Forestwatch v. U.S. Forest Serv.

• Decision Date: 04 February 2022
• Docket Number: No. 20-55859,20-55859
• Parties: LOS PADRES FORESTWATCH ; Earth Island Institute; Center for Biological Diversity, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Kevin Elliott, Supervisor, Los Padres National Forest; United States Fish and Wildlife Service, Defendants-Appellees, American Forest Resource Council; California Forestry Association ; Associated California Loggers, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

25 F.4th 649

LOS PADRES FORESTWATCH ; Earth Island Institute; Center for Biological Diversity, Plaintiffs-Appellants,

v. UNITED STATES FOREST SERVICE; Kevin Elliott, Supervisor, Los Padres National Forest; United States Fish and Wildlife Service, Defendants-Appellees,American Forest Resource Council; California Forestry Association ; Associated California Loggers, Intervenor-Defendants-Appellees.

No. 20-55859

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2021 Pasadena, California

Filed February 4, 2022

Justin Augustine (argued), Law Office of Justin Augustine, Oakland, California; Brian Segee, Center for Biological Diversity, Los Angeles, California; for Plaintiffs-Appellants.

Jeffrey S. Beelaert (argued), Bridget K. McNeil, and Sean C. Duffy, Attorneys; Jean E. Williams, Acting Assistant Attorney General; United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; for Defendants-Appellees.

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

Before: Ryan D. Nelson and Kenneth K. Lee, Circuit Judges, and Sidney H. Stein,^* District Judge.

OPINION

STEIN, District Judge:

The Tecuya Ridge, part of the San Emigdio Mountain range, rises up from the Los Padres National Forest and overlooks the mountain communities of Lebec, Frazier Park, Lake of the Woods, Pine Mountain Club, and Pinon Pines Estates. The Ridge falls within the Mt. Pinos Place Management Area, an environment forested with old-growth trees, including Singleleaf pinyon-California juniper and Montane conifer. The area provides habitat for the California condor, the California spotted owl, and the northern goshawk and affords a scenic backdrop to the mountain communities nestled within it. But because the Tecuya Ridge is home to densely populated forest stands,¹ the Forest Service has determined that both the forest and the adjacent mountain communities are at risk of destruction by wildfire. To address this risk, the Forest Service proposed the Tecuya Ridge Shaded Fuelbreak Project (the "Project") in March 2018. The Project aims to create a fuelbreak, a "wide strip or block of land on which the native or pre-existing vegetation has been permanently modified so that fires burning into it can be more readily extinguished,"² running roughly in a jagged line along the Tecuya Ridge.

In April 2019, Los Padres Forest Supervisor Kevin Elliot published a Decision Memo approving the Project. Appellants Los Padres ForestWatch, Center for Biological Diversity, and Earth Island Institute filed a complaint challenging this decision on two grounds: that the Forest Service's approval of the project violates the National Environmental Policy Act of 1969 ("NEPA"), and that the Project authorizes logging large diameter trees in violation of the Roadless Area Conservation Rule. The parties filed cross-motions for summary judgment. The district court granted Appellee's motion for summary judgment and denied Appellants' motion for summary judgment. Appellants filed a timely notice of appeal on August 20, 2020.

Because the Forest Service has failed to explain how its decision to approve the Project complies with the requirements of the Roadless Area Conservation Rule, the Court vacates the district court's decision and the Forest Service's Decision Memo approving the Project and remands this case to the Forest Service to substantiate its conclusions.

BACKGROUND

Since 1998, fifteen wildfires have burned through the Tecuya Ridge. The Forest Service believes that the risk of wildfire in that area remains high because the Tecuya Ridge consists of densely packed forest stands. Overcrowded stands are vulnerable to severe wildfire because they are full of tightly packed forest fuels—combustible forest materials—like shrubs, brush, and tree branches.³ "Surface" fuels lie on the forest floor, while "ladder" fuels allow wildfire to climb from the forest floor to the tree canopies.⁴ The Forest Service has determined that surface and ladder fuel loads, dense tree crown cover, continued periods of drought, and the presence of trees ravaged by insects and disease in the Tecuya Ridge pose a risk of a wildfire with the potential to destroy an entire forest stand.

Accordingly, the Forest Service proposed the Tecuya Ridge Shaded Fuelbreak Project in March 2018. The Project Decision Memo explains that the Project aims to create a fuelbreak to "provide safe and effective locations from which to perform fire suppression operations," to "slow the spread of wildland fire," to "reduce the potential for the loss of life, property, and natural resources," and to "increase the forest's resilience to insects and diseases."

To accomplish these goals, the Project authorizes thinning 1,626 acres of forest, including approximately 1,100 acres within a protected area called the Antimony Inventoried Roadless Area ("IRA"). "Thinning," as explained in the Project Decision Memo, means that commercially viable trees will be cut down and mechanically harvested for commercial sale. Smaller trees and shrubs would either be treated by mastication—which means using equipment to grind, chip, or break apart brush and small trees into small pieces, leaving a "mulch" made from wood chips on the forest floor⁵ —hand-thinning, or pruning. Any fuels created by these activities would be scattered or piled by hand on the forest floor and burned. The vast majority of the trees targeted for treatment will be commercially logged and sold.

On March 13, 2018, the Forest Service issued a Project Proposal for the Tecuya Ridge Shaded Fuelbreak Project and a letter soliciting public comment on the proposal. Between April 2018 and April 2019, Appellants and other interested parties submitted comments to the Forest Service, raising concerns, among others, that the Project violated 1) NEPA by authorizing the sale of commercial wood products pursuant to a categorical exclusion, and 2) the Roadless Area Conservation Rule by authorizing commercial logging in the Antimony IRA.

In April 2019, Los Padres Forest Supervisor Kevin Elliot published a Decision Memo approving the Project. The Decision Memo explained that the Forest Service had considered the public's concern regarding "impacts to wildlife, the Antimony IRA, and the commercial sale of timber and other wood products" but had determined that the Project would not "imperil species of concern."

Appellants filed a complaint challenging the Forest Service's decision to approve the Project on the grounds that the decision violated the Roadless Area Conservation Rule and NEPA. The district court granted Appellee's motion for summary judgment and denied Appellants' motion for summary judgment on August 20, 2020. This appeal followed.⁶

STANDARD OF REVIEW

Appellate courts "review a grant of summary judgment de novo." Gardner v. U.S. Bureau of Land Mgmt. , 638 F.3d 1217, 1220 (9th Cir. 2011) (citing Swanson v. U.S. Forest Serv. , 87 F.3d 339, 343 (9th Cir. 1996) ).

Courts review agency decisions under NEPA and the Roadless Area Conservation Rule under the standards set out in the Administrative Procedure Act ("APA"), and "must set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Idaho Sporting Cong., Inc. v. Rittenhouse , 305 F.3d 957, 964 (9th Cir. 2002) (citing 5 U.S.C. § 706 ).

ANALYSIS

I. The Forest Service's Conclusion that the Tecuya Ridge Project Is Consistent with the Roadless Area Conservation Rule Is Arbitrary and Capricious.

The Roadless Area Conservation Rule

was established in 2001⁷ pursuant to a presidential directive to "initiate a nationwide plan to protect inventoried and uninventoried roadless areas" within national forests. Kootenai Tribe of Idaho v. Veneman , 313 F.3d 1094, 1105 (9th Cir. 2002). In promulgating the rule, the Forest Service identified 58.5 million acres of "inventoried roadless areas," including the Antimony IRA. See id.

An "Inventoried Roadless Area" ("IRA") is an area that "provide[s] large, relatively undisturbed landscapes that are important to biological diversity and the long-term survival of many at risk species." Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3,244, 3,245 (Jan. 12, 2001) ; see also 36 C.F.R. § 294.11. The Antimony IRA, forested with pinyon pine, other conifers, and sagebrush, spans nearly 40,513 acres across the San Emigdio Mountain range. Twenty-four miles long and three miles wide, it lies both north of and adjacent to the San Andreas Rift Zone. The ridge tops of Antimony provide expansive views of the southern San Joaquin Valley. The Antimony IRA also provides habitat for California condors, which, according to the Final Supplemental Environmental Impact Statement for the Southern California National Forests Land Management Plan Amendment, use the area "extensively for travel and roosting as they soar on uplifted winds along the southern boundary of the San Joaquin Valley."

The Project authorizes thinning, including commercial thinning, of approximately 1,100 acres of forest within the Antimony IRA. Generally, timber cutting, sale, or removal in areas like the Antimony IRA are prohibited by the Roadless Area Conservation Rule because those activities "have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics." Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3,244. But the Rule provides for some exceptions. For instance, "[t]imber may be cut, sold, or removed in inventoried roadless areas" if the Responsible Official determines:

(1) The cutting, sale, or removal of generally small diameter timber is needed for one of the following purposes and will maintain or improve one or more of the roadless area characteristics as defined in § 294.11.

(i) To improve threatened, endangered, proposed, or sensitive species habitat; or

(ii) To

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