Wildearth Guardians v. Heather Provencio
918 F.3d 620
9th Cir.2019Background
- Kaibab National Forest comprises three noncontiguous Ranger Districts (Williams, Tusayan, North Kaibab) bordering Grand Canyon NP and containing sensitive species and cultural sites.
- The Forest Service adopted travel management plans implementing the 2005 Travel Management Rule, designating roads and permitting limited motorized big-game retrieval (generally within one mile of designated roads) with species, temporal, and route restrictions.
- Each District had an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI); the Forest Service did not prepare Environmental Impact Statements (EISs).
- Plaintiffs (environmental groups) challenged the plans under the Travel Management Rule, NEPA, and the NHPA; the Regional Forester upheld the plans administratively and the district court granted summary judgment to the Forest Service.
- On appeal, the Ninth Circuit reviewed de novo under the Administrative Procedure Act standard (arbitrary and capricious) and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Travel Management Rule—"limited" | One-mile allowance off every open road is not a "limited" designation | Plans limit retrieval by species, timing, number of vehicles, routes; thus limited | Affirmed: spatial breadth can be limited by other restrictions; not arbitrary |
| Travel Management Rule—"certain" roads | "Certain" means some but not all; allowing all designated roads violates rule | "Certain" can mean definite/fixed; agency designated a defined set of roads | Affirmed: agency interpretation permissible and entitled to deference |
| Travel Management Rule—"sparingly" (preamble) | Allowing retrieval off all roads is not using authority sparingly | Preamble language not mandatory; substantive restrictions satisfy Rule | Affirmed: preamble not binding and agency acted within rule text |
| NEPA—need for EIS | EAs show potential significant impacts (invasive species spread, impacts to wildlife, cultural sites) so EIS required | EAs gave a hard look, predicted limited/insignificant impacts given restrictions and mitigation | Affirmed: no "substantial questions" requiring EIS; agency's conclusions reasonable |
| NEPA—controversy/uncertainty | Record shows scientific controversy and uncertainty re: impacts | Record lacked substantial dispute undermining agency conclusions; uncertainty not "high" | Affirmed: not highly controversial or highly uncertain so no EIS required |
| NHPA—identification and surveys | Forest Service failed to do 100% surveys and thus did not make good-faith identification of historic properties | Programmatic Agreement allows survey level based on expected density and impacts; consulted SHPO | Affirmed: survey approach reasonable under Agreement |
| NHPA—Exemption Q and consultation | Agency improperly invoked Exemption Q to avoid consultation | Record shows consultations occurred; any Exemption Q references harmless error | Affirmed: process met NHPA requirements; Exemption Q references did not prejudice process |
| NHPA—no-adverse-effect finding | Cross-country travel can damage sites, so "no adverse effect" arbitrary | EA and cultural reports estimated negligible risk given low number of retrievals and mitigation | Affirmed: conclusion supported by record and not arbitrary |
Key Cases Cited
- Churchill County v. Norton, 276 F.3d 1060 (9th Cir. 2001) (standard of review for agency action on summary judgment)
- WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920 (9th Cir. 2015) (interpreting Travel Management Rule minimization criteria)
- San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir. 2005) (NHPA challenges reviewed under APA)
- Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (agency may change positions if procedures followed)
- Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124 (9th Cir. 2011) (NEPA uncertainty/need for EIS analysis)
- Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004) (EA sufficiency and EIS threshold)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (substantial questions standard for EIS)
- Marsh v. Or. Nat. Res. Council, 490 U.S. 332 (1989) (NEPA requires agency to take a ‘hard look’ and defer to agency expertise on factual disputes)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard for agency rulemaking)