Ctr. for Biological Diversity v. Ilano

• Decision Date: 24 June 2019
• Docket Number: No. 17-16760,17-16760
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Earth Island Institute, Plaintiffs-Appellants, v. Eli ILANO; Thomas Tidwell ; United States Forest Service, Defendants-Appellees, Sierra Pacific Industries, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

928 F.3d 774

CENTER FOR BIOLOGICAL DIVERSITY; Earth Island Institute, Plaintiffs-Appellants,

v.Eli ILANO; Thomas Tidwell ; United States Forest Service, Defendants-Appellees,Sierra Pacific Industries, Intervenor-Defendant-Appellee.

No. 17-16760

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 18, 2018 San Francisco, California

Filed June 24, 2019

Justin Augustine (argued), Oakland, California; René P. Voss, San Anselmo, California; for Plaintiffs-Appellants.

Barclay T. Samford (argued) and J. David Gunter II, Attorneys; Eric Grant, Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Denver, Colorado; for Defendants-Appellees.

Lawson E. Fite (argued) and Sara Ghafouri, American Forest Resource Council, Portland, Oregon, for Intervenor-Defendant-Appellee.

Before: Milan D. Smith, Jr. and Jacqueline H. Nguyen, Circuit Judges, and Jane A. Restani,^* Judge.

NGUYEN, Circuit Judge:

In 2014, Congress amended the Healthy Forests Restoration Act ("HFRA") to allow the United States Forest Service greater flexibility in managing the health of forest lands threatened by insect and disease infestation. The Forest Service identified large swaths of lands in California, including lands within the Tahoe National Forest, as insect-infested and diseased areas under the HFRA. In 2016, the Forest Service approved the Sunny South Project, which aimed to address spreading pine-beetle infestation in previously designated at-risk areas within the Tahoe National Forest.

Two environmental groups, the Center for Biological Diversity and Earth Island Institute, filed suit, challenging both the Forest Service’s designation of at-risk forest lands and its approval of the Sunny South Project on the ground that the agency’s actions violated the National Environmental Policy Act ("NEPA"). The district court granted summary judgment in favor of the Forest Service. We affirm.

I.BACKGROUND

A. National Environmental Policy Act

"NEPA mandates the preparation of an [environmental impact statement (‘EIS’) ] for ‘every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment.’ " Friends of Se.’s Future v. Morrison , 153 F.3d 1059, 1062 (9th Cir. 1998) (quoting 42 U.S.C. § 4332(C) ). The federal agency concerned must "prepare an [environmental assessment (‘EA’) ] to determine whether a proposed federal action will have a significant impact and to determine whether preparation of an EIS will be necessary." Native Ecosystems Council v. U.S. Forest Serv. , 428 F.3d 1233, 1238–39 (9th Cir. 2005). Under NEPA, agencies must take a " ‘hard look’ at environmental consequences." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (quoting Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) ). NEPA "does not mandate particular results, but simply prescribes the necessary process." Id. Some actions, however, are categorically excepted or excluded from NEPA’s procedural requirements. See, e.g. , Douglas County v. Babbitt , 48 F.3d 1495, 1502 n.7 (9th Cir. 1995) (referencing categorical exceptions from NEPA compliance for actions under the Clean Air Act and permits under the Marine Mammal Protection Act).

B. Healthy Forests Restoration Act

Congress amended the HFRA as part of the 2014 Farm Bill. See H.R. Rep. No. 113-333, at 512 (2014) (conf. report); Agricultural Act of 2014, Pub. L. No. 113-79, § 8204, 128 Stat. 649, 915–18; S. Rep. No. 113-88, at 18 (2013). The purpose of the HFRA amendments was to address "[t]he outbreak of the pine bark beetle afflicting states across the nation," which was "creating potentially hazardous fuel loads in several western states." H.R. Rep. No. 113-333, at 512 ; see Agricultural Act of 2014 § 8204, 128 Stat. 649, 915–18. Prior to these amendments, the "system for managing national forests affected by historic insect infestations ha[d] not been responsive to the speed and widespread impact of the infestations." H.R. Rep. No. 113-333, at 512. The amendments were intended "to give forest managers greater opportunity to identify and manage risk in the forest." S. Rep. No. 113-88, at 18. In furtherance of this objective, the amendments created a two-step process to combat insect infestations and diseased forests. See 16 U.S.C. §§ 6591a, 6591b.

Under the first step, large areas of forest land that face a heightened risk of harms from infestation and disease are designated as "landscape-scale areas." Id. § 6591a. Within 60 days after the enactment of the amendments, upon request by the governor of a state experiencing an insect or disease epidemic, the Secretary of Agriculture must designate one or more treatment areas in affected national forests in the state. Id. § 6591a(b)(1).¹ After those 60 days, "the Secretary may designate additional landscape-scale areas ... as needed to address insect or disease threats." Id. § 6591a(b)(2).

Regardless of whether the area is designated as an "initial area" under subsection (b)(1) or an "additional area" under subsection (b)(2), the same requirements apply: An area can be designated as a landscape-scale area only if it falls into one of three categories. See id. § 6591a(c). To be designated as a landscape-scale area, the area must be:

(1) experiencing declining forest health, based on annual forest health surveys conducted by the Secretary;

(2) at risk of experiencing substantially increased tree mortality over the next 15 years due to insect or disease infestation, based on the most recent National Insect and Disease Risk Map published by the Forest Service; or

(3) in an area in which the risk of hazard trees poses an imminent risk to public infrastructure, health, or safety.

Id.

Under the second step of the two-step process, treatment projects are created and implemented to combat issues faced in the landscape-scale areas. See id. § 6591b. Projects under this second step "may be ... categorically excluded from the requirements of [NEPA]." Id. § 6591b(a)(1).

Two months after the HFRA amendments were enacted, the Forest Service issued a two-page white paper addressing the applicability of NEPA to the designation of landscape-scale areas under 16 U.S.C. § 6591a ( section 602 of the HFRA). The Forest Service concluded that because the designation of landscape-scale areas does not directly or indirectly affect the environment, there are no effects that can be meaningfully evaluated, and a NEPA analysis is not required at the designation stage.

C. Designation of Landscape-Scale Areas and Development and Approval of the Sunny South Project

In 2014, at the request of California’s governor, the Chief of the Forest Service designated 1.5 million acres of land as a landscape-scale area under § 6591a(b)(1). And in 2015, the Chief designated an additional 5.3 million acres of lands in California, which encompassed the Tahoe National Forest, as a landscape-scale area under § 6591a(b)(2). The Chief designated these additional areas because they met one or more of the following criteria: they were "experiencing declining forest health," were "at risk of substantially increased tree mortality," or were areas "in which the risk of hazard trees poses an imminent risk to public infrastructure, health, or safety." See 16 U.S.C. § 6591a.

In the fall of 2015, the Forest Service initiated planning for the Sunny South Project. The project authorizes tree thinning and prescribed burning across 2,700 acres of the Tahoe National Forest. The project addresses the "perfect storm for an outbreak of bark beetles" caused by "four years of drought causing moisture stress in the trees and dense stands of almost pure ponderosa pine in sizes attractive to the bark beetle." Its stated objective is to "give the remaining green trees access to more water and nutrients, leading to improved vigor to overcome the insect infestation." The project was designed to "have positive ... effects on wildfire control operations."

In 2016, biologists completed an evaluation to assess the Sunny South Project’s "potential effects and determine whether [it] would result in a trend toward listing or loss of viability for sensitive species." In preparing the evaluation, the biologists made "a conscientious attempt ... to review and draw from the best available science regarding species, their associated habitat needs, and the potential for adverse project-related effects." As part of that evaluation, the biologists examined the project’s potential effect on the California spotted owl, which the Forest Service designated as a sensitive species in the Tahoe National Forest. Ultimately, the biologists concluded that the Sunny South Project "may affect individuals, but is not likely to result in a trend toward federal listing or loss of viability for the California spotted owl."

The Forest Service approved the Sunny South Project in a decision memo dated August 3, 2016. In the memo, the Forest Service concluded that the project was categorically excluded from NEPA analysis under the HFRA, as there were no extraordinary circumstances preventing the application of the categorical exclusion from NEPA.

D. Procedural History

The Center for Biological Diversity and Earth Island Institute filed suit, alleging that the Forest Service violated NEPA when it designated the 5.3 million acres in California under § 6591a(b) without first preparing an EA or EIS. Plaintiffs also alleged that the Forest Service violated NEPA when it invoked the categorical exclusion in § 6591b for the Sunny South Project. The district court granted summary judgment in favor of the Forest Service² and Defendant-Intervenor Sierra Pacific Industries. Plaintiffs timely appealed.

II.JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. "We review a district court’s grant of summary judgment on NEPA claims de novo ." Tri-Valley CAREs v. U.S. Dep’t...