ELR Citation: 53 ELR 20168
No(s). 22-35706 (9th Cir. Oct 26, 2023)

In an unpublished opinion, the Ninth Circuit affirmed in part and reversed in part summary judgment for the Forest Service and FWS in a challenge to their approval of a cattle grazing project in Oregon. Environmental groups first argued the Service's final EIS failed to take a "hard look" at three issues regarding Oregon spotted frogs: direct impacts such as trampling, climate change and increasing drought, and population-level effects. The court found the EIS rationally explained its decision to focus on habitat characteristics rather than frog numbers, acknowledged the threats posed by trampling and climate change, and included sufficient information for a reader to understand how different grazing strategies affect those threats. The groups next argued the Service failed to demonstrate the project's consistency with the Winema National Forest Plan, in violation of the National Forest Management Act (NFMA). The court found the Service sufficiently explained why allowing 20% streambank alteration was consistent with the plan's 5% streambank degradation limit. Last, the groups argued the discussion of climate change in FWS' biological opinion (BiOp) was deficient. The court held the BiOp failed to consider how climate change would impact frogs in nondrought years. It affirmed summary judgment for the Forest Service on the NEPA and NFMA claims, reversed summary judgment for FWS on the ESA claim, and remanded to the district court to vacate the BiOp and remand to FWS for further proceedings.