99 F.4th 438
9th Cir.2023Background
- Walton Lake Restoration Project: U.S. Forest Service proposed removing trees at Walton Lake (Ochoco NF, OR) to address laminated root rot and bark beetles; relied on a 2015 regulation exclusion for sanitation harvests and awarded a 2016 contract to T2.
- Litigation and interim actions: BMBP sued; district court granted a preliminary injunction against logging; the Service withdrew its 2015 decision to undertake additional NEPA analysis and later prepared new EAs (2017, revised 2020).
- 2020 decision: Revised EA and decision notice (Dec. 2020) selected an alternative authorizing 35 acres of sanitation logging and 143 acres of commercial/noncommercial thinning and made four project-specific forest-plan amendments.
- Administrative-record dispute: BMBP sought supplementation and a privilege log for deliberative materials and for inclusion of documents from the 2016 AR; the magistrate and district court declined to compel production, finding deliberative materials generally excluded and no showing of bad faith or that 2016 materials were necessarily before the agency.
- NEPA merits: District court granted summary judgment to the Service on the NEPA/NFMA/APA claims relevant here, dissolved the injunction; Ninth Circuit affirmed, holding the AR and EA were adequate and an EIS was not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Completeness of Administrative Record / privilege log | Deliberative materials are part of the "whole record"; Service must produce a privilege log and include 2016 AR materials | Deliberative materials are ordinarily not part of the AR; agency record has presumption of regularity; no bad faith shown; 2016 materials not necessarily before the agency | District court did not abuse discretion; deliberative materials need not be logged; BMBP failed to show bad faith or necessity to supplement with 2016 documents |
| Commitment of resources / CEQ regs (prejudicing alternatives) | The T2 contract committed resources and thus prejudiced selection of alternatives | Contract is terminable, no logging occurred, no payments made, injunction prevented activity—so no irreversible commitment | Contract did not improperly commit resources; no NEPA violation on this ground |
| NEPA - Context of analysis (geographic/analytical scope) | EA diluted impacts by using an overly broad analysis area | Agency has discretion to choose appropriate context and explained its choices; EA discloses local effects | Choice of context was within agency discretion and not arbitrary or capricious |
| NEPA - Intensity / need for an EIS (controversy, unique characteristics, precedent, legal violations) | Project is controversial, risks increasing root rot, may set precedent, and affects a unique recreation area—so EIS needed | Agency relied on best available science, found effects not highly controversial, site‑specific, and lawfully limited plan amendments | EA's finding of no significant impact was reasonable; no substantial questions requiring an EIS |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review / reasons offered by agency govern review)
- Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir. 2019) (deliberative materials generally not part of administrative record absent impropriety)
- Thompson v. U.S. Dep't of Labor, 885 F.2d 551 (9th Cir. 1989) ("whole record" includes documents directly or indirectly considered)
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (U.S. 1985) (presumption that agency presents the record it relied upon)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA requires a hard look but not particular substantive results)
- Dep't of Transp. v. Public Citizen, 541 U.S. 752 (U.S. 2004) (EAs may justify no EIS by briefly presenting reasons why no significant impact)
- Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) (standards for irreversible and irretrievable commitment of resources)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (substantial questions standard for when an EIS may be required)
- Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (U.S. 1989) (agency may rely on reasonable opinions of its qualified experts)
- WildEarth Guardians v. Provencio, 923 F.3d 655 (9th Cir. 2019) (when a project is "highly controversial" and precedent concerns for NEPA analysis)
- Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125 (9th Cir. 2010) (heavy burden to show additional materials are necessary to review decision)
- Goffney v. Becerra, 995 F.3d 737 (9th Cir. 2021) (presumption of regularity in agency designation of the administrative record)