Bark v. Usfs ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARK; et al., No. 19-35665
Plaintiffs-Appellants, D.C. No. 3:18-cv-01645-MO
v.
MEMORANDUM*
UNITED STATES FOREST SERVICE, a
federal agency,
Defendant-Appellee,
HIGH CASCADE, INC.,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 10, 2019
Seattle, Washington
Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Stephen A. Higginson, United States Circuit Judge for the U.S. Court
of Appeals for the Fifth Circuit, sitting by designation.
Appellants Bark, Cascadia Wildlands, and Oregon Wild timely appeal the
district court’s summary judgment in favor of Appellees, the United States Forest
Service (USFS) and High Cascade, for claimed violations of the National
Environmental Policy Act (NEPA) and the National Forest Management Act
(NFMA). Reviewing de novo the district court’s grant of summary judgment,
Center for Biological Diversity v. Ilano, 928 F.3d 774, 779 (9th Cir. 2019), we
hold that the USFS’s determination that the Crystal Clear Restoration (CCR)
Project did not require an Environmental Impact Statement (EIS) was arbitrary and
capricious and so reverse. We do not reach the NFMA claims.
The USFS’s decision not to prepare an EIS was arbitrary and capricious
under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), for two
independent reasons.
1. The effects of the Project are highly controversial and uncertain, thus
mandating the creation of an EIS. See 40 C.F.R. § 1508.27(b)(4) & (5) (listing
relevant factors for whether an EIS is required, including if the project’s effects are
“highly controversial” and “highly uncertain”). The stated primary purpose of the
CCR Project is to reduce the risk of wildfires and promote safe fire-suppression
activities, but Appellants identify scientific evidence showing that variable density
thinning will not achieve this purpose. Considering both context and intensity, as
required by 40 C.F.R. § 1508.27, this evidence raises substantial questions about
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the Project’s environmental impact, and an EIS is required. See, e.g., Blue
Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)
(holding that an EIS is required when an environmental assessment raises
“substantial questions” about whether an agency’s action will have a significant
effect on the quality of the human environment); see also Native Ecosystems
Council v. U.S. Forest Serv., 428 F.3d 1233, 1238–39 (9th Cir. 2005).
“A project is ‘highly controversial’ if there is a ‘substantial dispute [about]
the size, nature, or effect of the major Federal action rather than the existence of
opposition to a use.’” Native Ecosystems Council, 428 F.3d at 1240 (alteration in
original) (quoting Blackwood, 161 F.3d at 1212). “A substantial dispute exists
when evidence . . . casts serious doubt upon the reasonableness of an agency’s
conclusions.” In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1069
(9th Cir. 2014) (quoting Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d
722, 736 (9th Cir. 2001), abrogated in part on other grounds by Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 157 (2010)). To demonstrate a substantial
dispute, appellants must show that “evidence from numerous experts” undermines
the agency’s conclusions. Blackwood, 161 F.3d at 1212. “[M]ere opposition alone
is insufficient to support a finding of controversy.” WildEarth Guardians v.
Provencio, 923 F.3d 655, 673 (9th Cir. 2019).
The Environmental Assessment (EA) explained that the CCR Project will
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use “variable density thinning” to address wildfire concerns. “In variable density
thinning, selected trees of all sizes . . . would be removed.” This process would
assertedly make the treated areas “more resilient to perturbations such as . . . large-
scale high-intensity fire occurrence because of the reductions in total stand
density.” Variable density thinning will occur in the entire Project area.
Substantial expert opinion presented by the Appellants during the
administrative process disputes the USFS’s conclusion that thinning is helpful for
fire suppression and safety. For example, Oregon Wild pointed out in its EA
comments that “[f]uel treatments have a modest effect on fire behavior, and could
even make fire worse instead of better.” It averred that removing mature trees is
especially likely to have a net negative effect on fire suppression. Importantly, the
organization pointed to expert studies and research reviews that support this
assertion.
Bark also raised this issue: “It is becoming more and more commonly
accepted that reducing fuels does not consistently prevent large forest fires, and
seldom significantly reduces the outcome of these large fires,” citing an article
from Forest Ecology and Management. Bark also directed the USFS to a recent
study published in The Open Forest Science Journal, which concluded that fuel
treatments are unlikely to reduce fire severity and consequent impacts, because
often the treated area is not affected by fire before the fuels return to normal levels.
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Bark further noted that, while “Bark discussed [during the scoping process] the
studies that have found that fuel reduction may actually exacerbate fire severity in
some cases as such projects leave behind combustible slash, open the forest canopy
to create more ground-level biomass, and increase solar radiation which dries out
the understory[,] [t]he EA did not discuss this information.”
Oregon Wild also pointed out in its EA comments that fuel reduction does
not necessarily suppress fire. Indeed, it asserted that “[s]ome fuel can actually help
reduce fire, such as deciduous hardwoods that act as heat sinks (under some
conditions), and dense canopy fuels that keep the forest cool and moist and help
suppress the growth of surface and ladder fuels . . . .” Oregon Wild cited more than
ten expert sources supporting this view. Importantly, even the Fuels Specialist
Report produced by the USFS itself noted that “reducing canopy cover can also
have the effect of increasing [a fire’s rate of spread] by allowing solar radiation to
dry surface fuels, allowing finer fuels to grow on . . . the forest floor, and reducing
the impact of sheltering from wind the canopy provides.”
The effects analysis in the EA did not engage with the considerable contrary
scientific and expert opinion; it instead drew general conclusions such as that
“[t]here are no negative effects to fuels from the Proposed Action treatments.”
Appellants thus have shown a substantial dispute about the effect of variable
density thinning on fire suppression. Although it is not our role to assess the merits
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of whether variable density thinning is indeed effective in the project area to
prevent fires, or to take sides in a battle of the experts, see Greenpeace Action v.
Franklin, 14 F.3d 1324, 1333 (9th Cir. 1992), NEPA requires agencies to consider
all important aspects of a problem. See WildEarth Guardians v. U.S. E.P.A., 759
F.3d 1064, 1069–70 (9th Cir. 2014). Throughout the USFS’s investigative process,
Appellants pointed to numerous expert sources concluding that thinning activities
do not improve fire outcomes. In its responses to these comments and in its finding
of no significant impact, the USFS reiterated its conclusions about vegetation
management but did not engage with the substantial body of research cited by
Appellants. Failing to meaningfully consider contrary sources in the EA weighs
against a finding that the agency met NEPA’s “hard look” requirement as to the
decision not to prepare an EIS. Blackwood, 161 F.3d at 1213. This dispute is of
substantial consequence because variable density thinning is planned in the entire
Project area, and fire management is a crucial issue that has wide-ranging
ecological impacts and affects human life. When one factor alone raises
“substantial questions” about whether an agency action will have a significant
environmental effect, an EIS is warranted. See Ocean Advocates v. U.S. Army
Corps of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2005) (“We have held that one of [the
NEPA intensity] factors may be sufficient to require preparation of an EIS in
appropriate circumstances.”). Thus, the USFS’s decision not to prepare an EIS was
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arbitrary and capricious. See Blackwood, 161 F.3d at 1213 (holding that conflicting
evidence on the effects of ecological intervention in post-fire landscapes made a
proposed project highly uncertain, thus requiring an EIS).
2. The USFS also failed to identify and meaningfully analyze the cumulative
impacts of the Project. “Cumulative impact is the impact on the environment which
results from the incremental impact of the action when added to other past, present,
and reasonably foreseeable future actions regardless of what agency . . . undertakes
such other actions.” 40 C.F.R. § 1508.7. “Cumulative impacts can result from
individually minor but collectively significant actions taking place over a period of
time.” Id. “[I]n considering cumulative impact, an agency must provide ‘some
quantified or detailed information; . . . [g]eneral statements about possible effects
and some risk do not constitute a hard look absent a justification regarding why
more definitive information could not be provided.’” Ocean Advocates, 402 F.3d at
868 (alterations in original) (quoting Neighbors of Cuddy Mountain v. U.S. Forest
Serv., 137 F.3d 1372, 1380 (9th Cir. 1998)). “This cumulative analysis ‘must be
more than perfunctory; it must provide a useful analysis of the cumulative impacts
of past, present, and future projects.’” Id. (quoting Kern v. U.S. Bureau of Land
Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002)) (internal quotation marks omitted).
We have held that cumulative impact analyses were insufficient when they
“discusse[d] only the direct effects of the project at issue on [a small area]” and
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merely “contemplated” other projects but had “no quantified assessment” of their
combined impacts. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387
F.3d 989, 994 (9th Cir. 2004).
The EA ostensibly analyzed the cumulative effects of the CCR Project, and
included a table of other projects that were “considered in the cumulative effects
analyses.” The cumulative impact analysis is insufficient because there is no
meaningful analysis of any of the identified projects. The table gave no
information about any of the projects listed; it merely named them. The section of
the EA actually analyzing the cumulative effects on vegetation resources did not
refer to any of these other projects. Nor are there any specific factual findings that
would allow for informed decision-making. The EA simply concluded that “there
are no direct or indirect effects that would cumulate from other projects due to the
minimal amount of connectivity with past treatments” and that the Project “would
have a beneficial effect on the stands by moving them toward a more resilient
condition that would allow fire to play a vital role in maintaining stand health,
composition and structure.” These are the kind of conclusory statements, based on
“vague and uncertain analysis,” that are insufficient to satisfy NEPA’s
requirements. Ocean Advocates, 402 F.3d at 869.
The EA also mentioned the possibility of cumulative effects in sections on
other specific sub-topics such as fuels management, transportation resources, and
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soil productivity. These sections similarly relied on conclusory assertions that the
Project has “no cumulative effects.” When the EA did acknowledge the possibility
of the Project’s impact, such as in the section that analyzed the Project’s effects on
spotted owls, it noted only that “[t]imber harvest on federal, tribal, and private
land, and utility corridor operations have reduced the amount of suitable habitat . . .
on the landscape and could continue to do so in the future,” without attempting to
quantify the cumulative loss or naming other projects. Yet there were other
relevant timber projects to discuss. Appellants pointed out at least three other
recent or future timber projects in their comments responding to the EA, but the
relevant section of the document limited its analysis to only the Project area and a
1.2-mile buffer surrounding it. Such a small buffer zone fails to distinguish the
EA’s cumulative impact analysis from an analysis of the direct effects of the
Project. See Klamath-Siskiyou Wildlands Ctr., 387 F.3d. at 997 (assessing
cumulative effects at the critical habitat unit scale). The USFS’s failure to engage
with the other projects identified by Appellants leaves open the possibility that
several small forest management actions will together result in a loss of suitable
owl habitat. Preventing or adequately mitigating this potential loss is the
fundamental purpose of NEPA’s requirement that agencies analyze cumulative
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impacts, and we have no basis in the record to assess whether the USFS has taken
the necessary steps to consider this possibility.
Overall, there is nothing in the EA that could constitute “quantified or
detailed information” about the cumulative effects of the Project. Ocean
Advocates, 402 F.3d at 868 (internal quotation marks omitted). The USFS’s
analysis creates substantial questions about whether the action will have a
cumulatively significant environmental impact. Therefore, this factor also requires
the USFS to conduct an EIS. See 40 C.F.R. § 1508.27(b)(7).
3. Because an EIS is required, and because the findings in the EIS could
prompt the USFS to change the scope of the Project or the methods it plans to use,
we do not reach the Appellants’ other claims. We reverse the district court’s
judgment and remand to the district court with instructions to remand to the USFS
for the preparation of an EIS.
REVERSED and REMANDED.
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FILED
Bark v. U.S. Forest Serv., No. 19-35665
APR 3 2020
GRABER, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in full in the judgment and in all but section 2 of the majority’s
disposition. The project’s proposed methodology of variable density thinning is
both highly controversial and highly uncertain, so an environmental impact
statement is required. I would not reach whether the Environmental Assessment’s
discussion of cumulative impacts also was arbitrary and capricious.