318 F. Supp. 3d 1155
E.D. Cal.2018Background
- The U.S. Forest Service approved the “Bull Run” post‑fire restoration project to remove hazard (dead/dying) trees along ~50.2 miles of roads in the Greenhorn Mountains after the 2016 Cedar Fire; treatment would extend ~300 feet each side of roads and may include commercial sale of timber.
- USFS relied on three categorical exclusions (CEs) under 36 C.F.R. § 220.6: CE‑6 (timber/wildlife habitat improvement), CE‑11 (post‑fire rehabilitation), and, in a Revised Decision Memo after suit was filed, CE‑4 (road repair/maintenance).
- Plaintiffs (Earth Island Institute & Sequoia ForestKeeper) sued under NEPA and the APA, arguing USFS improperly used CEs (particularly CE‑4) to avoid preparing an EA/EIS and failed to consider extraordinary circumstances for sensitive species (Pacific fisher and California spotted owl).
- Administrative record included biological evaluations/assessments and a Fish & Wildlife Service Biological Opinion; USFS concluded no extraordinary circumstances warranted further NEPA review and that proposed mitigations and design criteria limited impacts.
- District Court granted Plaintiffs leave to amend complaint to add CE‑4, found Plaintiffs had standing, and after de novo APA review denied Plaintiffs’ summary judgment and granted summary judgment to Federal Defendants and intervenor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to amend complaint to add CE‑4 | Amendment is proper to conform pleadings to issues briefed; no prejudice | Defendants argued Rule 16(b) good cause not shown and late amendment | Court allowed amendment under Rule 15 (no bad faith, no prejudice, good cause) |
| Standing | Plaintiffs' members visited and intend to visit project area; injury sufficient | Defendants did not contest | Court previously and here found Plaintiffs have standing |
| Use of road‑maintenance CE (CE‑4) for commercial roadside salvage | CE‑4 improper for commercial salvage; salvage CE (CE‑13) limits acreage and shows agency intended salvage to be capped | Road hazard abatement fits within road maintenance; FS Handbook contemplates commercial sales to mitigate danger trees; agency interpretation entitled to deference | Court held applying CE‑4 to abate roadside hazard trees (including some commercial removal) was not plainly erroneous or inconsistent with the regulation; CE‑4 validly invoked |
| Extraordinary circumstances re: fisher & spotted owl | USFS failed to adequately analyze connectivity and occupancy loss; Plaintiffs’ studies show post‑fire logging can reduce occupancy | USFS BE/BA addressed fragmentation, post‑fire conditions, mitigation, and concluded project unlikely to cause significant effects; agency expertise and analysis entitled to deference | Court held USFS took a sufficient “hard look”; record supports conclusion no extraordinary circumstances requiring EA/EIS |
Key Cases Cited
- Center for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir.) (NEPA is procedural; agencies must take a "hard look")
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA’s twin purposes: informed decisionmaking and public disclosure)
- Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851 (9th Cir. 1999) (agency CE interpretation reviewed for arbitrary and capricious; deference to agency interpretation unless plainly erroneous)
- Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87 (U.S. 1983) (courts defer to agency scientific predictions within expertise)
- Pub. Lands for the People, Inc. v. U.S. Dep’t of Agric., 697 F.3d 1192 (9th Cir.) (agency’s interpretation of its own regulations merits deference)
- Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir.) (categorical exclusions are a form of NEPA compliance but cannot be used where extraordinary circumstances exist)
- Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir.) (NEPA requires consideration of the degree of adverse effect on species)
- Lands Council v. McNair, 629 F.3d 1070 (9th Cir.) (courts are not scientific arbiters; agencies need not respond to every study but must take a hard look)
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (U.S. 1988) (deference not owed to counsel’s post hoc litigation positions; agency must have articulated a contemporaneous position)