Bark v. U.S. Forest Serv.

• Decision Date: 04 May 2020
• Docket Number: No. 19-35665,19-35665
• Citation: 958 F.3d 865
• Parties: BARK; Cascadia Wildlands ; Oregon Wild, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, a federal agency, Defendant-Appellee, High Cascade, Inc., Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

958 F.3d 865

BARK; Cascadia Wildlands ; Oregon Wild, Plaintiffs-Appellants,

v. UNITED STATES FOREST SERVICE, a federal agency, Defendant-Appellee,High Cascade, Inc., Intervenor-Defendant-Appellee.

No. 19-35665

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2019 Seattle, Washington

Filed May 4, 2020

ORDER

Appellants' request to publish the unpublished Memorandum disposition, Docket No. 37, is GRANTED . The Memorandum disposition filed April 3, 2020, is redesignated as an authored Opinion by Judge Higginson, with modifications. The time for filing a petition for rehearing and petition for rehearing en banc shall start anew as of the filed date of this Opinion.

HIGGINSON, Circuit Judge:

Appellants Bark, Cascadia Wildlands, and Oregon Wild timely appeal the district court's summary judgment in favor of Appellees, the United States Forest Service (USFS) and High Cascade, for claimed violations of the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). We hold that the USFS's determination that the Crystal Clear Restoration (CCR) Project did not require an Environmental Impact Statement (EIS) was arbitrary and capricious and so reverse. We do not reach the NFMA claims.

I.

The CCR Project is a forest management effort and timber sale affecting 11,742 acres in Mt. Hood National Forest. The Project area is partly a moist "transition" climate, and partly a dry "eastside" climate. According to the USFS, forest stands in the area tend to be overstocked as a result of past management practices. When trees are closer together, they are more susceptible to insects and disease and to high-intensity wildfires. The USFS undertook the CCR Project in order to "provide forest products from specific locations within the planning area where there is a need to improve stand conditions, reduce the risk of high-intensity wildfires, and promote safe fire suppression activities." The USFS plans to achieve these goals in part using a technique called "variable density thinning." This process gives the agency flexibility in choosing which trees to cut, thereby allowing the USFS to create variation within an area of forest so that the stands "mimic more natural structural stand diversity." The USFS plans to leave an average canopy cover of 35–60%, with a minimum of 30% where the forest is more than 20 years old.

"NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences" of their proposed actions. League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton , 752 F.3d 755, 763 (9th Cir. 2014) (internal quotation marks omitted). Agencies must prepare an EIS for federal actions that will "significantly affect[ ] the quality of the human environment." 42 U.S.C. § 4332(2)(C). To determine whether a proposed action will have a significant effect on the quality of the human environment, agencies must prepare an Environmental Assessment (EA) that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1). An EIS is required when this process raises "substantial questions" about whether an agency action will have a significant effect. Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1212 (9th Cir. 1998) ; see also Native Ecosystems Council v. U.S. Forest Serv. , 428 F.3d 1233, 1238–39 (9th Cir. 2005). "If the agency concludes in the EA that there is no significant effect from the proposed project, the federal agency may issue a finding of no significant impact (‘FONSI’) in lieu of preparing an EIS."

Native Ecosystems Council , 428 F.3d at 1239 (citing 40 C.F.R. § 1508.9(a)(1) ; id. § 1508.13).

After conducting an EA, the USFS determined that the CCR Project had no significant effects. It therefore issued a FONSI and did not prepare an EIS.

Appellants filed a complaint against the USFS bringing claims under NEPA and the NFMA. The NEPA claim alleged that the USFS did not undertake a proper analysis of the environmental impacts of the Project or of alternatives to the Project. The NFMA claim alleged that the USFS failed to comply with two forest plans and other guidance documents governing the Project area as required by the NFMA. The district court granted summary judgment to Appellees on all claims. Appellants timely appealed.

II.

We review the district court's grant of summary judgment de novo. Ctr. for Biological Diversity v. Ilano , 928 F.3d 774, 779 (9th Cir. 2019). The Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), provides the governing standard for courts reviewing an agency's compliance with NEPA and the NFMA. Native Ecosystems Council , 428 F.3d at 1238. Under the APA, we may overturn an agency's conclusions when they are "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 if the agency has: relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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." WildEarth Guardians v. U.S. E.P.A. , 759 F.3d 1064, 1069–70 (9th Cir. 2014) (quoting Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. , 698 F.3d 1101, 1109 (9th Cir. 2012) ). An agency's factual determinations "must be supported by substantial evidence." Connaughton , 752 F.3d at 759.

In reviewing an agency's finding that a project has no significant effects, courts must determine whether the agency has met NEPA's hard look requirement, "based [its decision] on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project's impacts are insignificant." In Def. of Animals v. U.S. Dep't of Interior , 751 F.3d 1054, 1068 (9th Cir. 2014) (alteration in original) (quoting Envtl. Prot. Info. Ctr. v. U.S. Forest Serv. (EPIC) , 451 F.3d 1005, 1009 (9th Cir. 2006) ). The term "significant" includes considerations of both the context and the intensity of the possible effects. 40 C.F.R. § 1508.27. "Context simply delimits the scope of the agency's action, including the interests affected." In Def. of Animals , 751 F.3d at 1068 (quoting Nat'l Parks & Conservation Ass'n v. Babbitt , 241 F.3d 722, 731 (9th Cir. 2001), abrogated in part on other grounds by Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 157, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) ). Consideration of context involves analysis "in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality." 40 C.F.R. § 1508.27(a). "[I]n the case of a site-specific action, significance ... usually depend[s] upon the effects in the locale rather than in the world as a whole." Id .

Consideration of intensity "refers to the severity of impact." Id. § 1508.27(b). NEPA regulations list ten non-exhaustive factors that inform an agency's intensity determination, including "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial," id. § 1508.27(b)(4), "[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks," id. § 1508.27(b)(5), and "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts," id. § 1508.27(b)(7). The regulations explain that "[s]ignificance exists if it is reasonable to anticipate a cumulatively significant impact on the environment," and "cannot be avoided by ... breaking [an action] down into small component parts." Id. "When substantial questions are raised as to whether a proposed project ‘may cause significant degradation of some human environmental factor,’ an EIS is required." In Def. of Animals , 751 F.3d at 1068.

III.

The USFS's decision not to prepare an EIS was arbitrary and capricious for two independent reasons.

A.

First, the effects of the Project are highly controversial and uncertain, thus mandating the creation of an EIS. See 40 C.F.R. § 1508.27(b)(4) & (5) (listing relevant factors for whether an EIS is required, including if the project's effects are "highly controversial" and "highly uncertain"). The stated primary purpose of the CCR Project is to reduce the risk of wildfires and promote safe fire-suppression activities, but Appellants identify considerable scientific evidence showing that variable density thinning will not achieve this purpose. Considering both context and intensity, as required by 40 C.F.R. § 1508.27, this evidence raises substantial questions about the Project's environmental impact, and an EIS is required. See, e.g. , Blackwood , 161 F.3d at 1212 ; Native Ecosystems Council , 428 F.3d at 1238–39.

"A project is ‘highly controversial’ if there is a ‘substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use.’ " Native Ecosystems Council , 428 F.3d at 1240 (alteration in original) (quoting Blackwood , 161 F.3d at 1212 ). "A substantial dispute exists when evidence ... casts serious doubt upon the reasonableness of an agency's conclusions." In Def. of Animals , 751 F.3d at 1069 (quoting Babbitt , 241 F.3d at 736 ). "[M]ere opposition alone is insufficient to support a finding of controversy." WildEarth Guardians v. Provencio , 923 F.3d 655, 673 (9th Cir. 2019).

The EA explained that the CCR Project will use "variable density thinning" to address wildfire concerns. "In variable density thinning, selected trees of all sizes ... would be removed." This process would assertedly make the treated areas "more resilient to perturbations such as ... large-scale high-intensity fire...