Gallatin Wildlife Association; Yellowstone Buffalo Foundation v. United States Forest Service

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GALLATIN WILDLIFE ASSOCIATION;
YELLOWSTONE BUFFALO
FOUNDATION,
Plaintiffs-Appellants,
and
WILDEARTH GUARDIANS; WESTERN
WATERSHEDS PROJECT,
Plaintiffs,
v.
UNITED STATES FOREST SERVICE;
LEANNE MARTEN, in her official
capacity as Regional Forester of the United
States Forest Service; UNITED STATES
FISH AND WILDLIFE SERVICE,
Defendants-Appellees,
HELLE LIVESTOCK, a partnership;
REBISH/KONEN LIVESTOCK
LIMITED PARTNERSHIP; MONTANA
WOOL GROWERS ASSOCIATION;
AMERICAN SHEEP INDUSTRY
No. 19-35528
D.C. No. 2:15-cv-00027-BMM
MEMORANDUM*
FILED
MAY 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 4 --

ASSOCIATION,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted October 8, 2020**
Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON,*** District
Judge.
Appellant Gallatin Wildlife Association (Gallatin) appeals the district
court’s grant of summary judgment in favor of Appellees United States Forest
Service (Forest Service), Helle Livestock, Rebish/Konen Livestock Limited
Partnership, Montana Wool Growers Association, and American Sheep Industry
Association. Gallatin contends that the Forest Service contravened the National
Forest Management Act, the National Environmental Policy Act, and the
Administrative Procedure Act by failing to properly evaluate the viability of
bighorn sheep in the Beaverhead-Deerlodge National Forest. Gallatin maintains
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
2

-- 2 of 4 --

that the Forest Service utilized a flawed coarse filter methodology in determining
that domestic sheep grazing did not pose a significant threat to the viability of
bighorn sheep. Gallatin further asserts that the district court abused its discretion
in denying its motion for an injunction. We have jurisdiction under 28 U.S.C. §
1291. Reviewing de novo the district court’s grant of summary judgment, we
affirm. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601
(9th Cir. 2014).
The Forest Service did not act arbitrarily or capriciously in analyzing the
viability of bighorn sheep, and deference to its scientific methodology is
warranted. See Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095, 1108 (9th
Cir. 2016) (applying arbitrary and capricious standard in holding that the Forest
Service’s methodology in assessing bighorn sheep viability was sound). In
conducting a coarse filter analysis, the Forest Service considered threats from
domestic sheep grazing to bighorn sheep, including disease transmission; discussed
impacts of domestic sheep grazing on bighorn sheep viability; and adequately
delineated the reasons why the coarse filter methodology was employed in lieu of a
fine filter analysis. See id. (explaining that “[t]he Forest Service is owed
greater-than-average deference as it relates to its choice of technical
methodologies”).
3

-- 3 of 4 --

Although the Final Environmental Impact Statement (FEIS) mentioned that
a fine filter analysis “was conducted for . . . species identified by the public as
having viability concerns,” the FEIS elaborated that only two species met the
criteria for conducting a fine filter analysis as identified through public
comments—the northern goshawk and the great gray owl. Contrary to Gallatin’s
assertions, the Forest Service did not commit to conducting a fine filter analysis for
every species identified in public comments as having viability concerns, nor was
it otherwise compelled to utilize the fine filter analysis for those species.1
AFFIRMED.
1 Because we conclude on the merits that Gallatin’s remaining challenge to
the methodology employed by the Forest Service fails, Gallatin is not entitled to an
injunction. See Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 956 n.1 (9th
Cir. 2012).
4

-- 4 of 4 --