Sierra Club v. Bosworth

Decision Date05 December 2007
Docket NumberNo. 05-16989.,05-16989.
Citation510 F.3d 1016
PartiesSIERRA CLUB; Sierra Nevada Forest Protection Campaign, Plaintiffs-Appellants, v. Dale BOSWORTH, Chief of the U.S. Forest Service; John Barry; Laurie Tippin; United States Forest Service; Ann M. Veneman; Dept. of Agriculture; Mike Johanns, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Eric. E. Huber, Boulder, CO, and Kristin Henry, San Francisco, CA, for the plaintiffs-appellants.

MacGregor W. Scott, Sacramento, CA, for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, District Judge, Presiding. D.C. No. CV-04-02114-GEB.

Before: DAVID R. THOMPSON, ANDREW J. KLEINFELD, and SIDNEY R. THOMAS, Circuit Judges.

Opinion by Judge THOMPSON; Concurrence by Judge KLEINFELD.

THOMPSON, Senior Circuit Judge:

Appellants the Sierra Club and the Sierra Nevada Forest Protection Campaign (collectively, "Sierra Club") appeal the district court's summary judgment in favor of the United States Forest Service and Department of Agriculture (collectively, "Forest Service"), in their action alleging that the defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f. The Sierra Club challenges the Forest Service's establishment of a NEPA categorical exclusion ("Fuels CE") for all fuel reduction projects up to 1,000 acres and prescribed burn projects up to 4,500 acres on all national forests in the United States.

We conclude that the Forest Service failed to assess properly the significance of the hazardous fuels reduction categorical exclusion and thus it failed to demonstrate that it made a "reasoned decision" to promulgate the Fuels CE based on relevant factors and information. Accordingly, its promulgation of the Fuels CE was arbitrary and capricious. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); see also 40 C.F.R. § 1505.1. We reverse the district court's summary judgment in favor of the Forest Service and remand this case for further proceedings as hereafter set forth.

I Background
A. Statutory and Regulatory Framework

NEPA is a procedural statute that does not "mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir.2002) (internal quotation marks omitted). To carry out the "hard look" requirement, NEPA requires all federal agencies to prepare a detailed Environmental Impact Statement ("EIS") for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Under CEQ implementing regulations, an agency as a preliminary step may prepare an Environmental Assessment ("EA") to determine whether the environmental impact of the proposed action is significant enough to warrant an EIS. See 40 C.F.R. § 1508.9; Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir.2001). If an EA establishes that the agency's action "may have a significant effect upon the . . . environment, an EIS must be prepared." Id. (internal quotation marks omitted) (alteration in original) (emphasis in original). If the proposed action is found to have no significant effect, the agency must issue a finding to that effect (a "FONSI"), "accompanied by a convincing statement of reasons to explain why a project's impacts are insignificant." Id. (internal quotation marks omitted).

However, an agency does not have to prepare an EIS or an EA if the action to be taken falls under a categorical exclusion ("CE"). Alaska Ctr. for the Env't v. U.S. Forest Serv., 189 F.3d 851, 853-54 (9th Cir.1999) (citing 40 C.F.R. § 1508.4). "Pursuant to Council of Environmental Quality (CEQ) regulations, each agency is required to identify categories of actions which do not individually or cumulatively have a significant effect on the human environment." Id. (citing 40 C.F.R. §§ 1507.3(b)(2)(ii), 1508.4). The CE procedures developed by agencies "shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect," 40 C.F.R. § 1508.4, in which case an EIS or an EA/FONSI would be required.

B. Fuels Categorical Exclusion

The Forest Service developed the Fuels CE in response to the Healthy Forests Initiative, announced by President Bush on August 22, 2002. National Environmental Policy Act Documentation Needed for Fire Management Activities; Categorical Exclusions, 67 Fed.Reg. 77038, 77039 (Dec. 16, 2002) (codified at Forest Service Handbook 1909.15, ch. 30, § 31.2(10) (2004) (hereinafter, "FSH")). The Healthy Forests Initiative directed "the Departments of Agriculture and Interior and the Council on Environmental Quality to improve regulatory processes to ensure more timely decisions, greater efficiency, and better results in reducing the risk of catastrophic wildfires by restoring forest health." Id. The Healthy Forests Initiative was prompted by the year 2000 fire season, which was one of the worst in 50 years, with 123,000 fires burning more than 8.4 million acres, more than twice the 10-year national average. Id.

The Deputy Chief of the Forest Service announced on September 11, 2002, his intention to establish a categorical exclusion for fuels reduction activities on national forests, and requested data regarding fuels treatment projects from all Regional Foresters. The data call generated for the Fuels CE surveyed 2,500 hazardous fuels reduction and rehabilitation/ stabilization projects involving treatment of more than 2,500,000 acres. On December 16, 2002, the Forest Service gave public notice of and requested comment on the proposed Fuels CE. 67 Fed.Reg. at 77038. The Forest Service received 39,000 comments on the Fuels CE, National Environmental Policy Act Documentation Needed for Fire Management Activities; Categorical Exclusions, 68 Fed.Reg. 33814, 33815 (June 5, 2003), and published the final Fuels CE on June 5, 2003, id. at 33814.

The Fuels CE is designed to reduce and thin hazardous fuels, which are "combustible vegetation (live or dead), such as grass, leaves, ground litter, plants shrubs, and trees, that contribute to the threat of ignition and high fire intensity and/ or high rate of spread." 67 Fed.Reg. at 77040. "Hazardous fuels reduction involves manipulation, including combustion or removal of fuels, to reduce the likelihood of ignition and/ or to lessen potential damage to the ecosystem from intense wildfire and to create conditions where firefighters can safely and effectively control wildfires." Id. at 77040-41. The Fuels CE encompasses "[h]azardous fuels reduction activities using prescribed fire, not to exceed 4,500 acres, and mechanical methods for crushing, piling, thinning, pruning, cutting, chipping, mulching, and mowing, not to exceed 1,000 acres." FSH § 1909.15, ch. 30, § 31.2(10).1 Any project proposed under the Fuels CE requires a project file and decision memo, consisting of a description of the categorically excluded project, the reasons for invoking the CE, a finding that no extraordinary circumstances exist, and a description of the public involvement. Id.

The Fuels CE calls for projects to be identified and prioritized under the Secretary of the Interior and the United States Department of Agriculture's ("USDA") "10-Year Comprehensive Strategy Implementation Plan."2 67 Fed.Reg. at 77042. The 10-Year Plan calls for collaboration at the local, tribal, State and Federal levels, with the amount of collaboration to be "consistent with the complexity of land ownership patterns, resource management issues, and the number of interested stake-holders." Id.

The Fuels CE was preceded by another significant change to the Forest Service Handbook, the addition of language in the extraordinary circumstances section which permits an action to proceed under a CE even when a listed resource condition exists.3 Clarification of Extraordinary Circumstances for Categories of Actions Excluded From Documentation in an Environmental Assessment or an Environmental Impact Statement, 67 Fed. Reg. 54622, 54627 (Aug. 23, 2002). Old Forest Service guidance stated that examples of extraordinary circumstances included, but were not limited to, the presence of the following factors: steep slopes or highly erosive soils; threatened and endangered species or their critical habitat; flood plains, wetlands, or municipal watersheds; Congressionally designated areas, such as wilderness, wilderness study areas, or National Recreation Areas; inventoried roadless areas; Research Natural Areas; and Native American religious or cultural sites, archaeological sites, or historic properties or areas. FSH § 1909.15, ch. 30, § 31.2(2) (1992); see also Dep't of Agric., National Environmental Policy Act; Revised Policy and Procedures, 57 Fed.Reg. 43180, 43208 (Sept. 18, 1992).

Now, however, these factors are "resource conditions that should be considered" to determine whether extraordinary circumstances exist, but do not require any particular result. FSH § 1909.15, ch. 30, § 30.3(2) (2007). The new Handbook grants the Forest Service discretion to determine when an extraordinary circumstance exists, because it provides that "the mere presence of one or more of these resource conditions does not preclude use of categorical exclusions." Id. Whereas the old Handbook called for production of an EA when one of these conditions was present, the new guidelines call for a preliminary analysis to determine whether there exists "a cause-effect relationship between a proposed action and the potential effect on these resource conditions and [] if such a relationship exists, the degree of the potential effect of a proposed action on these resource...

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