Wild Watershed v. Hurlocker, 961 F.3d 1119

Background

The U.S. Forest Service approved two thinning-and-prescribed-burn projects (Hyde Park: 1,840 acres; Pacheco Canyon: 2,042 acres) in the Santa Fe National Forest under HFRA’s 2014 Insect and Disease statutory categorical exclusion.
Projects target small trees (generally <16" DBH), retain large trees where possible, use piling and prescribed fire, and are part of the Greater Santa Fe Fireshed Coalition effort.
Wild Watershed sued under the APA, alleging NEPA and HFRA violations: failure to perform required extraordinary‑circumstances review, inadequate cumulative‑impacts analysis (including impacts across ~21,896 acres shown on Coalition materials), and noncompliance with HFRA/Forest Plan requirements to maximize old‑growth retention and protect species.
The district court upheld the Forest Service, concluding the statutory HFRA exclusion exempted the projects from NEPA and that HFRA requirements were satisfied.
The Tenth Circuit affirmed: it held the HFRA Insect & Disease statutory exclusion does not incorporate the regulatory extraordinary‑circumstances review, found the Forest Service’s cumulative‑impacts and habitat/old‑growth analyses adequate under the APA, and rejected Wild Watershed’s challenges.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether HFRA’s Insect & Disease statutory categorical exclusion requires the NEPA/regulatory "extraordinary circumstances" review	Statute’s "categorically excluded" language imports the regulatory definition and thus triggers extraordinary‑circumstances review	Statute does not include an explicit extraordinary‑circumstances requirement; Congress expressly required that review in other HFRA provisions when intended	The court: No. HFRA §6591b does not mandate extraordinary‑circumstances review; regulatory definition applies to regulatory exclusions only.
Whether Forest Service was required to perform a broader NEPA cumulative‑impacts analysis (including alleged 21,896 acres of Fireshed treatments)	Agency must analyze cumulative impacts of reasonably foreseeable Fireshed projects shown on map/meeting minutes	Agency must consider only relevant/foreseeable actions; the Coalition materials were speculative and did not show thinning/burning was reasonably foreseeable across those acres; agency did analyze relevant cumulative effects	The court: Even assuming a duty to consider cumulative impacts, the Forest Service’s analysis was adequate and not arbitrary or capricious; Wild Watershed failed to show foreseeable, connected projects requiring further analysis.
Whether projects violated HFRA/Forest Plan by failing to maximize retention/development of old growth	Forest was misclassified as "young" and agency failed to protect/develop old‑growth habitat	VSS classification was a reasonable technical choice; projects retain large trees, avoid thinning >16" except in limited circumstances, and promote long‑term old‑growth development consistent with HFRA and the Forest Plan	The court: Agency acted reasonably and complied with HFRA and the Forest Plan regarding old growth.
Whether Forest Service failed to consider impacts on northern goshawk and Abert’s squirrel	Thinning reduces canopy below 40% in places, harming goshawk; squirrel habitat not adequately considered	Agency analyzed habitat effects, will maintain 40% where preexisting, anticipates long‑term canopy gains and prey/habitat improvements, and used surrogate species analyses for squirrels	The court: Analysis was adequate; tradeoffs justified and not arbitrary or capricious.

Key Cases Cited

Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692 (10th Cir.) (NEPA’s informational and procedural purposes)
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA prescribes procedures, not substantive results)
Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10th Cir.) (EIS standard / NEPA review tiers)
Dean v. United States, 556 U.S. 568 (2009) (canon against reading statutory requirements into silence)
Russello v. United States, 464 U.S. 16 (1983) (disparate inclusion/exclusion in same Act implies intent)
Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209 (10th Cir.) (presumption of validity for agency action; challenger bears burden)
Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) (court defers to agency specialists on technical/environmental matters)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations may be persuasive based on thoroughness and consistency)