Bark v. Usfs, 19-35665

Plaintiffs Bark, Cascadia Wildlands, and Oregon Wild appealed a district court ruling that granted summary judgment to the U.S. Forest Service (USFS) and High Cascade, upholding the USFS’s Finding of No Significant Impact for the Crystal Clear Restoration (CCR) Project.
The CCR Project proposes variable density thinning across the entire project area to reduce wildfire risk and facilitate safer fire suppression.
Appellants submitted substantial expert and scientific evidence during the administrative process challenging whether variable density thinning actually reduces wildfire risk and can sometimes worsen fire outcomes.
The USFS’s Environmental Assessment (EA) concluded the treatments would have no negative fuel effects but did not meaningfully engage with the contrary expert literature presented by appellants.
The EA’s cumulative impacts analysis listed other projects but provided no quantified or detailed assessment of combined effects (e.g., on spotted owl habitat), relying on conclusory statements.
The Ninth Circuit held the USFS’s no-EIS decision was arbitrary and capricious for two independent reasons (controversial/uncertain effects and inadequate cumulative-analysis), reversed the district court, and remanded for preparation of an EIS; NFMA claims were not reached.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an EIS was required because the Project’s effects are highly controversial or highly uncertain	Appellants: Expert evidence shows substantial dispute that variable density thinning reduces wildfire risk and may increase severity; EA failed to address contrary science	USFS: Thinning will reduce stand density and increase resilience to high-intensity fires; EA supports finding of no significant impact	Court: Effects are highly controversial/uncertain; USFS failed to engage contrary expert evidence; EIS required
Whether the EA adequately analyzed cumulative impacts	Appellants: EA listed other projects but provided no quantified or detailed cumulative assessment, leaving substantial questions about cumulative habitat loss and other impacts	USFS: The Project has minimal connectivity with past treatments and no cumulative effects; EA’s general conclusions suffice	Court: Cumulative-impact analysis was conclusory and lacked quantified analysis; EIS required
Whether court should reach NFMA claims	Appellants: Raised NFMA violations as alternative grounds for relief	USFS: Not addressed here	Court: Did not reach NFMA claims because EIS requirement could alter Project scope or methods

Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (EA raises “substantial questions” about significance, requiring an EIS)
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) (definition of “highly controversial” and requirement to consider substantial disputes about effects)
Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 (9th Cir. 2005) (one NEPA intensity factor may compel an EIS; cumulative-analysis requires quantified detail)
Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998) (agencies must provide quantified or detailed information in cumulative analyses)
Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir. 2004) (cumulative analyses insufficient where only direct effects are discussed and no quantified assessment of combined impacts exists)
Center for Biological Diversity v. Ilano, 928 F.3d 774 (9th Cir. 2019) (standard of review for district court summary-judgment determinations of NEPA claims)
WildEarth Guardians v. U.S. E.P.A., 759 F.3d 1064 (9th Cir. 2014) (NEPA requires consideration of all important aspects of the problem)
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (U.S. 2010) (discussed in context of precedent limitations)