminary injunctive relief for 

abuse of discretion.” Friends of the Wild Swan v. Weber, 

767 F.3d 936, 942 (9th Cir. 2014). A district court abuses 

its discretion when it “base[s] its ruling on an erroneous view 

of the law or on a clearly erroneous assessment of the 

evidence.” Id. (quoting Inst. of Cetacean Research v. Sea 

Shepherd Conservation Soc’y, 725 F.3d 940, 944 (9th Cir. 

2013)).

“Because NFMA and NEPA do not provide a private 

cause of action to enforce their provisions, agency decisions 

allegedly violating NFMA and NEPA are reviewed under 

the Administrative Procedure Act (‘APA’).” Native 

Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 

1238 (9th Cir. 2005). Under the APA, agency action is 

unlawful if it is “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). “An agency action is arbitrary and capricious 

‘only if the agency relied on factors Congress did not intend 

it to consider, entirely failed to consider an important aspect 

of the problem, or offered an explanation that runs counter 

to the evidence before the agency or is so implausible that it 

could not be ascribed to a difference in view or the product 

of agency expertise.’” Defs. of Wildlife v. Zinke, 856 F.3d 
ALLIANCE FOR THE WILD ROCKIES V. PENA 9

1248, 1257 (9th Cir. 2017) (quoting Conservation Cong. v. 

U.S. Forest Serv., 720 F.3d 1048, 1054 (9th Cir. 2013)).

ANALYSIS

A party seeking a preliminary injunction must meet one 

of two variants of the same standard. Under the original 

Winter standard, a party must show “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). Under the “sliding scale” variant of 

the Winter standard, “if a plaintiff can only show that there 

are ‘serious questions going to the merits’—a lesser showing 

than likelihood of success on the merits—then a preliminary 

injunction may still issue if the ‘balance of hardships tips 

sharply in the plaintiff’s favor,’ and the other two Winter

factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, 

Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance 

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 

Cir. 2011)).

For the reasons explained below, we conclude that 

Alliance has not demonstrated serious questions, much less 

a likelihood of success, with respect to the merits of any of

its NFMA and NEPA claims. We therefore conclude that 

the district court did not abuse its discretion in denying 

Alliance’s motion for a preliminary injunction. We examine 

each of Alliance’s claims in turn.1

 1 Alliance’s complaint asserts an additional claim that the bidding 

procedure used by the Forest Service to award the A to Z Project 

stewardship contract to Vaagen Brothers Lumber violated Section 472a 
10 ALLIANCE FOR THE WILD ROCKIES V. PENA

I. Mixed NFMA and NEPA Pine Marten and Fisher 

Claims

Alliance first contends that the EA violated the Colville 

Forest Plan by using “failed” proxy analyses to conclude that 

A to Z Project would not significantly impact the viability of 

the pine marten and the fisher. Alliance argues that the use 

of these “failed” proxy analyses does not constitute the 

requisite “hard look” required by NEPA, and that the Forest 

Service additionally violated NEPA by failing to prepare an 

EIS to evaluate the impact of the A to Z Project on the 

viability of the pine marten and the fisher.

A. Pine Marten

The Colville Forest Plan designated the pine marten as a 

management indicator species2 for furbearers who inhabit 

mature conifer forests. The Colville Forest Plan then set the 

following goal, measured as “core areas,” for preserving the 

pine marten’s habitat: “[e]very 2 to 2 1⁄2 miles, provide units 

of at least 160 acres of conifer timber in successional stages 

VI (old growth), or V (mature) where stage VI is not 

currently available.” The EA explained that 24 pine marten 

core areas, totaling 1,950 acres, and 217 acres of stage VI 

trees were located within the A to Z Project area, but that 

neither the core areas nor the stage VI trees were marked for 

 

of NFMA. Alliance raised this claim before the district court, and briefed 

this claim on appeal. However, during oral argument, Alliance conceded 

this claim for the purposes of this appeal. We therefore do not address 

this claim.

2 “A species chosen as a management indicator species is used as a 

bellwether . . . for the other species that have the same special habitat 

needs or population characteristics.” Inland Empire Pub. Lands Council 

v. U.S. Forest Serv., 88 F.3d 754, 762 n.11 (9th Cir. 1996).
ALLIANCE FOR THE WILD ROCKIES V. PENA 11

timber harvesting. The EA also found that connectivity of 

the core areas would be preserved because no core area 

would be completely surrounded by harvest treatments. The 

EA recognized that the A to Z Project would inevitably lead 

to some individual pine marten being displaced, injured, or 

killed by equipment or human activity, but concluded that 

because the A to Z Project would not impact the pine marten 

core areas and stage VI trees, there would be no impact on 

the viability of the pine marten population on the project site.

The EA’s use of the pine marten’s habitat as a proxy for 

the viability of the species itself is referred to as the “habitat 

as a proxy” approach. The Lands Council v. McNair, 

537 F.3d 981, 996–97 (9th Cir. 2008) (en banc), overruled 

on other grounds by Winter, 555 U.S. at 20. “[I]f the species 

is used as an indicator of the population of another species, 

it is [known as] a ‘proxy-on-proxy’ approach.” Friends of 

the Wild Swan, 767 F.3d at 949. Proxy approaches are 

permitted “where both the Forest Service’s knowledge of 

what quality and quantity of habitat is necessary to support 

the species and the Forest Service’s method for measuring 

the existing amount of that habitat are reasonably reliable 

and accurate.” Id. (quoting Native Ecosystems Council v. 

U.S. Forest Serv., 428 F.3d 1233, 1250 (9th Cir. 2005)). 

However, proxy approaches must “reasonably ensure[] that 

the proxy results mirror reality.” Gifford Pinchot Task Force 

v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1066 (9th Cir. 

2004) (internal quotation marks omitted).

Alliance concedes that the Forest Service possessed the 

requisite knowledge of the pine marten’s habitat 

requirements on the basis of the Youkey Report, a 2012 

report produced by the Colville National Forest that 

confirmed the accuracy of the habitat assumptions embodied 

by the Colville Forest Plan’s pine marten core areas 
12 ALLIANCE FOR THE WILD ROCKIES V. PENA

standard. Likewise, Alliance does not challenge the EA’s 

identification of the pine marten’s core areas and preferred 

stage VI trees within the A to Z Project site. Instead, 

Alliance argues that the EA’s “habitat as a proxy” analysis 

was unreliable because (1) the Colville Forest Plan requires 

monitoring of the pine marten population, but the Forest 

Service has failed to conduct monitoring of the pine marten 

since 1995, and (2) no pine marten have been spotted on the 

project site since 1995. In making this argument, Alliance 

cites to Native Ecosystems Council v. Tidwell, 599 F.3d 926, 

933 (9th Cir. 2010), where we explained that “[t]he proxyon-proxy approach’s reliability is questionable where the 

[management indicator species] is absent from the project 

area.”

In response, we note first that the Colville Forest Plan 

does not require population monitoring of the pine marten. 

The Colville Forest Plan permits the Forest Service to 

monitor the pine martin through three methods: “[a]cres of 

suitable habitat in defined distribution; localized population 

or activity trends within specified areas.” (Emphasis added). 

Because the Forest Service was not required to conduct 

population monitoring of the pine marten pursuant to the 

Colville Forest Plan, the Forest Service’s failure to do so 

since 1995 does not categorically preclude the Forest Service 

from applying the “habitat as a proxy” approach. Cf. 

Tidwell, 599 F.3d at 933–34 (“[T]he Forest Service cannot 

reasonably argue that the proxy-on-proxy approach allows it 

to avoid separately monitoring sage grouse population 

trends, as sage grouse are its chosen [management indicator 

species]. This is especially true where, as here, the forest 

plan requires monitoring of the [management indicator 

species].” (internal citation omitted)).
ALLIANCE FOR THE WILD ROCKIES V. PENA 13

Alliance’s reliance on Tidwell is also misplaced. In 

Friends of the Wild Swan v. Weber, we clarified that the 

absence of the management indicator species on the project 

site does not necessarily invalidate a proxy analysis. 

767 F.3d at 949. We explained that Tidwell invalidated the 

proxy analysis in that case “where there was no data 

indicating the presence of the species in the area, no 

suggestion there was difficulty monitoring the species, and a 

flaw in the Forest Service’s methodology that further 

undermined the use of the habitat proxy approach.” Id. We 

then upheld the use of a proxy approach in Friends of the 

Wild Swan, explaining that although “no [management 

indicator species] were actually detected in the relatively 

small project area,” this was “likely due to monitoring 

difficulties.” Id. at 949–50. We also noted that the plaintiff 

“[did] not level specific criticisms at the Forest Service’s 

habitat methodology.” Id.

The combination of factors present in Tidwell is similarly 

absent here. First, although there have been no pine marten 

sightings in the project area since 1995, the pine marten has 

been seen in other parts of the Colville National Forest. 

Second, the EA implicitly determined that there were 

difficulties monitoring the pine marten. The EA explained 

that “some . . . species may be comparatively easy to locate, 

[and] others may be difficult to detect due to their scarcity, 

mobility, behavior, or habitat use,” and therefore, the EA 

would use either “surveys or habitat-based methods” to 

analyze the impact of the A to Z Project on these species. 

Because the EA then used a habitat-based method for the 

pine marten by identifying pine martin core areas through 

the Colville National Forest database, we can infer that the 

EA found pine marten to be a species that is “difficult to 

detect.” Third, as described above, Alliance does not 

challenge the Forest Service’s knowledge of the pine 
14 ALLIANCE FOR THE WILD ROCKIES V. PENA

marten’s required habitat or the EA’s identification of this 

habitat within the project site. As such, the Forest Service’s 

“habitat as a proxy” analysis was neither arbitrary nor 

capricious. Accordingly, Alliance has not shown either 

serious questions or a likelihood of success on the merits of 

a NFMA or NEPA claim based on the Forest Service’s use 

of the “habitat as a proxy” approach for assessing the 

viability of the pine marten.

B. Fisher

Because the fisher is a furbearer that inhabits the Colville 

National Forest, the EA used the habitat of the pine marten, 

the management indicator species for furbearers, to similarly 

conclude that the A to Z Project would not impact the 

viability of the fisher. Alliance objects to this “proxy-onproxy” approach on three grounds. First, Alliance argues 

that because the “habitat as a proxy” approach for the pine 

marten is flawed for the reasons stated above, a “proxy-onproxy” approach based on the pine marten is similarly 

flawed. Second, Alliance argues that there have been no 

sightings of the fisher on the project site. Third, Alliance 

argues that the pine marten is a flawed management 

indicator species for the fisher because fisher require larger 

ranges.

None of these arguments is availing. The absence of 

fisher sightings on the project site has no bearing on the 

reliability of the “proxy-on-proxy” approach to determining 

the fisher’s viability.3 Because the “proxy-on-proxy” 

approach uses a management indicator species “as an 

 3 In any event, the record indicates that there were “at least two 

probable sightings of fisher” in other parts of the Colville National 

Forest.
ALLIANCE FOR THE WILD ROCKIES V. PENA 15

indicator of the population of another species,” Friends of 

the Wild Swan, 767 F.3d at 949, sightings of the management 

indicator species (the pine marten), not the absent species 

(the fisher), play a role in determining the reliability of the 

“proxy-on-proxy” approach. See Tidwell, 599 F.3d at 933–

34. And for the reasons stated above, the absence of pine 

marten sightings on the project site does not invalidate the 

EA’s “habitat as a proxy” analysis of the pine marten’s 

viability; because the “proxy-as-proxy” approach is based 

upon the “habitat as a proxy” approach for the management 

indicator species, the absence of pine marten sightings does 

not invalidate the EA’s “proxy-as-proxy” analysis for the 

fisher for the same reasons. In addition, although Alliance 

contends that fisher require larger ranges than pine marten, 

Alliance does not challenge the EA’s conclusion that fisher 

prefer late and old structural stands. The EA’s analysis, 

including the identification of 1950 acres of stage V trees 

and 217 acres of stage VI trees within the A to Z Project, 

adequately addresses and accommodates the fisher’s 

preferred habitat within the project site. Alliance thus has 

not shown either serious questions or a likelihood of success 

on the merits of a NFMA or NEPA claim based on the Forest 

Service’s use of the “proxy-as-proxy” approach for 

assessing the viability of fisher.

II. Mixed NFMA and NEPA Big Game Habitat Claims

Alliance next contends that the A to Z Project violates 

the Colville Forest Plan’s snow-intercept cover standard and 

open road density objective for big game habitat. Alliance 

argues that the Forest Service violated NEPA by failing to 

recognize the decrease in snow-intercept cover and the 

increase in open road density as significant environmental 

impacts and failing to prepare an EIS on these two issues.
16 ALLIANCE FOR THE WILD ROCKIES V. PENA

A. Snow-Intercept Cover

The Colville Forest Plan requires management activities 

to work towards a 50:50 cover-to-forage ratio in big game 

winter range to provide optimum forage use for big game 

species. The current cover-to-forage ratio for the big game 

winter range within the project site is 90:10. The EA 

concluded that the A to Z Project’s harvesting activities 

would reduce the cover-to-forage ratio to 70:30, moving the 

ratio closer to the Colville Forest Plan’s desired ratio.

Alliance faults this analysis on two grounds. First,

Alliance cites to its own expert report, which opined that the 

harvesting activities would have a far greater negative 

impact by reducing the cover-to-forage ratio to 30:70. 

Second, Alliance contends that the EA failed to adhere to the 

recommendation from the 1993 Colville National Forest 

monitoring report to analyze snow-thermal cover in the 

entire winter range for big game, not just the two areas 

currently identified in Colville Forest Plan.

The conflicting conclusion proffered by Alliance’s 

expert report does not demonstrate that the Forest Service’s 

cover analysis was arbitrary or capricious. NFMA’s 

implementing regulations require the Forest Service to “use 

the best available scientific information” in the forest 

planning process. 36 C.F.R. § 219.3 (imposing this standard 

on “the planning process required by [36 C.F.R. § 219] for 

assessment”); id. § 219.15(d) (requiring that “[a] project or 

activity approval document must describe how the project or 

activity is consistent with applicable plan components”). 

But even with this requirement, “it is not [the] role [of a 

reviewing court] to weigh competing scientific analyses.” 

Castaneda, 574 F.3d at 659. A party challenging the Forest 

Service’s scientific analysis cannot simply “cite studies that 

support a conclusion different from the one the Forest 
ALLIANCE FOR THE WILD ROCKIES V. PENA 17

Service reached” and must instead provide “scientific 

studies that indicate the Forest Service’s analysis is outdated 

or flawed.” Id.

The Forest Service made its cover-to-forage ratio 

calculations based on its Silviculture/Fire Specialist Report, 

which explained that commercial thinning “would be very 

light and homogenous through the harvest unit,” would 

remove “[n]o more than 20 percent of the current volume,” 

and would not create openings. In contrast, Dr. Sara 

Johnson, the expert upon whom Alliance relies, asserts, 

without explanation, that all logging activity in the A to Z 

Project will result in a loss of cover. Dr. Johnson’s analysis, 

which is based on her prior experience as a Forest Service 

biologist in a different national forest, does not provide 

requisite “scientific information directly undermining” the 

analysis of the Silviculture/Fires Specialist Report. 

Castaneda, 574 F.3d at 660.

Nor did the Forest Service arbitrarily and capriciously 

decline to analyze snow-thermal cover in accordance with 

the recommendation from the 1993 monitoring report. In 

Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 

973–74 (9th Cir. 2002), we held that the failure to implement 

a monitoring report recommendation was arbitrary and 

capricious because the monitoring report made an express 

finding that the Forest Plan was inadequate on that particular 

issue. But here, the 1993 monitoring report only suggested

that the Colville Forest Plan standard for evaluating snow 

cover was inadequate: the 1993 monitoring report disclosed 

that “[m]onitoring results indicate that some revision of 

management direction may be needed” because “Forest Plan 

standards . . . prescribe specific minimum levels of snow 

intercept cover, which may not be realistic in all 

circumstances.” (Emphasis added). The 1993 monitoring 
18 ALLIANCE FOR THE WILD ROCKIES V. PENA

report then recommended, as one “suggested solution,” that 

snow-thermal cover be evaluated throughout the entire 

biological winter range. In the absence of an express finding 

that the Colville Forest Plan’s standard for evaluating snowthermal cover is inadequate and must be remedied by 

adopting the 1993 monitoring report’s recommendation, the 

Forest Service did not arbitrarily or capriciously decline to 

apply the 1993 monitoring report’s recommendation of 

analyzing snow-thermal cover in the entire winter range.

In sum, Alliance has not shown either serious questions 

or a likelihood of success as to the merits of a NFMA or 

NEPA claim based on the Forest Service’s snow-intercept 

cover analysis.

B. Road Density

The Colville Forest Plan establishes an open road density 

objective “of less than 1.5 miles of open road per square 

mile” on big game winter range. The current open road 

density in the Colville National Forest already exceeds this 

objective at 1.9 miles of open road per square mile. Alliance 

contends that the A to Z Project would add an additional 

30 miles of new temporary roads, which will further increase 

the open road density’s noncompliance with the Colville 

Forest Plan. In the EA, the Forest Service concluded that the 

additional new temporary roads added by the A to Z Project 

would neither increase nor decrease the current level of open 

road density.

The Forest Service’s conclusion was neither arbitrary 

nor capricious. Only a small portion of the 30 miles of new 

temporary roads would be built on big game winter range, 

and all 30 miles would be decommissioned and subject to 

closure treatments as soon as the project activities end. 

Accordingly, Alliance has not shown either serious 
ALLIANCE FOR THE WILD ROCKIES V. PENA 19

questions or a likelihood of success on the merits of a NFMA 

or NEPA claim based on the Forest Service’s open road 

density analysis.

III. NEPA Sediment Claims

Alliance lastly contends that the Forest Service violated 

NEPA by making an arbitrary and capricious determination 

that sediment accumulation in streams within the project site 

resulting from the A to Z Project’s activities was not a 

significant environmental impact. Alliance raises three 

objections to the Forest Service’s analysis: (1) that the Forest 

Service impermissibly found the sediment impact to not be 

“significant” because positive sediment reduction elements 

of the A to Z Project outweighed the negative sediment 

accumulation elements, (2) that the A to Z Project’s 

sediment reduction measures do not occur in the same 

streams in which the sediment accumulation occurs, and 

(3) that the Forest Service did not consider the impact of

grazing on sediment delivery.

First, while Alliance is correct that “[a] significant effect 

may exist even if the Federal agency believes that on balance 

the effect will be beneficial” for NEPA purposes, 40 C.F.R. 

§ 1508.27(b)(1), a federal agency may nevertheless 

“consider the effect of mitigation measures in determining 

whether preparation of an EIS is necessary.” Friends of the 

Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 

993 (9th Cir. 1993). The Forest Service estimated that the A 

to Z Project’s improvements and mitigation measures would 

result in a 0.5% net decrease in sediment delivery to streams 

from logging roads, but Alliance observes that the A to Z 

Project’s logging and road usage would result in a 64.1% 

gross increase in sediment delivery. Alliance contends that 

this drastic increase in sediment delivery will result in a fine 
20 ALLIANCE FOR THE WILD ROCKIES V. PENA

sediment level that exceeds the 25% threshold and thus pose 

a danger to fish egg survival.

However, Alliance’s focus on the gross increase in 

sediment delivery overlooks the sequence in which activities 

impacting sediment delivery will occur. All of the road 

maintenance and reconstruction, which will result in a 64.7% 

decrease in sediment delivery, is scheduled to take place 

before the road construction, logging, and stream restoration 

activities, which will result in the 64.1% increase in 

sediment delivery. As explained by the Forest Service’s 

Hydrology Report, “[t]he outcome from this sequence would 

be immediate benefit of the maintenance and reconstruction, 

followed by the effects of road construction, logging, 

hauling, and prescribed burning.” Alliance’s theory that the 

gross increase in sediment delivery will result in a fine 

sediment level that threatens fish egg survival fails for this 

reason. Because (1) the road rehabilitation and restoration 

works will first lower the total sediment delivery before any 

potential sediment delivery is increased by the A to Z Project 

activities, and (2) the net result is a 0.5% decrease in 

sediment delivery, the fine sediment rate is unlikely to 

increase from the current level of 23% and exceed the fishthreatening threshold of 25%. The Forest Service 

permissibly relied on both the benefit of a net sediment 

reduction and the specific sequence of sediment reduction 

followed by sediment increase to conclude that the A to Z 

Project’s sediment accumulation activities would not create 

a significant environmental impact.

Alliance’s contention that the A to Z Project’s sediment 

reduction measures will not affect all areas of sediment 

accumulation is similarly unavailing. Alliance argues that 

the A to Z Project’s five “hot spots” mitigation projects, 

which constitute 1.7 miles of road improvement, are located 
ALLIANCE FOR THE WILD ROCKIES V. PENA 21

downstream of roads that will generate sediment, and 

therefore will not mitigate the adverse impacts of increased 

sedimentation. However, mitigation measures “need not 

completely compensate for adverse environmental impacts” 

for an agency to rely upon them to find no significant 

environmental impact. Friends of the Payette, 988 F.2d at 

993 (quoting Friends of Endangered Species, Inc. v. Jantzen, 

760 F.2d 976, 987 (9th Cir. 1985)). The Hydrology Report 

explained that “[i]n general, approximately one-third or less 

of total road system mileage has been found to contribute 

sediment to stream systems; conversely, two-thirds or more 

of road system mileage did not contribute.” The five “hot 

spots” locations were thus chosen because they account for 

“nearly two-thirds of [the annual] sediment delivery” caused 

by existing roads, thereby presenting the “best sediment 

reduction opportunities.” Moreover, Alliance ignores 

additional project-wide sediment mitigation measures which 

include the establishment of 300 feet buffers between timber 

harvesting and fish-bearing streams and road maintenance 

outside of the five “hot spots.” The Forest Service’s 

consideration of the A to Z Project’s “hot spots” mitigation 

measures was neither arbitrary nor capricious.

Finally, the Forest Service expressly considered the 

potential sediment impact from grazing in the project site. 

The EA recognized that “[l]ivestock grazing would continue 

on NFS lands, with improved grazing practices that are 

intended to improve riparian conditions, stream habitat, and 

water quality.” The EA additionally found that “the total 

amount of sediment introduced into stream systems as a 

result of ongoing livestock grazing of the 33 cow/calf pairs 

on the North Fork Mill, Strauss, and Rodgers pastures on 

NFS lands within the project area is expected to continue to 

decrease as grazing management allows riparian vegetation 

to become reestablished and any overgrazed areas to 
22 ALLIANCE FOR THE WILD ROCKIES V. PENA

recover.” These conclusions are supported by the EA which 

analyzed and ultimately approved the Colville National 

Forest’s proposal to authorize this grazing activity.

Accordingly, Alliance has not shown either serious 

questions or a likelihood of success on the merits of a NEPA 

claim based on the Forest Service’s sediment analysis.

CONCLUSION

For the foregoing reasons, we conclude that the district 

court did not abuse its discretion in concluding that Alliance 

failed to demonstrate either serious questions or a likelihood 

of success with respect to the merits of any of its NFMA and 

NEPA claims. Because a party seeking a preliminary 

injunction must satisfy all four factors under both the Winter

and “sliding scale” standards for injunctive relief, Cottrell, 

632 F.3d at 1135, we need not address the remaining three 

factors. The district court’s denial of Alliance’s motion for 

a preliminary injunction is therefore AFFIRMED. Alliance 

shall bear costs on appeal. Fed. R. App. P. 39(a)(2).