Center for Bio Diversity v. Eli Ilano, 928 F.3d 774

Background

Congress amended the Healthy Forests Restoration Act (HFRA) in 2014 to expedite responses to insect and disease outbreaks by creating a two-step process: (1) designation of landscape-scale areas at risk, and (2) priority treatment projects that may be categorically excluded from NEPA.
The Forest Service (via delegated authority) designated millions of acres in California, including the Tahoe National Forest, as landscape-scale areas under 16 U.S.C. § 6591a(b)(2).
The Sunny South Project: a 2016 Forest Service decision authorizing thinning and prescribed burns across 2,700 acres of Tahoe National Forest to combat bark beetle infestation and improve long-term forest and wildfire resilience.
The Forest Service concluded the landscape-scale designation did not require NEPA review and that the Sunny South Project qualified for HFRA categorical exclusion because no extraordinary circumstances existed.
Plaintiffs (Center for Biological Diversity and Earth Island Institute) sued alleging NEPA violations: (1) that the landscape-scale designation required an EA or EIS, and (2) that the Sunny South Project should not have been categorically excluded given potential impacts on the California spotted owl.
The district court granted summary judgment for the Forest Service; the Ninth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether designation of landscape-scale areas under § 6591a(b)(2) triggers NEPA (EA/EIS)	Designation is a major federal action that changes status quo and required EA/EIS	Designation only identifies at-risk lands and does not commence projects or change land use; thus no NEPA review required	Designation does not trigger NEPA because it does not change the status quo or define concrete projects
Whether the Sunny South Project could be categorically excluded under HFRA § 6591b when sensitive species are present	Project will substantially reduce canopy cover and likely harm California spotted owl; extraordinary circumstances exist, so categorical exclusion improper	Agency analyzed impacts, avoided PACs, preserved key habitat components, and reasonably concluded no significant effect on species viability	Forest Service reasonably concluded no extraordinary circumstances; categorical exclusion permissible
Standard of review for agency NEPA and scientific judgments	Plaintiffs argue agency conclusions insufficient given conflicting studies	Agency relied on qualified experts and best available science; courts must defer to reasonable agency judgments	Court defers to agency where supported by record and reasonable expert judgment; not arbitrary or capricious
Applicability of precedent (e.g., California Wilderness Coalition)	Analogous precedent requires NEPA when corridor designation enabled predictable, fast-tracked development	HFRA lacks express requirement to comply with environmental statutes and designation here does not confer new federal rights or predictable development	California Wilderness Coalition is distinguishable; HFRA designation does not foreseeably alter land use or confer rights requiring NEPA

Key Cases Cited

Kleppe v. Sierra Club, 427 U.S. 390 (Sup. Ct.) (NEPA EIS impractical where no concrete, project-defining proposal exists)
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (Sup. Ct.) (NEPA requires a "hard look" but not particular results)
Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir.) (EIS unnecessary where action does not change the status quo)
California Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072 (9th Cir.) (designation of corridors that foreseeably enable development can trigger NEPA)
Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (Sup. Ct.) (courts defer to reasonable agency reliance on qualified experts when specialists disagree)
Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir.) (categorical exclusions may still apply where listed or sensitive species are present if no significant impacts are shown)