Mountain Cmtys. for Fire Safety v. Elliott

• Decision Date: 04 February 2022
• Docket Number: No. 20-55660,20-55660
• Citation: 25 F.4th 667
• Parties: MOUNTAIN COMMUNITIES FOR FIRE SAFETY; Los Padres ForestWatch ; Earth Island Institute, Plaintiffs-Appellants, v. Kevin ELLIOTT, in his official capacity as the Forest Supervisor of the Los Padres National Forest; United States Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

25 F.4th 667

MOUNTAIN COMMUNITIES FOR FIRE SAFETY; Los Padres ForestWatch ; Earth Island Institute, Plaintiffs-Appellants,

v.Kevin ELLIOTT, in his official capacity as the Forest Supervisor of the Los Padres National Forest; United States Forest Service, Defendants-Appellees.

No. 20-55660

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2021 Pasadena, California

Filed February 4, 2022

Matt Kenna (argued), Public Interest Environmental Law, Durango, Colorado; René P. Voss, Natural Resources Law, San Anselmo, California; for Plaintiffs-Appellants.

Ana T. Katselas (argued), David Gunter, and Erika Danielle Norman, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Stephen Vaden, General Counsel; Jamie Rosen, Attorney; Office of the General Counsel, United States Department of Agriculture, Washington, D.C.; for Defendants-Appellees.

Sara Ghafouri and Lawson E. Fite, American Forest Resource Council, Portland, Oregon, for Amicus Curiae American Forest Resource Council.

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

OPINION

LEE, Circuit Judge:

The U.S. Forest Service is at loggerheads with several nonprofit groups over its proposed project of "thinning" overcrowded areas in Cuddy Valley within Los Padres National Forest. If some trees are not "thinned"—i.e. , removed—the forest will face increased risks of wildfires, and insects and diseases may ravage the trees, according to the Forest Service. The nonprofit groups, on the other hand, raise the specter of swaths of large trees being slashed and sold by the government with little regard for environmental impact. The Cuddy Valley Project thus implicates complex questions and competing public policy goals.

Our task today, however, is much simpler and more straightforward: Does a U.S. Forest Service regulation allowing "timber stand improvement" activities such as "thinning ... to reduce fire hazard" include "commercial thinning" (i.e. , the cutting of large and commercially viable trees that may be sold by the Forest Service to private parties)? 36 C.F.R. § 220.6(e)(6) ("CE-6" exemption). If so, then the Forest Service can rely on this so-called "CE-6" exemption to move forward with its project to thin trees—without having to prepare an environmental impact statement ("EIS") or an environmental assessment ("EA") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq.

We hold that the CE-6 exemption unambiguously allows the Forest Service to thin trees, including larger commercially viable ones, to reduce fire hazard without having to conduct an EIS or EA. Its plain language does not limit thinning by tree age, size, or type. Nor is thinning defined to exclude commercial thinning. If the thinning project reduces fire hazard and meets certain other conditions, CE-6 greenlights the project, even if it means felling commercially viable trees. And under our deferential review of agency action, we hold that the Forest Service did not act arbitrarily and capriciously in invoking the CE-6 exemption for the project.

We also hold that the Forest Service did not violate the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq. , which sets certain aesthetic management standards. The Forest Service did not have to explain how the project would meet such standards. Or. Nat. Desert Ass'n v. U.S. Forest Serv. , 957 F.3d 1024, 1034 (9th Cir. 2020). In any event, the Forest Service did explain how the project area would retain sufficient scenic integrity.

We thus affirm the district court's summary judgment for the Forest Service.

BACKGROUND

I. The Forest Service Identifies Ecological Challenges in Cuddy Valley.

Cuddy Valley lies nestled in Los Padres National Forest. It is part of the Mt. Pinos Place area, where single-leaf pinyon-California juniper woodlands and forests dominate the low-elevation landscape, while large, old-growth Jeffrey pine dominate the high-elevation landscape. But after years of human-directed suppression of the natural process of wildfires, the forest in Cuddy Valley has become overcrowded with vegetation.

Overcrowding increases the risk of tree loss to insects, disease, severe wildfire, and drought-related mortality. It makes trees more vulnerable to widespread insect and disease outbreaks by forcing trees to compete for moisture, sunlight, and nutrients. In 2012, the National Insect and Disease Forest Risk Assessment identified the Cuddy Valley Project area as being at risk for two species of bark beetles. Many of the Jeffrey and pinyon pine trees in the project area are at "imminent risk" of bark beetle-associated mortality because of overcrowding. Modeling of insect and disease risk for the proposed project area shows a "moderate to high risk of mortality" from these beetles, and the Forest Service has reported pockets of five-to-twenty dead trees throughout the area as a result.

Overcrowding also heightens the risk of major wildfire because of the increase in forest fuels such as shrubs, brush, and tree branches. When they accumulate, they act as "fuel ladders" for wildfire to climb from the forest floor to tree canopies. Dense forest canopies also allow the fire to spread rapidly from treetop to treetop in a "crown fire." High intensity crown fires threaten the structure and health of the forest itself. Since 1998, fifteen fire starts (extinguished with fewer than ten acres burned) have spread throughout the Cuddy Valley treatment areas, and four fires have ravaged more than one thousand acres of land within or next to the Cuddy Valley Project area.

II. The Forest Service Authorizes the Cuddy Valley Project.

To address the overcrowding problem, the Forest Service proposed the Cuddy Valley Project. It covers about 1,200 acres and consists of grasses and shrubs that evolve into pinyon pine and mixed conifer forests. The project would authorize thinning trees and vegetation, which the Forest Service claims would address the overcrowding problems by reducing "stand density, competing vegetation, and fuels."

The project has two main components. First, it proposes thinning, pruning and otherwise treating smaller trees and shrubs, and then burning the fallen branches, mulch, and other leftover fuel. Second, it would cut commercially viable trees and mechanically harvest them for sale. The project would allow commercial logging of up to 601 acres of Jeffrey pine and pinyon-juniper forest.

The Forest Service proposes to restore the overcrowded forest to historical density levels of about 93 trees per acre; currently, there are about 480 trees per acre. The Forest Service intends to remove trees "throughout all diameter classes" but will limit the trees selected for logging in several ways. First, it will retain (1) Jeffrey pine trees that are not infected with dwarf mistletoe, and (2) black oak trees unless individual trees pose a hazard. Second, it will apply a presumption in favor of Jeffrey and pinyon pine when determining which trees will remain uncut.

III. Appellants Sue to Enjoin the Cuddy Valley Project.

In March 2018, the Forest Service sent letters to interested parties seeking comments on the proposed project and released its project proposal. During the public comment period, the Forest Service received over 600 letters: 13 original letters and 587 form letters requesting the Forest Service not to log trees or clear vegetation in the project area. Appellants—two conservation groups and one community organization—submitted comments detailing their concerns that the project would affect sensitive plant and animal species, as well as increase the potential for severe wildfire and invasive species of plants.

U.S. Forest Service Supervisor Kevin Elliott issued a decision memorandum in November 2018 announcing that the agency would proceed with the project to "improve forest health near communities in Cuddy Valley by reducing overstocking, surface and ladder fuels, reduce fire intensities, and make stands more resilient to disturbance (i.e. bark beetle, drought, and wildfire)." He acknowledged public concern about the impact to wildlife but stated that the project would not "imperil species of concern."

Appellants filed a complaint, alleging that the Forest Service had violated both NEPA and NFMA in approving the Cuddy Valley Project. Both sides moved for summary judgment. The district court granted the Forest Service's motion for summary judgment and denied Appellants' motion for summary judgment. Appellants filed a notice of appeal.¹

STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment. Gardner v. U.S. Bureau of Land Mgmt. , 638 F.3d 1217, 1220 (9th Cir. 2011). The Administrative Procedure Act (APA) sets the standards for our review of agency decisions under NEPA and NFMA. Under the APA, we set aside agency action only if we find it 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. CE-6—the "Timber Stand Improvement" Categorical Exclusion—Allows for Thinning of Commercially Viable Trees.

This case centers on interpretation of a single regulation: Does CE-6 permit thinning larger commercially viable trees? Or is it limited to thinning small saplings only? Based on the plain language of CE-6, we hold that it allows for commercial thinning.

A. NEPA permits categorical exclusions allowing projects to proceed without an EIS or EA.

Congress enacted NEPA to establish a national policy for the environment. It also established a Council on Environmental Quality (CEQ), which promulgates "binding regulations implementing the procedural provisions of NEPA." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 354...