Wildearth Guardians v. Heather Provencio
923 F.3d 655
9th Cir.2019Background
- Kaibab National Forest comprises three noncontiguous Ranger Districts (Williams, Tusayan, North Kaibab) with diverse habitats and several sensitive/endangered species (Mexican spotted owl, California condor).
- The Forest Service adopted Travel Management Rule plans for each District permitting designated roads and, under 36 C.F.R. §212.51(b), limited motorized big game retrieval; each District’s Decision Notice/FONSI allowed retrieval (generally up to one mile) with species, temporal, and trip-number restrictions.
- Forest Service prepared Environmental Assessments (EAs) for each District and declined to prepare Environmental Impact Statements (EISs); Plaintiffs challenged the plans under the Travel Management Rule, NEPA, NHPA, and the APA.
- District court granted summary judgment to the Forest Service; plaintiffs appealed. Ninth Circuit reviews agency action under the APA (arbitrary and capricious standard) and affirms.
- Key factual concerns included spatial scope of retrieval corridors, spread of invasive species, impacts to Mexican spotted owls and condors, and potential damage to cultural/historic resources; Forest Service relied on trip limits, species limits, season/time limits, mitigation and monitoring.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether motorized big game retrieval designation violated Travel Management Rule (must be “limited”, on “certain” roads, applied “sparingly”) | Designation of 1-mile corridors off all open roads is not "limited/sparing" and exceeds "certain" roads | Rule permits non-geographic limitations (species, time, trip limits); "certain" can mean defined set of roads; agency discretion entitled to deference | Affirmed: designation lawful — agency reasonably interpreted "limited", "certain", and preamble term "sparingly" does not impose extra binding duty |
| Whether EAs were inadequate and EISs required under NEPA (significance, controversy, uncertainty, precedent, threatened species) | EAs failed to show that impacts (weeds, habitat disturbance, spread to Grand Canyon NP, effects on spotted owls and condors) are insignificant; raised substantial questions requiring EISs | EAs considered impacts, used baselines, reduced open road miles, concluded effects unlikely to be significant; uncertainties not "highly" controversial or uncertain; mitigation and monitoring reduce risk | Affirmed: Forest Service took required "hard look"; no substantial questions necessitating EISs |
| Standing for NEPA claims (procedural injury and redressability) | Plaintiffs’ members also cause similar nonmotorized harms; thus their injury not redressable | Multiple causes do not defeat redressability for procedural injuries; plaintiff need only show defendant contributes to injury | Plaintiffs have standing; challenge to standing rejected |
| Whether Forest Service violated NHPA (insufficient surveys, misuse of Exemption Q, arbitrary "no adverse effect") | Failed to perform 100% surveys where required; wrongly invoked Exemption Q; improperly concluded no adverse effect on cultural resources | Programmatic Agreement did not compel 100% surveys here; record shows consultation with SHPO and tribes; Exemption Q references were not operative; EAs assessed low probability of site impacts given low expected retrieval trip numbers and mitigation | Affirmed: NHPA procedural obligations met — agency made reasonable, good-faith efforts and conclusions were not arbitrary |
Key Cases Cited
- Churchill County v. Norton, 276 F.3d 1060 (9th Cir.) (standard of review for summary judgment/APA agency action)
- WildEarth Guardians v. Mont. Snowmobile Ass'n, 790 F.3d 920 (9th Cir.) (NEPA and Travel Management Rule precedent)
- Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (agency interpretation of its own regulation entitled to deference)
- Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) (NEPA requires agencies to take a "hard look")
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir.) (EIS required where substantial questions raised)
- Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir.) (controversy and uncertainty standards under NEPA)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard for agency action)
- Or. Nat. Desert Ass'n v. Jewell, 840 F.3d 562 (9th Cir.) (use of baselines in environmental analysis)