BARK; еt al., Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, a federal agency, Defendant-Appellee, HIGH CASCADE, INC., Intervenor-Defendant-Appellee.
No. 19-35665
D.C. No. 3:18-cv-01645-MO
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APR 3 2020
Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.
Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 10, 2019
Seattle, Washington
MEMORANDUM*
The USFS‘s decision not to prepare an EIS was arbitrary and capricious under the
1. The effects of the Project are highly controversial and uncertain, thus mandating the creation of an EIS. See
“A project is ‘highly controversial’ if there is a ‘substantial dispute [about] the size, nature, or effect of the mаjor Federal action rather than the existence of opposition to a use.‘” Native Ecosystems Council, 428 F.3d at 1240 (alteration in original) (quoting Blackwood, 161 F.3d at 1212). “A substantial dispute exists when evidence . . . casts serious doubt upon the reasonableness of an agency‘s conclusions.” In Def. of Animals v. U.S. Dep‘t of Interior, 751 F.3d 1054, 1069 (9th Cir. 2014) (quoting Nat‘l Parks & Conservation Ass‘n v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2001), abrogated in part on other grounds by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010)). To demonstrate a substantial disрute, appellants must show that “evidence from numerous experts” undermines the agency‘s conclusions. Blackwood, 161 F.3d at 1212. “[M]ere opposition alone is insufficient to support a finding of controversy.” WildEarth Guardians v. Provencio, 923 F.3d 655, 673 (9th Cir. 2019).
The Environmental Assessment (EA) explained that the CCR Project will
Substantial expert opinion presented by the Appellants during the administrative process disputes the USFS‘s conclusiоn that thinning is helpful for fire suppression and safety. For example, Oregon Wild pointed out in its EA comments that “[f]uel treatments have a modest effect on fire behavior, and could even make fire worse instead of better.” It averred that removing mature trees is especially likely to have a net negative effect on fire suppression. Importantly, the organization pointed to expert studies and research reviews that support this assertion.
Bark also raised this issue: “It is becoming mоre and more commonly accepted that reducing fuels does not consistently prevent large forest fires, and seldom significantly reduces the outcome of these large fires,” citing an article from Forest Ecology and Management. Bark also directed the USFS to a recent study published in The Open Forest Science Journal, which concluded that fuel treatments are unlikely to reduce fire severity and consequent impacts, because often the treated area is not affected by fire before the fuels return to normal levels.
Oregon Wild also pointed out in its EA comments that fuel reduction does not necessarily suppress fire. Indeed, it assertеd that “[s]ome fuel can actually help reduce fire, such as deciduous hardwoods that act as heat sinks (under some conditions), and dense canopy fuels that keep the forest cool and moist and help suppress the growth of surfaсe and ladder fuels . . . .” Oregon Wild cited more than ten expert sources supporting this view. Importantly, even the Fuels Specialist Report produced by the USFS itself noted that “reducing canopy cover can also have the effect оf increasing [a fire‘s rate of spread] by allowing solar radiation to dry surface fuels, allowing finer fuels to grow on . . . the forest floor, and reducing the impact of sheltering from wind the canopy provides.”
The effects analysis in the EA did not engage with the considerable contrary scientific and expert opinion; it instead drew general conclusions such as that “[t]here are no negative effects to fuels from the Proposed Action treatments.” Appellants thus have shown a substantial dispute about the effect of variable density thinning on fire suppression. Although it is not our role to assess the merits
2. The USFS also failed to identify and meaningfully analyze the cumulative impacts of the Projеct. “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency . . . undеrtakes such other actions.”
The EA ostensibly analyzed the cumulative effects of the CCR Project, and included a table of оther projects that were “considered in the cumulative effects analyses.” The cumulative impact analysis is insufficient because there is no meaningful analysis of any of the identified projects. The table gave no information about аny of the projects listed; it merely named them. The section of the EA actually analyzing the cumulative effects on vegetation resources did not refer to any of these other projects. Nor are there any specific factuаl findings that would allow for informed decision-making. The EA simply concluded that “there are no direct or indirect effects that would cumulate from other projects due to the minimal amount of connectivity with past treatments” and that the Project “wоuld have a beneficial effect on the stands by moving them toward a more resilient condition that would allow fire to play a vital role in maintaining stand health, composition and structure.” These are the kind of conclusory statements, based on “vague and uncertain analysis,” that are insufficient to satisfy NEPA‘s requirements. Ocean Advocates, 402 F.3d at 869.
The EA also mentioned the possibility of cumulative effects in sections on other specific sub-topics such as fuels management, transportation resources, and
Overall, there is nothing in the EA that could constitute “quantified or detailed information” about the cumulative effects of the Project. Ocean Advocates, 402 F.3d at 868 (internal quotation marks omitted). The USFS‘s analysis creates substantial questions about whethеr the action will have a cumulatively significant environmental impact. Therefore, this factor also requires the USFS to conduct an EIS. See
3. Because an EIS is required, and because the findings in the EIS could prompt the USFS to change the scope of the Project or the methods it plans to use, we do not reach the Appellants’ other claims. We reverse the district court‘s judgment and remand to the district court with instructions to remand to the USFS for the preparation of an EIS.
REVERSED and REMANDED.
Bark v. U.S. Forest Serv.
No. 19-35665
U.S. COURT OF APPEALS
APR 3 2020
I concur in full in the judgment and in all but section 2 of the majority‘s disposition. The project‘s proposed methodology of variable density thinning is both highly controversial and highly uncertain, so an environmental impact statement is required. I would not reach whether the Environmental Assessment‘s discussion of cumulative impacts also was arbitrary and capricious.