                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 30 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LEAGUE OF WILDERNESS                             No. 13-35054
DEFENDERS/BLUE MOUNTAINS
BIODIVERSITY PROJECT, an Oregon                  D.C. No. 3:10-cv-01397-SI
nonprofit corporation,

              Plaintiff - Appellant,             MEMORANDUM*

  v.

UNITED STATES FOREST SERVICE,
an agency of the United States Department
of Agriculture; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                        Argued and Submitted July 9, 2014
                                Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.

       Appellant League of Wilderness Defenders/Blue Mountains Biodiversity

Project (“LOWD”) appeals the district court’s summary judgment ruling granting


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
in part and denying in part the parties’ cross-motions for summary judgment on

LOWD’s claims against the United States Forest Service (“Forest Service”)

relating to the Forest Service’s approval of a project to apply herbicides in the

Wallowa-Whitman National Forest (the “Project”). We affirm in part, reverse in

part, and remand.

         1.   Although the district court granted relief to LOWD on one of its

National Environmental Policy Act (“NEPA”) claims and remanded that claim to

the Forest Service, we conclude that the court’s judgment is final under 28 U.S.C.

§ 1291. The remand order does not require the Forest Service to reconsider any of

the issues LOWD raises on appeal. It is therefore “meaningless” as to the relevant

appellate issues. In these circumstances, the district court’s judgment is final for

the purposes of this appeal. Sierra Forest Legacy v. Sherman, 646 F.3d 1161,

1175–76 (9th Cir. 2011). Thus, this court has jurisdiction under § 1291. Id.; see

also HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1229 (9th Cir.

2014).

         2.   In approving the Project, the Forest Service did not violate the

National Forest Management Act (“NFMA”) by failing to discuss in the

Environmental Impact Statement (“EIS”) that the project would be consistent with:

(1) the Interim Strategies for Managing Anadromous Fish-producing Watersheds


                                           2
in Eastern Oregon and Washington, Idaho, and Portions of California

(“PACFISH”), and (2) the Inland Native Fish Strategy (“INFISH”). PACFISH and

INFISH are strategies for managing riparian habitats and are incorporated into the

Forest Plan. The Forest Service’s analysis of impacts to riparian habitats

contained in the portions of its EIS addressing the Endangered Species Act

(“ESA”) and setting forth the Project Design Features is sufficient for us to

“reasonably . . . ascertain . . . that the Forest Service is in compliance with”

PACFISH/INFISH, including the riparian management objectives (“RMOs”) and

standard RA-3. Native Ecosystems Council v. U.S. Forest Serv., an agency of U.S.

Dep’t of Agric., 418 F.3d 953, 963 (9th Cir. 2005). We therefore affirm the district

court’s ruling on LOWD’s NFMA claim.

      3.     The Forest Service did, however, violate the NEPA. The Forest

Service recognized that the Project might “potentially affect[]” riparian conditions

and the potential impact on riparian habitats was identified as a significant issue.

Because PACFISH/INFISH provides the approved strategy for managing riparian

habitats and the criteria for assessing whether such habitats are adequately

maintained, the Forest Service was required, under NEPA, to include an explicit

PACFISH/INFISH analysis in its EIS. See 40 C.F.R. § 1502.2(d); Oregon Natural

Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1109 (9th Cir. 2010)


                                           3
[hereinafter ONDA]. Although the analysis contained in the portions of the EIS

discussing the ESA and the Project Design Features addressed issues relevant to

the PACFISH/INFISH analysis, the Forest Service never stated in the EIS that it

relied upon those discussions to conclude that the Project was consistent with

PACFISH/INFISH. Moreover, on appeal, the Forest Service expressly disclaims

that it satisfied its obligation to analyze the Project’s consistency with

PACFISH/INFISH “by proxy” through its discussion of the Project Design

Features and ESA analysis, and maintains that it had no duty to perform a

“consistency analysis” of the PACFISH/INFISH standards. In ONDA, we rejected

the Forest Service’s argument that its consideration of certain resource values

could serve as a proxy for an analysis of wilderness characteristics in part because

“the BLM never purported to have developed such a proxy methodology” and had

“firmly maintained that . . . it need not address the fate of non-WSA lands with

wilderness characteristics at all.” Id. at 1121. We explained that “courts may not

accept . . . post hoc rationalizations for agency action.” Id. at 1120. Here, in light

of the EIS, and the Forest Service’s position on the need to show consistency with

PACFISH/INFISH, we similarly cannot conclude that the Forest Service fulfilled

its obligation to analyze PACFISH/INFISH consistency in the EIS as required by

NEPA. See id. Accordingly, we reverse the district court’s summary judgment


                                           4
ruling on LOWD’s NEPA claim and remand for further proceedings consistent

with this memorandum disposition. The parties shall bear their own costs on

appeal.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




                                        5
                                                                                FILED
                                                                                OCT 30 2014

                                                                             MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS




League of Wilderness Defenders v. United States Forest Service, No. 13-35054

WATFORD, Circuit Judge, concurring in part and dissenting in part:

      For the reasons given by the district court, I would affirm in full.
