87 F.4th 1054
9th Cir.2023Background:
- The U.S. Forest Service approved the Three Creeks Project to thin excess trees, remove fuels, and use prescribed fire to restore pre-settlement forest structure on ~9,590 acres of Inyo National Forest.
- The Earth Island Institute (Earth Island) challenged the Project, alleging NEPA, Administrative Procedure Act, and agency-regulation violations—primarily arguing the Service failed to analyze reasonable alternatives, failed to re-open public comment on the 2018 EA, and failed to supplement NEPA after a 2020 bark-beetle outbreak.
- Timeline: draft EA (2016), revised EA (2017), final EA and FONSI (2018) with no new public comment period; litigation initiated in 2019; 2020 bark-beetle outbreak killed trees in two marten-designated units (220 affected acres; Service removed two units totaling 559 acres from the Project via a Supplemental Information Report (SIR)).
- Service concluded the SIR showed no significant new impacts and did not require supplemental NEPA analysis; later proposed the separate Inyo Craters bark-beetle abatement project (2021).
- District court granted summary judgment to the Service; Ninth Circuit affirmed, holding Earth Island failed to exhaust certain claims, the 2018 EA changes were minor (no new comment required), and the beetle outbreak did not trigger mandatory supplementation; Inyo Craters claim was not pleaded and therefore forfeited.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of alternatives / exhaustion | Service failed to analyze reasonable alternatives (prescribed fire, wildland fire, precommercial thinning <8") or explain omission | Earth Island waived/exhausted? Service: Earth Island didn’t identify alternatives in 2016 comments and didn’t tie 2017 objections to prior comments; action and no-action alternatives suffice | Affirmed — Earth Island failed to exhaust; proposed alternatives were not significantly distinguishable from action alternative; two alternatives permissible |
| 2018 EA — requirement to re-circulate for public comment | 2018 EA materially changed desired conditions, cutting prescriptions, and species analyses, so a new comment period was required | Changes were clarifications/minor and within scope of prior EA; NEPA and agency regs do not force re-circulation for slight modifications | Affirmed — 2018 EA was a slight modification, not based on new info/changed circumstances requiring a new comment period |
| 2020 bark-beetle outbreak — need to supplement NEPA | Beetle mortality in two marten units was a significant new circumstance requiring a supplemental EA | Service issued SIR, removed affected units, and showed the loss was small relative to 205,000 acres of marten habitat; impacts already considered | Affirmed — outbreak affected a minimal portion of habitat; SIR demonstrated no significant new circumstances; no supplement needed |
| Inyo Craters Project — supplementation claim | Service should have supplemented 2018 EA for impacts from the Inyo Craters Project | Claim not alleged in the amended complaint; raised first in summary-judgment briefing; therefore not before the court | Affirmed — claim not pleaded and forfeited; court refused to consider it |
Key Cases Cited
- Public Citizen v. U.S. Dept. of Transp., 541 U.S. 752 (2004) (commenters must identify alternatives/issues to preserve challenge; agency notice matters)
- Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (participants must alert agency to positions so agency can consider them; agency bears NEPA responsibility)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (supplementation required only where new information/circumstances show significant environmental effects not previously considered)
- ‘Ilio‘ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006) (agency independent knowledge can excuse commenter’s failure to identify issues)
- Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938 (9th Cir. 2008) (NEPA does not require circulation of a draft EA in every case; public participation standard is flexible)
- Earth Island Institute v. U.S. Forest Service, 697 F.3d 1010 (9th Cir. 2012) (if agency properly issues a FONSI, less reason to fault it for not considering more alternatives)
- Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037 (9th Cir. 2011) (minor project variations within spectrum of analyzed alternatives do not require supplementation)
- League of Wilderness Defenders v. Connaughton, 752 F.3d 755 (9th Cir. 2014) (supplement may be required when agency withdraws mitigation measures that the analysis relied upon)
- Price Rd. Neighborhood Ass'n v. U.S. Dept. of Transp., 113 F.3d 1505 (9th Cir. 1997) (courts should avoid forcing endless restarts of NEPA review for minor changes)
- Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562 (9th Cir. 2000) (agencies may use Supplemental Information Reports to determine whether supplementation is necessary)