WILD WATERSHED; MULTIPLE CHEMICAL SENSITIVITIES TASK FORCE; DR. ANN MCCAMPBELL, M.D.; JAN BOYER, Plaintiffs-Appellants, v. SANFORD HURLOCKER, District Ranger, Santa Fe National Forest; JAMES MELONAS, Supervisor, Santa Fe National Forest; CAL JOYNER, Southwest Regional Forester, U.S. Forest Service; and VICTORIA CHRISTIANSEN, Chief of the U.S. Forest Service, an agency of the U.S. Dept. of Agriculture, Defendants-Appellees.
No. 19-2106
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
June 12, 2020
PUBLISH
FILED
United States Court of Appeals Tenth Circuit
Christopher M. Wolpert Clerk of Court
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. 1:18-CV-00486-JAP-SCY)
Thomas J. Woodbury, Forest Defense, P.C., Missoula, Montana, for Appellants.
Eric Grant, Deputy Assistant Attorney General, Environment and National Resources Division, U.S. Department of Justice (Andrew C. Mergen and Andrew A. Smith, Attorneys, Environment and National Resources Division, U.S. Department of Justice, and Stephen A. Vaden, General Counsel and Dawn Dickman, Attorney, Office of General Counsel, U.S. Department of Agriculture, with him on the brief), Washington, D.C., for Appellees.
Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.
The United States Forest Service approved two forest thinning projects in the Santa Fe National Forest pursuant to statutory authority granted by a 2014 amendment to the Healthy Forests Restoration Act (HFRA). By thinning the forest and then conducting prescribed burns in the project areas, the Forest Service aimed to reduce the risk of high-intensity wildfires and tree mortality related to insects and disease. Certain environmental organizations and individuals (collectively Wild Watershed) challenged the projects’ approval under the Administrative Procedure Act (APA). They assert the Forest Service1 failed to comply with the National Environmental Policy Act (NEPA) and HFRA. The district court rejected these claims.
We similarly find the Forest Service complied with its obligations under NEPA and HFRA when it approved the projects. The Forest Service adequately considered the projects’ cumulative impacts as well as their potential effects on sensitive species in the area and the development of old growth forest. We therefore AFFIRM.
I. Background
A. Statutory and Regulatory Frameworks
1. National Environmental Policy Act
NEPA requires federal agencies to analyze environmental consequences before initiating actions that potentially affect the environment. The Act has two broad aims. First, it “places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir. 2010). Second, it ensures “that the agency will inform the public that it has indeed considered environmental concerns in
One of the hallmarks of NEPA is that agencies must prepare an environmental impact statement (EIS) when a proposed project will “significantly affect[] the quality of the human environment.”
Categorical exclusions come in one of two varieties: those established by regulations and those established by statutes. Implementing regulations define regulatory categorical exclusions as “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency . . . and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.”
Although regulatory categorical exclusions generally do not require an EA or an EIS, implementing regulations provide that where “extraordinary circumstances” exist such that “a normally excluded action may have a significant environmental effect,” the agency must engage in one of the more thorough forms of review before proceeding. See
In addition to regulatory categorical exclusions, Congress has intervened to establish certain statutory categorical exclusions. See, e.g.,
2. Healthy Forests Restoration Act
HFRA was originally enacted in 2003 “to reduce wildfire risk to communities, municipal water supplies, and other at-risk Federal land through a collaborative process of planning, prioritizing, and implementing hazardous fuel reduction projects.”
This categorical exclusion authorizes “priority projects” to protect forests from insect infestations and disease. See
To qualify, a project must (1) meet certain limitations related to the building of new roads, location, and size, excluding projects of more than 3,000 acres; (2) “maximize[] the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees promote stands that are resilient to insects and disease;” (3) “consider[] the best available scientific information to maintain or restore the ecological integrity;” (4) be “developed and implemented through a collaborative process;” (5) “be consistent with the land and resource management plan” for the area; and (6) involve “public
B. The Hyde Park and Pacheco Canyon Projects
The Forest Service approved the two projects at issue here—the Hyde Park Wildland Urban Interface Project and the Pacheco Canyon Forest Resiliency Project—pursuant to the authority granted by the Insect and Disease exclusion. App. at 45, 55 (citing
The forest in each project area comprises mostly ponderosa pine with some Douglas fir, pinon juniper, and mixed conifer stands. Due in part to years of fire suppression, the trees in the project areas have grown unnaturally dense. Specifically, young and smaller trees make up a high percentage of the forest. Because of this density, many of the small trees cannot access sufficient water and sunlight. This stunts the trees and renders them vulnerable to insect and disease outbreaks. The combination of dense growth and disease risk has made the forest susceptible to a particularly intense type of fire—a crown fire—which not only burns through the understory as a lower intensity fire might, but also reaches the larger trees in the overstory.
Due to these risks, the Forest Service proposed thinning the forest and applying prescribed burns in the project areas to “combat insect and disease, restore natural fire regimes, improve wildlife habitat, and reduce the risk of uncharacteristic fire effects.” App. at 53. Not every acre will be thinned or burned. Thus, after the treatments, a mix of tree densities will remain.
The thinning would target trees less than 16 inches in diameter.4 Trees larger than 16 inches in diameter would not be thinned except where disease or other unusual circumstances warrant it. The felled trees would then be piled. Subsequent prescribed burns would be utilized to reduce the thinned and piled material and otherwise treat the understory. These burns roughly approximate the effects of naturally occurring fires, which historically occurred every five to ten years, “clearing out the understory while the thick-barked, fire resistant over-story survived.” App. at 54. Although not designed to affect the larger trees in the overstory, approximately 10 to 30 percent of the trees larger than 16 inches in diameter may succumb to the controlled burns. According to the Forest Service, similar procedures would need to be repeated every 10 to 15 years to continue replicating naturally occurring wildfire patterns.
For both projects, considerable acreage is located within various inventoried roadless areas. But no new roads would be needed to complete either project, and the Forest Service has not planned any new road construction in association with these projects.
The projects were not conceived in isolation. Instead, both projects are part of a larger initiative in the Santa Fe region conducted by the Greater Santa Fe Fireshed
On February 14, 2017, the Forest Service issued a single scoping letter covering both projects. The letter asked for public comment on the projects and noted that they are “part of a larger effort sponsored by the Greater Santa Fe Fireshed Coalition.” App. at 37. After comments were received, the Forest Service approved the Hyde Park and Pacheco Canyon projects through decision memos issued on March 21, 2018 and June 1, 2018 respectively.
C. Procedural History
Wild Watershed brought suit challenging the projects, filing the operative complaint in August 2018.7 Bringing claims under the APA, NEPA, and HFRA, Wild Watershed sought to set aside the Forest Service‘s approval of the projects. As relevant here, it argued an EIS was required under NEPA for the larger goal of treating the Fireshed and the less-extensive review actually conducted by the Forest Service failed to adequately consider the projects’ effects on inventoried roadless areas and their cumulative impacts on the environment. Additionally, Wild Watershed claimed the projects violate HFRA‘s requirements that the projects be consistent with the applicable land and resource management plan, maximize the retention of old growth, and consider the best available scientific evidence to maintain and restore wildlife habitats. See
The district court disagreed, holding the Forest Service was under no obligation to follow NEPA requirements because the Insect and Disease exclusion, by its plain terms, provided an exemption. According to the district court, all that could be reviewed was the Forest Service‘s compliance with the explicit requirements of the Insect and Disease exclusion, codified in
II. Standard of Review
Because neither NEPA nor HFRA provide for a private right of action, we review the approval of the Hyde
In considering whether agency action meets this standard, “we must ensure that the agency decision was based on a consideration of the relevant factors and examine whether there has been a clear error of judgment.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999). Agency action will not pass muster where the agency relies on factors which Congress did not intend it to consider, fails to consider an important aspect of the problem, offers an explanation for its decision that runs counter to the evidence before it, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id.; Bosworth, 443 F.3d at 740.
In applying this standard, we accord agency action “a presumption of validity.” Wyoming v. U.S. Dep‘t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011). Thus, the challenger bears the burden of showing the action is arbitrary and capricious. Id. Even though courts adopt a deferential posture in reviewing agency action, we must “engage in a substantive review of the record” to assess the claims. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994).
III. Analysis
Wild Watershed‘s challenge proceeds along two paths. First, it asserts the Forest Service failed to comply with NEPA and its implementing regulations. Second, it contends the Forest Service violated the statutory requirements of HFRA. We address each in turn.
A. Compliance with NEPA
The parties dispute whether, and to what extent, NEPA applies to the approval of the projects. The Forest Service contends it is exempt from NEPA‘s requirements. Wild Watershed disagrees, arguing that when Congress enacted the Insect and Disease exclusion it did not exempt those types of projects wholesale from NEPA. It focuses on two NEPA requirements in particular as applicable to the projects at issue: the obligation to (1) perform extraordinary circumstances review, and (2) consider the potential cumulative impacts of the projects.
We first consider extraordinary circumstances review and then turn to cumulative impacts.
1. Extraordinary Circumstances Review
Wild Watershed contends the extraordinary circumstances review requirement stems from the statutory text of the Insect and Disease exclusion, which states a project “may be . . . categorically excluded” from the requirements of NEPA.
[A] category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have
no such effect in procedures adopted by a Federal agency in implementation of these regulations (§1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. . . . Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.
This definition mandates extraordinary circumstances review for regulatory categorical exclusions, and Wild Watershed would therefore have us read such a requirement into the statutory language of the Insect and Disease exclusion because “when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.” F.A.A. v. Cooper, 566 U.S. 284, 292 (2012). Wild Watershed also relies on the term “may” in the statute. This, it contends, shows HFRA merely grants administrative discretion to the Forest Service. In exercising that discretion and deciding to categorically exclude a project, the Forest Service must be constrained by those regulations that ordinarily govern its decision to categorically exclude projects, including by mandating extraordinary circumstances review. See
Moreover, Wild Watershed argues, this is exactly how the Forest Service itself has interpreted the statute. Pointing to the Forest Service‘s handbook and a Frequently Asked Questions document, Wild Watershed contends the Forest Service interpreted
We disagree. Beginning with the text of the statute, the Insect and Disease exclusion omits any explicit requirement to perform extraordinary circumstances review. See
But here we are not left to rely on this canon of construction alone. A comparison to other HFRA statutory categorical exclusions shows Congress understands what extraordinary circumstances review entails and how to explicitly require it where it intends to.
In a separate section of HFRA, Congress created a categorical exclusion for applied silvicultural assessments (Applied Silvicultural Assessments exclusion) using similar language to that at issue here.
Similarly, in another provision of HFRA, Congress created a statutory categorical exclusion for wildfire resilience projects. See
The import of these provisions is clear: Congress does not use the “categorically excluded” language as a term of art necessarily incorporating a requirement to perform extraordinary circumstances review. Russello v. United States, 464 U.S. 16, 23 (1983) (holding that where “Congress includes particular language in one section of a statute but omits it in another section of the same Act,” courts presume that “Congress acts intentionally and purposely in the disparate inclusion or exclusion“); see also Scalia & Garner, supra, at 170 (noting that under the presumption of consistent usage canon, a word or phrase is presumed to bear the same meaning throughout a statute, and should be interpreted consistently with the way the term is used in other parts of the statute). Where Congress intends extraordinary circumstances review to be required before an agency may rely on a statutory categorical exclusion, it says so explicitly. See, e.g.,
Accordingly, the absence of an explicit extraordinary circumstances review requirement in the Insect and Disease exclusion leads us to conclude that no such requirement exists under the statute. To our knowledge, every court that has squarely addressed this question has reached the same conclusion.8 See, e.g., Marten, 2018 WL 6046472, at *5; Greater Hells Canyon Council v. Stein, No. 2:17-cv-00843, 2018 WL 3966289, at *8 (D. Or. June 11, 2018) (Sullivan,
Magistrate J., proposing findings of fact and recommendations), adopted by, 2018 WL 3964801, at *1 (D. Or. Aug. 17, 2018).
Wild Watershed‘s reliance on the regulatory definition of categorical exclusion, see
Nor do the Forest Service‘s guidance documents suggesting such review might be appropriate convince us of Wild Watershed‘s position.9 Although the FAQ
Wild Watershed‘s interpretation, we find this insufficient to overcome our conclusion based on the text and structure of HFRA that no extraordinary circumstances review was required prior to approving the projects.
The Forest Service‘s FAQ document, first issued on May 1, 2014 in the wake of the 2014 Farm Bill‘s passage, weighs in Wild Watershed‘s favor. App. at 21 (stating a Forest Service official must conduct extraordinary circumstances review for projects approved under
The updated handbook is more equivocal. It could be read either as supporting Wild Watershed‘s interpretation or the Forest Service‘s position.10 But we need not definitively resolve the question because we find the Forest Service‘s guidance documents and past practice insufficiently clear, consistent, or thorough
to be persuasive in interpreting the applicable statutory and regulatory framework. See Skidmore, 323 U.S. at 140.
2. Consideration of Cumulative Impacts
Because we hold
We agree with respect to inventoried roadless areas, but find more is required before dismissing Wild Watershed‘s claims with respect to cumulative impacts. Wild Watershed argues consideration of cumulative impacts is required not only as a subcomponent of extraordinary circumstances review, but also independently by HFRA‘s “scoping” requirement and certain Forest Service regulations. See Aplt.
yet addressed the latter—whether HFRA‘s “scoping” requirement and certain Forest Service regulations independently require consideration of potential cumulative impacts.
While the parties argue this point in the briefing, we need not definitively resolve it. Assuming, without deciding, that the Forest Service was required under
[T]he 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 (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
But the Forest Service need not consider any and all past, present, and foreseeable actions. It must only consider those actions that are “relevant and useful” in the agency‘s judgment, “because they have a significant cause-and-effect relationship with the direct and indirect effects of the proposal for agency action and its alternatives.”
In approving the projects, the Forest Service considered certain potential cumulative impacts in detail. For example, it considered the potential cumulative effects of the expected subsequent treatments in the project areas on sensitive species. It also considered the potential cumulative effects of thinning in multiple areas within the Fireshed on management indicator species and threatened and endangered species. In each instance, it found no adverse cumulative effects.
Wild Watershed slides by these portions of the record and instead asserts that the Forest Service was required to consider a separate type of cumulative impact, namely “the dramatic effects of extensive thinning and . . . burning” on 21,896 acres of Forest Service land within the Fireshed. Aplt. Br. at 21. Specifically, Wild Watershed seeks an assessment of the effects of thinning and burning on roadless areas and old growth habitat. To support its contention that such extensive thinning and burning is, in fact, occurring or reasonably foreseeable, Wild Watershed points to the Coalition‘s meeting minutes and a map depicting certain “ongoing or planned” projects within the Fireshed. Aplt. Br. at 20-21 (citing App. at 30).
But the Forest Service cannot have acted arbitrarily or capriciously in failing to assess the cumulative effects of something that the record does not show to be either occurring or reasonably foreseeable. See Wyoming, 661 F.3d at 1227 (noting agency action benefits from the presumption of validity and the challenger bears the burden of showing it is arbitrary or capricious). The map Wild Watershed relies on depicts certain projects in the Fireshed and suggests that these are planned or ongoing. These projects do cover 21,896 acres, but, critically, the map does not convey the substance of the projects. That is, the map does not show these are thinning and burning projects.
Nor do the meeting minutes Wild Watershed points to provide clarity. While they discuss additional ongoing or planned projects in the Fireshed, these projects do not align with those depicted on the map. Nor do the minutes elaborate on what the projects described therein involve. Only
Forest Service statements further undercut Wild Watershed‘s argument. The forest official responsible for approving the projects declared that, at the time of the Hyde Park and Pacheco Canyon projects were approved, the Forest Service lacked “a defined proposal for work across the remaining National Forest System lands within the Fireshed.” Supp. App. at 54 (“The number of acres to be treated, the methods for treating those areas, and the funding to accomplish implementation ha[d] yet to be determined.“). Thus, the potential cumulative impacts of the Hyde Park and Pacheco Canyon projects were not considered in conjunction with these other “speculative” components of the larger Coalition initiative. Id. Although the map and meeting minutes raise some questions with respect to the number of ongoing or planned projects within the Fireshed and their stage of development, we find these documents insufficient to show the Forest Service acted arbitrarily or capriciously. Arizona Public Serv. Co. v. E.P.A., 562 F.3d 1116, 1123 (10th Cir. 2009) (“We will not set aside agency action on account of a less-than-ideal explanation as long as the agency‘s decisionmaking process may reasonably be discerned.“).12
Accordingly, Wild Watershed fails to show the projects may be set aside due to any NEPA violation.
B. Compliance with HFRA
Wild Watershed next claims the projects violate HFRA by failing to adequately (1) develop old growth, and (2) protect certain species of wildlife, namely the northern goshawk and the Abert‘s squirrel.
1. Old Growth
Turning first to Wild Watershed‘s claims with respect to old growth, HFRA mandates that the Forest Service “maximize[] the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees promote stands that are resilient to insects and disease.”
We begin with the threshold issue—whether the project areas include any old growth forests. The Forest Service classifies the forest in the project area as “young” based on the use of the Vegetative Structural Stage (VSS) methodology, which uses tree diameter most frequently represented to determine the age of a stand of trees. Where, as here, the forest contains a high prevalence of young trees, this method results in a classification of “young” despite the existence of older trees. Wild Watershed takes issue with this, arguing that because there are some ponderosa pines over 180 years-old—the threshold age to be considered “old growth” under the Forest Plan—in the area, it is nonsensical to classify the forest as young.13
We do not agree that such a classification is facially arbitrary or capricious. Under Wild Watershed‘s logic, the Forest Service would be precluded from classifying a forest as young due to the presence of a single older tree. Moreover, we cannot second guess the Forest Service‘s classification in this instance. Where challenged agency decisions “involve technical or scientific matters within the agency‘s area of expertise,” our deference to the agency is “especially strong.” Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1060 (10th Cir. 2014).
Wild Watershed argues that the VSS methodology is “most frequently” used to assess stands that, unlike those at issue, are “even aged stands.” Aplt. Br. at 36. Such a methodology, it argues, has “limited applicability for fuel reduction treatments.” Id. But such contentions are insufficient to override the requisite deference we give to an agency‘s technical choices, and they fail to show the Forest Service‘s reliance on the VSS methodology renders its decision arbitrary or capricious.
The fact that a particular methodology has limited applicability or might be most frequently used in another context casts some doubt on whether it is the best approach, but falls short of showing the agency engaged in “a clear error of judgment,” “fail[ed] to consider an important aspect of the problem,” or “offer[s] an explanation . . . that . . . is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Dombeck, 185 F.3d at 1167; San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1045, 1057 (10th Cir. 2011) (“[W]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinion[] of its own qualified experts, even if, as an original matter, a court might find contrary views more persuasive.” (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989))).
Perhaps recognizing this, Wild Watershed argues that it does not matter whether the forest is classified as old growth, because “even in areas where there is no existing old growth, the [Forest] Service must still manage the best available developing old growth habitat.” Aplt. Br. at 24. It argues the Forest Service has failed to do this because the treatments will harm old growth development. We reject this argument because Wild Watershed cannot show that the projects at issue are inconsistent with any of HFRA‘s or the Forest Plan‘s directives.
Taking HFRA first, Wild Watershed glosses over an important limitation in the statutory language. The Forest Service is only required to “maximize the retention of . . . large trees . . . to the extent that the trees promote stands that are resilient to insects and disease.”
Turning to the requirements of the Forest Plan, the record demonstrates the Forest Service has adequately considered old growth and structured the projects to retain and develop such growth consistently with the Forest Plan‘s directives. Both projects involve treatments that “favor retention of the largest, healthiest fire tolerant species.” App. at 144. For both, “[o]ld growth forest [will] be maintained or promoted.” Id. at 121. No trees over 16 inches in diameter will be thinned, unless certain unusual circumstances such as poor health warrant it. Although some of the large trees may succumb to the prescribed burns, these are designed to be low-intensity fires, which the large ponderosa pines—the oldest trees in the areas—are well equipped to endure. Id. at 100 (“Larger pine trees would likely not be killed during burning due to fire-resistant bark.“).
Moreover, the treatments will be beneficial in that they will “encourage the remaining trees to grow into larger diameters.” Id. at 145. Accordingly, the projects are consistent with the Forest Plan‘s mandate to “sustain as much old growth compositional, structural, and functional flow as possible over time at multiple-area scales” and enhance the attainment of old growth characteristics.14 Id. at
The projects are similarly consistent with the Forest Plan‘s directive to “seek to develop or retain old growth function on at least 20 percent of the forested area by forest type in any landscape.” Id. The record reveals that a “landscape” varies in size, but generally refers to “contiguous areas of several to 1,000 stands.” App. at 260. Meanwhile a stand covers anywhere from 4 to 100 acres. Id. Accordingly, a landscape may refer to an area as large as 100,000 acres. This is consistent with the Forest Service‘s use of the term to refer to the entire Fireshed. The project areas at issue here, by contrast, are much smaller, covering collectively only 3,882 acres. Accordingly, the Forest Service‘s failure to set aside 20 percent of each project to be managed for old growth does not run afoul of the Forest Plan‘s mandate, as it is obvious that the Forest Service can still comply with this requirement at the landscape level.
Accordingly, Wild Watershed fails to show the Forest Service acted arbitrarily or capriciously with respect to any old growth requirements.
2. Wildlife
Finally, Wild Watershed argues that the projects run afoul of HFRA and the Forest Plan for failing to adequately consider the projects’ potential adverse impact on the northern goshawk and Abert‘s squirrel. Under HFRA, the Forest Service must consider “the best available scientific information to maintain or restore the ecological integrity, including maintaining or restoring structure, function, composition, and connectivity” of habitats.
We disagree. Despite the fact that “[i]t is unlikely that goshawks occur in the project area,” the Forest Service engaged in extensive review of the projects’ potential effects on the areas’ suitability as habitat for the species. This included discussion of the effect of reducing, in the short term, the canopy coverage. The Forest Service concedes that high canopy coverage is, indeed, better for goshawk nesting. But it states that the projects will “maintain at least 40% canopy cover where it exists pre-project in suitable goshawk habitat.” App. at 149. The thinning will also allow medium size trees to “become more healthy and thus increase their crown size,” resulting in increased canopy coverage and an improved habitat in the long term. Id.
Further, canopy coverage is not the only important aspect to consider, as the thinning will “benefit prey species” of the goshawks, whose habitats “are declining in the area largely due to fire suppression.” Id. Overall, the Forest Service notes that in the short term there will be “negative impact[s]” on the suitability of the area for goshawk habitats. Id. at 151. But over the long term, the decrease of the “young, overstocked and dense stands of suppressed trees” will create habitat improvements for goshawks and their prey. Id. at
Wild Watershed also takes issue with the Forest Service‘s lack of consideration of the Abert‘s squirrel, but its argument is no stronger here. To the extent Wild Watershed is concerned about the decrease in canopy coverage‘s effect on the Abert‘s squirrel, this was adequately considered and addressed by the Forest Service, as discussed above. To the extent Wild Watershed is instead concerned about a lack of consideration of the squirrel itself, the Forest Service considered the projects’ effects on “small mammals” and many management indicator species whose habitat needs allow them to serve as surrogates for the Abert‘s squirrel. See App. at 100, 105-10, 153-58. Accordingly, the Forest Service did not act arbitrarily or capriciously in approving the projects due to insufficient consideration of any squirrels.
IV. Conclusion
For the reasons stated herein, we hold the Forest Service did not violate any applicable requirement of the National Environmental Policy Act or the Healthy Forests Restoration Act in approving the Hyde Park and Pacheco Canyon projects. Accordingly, the Forest Service complied with the Administrative Procedure Act, and we AFFIRM the district court.