25 F.4th 667
9th Cir.2022Background
- Cuddy Valley in Los Padres National Forest was ecologically overcrowded, increasing risks from wildfire, insects (bark beetles), disease, and drought.
- The Forest Service proposed the Cuddy Valley Project (~1,200 acres): fuel reduction via thinning/pruning/burning and commercial harvest (up to 601 acres of Jeffrey pine and pinyon-juniper) to restore historical densities.
- The Forest Service invoked CE-6 (36 C.F.R. § 220.6(e)(6)), a NEPA categorical exclusion for "timber stand and/or wildlife habitat improvement activities," to proceed without an EA or EIS.
- Conservation groups challenged the project, alleging NEPA and NFMA violations; the district court granted summary judgment to the Forest Service.
- The Ninth Circuit affirmed: it held CE-6 unambiguously covers thinning (including commercially viable trees) when aimed at reducing fire hazard and that the Forest Service’s reliance on CE-6 and its NFMA conclusions were not arbitrary and capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CE-6 permits commercial thinning (cutting commercially viable trees for sale) | CE-6 is limited to precommercial thinning/saplings and does not authorize cutting merchantable trees without EA/EIS | CE-6’s plain text and examples of "thinning . . . to reduce fire hazard" encompass commercial thinning; no size/age limit in CE-6 | CE-6 unambiguously allows thinning of commercially viable trees for fire-hazard reduction when other CE conditions are met |
| Whether invocation of CE-6 was arbitrary and capricious (including analysis of extraordinary circumstances) | Forest Service failed to analyze NEPA §1508.27 intensity factors and ignored controversial/public-safety concerns | Agency analyzed the §220.6(b) resource conditions (including effects) and need not separately repeat §1508.27 intensity factors; record shows consideration of risks | Not arbitrary or capricious: Forest Service reasonably found the project fit CE-6 and analyzed extraordinary-circumstance resource conditions |
| Whether project violated NFMA scenic/aesthetic (Scenic Integrity) standards | Project will degrade scenic integrity and Forest Service failed to explain compliance timely | Forest Service reasonably concluded project would retain acceptable scenic integrity; post-decision explanation was permissible and adequate | No NFMA violation: agency’s conclusion was not arbitrary and capricious and later explanation was acceptable |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (agency interpretation of its own regulation entitled to deference under certain conditions)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and structures Auer deference; courts must exhaust traditional interpretive tools)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA purpose and EIS requirements)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (EA as threshold to determine need for an EIS)
- Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) (plain statutory language controls interpretation)
- Perez v. Mortgage Bankers Ass’n, 575 U.S. 92 (2015) (reliance on promulgated regulatory text)
- Or. Natural Desert Ass’n v. U.S. Forest Serv., 957 F.3d 1024 (9th Cir. 2020) (NFMA/plan compliance timing and documentation)
- Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) (Forest Service Manual does not have force of law for binding agency action)
- Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) (injunction of certain categorical exclusions due to NEPA concerns)
- Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994 (9th Cir. 2004) (permitting supplementation of the administrative record to explain agency decisions)