Center for Bio Diversity v. Eli Ilano , 928 F.3d 774 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 17-16760
DIVERSITY; EARTH ISLAND
INSTITUTE, D.C. No.
Plaintiffs-Appellants, 2:16-cv-02322-VC
v.
OPINION
ELI ILANO; THOMAS TIDWELL;
UNITED STATES FOREST SERVICE,
Defendants-Appellees,
SIERRA PACIFIC INDUSTRIES,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Vince Chhabria, District Judge, Presiding
Argued and Submitted December 18, 2018
San Francisco, California
Filed June 24, 2019
2 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
Before: Milan D. Smith, Jr. and Jacqueline H. Nguyen,
Circuit Judges, and Jane A. Restani, * Judge.
Opinion by Judge Nguyen
SUMMARY **
Environmental Law
The panel affirmed the district court’s summary
judgment in favor of the U.S. Forest Service in an action
challenging the Forest Service’s designation of at-risk forest
lands and its approval of the Sunny South Project, which
aimed to address spreading pine-beetle infestation in
previously designated at-risk areas within the Tahoe
National Forest.
In 2014, Congress amended the Healthy Forests
Restoration Act (“HFRA”) to allow the Forest Service
greater flexibility in managing the health of forest lands
threatened by insect and disease infestation. Large areas of
forest land that face a heightened risk of harms are
designated as “landscape-scale areas.” 16 U.S.C. §§ 6591a,
6591b.
The panel held that the Forest Service’s designation of
5.3 million acres as a landscape-scale area in the Tahoe
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CENTER FOR BIOLOGICAL DIVERSITY V. ILANO 3
National Forest in California did not violate the National
Environmental Policy Act (“NEPA”). Specifically, the
panel held that here the designation of landscape-scale areas
under HFRA did not change the status quo, and did not
trigger a NEPA analysis. The panel further held that
California Wilderness Coalition v. United States
Department of Energy, 631 F.3d 1072 (9th Cir. 2011), did
not compel a contrary result. The panel concluded that the
Forest Service’s designation of landscape-scale areas did not
require an environmental assessment or environmental
impact statement under NEPA.
Plaintiffs challenged the Forest Service’s conclusion that
no extraordinary circumstances existed and that the Sunny
South Project was categorically excluded from NEPA
compliance because the project’s potential impact on the
California spotted owl constituted extraordinary
circumstances. The panel held that the Forest Service
considered relevant scientific data, engaged in a careful
analysis, and reached its conclusion based on evidence
supported by the record. The panel concluded that the Forest
Service’s decision was not arbitrary or capricious.
COUNSEL
Justin Augustine (argued), Oakland, California; René P.
Voss, San Anselmo, California; for Plaintiffs-Appellants.
Barclay T. Samford (argued) and J. David Gunter II,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Denver, Colorado; for Defendants-
Appellees.
4 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
Lawson E. Fite (argued) and Sara Ghafouri, American Forest
Resource Council, Portland, Oregon, for Intervenor-
Defendant-Appellee.
OPINION
NGUYEN, Circuit Judge:
In 2014, Congress amended the Healthy Forests
Restoration Act (“HFRA”) to allow the United States Forest
Service greater flexibility in managing the health of forest
lands threatened by insect and disease infestation. The
Forest Service identified large swaths of lands in California,
including lands within the Tahoe National Forest, as insect-
infested and diseased areas under the HFRA. In 2016, the
Forest Service approved the Sunny South Project, which
aimed to address spreading pine-beetle infestation in
previously designated at-risk areas within the Tahoe
National Forest.
Two environmental groups, the Center for Biological
Diversity and Earth Island Institute, filed suit, challenging
both the Forest Service’s designation of at-risk forest lands
and its approval of the Sunny South Project on the ground
that the agency’s actions violated the National
Environmental Policy Act (“NEPA”). The district court
granted summary judgment in favor of the Forest Service.
We affirm.
CENTER FOR BIOLOGICAL DIVERSITY V. ILANO 5
I.
BACKGROUND
A. National Environmental Policy Act
“NEPA mandates the preparation of an [environmental
impact statement (‘EIS’)] for ‘every recommendation or
report on proposals for . . . major Federal actions
significantly affecting the quality of the human
environment.’” Friends of Se.’s Future v. Morrison,
153 F.3d 1059, 1062 (9th Cir. 1998) (quoting 42 U.S.C.
§ 4332(C)). The federal agency concerned must “prepare an
[environmental assessment (‘EA’)] to determine whether a
proposed federal action will have a significant impact and to
determine whether preparation of an EIS will be necessary.”
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1238–39 (9th Cir. 2005). Under NEPA, agencies must
take a “‘hard look’ at environmental consequences.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390,
410 n.21 (1976)). NEPA “does not mandate particular
results, but simply prescribes the necessary process.” Id.
Some actions, however, are categorically excepted or
excluded from NEPA’s procedural requirements. See, e.g.,
Douglas County v. Babbitt, 48 F.3d 1495, 1502 n.7 (9th Cir.
1995) (referencing categorical exceptions from NEPA
compliance for actions under the Clean Air Act and permits
under the Marine Mammal Protection Act).
B. Healthy Forests Restoration Act
Congress amended the HFRA as part of the 2014 Farm
Bill. See H.R. Rep. No. 113-333, at 512 (2014) (conf.
report); Agricultural Act of 2014, Pub. L. No. 113-79,
§ 8204, 128 Stat. 649, 915–18; S. Rep. No. 113-88, at 18
6 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
(2013). The purpose of the HFRA amendments was to
address “[t]he outbreak of the pine bark beetle afflicting
states across the nation,” which was “creating potentially
hazardous fuel loads in several western states.” H.R. Rep.
No. 113-333, at 512; see Agricultural Act of 2014 § 8204,
128 Stat. 649, 915–18. Prior to these amendments, the
“system for managing national forests affected by historic
insect infestations ha[d] not been responsive to the speed and
widespread impact of the infestations.” H.R. Rep. No. 113-
333, at 512. The amendments were intended “to give forest
managers greater opportunity to identify and manage risk in
the forest.” S. Rep. No. 113-88, at 18. In furtherance of this
objective, the amendments created a two-step process to
combat insect infestations and diseased forests. See
16 U.S.C. §§ 6591a, 6591b.
Under the first step, large areas of forest land that face a
heightened risk of harms from infestation and disease are
designated as “landscape-scale areas.” Id. § 6591a. Within
60 days after the enactment of the amendments, upon request
by the governor of a state experiencing an insect or disease
epidemic, the Secretary of Agriculture must designate one or
more treatment areas in affected national forests in the state.
Id. § 6591a(b)(1). 1 After those 60 days, “the Secretary may
designate additional landscape-scale areas . . . as needed to
address insect or disease threats.” Id. § 6591a(b)(2).
Regardless of whether the area is designated as an
“initial area” under subsection (b)(1) or an “additional area”
under subsection (b)(2), the same requirements apply: An
area can be designated as a landscape-scale area only if it
1
The Secretary delegated authority to designate landscape-scale
areas to the Chief of the Forest Service.
CENTER FOR BIOLOGICAL DIVERSITY V. ILANO 7
falls into one of three categories. See id. § 6591a(c). To be
designated as a landscape-scale area, the area must be:
(1) experiencing declining forest health,
based on annual forest health surveys
conducted by the Secretary;
(2) at risk of experiencing substantially
increased tree mortality over the next
15 years due to insect or disease infestation,
based on the most recent National Insect and
Disease Risk Map published by the Forest
Service; or
(3) in an area in which the risk of hazard trees
poses an imminent risk to public
infrastructure, health, or safety.
Id.
Under the second step of the two-step process, treatment
projects are created and implemented to combat issues faced
in the landscape-scale areas. See id. § 6591b. Projects under
this second step “may be . . . categorically excluded from the
requirements of [NEPA].” Id. § 6591b(a)(1).
Two months after the HFRA amendments were enacted,
the Forest Service issued a two-page white paper addressing
the applicability of NEPA to the designation of landscape-
scale areas under 16 U.S.C. § 6591a (section 602 of the
HFRA). The Forest Service concluded that because the
designation of landscape-scale areas does not directly or
indirectly affect the environment, there are no effects that
can be meaningfully evaluated, and a NEPA analysis is not
required at the designation stage.
8 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
C. Designation of Landscape-Scale Areas and
Development and Approval of the Sunny South
Project
In 2014, at the request of California’s governor, the
Chief of the Forest Service designated 1.5 million acres of
land as a landscape-scale area under § 6591a(b)(1). And in
2015, the Chief designated an additional 5.3 million acres of
lands in California, which encompassed the Tahoe National
Forest, as a landscape-scale area under § 6591a(b)(2). The
Chief designated these additional areas because they met one
or more of the following criteria: they were “experiencing
declining forest health,” were “at risk of substantially
increased tree mortality,” or were areas “in which the risk of
hazard trees poses an imminent risk to public infrastructure,
health, or safety.” See 16 U.S.C. § 6591a.
In the fall of 2015, the Forest Service initiated planning
for the Sunny South Project. The project authorizes tree
thinning and prescribed burning across 2,700 acres of the
Tahoe National Forest. The project addresses the “perfect
storm for an outbreak of bark beetles” caused by “four years
of drought causing moisture stress in the trees and dense
stands of almost pure ponderosa pine in sizes attractive to
the bark beetle.” Its stated objective is to “give the
remaining green trees access to more water and nutrients,
leading to improved vigor to overcome the insect
infestation.” The project was designed to “have positive . . .
effects on wildfire control operations.”
In 2016, biologists completed an evaluation to assess the
Sunny South Project’s “potential effects and determine
whether [it] would result in a trend toward listing or loss of
viability for sensitive species.” In preparing the evaluation,
the biologists made “a conscientious attempt . . . to review
and draw from the best available science regarding species,
CENTER FOR BIOLOGICAL DIVERSITY V. ILANO 9
their associated habitat needs, and the potential for adverse
project-related effects.” As part of that evaluation, the
biologists examined the project’s potential effect on the
California spotted owl, which the Forest Service designated
as a sensitive species in the Tahoe National Forest.
Ultimately, the biologists concluded that the Sunny South
Project “may affect individuals, but is not likely to result in
a trend toward federal listing or loss of viability for the
California spotted owl.”
The Forest Service approved the Sunny South Project in
a decision memo dated August 3, 2016. In the memo, the
Forest Service concluded that the project was categorically
excluded from NEPA analysis under the HFRA, as there
were no extraordinary circumstances preventing the
application of the categorical exclusion from NEPA.
D. Procedural History
The Center for Biological Diversity and Earth Island
Institute filed suit, alleging that the Forest Service violated
NEPA when it designated the 5.3 million acres in California
under § 6591a(b) without first preparing an EA or EIS.
Plaintiffs also alleged that the Forest Service violated NEPA
when it invoked the categorical exclusion in § 6591b for the
Sunny South Project. The district court granted summary
judgment in favor of the Forest Service 2 and Defendant-
Intervenor Sierra Pacific Industries. Plaintiffs timely
appealed.
2
The Supervisor of the Tahoe National Forest, Eli Ilano, and the
Chief of the United States Forest Service, Tony Tooke, are also
Defendants-Appellees in this action.
10 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
II.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. “We
review a district court’s grant of summary judgment on
NEPA claims de novo.” Tri-Valley CAREs v. U.S. Dep’t of
Energy, 671 F.3d 1113, 1123 (9th Cir. 2012).
Compliance with NEPA is reviewed under the
Administrative Procedures Act (“APA”). Grand Canyon Tr.
v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1016 (9th
Cir. 2012). “Under the APA, a court may set aside an agency
action if the court determines that the action was ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Id. (quoting Karuk Tribe of Cal. v.
U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en
banc)).
III.
DISCUSSION
A. Landscape-Scale Area Designation under
§ 6591a(b)(2) Does Not Trigger a Requirement for
NEPA Analysis
Plaintiffs argue that the Forest Service’s designation of
5.3 million acres as a landscape-scale area violated NEPA
because no EA or EIS was prepared.
Under NEPA, federal agencies must prepare an EIS for
major federal actions that “have a significant environmental
impact.” Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660,
668 (9th Cir. 1998). “An EIS is not necessary where a
proposed federal action would not change the status quo.”
CENTER FOR BIOLOGICAL DIVERSITY V. ILANO 11
Id. That is because “[l]ong-range aims are quite different
from concrete plans,” and “NEPA does not require an
agency to consider the environmental effects that speculative
or hypothetical projects might have on a proposed project.”
Id.
Here, the designation of landscape-scale areas does not
“change the status quo.” Designating landscape-scale areas
does not mark the commencement of any particular projects;
it only identifies swaths of land suffering from the harms of
insect or disease infestation where certain priority projects
may be implemented. See 16 U.S.C. § 6591a(d)(1). As the
Supreme Court explained, where “it is impossible to predict
the level of . . . activity that will occur in the region,” it is
“impossible to analyze the environmental consequences and
the resource commitments involved in, and the alternatives
to, such activity.” Kleppe, 427 U.S. at 402. In such
circumstances, “any attempt to produce an [EIS] would be
little more than a study . . . containing estimates of potential
development and attendant environmental consequences.”
Id. In other words, unless there is a particular project that
“define[s] fairly precisely the scope and limits of the
proposed development of the region,” there can be “no
factual predicate for the production of an [EIS] of the type
envisioned by NEPA.” Id. Therefore, we hold that the
designation of landscape-scale areas under the HFRA does
not trigger a NEPA analysis.
To conclude otherwise would undercut Congress’s intent
in amending the HFRA, which was to address “the speed and
widespread impact of [insect] infestations.” H.R. Rep. No.
113-333, at 512. Areas that qualify for designation under
§ 6591a are those already at risk from “declining forest
health,” “increased tree mortality,” or those “in which the
risk of hazard trees poses an imminent risk to public
12 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
infrastructure, health, or safety.” 16 U.S.C. § 6591a(c)(1)–
(3). Given the imminence of these “threats,” id.
§ 6591a(b)(2), Congress plainly intended to allow the Forest
Service flexibility to combat them quickly.
Congress’s sense of urgency is reflected in other
components of § 6591a. For example, the statute requires
that an initial area be designated within 60 days of its
enactment, at the request of a state governor. Id.
§ 6591a(b)(1). Projects in the designated areas are “priority
projects.” Id. § 6591a(d)(1). Reading a NEPA analysis
requirement into the HFRA with respect to landscape-scale
area designations would conflict with the statute’s overall
purpose of expediting the response to declining forest lands.
Plaintiffs argue that California Wilderness Coalition v.
United States Department of Energy, 631 F.3d 1072 (9th Cir.
2011), compels a contrary result. It does not. In California
Wilderness Coalition, we concluded that a NEPA analysis
was required when the Department of Energy (“DOE”)
designated certain areas as national interest electric
transmission corridors (“NIETCs”), thereby permitting “a
fast-track approval process” for “utilities seeking permits for
transmission lines within the corridor.” Id. at 1080, 1096–
1106. But the statute there explicitly called for compliance
with environmental laws, including NEPA, unless otherwise
specifically exempted. See 16 U.S.C. § 824p(j)(1). Such a
provision is conspicuously absent in the relevant provisions
of the HFRA. See 16 U.S.C. § 6591a.
Moreover, unlike the designation of landscape-scale
areas under the HFRA, the designation of NIETCs changes
the status quo. See Cal. Wilderness Coal., 631 F.3d at 1103.
Designation of NIETCs “create[s] new federal rights,
including the power of eminent domain.” Id. at 1101. The
designation of NIETCs also encourages, through incentives
CENTER FOR BIOLOGICAL DIVERSITY V. ILANO 13
to utility companies, “the siting of transmission facilities in
one municipality rather than another.” Id. at 1103. This “has
effects in both municipalities in terms of the . . . proposed
and potential uses of land.” Id. A NIETC designation thus
makes it entirely foreseeable that the land in question will be
used for electrical power transmission and enables federal
agencies to evaluate the attendant environmental
consequences.
A landscape-scale area designation, in contrast, does not
alter future land use or otherwise foreseeably impact the
environment. Plaintiffs would have the Forest Service
“consider the environmental effects that speculative or
hypothetical projects might have,” which “NEPA does not
require.” Northcoast Envtl. Ctr., 136 F.3d at 668. We
therefore hold that the Forest Service’s designation of
landscape-scale areas does not require an EIS or EA under
NEPA.
B. The Forest Service’s Finding that the Sunny South
Project Did Not Involve “Extraordinary
Circumstances” Was Not Arbitrary or Capricious
Certain agency actions are categorically excluded from
NEPA. See, e.g., 16 U.S.C. § 6591b(a). In some instances,
before an agency takes action pursuant to a categorical
exclusion, the agency must assess whether that action
presents “extraordinary circumstances in which a normally
excluded action may have a significant environmental
effect,” necessitating further environmental impact analysis.
40 C.F.R. § 1508.4. Under the HFRA, a priority project
within a designated landscape-scale area may be
categorically excluded from NEPA if the project meets
certain requirements pertaining to its location, size, purpose,
development, and implementation. See 16 U.S.C.
§ 6591b(a)–(d). Here, the Forest Service concluded that no
14 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
extraordinary circumstances existed and that the Sunny
South Project was categorically excluded from NEPA
compliance. 3 Plaintiffs challenge the Forest Service’s
finding on the ground that the project’s potential impact on
the California spotted owl constitutes extraordinary
circumstances and that, at a minimum, the Forest Service
should have at least conducted an EA before moving forward
with the project.
When conducting an extraordinary circumstances
inquiry, the agency must first determine whether the
proposed action involves certain natural resources present in
the area, such as threatened, endangered, or sensitive
species. 36 C.F.R. § 220.6(b)(1). If any of the enumerated
natural resources are present, then the agency must examine
whether there is a “cause-effect relationship between a
proposed action and the potential effect on” the resource, and
“if such a relationship exists,” it is “the degree of the
potential effect of a proposed action on” the resource “that
determines whether extraordinary circumstances exist.” Id.
§ 220.6(b)(2). If the agency “determines, based on scoping,
that it is uncertain whether the proposed action may have a
significant effect on the environment,” the agency must
“prepare an EA.” Id. § 220.6(c). If “the proposed action
may have a significant environmental effect,” the agency
must “prepare an EIS.” Id. If there are no extraordinary
circumstances, then the agency can invoke the categorical
exclusion from NEPA compliance. See id. § 220.6(a); cf.
Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,
3
The Forest Service takes the position that it need not engage in an
extraordinary circumstances analysis at all. We need not address this
issue because the Forest Service did conduct such an analysis, and its
decision that the project was categorically excluded from NEPA
compliance was not arbitrary or capricious.
CENTER FOR BIOLOGICAL DIVERSITY V. ILANO 15
100 F.3d 1443, 1450 (9th Cir. 1996) (“[T]he Ninth Circuit
has held that an agency may issue a categorical exclusion
even where threatened or endangered species are present if
the agency determines that the project will not impact
negatively on the species.”).
Plaintiffs argue that because the project proposes “a
medium-intensity logging method . . . that greatly reduces
the canopy cover of the logged forest, from as high as 86%
canopy cover down to just 50%,” it will likely negatively
affect the California spotted owl species. Plaintiffs cite a
study that concluded “that reducing canopy cover below
70% has been found to be a serious issue for owls . . .
because it can ‘reduce reproductive potential, and reduce
survival and territory occupancy as well.’” These potential
effects, according to Plaintiffs, are of great significance
because the population at large is already declining, and the
particular populations in impacted areas “have recently
shown the highest productivity possible with regard to owl
reproduction.”
The Forest Service identified the California spotted owl
as a sensitive species within the project area and examined
whether the project had any significant environmental
effects on the species. Ultimately, it acknowledged that the
project “may affect individual owls, but is not likely to result
in a trend toward federal listing or a loss of viability” for the
species as a whole.
The record demonstrates that when developing the
project, the Forest Service endeavored to ensure that the
project did not affect the most important areas of the owls’
habitat. The project avoided the Protected Activity Centers
(“PACs”)—the most valuable owl habitat, which contains
the owls’ nesting trees. And while areas surrounding PACs,
known as Home Range Core Areas (“HRCAs”), would be
16 CENTER FOR BIOLOGICAL DIVERSITY V. ILANO
treated, the project left about 79 percent of these HRCAs
untouched. The Forest Service acknowledged that treatment
would “reduce habitat suitability by reducing canopy cover
to a minimum of 50 percent, but [it] would retain other
important components, notably the largest trees, snags, and
logs, and untreated stream corridors.” Ultimately, the Forest
Service concluded that the spotted owl would in fact benefit
in the long run because “[b]y protecting active territories and
treating the surrounding forest, the project is expected to
limit adverse short-term effects while improving long-term
habitat” and “reducing the risk of losing suitable habitat.”
In finding that individual owls may be negatively
impacted in the short-term but the species would benefit in
the long-run, the Forest Service relied upon scientific studies
and its own expert judgment, to which we must defer. See
Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053
(9th Cir. 2012) (“We . . . defer to agency decisions so long
as those conclusions are supported by studies ‘that the
agency deems reliable.’” (quoting N. Plains Res. Council v.
Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011))).
Plaintiffs cite a different study, but “[w]hen specialists
express conflicting views, an agency must have discretion to
rely on the reasonable opinions of its own qualified experts
even if, as an original matter, a court might find contrary
views more persuasive.” Marsh v. Or. Nat. Res. Council,
490 U.S. 360, 378 (1989). Plaintiffs take issue with the
Forest Service’s conclusion. We conclude, however, that the
Forest Service considered relevant scientific data, engaged
in a careful analysis, and reached its conclusion based on
evidence supported by the record. Therefore, its decision
was not arbitrary or capricious.
AFFIRMED.