McFsc v. Kevin Elliott ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOUNTAIN COMMUNITIES FOR FIRE No. 20-55660
SAFETY; LOS PADRES
FORESTWATCH; EARTH ISLAND D.C. No.
INSTITUTE, 2:19-cv-06539-
Plaintiffs-Appellants, CAS-AFM
v.
OPINION
KEVIN ELLIOTT, in his official
capacity as the Forest Supervisor of
the Los Padres National Forest;
UNITED STATES FOREST SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted May 12, 2021
Pasadena, California
Filed February 4, 2022
Before: Ryan D. Nelson and Kenneth K. Lee, Circuit
Judges, and Sidney H. Stein, * District Judge.
*
The Honorable Sidney H. Stein, United States District Judge for
the Southern District of New York, sitting by designation.
2 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
Opinion by Judge Lee;
Dissent by Judge Stein
SUMMARY **
Environmental Law
The panel affirmed the district court’s summary
judgment for the U.S. Forest Service in an action brought by
several nonprofit groups concerning the Service’s proposed
timber project of “thinning” overcrowded areas in Cuddy
Valley within Los Padres National Forest.
U.S. Forest Service regulation 36 C.F.R. § 220.6(e)(6)
allows “timber stand improvement” activities such as
“thinning . . . to reduce fire hazard” (“CE-6” exemption).
The panel held that CE-6 – the “Timber Stand
Improvement” categorical exclusion – allows for thinning of
larger commercially viable trees, and is not limited to
thinning small saplings. First, the National Environmental
Policy Act (“NEPA”) permits categorical exclusions to
proceed without an environmental impact statement or an
environmental assessment. The panel held that CE-6
unambiguously allowed commercial thinning, and,
therefore, it need not consider whether it must give Auer
deference to the Forest Service’s interpretation of CE-6.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 3
Second, CE-6 is not genuinely ambiguous and allows for
commercial thinning. The plain language of CE-6 is clear.
It does not limit activities based on tree age or size; rather it
allows for timber stand improvement. In addition, the phrase
“timber stand improvement” itself does not limit tree age or
size. The panel further held that the Forest Service was not
bound by the 2014 Forest Service Manual definition of
“stand improvement.” The panel rejected appellants
argument that other categorical exceptions implicitly limited
CE-6’s scope.
The panel held that the Forest Service’s decision to apply
CE-6 to the project was not arbitrary and capricious.
Because the Cuddy Valley Project authorized thinning to
reduce “stand density, competing vegetation, and fuels” and
will not require the use of herbicides or any road
construction, the Forest Service reasonably determined that
it fell within the scope of CE-6. Also, when analyzing
whether extraordinary circumstances prevented the use of
CE-6, the Forest Service did not have to examine the NEPA
intensity factors listed at 40 C.F.R. § 1508.27. Finally, the
Forest Service adequately considered the resource
conditions listed at 36 C.F.R. § 220.6(b).
The Forest Service did not violate the National Forest
Management Act (“NFMA”) in determining that the project
tracked the Los Padres Forest Plan’s Aesthetic Management
Standards. The panel rejected appellants’ NFMA-related
arguments. The Forest Service did not have to issue
explanatory documentation when the project was authorized.
Although NFMA regulations promulgated later require a
document describing how proposed activities follow the
forest plan, 36 C.F.R. § 219.15(d), such regulations do not
apply to plans that predate their enactment; and the Los
Padres Forest Plan predated those recent regulations.
4 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
Moreover, the Forest Service’s articulated rationale was not
a mere post hac rationalization. In addition, the Forest
Service’s conclusion that the project met the Scenic Integrity
Standards in the Forest Plan was not arbitrary and capricious.
District Judge Stein dissented because he would find,
employing all the traditional tools of statutory construction,
that the CE-6 exemption unambiguously prohibits the Forest
Service from performing commercial thinning of trees
pursuant to CE-6. He disagreed with Part I.B of the
majority’s analysis and would reverse the district court’s
denial of appellants’ motion for summary judgment.
COUNSEL
Matt Kenna (argued), Public Interest Environmental Law,
Durango, Colorado; René P. Voss, Natural Resources Law,
San Anselmo, California; for Plaintiffs-Appellants.
Ana T. Katselas (argued), David Gunter, and Erika Danielle
Norman, Attorneys; Eric Grant, Deputy Assistant Attorney
General; Jonathan D. Brightbill, Principal Deputy Assistant
Attorney General; United States Department of Justice,
Environment and Natural Resources Division, Washington,
D.C.; Stephen Vaden, General Counsel; Jamie Rosen,
Attorney; Office of the General Counsel, United States
Department of Agriculture, Washington, D.C.; for
Defendants-Appellees.
Sara Ghafouri and Lawson E. Fite, American Forest
Resource Council, Portland, Oregon, for Amicus Curiae
American Forest Resource Council.
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 5
OPINION
LEE, Circuit Judge:
The U.S. Forest Service is at loggerheads with several
nonprofit groups over its proposed project of “thinning”
overcrowded areas in Cuddy Valley within Los Padres
National Forest. If some trees are not “thinned”—i.e.,
removed—the forest will face increased risks of wildfires,
and insects and diseases may ravage the trees, according to
the Forest Service. The nonprofit groups, on the other hand,
raise the specter of swaths of large trees being slashed and
sold by the government with little regard for environmental
impact. The Cuddy Valley Project thus implicates complex
questions and competing public policy goals.
Our task today, however, is much simpler and more
straightforward: Does a U.S. Forest Service regulation
allowing “timber stand improvement” activities such as
“thinning . . . to reduce fire hazard” include “commercial
thinning” (i.e., the cutting of large and commercially viable
trees that may be sold by the Forest Service to private
parties)? 36 C.F.R. § 220.6(e)(6) (“CE-6” exemption). If
so, then the Forest Service can rely on this so-called “CE-6”
exemption to move forward with its project to thin trees—
without having to prepare an environmental impact
statement (“EIS”) or an environmental assessment (“EA”)
under the National Environmental Policy Act (“NEPA”),
42 U.S.C. §§ 4321 et seq.
We hold that the CE-6 exemption unambiguously allows
the Forest Service to thin trees, including larger
commercially viable ones, to reduce fire hazard without
having to conduct an EIS or EA. Its plain language does not
limit thinning by tree age, size, or type. Nor is thinning
defined to exclude commercial thinning. If the thinning
6 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
project reduces fire hazard and meets certain other
conditions, CE-6 greenlights the project, even if it means
felling commercially viable trees. And under our deferential
review of agency action, we hold that the Forest Service did
not act arbitrarily and capriciously in invoking the CE-6
exemption for the project.
We also hold that the Forest Service did not violate the
National Forest Management Act (“NFMA”), 16 U.S.C.
§§ 1600 et seq., which sets certain aesthetic management
standards. The Forest Service did not have to explain how
the project would meet such standards. Or. Nat. Desert
Ass’n v. U.S. Forest Serv., 957 F.3d 1024, 1034 (9th Cir.
2020). In any event, the Forest Service did explain how the
project area would retain sufficient scenic integrity.
We thus affirm the district court’s summary judgment for
the Forest Service.
BACKGROUND
I. The Forest Service Identifies Ecological Challenges
in Cuddy Valley.
Cuddy Valley lies nestled in Los Padres National Forest.
It is part of the Mt. Pinos Place area, where single-leaf
pinyon-California juniper woodlands and forests dominate
the low-elevation landscape, while large, old-growth Jeffrey
pine dominate the high-elevation landscape. But after years
of human-directed suppression of the natural process of
wildfires, the forest in Cuddy Valley has become
overcrowded with vegetation.
Overcrowding increases the risk of tree loss to insects,
disease, severe wildfire, and drought-related mortality. It
makes trees more vulnerable to widespread insect and
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 7
disease outbreaks by forcing trees to compete for moisture,
sunlight, and nutrients. In 2012, the National Insect and
Disease Forest Risk Assessment identified the Cuddy Valley
Project area as being at risk for two species of bark beetles.
Many of the Jeffrey and pinyon pine trees in the project area
are at “imminent risk” of bark beetle-associated mortality
because of overcrowding. Modeling of insect and disease
risk for the proposed project area shows a “moderate to high
risk of mortality” from these beetles, and the Forest Service
has reported pockets of five-to-twenty dead trees throughout
the area as a result.
Overcrowding also heightens the risk of major wildfire
because of the increase in forest fuels such as shrubs, brush,
and tree branches. When they accumulate, they act as “fuel
ladders” for wildfire to climb from the forest floor to tree
canopies. Dense forest canopies also allow the fire to spread
rapidly from treetop to treetop in a “crown fire.” High
intensity crown fires threaten the structure and health of the
forest itself. Since 1998, fifteen fire starts (extinguished
with fewer than ten acres burned) have spread throughout the
Cuddy Valley treatment areas, and four fires have ravaged
more than one thousand acres of land within or next to the
Cuddy Valley Project area.
II. The Forest Service Authorizes the Cuddy Valley
Project.
To address the overcrowding problem, the Forest
Service proposed the Cuddy Valley Project. It covers about
1,200 acres and consists of grasses and shrubs that evolve
into pinyon pine and mixed conifer forests. The project
would authorize thinning trees and vegetation, which the
Forest Service claims would address the overcrowding
problems by reducing “stand density, competing vegetation,
and fuels.”
8 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
The project has two main components. First, it proposes
thinning, pruning and otherwise treating smaller trees and
shrubs, and then burning the fallen branches, mulch, and
other leftover fuel. Second, it would cut commercially
viable trees and mechanically harvest them for sale. The
project would allow commercial logging of up to 601 acres
of Jeffrey pine and pinyon-juniper forest.
The Forest Service proposes to restore the overcrowded
forest to historical density levels of about 93 trees per acre;
currently, there are about 480 trees per acre. The Forest
Service intends to remove trees “throughout all diameter
classes” but will limit the trees selected for logging in several
ways. First, it will retain (1) Jeffrey pine trees that are not
infected with dwarf mistletoe, and (2) black oak trees unless
individual trees pose a hazard. Second, it will apply a
presumption in favor of Jeffrey and pinyon pine when
determining which trees will remain uncut.
III. Appellants Sue to Enjoin the Cuddy Valley
Project.
In March 2018, the Forest Service sent letters to
interested parties seeking comments on the proposed project
and released its project proposal. During the public
comment period, the Forest Service received over
600 letters: 13 original letters and 587 form letters
requesting the Forest Service not to log trees or clear
vegetation in the project area. Appellants—two
conservation groups and one community organization—
submitted comments detailing their concerns that the project
would affect sensitive plant and animal species, as well as
increase the potential for severe wildfire and invasive
species of plants.
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 9
U.S. Forest Service Supervisor Kevin Elliott issued a
decision memorandum in November 2018 announcing that
the agency would proceed with the project to “improve
forest health near communities in Cuddy Valley by reducing
overstocking, surface and ladder fuels, reduce fire
intensities, and make stands more resilient to disturbance
(i.e. bark beetle, drought, and wildfire).” He acknowledged
public concern about the impact to wildlife but stated that
the project would not “imperil species of concern.”
Appellants filed a complaint, alleging that the Forest
Service had violated both NEPA and NFMA in approving
the Cuddy Valley Project. Both sides moved for summary
judgment. The district court granted the Forest Service’s
motion for summary judgment and denied Appellants’
motion for summary judgment. Appellants filed a notice of
appeal. 1
STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d
1217, 1220 (9th Cir. 2011). The Administrative Procedure
Act (APA) sets the standards for our review of agency
decisions under NEPA and NFMA. Under the APA, we set
aside agency action only if we find it to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Idaho Sporting Cong., Inc. v.
1
Appellants assert that they have associational standing to sue. We
agree. Appellants have associational standing because their “members
would have standing to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither the claim asserted nor
the relief requested requires individual members’ participation in the
lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’tl Servs. (TOC), Inc.,
528 U.S. 167, 169 (2000).
10 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
Rittenhouse, 305 F.3d 957, 964 (9th Cir. 2002) (citing
5 U.S.C. § 706).
ANALYSIS
I. CE-6—the “Timber Stand Improvement”
Categorical Exclusion—Allows for Thinning of
Commercially Viable Trees.
This case centers on interpretation of a single regulation:
Does CE-6 permit thinning larger commercially viable
trees? Or is it limited to thinning small saplings only? Based
on the plain language of CE-6, we hold that it allows for
commercial thinning.
A. NEPA permits categorical exclusions allowing
projects to proceed without an EIS or EA.
Congress enacted NEPA to establish a national policy for
the environment. It also established a Council on
Environmental Quality (CEQ), which promulgates “binding
regulations implementing the procedural provisions of
NEPA.” Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 354 (1989); see also 42 U.S.C. § 4344(4).
Relevant here, NEPA directs federal agencies to prepare
an environmental impact statement (EIS) for proposed
“actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). The agency must draft
an EIS, notice it for public comment, respond to the
comments, and then make an ultimate decision. Not
surprisingly, though CEQ regulations limit the usual EIS to
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 11
150 pages, 40 C.F.R. § 1502.7, in practice an EIS can be a
time-consuming regulatory hurdle. 2
But an agency need not immediately move forward with
an EIS. CEQ regulations allow an agency to first prepare a
less demanding environmental assessment (EA) to
determine whether the environmental impact is “significant
enough to warrant preparation of an EIS.” Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
Cir. 1998) (citing 40 C.F.R. § 1508.9). An EA thus allows
an agency to avoid an EIS if the EA shows that the
environmental impact is not significant enough.
Finally, an agency may avoid preparing an EIS or EA if
it decides that a proposed project fits within a specified
categorical exclusion (“CE”). 40 C.F.R. § 1508.4. A
categorical exclusion covers activities that a federal agency
has found “do not have a significant effect on the human
environment.” 40 C.F.R. § 1507.3(e)(2)(ii). The Forest
Service adopts these exclusions in its NEPA Handbook after
public review and comment and in consultation with CEQ.
NEPA Proc., 73 Fed. Reg. 43,084, 43,091 (July 24, 2008).
The categorical exclusion at issue is CE-6. Established
in 1992, CE-6 applies to “[t]imber stand and/or wildlife
habitat improvement activities that do not include the use of
2
In fact, the CEQ recently issued a report on the length, by page
count, of EISs, which found the median EIS length to be 403 pages. Only
7 percent were 150 pages or shorter, and only 25 percent were 300 pages
or less. CEQ noted that the length of EISs may be influenced by a
number of factors, including “considerations relating to potential legal
challenges.” See Update to Reguls. Implementing the Proc. Provisions
of NEPA, 85 Fed. Reg. 1684–01, 1688 (Jan. 10, 2020) (to be codified at
40 C.F.R. § 1502.7).
12 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
herbicides or do not require more than 1 mile of low standard
road construction,” including activities such as:
i. Girdling trees to create snags;
ii. Thinning or brush control to improve
growth or to reduce fire hazard including
the opening of an existing road to a dense
timber stand;
iii. Prescribed burning to control understory
hardwoods in stands of southern pine;
and
iv. Prescribed burning to reduce natural fuel
build-up and improve plant vigor.
36 C.F.R. § 220.6(e)(6) (emphasis added). The Forest
Service originally introduced CE-6 in the Forest Service
Handbook, but later codified it in the Code of Federal
Regulations in 2008. See 73 Fed. Reg. at 43,084.
Here, the Forest Service determined that CE-6 applies to
the project because thinning is a timber stand improvement
activity. That meant that the Cuddy Valley Project could
move forward without an EA or EIS. Appellants, however,
argue that CE-6 permits the Forest Service to thin
precommercial saplings only, and that it does not permit the
agency to cut larger commercially viable trees without an
EIS or EA.
We must now decide whether CE-6 limits timber stand
improvement activities by the age or size of trees (i.e.,
whether CE-6 limits thinning to only precommercial
saplings). The Supreme Court has held that an agency’s
reasonable interpretation of its own ambiguous regulation
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 13
controls unless such interpretation is plainly erroneous or
inconsistent with the regulation. See Auer v. Robbins,
519 U.S. 452, 453 (1997). But the Court has recently
retrenched on this Auer deference: The “possibility of
deference can arise only if a regulation is genuinely
ambiguous.” See Kisor v. Wilkie, 139 S. Ct. 2400, 2414
(2019) (setting several threshold inquiries before giving
Auer deference). If the regulation is unambiguous and “there
is only one reasonable construction of a regulation,” then we
have “no business deferring to any other reading.” Id.
at 2415. That is so because deferring to an agency’s
interpretation of its own regulation “creates a systematic
judicial bias in favor of the federal government, the most
powerful of parties, and against everyone else.” Id. at 2425(Gorsuch, J., concurring) (citation and quotation marks
omitted).
Here, because we hold that CE-6 unambiguously allows
commercial thinning, we need not consider whether we must
give Auer deference to the Forest Service’s interpretation of
CE-6. 3 See id. at 2415–16.
B. CE-6 is not genuinely ambiguous and allows
commercial thinning.
“Regulations are interpreted according to the same rules
as statutes, applying traditional rules of construction.”
Minnick v. Comm’r of Internal Revenue, 796 F.3d 1156,
1159 (9th Cir. 2015). We thus “must exhaust all the
‘traditional tools’ of construction” in interpreting a
3
But given that the Forest Service’s interpretation mirrors our own
interpretation, we would likely find the Forest Service’s interpretation
reasonable and entitled to controlling weight even if the regulation were
considered truly ambiguous.
14 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
regulation. Kisor, 139 S. Ct. at 2415–16. But, of course,
“the starting point of our analysis must begin with the
language of the regulation.” Wards Cove Packing Corp. v.
Nat’l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir.
2002).
1. CE-6’s language does not restrict thinning.
The plain language of CE-6 is clear. It does not limit
activities based on tree age or size. 36 C.F.R. § 220.6(e)(6).
Rather, it allows for timber stand improvement so long as
such activities “do not include herbicides or do not require
more than 1 mile of low standard road construction” (neither
of which applies here). Id. The regulation also does not
carve out an exception for commercial thinning. The
question then is whether the phrase “timber stand
improvement” itself limits tree age or size. We hold that it
does not.
The most helpful place to start is CE-6’s list of examples
of timber stand improvement activities. These examples,
functioning like a definition provision, guide the court’s
analysis. Cf. Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985,
990–91 (9th Cir. 2020) (noting “the clear inference” from a
CE’s list of examples “is that other examples should be
similar in character to the examples provided”). Relevant
here is the second example: “[t]hinning or brush control to
improve growth or to reduce fire hazard including the
opening of an existing road to a dense timber stand.”
36 C.F.R. § 220.6(e)(6).
This example confirms that timber stand improvement
includes commercial thinning. Appellants contend that
“thinning” is limited to smaller trees. But CE-6’s language
includes no modifier for the term “thinning.” Nor is there
any indication that “thinning” was intended to be used in
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 15
anything but its general and ordinary sense. See Taniguchi
v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012)
(“ordinary meaning of the word” controls “unless the context
in which the word appears indicates” otherwise). In similar
contexts, we have construed common words (such as
“thinning”) according to their normal and ordinary meaning.
See Carlson, 968 F.3d at 990 (“‘repair’ and ‘maintenance’
are common words with well-understood ordinary
meanings”).
To “thin” generally means to “render less crowded or
close by removing individuals; hence, to reduce in number.”
Thin, Oxford English Dictionary 941 (2d. ed. 1991) (same
definition); see also Thin, Webster’s Third New Int’l
Dictionary 2376 (1993) (“to remove surplus plants or trees
. . . so as to improve the growth of the rest”). So, “thinning”
a stand of trees simply means rendering it less crowded by
removing some trees. And when the “words of a [regulation]
are unambiguous, then, this first canon [of relying on the text
of the statute or regulation] is also the last: judicial inquiry
is complete.” Conn. Nat’l Bank v. Germain, 503 U.S. 249,
254 (1992). 4 That is so because “[o]nly the text of a
regulation goes through the procedures established by
Congress for agency rulemaking. And it is that text on which
the public is entitled to rely.” Perez v. Mortg. Bankers Ass’n,
575 U.S. 92, 131 (2015) (Thomas, J., concurring). Thus,
CE-6’s example shows that “timber stand improvement”
4
When the language is clear as it is here, we need not look to
“history” or “purpose” of a regulation, as suggested by the dissent.
Indeed, to do so sometimes amounts to an invitation for a freewheeling
judicial inquiry, given the often amorphous or conflicting history or
purpose of a regulation. See Conroy v. Aniskoff, 507 U.S. 511, 519–20
(1993) (Scalia, J., concurring) (legislative history is often indeterminate).
16 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
includes thinning without limitations based on tree age or
size.
Perhaps recognizing that the plain meaning of “thinning”
forecloses their argument, Appellants would rather focus on
their proposed definition of the term “timber stand
improvement,” which they contend shows that “thinning” is
limited to precommercial saplings. This argument has little
merit. For starters, it would be highly odd to conclude that
a party’s proffered definition—which is not in the
regulation—somehow prohibits the very thing explicitly
allowed in the regulation.
In any event, the phrase “timber stand improvement”
does not limit activity by tree age or size, contrary to
Appellant’s assertion. The phrase “timber stand
improvement” is a term of art, so we cannot depend only on
dictionaries to discern its meaning. See Antonin Scalia &
Bryan Garner, Reading Law: The Interpretation of Legal
Texts 73 (2012) (“Sometimes context indicates that a
technical meaning applies. Every field of serious endeavor
develops its own nomenclature—sometimes referred to as
terms of art . . . . which often differ[] from common
meaning”). Rather, “we examine contemporaneous sources
to determine the legal meaning of the term at the time
Congress employed it in the statute.” Williams v. King,
875 F.3d 500, 503 (9th Cir. 2017).
CE-6 was adopted in 1992, so we need to look at sources
around that time period to help explain the objective
meaning of the term of art, “timber stand improvement.” See
57 Fed. Reg. 43,180 (Sept. 18, 1992). The 1990 Forest
Service Manual was operative at that time, and it directs
readers to The Society of American Foresters’ publication
“Terminology of Forest Science, Technology, Practices, and
Products.” The Manual describes that publication “as the
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 17
recognized basis for silvicultural [tree] terminology and
definitions.” The Society of American Foresters, in turn,
defines “timber stand improvement” as “[a] loose term
comprising all intermediate cuttings made to improve the
composition, constitution, condition and increment of a
timber stand.” Society of American Foresters, Terminology
of Forest Science, Technology, Practices, and Products 277
(F.C. Ford-Robertson ed., 1971).
This definition reveals that “timber stand improvement”
is a broad concept. It does not limit cuttings to only
precommercial trees or saplings. Instead, it represents a
“loose” term encompassing “all” intermediate cuttings. 5
The project here allows for cutting both commercial and
precommercial trees to reduce fire and pest risk, and falls
within the scope of “timber stand improvement.”
The dissent points out that the 1990 Forest Service
Manual included “precommercial thinning” as an example
of “Kinds of Timber Stand Improvement” for purposes of
“work planning and reporting.” FSM § 2476.3 (1990). But
there is no indication that the list of examples was intended
as exclusive or exhaustive, or that this example for “work
planning and reporting” was intended to define “timber stand
improvement” generally. 6 In fact, the 1990 Forest Service
5
“Intermediate cutting” is defined in turn as: “Any removal of trees
from a regular crop or stand between the time of its formation and the
harvest cutting. NOTE: Generally taken to include cleaning, thinning,
liberation and improvement cuttings, increment fellings and sometimes
even salvage and sanitation cuttings.” Society of American Foresters,
supra, at 144.
6
Moreover, contrary to the dissent’s understanding, “release” could
include cutting older, commercially viable trees. Release is the practice
of removing competing vegetation so that the younger saplings
18 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
Manual elsewhere undercuts the dissent’s proposed reading
because it authorizes the Forest Service to “[a]ccomplish
timber stand improvement objectives to the extent possible
by commercial sale . . . of timber and other forest products.”
FSM § 2476.03 (1990) (emphasis added). It further notes
that the agency can seek timber stand improvement “by
Timber Sale”—i.e., to “[h]andle as a timber sale, any
material to be cut or killed in a stand improvement project
that can be sold as stumpage or other product.” Id.
§ 2476.51 (emphases added). 7
In sum, the plain language of CE-6, along with the best
contemporaneous meaning of “timber stand improvement,”
leads us to conclude that CE-6 allows for both commercial
and precommercial thinning of trees (if it does not involve
the use of herbicides or more than one mile of low standard
road construction).
themselves can thrive. It thus contemplates removing older, overhead
trees to free up space for the young saplings to grow.
7
In any event, the Ninth Circuit has made clear “that the [Forest
Service] Manual does not have the force of law and does not bind the
agency.” Forest Guardians v. Animal & Plant Health Inspection Serv.,
309 F.3d 1141, 1143 (9th Cir. 2002). “In order for a regulation to have
the ‘force and effect of law,’ it must have certain substantive
characteristics and be the product of certain procedural requisites.”
Chrysler Corp. v. Brown, 441 U.S. 281, 301 (1979). In Western Radio
Services Co. v. Espy, we held that the Forest Service Manual and
Handbook “do not have the independent force and effect of law” because
“the Manual and Handbook are not substantive in nature” and “are not
promulgated in accordance with the procedural requirements of the
Administrative Procedure Act.” 79 F.3d 896, 901 (9th Cir. 1996). Thus,
the Forest Service Manual and Handbook “do[] not have the independent
force and effect of law.” Sw. Ctr. for Biological Diversity v. U.S. Forest
Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 19
2. The Forest Service is not bound by the 2014
Forest Service Manual definition of “stand
improvement.”
Ignoring the contemporaneous definition of “stand
improvement” when CE-6 was enacted, Appellants urge the
court to focus instead on the 2014 Forest Service Manual
(“FSM”). The 2014 Manual defines “Stand Improvement”
as “[a]n intermediate treatment of trees not past the sapling
stage made to improve the composition, structure, condition,
health, and growth of even- or uneven-aged stands.” FSM
§ 2470.5 (emphasis added).
Appellants offer two theories for why the Forest Service
must abide by the 2014 Manual definition. First, when the
Forest Service originally adopted CE-6 in 1992, it also
adopted a revised policy and procedure that Appellants
believe require the agency to use Forest Service Manual
definitions. Second, they argue that the Forest Service is
bound by the 2014 Manual when carrying out activities
within the Los Padres Forest (where Cuddy Valley is
located) because its forest plan incorporated the Manual’s
definitions. Each theory wilts under scrutiny.
First, Appellants point out that when the Forest Service
adopted a revised policy and procedure for implementing
NEPA and CEQ regulations in 1992, it included language
that “[t]he procedures in the Handbook must be used in
conjunction with other direction found throughout the Forest
Service Manual and Handbooks.” NEPA; Revised Policy
and Procedures, 57 Fed. Reg. 43,180, 43,188 (Sept. 18,
1992) (emphasis added). Appellants thus argue that this
language supports their position that procedures for carrying
out NEPA, including CE-6, “must” follow Manual
definitions. So far, so good.
20 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
But the 1992 revision goes on further. And the full text
directly undermines Appellants’ position. The very next
sentences of the 1992 revision clarify that only particular
parts of the Manual and Handbooks must be used.
“Specifically, use this Handbook in conjunction with FSM
Chapter 1950 . . . . Also, integrate the requirements in this
Handbook with the procedures set forth in FSM 1920 and
FSH 1909.12.” Id. Manual Chapters 1950 and 1920, and
Handbook 1909.12 do not define “timber stand
improvement.” FSM §§ 1920, 1950; FSH § 1909.12.
Silvicultural definitions (those related to trees, including
“stand improvement”) are found in Manual Chapter 2470.5.
FSM § 2470.5. Appellants’ quoted language thus
incorporated only Forest Service Manual Chapter 1950 and
1920, which have nothing to do with “timber stand
improvement.” Indeed, in the same notice, the Forest
Service separately incorporated a select few terms into the
“definitions” section of the Handbook that addresses the
Forest Service’s NEPA obligations. 57 Fed. Reg. at 43,181.
These definitions did not include a definition for “timber
stand improvement.” See 57 Fed. Reg. at 43,188–92.
Facing this snag, Appellants alternatively argue that the
Los Padres Forest Plan explicitly incorporates the Manual.
This court has held that “where an otherwise advisory
document has been clearly incorporated into a Forest Plan or
other binding document, its requirements become
mandatory.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 660
(9th Cir. 2009). But the Los Padres Forest Plan makes at
most a passing suggestion to “guidance” found in the “body
of information” that comprises the Forest Service Manual
and Handbook. Such vague language is not clear
incorporation. As the district court held, Appellants “cite no
authority for the proposition” that the Forest Service Manual
definitions apply to the Forest Service’s NEPA regulations,
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 21
“or even in support of the more general proposition that a
mandate in a single NMFA-issued forest plan could bind the
Forest Service’s interpretation of its own separate NEPA
regulations.” In sum, the 2014 Manual’s definition of “stand
improvement” does not bind the Forest Service.
3. Other CEs do not limit the scope of CE-6.
Finally, Appellants argue that other categorical
exceptions implicitly cabin CE-6’s scope. They argue that
CE-12 and CE-14 are the appropriate categories for the
harvest of commercial timber. And unlike CE-6, those CEs
are limited to 70 and 250 acres, respectively (the Cuddy
Valley Project encompasses over 1,000 acres). 8
But in selecting a CE for a project, the Forest Service
only needs to cite and rely on one CE, even if other CEs may
apply. 36 C.F.R. § 220.6(f)(2)(ii); see Earth Island Inst. v.
Elliott, 318 F. Supp. 3d 1155, 1180–81 (E.D. Cal. 2018)
(“CEs may overlap,” and the fact that a project fits into one
CE “does not mean that it could not also have fit into another
one”). Additionally, the cited CEs do not adequately capture
the objectives of the project—CE-10 does not touch upon
insects, disease, or drought; CE-12’s tiny acreage limitation
does not accommodate fire hazard reduction; and CE-14
does not address fire hazard reduction. 9
8
CE-10 allowed for hazardous fuel reduction but this court enjoined
it. See Sierra Club v. Bosworth, 510 F.3d 1016, 1026–30 (9th Cir. 2007).
9
These differences between the CEs, along with the recognition that
CEs may overlap, undercut the dissent’s claim that our reading of CE-6
is inconsistent with the structure of regulation. In short, the various CEs
are not redundant merely because there is overlap.
22 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
II. The Forest Service’s Decision to Apply CE-6 to the
Project Was Not Arbitrary and Capricious.
An agency’s decision to invoke a categorical exclusion
to avoid an EIS or EA is not arbitrary and capricious if “the
agency reasonably determined that a particular activity is
encompassed within the scope of a categorical exclusion.”
Earth Island Inst. v. Elliott, 290 F. Supp. 3d 1102, 1114
(E.D. Cal. 2017) (citing Alaska Ctr. For Env’t v. U.S. Forest
Serv., 189 F.3d 851, 859 (9th Cir. 1999)).
CE-6 permits “[t]hinning or brush control to improve
growth or to reduce fire hazard” as long as these activities
“do not include the use of herbicides or do not require more
than 1 mile of low standard road construction.” 36 C.F.R.
§ 220.6(e)(6). Because the Cuddy Valley Project authorizes
thinning to reduce “stand density, competing vegetation, and
fuels” and will not require the use of herbicides or any road
construction, the Forest Service reasonably determined that
it falls within the scope of CE-6. The Forest Service’s
decision memorandum adequately explained that the project
would combat fire, insect damage, and disease. Given the
deferential standard of review, we cannot say that the Forest
Service’s decision to apply CE-6 was arbitrary and
capricious.
Appellants still contend that invoking CE-6 was arbitrary
and capricious because the Forest Service ignored NEPA’s
intensity factors when deciding that no extraordinary
circumstances existed that would bar relying on CE-6. Even
if a proposed project fits within a categorical exclusion, the
Forest Service can forgo an EA or EIS only if “there are no
extraordinary circumstances related to the proposed action.”
36 C.F.R. § 220.6(a). An “extraordinary circumstance” is a
circumstance “in which a normally excluded action may
have a significant environmental effect.” 40 C.F.R.
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 23
§ 1508.4. The regulations provide many “resource
conditions” that the Forest Service should analyze in
determining whether there are “extraordinary
circumstances.” 36 C.F.R. § 220.6(b).
Here, the Forest Service analyzed each of these resource
conditions and found that the project would have “no
significant impact” on each. But Appellants argue that the
Forest Service was also required to analyze “intensity
factors” set out in 40 C.F.R. § 1508.27(b). These factors
provide context for what makes an environmental effect
“significant.” Appellants claim that the Forest Service
should have explicitly analyzed the second and fourth
factors, which are about effects on “public health or safety”
and those that are “highly controversial,” respectively.
40 C.F.R. § 1508.27. The Forest Service concedes that it did
not directly analyze the § 1508.27 intensity factors in
approving the project.
The Forest Service, however, did not have to examine
the intensity factors when analyzing whether extraordinary
circumstances prevented the use of CE-6. Because the scope
of the resource conditions is expansive, the Forest Service
must “necessarily take into account the NEPA-wide
definition of ‘[s]ignificantly’ provided in § 1508.27” when
it analyzes those resource conditions. Sierra Club v. U.S.
Forest Serv., 828 F.3d 402, 411 (6th Cir. 2016). To require
an agency to analyze the extraordinary circumstances factors
once (under resource conditions), and then again under
merely renamed factors, would be “inconsistent with the
efficiencies that the abbreviated categorical exclusion
process provides.” Ctr. for Biological Diversity v. Salazar,
706 F.3d 1085, 1097 (9th Cir. 2013).
In short, the Forest Service’s decision to approve the
project was not arbitrary and capricious because (1) it did
24 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
not have to consider the intensity factors listed at 40 C.F.R.
§ 1508.27, and (2) it adequately considered the resource
conditions listed at 36 C.F.R. § 220.6(b).
III. The Forest Service Did Not Violate NFMA in
Determining That the Project Tracks the Los
Padres Forest Plan’s Aesthetic Management
Standards.
NFMA provides for forest planning and management. It
requires agencies to develop a “Forest Plan” for each unit of
the National Forest System. 16 U.S.C. § 1604(a); Forest
Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1092 (9th
Cir. 2003). Actions approved by the Forest Service within a
particular forest unit must follow the forest plan for that
forest. 16 U.S.C. § 1604(i). The Forest Service’s failure to
comply with a forest plan would violate NFMA. Native
Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 961
(9th Cir. 2005).
As part of the Land Management Plan for the Los Padres
National Forest, the Forest Service promulgated certain
“Plan Standards” as required by 36 C.F.R. § 219. The
standards at issue are the Aesthetic Management Standards
S9 and S10, which require maintaining the forest at a level
of “High Scenic Integrity,” meaning that human activities
are not visually evident.
Appellants bring two NFMA-related arguments, both of
which fail.
The first argument is procedural: They maintain that the
Forest Service did not follow the correct timeline in
explaining how the project would meet the aesthetic
management standards. They contend that the Forest
Service should have provided its explanation when it issued
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 25
the decision memorandum, and that the district court
improperly allowed the Forest Service to submit an after-the-
fact analysis in supplemental briefing.
We, however, recently held that NFMA and the APA do
not require the Forest Service to “memorialize[] at the time
the project is authorized” how the proposed project complies
with the Forest Plan. Or. Nat., 957 F.3d at 1034. Although
NFMA regulations promulgated later require a document
describing how proposed activities follow the forest plan, 36
C.F.R. § 219.15(d), such regulations do not apply to plans
that predate their enactment. Or. Nat. 957 F.3d at 1034 &
n.12. The Los Padres Forest Plan predates those recent
regulations. The Forest Service thus did not have to issue
explanatory documentation when the project was authorized.
Moreover, the Forest Service’s articulated rationale was
not a mere post hoc rationalization. The district court
permitted the Forest Service to more fully explain its
rationale in supplemental briefing. This was not error. See
Midwater Trawlers Coop. v. Dep’t of Com., 393 F.3d 994,
1007–08 (9th Cir. 2004) (upholding the district court’s
decision to permit the National Fisheries Service to
supplement the record “so that it could determine whether
the Fisheries Service provided sufficient explanation” for its
adoption of a type of methodology for allocating fish). 10
10
Judicial review of an “agency decision may ‘be expanded beyond
the [administrative] record if necessary to explain agency decisions.’”
Midwater Trawlers, 393 F.3d at 1007 (quoting Sw. Ctr. for Biological
Diversity, 100 F.3d at 1450). “Supplementation is permitted ‘(1) if
necessary to determine whether the agency has considered all relevant
factors and has explained its decision, (2) when the agency has relied on
documents not in the record, or (3) when supplementing the record is
26 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
Appellants also offer a more substantive argument: The
Forest Service’s approval of the Cuddy Valley Project was
arbitrary and capricious because the project does not meet
the aesthetic management standards in the Forest Plan. But
the Forest Service’s conclusion that the project meets the
Scenic Integrity Standards in the Forest Plan was not
arbitrary and capricious. Forest Guardians, 329 F.3d at1098 (citing Neighbors of Cuddy Mountain v. U.S. Forest
Serv., 137 F.3d 1372, 1376 (9th Cir. 1998)). Even when an
agency explains its decision with “less than ideal clarity,” a
court will uphold the agency’s decision “if the agency’s path
may reasonably be discerned.” Garland v. Ming Dai, 141 S.
Ct. 1669, 1679 (2021) (quoting Bowman Transp., Inc. v.
Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
Because the Cuddy Valley Project authorizes no road
construction and preserves larger trees, the Forest Service
concluded that it will either retain a High Scenic Integrity
Level or at most result in a drop of only one level, which is
permitted with the Forest Supervisor’s approval. The Forest
Service pointed to Agricultural Handbooks 559 and 701,
which reveal that thinning treatments, including commercial
thinning, can be implemented while still maintaining a high
scenic integrity standard. The treatments proposed in the
project are meant to reduce the chance of unplanned wildfire,
which the Forest Service identified as a threat to scenic
integrity. The Los Padres Forest Plan itself emphasizes
“[a]ctive management of vegetation” including “vegetative
treatments that reduce stand densification problems” to
maintain “[t]he big tree (old growth) appearance of the
Jeffrey pine forests.” Because the Forest Service did not act
arbitrarily and capriciously in concluding that the project
necessary to explain technical terms or complex subject matter.’” Id.(quoting Sw. Ctr., 100 F.3d at 1450).
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 27
tracks the Forest Plan Scenic Integrity Objectives, its
decision to approve it does not violate NFMA.
CONCLUSION
The Forest Service cannot rely on CE-6 without limit.
Timber stand improvement activities under CE-6 must still
improve the composition, constitution, condition, or growth
of the tree stand. Projects are also limited in size by CE-6’s
requirement that no more than one mile of low standard road
may be constructed to carry out the project. But CE-6’s plain
language does not bar the Forest Service from commercial
thinning of trees to reduce fire risk. We AFFIRM the
district court’s grant of summary judgment.
STEIN, District Judge, dissenting:
In this case, the Forest Service has authorized
commercial thinning on 601 acres of Los Padres National
Forest without studying—much less disclosing—any
adverse environmental implications through an
environmental impact statement (“EIS”) or even a bare-
bones environmental assessment (“EA”). The Forest
Service may bypass issuing an EIS or EA for a proposed
action only if (i) the “agency determines that a categorical
exclusion” (“CE”)—a “category[] of actions that normally
do not have a significant effect on the human
environment”—“covers the proposed action”; and (ii) in
cases where the mandatory evaluation for “extraordinary
circumstances” reveals that an action “may have a
significant effect,” “the agency determines that there are
circumstances that lessen the impacts or other conditions
sufficient to avoid significant effects.” 40 C.F.R. § 1501.4.
28 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
Here, the Forest Service relies on a novel interpretation
of its long-standing CE-6 to facilitate its 1,200-acre Cuddy
Valley Project (the “Project”). Such an interpretation would
allow the Forest Service to approve commercial thinning of
trees—in other words, to contract with private logging
companies to cut and then sell large trees—over a potentially
unlimited number of acres.
The majority—in affirming the district court’s grant of
summary judgment for the Forest Service—does not employ
Auer deference to uphold the Forest Service’s conclusion; it
instead concludes that the Forest Service’s interpretation is
correct based on the plain text of CE-6. In so doing,
however, the majority ignores the Supreme Court’s explicit
instructions in Kisor v. Wilkie that, in determining whether
“a rule is genuinely ambiguous, a court must exhaust all the
‘traditional tools’ of construction[,]” including not only the
text, but also the “structure, history, and purpose” of the
regulation. 139 S. Ct. at 2415–16 (2019) (quoting Chevron
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843
n.9 (1984)). Because I find, employing all the traditional
tools of statutory construction, that the CE-6 exemption
unambiguously prohibits the Forest Service from
performing commercial thinning of trees pursuant to CE-6, I
respectfully disagree with Part I.B of the majority’s analysis
and would reverse the district court’s denial of Appellants’
motion for summary judgment.
*****
“Regulations are interpreted according to the same rules
as statutes, applying traditional rules of construction.”
Minnick v. Comm’r of Internal Revenue, 796 F.3d 1156,
1159 (9th Cir. 2015). For such interpretation, “[o]ur ‘legal
toolkit’ includes careful examination of ‘the text, structure,
history, and purpose of a regulation.’” Amazon.com, Inc. v.
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 29
Comm'r of Internal Revenue, 934 F.3d 976, 984 (9th Cir.
2019) (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415).
The majority correctly references the United States
Supreme Court’s directive in Kisor v. Wilkie that in
interpreting regulations, “a court must exhaust all the
‘traditional tools’ of construction.” 139 S. Ct. at 2415 (citing
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843 n.9 (1984)). But while the majority concedes the
need to “exhaust” the “traditional tools of construction,” it
considers solely the first of Kisor’s “traditional tools”—the
text—and fails to consider, much less exhaust, the remaining
three: the “structure, history, and purpose of a regulation.”
139 S. Ct. at 2415.
The majority defends their cursory analysis on the basis
that “when the ‘words of a [regulation] are unambiguous,
then, this first canon [of relying on the text of the statute or
regulation] is also the last: judicial inquiry is complete.’”
Majority Opinion Analysis I.B.1 (citing Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 254 16 (1992)). But in Robinson v.
Shell Oil Co., the Supreme Court issued clear instructions
that a court’s inquiry cannot cease upon a finding that some
phrase read in isolation is unambiguous: “Our first step in
interpreting a statute is to determine whether the language at
issue has a plain and unambiguous meaning with regard to
the particular dispute in the case. Our inquiry must cease if
the statutory language is unambiguous and ‘the statutory
scheme is coherent and consistent.’” 519 U.S. 337, 340
(1997) (citing United States v. Ron Pair Enters., 489 U.S.
235, 240 (1989)) (emphasis added). See also Schindler
Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 412 (2011)
(same); Sebelius v. Cloer, 569 U.S. 369, 380 (2013) (same).
As explained below, the “text, structure, history, and
purpose” of the Forest Service’s CE-6 demonstrate that this
30 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
categorical exclusion cannot extend to commercial thinning.
See Kisor, 139 S. Ct. at 2415 (emphasis added). Each roman
numeral explicates a separate Kisor tool.
I. Textual Analysis of Categorical Exception 6
The majority’s textual analysis makes brief reference to
five sources—(i) the text of the regulation itself, (ii) the
Oxford English Dictionary, (iii) Webster’s Third New
International Dictionary, (iv) the 1990 Forest Service
Manual, which was operative at the time CE-6 was adopted,
and (v) a Society of American Foresters’ 1971 publication—
to conclude that CE-6 unambiguously permits commercial
thinning.
A. Textual Analysis of CE-6 Example with
“Thinning”
The majority contends that CE-6’s term “thinning” (used
as an example of a timber stand improvement activity)
should be construed in its general and ordinary sense
because the regulation, as written, does not limit forest
activities based on tree age or size. But “thinning” as used
in the forestry context is not a term used in common
parlance; “thinning” is just one word of CE-6’s second
example, which in turn is just one of four examples. In
addition, CE-6 is but one of 22 categorical exclusions under
36 C.F.R. § 220.6(e) for actions requiring “a project or case
file and decision memo” that permit the Forest Service to
undertake a major action without completing an EIS or an
EA. See 36 C.F.R. § 220.6(e). Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33
(2000) (“The meaning—or ambiguity—of certain words or
phrases may only become evident when placed in context. It
is a ‘fundamental canon of statutory construction that the
words of a statute must be read in their context and with a
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 31
view to their place in the overall statutory scheme.’”)
(quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803,
809 (1989)).
The majority’s effort to short circuit a textual analysis of
“thinning” finds no basis in Ninth Circuit law. The majority
references Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985,
990 (9th Cir. 2020), for the proposition that the Ninth Circuit
has “construed common words (such as ‘thinning’)
according to the normal and ordinary meaning,” Majority
Opinion Analysis I.B.1, but Carlson offers not even remote
support. First, Carlson makes no reference to “thinning.”
Second, Carlson provides no discussion of how courts
should determine “common words” and no indication that
“thinning” for improving growth or reducing fire hazard is a
“common word” similar to the “repair and maintenance” of
roads and trails. Compare 36 C.F.R. § 220.6(e)(6), with
36 C.F.R. § 220.6(d)(4).
Last, Carlson’s statement that for 36 C.F.R.
§ 220.6(d)(4), “‘repair’ and ‘maintenance’ are common
words with well-understood ordinary meanings” is grounded
in that CE’s use of examples to illustrate types of repair and
maintenance work under the CE: “In order to ensure that
these words are understood in accordance with their ordinary
meanings rather than as terms of art, the CE provides
examples. ‘Repair and maintenance’ of roads include
‘grad[ing], resurfac[ing], and clean[ing] the culverts’ of a
road; ‘grading a road’ . . . .” Id. (citing 36 C.F.R.
§ 220.6(d)(4)). In Carlson, “repair” and “maintenance” in
36 C.F.R. § 220.6(d)(4) appear in the main clause of the
exclusion and are followed by a tabulated list of examples
“[i]n order to ensure that these words are understood in
accordance with their ordinary meanings rather than as terms
of art.” 968 F.3d at 990. Here, CE-6’s “thinning . . . to
32 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
improve growth or to reduce fire hazard” is just one of four
examples designed to illustrate the scope of the categorical
exclusion for “[t]imber stand and/or wildlife habitat
improvement activities . . . .” 36 C.F.R. § 220.6(e)(6).
Thus, because “thinning” in CE-6 is not an ordinary
word but rather a term of art, the majority’s heavy reliance
on the Oxford English Dictionary and Webster’s Dictionary
to explain the meaning of “thinning” is inapposite. Brown v.
Gardner, 513 U.S. 115, 118 (1994) (“Ambiguity is a
creature not of definitional possibilities but of statutory
context”). 1
1
Moreover, the majority’s references to dictionary definitions
reveal distinct definitions of “thin.” The Oxford English Dictionary
definition of thin as to “render less crowded or close by removing
individuals; hence, to reduce in number” is merely descriptive of the
action, with no required purpose. Majority Opinion Analysis I.B.1 (citing
Thin, Oxford English Dictionary 941 (2d ed. 1991). By contrast, the
Webster’s definition of thin is “to remove surplus plants or trees . . . so
as to improve the growth of the rest.” Majority Opinion Analysis I.B.1
(citing Webster’s Third New Int’l Dictionary 11 2376 (1993)). The
Webster’s definition entails a discrete goal or purpose of the removal:
improving growth of the remaining trees.
The Webster’s definition of “thin” is thus seemingly incompatible
with CE-6’s second example: “Thinning or brush control to improve
growth or to reduce fire hazard including the opening of an existing road
to a dense timber stand.” 36 C.F.R. § 220.6(e)(6). In the example,
available actions are “thinning or brush control” and the permissible
objectives are “to improve growth or to reduce fire hazard including the
opening of an existing road to a dense timber stand.” Id. If thinning
necessarily entailed actions to “improve growth the growth of the rest”
then thinning could not facilitate the sole illustration in CE-6’s second
example: “to reduce fire hazard including the opening of an existing road
to a dense timber stand.” 36 C.F.R. § 220.6(e)(6)(ii) (emphasis added).
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 33
In sum, because CE-6’s term “thinning” (as an example
of a timber stand improvement activity) is ambiguous
without reference to the context in which it was written, the
majority errs in relying on dictionary definitions and
neglecting to thoroughly address what a timber stand
improvement activity may reasonably mean when such
activity is one of the 36 C.F.R. § 220.6(e) 22 categorical
exclusions.
B. Textual Analysis of “Timber Stand
Improvement”
The majority makes only a partial attempt to arrive at the
meaning of the critical term “timber stand improvement.” It
looks to the 1990 Forest Service Manual (“1990 FSM”) that
was operative when CE-6 was adopted in 1992. But it
performs a truncated analysis of that document. The
majority relies on the statement in the 1990 FSM that the
Society of American Foresters’ 1971 publication
“Terminology of Forest Science, Technology, Practices, and
Products” is “the recognized basis for silvicultural [tree]
terminology and definitions,” and immediately turns to the
1971 publication to conclude that a timber stand
improvement is “[a] loose term comprising all intermediate
cuttings . . . .” SOCIETY OF AMERICAN FORESTERS,
TERMINOLOGY OF FOREST SCIENCE, TECHNOLOGY,
PRACTICES, AND PRODUCTS 277 (F.C. Ford-Robertson ed.,
1971).
Confusingly, however, the majority neglects to consider
whether the 1990 FSM itself offers a definition of timber
stand improvements. I readily concede that the FSM “does
not have the force of law,” Forest Guardians v. Animal &
Plant Health Inspection Serv., 309 F.3d 1141, 1143 (9th Cir.
2002); yet find that the 1990 FSM offers most helpful
guidance as to the meaning of CE-6’s “timber stand
34 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
improvement” as the public understood the term at the time
CE-6 proceeded through notice and comment.
That manual contains a section outlining “Kinds of
Timber Stand Improvement” that expressly limits the
universe of timber stand improvements categories for Forest
Service “work planning and reporting.” FSM § 2476.3
(1990). The manual states that only “[t]he following are the
categories of [Timber Stand Improvements] recognized for
work planning and reporting: 1. Release and weeding.
2. Precommercial thinning. 3. Pruning. 4. Control of
understory vegetation. 5. Fertilization. 6. Animal damage
control.” Id. In that section, only “precommercial thinning,”
not “commercial thinning,” is recognized as a timber stand
improvement activity. Id. Thus, the textual analysis shows
that “commercial thinning” is not a permitted type of timber
stand improvement under the 1990 FSM and as the public
understood the term when CE-6 proceeded through notice
and comment.
Although the majority concedes that “[t]he phrase
‘timber stand improvement’ is a term of art, so we cannot
depend only on dictionaries to discern its meaning,”
Majority Opinion Analysis I.B.1, the majority fails to
“examine ‘contemporaneous sources to determine the legal
meaning of the term’ at the time the regulation was adopted.”
Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017). Rather
than undertake its own analysis to consider whether the 1990
FSM offers helpful guidance as to the meaning of CE-6’s
“timber stand improvement” at the time CE-6 was adopted,
the majority only references the 1990 FSM’s substantive
language to discredit the notion that the 1990 FSM might
offer even remotely helpful insight to a court determining the
meaning of the critical term. As explained below, the
majority’s critiques are unpersuasive.
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 35
First, the majority argues that “there is no indication that
the list of examples was intended as exclusive or exhaustive,
or that this example for ‘work planning and reporting’ was
intended to define ‘timber stand improvement’ generally.”
Majority Opinion Analysis I.B.1. In so arguing, the majority
ignores the fact that (i) the 1990 FSM nowhere else
expounds upon the meaning of timber stand improvements;
(ii) the “work planning and reporting” text that “[t]he
following are the categories of TSI recognized for work
planning and reporting,” FSM § 2476.3 (1990) (emphasis
added) precedes a logically exhaustive tabulated list due to
the use of “the”; and (iii) the 1990 FSM frequently employs
terminology to connote non-exhaustive lists, using “such as”
for non-exhaustive lists eight times. 1990 FSM.
Further, even if the 1990 FSM’s meaning of timber stand
improvements for Forest Service “work planning and
reporting” is narrower than a “general” dictionary definition
of “timber stand improvement,” courts must nevertheless
consider the 1990 FSM definition when deriving the
meaning of CE-6. On the one hand, a timber stand
improvement definition limited to Forest Service “work
planning and reporting” appears highly relevant to the
agency’s use of CE-6 because CE-6 requires “a project or
case file and decision memo.” 36 C.F.R. § 220.6(e). On the
other hand, courts need not only rely on some general
definition here because, as the majority notes, “‘[t]he phrase
“timber stand improvement’ is a term of art, so we cannot
depend only on dictionaries to discern its meaning.”
Majority Opinion Analysis I.B.1.
Second, the majority argues that the “the 1990 Forest
Service Manual elsewhere undercuts the dissent’s proposed
reading because it authorizes the Forest Service to
‘[a]ccomplish timber stand improvement objectives to the
36 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
extent possible by commercial sale . . . of timber and other
forest products.’” Majority Opinion Analysis I.B.1 (citing
FSM § 2476.03 (1990)). Here, the majority neglects to
recognize that “commercial sale” is a means to effectuate the
“timber stand improvement objectives” defined elsewhere at
FSM § 2476.3 (1990); this “commercial sale” is the policy
of how the Forest Service can remove “timber and other
forest products.” The 1990 FSM’s use of “commercial sale”
does not somehow authorize “commercial thinning.”
Last, the majority makes a nearly identical argument
over a reference to a “timber sale.” Majority Opinion
Analysis I.B.1 (“[The FSM] further notes that the agency can
seek timber stand improvement ‘by Timber Sale’—i.e., to
‘[h]andle as a timber sale, any material to be cut or killed in
a stand improvement project that can be sold as stumpage or
other product.’”) (citing FSM § 2476.51 (1990)). As with
the “commercial sale” analysis above, the 1990 FSM’s text
merely authorizes a “timber sale” for the byproduct of a
timber stand improvement project. FSM § 2476.51 (1990).
The majority cannot reasonably read the phrase “any
material” in FSM § 2476.51 to somehow expand the scope
of what the 1990 FSM contemplates when it defined
applicable timber stand improvement activities for Forest
Service work planning and reporting purposes. FSM
§ 2476.3 (1990).
As explained below, the majority’s failure to analyze a
major cotemporaneous source—the 1990 FSM—is merely
one example of how the majority has failed to “exhaust all
the ‘traditional tools’ of construction,” including “[t]he text,
structure, history, and purpose” of the regulation. Kisor,
139 S. Ct. at 2415 (citing Chevron U.S.A. Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)). Adhering
to the Supreme Court’s instructions in Kisor, I analyze the
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 37
structure, history, and purpose of CE-6 and conclude that the
term “thinning” in CE-6 unambiguously does not permit
commercial thinning.
II. The History of 36 C.F.R. § 220.6 shows that
“Thinning” Does Not Encompass “Commercial
Thinning”
In 1991, when the Forest Service first proposed CE-6, it
stated that the previously existing CE, a broad “category of
low impact silvicultural activities,” would be separated into
“precise, clearly understood categories of proposed actions.”
56 Fed. Reg. 19,720–21 (Apr. 29, 1991). The initial versions
of these new categories were:
(1) Proposals to harvest or salvage timber
which remove one million board feet or
less of merchantable wood products;
require one mile or less of new road
construction; assure regeneration of
harvested or salvaged areas, where
required;
(2) Proposals to thin merchantable timber
from over-stocked stands which require
one mile or less of new road construction;
(3) Proposals to artificially regenerate areas
to native tree species, including needed
site preparation not involving the use of
pesticides; and
(4) Proposals to improve vegetation or
timber conditions using approved
silvicultural or habitat management
38 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
techniques, not including the use of
herbicides.
56 Fed. Reg. 19,721. In the final language of the rule, the
fourth category, which became CE-6, remained separate
from the second category, “[p]roposals to thin merchantable
timber from over-stocked stands,” which became CE-4.
National Environmental Policy Act; Revised Policy and
Procedures, 57 FR 43,209 (Sept. 18, 1992) (now codified at
36 C.F.R. § 220.6(e) pursuant to National Environmental
Policy Act Procedures, 73 Fed. Reg. 43,084, 43,091 (July
24, 2008)). The fact that CE-6 and CE-4 were separate and
distinct (before a court issued a nationwide injunction
against CE-4 2) makes clear that the Forest Service did not
consider “thinning of merchantable timber” to be a
vegetation or timber stand improvement technique.
The Forest Service’s own 1990 Manual lends further
support to this proposition. “When a statutory term is
obviously transplanted from another legal source, it brings
the old soil with it.” Medina Tovar v. Zuchowski, 982 F.3d
631, 636 (9th Cir. 2020) (quoting Taggart v. Lorenzen,
139 S. Ct. 1795, 1801 (2019)). Because none of the
categories of timber stand improvement listed in the 1990
FSM contemplate or are of the same general scope and
character as commercial thinning of trees, the 1990 FSM
supports appellant’s interpretation that the meaning of CE-
2
Heartwood, Inc. v. U.S. Forest Serv., 73 F. Supp. 2d 962, 980 (S.D.
Ill. 1999), aff’d, 230 F.3d 947 (7th Cir. 2000) (“Because the Court finds
the timber harvest CE unlawful under NEPA, the Court may not enjoin
its application in just a narrow, geographic area. The FS intended the
challenged CE to be applied nationwide on all FS lands, so in finding the
CE unlawful, the Court sees no option but to enjoin its application
nationwide.”).
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 39
6’s “timber stand improvement activity” does not encompass
commercial thinning.
When the Forest Service adopted the final language of
CE-6 (along with eight other CEs) in September 1992, the
1990 FSM established categories of timber stand
improvement activities: release and weeding,
precommercial thinning, pruning, control of understory
vegetation, fertilization, and animal damage control. FSM
§ 2476.3 (1990). None of these categories could allow for
commercial thinning: First, weeding, pruning, control of
understory vegetation, fertilization, and animal damage
control are activities that are limited in scope and plainly do
not contemplate logging of large trees. Second, by listing
“precommercial thinning” as a standalone timber stand
improvement category rather than “commercial thinning” or
the broader “thinning,” the Forest Service specifically
foreclosed the notion that a “timber stand improvement”
could encompass commercial thinning. Finally, “release
treatment,” as defined by the 1990 manual, is “an
intermediate treatment or cutting designed to free a young
stand of desirable trees, not past the sapling stage, from the
competition of undesirable trees that threaten to suppress
them.” FSM § 2470.5 (1990) (emphasis added). Because
trees “not past the sapling stage” are not commercially
saleable, “release,” too, is not of the same scope or character
as commercial thinning.
The current version of the Forest Service Manual,
updated in 2014, provides further clarity. It defines a “stand
improvement” (previously referred to as a timber stand
improvement) as “[a]n intermediate treatment of trees not
past the sapling stage made to improve the composition,
structure, condition, health, and growth of even or uneven
aged stands.” FSM § 2470.5 (2014). As in the 1990 version
40 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
of the Forest Service Manual, the 2014 version provides that
only “the following are the categories of stand improvement
recognized for work planning and reporting:” release and
weeding, precommercial thinning, pruning, fertilization,
control of understory vegetation, and animal damage
control. FSM § 2476.3. The fact that the Forest Service’s
definition of a stand improvement lists the same stand
improvement categories in the 2014 Manual as it does in the
1990 Manual offers strong evidence that (i) the Forest
Service’s definition of a timber stand improvement activity
has not changed since CE-6 was promulgated in 1992 and
(ii) that this long-standing definition of a timber stand
improvement activity cannot extend to commercial thinning.
III. The Structure of 36 C.F.R. § 220.6 Shows That
“Thinning” Does Not Encompass “Commercial
Thinning”
Nor does the “entire regulatory scheme as a whole”
support the idea that CE-6’s “thinning” could extend to
commercial thinning. See Amazon.com, Inc. v. Comm’r of
Internal Revenue, 934 F.3d 976, 986 (9th Cir. 2019) (internal
quotation marks omitted) (citation omitted). For instance,
the text of a different CE in the same regulation, CE-12,
explicitly indicates that permissible timber harvest activities
include “commercial thinning of overstocked stands.”
36 C.F.R. § 220.6(e)(12). If, as the majority concludes,
“thinning” as used throughout the regulation includes
commercial thinning, the Forest Service would have no need
to indicate explicitly that CE-12 permits commercial
thinning. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005)
(stating the “normal rule of statutory interpretation that
identical words used in different parts of the same statute are
generally presumed to have the same meaning”).
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 41
Further, under the majority’s interpretation, CE-12,
along with CE-14, become redundant. The Forest Service
states that the Project encompassing approximately 1,200
acres of “overstocked” natural stands furthers two
objectives: (i) “reduce the risk of insect and disease
infestation” and (ii) “to make the stands more resilient to
wildfire.” These goals are also consistent with CE-12, which
permits “[c]ommercial thinning of overstocked stands to . . .
increase health and vigor,” 36 C.F.R. § 220.6(e)(12), and
CE-14, which contemplates “[c]ommerical and non-
commercial sanitation harvest of trees to control insects or
disease.” 36 C.F.R. § 220.6(e)(14). These two CEs—which
explicitly contemplate commercial timber harvest—both
contain acreage limitations: 70 acres for CE-12 and 250 for
CE-14. In other words, the Forest Service could only bypass
the standard environmental review procedure if a proposed
project’s geographic footprint is 70 acres (under CE-12) or
250 acres (under CE-14) or smaller. This Project
contemplates mechanical thinning of trees of up to 601 acres,
which is more than double the maximum acreage permitted
for harvesting under either CE-12 or CE-14.
Because, as the majority correctly notes, the Forest
Service need only rely on one CE to circumvent NEPA’s
requirement to prepare an EA or the more extensive EIS, see
36 C.F.R. § 220.6(f)(2)(ii), allowing the Forest Service to
use CE-6 (containing no acreage limitation) to perform
commercial harvest activities relating to improving forest
health or reducing risk of insect infestation functionally
render the acreage limitations of CE-12 and CE-14 a dead
letter. Thus, the majority’s interpretation “would violate
‘one of the most basic interpretive canons, that a statute [or
regulation] should be construed so that effect is given to all
its provisions, so that no part will be inoperative or
superfluous, void or insignificant.’” United States v.
42 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
Grandberry, 730 F.3d 968, 981–82 (9th Cir. 2013) (quoting
Corley v. United States, 556 U.S. 303, 314 (2009))
(emphasis added).
IV. The Overall Policy Concerns Animating CE-6 Do
Not Support a Definition of “Timber Stand
Improvement” That Includes Commercial
Thinning
Lastly, the overarching object and policy of CE-6
demonstrate that CE-6 does not allow for commercial
thinning. Gozlon-Peretz v. United States, 498 U.S. 395, 407
(1991) (“In determining the meaning of the statute, we look
not only to the particular statutory language, but to the
design of the statute as a whole and to its object and policy.”)
(internal citations omitted). Here, “[i]n determining a
statutory provision’s meaning, we may consider the purpose
of the statute in its entirety, and whether the proposed
interpretation would frustrate or advance that purpose.”
DaVita Inc. v. Virginia Mason Mem’l Hosp., 981 F.3d 679,
692–93 (9th Cir. 2020) (internal quotation marks omitted)
(quoting Brower v. Evans, 257 F.3d 1058, 1065 (9th Cir.
2001)). An interpretation of CE-6 “which would produce
absurd results [should] be avoided if alternative
interpretations consistent with the legislative purpose are
available.” Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 575 (1982) (citations omitted). And as this Circuit
observes, “[t]he rationale for a CE is that a project that will
have only a minimal impact on the environment should be
allowed to proceed without an EIS or and EA.” Env’t Prot.
Info. Ctr. v. Carlson, 968 F.3d 985, 990 (9th Cir. 2020).
NEPA, enacted in 1970, “declares a broad national
commitment to protecting and promoting environmental
quality.” 42 U.S.C. § 4321 et seq.; Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 348 (1989) (citing
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 43
83 Stat. 852, 42 U.S.C. § 4331). NEPA requires federal
agencies to prepare an EIS for proposed “[f]ederal actions
significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). Pursuant to the
regulations implementing NEPA, “[a]n agency shall prepare
an environmental assessment for a proposed action that is
not likely to have significant effects or when the significance
of the effects is unknown unless the agency finds that a
categorical exclusion (§ 1501.4) is applicable or has decided
to prepare an environmental impact statement.” 40 C.F.R.
§ 1501.5(a) (emphasis added); see also Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
Cir. 1998) (noting that “[a] threshold question in a NEPA
case is whether a proposed project will ‘significantly affect’
the environment, thereby triggering the requirement for an
EIS. As a preliminary step, an agency may prepare an EA
to decide whether the environmental impact of a proposed
action is significant enough to warrant preparation of an
EIS”).
This statutory requirement ensures that federal agencies
thoroughly consider “detailed information concerning
significant environmental impacts” before approving certain
actions and make this information “available to [a] larger
audience that may also play a role in both the
decisionmaking process and the implementation of that
decision.” Robertson, 490 U.S. at 349.
By relying on a CE, an agency may avoid preparing
either an EA or an EIS altogether but only where the action
would not “have a significant effect on the human
environment,” 40 C.F.R. § 1501.4. The Forest Service’s,
and the majority’s, interpretation of CE-6 is thus inconsistent
with NEPA because it would allow the Forest Service to
circumvent NEPA’s requirements to prepare an EA or an
44 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
EIS by using CE-6 to approve projects that would manifestly
have a significant effect on the environment: because CE-6
contains no acreage limitation, the Forest Service—with the
majority’s stamp of judicial approval—can now authorize
projects involving commercial logging over an unlimited
number of acres without preparing an EA or EIS. Although
the Project in this case will involve approximately 600 acres
of commercial logging, the majority’s interpretation allows
the Forest Service to commercially log trees without first
preparing an EA or an EIS over many more acres than that—
whether that be 1,000, 6,000, or even many more acres.
Commercial logging projects of this scope would certainly
have a significant effect on the environment in contravention
of 40 C.F.R. § 1507.3(e)(2)(ii).
Both the majority and the Forest Service fail to identify
any limiting factor that could plausibly avoid this result.
First, CE-6’s dictate that the Project must be tied to a “timber
stand improvement” activity (or a wildlife habitat
improvement activity) cannot act as a sufficient bulwark
against environmental harm caused by a significant amount
of commercial thinning. Other parts of regulation 36 C.F.R.
§ 220.6 at issue confirm that even a Forest Service action
that is intended to improve, rather than harm, a project is not
exempt from acreage limitations: such acreage limits are
designed to ensure that a categorically exempted project’s
impact does not have a “significant effect on the human
environment.” For instance, even where the purpose of a
timber sale permitted by CE-12 and CE-14 is to “control
insects or disease” or to “achieve the desired stocking level
to increase health and vigor,” the acreage limits on timber
harvest still apply. See 36 C.F.R. § 220.6 (e)(12), (14).
Both of CE-6’s explicit limitations—on herbicide use
and on low standard road construction of more than one
MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 45
mile—are false also saviors. In 1999, a district court struck
down CE-4 that authorized “[t]imber harvest which removes
250,000 board feet or less of merchantable wood products or
salvage which removes 1,000,000 board feet or less of
merchantable wood products,” as arbitrary and capricious.
See Heartwood, 73 F. Supp. 2d at 975. CE-4, like CE-6
(adopted at the same time as CE-4), also included the
limitation that the proposed activity to be excluded could
“not require more than one mile of low standard road
construction.” 57 Fed. Reg. at 43,209. Even with this
limitation, the court found that in promulgating CE-4, the
Forest Service “failed to adequately address or provide
support for its position that the timber harvests of these
magnitudes would not have cumulative effects on the
environment” and enjoined further actions using the timber
harvest CE. Heartwood, 73 F. Supp. 2d. at 976, 980. And
as a matter of common sense, prohibiting the use of
herbicides does very little to mitigate the significant harm to
the environment caused by large-scale commercial logging.
Because the Forest Service’s interpretation of CE-6—
that commercial thinning over a potentially unlimited
number of acres is a “timber stand improvement activity”
that “do[es] not have a significant effect on the human
environment.” 40 C.F.R. § 1507.3(e)(2)(ii)—contravenes
the very purpose of NEPA, the majority errs in concluding
that CE-6 unambiguously permits this result. Rather, a
purpose analysis demonstrates that CE-6 cannot encompass
commercial thinning.
*****
Taking direction from Kisor and settled Ninth Circuit
law, I have attempted to explicate “the text, structure,
history, and purpose of a regulation.” Kisor, 139 S. Ct.
at 2415. In so doing, I conclude that CE-6 cannot support
46 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT
the Forest Service’s decision to approve the 1,200-acre
Cuddy Valley Project when it has conducted neither an
environmental impact statement review nor a bare-bones
environmental assessment review.
NEPA’s requirements do not constitute merely a “time-
consuming regulatory hurdle,” as the majority, tellingly,
writes. Those requirements are the law, duly enacted and
promulgated to ensure that federal agencies “carefully
consider [] detailed information concerning significant
environmental impacts.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 349 (1989). By failing to
consider the consequences of allowing the Forest Service to
evade NEPA’s environmental disclosure requirements for
projects involving significant amounts of commercial
thinning—projects that are outside the scope of activities
CEs are meant to authorize—the majority misses the forest
for the trees and does an impermissible disservice to NEPA’s
regulatory scheme and the law.
I respectfully dissent.