NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

COTTONWOOD ENVIRONMENTAL LAW CENTER,

Plaintiff

- Appellant,

v. LEANNE MARTEN, in her official capacity as Regional Forester, U.S. Forest Service; et al.,
Defendants

- Appellees. No. 21

- 35070
D.C. No. 2:20

- cv - 00031

- BMM

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding Argued and Submitted February 11, 2022

Portland, Oregon Before: PAEZ and NGUYEN, Circuit Judges, and EATON, * * Judge.
Cottonwood Environmental Law Center appeals the district court’s order dismissing its complaint without leave to amend and denying its motion for a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation. 

# FILED

MAY 6 2022
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

preliminary injunction. We have jurisdiction under 28 U.S.C. § 1291 . W e affirm. 1
1. Motion to Dismiss
A. First Claim for Relief: Cottonwood ’s first claim for relief allege s that the National Environmental Policy Act (“NEPA”) obligated the Forest Service to supplement the Environmental Impact Statement (“EIS”) for the 1987 Gallatin Forest Plan (the “Forest Plan”) after the Forest Ser vice promulgated regulations in 2012 recognizing that climate change necessitated updates to forest plans , 36 C.F.R. § 219.5

. 2 The operative statue, 16 U.S.C. § 1604(f)(1) , requires the Forest Service to develop a Land Resource Management Plan, or “forest plan,” for each national forest that balances ecological, commercial, recreational, and other uses. The

1 We deny Cottonwood’s motion to strike exhibits to an amicus brief. See Funbus Sys., Inc. v. State of Cal. Pub. Utilities Comm’n. , 801 F.2d 1120, 1125 (9th Cir. 1986) (allowing non

- governmental agencies to file jointly with government agencies without seeking leave o f court or consent of parties). 2 The Forest Service represented to the c ourt on February 9, 2022 that it has completed a Revised Custer

- Gallatin Forest Plan pursuant to 36 C.F.R. § 219.5 , which went into effect on February 27, 2022

. The Forest Service contends that this moots the claim. The Forest Service represents that the 1987 Forest Plan now has “no effect independent of previously approved site

- specific projects.” But Cottonwood seeks to enjoin site

- specific projects that were approved under the 1987 Fores t Plan. Thus, vacatur of the 1987 Forest Plan could provide Cottonwood relief because it c ould halt action on one or more of the projects. Cottonwood’s claim is therefore not moot. See, e.g. , Nw. Env’t Def. Ctr. v. Gordon , 849 F.2d 1241, 1244 (9th Cir. 1988) (“ The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted. ”)

.3

Forest Service implements the forest plan through individual site

- specific projects, which must comply with the forest plan. Id. § 1604(i); Idaho Spo rting Cong., Inc.
v. Rittenhouse , 305 F.3d 957, 962 (9th Cir. 2002). The Forest Service must also comply with NEPA , which “ does not mandate particular results, but simply prescribes the necessary process .” Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 3 50 (1989)

. NEPA requires the
Forest Service to supplement an EIS where 1) there are “significant new
circumstances or information” that will “ show that the remaining action will affect the quality of the human environment in a sign ificant manner or to a significant extent not already considered , ” and 2) “ there remains major Federal actio n to

occur ,” or “ ongoing ” action. Marsh v. Oregon Natural Resources Council , 490 U.S. 360, 372

- 74 (1989) (internal quotations and alterations omit ted) ; Norton v. S.
Utah Wilderness All. (“ SUWA ”) , 542 U.S. 55, 73 (2004)

. This claim hinges on whether the 1987 Forest Plan constitutes ongoing
federal action. The Forest Service argues that SUWA ’s holding that finalized Bureau of Land Management land plans do not constitute ongoing major Federal
action under NEPA controls

. Id. at 73. Cottonwood, however, argues that Pac ific
Rivers Council v. Thomas ’s holding that Forest Service forest plans “represent ongoing agency ac tion” under the Endangered Species Act (“ESA”) controls, because “ongoing agency action” for the purpose of the ESA is “ongoing major4

Federal action” for the purpose of NEPA. 30 F.3d 1050 , 1053 (9th Cir. 1994 ). In other words, the parties differ over whe ther “ongoing major Federal action” is consistent by statute or by agency. We agree with the Forest Service. Pacific Rivers Council reasoned from the

text of the ESA to define “ongoing agency action.” 30 F.3d at 105 3

- 56 (9th Cir. 1994) (“ In short, there is little doubt that Congress intended to enact a broad definition of agency action in the ESA . . .”) (emphasis added). SUWA also reasoned from the language of NEPA, not from agency

- specific language. 542
U.S. at 72

- 73 . Moreover, we have stated that “agency action” is interpreted differently from statute to statute: “[a] lthough the ‘ major federal action ’ standard
under NEPA i s similar to the more liberal ‘ agency action ’ standard under the ESA, the terms are not interchangeable. ” Karuk Tribe of California v. U.S. Forest Serv. , 681 F.3d 1006, 1024 (9th Cir. 2012) (internal citations omitted).
Because the 1987 Forest Plan is n ot ongoing action under SUWA for the purposes of NEPA, the Forest Service was not required to conduct a supplemental NEPA analysis for the 1987 Forest Plan. We affirm the district court’s dismissal
of Cottonwood’s first claim for relief.5

B. Second and Fourth Claim s for Relief: 3 Cottonwood contends that
several recent events require the Forest Service to supplement project

- level NEPA analysis for three logging projects currently ongoing in the CGNF.
i. Bozeman Municipal Water (“BMW”) Projec t : Cottonwood has not sufficiently pled claims concerning the BMW because Cottonwood has not alleged “significant new information.” Cottonwood points to two potential sources of significant new information: the Forest Service’s decision to revise the Forest Plan (Claim Two) and new markings on trees in the BMW Project area (Claim Four)

. Under our caselaw , neither constitute s significant new information : the announced revision of the Plan, absent more, does not necessarily portend changes to the
human environ ment, and the tree markings do not constitute “significant”
information

. See Marsh , 490 U.S. at 374 (new information must show that remaining action will affect the quality of the human environment in a significant manner or to a significant extent not al ready considered) (internal citations omitted). We therefore affirm the district court’s denial of Cottonwood’s second
and fourth claim for relief as they pertain to the BMW Project.
ii. North Hebgen (“NH”) Project: Cottonwood contends that the
announced rev ision of the Forest Plan (Claim Two) constitutes new information as to the NH Project as well. For the reasons stated above, this claim as well is

3 Cottonwood did not appeal the third claim’s dismissal

.6

unmeritorious, and we affirm the district court’s dismissal of Claim Two as to the NH Project.
iii. North Bridger (“NB”) Project: Cottonwood contends that the announced revision of the Forest Plan (Claim Two) and markings on trees discovered in the NB Project area (Claim Four) constitute significant new
information. The district court dismissed these claims , finding that a categorical exclusion to NEPA requirements (“CE”) covered the NB Project

. 4 Cottonwood does not challenge the CE; rather, it argues that despite the CE, “a project that implements an inadequate Forest Plan is a violation of NEPA” and thus should be enjoined. Its cited authority does not support this argument , nor has it alleged facts that, if proven, would show that the Forest Plan was inadequate. We affirm the
district court’s dismissal of Cottonwood’s second and fourth claims for relief as they pertain to the NB Project.
2. Motion for a Preliminary Injunction: Because we affirm the district court’s dismissal of Cottonwood’s complaint without leave to amend, we need not reach Cottonwood’s appeal of the district court’s denial of its motion f or a preliminary injunction.

4 In 2014, Congress amended the Healthy Forest Restoration Act to create a process for expedited approval of projects treating insect

- infested or diseased forest , which culminates in the granting of a CE

. 16 U.S.C § 6591b ; s ee Native Ecosystems Council v. Erickson , 330 F. Supp. 3d 1218, 1226 (D. Mont. 2018).7

AFFIRMED.