People of the State v. Usda ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEOPLE OF THE STATE OF 
CALIFORNIA EX REL. BILL LOCKYER;
STATE OF NEW MEXICO, ex rel.
PATRICIA A. MADRID, Attorney
General for the State of New
Mexico; STATE OF OREGON, by and
through Theodore Kulongoski,
Governor; STATE OF WYOMING; THE
WILDERNESS SOCIETY; CALIFORNIA
WILDERNESS COALITION; FORESTS
FOREVER FOUNDATION; NORTHCOAST
ENVIRONMENTAL CENTER; OREGON
NATURAL RESOURCES COUNCIL
FUND; SITKA CONSERVATION
SOCIETY; SISKIYOU REGIONAL 
EDUCATION PROJECT; BIODIVERSITY
CONSERVATION ALLIANCE; SIERRA
CLUB; NATIONAL AUDUBON SOCIETY;
GREATER YELLOWSTONE COALITION,
CENTER FOR BIOLOGICAL DIVERSITY;
ENVIRONMENTAL PROTECTION
INFORMATION CENTER; KLAMATH-
SISKIYOU WILDLANDS CENTER;
DEFENDERS OF WILDLIFE; PACIFIC
RIVERS COUNCIL; IDAHO
CONSERVATION LEAGUE; HUMANE
SOCIETY OF THE UNITED STATES;
CONSERVATION NW; GREENPEACE,
Plaintiffs-Appellees,

10233
10234 CALIFORNIA v. USDA

v.
U.S. DEPARTMENT OF AGRICULTURE;
DALE BOSWORTH, Chief of the U.S.
Forest Service; MIKE JOHANNS,
Secretary of the Department of
Agriculture; MARK REY, Under
Secretary for Natural Resources &
Environment of the Department of
Agriculture; UNITED STATES FOREST
SERVICE,
Defendants-Appellants, No. 07-15613
and  D.C. No.
CV-05-03508-EDL
AMERICAN COUNCIL OF SNOWMOBILE
ASSOCIATIONS; BLUERIBBON
COALITION; CALIFORNIA ASSOCIATION
OF 4 WHEEL DRIVE CLUBS UNITED
FOUR WHEEL DRIVE ASSOCIATIONS;
SILVER CREEK TIMBER COMPANY,
INC.,
Defendant-intervenors,
v.
STATE OF WASHINGTON,
Plaintiff-intervenor-Appellee.

CALIFORNIA v. USDA 10235
PEOPLE OF THE STATE OF CALIFORNIA 
EX REL. BILL LOCKYER; STATE OF
NEW MEXICO, ex rel. PATRICIA A.
MADRID, Attorney General for the
State of New Mexico; STATE OF
OREGON, by and through Theodore
Kulongoski, Governor; STATE OF
WYOMING; THE WILDERNESS
SOCIETY; CALIFORNIA WILDERNESS
COALITION; FORESTS FOREVER
FOUNDATION; NORTHCOAST
ENVIRONMENTAL CENTER; OREGON
NATURAL RESOURCES COUNCIL
FUND; SITKA CONSERVATION
SOCIETY; SISKIYOU REGIONAL 
EDUCATION PROJECT; BIODIVERSITY
CONSERVATION ALLIANCE; SIERRA
CLUB; NATIONAL AUDUBON SOCIETY;
GREATER YELLOWSTONE COALITION,
CENTER FOR BIOLOGICAL DIVERSITY;
ENVIRONMENTAL PROTECTION
INFORMATION CENTER; KLAMATH-
SISKIYOU WILDLANDS CENTER;
DEFENDERS OF WILDLIFE; PACIFIC
RIVERS COUNCIL; IDAHO
CONSERVATION LEAGUE; HUMANE
SOCIETY OF THE UNITED STATES;
CONSERVATION NW; GREENPEACE,
Plaintiffs-Appellees,

10236 CALIFORNIA v. USDA

v.
U.S. DEPARTMENT OF AGRICULTURE;
DALE BOSWORTH, CHIEF OF THE
U.S. FOREST SERVICE; MIKE
JOHANNS, Secretary of the
Department of Agriculture; MARK
REY, Under Secretary for Natural
Resources & Environment of the
Department of Agriculture; UNITED
STATES FOREST SERVICE,
Defendants, No. 07-15695
SILVER CREEK TIMBER COMPANY,
INC.,
 D.C. No.
CV-05-03508-EDL
Defendant-intervenor, OPINION
and
AMERICAN COUNCIL OF SNOWMOBILE
ASSOCIATIONS; BLUERIBBON
COALITION; CALIFORNIA ASSOCIATION
OF 4 WHEEL DRIVE CLUBS UNITED
FOUR WHEEL DRIVE ASSOCIATIONS,
Defendant-intervenors-Appellants,
v.
STATE OF WASHINGTON,
Plaintiff-intervenor-Appellee.

Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted
October 20, 2008—San Francisco, California
CALIFORNIA v. USDA 10237
Filed August 5, 2009
Before: Robert R. Beezer, Jay S. Bybee, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Beezer
10240 CALIFORNIA v. USDA
COUNSEL
Edmund G. Brown, Jr., and Claudia Polsky, California
Department of Justice, Oakland, California, for plaintiff-
appellee State of California.
Hardy Myers, Mary H. Williams, and David E. Leith, Office
of the Oregon Attorney General, Salem, Oregon, for plaintiff-
appellee State of Oregon.
Rob McKenna, Mary Sue Wilson, Joan M. Marchioro, and
Sheila Lynch, Office of the Washington Attorney General,
Olympia, Washington, for plaintiff-appellee State of Wash-
ington.
Gary King, Stephen Farris, and Judith Ann Moore, Office
of the New Mexico Attorney General, Santa Fe, New Mexico,
for plaintiff-appellee State of New Mexico.
Kristen L. Boyles, Earthjustice, Seattle, Washington, Timothy
J. Preso, Earthjustice, Bozeman, Montana, and Thomas S.
Waldo, Earthjustice, Juneau, Alaska, for plaintiff-appellees
The Wilderness Society, California Wilderness Coalition,
Forests Forever Foundation, Northcoast Environmental Cen-
ter, Oregon Wild, Sitka Conservation Society, Siskiyou
Regional Education Project, Biodiversity Conservation Alli-
ance, Sierra Club, National Audubon Society, Greater Yel-
lowstone Coalition, Center for Biological Diversity,
Environmental Protection Information Center, Klamath-
Siskiyou Wildlands Center, Defenders of Wildlife, Pacific
Rivers Council, Idaho Conservation League, Humane Society
of the United States, Conservation NW and Greenpeace.
Ronald J. Tenpas, David C. Shilton, and John L. Smeltzer,
United States Department of Justice, Washington, D.C., for
the defendant-appellant United States Department of Agricul-
ture and United States Forest Service.
CALIFORNIA v. USDA 10241
Paul A. Turcke and Carl J. Withroe, Moore Smith Buxton &
Turcke, Chtd., Boise, Idaho, for the defendant-intervenor-
appellants California Association of 4 Wheel Drive Clubs,
United Four Wheel Drive Associations, American Council of
Snowmobile Associations and the BlueRibbon Coalition.
Scott W. Horngren, Haglund Kelley Horngren Jones & Wil-
der, LLP, Portland, Oregon, and Dennis M. Wilson, Wilson
Law, Sacramento, California, for defendant-appellant-
intervenor Silver Creek Timber Company.
Bruce A. Salsburg, Jay Jerde, and Robert A. Nicholas, Office
of the Wyoming Attorney General, for amicus curiae State of
Wyoming.
Mick McGrath and Candace F. West, Office of the Montana
Attorney General, Helena, Montana, for amicus curiae State
of Montana.
G. Steven Rowe and Mark Randlet, Office of the Maine
Attorney General, Augusta, Maine, for amicus curiae State of
Maine.
OPINION
BEEZER, Circuit Judge:
This case involves procedural challenges to a United States
Forest Service Rule known as the State Petitions Rule. The
plaintiffs, several states and various environmentalist organi-
zations, contend that the State Petitions Rule was promulgated
without proper process and that it is invalid. They urge us to
affirm the district court, which set aside the State Petitions
Rule and reinstated the Roadless Area Conservation Rule,
more commonly known as the “Roadless Rule,” pending For-
est Service compliance with the National Environmental Pol-
icy Act and the Endangered Species Act.
10242 CALIFORNIA v. USDA
We agree with the plaintiffs that the promulgation of the
State Petitions Rule effected a repeal of the Roadless Rule,
which we previously found to afford greater protections to the
nation’s roadless areas than those the individual forest plans
provide. The Forest Service’s use of a categorical exemption
to repeal the nationwide protections of the Roadless Rule and
to invite States to pursue varying rules for roadless area man-
agement was unreasonable. It was likewise unreasonable for
the Forest Service to assert that the environment, listed spe-
cies, and their critical habitats would be unaffected by this
regulatory change.
We affirm the district court’s order permanently enjoining
the implementation of the State Petitions Rule because the
Forest Service violated the National Environmental Policy
Act and the Endangered Species Act when it promulgated the
State Petitions Rule. We further conclude that the district
court did not abuse its discretion in ordering the Forest Ser-
vice to comply with the Roadless Rule as a remedy for these
procedural shortcomings.
I
Before turning to the merits of this dispute, we will provide
an overview of the factual background and procedural history
of the instant litigation. We will also resolve disputes about
the ripeness of the plaintiffs’ claims and the appropriate stan-
dard of review to apply to them.
A
The State Petitions Rule is the most recent effort by the
Forest Service to address the management of roadless areas in
the national forests. In order to appreciate this rule and the
plaintiffs’ challenges to its validity, one must have a general
understanding of the land management measures that pre-
ceded it.
CALIFORNIA v. USDA 10243
The U.S. National Forest System consists of approximately
192 million acres of national forests, national grasslands, and
related areas. The Forest Service manages these lands under
several federal statutes, including the National Forest Man-
agement Act, 16 U.S.C. §§ 1600-14. Under the National For-
est Management Act, the Forest Service must develop and
periodically revise an integrated land and resource manage-
ment plan, commonly known as a “forest plan,” for each unit
of the National Forest System. 16 U.S.C. § 1604(a), (f); see
also Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957,
961 (9th Cir. 2002). Each forest plan is prepared by an inter-
disciplinary team and must “provide for multiple use and sus-
tained yield of the products and services obtained” from the
forest unit and include coordination of uses relating to “out-
door recreation, range, timber, watershed, wildlife and fish,
and wilderness.” 16 U.S.C. § 1604(e)(1), (f).
To achieve these objectives, forest plans typically divide a
forest unit into different “management areas” that are subject
to different goals, objectives, and management prescriptions.
For example, a management area may be dedicated to recre-
ation or to forest products. The Forest Service then may con-
sider individual, site-specific projects consistent with that
plan. See, e.g., Ohio Forestry Ass’n v. Sierra Club, 523 U.S.
726, 729-30 (1998) (describing the method for proposing and
adopting a site-specific logging project in a national forest).
Activities proposed to occur within a management area must
be consistent with the management-area prescriptions as well
as with the prescriptions applicable to the entire forest unit.
See 16 U.S.C. § 1604(I); see also Citizens for Better Forestry
v. USDA, 341 F.3d 961, 965-66 (9th Cir. 2003) (describing
the tiered approach to forest land management and decision
making at the national, regional, and site-specific levels).
In the 1970s, the Forest Service began to study and evalu-
ate roadless areas in national forests. It developed an “inven-
tory” of roadless areas, each larger than 5000 acres, to be
considered by Congress for inclusion in the National Wilder-
10244 CALIFORNIA v. USDA
ness Preservation System. As a result of the reviews in the
1970s, subsequent large-scale assessments, and land and
resource planning for individual forest units, there are now
58.5 million acres of the national forest identified as “invento-
ried roadless areas.” These inventoried roadless areas are
largely undeveloped, but not entirely without roads.1
From the late 1970s through the late 1990s, inventoried
roadless areas were governed primarily by the individual for-
est plans developed under the National Forest Management
Act. Nothing in that Act or any other federal statute obligates
the Forest Service to manage inventoried roadless areas as a
distinct unit of administration or resource value. Most forest
plans provided for extractive uses, including logging, mining,
oil and gas development, and construction of off-road vehicle
routes, on at least some portion of what are classified as
inventoried roadless areas.
In the late 1990s, the Forest Service began to reevaluate its
approach to roadless area management. On October 13, 1999,
President Clinton directed the Forest Service to initiate a
nationwide plan to protect the roadless areas in the national
forests. Within a week of this directive, the Forest Service
began working on what would ultimately become the Road-
less Area Conservation Rule, or “Roadless Rule.”2
The Forest Service promulgated the Roadless Rule on Janu-
ary 5, 2001. It was an adaptation of one of several options for
roadless area management studied in the Final Environmental
1
“Some inventoried roadless areas have roads because: (1) the criteria
used by the Forest Service when it made its inventory of ‘roadless’ areas
included some areas with roads; and (2) after the Forest Service completed
its inventory in the 1970s, some roads were built on inventoried roadless
land.” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1105 n.4 (9th
Cir. 2002).
2
For a comprehensive discussion of the process leading up to the pro-
mulgation of the Roadless Rule, see Kootenai Tribe of Idaho v. Veneman,
313 F.3d 1094 (9th Cir. 2002).
CALIFORNIA v. USDA 10245
Impact Statement issued in November 2000. Subject to lim-
ited exceptions, the Roadless Rule would prohibit road con-
struction, reconstruction, and timber harvest in roadless areas.
Roadless Area Conservation, 66 Fed. Reg. 3244 (Jan. 12,
2001). It did not displace the forest plans used for forest man-
agement; rather, the Roadless Rule superseded any restric-
tions on inventoried roadless areas that were less stringent.
See id. at 3250; State Petitions for Inventoried Roadless Area
Management, 70 Fed. Reg. 25,654, 25,656 (May 13, 2005).
Perhaps in response to, or in anticipation of, concerns that
local decision making might be preferred, the Forest Service
defended its categorical, programmatic approach to roadless
area management:
At the national level, Forest Service officials have
the responsibility to consider the “whole picture”
regarding the management of the National Forest
System, including inventoried roadless areas. Local
land management planning efforts may not always
recognize the national significance of inventoried
roadless areas and the values they represent in an
increasingly developed landscape. If management
decisions for these areas were made on a case-by-
case basis at a forest or regional level, inventoried
roadless areas and their ecological characteristics
and social values could be incrementally reduced
through road construction and certain forms of tim-
ber harvest. Added together, the nation-wide results
of these reductions could be a substantial loss of
quality and quantity of roadless area values and char-
acteristics over time.
66 Fed. Reg. at 3246.
The Roadless Rule was to go into effect on March 13,
2001, 66 Fed. Reg. 3244; however, because of a change in
10246 CALIFORNIA v. USDA
presidential administration, the effective date of the Roadless
Rule was delayed for 60 days, or until May 12, 2001.
Two days before the Roadless Rule’s postponed effective
date, the United States District Court for the District of Idaho
preliminarily enjoined the Forest Service from implementing
“all aspects” of the rule. Kootenai Tribe of Idaho v. Veneman,
No. 01-10, 2001 WL 1141275, at *2 (D. Idaho May 10,
2001). The Forest Service chose not to appeal this ruling, but
environmentalist groups that had intervened in the suit
mounted a successful appeal.
On December 12, 2002, the Ninth Circuit Court of Appeals
reversed. Kootenai Tribe of Idaho v. Veneman, 313 F.3d
1094, 1126 (9th Cir. 2006). The majority evaluated in consid-
erable detail the procedural challenges made against the
Roadless Rule and concluded, on the record before it, that “it
is plain that the Forest Service gave a ‘hard look’ at the com-
plex problem presented.” Id. at 1123. The majority concluded
that the plaintiffs had not shown a substantial likelihood of
success on their National Environmental Policy Act claims
and that the balance of the hardships weighed against enjoin-
ing the Roadless Rule. Id. at 1123-26. The majority reversed
the district court’s issuance of the preliminary injunction. Id.
at 1126. The court’s mandate issued in April 2003, and the
Roadless Rule went into effect nationwide.
Within months, another court enjoined the Roadless Rule.
Wyoming v. USDA, 277 F. Supp. 2d 1197 (D. Wyo. 2003). On
July 14, 2003, the United States District Court for the District
of Wyoming held that the Roadless Rule was promulgated in
violation of the National Environmental Policy Act and the
Wilderness Act and ordered that it “be permanently
enjoined.” Id. at 1239. As in the Idaho litigation, the Forest
Service did not appeal to the Tenth Circuit, but the environ-
mentalist intervenors did.
The day after oral argument before the Tenth Circuit, the
“Forest Service announced the adoption of a final rule replac-
CALIFORNIA v. USDA 10247
ing the Roadless Rule.” Wyoming v. USDA, 414 F.3d 1207,
1211 (10th Cir. 2005). Because the new rule—the State Peti-
tions Rule—eliminated “[t]he portions of the Roadless Rule
that were substantively challenged,” the Tenth Circuit con-
cluded that “to render a decision on the validity of the now
nonexistent Roadless Rule would constitute a textbook exam-
ple of” an advisory opinion. Id. at 1212. The Tenth Circuit
dismissed the appeal for want of jurisdiction and vacated the
district court’s judgment. Id. at 1214.
The rule announced by the Forest Service on May 5, 2005
—the State Petitions Rule—is the primary focus of this
appeal.
The Forest Service began working on what would become
the State Petitions Rule in July 2001, when the appeal of the
Idaho preliminary injunction against the Roadless Rule was
pending before the Ninth Circuit. Roadless Area Conserva-
tion, 66 Fed. Reg. 35,918 (July 10, 2001). In its Advance
Notice of Proposed Rulemaking in the Federal Register, the
Forest Service expressed its intention to reexamine the Road-
less Rule and move forward with a “responsible and balanced
approach” to roadless area management that would fairly
address concerns raised by those affected by the Roadless
Rule. Id.The Forest Service issued a Notice of Proposed Rulemak-
ing for the State Petitions Rule in July 2004. See State Peti-
tions for Inventoried Roadless Area Management, 69 Fed.
Reg. 42,636 (July 16, 2004). The Forest Service determined
that “a State petitioning process that will allow State-specific
consideration of the needs of [roadless] areas [was] an appro-
priate solution to address the challenges of roadless area man-
agement.” Id. at 42,638.
Following an extended period of public comment, the For-
est Service issued the final State Petitions Rule. State Peti-
tions for Inventoried Roadless Area Management, 70 Fed.
10248 CALIFORNIA v. USDA
Reg. 25,654 (May 13, 2005). The rule revised Part 294 of
Title 36 of the Code of Federal Regulations to remove the text
of the Roadless Rule and insert in its place provisions estab-
lishing an eighteen-month window during which states could
petition for state-specific roadless area protections.3 Id. at
25,661.
The final provision of the State Petitions Rule is a “sever-
ability clause.” 36 C.F.R. § 294.18. According to the Forest
Service, this
provision . . . responds to public comment express-
ing concerns and confusion regarding the status of
the prior roadless rule that was set aside by the Fed-
eral District Court in Wyoming. The Department [of
Agriculture] believes that adopting this new rule
resolves the matter by establishing a new process for
addressing inventoried roadless area . . . . Regardless
of these lawsuits [surrounding the Roadless Rule],
the Department has concluded that the 2001 rule’s
inflexible “one-size fits-all” nationwide rulemaking
approach is flawed and there are better means to
3
Under the State Petitions Rule, the governor of any state or territory
“may petition the Secretary of Agriculture to promulgate regulations
establishing management requirements for all or any portion of National
Forest System inventoried roadless areas within that State or territory.” 36
C.F.R. § 294.12. The rule sets forth the required content of any such peti-
tion (id. § 294.14), establishes a National Advisory Committee to review
petitions (id. § 294.15), and sets time limits for the Secretary to “accept
or decline” petitions (id. § 294.13). If a petition is accepted, the Secretary
will instruct the Forest Service “to initiate notice and comment rulemak-
ing.” Id. § 294.16. The ultimate decision making authority as to any state-
specific inventoried roadless area remains with the Secretary. Id.
After the eighteen-month window lapses, the “general petitioning pro-
cess for the approval, amendment, or repeal of rules (7 C.F.R. § 1.28)
would remain available . . . . Management requirements established
through the land management planning process would always be available
for review and adjustment through subsequent plan revisions or amend-
ments.” 70 Fed. Reg. at 25,657.
CALIFORNIA v. USDA 10249
achieve protection of roadless area values. The
Department wishes to make its intent clear that
should all or any part of this regulation be set aside,
the Department does not intend that the prior rule be
reinstated, in whole or in part.
70 Fed. Reg. at 25,655-56.
In its decision memorandum, the Forest Service explained
that it had designated this rule for categorical exclusion under
the National Environmental Policy Act (“NEPA”). 70 Fed.
Reg. at 25,660. The Forest Service specifically cited a provi-
sion from the Forest Service Handbook (“FSH”), which pro-
vision “excludes from documentation in an environmental
assessment or impact statement ‘rules, regulations, or policies
to establish Service-wide administrative procedures, program
processes, or instructions.’ ” Id. at 25,660 (citing FSH
1909.15, § 31.1b; 57 Fed. Reg. 43,208 (Sept. 18, 1992)). The
Forest Service explained that the “final rule is merely proce-
dural in nature and scope and, as such, has no direct, indirect,
or cumulative effect on the environment.” Id. The Forest Ser-
vice also referred to the Draft and Final Environmental
Impact Statements that were prepared as part of the Roadless
Rule’s development and explained that the “environmental
impacts associated with not implementing the enjoined 2001
roadless rule are essentially those disclosed and discussed for
the no action alternative displayed in the [Final Environmen-
tal Impact Statement].” Id.Much like the Roadless Rule, the State Petitions Rule was
almost immediately met with litigation.
B
This appeal arises from two consolidated district court
actions that challenged the U.S. Department of Agriculture
(“USDA”) and Forest Service’s promulgation of the State
Petitions Rule as violating certain requirements of the
10250 CALIFORNIA v. USDA
National Environmental Policy Act, the Endangered Species
Act, and the Administrative Procedure Act. The plaintiffs in
the district court cases were the states of California, New
Mexico, and Oregon (collectively the “state plaintiffs”), and
The Wilderness Society and other environmental advocacy
organizations4 (collectively the “environmental plaintiffs”).
The State of Washington intervened as a plaintiff. Silver
Creek Timber Company intervened on behalf of the Forest
Service. Also intervening on behalf of the Forest Service as
to the remedy phase were the American Council of Snowmo-
bile Associations, the Blue Ribbon Coalition, California
Association of 4 Wheel Drive Clubs, and United Four Wheel
Drive Association.5 There were amici curiae for both sides.6
Collectively, the plaintiffs alleged that the USDA and For-
est Service violated (1) the National Environmental Policy
Act by relying on a categorical exclusion when promulgating
the State Petitions Rule; (2) Section 7 of the Endangered Spe-
cies Act by promulgating the State Petitions Rule without ful-
filling the Act’s consultation requirements; and (3) the
“rationality” requirement of the Administrative Procedure Act
by “failing to articulate a [p]urpose and [n]eed for rescission
of the Roadless Rule.”
4
These organizations are the California Wilderness Coalition, Forests
Forever Foundation, Northcoast Environmental Center, Oregon Wild (for-
merly, Oregon Natural Resources Council Fund), Sitka Conservation Soci-
ety, Siskiyou Regional Education Project, Biodiversity Conservation
Alliance, Sierra Club, National Audubon Society, Greater Yellowstone
Coalition, Center for Biological Diversity, Environmental Protection
Information Center, Klamath-Siskiyou Wildlands Center, Defenders of
Wildlife, Pacific Rivers Council, Idaho Conservation League, Humane
Society of the United States, Conservation NW, and Greenpeace.
5
These parties were also amici curiae with respect to the issues going
to the merits.
6
Maine and Montana were amici curiae in support of the plaintiffs.
Alaska, Idaho, Wyoming, and the American Forest Resource Council were
amici curiae in support of the Forest Service.
CALIFORNIA v. USDA 10251
On September 19, 2006, the district court granted summary
judgment for the plaintiffs and denied summary judgment for
the USDA.7 The district court held that the USDA violated the
National Environmental Policy Act and the Endangered Spe-
cies Act.8 Lockyer, 459 F. Supp. 2d at 909, 912. As a remedy
for these violations, the district court permanently enjoined
the State Petitions Rule and reinstated the Roadless Rule. Id.
at 919.
Under the court’s analysis, the State Petitions Rule trig-
gered the National Environmental Policy Act’s environmental
analysis requirement because the rule permanently removed
the Roadless Rule’s substantive protections. Id. at 895-97 The
court reasoned that the elimination of a major nationwide land
management program would be sufficient to trigger environ-
mental analysis; here, the Forest Service eliminated such a
program and replaced it with a far more varied and potentially
less protective land management regime. Id. at 898-901. The
court rejected the USDA’s argument that replacing the Road-
less Rule was a paper exercise. Id. at 895.
The court also focused on the language of the categorical
exclusion used by the Forest Service to implement the rule,
reasoning that the replacement of the Roadless Rule with the
State Petitions Rule was not the type of “routine” administra-
tive action for which the categorical exclusion existed. Id. at
901-02. The district court highlighted additional problems
with the rulemaking process, such as the scant discussion
given to resource conditions or other extraordinary circum-
stances that might make the categorical exclusion unavailable.
Id. at 902-03. Ultimately, the district court concluded that
7
The district court issued a slightly revised amended opinion and order
on October 11, 2006. California ex rel. Lockyer v. USDA, 459 F. Supp.
2d 874 (N.D. Cal. 2006).
8
Although some of its analysis applies to the plaintiffs’ Administrative
Procedure Act claim, the district court specifically did not reach that issue.
Lockyer, 459 F. Supp. 2d at 912-13.
10252 CALIFORNIA v. USDA
“[t]he Forest Service’s proposed interpretation of this categor-
ical exclusion in this case is clearly erroneous and its use in
promulgating the State Petitions Rule was arbitrary and capri-
cious.” Id. at 902.
The district court’s National Environmental Policy Act dis-
cussion overlapped, in part, with its analysis of the plaintiffs’
Endangered Species Act claims. Id. at 911. The court
explained that “it would strain credulity to hold that the repeal
of the [Roadless Rule] protections in [inventoried roadless
areas] would not have any effect, as that term is interpreted
for purposes of [the Endangered Species Act], on the numer-
ous species that make their homes in [inventoried roadless
areas].” Id.In crafting the appropriate remedy, the district court noted
the substantial nature of the procedural violations, balanced
the equities, considered the public interest, and determined
that the proper course was to reinstate the Roadless Rule
pending the USDA’s compliance with the National Environ-
mental Policy Act and the Endangered Species Act. Id. at
913-19.
On appeal, the defendants challenge the district court’s
holding that environmental analysis and consultation was
required under either the National Environmental Policy Act
or the Endangered Species Act. The defendants contend that
the USDA appropriately determined that the State Petitions
Rule was procedural and would not have any effect on the
environment. The defendants also contend that the district
court abused its discretion by reinstating the Roadless Rule,
which the USDA specifically indicated it did not want rein-
stated should any challenge to the State Petitions Rule be suc-
cessful.
C
The district court exercised federal question jurisdiction
over the instant suit under 28 U.S.C. § 1331. We have appel-
late jurisdiction under 28 U.S.C. §§ 1291 and 636(c)(3).
CALIFORNIA v. USDA 10253
The parties dispute whether the plaintiffs’ claims are ripe
for adjudication. Specifically, defendant-intervenor-appellant
California Association of 4 Wheel Drive Clubs contends that
the State Petitions Rule merely presents a starting point for
future rulemaking, such that “any alleged NEPA-based proce-
dural injury cannot be identified until a state files a petition.”
[1] Ripeness is a question of law reviewed de novo. Col-
well v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121
(9th Cir. 2009). Ripeness serves “to prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative poli-
cies, and also to protect the agencies from judicial interfer-
ence until an administrative decision has been formalized and
its effects felt in a concrete way by the challenging parties.”
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). “In
determining whether a case satisfies prudential requirements
for ripeness, we consider two factors: ‘the fitness of the issues
for judicial decision,’ and ‘the hardship to the parties of with-
holding court consideration.’ ” Yahoo! Inc. v. La Ligue Contre
Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1211-12 (9th
Cir. 2006) (quoting Abbott Labs., 387 U.S. at 149).
[2] The district court considered these factors and correctly
concluded that the suit was ripe for adjudication. Lockyer, 459
F. Supp. 2d at 890-92. Judicial consideration of this dispute
would not interfere with further administrative action with
respect to the State Petitions Rule, which is a final rule that
has been published in the Federal Register. Nor is additional
factual development required under the plaintiffs’ theory of
the case, which is that the promulgation of the State Petitions
Rule improperly removed the substantive protections afforded
to inventoried roadless areas under the Roadless Rule.
[3] The Supreme Court has held that “a person with stand-
ing who is injured by a failure to comply with NEPA proce-
dure may complain of that failure at the time the failure takes
place, for the claim can never get riper.” Ohio Forestry Ass’n,
10254 CALIFORNIA v. USDA
523 U.S. at 737. With this suit, the plaintiffs are taking advan-
tage of what may be their only opportunity to challenge the
State Petitions Rule on a nationwide, programmatic basis.
Therefore, we agree with the district court that this dispute is
ripe for adjudication.
D
We review the district court’s grant of summary judgment
de novo. Native Ecosystems Council v. Dombeck, 304 F.3d
886, 891 (9th Cir. 2002). We review the district court’s grant
of permanent injunctive relief for abuse of discretion. ACLU
of Nev. v. Lomax, 471 F.3d 1010, 1018 (9th Cir. 2006).
We generally review the USDA’s compliance with the
National Environmental Policy Act and the Endangered Spe-
cies Act under the “arbitrary and capricious” standard of the
Administrative Procedure Act. Id. (citing 5 U.S.C.
§ 706(2)(A)). An “agency’s interpretation of the meaning of
its own categorical exclusion should be given controlling
weight unless plainly erroneous or inconsistent with the terms
used in the regulation.” Alaska Ctr. for the Env’t v. U.S. For-
est Serv., 189 F.3d 851, 857 (9th Cir. 1999). Similarly, an
agency’s “no effect” determination under the Endangered
Species Act must be upheld unless arbitrary and capricious.
Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443, 1448 (9th Cir. 1996).
Ninth Circuit jurisprudence distinguishes between the level
of deference afforded to agency decisions that are primarily
legal in nature and that afforded to decisions that are factual.
Alaska Wilderness Recreation & Tourism Ass’n v. Morrison,
67 F.3d 723, 727 (9th Cir. 1995) (“We find that it makes
sense to distinguish the strong level of deference we accord
an agency in deciding factual or technical matters from that
to be accorded in disputes involving predominately legal
questions.”); see Northcoast Envtl. Ctr. v. Glickman, 136 F.3d
660, 667 (9th Cir. 1998) (holding that “the less deferential
CALIFORNIA v. USDA 10255
standard of ‘reasonableness’ applies to threshold agency deci-
sions that certain activities are not subject to NEPA’s proce-
dures”). In the Ninth Circuit, “[a]n agency’s threshold
decision that certain activities are not subject to NEPA is
reviewed for reasonableness.” Kern v. U.S. Bureau of Land
Mgmt., 284 F.3d 1062, 1070 (9th Cir. 2002) (citing North-
coast, 136 F.3d at 667). The Supreme Court has noted, how-
ever, that “the difference between the ‘arbitrary and
capricious’ and ‘reasonableness’ standards is not of great
pragmatic consequence.” Marsh v. Or. Natural Res. Council,
490 U.S. 360, 377 n.23 (1989).
II
We now turn to the merits of the plaintiffs’ National Envi-
ronmental Policy Act and Endangered Species Act claims and
to the appropriateness of the remedy crafted by the district
court.
A
The National Environmental Policy Act “is our basic
national charter for protection of the environment.” N. Idaho
Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d
1147, 1153 (9th Cir. 2008) (quoting Ctr. for Biological Diver-
sity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172,
1185 (9th Cir. 2008)). It “is a procedural statute intended to
ensure environmentally informed decision-making by federal
agencies.” Tillamook County v. U.S. Army Corps of Eng’rs,
288 F.3d 1140, 1143 (9th Cir. 2002). The National Environ-
mental Policy Act “does not ‘mandate particular results, but
simply provides the necessary process to ensure that federal
agencies take a hard look at the environmental consequences
of their actions.’ ” High Sierra Hikers Ass’n, 390 F.3d 630,
639 (9th cir. 2004) (quoting Neighbors of Cuddy Mountain v.
Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002)).
[4] The Act requires that an environmental impact state-
ment be prepared for all “major Federal actions significantly
10256 CALIFORNIA v. USDA
affecting the quality of the human environment.” 42 U.S.C.
§ 4332(C). The threshold that triggers the requirement for
environmental analysis under the National Environmental
Policy Act is relatively low: “It is enough for the plaintiff to
raise substantial questions whether a project may have a sig-
nificant effect on the environment.” Blue Mountains Biodiver-
sity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.
1998) (citation and internal quotation marks omitted). The
purpose of an environmental impact statement is to provide
full and fair discussion of significant environmental impacts
and to inform decision makers and the public of reasonable
alternatives that would minimize adverse environmental
impacts. 40 C.F.R. § 1502.1.
[5] An environmental impact statement is not always
required to ensure that an agency has taken the requisite “hard
look” at the potential environmental effects of its activities;
rather, under regulations adopted by the Council on Environ-
mental Quality, federal agencies may document compliance
with the National Environmental Policy Act for any action by:
(1) preparing an environmental impact statement; (2) prepar-
ing a less extensive environmental assessment and making a
finding of no significant impact on the environment; or (3)
documenting that the action falls within an established cate-
gorical exclusion. See 40 C.F.R. § 1501.4; see also West v.
Sec’y of Dep’t of Transp., 206 F.3d 920, 926-27 (9th Cir.
2000).
[6] The Council on Environmental Quality has defined
“categorical exclusion” to mean “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.” 40 C.F.R.
§ 1508.4; see also id. § 1507.3(b)(2)(ii) (requiring agencies to
adopt NEPA procedures including categorical exclusions).
The definition of “categorical exclusion” also contains a man-
date that an agency make allowances for “extraordinary cir-
CALIFORNIA v. USDA 10257
cumstances in which a normally excluded action may have a
significant environmental effect.” 40 C.F.R. § 1508.4. When
an action falls within a categorical exclusion and an agency
reasonably determines that there are no extraordinary circum-
stances, further documentation under the National Environ-
mental Policy Act is unnecessary. California v. Norton, 311
F.3d 1163, 1177 (9th Cir. 2002).
The Forest Service has adopted various categorical exclu-
sions as part of its Forest Service Handbook. FSH 1909.15.
By direction of the Forest Service Chief,
The following categories of routine administrative,
maintenance, and other actions normally do not indi-
vidually or cumulatively have a significant effect on
the quality of the human environment . . . and, there-
fore, may be categorically excluded from documen-
tation in an [environmental impact statement] or an
[environmental assessment] unless scoping indicates
extraordinary circumstances . . . exist:
....
2. Rules, regulations, or policies to establish
Service-wide administrative procedures, pro-
gram processes, or instructions.
FSH 1909.15, § 31.1b, ¶ 2. The Forest Service Handbook also
includes a list of resource conditions that “should be consid-
ered in determining whether extraordinary circumstances
related to [a] proposed action warrant further analysis and
documentation in an [environmental analysis] or [environ-
mental impact statement].” FSH 1909.15, § 30.3, ¶ 2. These
conditions include: “Federally listed threatened or endangered
species or designated critical habitat, species proposed for
Federal listing or proposed critical habitat, . . . Forest Service
sensitive species” and “[i]nventoried roadless areas.” Id. “The
mere presence of one or more of these resource conditions
10258 CALIFORNIA v. USDA
does not preclude use of a categorical exclusion. It is the
degree of the potential effect of a proposed action on these
resource conditions that determines whether extraordinary cir-
cumstances exist.” Id.
The USDA characterized the State Petitions Rule as admin-
istrative only and without direct, indirect, or cumulative
effects on the environment. 70 Fed. Reg. at 25,660. Because
of its “procedural” nature, the USDA invoked the Forest Ser-
vice’s categorical exclusion from environmental analysis for
“[r]ules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instruc-
tions.” Id.
The district court rejected this “procedural only” argument
because the argument failed to account for the fact that the
State Petitions Rule, when it was promulgated, specifically
removed the Roadless Rule from the Code of Federal Regula-
tions. Lockyer, 459 F. Supp. 2d at 894-96; see also 70 Fed.
Reg. at 25,661 (“Subpart B [the Roadless Rule] is revised to
read as follows: . . . .”). The district court reasoned that the
replacement of the Roadless Rule’s uniform substantive pro-
tections with a less protective and more varied land manage-
ment regime would qualify as “substantive” action and would
meet the relatively low threshold to trigger some level of
environmental analysis under the National Environmental
Policy Act. Lockyer, 459 F. Supp. 2d at 894-96. The district
court also found the USDA’s reliance on the Wyoming dis-
trict court’s injunction to be misplaced. See, e.g., id. at 897(“Defendants cannot have it both ways, that is, take deliberate
action that moots a pending appeal, triggering vacatur, yet
rely on the vacated decision to avoid compliance with proce-
dures mandated by environmental laws.”).
We agree with the district court that the USDA’s character-
ization of the State Petitions Rule as “merely procedural in
nature and scope” was unreasonable. See 70 Fed. Reg. at
25,660.
CALIFORNIA v. USDA 10259
[7] Like the district court, we are cognizant that we do not
write on a blank slate. In Kootenai Tribe v. Veneman, 313
F.3d 1094 (9th Cir. 2002), we explored the beneficial environ-
mental effects the Roadless Rule would have on inventoried
roadless areas. The majority in Kootenai Tribe remarked upon
the substantive differences between localized forest manage-
ment under the individual forest plans and the uniform nation-
wide protections imposed by the Roadless Rule:
Whatever protections of the involved environmental
interests remain in the absence of the Roadless Rule,
there can be no doubt that the 58.5 million acres sub-
ject to the Roadless Rule, if implemented, would
have greater protection if the Roadless Rule stands.
....
This is an unusual case where an action, cessation of
road development and repair in certain areas of our
national forests, is being undertaken for the primary
purpose of conservation, and the resulting benefit of
the environment. There can be no serious argument
that restrictions on human intervention in these wil-
derness areas will not result in immeasurable bene-
fits from a conservationist standpoint.
313 F.3d at 1110, 1124-25. Thus, the Kootenai Tribe majority
found that the Roadless Rule provided greater substantive
protections to roadless areas than the individual forest plans
it superseded. The majority also found that “the reduction in
human intervention that would result from the Roadless Rule
actually does alter the environmental status quo . . . . By alter-
ing how the Forest Service manages inventoried roadless
areas, the Roadless Rule will have a demonstrable impact on
the physical environment.” Id. at 1115.
We are bound by the findings of Kootenai Tribe, and we
reject the USDA’s arguments that the Roadless Rule was
10260 CALIFORNIA v. USDA
never “meaningfully” in force and that it could not have
altered the status quo.9 The Roadless Rule was legally valid
for the seven months after the opinion in Kootenai Tribe.
From the time our mandate issued to when the United States
District Court for the District of Wyoming issued its injunc-
tion, the Roadless Rule governed the roadless area manage-
ment of the national forests. The USDA asserts that the period
between injunctions “was insufficient to make any meaning-
ful difference in forest planning. This is so because . . . devel-
opment activities . . . require many months or years to plan,
evaluate, and implement.” This argument misses the mark.
That the Roadless Rule did not interfere with forest planning
measures does not mean that the months of limited human
intervention it facilitated were without beneficial effect on
roadless areas and their complex ecosystems.
[8] The USDA argues that its actions were not a “repeal”
of the Roadless Rule, but rather amounted to a reasonable
response to the agency being “stopped in its tracks” first by
the improperly issued Idaho preliminary injunction and then
by the Wyoming permanent injunction. We are not persuaded
by this argument: the promulgation of the State Petitions Rule
necessarily encompassed the permanent repeal of the Road-
less Rule’s substantive protections.
[9] The USDA plainly intended to free itself of any future
constraints imposed by the Roadless Rule. Most obviously,
when the final State Petitions Rule was published in the Fed-
eral Register, it “revised” subpart B of 36 C.F.R. § 294, which
contained the Roadless Rule, in its entirety. See 70 Fed. Reg.
at 25,661 (“[F]or the reasons set forth in the preamble, the
9
The USDA provides little, if any, precedent supporting a “meaning-
fully in force” standard. We can envision situations where such a standard
would defeat the purposes of the National Environmental Policy Act and
the Endangered Species Act. For example, an incoming administration
might conclude that many of the outgoing administration’s regulations
were not in place long enough to “make any meaningful difference” and
simply set them aside.
CALIFORNIA v. USDA 10261
Department of Agriculture amends part 294 of title 36 of the
Code of Federal Regulations as follows: . . . Subpart B is
revised to read as follows . . . .”). The State Petitions Rule
included a “severability clause” that the USDA emphasized
was to “make its intent clear that should all or any part of this
regulation be set aside, the Department does not intend that
the prior rule be reinstated, in whole or in part.” Id. at 25,656;
see also 36 C.F.R. § 294.18 (severability clause).
In its decision memorandum announcing the final rule, the
USDA discussed its dissatisfaction with the Roadless Rule
and highlighted its rejection of the Roadless Rule’s “inflexible
‘one-size-fits-all’ nationwide rulemaking approach.” 70 Fed.
Reg. at 25,656. The USDA’s internal correspondence, notice
of proposed rule making, decision memorandum, and filings
with this court repeatedly recognize that the State Petitions
Rule “replaced” the Roadless Rule.10 Whether one calls it a
“replacement” or a “repeal,” the end result is the same: the
USDA took deliberate action to prevent appellate review of
the Wyoming injunction and to free itself from the restrictions
the Roadless Rule would impose on roadless area manage-
ment if the injunction were lifted.
[10] Given the USDA’s repeated acknowledgment of its
intent to repeal—or “replace”—the Roadless Rule, that the
State Petitions Rule accomplished little else supports our con-
clusion that a primary purpose of the State Petitions Rule was
taking substantive environmental protections off the books.
10
The Forest Service also represented to the Tenth Circuit Court of
Appeals that:
[T]he 2001 [Roadless] Rule at issue in this case has now been
wholly superceded by the United States Department of . . . .
While the Intervenor-Appellants seek to have the district court’s
decision invalidating the 2001 Rule overturned[,] any such deci-
sion is without legal consequence as the 2001 Rule has been
replaced by the Forest Service. Thus, even apart from the district
court’s ruling, the 2001 [Roadless] Rule can no longer govern
management of roadless areas.
10262 CALIFORNIA v. USDA
As defendant-intervenor-appellant Silver Creek Timber Com-
pany concedes, “a state could petition the Secretary [of Agri-
culture] for a rule regarding roadless [area] management
under 5 U.S.C. § 553(e) with or without the state petition rule.”11
Defendant-intervenor-appellant California Association of 4
Wheel Drive Clubs acknowledges that “one might persua-
sively argue the State Petitions rule is a specific, but
redundant, clarification of the right to petition for rule making
addressing roadless areas.” The duplicative nature of the State
Petitions Rule and the very limited duration of the state peti-
tioning window (eighteen months) strongly suggest that the
primary purpose of the State Petitions Rule was to eliminate
permanently the Roadless Rule.
The USDA attempts to bolster its argument that the
replacement of the Roadless Rule was simply a paper exercise
by relying upon the Wyoming district court’s permanent
injunction. The USDA’s conveniently crafted argument is as
follows: the USDA could remove the Roadless Rule without
environmental analysis because of the Wyoming injunction,
and the Tenth Circuit could not review the propriety of the
Wyoming injunction because the Roadless Rule no longer
existed after the promulgation of the State Petitions Rule. The
district court noted that this type of self-serving argument
“leaves too much to the vicissitudes of the timing of litiga-
tion.” We agree.
The most obvious problem with the USDA’s reliance on
the Wyoming injunction is that it was in the process of being
appealed to the Tenth Circuit. Internal USDA documents
reveal the agency’s understanding that the promulgation of
the State Petitions Rule was not legally compelled, but was in
fact a choice from many options then available to the agency.
In selecting a course of action, the USDA unreasonably
11
Section 553(e) provides that “[e]ach agency shall give an interested
person the right to petition for the issuance, amendment, or repeal of a
rule.”
CALIFORNIA v. USDA 10263
ignored the possibility that the Tenth Circuit would reverse
the United States District Court for the District of Wyoming
and reinstate the Roadless Rule, in spite of the admitted
uncertainty surrounding the Roadless Rule. See Roadless Area
Protection, 69 Fed. Reg. 42,648 (July 16, 2004) (“There con-
tinues to be uncertainty [about the Roadless Rule’s validity]
as legal proceedings are ongoing and the ultimate outcome is
far from certain.”). Adding to the uncertainty is the fact that
a panel of this court had rejected a preliminary injunction rest-
ing on many of the grounds upon which the Wyoming district
court based its injunction.
In the context of this case, we cannot condone a marked
change in roadless area management without environmental
analysis because it was the USDA’s preferred response to an
untested district court injunction that was subject to possible
reversal in a pending appeal.12 This is not to suggest that an
agency cannot make decisions or promulgate rules while chal-
lenges to earlier rules wind their way through the appellate
process. We simply find unreasonable, in the midst of this
admitted uncertainty, the USDA’s position that the Wyoming
injunction permanently removed all protections afforded
under the Roadless Rule in all jurisdictions and that the State
Petitions Rule’s elimination of the Roadless Rule from the
books was merely a paper exercise.13 To the extent that the
12
We note that the District of Wyoming was only one of several district
courts in the nation presiding over Roadless Rule related litigation. See 69
Fed. Reg. at 42,648.
13
Stated otherwise, there is merit to the state plaintiffs’ contention that:
[t]he Forest Service was not free to “presume” that the Roadless
Rule would be reinstated, nor was it free, at the other extreme, to
presume that the rule would be invalidated by the Tenth Circuit.
Either would have been a wholly arbitrary presumption on the
information available to the agency in May 2005.
. . . In such a circumstance, the only rational course of agency
action would have been to acknowledge that the replacement of
the Roadless Rule with the State Petitions Rule could have the
effect of permanently removing protections from 58 million acres
of forest land.
10264 CALIFORNIA v. USDA
USDA wanted to move forward with a new rule while the
appeal of the Wyoming injunction was pending, it could have
developed a rule that was independent of the Roadless Rule.14
We agree with the district court that the appealed Wyoming
injunction did not reduce the removal of the Roadless Rule
from the Code of Federal Regulations to a “paper exercise.”
The USDA contends that its reliance on the categorical
exclusion was reasonable because the State Petitions Rule did
not “dictat[e] substantive rules” or implicate any “extraordi-
nary circumstances” that would preclude reliance on the cate-
gorical exclusion for “[r]ules, regulations, or policies to
establish Service-wide administrative procedures, program
processes, or instructions.” FSH 1909.15 § 31.1b., ¶ 2. As
already explained, we disagree with the characterization of
the State Petitions Rule as “procedural only.”
As the district court noted, the examples of the categorical
exclusion set forth in the Forest Service Handbook involved
“more routine procedures that are far less likely to signifi-
cantly affect the environment than the State Petitions Rule’s
repeal of the Roadless Rule.”15 Lockyer, 495 F. Supp. 2d at
14
Or it could have repealed the Roadless Rule in accordance with the
National Environmental Policy Act’s procedural requirements, and then
issued another rule.
15
The Forest Service Handbook identifies six examples of actions that
could be excluded from further environmental documentation under this
exclusion:
a. Adjusting special use or recreation fees using an existing for-
mula.
b. Proposing a technical or scientific methodology or procedure
for screening effects of emissions on air quality related val-
ues in Class I wilderness.
c. Proposing a policy to defer payments on certain permits or
contracts to reduce the risk of default.
d. Proposing changes in contract terms and conditions or terms
and conditions of special use authorizations.
CALIFORNIA v. USDA 10265
901. Counsel for the USDA could cite no occasion when this
categorical exclusion was used to repeal a rule with substan-
tive effects on land management. Id. at 902. The other rules
promulgated under this categorical exclusion do not appear to
involve the revocation of any major substantive environmen-
tal regulations; indeed, the USDA’s use of this exclusion has
generally involved routine matters.16 The USDA’s past usage
of this categorical exclusion for solely routine and rather
mundane matters indicates that the agency’s “own interpreta-
tion of the scope of this exclusion has been more modest than
the one it advocates here.” Id.
The Forest Service Handbook also lists “resource condi-
tions” that “should be considered in determining whether
extraordinary circumstances related to [a] proposed action
warrant further [environmental] analysis and documentation.”
FSH 1909.15, § 30.3, ¶ 2. Relevant to the use of the categori-
cal exclusion in this case are the conditions of: “Federally
listed threatened or endangered species or designated critical
habitat, species proposed for Federal listing or proposed criti-
cal habitat, . . . Forest Service sensitive species” and
“[i]nventoried roadless areas.” Id.
e. establishing a Service-wide process for responding to offers
to exchange land and agreeing on land values.
f. Establishing procedures for amending or revising Forest Land
and Resource Management Plans.
FSH 1909.15 § 31.1b., ¶ 2.
16
As the district court noted, examples of the occasions on which the
USDA invoked this exclusion involve: “changes to locations at which the
Forest Service may charge admission fees, clarifications of the appraisal
procedures for determining fair market value when appraising timber,
updates for field unit names and addresses, clarification of appeal proce-
dures, and revisions to building standards for residential outbuildings.”
Lockyer, 459 F. Supp. 2d at 902 n.6 (internal citations omitted). These are
clearly routine and procedural matters.
10266 CALIFORNIA v. USDA
“Where there is substantial evidence in the record that
exceptions to the categorical exclusion may apply, the agency
must at the very least explain why the action does not fall
within one of the exceptions.” California v. Norton, 311 F.3d
1162, 1177 (9th Cir. 2002) (emphasis added). Within the
Final Environmental Impact Statement that was developed for
the Roadless Rule, there is considerable discussion of the
unique and valuable qualities of roadless areas and the listed
species that dwell in these lands. When it promulgated the
State Petitions Rule, the USDA summarily concluded that the
State Petitions Rule would have no “discernable effects on the
various classes of resources listed in the agency’s NEPA Pol-
icy and Procedures that can constitute extraordinary circum-
stances.” 70 Fed. Reg. at 25,661. This cursory statement does
not even identify those resource conditions that might be
affected by the promulgation of the State Petitions Rule. Even
if we were to believe that this rule might fall within the cate-
gorical exclusion—which we do not—this is an insufficient
explanation of why the rule would not fall into one of the
exceptions to the categorical exclusion.
[11] In sum, the USDA’s determination that the State Peti-
tions Rule, with its concurrent repeal of the Roadless Rule,
could be promulgated as a categorical exclusion was unrea-
sonable.
By permanently removing the Roadless Rule from the Code
of Federal Regulations, the State Petitions Rule did much
more than establish a new procedure for the consideration of
state-specific land management rules: it purported to ensure
that future land management decisions would never again be
constrained by the Roadless Rule and its enhanced protections
for inventoried roadless areas. It was unreasonable for the
USDA to characterize the permanent repeal of these substan-
tive protections as “merely procedural” and within the scope
of the cited categorical exclusion.
[12] We conclude that the threshold for environmental
analysis under the National Environmental Policy Act has
CALIFORNIA v. USDA 10267
been met: the plaintiffs have raised substantial questions
whether the State Petitions Rule, with its concurrent repeal of
the Roadless Rule, may have a significant effect on the envi-
ronment. See Blackwood, 161 F.3d at 1212.
B
The Supreme Court has called the Endangered Species Act
“the most comprehensive legislation for the preservation of
endangered species ever enacted by any nation.” Tenn. Valley
Auth. v. Hill, 437 U.S. 153, 180 (1978). The statute reflects
“a conscious decision by Congress to give endangered species
priority over the ‘primary missions’ of federal agencies.” Id.
at 185. To accomplish this goal, the Endangered Species Act
sets forth a comprehensive program to limit harm to endan-
gered species within the United States.
[13] For federal agencies, the heart of the Endangered Spe-
cies Act is section 7(a)(2). This section affirmatively com-
mands each federal agency to “insure that any action
authorized, funded, or carried out” by the agency “is not
likely to jeopardize the continued existence of any endangered
species . . . or result in the destruction or adverse modification
of [the designated critical] habitat of such species.” 16 U.S.C.
§ 1536(a)(2). To carry out this substantive mandate, agencies
must engage in a consultation process with the appropriate
expert wildlife agency on the effects of any federal action to
listed species. See Or. Natural Res. Council v. Allen, 476 F.3d
1031, 1033 (9th Cir. 2007) (describing the consultation pro-
cess).
[14] The threshold for triggering the Endangered Species
Act is relatively low: consultation is required whenever a fed-
eral action “may affect listed species or critical habitat.” 50
C.F.R. § 402.14(a) (emphasis added); see Am. Bird Conser-
vancy v. FCC, 545 F.3d 1190, 1191 (9th Cir. 2008); see also
Interagency Cooperation—Endangered Species Act of 1973,
as amended, 51 Fed. Reg. 19,926, 19,949 (June 3, 1986)
10268 CALIFORNIA v. USDA
(“Any possible effect, whether beneficial, benign, adverse or
of an undetermined character, triggers the formal consultation
requirement . . . .” (emphasis added)). The consultation pro-
cess may be formal or informal. 50 C.F.R. §§ 402.13, 403.14.
An agency’s finding that its action will have no effect on
listed species or critical habitat obviates the need for consulta-
tion. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,
100 F.3d 1443, 1447-48 (9th Cir. 1996).
[15] We must determine whether the USDA acted arbitrar-
ily in determining that its rulemaking would have no effect on
listed species or habitat. The USDA contends that the promul-
gation of the State Petitions Rule simply created a new admin-
istrative procedure that independently would have no effect
on the environment. For the reasons discussed above, we
reject this argument. The USDA’s repeal of the substantive
protections afforded to inventoried roadless areas through the
Roadless Rule may affect federally listed species and their
critical habitats. The USDA conceded as much at oral argu-
ment, when counsel stated that a nationwide proscription on
building in inventoried roadless areas, like that of the Road-
less Rule, “would impose greater protections in roadless
areas.”
Indeed, when it was promulgating the Roadless Rule, the
USDA identified inventoried roadless areas as “biological
strongholds for populations of threatened and endangered spe-
cies.” 66 Fed. Reg. at 3246. At that time, the USDA con-
cluded that a decision not to adopt the Roadless Rule in favor
of continued building in roadless areas “would result in a
greater likelihood of measurable losses of habitat quality and
quantity in inventoried roadless areas, with the increased
potential for adverse effects to some [threatened, endangered,
and proposed] species.” U.S. Forest Service, Roadless Area
Conservation Final Environmental Impact Statement 3-182
(Nov. 2000). Nowhere does the USDA contend that the situa-
tion for endangered and threatened species in roadless areas
has changed in the intervening years.
CALIFORNIA v. USDA 10269
[16] The USDA also contends, as it did with respect to the
National Environmental Policy Act, that the Roadless Rule
was not part of the “regulatory ‘baseline’ ” in place when the
USDA adopted the State Petitions Rule. The Roadless Rule
was in effect without injunction for three months, and the
USDA fails to cite any support for the proposition that it can
ignore a valid rule, codified in the Code of Federal Regula-
tions, simply because the rule was not in effect long enough.
Therefore, because the Roadless Rule may affect listed spe-
cies and their critical habitats, the Forest Service was required
to engage in consultation under section 7 of the Endangered
Species Act before effecting the rule’s repeal through the pro-
mulgation of the State Petitions Rule.
C
The USDA and defendant-intervenor-appellants argue that
it was an abuse of discretion for the district court to reinstate
the Roadless Rule. The USDA asserts that the district court
overstepped its bounds in reviewing agency action by reinstat-
ing a rule that was neither “previously in force” nor the “sta-
tus quo.”
[17] We have explained that
To obtain permanent injunctive relief, a plaintiff
must show (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as
monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hard-
ships between the plaintiff and defendant, a remedy
in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.
This traditional balancing of harms applies in the
environmental context. In determining the scope of
an injunction, a district court has broad latitude, and
it must balance the equities between the parties and
give due regard to the public interest.
10270 CALIFORNIA v. USDA
Geertson Seed Farms v. Johanns, No. 07-16458, ___ F.3d
___, 2009 WL 1782972, at *4 (9th Cir. 2009) (internal quota-
tion marks and citations omitted). “Environmental injury, by
its nature, can seldom be adequately remedied by money dam-
ages and is often permanent or at least of long duration, i.e.,
irreparable. If such injury is sufficiently likely, therefore, the
balance of harms will usually favor the issuance of an injunc-
tion to protect the environment.” Amoco Prod. Co. v. Vill. of
Gambell, 480 U.S. 531, 545 (1987). Even when a district
court finds that a violation of the National Environmental Pol-
icy Act has occurred, “in ‘unusual circumstances’ an injunc-
tion may be withheld, or, more likely, limited in scope.” Nat’l
Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 738
n.18 (9th Cir. 2001).
[18] Having concluded that the repeal of the Roadless Rule
and the promulgation of the State Petitions Rule violated both
the National Environmental Policy Act and the Endangered
Species Act, the district court reasoned that it was necessary
to reinstate the protections of the Roadless Rule in order to
avoid further degradation of the nation’s inventoried roadless
areas. We conclude that this was not an abuse of discretion.
In Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005),
we indicated that “[t]he effect of invalidating an agency rule
is to reinstate the rule previously in force.” See also Klamath
Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 562 (9th Cir.
2006) (applying Paulsen in the context of Federal Land Pol-
icy and Management Act and National Environmental Policy
Act challenges). The USDA contends that the district court
should have “reinstated” the forest management plans because
the Roadless Rule was in effect for a limited period of time
and because the agency stated unequivocally its desire that the
Roadless Rule not be implemented should the State Petitions
Rule be found defective. That the district court found unpalat-
able the USDA’s proposed remedy—”to allow a major envi-
ronmental rule that the Court has determined was improperly
repealed to nonetheless remain permanently repealed without
CALIFORNIA v. USDA 10271
a hard look at the environmental consequences”—is not sur-
prising. Lockyer, 459 F. Supp. 2d at 917.
The district court gave meaningful consideration to the
equities in this case and carefully applied the traditional bal-
ancing of the harms analysis to arrive at its conclusion that the
Roadless Rule should be reinstated. We find no abuse of dis-
cretion.
III
With the passage of the Roadless Rule, inventoried roadless
areas, “for better or worse, [were] more committed to pristine
wilderness, and less amenable to road development for pur-
poses permitted by the Forest Service.” Kootenai Tribe, 313
F.3d at 1106. The Forest Service may reevaluate the approach
to roadless area management embodied in the Roadless Rule;
however, it must comply with the procedural requirements
contained in the National Environmental Policy Act and the
Endangered Species Act if and when it does so. The Forest
Service did not promulgate the State Petitions Rule in a man-
ner that fulfilled these statutory requirements.
The Forest Service unreasonably found that the State Peti-
tions Rule was without any substantive effect, and it unrea-
sonably concluded that the rule fell within the agency’s
categorical exclusion for rules addressing routine matters of
administrative procedure. The promulgation of the State Peti-
tions Rule had the effect of permanently repealing uniform,
nationwide, substantive protections that were afforded to
inventoried roadless areas, and replacing them with a regime
of the type the agency had rejected as inadequate a few years
earlier. Such a substantial regulatory change is neither routine
nor merely procedural.
Similarly, the USDA’s determination that no consultation
was required under Section 7 of the Endangered Species Act
was arbitrary and capricious, as the permanent removal of the
10272 CALIFORNIA v. USDA
protections afforded under the Roadless Rule may affect fed-
erally listed species and their critical habitats.
The district court did not abuse its discretion by enjoining
the State Petitions Rule and reinstating the Roadless Rule.
AFFIRMED.