Alliance for the Wild Rockies v. Carl Petrick ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD No. 21-35504
ROCKIES,
D.C. No.
Plaintiff-Appellee, 2:19-cv-00332-
REP
v.
CARL PETRICK, his official capacity OPINION
as Forest Supervisor for the Idaho
Panhandle National Forests; UNITED
STATES FOREST SERVICE, an
agency of the U.S. Department of
Agriculture; UNITED STATES FISH
AND WILDLIFE SERVICE, an
agency of the U.S. Department of
Interior,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding
2 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
ALLIANCE FOR THE WILD No. 21-35785
ROCKIES,
D.C. No.
Plaintiff-Appellee, 2:21-cv-00244-
BLW
v.
UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture; CARL
PETRICK, in his official capacity as
Forest Supervisor for the Idaho
Panhandle National Forests,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted October 20, 2022
Seattle, Washington
Filed May 16, 2023
Before: Ryan D. Nelson, Danielle J. Forrest, and Jennifer
Sung, Circuit Judges.
Opinion by Judge R. Nelson
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 3
SUMMARY*
Environmental Law / Timber Projects
The panel vacated the district court’s grant of summary
judgment in Hanna Flats I, and vacated the district court’s
preliminary injunction in Hanna Flats II, in two appeals
involving an ongoing dispute over the Hanna Flats logging
project in the Idaho panhandle (the “Project”).
The United States Forest Service designated several
thousand acres of national forest for various treatments,
including commercial logging, to reduce the risk of wildfires
and disease. The Forest Service invoked a categorical
exclusion from National Environmental Policy Act (NEPA)
review for projects in the wildland-urban interface. In
Hanna Flats I, the district court granted summary judgment
for Alliance for the Wild Rockies, based on reasoning that
the record did not show that the Project fell within the
statutory definition of wildland-urban interface, and ordered
further analysis supporting the categorical exclusion on
remand. Subsequently, the Forest Service issued a
Supplement to the Decision Memo further justifying the
categorical exclusion. In Hanna Flats II, the district court
issued a preliminary injunction based on the reasoning that
the Forest Service could not invoke the categorical
exclusion.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
The panel held that in Hanna Flats I, the district court
erred in finding that Alliance’s public comments adequately
put the Forest Service on notice of its eventual claim.
The panel concluded that it had appellate jurisdiction.
First, the panel held that the appeal was not moot. The
parties did not intend to settle this matter; and the
government’s compliance with the judgment of a lower
court—even where compliance involved a new agency
decision—did not necessarily moot the appeal, especially
where some redress remained possible. Second, the Forest
Service had standing to pursue this appeal. The Forest
Service remains injured by the final judgment in Hanna
Flats I, and this court can redress that injury with a favorable
decision.
The panel next evaluated whether the doctrine of
administrative waiver barred Alliance’s challenge in Hanna
Flats I because Alliance did not raise its arguments during
the public-comment period. First, the panel held that the
Forest Service sufficiently preserved its notice argument,
even though it framed notice as an exhaustion requirement
below and as a waiver issue on appeal. Second, the panel
held that Alliance’s comments did not put the Forest Service
on notice of the wildland-urban interface issue. Alliance’s
vague and generalized statement that the district court cited,
contained within more than a hundred pages of comments,
did not provide sufficient notice to the government of
Alliance’s current concerns. Alliance therefore never gave
the Forest Service an opportunity to consider the issue
presented by Alliance’s eventual claim in federal
court. Alliance’s comment did not identify any violation of
the Healthy Forests Restoration Act (“HFRA”), nor did it
allege that the Project fell outside the wildland-urban
interface. In addition, Alliance’s other comments were even
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 5
more removed from Alliance’s claim. The panel remanded
for the district court to consider Alliance’s unaddressed
argument that there was no administrative-objection
requirement in this context.
In Hanna Flats II, which Alliance brought after the
Forest Service complied with the remand order and issued
the Supplement, the district court enjoined the
implementation of the Project because it found serious
questions about whether the Forest Service validly applied
HFRA’s categorical exclusion to the Project. First, the
parties disagreed on the standard of review that should be
applied to the Forest Service’s decision to rely on a
categorical exclusion. Pursuant to the text of the
Administrative Procedures Act (“APA”) and precedent, the
panel reviewed the Forest Service’s reliance on HFRA’s
categorical exclusion under the familiar arbitrary or
capricious standard. Next, the panel considered the district
court’s ruling that there were serious questions about the
application of the categorical exclusion. The panel held that
the district court did not, as the Forest Service contended,
impermissibly create and impose new procedural duties on
the Forest Service. It simply held the Forest Service to the
strictures already required by the APA (and, by extension,
HFRA). Turning to the district court’s analysis, the panel
agreed with the district court that, under these facts, the
Project’s location within the area designated as wildland-
urban interface by the Bonner County community plan was
not enough to establish the valid application of the
categorical exclusion. However, the district court’s
conclusion—that there were serious questions whether the
categorical exclusion applied—was based on an erroneous
interpretation of the HFRA. Because the preliminary
injunction was based on faulty legal premises, the panel
6 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
vacated and remanded. Finally, the panel held that there was
no reason to conclude that it should exercise its equitable
discretion to leave an injunction in place that was wrongly
granted, and where there was no clear likelihood of success
on another claim.
COUNSEL
Joan M. Pepin (argued), Rachel E. Heron, John P. Tustin,
and Emma L. Hamilton, Attorneys; Todd Kim, Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice; Washington,
D.C.; Rickey D. Turner, Attorney; Environment and Natural
Resources Division, United States Department of Justice;
Denver, Colorado; Elise Foster, Attorney; United States
Department of Agriculture, Office of the General Counsel;
Washington, D.C.; for Defendants-Appellants.
Rebecca K. Smith (argued), Public Interest Defense Center,
Missoula, Montana, for Plaintiff-Appellee.
OPINION
R. NELSON, Circuit Judge:
We address two appeals involving an ongoing dispute
over the Hanna Flats logging project (the Project) in the
Idaho panhandle. The United States Forest Service
designated several thousand acres of national forest for
various treatments, including commercial logging, to reduce
the risk of wildfires and disease. The Forest Service invoked
a categorical exclusion from National Environmental Policy
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 7
Act (NEPA) review for projects “in the wildland-urban
interface.” 16 U.S.C. § 6591b(c)(2)(A).
In the first case (Hanna Flats I), the district court granted
summary judgment for Alliance for the Wild Rockies
(Alliance), reasoning that the record did not show that the
Project fell within the statutory definition of “wildland-
urban interface,” and ordered further analysis supporting the
categorical exclusion on remand.
The Forest Service complied and issued a Supplement to
the Decision Memo further justifying the categorical
exclusion. But in a new action (Hanna Flats II), the district
court issued a preliminary injunction, again reasoning that
the Forest Service could not invoke the categorical
exclusion.
We find reversible error in both cases. In Hanna Flats I,
we conclude that the district court erred in finding that
Alliance’s comment adequately put the Forest Service on
notice of its eventual claim. We remand to the district court
to consider Alliance’s unaddressed argument that there is no
administrative-objection requirement in this context.
In Hanna Flats II, we agree with the district court that,
under these facts, the Project’s location within the area
designated as wildland-urban interface by the Bonner
County community plan alone is not enough to establish the
valid application of the categorical exclusion. But the
district court’s conclusion that there were serious questions
whether the categorical exclusion applied was based on an
erroneous interpretation of the Healthy Forests Restoration
Act (HFRA). Because the preliminary injunction was issued
on faulty legal premises, we vacate it and remand.
8 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
I
This case involves the interplay between two statutory
regimes: NEPA and HFRA. “Congress enacted NEPA to
establish a national policy for the environment.” Mountain
Cmtys. for Fire Safety v. Elliott, 25 F.4th 667, 674 (9th Cir.
2022). “NEPA imposes only procedural requirements on
federal agencies with a particular focus on requiring
agencies to undertake analyses of the environmental impact
of their proposals and actions.” Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 756–57 (2004). NEPA requires 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)).
To decide whether an EIS is needed, the agency can first
prepare an environmental assessment (EA) “to determine
whether a proposed federal action will have a significant
impact.” Native Ecosystems Council v. U.S. Forest Serv.,
428 F.3d 1233, 1238–39 (9th Cir. 2005) (citation omitted).
“Some actions, however, are categorically excepted or
excluded from NEPA’s procedural requirements.” Ctr. for
Biological Diversity v. Ilano, 928 F.3d 774, 777 (9th Cir.
2019). When a categorical exclusion applies, the agency
need not prepare an EIS or EA. Mountain Cmtys. for Fire
Safety, 25 F.4th at 675.
HFRA creates one such statutory exclusion. HFRA
“directs the Forest Service to take action to ‘reduce wildfire
risk’ and ‘enhance efforts to protect watersheds and address
threats to forest and rangeland health.’” WildWest Inst. v.
Bull, 547 F.3d 1162, 1165 (9th Cir. 2008) (quoting 16 U.S.C.
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 9
§ 6501(1), (3)). “Specifically, the Forest Service is required
‘[a]s soon as practicable’ to implement an ‘authorized
hazardous fuel reduction project[]’ on federal land” where
certain imminent risks exist. Id. (alterations in original)
(quoting 16 U.S.C. § 6512(a)(4)). HFRA also requires
public notice of the decision-making process and public
collaboration. Id. at 1166. And typically, projects under
HFRA require NEPA compliance, meaning the preparation
of an EA and potentially an EIS. See id. at 1165 (citing 16
U.S.C. § 6514(a)).
But HFRA provides a statutory categorical exclusion to
NEPA when the project is located “in the wildland-urban
interface.” 16 U.S.C. § 6591b(c)(2)(A). Broadly speaking,
a “wildland-urban interface” is an area where structures and
other human development intermingle with undeveloped
wild areas. Wildfires pose extraordinary risks to life and
property in such areas. HFRA specifically defines a
“wildland-urban interface” as “an area within or adjacent to
an at-risk community that is identified in recommendations
to the Secretary in a community wildfire protection plan.”
Id. § 6511(16)(A) (emphases added).1 An “at-risk
community” must satisfy multiple requirements; as relevant
here, it “is comprised of . . . a group of homes and other
structures with basic infrastructure and services . . . within
or adjacent to Federal land.” Id. § 6511(1)(A)(ii).
A
In August 2017, the Forest Service issued a Scoping
Notice announcing an agency project in the Idaho Panhandle
1
A separate definition applies “in the case of any area for which a
community wildfire protection plan is not in effect.” Id. § 6511(16)(B).
That definition is not applicable here because there is a community
wildfire protection plan in place.
10 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
National Forests within Bonner County, Idaho. The Project
involves several treatments, including commercial thinning,
noncommercial thinning, and prescribed burning. The
Forest Service, through the Project, seeks to remove forest
fuel hazards to minimize wildfire risk and remove diseased
trees spanning 6,814 acres, nearly 97% of which is public
land.
The Forest Service sought public comment. The
Scoping Notice stated that the Project would likely be
exempt from NEPA because of HFRA’s categorical
exclusion, since “the entire project area is in the wildland-
urban interface,” as defined by Bonner County’s
Community Wildfire Protection Plan (the Bonner County
community plan). Members of the public, including
Alliance, provided extensive comments.
The Forest Service issued a Decision Memo authorizing
the Project. Like the Scoping Notice, the Decision Memo
invoked HFRA’s categorical exclusion because the Project
fell within the wildland-urban interface.
B
In Hanna Flats I, Alliance brought several claims
seeking judicial review of the Forest Service’s Decision
Memo approving the Project. All. for the Wild Rockies v.
Higgins, 535 F. Supp. 3d 957, 962 (D. Idaho 2021). At issue
on appeal is Alliance’s claim that the Project does not qualify
for HFRA’s categorical exclusion because it is not within the
“wildland urban interface.”
The parties cross-moved for summary judgment, and the
district court granted summary judgment for Alliance. Id. at
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 11
975, 981.2 First, the district court ruled that Alliance had
sufficiently exhausted its administrative remedies. Id. at
974–75. Then, the district court concluded that the record
did not show that the Project qualified for the categorical
exclusion. Id. at 975–79. Though the Forest Service
determined that the Project fell within the wildland-urban
interface as identified in the Bonner County community
plan, that plan defines wildland-urban interface differently
than does the HFRA. Id. at 979. Thus, the community plan
could not support use of the categorical exclusion. Id.
Finally, the district court concluded that remand without
vacatur was proper. Id. at 980. The district court directed
the Forest Service to issue a supplemental Decision Memo
to explain how the Project area falls within the wildland-
urban interface under HFRA. Id. at 980–81.
About a month later, the Forest Service issued a
Supplement to the Decision Memo (the Supplement). The
Forest Service explained that the Project fell within the
wildland-urban interface—and thus qualified for the
categorical exclusion—because it was “entirely within the
Bonner County [wildland-urban interface] as it is defined in
the County’s [community wildfire protection plan].” The
Supplement provided a map of the Project, the surrounding
area, and the Bonner County community plan’s wildland-
urban interface. It also highlighted nearby locations
Nordman and Lamb Creek as at-risk communities.
In Hanna Flats II, Alliance sued the Forest Service again
and sought a preliminary injunction against implementation
of the Project. All. for the Wild Rockies v. Pierson, 550 F.
2Chief Magistrate Judge Bush decided Hanna Flats I with the parties’
consent. See 28 U.S.C. § 636(c).
12 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
Supp. 3d 894, 895 (D. Idaho 2021). The district court
granted the motion, noting “serious questions” about the
valid application of the categorical exclusion to the Project.
Id. at 898. The district court reasoned that the Bonner
County community plan still could not justify use of the
categorical exclusion because it departed from HFRA’s
definition of wildland-urban interface. Id. at 899–900. The
district court also rejected the Forest Service’s argument that
the Supplement demonstrated that Nordman and Lamb
Creek were “at-risk communities” under HFRA. Id. at 901–
04. The Forest Service appealed both orders.
II
We begin with the Forest Service’s appeal of the district
court’s grant of summary judgment in Hanna Flats I. We
have jurisdiction under 28 U.S.C. § 1291 and “review de
novo a district court’s grant of summary judgment.” Ctr. for
Biological Diversity v. U.S. Fish & Wildlife Serv., 33 F.4th
1202, 1216 (9th Cir. 2022) (citation omitted). When a “case
involves review of a final agency determination under the
Administrative Procedure Act,” our “review is limited to the
administrative record.” Nw. Motorcycle Ass’n v. U.S. Dep’t
of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).
A
We start with jurisdiction. Alliance argues that Hanna
Flats I is moot because the Forest Service has completed its
remand analysis and provided thirty days’ notice from the
start of the Project, as ordered by the district court.3 Alliance
3
We denied the motion to dismiss for lack of jurisdiction without
prejudice to renewing the arguments in the answering brief. Though the
briefing on appeal raises a slightly different theory, we consider the full
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 13
also argues that the Forest Service lacks standing because it
has complied with the remand order. Alliance is incorrect,
and we decline to dismiss the Hanna Flats I appeal.
1
To begin, the appeal is not moot. Article III “requires
that an actual, ongoing controversy exist at all stages of
federal court proceedings.” Bayer v. Neiman Marcus Grp.,
Inc., 861 F.3d 853, 862 (9th Cir. 2017) (quoting Pitts v.
Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011)).
“The basic question in determining mootness is whether
there is a present controversy as to which effective relief can
be granted.” Id. (quoting Ruiz v. City of Santa Maria, 160
F.3d 543, 549 (9th Cir. 1998)).
“Compliance with a judgment pending appeal presents
distinctive mootness questions,” but “[t]he general rule is
now well settled: the case is not moot unless the parties
intended to settle, or unless it is not possible to take any
effective action to undo the results of compliance.” 13B
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 3533.2.2 (3d ed.); see United States ex rel.
Morgan & Son Earth Moving, Inc. v. Timberland Paving &
Constr. Co., 745 F.2d 595, 598 (9th Cir. 1984) (“The usual
rule in federal courts is that satisfaction of judgment does not
foreclose appeal.”). Here, the parties did not intend to settle
this matter. And a long line of Supreme Court authority
instructs that the government’s compliance with the
judgment of a lower court—even where compliance
extent of the arguments to ensure our jurisdiction. Snell v. Cleveland,
Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“[A] court may raise the question
of subject matter jurisdiction, sua sponte, at any time during the
pendency of the action, even on appeal.”).
14 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
involves a new agency decision—does not necessarily moot
an appeal, especially where some redress remains possible.
For example, the issuance of provisional regulations by
the Secretary of the Department of Health and Human
Services did not moot controversy over the validity of the
original regulations. Schweiker v. Gray Panthers, 453 U.S.
34, 42 n.12 (1981). “In issuing the provisional regulations,
the Secretary simply was adhering to the lower court’s
reasoning and mandate,” and the Secretary had represented
“that the new regulations probably would be rescinded if the
Court of Appeals’ decision were reversed.” Id. Likewise,
the adoption of a new regulation did not moot an appeal
involving the previous regulation when the new regulation
was “only for the purpose of interim compliance with the
District Court’s judgment and order” and when the “appeal
was taken and submitted on the theory that [the state] desires
to reinstate the invalidated regulation.” Maher v. Roe, 432
U.S. 464, 468 n.4 (1977). And a revision to challenged
regulations to comply with a court order did not moot the
case when the government’s subsequent actions were
“consistent with a desire to reinstate its prior regulations.”
Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S.
788, 791 n.1 (1985).
So too here. The Forest Service’s compliance with the
district court’s judgment does not moot this appeal. The
Forest Service issued the Supplement “in response to the
Idaho District Court’s order.” The Forest Service has
consistently claimed it should be allowed to proceed based
on the original Decision Memo alone and intends to rescind
the Supplement if this court reverses the decision below.
The agency rightly complied with the district court’s
judgment. Still, the effect of that compliance can be undone
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 15
by withdrawal of the Supplement that the judgment
mandated. Thus, the matter is not moot.
2
For similar reasons, the Forest Service has standing to
pursue this appeal. The doctrine of standing, which also
arises from Article III, “requires the litigant to prove that he
has suffered a concrete and particularized injury that is fairly
traceable to the challenged conduct, and is likely to be
redressed by a favorable judicial decision.” Hollingsworth
v. Perry, 570 U.S. 693, 704 (2013). This requirement
persists “throughout all stages of litigation” and “must be
met by persons seeking appellate review, just as it must be
met by persons appearing in courts of first instance.” Id. at
705 (quoting Arizonans for Off. English v. Arizona, 520 U.S.
43, 64 (1997)).
Alliance contends that the Forest Service lacks any
redressable injury because this court can no longer provide
any relief in Hanna Flats I given the Forest Service’s
Supplement. According to Alliance, even a favorable
decision from this court cannot remedy the Forest Service’s
voluntary compliance with the district court’s remand order.
Yet Alliance does not dispute that the district court’s
judgment renders the Forest Service unable to withdraw the
Supplement, as the Forest Service currently wishes to do.
And although the remand order from Hanna Flats I has been
fully complied with, we have the power to undo the effects
of that compliance. Cf. DBSI/TRI IV Ltd. P’ship v. United
States, 465 F.3d 1031, 1039 (9th Cir. 2006) (holding that
appeal remained justiciable despite compliance with court-
ordered sale because sale could “be undone”). The Forest
Service remains injured by the final judgment in Hanna
16 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
Flats I, and this court can redress that injury with a favorable
decision. Therefore, the Forest Service has standing.
Alliance relies on Natural Resource Defense Council v.
Gutierrez for the proposition that an agency has “no standing
to challenge the district court’s legal rulings in the abstract.”
457 F.3d 904, 906 (9th Cir. 2006) (per curiam). That case
involved a unique set of facts where an agency did “not
challenge” the only relief granted (a permanent injunction)
and instead sought only to excise a portion of the district
court’s ruling stating that the agency had violated a statute.
Id. We declined to “line-edit the district court’s ruling”
because parties must seek “a reversal or a modification of
the relief granted by the district court.” Id. (citation
omitted). Here, by contrast, the Forest Service seeks to
reverse the relief granted by the district court by
withdrawing the Supplement that it was ordered to create.
Alliance also cites Crow Indian Tribe v. United States,
965 F.3d 662 (9th Cir. 2020). There, we rejected a challenge
to our appellate jurisdiction, distinguishing Gutierrez
because the Fish and Wildlife Service did “challenge what
the district court ordered it to do on remand.” Id. at 676. The
Fish and Wildlife Service was therefore not “merely
seek[ing] an advisory opinion.” Id. Likewise here, the
Forest Service challenges what the district court ordered it to
do on remand. Though Crow Indian Tribe involved a
challenge made before the agency complied with the
remand, that does not alter its application because, as
discussed, the Forest Service can still turn to this court to
undo the order’s effects.
We therefore conclude that the doctrines of mootness
and standing do not deprive us of appellate jurisdiction and
so turn to the merits of the appeal.
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 17
B
We next evaluate whether the doctrine of administrative
waiver bars Alliance’s challenge in Hanna Flats I because
Alliance did not raise its arguments during the public-
comment period.
“[A]s a general rule . . . courts should not topple over
administrative decisions unless the administrative body not
only has erred but has erred against objection made at the
time appropriate under its practice.” United States v. L. A.
Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952); see Sisley
v. DEA, 11 F.4th 1029, 1035 (9th Cir. 2021) (same). And
absent exceptional circumstances, failure to raise arguments
before an agency, such as in comments during a public-
comment process, usually waives a litigant’s rights to make
those arguments in court. See Exxon Mobil Corp. v. EPA
217 F.3d 1246, 1249 (9th Cir. 2000) (“Petitioners have
waived their right to judicial review of these final two
arguments as they were not made before the administrative
agency, in the comment to the proposed rule . . . .”). Thus,
the question is whether Alliance adequately raised in its
public comments that the Project was not within the
wildland-urban interface or that the wildland-urban interface
was not a basis for the exclusion.
1
At the start, we note the Forest Service has created some
confusion about its precise argument. On appeal, the Forest
Service frames the issue as one of administrative waiver.
Yet below, the Forest Service framed the issue as one of
administrative exhaustion. This change in the Forest
Service’s framing of the issue matters because waiver and
exhaustion are related but distinct doctrines: “the waiver rule
only forecloses arguments that may be raised on judicial
18 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
review; it is not an exhaustion of remedies rule that
forecloses judicial review.” Universal Health Servs., Inc. v.
Thompson, 363 F.3d 1013, 1020 (9th Cir. 2004). Further,
the waiver and exhaustion doctrines do not apply under the
same circumstances and do not have the same exceptions.
See, e.g., Portland Gen. Elec. Co. v. Bonneville Power
Admin., 501 F.3d 1009, 1023–24 (9th Cir. 2007) (discussing
differences).
For purposes of this appeal, we understand the Forest
Service to be specifically invoking the doctrine of waiver.
In fact, the Forest Service’s reply brief expressly disclaims
reliance on the doctrine of exhaustion.
There is no “bright line rule” when determining whether
a matter has been properly raised below, but the usual
standard requires simply “that the argument . . . be raised
sufficiently for the trial court to rule on it.” Yamada v. Nobel
Biocare Holding AG, 825 F.3d 536, 543 (9th Cir. 2016)
(quoting Whittaker Corp. v. Execuair Corp., 953 F.2d 510,
515 (9th Cir. 1992)). The Forest Service’s labelling of its
argument is not dispositive in this instance, as even this court
has “phrased” waiver principles “in terms of standing or
exhaustion.” Portland Gen. Elec. Co., 501 F.3d at 1023.
Not that the doctrines are the same, or that any time the
government raises exhaustion, it can change course and
argue waiver on appeal. But the question of preservation
should not elevate form over substance, particularly on an
issue where labels have been used imprecisely in the past.
The Forest Service sufficiently preserved its notice
argument, even though it framed notice as an exhaustion
requirement below and as a waiver issue on appeal. Looking
to the essence of the Forest Service’s argument below, the
parties focused on whether Alliance’s comments
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 19
“sufficiently alerted” the Forest Service “of its concern about
how the wildland-urban interface was delineated for the
Project.” Hanna Flats I, 535 F. Supp. 3d at 974. That
inquiry, asking whether arguments had been “adequately
raised before the agency” during a public-comment period,
is an element of both exhaustion and waiver, but turns on a
principle “best characterized as waiver.” Portland Gen.
Elec. Co., 501 F.3d at 1023. The district court concluded
that Alliance “put [the Forest Service] on notice of the
issue,” 535 F. Supp. 3d at 974, which created a sufficient
record for us to review the question of whether Alliance gave
adequate notice on appeal, W. Watersheds Project v. U.S.
Dep’t of Interior, 677 F.3d 922, 925 (9th Cir. 2012) (“There
is no waiver if the issue was raised, the party took a position,
and the district court ruled on it.”). We thus assess the Forest
Service’s notice argument.
2
We conclude that Alliance’s comments did not put the
Forest Service on notice of the wildland-urban interface
issue. The district court relied on a single comment from
Alliance to satisfy notice:
The forest plan Glossary definition of
[wildland-urban interface] under (A) has
allowed entities other than the general public
to set [wildland-urban interface] boundaries
outside of NEPA . . . processes, and under (B)
defines it so vaguely as to expand the
delineation of the [wildland-urban interface]
greatly – again outside . . . NEPA processes.
20 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
See Hanna Flats I, 535 F. Supp. 3d at 974. This sole
statement bears little resemblance to Alliance’s arguments in
court.
The doctrine of administrative waiver “protects the
agency’s prerogative to apply its expertise, to correct its own
errors, and to create a record for our review.” Portland Gen.
Elec. Co., 501 F.3d at 1024. “In general, we will not invoke
the waiver rule in our review of a notice-and-comment
proceeding if an agency has had an opportunity to consider
the issue.” Id. But challengers to government action cannot
avoid waiver with “cryptic and obscure” objections or issues
presented at a very high level of generality. See Vermont
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
435 U.S. 519, 553–54 (1978). Rather, they must present
timely and “particular objections” that “alert[] the agency to
the [parties’] position and contentions” and allow “the
agency to give the issue meaningful consideration.” Pub.
Citizen, 541 U.S. at 764 (second alteration in original)
(citation omitted); see Lands Council v. McNair, 629 F.3d
1070, 1076 (9th Cir. 2010).
Here, Alliance’s vague and generalized statement that
the district court cites, contained within more than a hundred
pages of comments, did not provide sufficient notice to the
government of Alliance’s current concerns. That comment
complains only that the definition of “wildland-urban
interface” is vague and allows “entities other than the
general public to set [wildland-urban interface] boundaries.”
This may reflect a broad concern about the size of the
wildland-urban interface. And it may even be a criticism of
HFRA. But it is not a claim that the Forest Service has
violated HFRA—the claim raised in court.
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 21
Alliance therefore never gave the Forest Service “an
opportunity to consider the issue,” Portland Gen. Elec. Co.,
501 F.3d at 1024, presented by Alliance’s eventual claim in
federal court: “The Forest Service has failed to establish that
this Project is in ‘wildland urban interface’ as defined under
the HFRA.” Alliance’s comment does not identify any
violation of HFRA; nor does it allege that the Project falls
outside the wildland-urban interface. Even more, the
wildland-urban interface definition complained about (found
in the glossary of terms attached to the Idaho Panhandle
National Forests Land Management Plan) is identical to
HFRA’s definition of wildland-urban interface. This
comment could not have reasonably alerted the Forest
Service to Alliance’s eventual claim that the Project violated
HFRA’s definition of wildland-urban interface, when the
comment complained of the very definition used by HFRA.
Alliance also points to other comments and portions of
the record. For example, Alliance cites comments
requesting a map of the density of human residences within
1.5 miles of the project unit boundaries, the exact criteria for
a place to be designated as a “landscape-scale insect and
disease area,” and a detailed map of condition classes and
fire regimes. Alliance argues that, taken together, the record
shows that the Forest Service was on notice that it lacked a
basis to categorically exempt the Project from NEPA “based
upon a claimed need for wildland-urban interface fuels
reduction to protect structures or residences” in the Project.
Yet these comments are even more removed from Alliance’s
claim. The Forest Service may have been broadly aware that
Alliance was concerned about the need for the Project or the
potential lack of risk to local communities or structures
because of wildfire. But Alliance did not mention before the
agency that the Forest Service failed to establish that the
22 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
Project was in the wildland-urban interface as defined by
HFRA. That is the claim that Alliance has raised in court.
Alliance did not put the Forest Service on notice about
the issue that would provide the basis for Alliance’s eventual
claim in federal court. The district court erred in concluding
otherwise.4
***
The district court’s grant of summary judgment for
Alliance was based on the incorrect conclusion that
Alliance’s public comments sufficiently alerted the Forest
Service of the concerns that undergird its current court
challenge. We thus vacate the grant of summary judgment
and remand for the district court to consider in the first
instance whether any such comments were necessary to
challenge a project exempted from NEPA analysis by a
categorical exclusion.
III
We now address Hanna Flats II, which Alliance brought
after the Forest Service complied with the remand order and
4
Alliance provides an alternative argument for affirmance on this issue:
that challengers need not file an administrative objection for projects
exempted from NEPA analysis with a categorical exclusion. The district
court declined to resolve this issue below. Hanna Flats I, 535 F. Supp.
3d at 974 n.14. “[W]e generally do not resolve issues that the district
court did not first reach.” Munden v. Stewart Title Guar. Co., 8 F.4th
1040, 1049 (9th Cir. 2021). While we have discretion to resolve this
question, Singleton v. Wulff, 428 U.S. 106, 120–21 (1976), the issue is
better left for the district court in the first instance on remand. Alliance
may raise other waiver-specific arguments that the district court
concludes were reasonably not made previously given the Forest
Service’s framing of the issue as one of exhaustion.
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 23
issued the Supplement.5 The district court enjoined the
implementation of the Project because it found “serious
questions” about whether the Forest Service validly applied
HFRA’s categorical exclusion to the Project. Hanna Flats
II, 550 F. Supp. 3d at 898. We have jurisdiction under 28
U.S.C. § 1292(a)(1) and vacate the preliminary injunction.
A
To obtain a preliminary injunction, a plaintiff must
establish that (1) it is likely to prevail on the merits of its
substantive claims, (2) it is likely to suffer imminent,
irreparable harm absent an injunction, (3) the balance of
equities favors an injunction, and (4) an injunction is in the
public interest. Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20, 22–23 (2008). This court has also instructed that
“‘serious questions going to the merits’ and a hardship
balance that tips sharply toward the plaintiff can support
issuance of an injunction, assuming the other two elements
of the Winter test are also met.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).
We review a district court’s decision to grant a
preliminary injunction for abuse of discretion. Sw. Voter
Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th
Cir. 2003) (en banc). “An abuse of discretion will be found
if the district court based its decision on an erroneous legal
standard or clearly erroneous finding of fact.” Cottrell, 632
F.3d at 1131 (internal quotation marks and citation omitted).
We review conclusions of law de novo and findings of fact
for clear error and “will not reverse the district court where
it got the law right, even if we would have arrived at a
5
The Forest Service concedes that it did not raise an administrative
waiver argument in Hanna Flats II.
24 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
different result, so long as the district court did not clearly
err in its factual determinations.” Id. (internal quotation
marks and citation omitted).
B
The parties disagree at the outset about the standard of
review that we apply to the Forest Service’s decision to rely
on a categorical exclusion. The Forest Service submits that
we should apply the traditional “arbitrary or capricious”
standard. But Alliance argues that a less deferential standard
of “reasonableness” applies.
Usually, where a statute fails to provide a private right of
action, judicial review of an agency action proceeds under
the Administrative Procedure Act (APA). See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 882–83 (1990); 5 U.S.C. § 702(“A person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within
the meaning of a relevant statute, is entitled to judicial
review thereof.”). Under the APA, an agency action may not
be upheld if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). Here, “neither NEPA nor HFRA
provide for a private right of action” for violating their
provisions. Wild Watershed v. Hurlocker, 961 F.3d 1119,
1125 (10th Cir. 2020); accord Lujan, 497 U.S. at 882(addressing NEPA); Native Ecosystems Council v. Erickson,
330 F. Supp. 3d 1218, 1228 (D. Mont. 2018) (addressing
HFRA). Thus, the general rule suggests that we apply
arbitrary or capricious review.
To support its contention that a reasonableness standard
should apply, Alliance invokes our instruction that “the less
deferential standard of ‘reasonableness’ applies to threshold
agency decisions that certain activities are not subject to
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 25
NEPA’s procedures.” Northcoast Env’t Cent. v. Glickman,
136 F.3d 660, 667 (9th Cir. 1998). Glickman involved
review of an agency’s determination that an EIS was not
required because the project did not constitute a “major
federal action.” Id. We applied a more stringent standard
since the dispute “involve[d] primarily legal issues . . . based
upon undisputed historical facts.” Id.; see Alaska Wilderness
Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 727
(9th Cir. 1995) (“We find that it makes sense to distinguish
the strong level of deference we accord an agency in
deciding factual or technical matters from that to be
accorded in disputes involving predominantly legal
questions.”).
Yet Glickman did not involve the invocation of a
categorical exclusion. Alliance cites no authority
establishing that a “reasonableness” standard applies in this
context. Quite the contrary, we have consistently reviewed
an agency’s reliance on a categorical exclusion under the
arbitrary or capricious standard. See Alaska Ctr. for the
Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.5 (9th Cir.
1999) (“The question of whether an action . . . fits within the
categorical exclusion is a factual determination that
implicates substantial agency expertise and is reviewed
under the arbitrary and capricious standard.”); see also
Mountain Cmtys. for Fire Safety, 25 F.4th at 680 (“Given the
deferential standard of review, we cannot say that the Forest
Service’s decision to apply [the categorical exclusion] was
arbitrary and capricious.”); Alcoa, Inc. v. Bonneville Power
Admin., 698 F.3d 774, 795 (9th Cir. 2012) (“We will uphold
an agency’s reliance on a categorical exclusion if ‘the
application of the exclusions to the facts of the particular
action is not arbitrary and capricious.’”) (quoting Bicycle
26 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 &
n.5 (9th Cir. 1996)).
Following the text of the APA and our precedent, we
review the Forest Service’s reliance on HFRA’s categorical
exclusion under the familiar arbitrary or capricious standard.
Applying that standard, we set aside an agency’s action
if the agency has relied on factors which
Congress has not intended it to consider,
entirely failed to consider an important aspect
of the problem, offered an explanation for its
decision that runs counter to the evidence
before the agency, or is so implausible that it
could not be ascribed to a difference in view
or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
C
Turning to the merits, the district court ruled that there
were “serious questions as to whether the [Forest Service]
has adequately demonstrated that the Project area falls
within HFRA’s statutory definition of the wildland-urban
interface, and thus whether the [Forest Service’s] invoking
of HFRA’s categorical exclusion is unlawful.” Hanna Flats
II, 550 F. Supp. 3d at 899. The Forest Service challenges
this ruling on multiple grounds, which we address in turn.
1
The Forest Service first contends that the district court
violated the prohibition against “impos[ing] procedural
requirements not explicitly enumerated in the pertinent
statutes,” Lands Council v. McNair, 537 F.3d 981, 993 (9th
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 27
Cir. 2008) (en banc) (internal quotation marks and citation
omitted), by creating a new duty to analyze and show the
wildland-urban interface’s location before invoking the
categorical exclusion.
The Forest Service relies on Oregon Natural Desert
Association v. U.S. Forest Service, where we rejected an
argument under the APA and National Forest Management
Act (NFMA) that the agency acted arbitrarily or capriciously
when it failed to “analyze and show” that grazing
authorizations were consistent with the governing forest
plan. 957 F.3d 1024, 1033–35 (9th Cir. 2020). There, we
distinguished caselaw about an agency’s obligations to
produce NEPA-mandated documentation because NEPA did
not govern. Id. at 1034. We emphasized that the particular
duty invoked by plaintiff—mandating “a project’s
consistency analysis to be memorialized at the time the
project is authorized”—did not apply “in the absence of
NEPA’s requirements.” Id. Nor did any “statute, regulation,
or caselaw” impose the specific obligation “to memorialize
each site-specific grazing authorization’s consistency with
the forest plan.” Id. We declined to read that duty into the
APA or NFMA and therefore concluded that “the absence of
such a document [was] not in itself arbitrary and capricious.”
Id.
Oregon Natural Desert Association does not control.
The district court did not craft any new procedural duties or
graft duties from other statutory schemes. The district court
concluded that there were serious questions about whether
the Forest Service had “adequately demonstrated” that the
Project fell within the wildland-urban interface, but it did not
impose any duties beyond what the APA requires. Hanna
Flats II, 550 F. Supp. 3d at 899.
“[T]he touchstone of ‘arbitrary and capricious’ review under
28 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
the APA is ‘reasoned decisionmaking.’” Altera Corp. &
Subsidiaries v. Comm’r, 926 F.3d 1061, 1080 (9th Cir. 2019)
(quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52). That
means an agency’s action can only survive arbitrary or
capricious review where it has “articulate[d] a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made.’” Id. (citation
omitted); see Cal. Pub. Utils. Comm’n v. FERC, 29 F.4th
454, 463 (9th Cir. 2022).
Tracking the duties already imposed by the APA, the
district court concluded that the exclusive justification found
in the record for applying the categorical exclusion—that the
Project is within the Bonner County community plan’s
definition of the wildland-urban interface—did not provide
a satisfactory explanation for avoiding NEPA compliance.6
Hanna Flats II, 550 F. Supp. 3d at 900. Though the district
court also noted the Forest Service’s “failure to conduct an
analysis” applying HFRA’s definition of wildland-urban
interface, it only did so because it found the Forest Service’s
“exclusive reliance” on the Bonner County community
plan’s definition insufficient. Id. The district court did not
purport to create a freestanding duty that the Forest Service
conduct a type of independent analysis to be memorialized
in every categorical-exclusion case.
In sum, the district court did not, as the Forest Service
contends, impermissibly create and impose new procedural
6
Moreover, Alliance’s claim is not limited to arguing that the Forest
Service had a unique procedural duty to independently analyze the
location of the wildland-urban interface. Alliance alleges more broadly
that the Forest Service “violate[d] . . . HFRA” by relying on the Bonner
County community plan which did not use “the definition of ‘at-risk
community’ from the HFRA to define and map its wildland urban
interface.”
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 29
duties on the Forest Service. It simply held the Forest
Service to the strictures already required by the APA (and,
by extension, HFRA). The question thus becomes whether
the district court’s analysis was proper.
2
The Forest Service next contends that its Decision Memo
and Supplement offered a sufficient explanation for use of
the categorical exclusion simply by noting that the Project is
within the wildland-urban interface identified by the Bonner
County community plan.
Under HFRA, the wildland-urban interface is “an area
within or adjacent to an at-risk community that is identified
. . . in a community wildfire protection plan.” 16 U.S.C. §
6511(16)(A). Here, Bonner County adopted such a plan, and
the Project falls within the area defined by the plan as
wildland-urban interface. The Forest Service emphasizes
that the local community—not the Forest Service—
identifies the wildland-urban interface in a community plan.
And so the Forest Service argues that it can simply rely on
the fact that the Project is within the Bonner County
community plan’s identified wildland-urban interface;
nothing else is required when invoking HFRA’s categorical
exclusion.
The district court rejected this argument, emphasizing
that the Bonner County community plan “uses a definition
that is inconsistent with HFRA’s definition of the wildland-
urban interface.” Hanna Flats II, 550 F. Supp. 3d at 899
(citing Hanna Flats I, 535 F. Supp. 3d at 978–79). Adopting
analysis from the summary judgment order in Hanna Flats
I, the district court explained:
30 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
Although a county’s wildfire protection plan
can be relied upon in assessing the wildland-
urban interface, where, as here, a wildfire
protection plan defines the wildland-urban
interface differently than HFRA, the wildfire
protection plan definition cannot provide the
justification for a categorical exclusion under
HFRA.
Id. (internal quotation marks omitted).
We reject the Forest Service’s argument as well. What
constitutes a wildland-urban interface is specifically defined
by HFRA: in pertinent part, it is “an area within or adjacent
to an at-risk community that is identified in
recommendations to the Secretary in a community wildfire
protection plan.” 16 U.S.C. § 6511(16)(A). HFRA further
defines “at-risk community” as an area “that is comprised
of” “an interface community” as defined by federal
regulation, or “a group of homes and other structures with
basic infrastructure and services . . . within or adjacent to
Federal land.” Id. § 6511(1)(A)(i), (ii). Thus, under HFRA,
a wildland-urban interface’s boundaries are tethered to the
location of at-risk communities, which are themselves
defined with technical detail.
The Bonner County community plan, by contrast, has a
broader definition unmoored from the specifics of HFRA:
“[A]n area where developed lands interact with undeveloped
lands and includes the infrastructure and natural resources
communities rely on for existence. Location: It is found in
remote scattered development areas to highly developed
urban areas and everywhere in between.” This definition is
followed by a “[r]ationale for designating the wildland-
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 31
urban interface,” which discusses historical trends for fire
events and best practices for reducing fire risk.
Notably absent from the Bonner County community
plan, however, is any discussion of the HFRA definition of
wildland-urban interface or “at-risk communities.” Nor is
there any discussion of interface communities or the relative
location of federal lands—i.e., the metrics for determining
at-risk communities under HFRA. Untethered from
HFRA’s more limited definitions, the Bonner County
community plan’s broader definition may well sweep in
more land than its HFRA counterpart.
Put simply, the Forest Service seeks to justify invoking
the categorical exclusion solely because the Project fell
within the wildland-urban interface designated by the
Bonner County community plan. But the community plan’s
definition of its wildland-urban interface—on its face—
deviates from HFRA and likely results in a covered area
beyond what Congress authorized. Thus, in this case, the
Forest Service cannot properly rely on the Bonner County
community plan—alone—to justify the categorical
exclusion. This is not to say that the Forest Service can never
rely on a community plan’s definition of the wildland-urban
interface or that a community plan’s definition must simply
parrot HFRA’s. Community plans may well inform the
Forest Service’s analysis under HFRA. But reliance on a
plainly overinclusive wildland-urban interface, without
more, is the sort of “clear error of judgment” that arbitrary
or capricious review is meant to prevent. Marsh v. Or. Nat.
Res. Council, 490 U.S. 360, 378, 385 (1989); see Michigan
v. EPA, 576 U.S. 743, 750 (2015) (“[A]gency action is
lawful only if it rests on a consideration of the relevant
factors.” (internal quotation marks and citation omitted)).
32 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
We thus conclude that the Project’s location within the
Bonner County community plan’s asserted wildland-urban
interface is not enough by itself to justify use of HFRA’s
categorical exclusion.
3
The Forest Service also argues that new information
provided in the Supplement shows that the Project is, in fact,
within the wildland-urban interface as defined by HFRA. In
particular, the Supplement contains a map showing the
Project positioned near the Lamb Creek and Nordman
communities. The Supplement also highlights that historical
trends show communities in Bonner County are at the
“greatest risk from wildfire.” Thus, the Forest Service
argues that the record shows the Project falls within “an area
within or adjacent to an at-risk community” and therefore,
falls within HFRA’s definition of the wildland-urban
interface. 16 U.S.C. § 6511(16)(A).
The district court disagreed. It concluded that serious
questions existed about whether Nordman and Lamb Creek
qualified as an “at-risk community,” which is defined as “a
group of homes and other structures with basic infrastructure
and services (such as utilities and collectively maintained
transportation routes) within or adjacent to Federal land.”
Hanna Flats II, 550 F. Supp. 3d at 903 (quoting 16 U.S.C. §
6511(1)(A)(ii)).
Drawing from § 6511(1)(A), the district court stated that
“under the plain language of HFRA . . . the at-risk
community must be ‘within or adjacent to,’ i.e., border or
‘abut,’ the Federal land at issue, i.e., the Project area.” Id.
at 904 (emphasis added). There is no dispute that “neither
Nordman nor Lamb Creek border the Project area.” Id. at
903–04 (“[T]he communities identified in the Supplemental
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 33
Memo—Nordman and Lamb Creek—are three miles away
and one mile away, respectively, from the Project area.”).
Thus, the district court concluded that those communities did
not qualify as “at-risk communities” under § 6511(1)(A) and
therefore did not support the “determination that the Project
area is entirely located within the wildland-urban interface.”
Id. at 904.
On appeal, the Forest Service contends that the district
court’s reading of HFRA—which requires a community to
border or abut the project area to qualify as an “at-risk
community”—is incorrect. In particular, the Forest Service
challenges the district court’s substitution of the words “the
Project area” for the statutory text “Federal land.”
a
The district court erred in its interpretation. In fairness,
HFRA is not a model of clarity and contains several
interrelated provisions. But a careful reading of the
unambiguous text shows that a project is subject to the
categorical exclusion when it is “in the wildland-urban
interface.” 16 U.S.C. § 6591b(c)(2)(A) (“A project under
this section shall be limited to areas . . . in the wildland-urban
interface . . . .”). An “area” qualifies as “wildland-urban
interface” if it is “within or adjacent to an at-risk
community.” Id. § 6511(16)(A). And a community is “at
risk” if it is “within or adjacent to Federal land.” Id.
§ 6511(1)(A)(ii).
In summary, the project must fall within an area (the
wildland-urban interface) that is within or adjacent to an at-
risk community. An at-risk community must be within or
adjacent to federal land. But the district court’s
interpretation collapses these distinct provisions into a rule
that the project itself must border the at-risk community. For
34 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
the district court, “Federal land” must be the federal land at
issue in the case (which would be the Project land here).
Under the district court’s interpretation, even if a project
falls within a properly defined wildland-urban interface, the
project is not valid unless it also directly borders or abuts an
at-risk community. Yet nothing in the statutory language
supports this limitation.
The district court justified its “border or abut” rule by
noting “the distinction made by HFRA between an area that
has a community wildfire protection plan and an area that
does not have a community wildfire protection plan.”
Hanna Flats II, 550 F. Supp. 3d at 904. Where, as here, there
is a community wildfire protection plan in place, the
wildland-urban interface is defined as an area “within or
adjacent to an at-risk community.” 16 U.S.C. §
6511(16)(A). By contrast, for an area where the community
has not adopted such a plan, the wildland-urban interface is
defined as an area either 0.5 miles or 1.5 miles from the
boundary of an at-risk community, depending on geographic
and other characteristics. See id. § 6511(16)(B)(i), (ii).
Thus, HFRA provides communities without plans a
baseline level of protection but imposes a specific wildland-
urban interface boundary of either 0.5 miles or 1.5 miles
away, depending on various factors. Id. § 6511(16)(B). But
HFRA also allows communities to adopt a community
wildfire protection plan that “identifies and prioritizes areas
for hazardous fuel reduction treatments.” Id. § 6511(3)(B).
HFRA “gives priority” to projects “that implement
community wildfire protection plans,” id. § 6513(a), and
ensures that funding allocations “give priority to
communities that have adopted a community wildfire
protection plan,” id. § 6513(d)(2)(B). And for communities
with such a plan, the wildland-urban interface is defined in
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 35
more flexible terms: “an area within or adjacent to an at-risk
community that is identified . . . in a community wildfire
protection plan.” Id. § 6511(16)(A).
In sum, the statutory scheme creates a baseline
protection of at least 0.5 or 1.5 miles around at-risk
communities. But the statutory scheme permits
communities with plans to identify wildland-urban
interfaces that extend beyond those strict limitations to meet
their communities’ needs. Thus, while we agree with the
district court that the statutory scheme treats communities
with and without community plans differently, we conclude
that the statutory scheme gives communities with plans
more—not less—flexibility. This makes sense, because the
increased flexibility gives communities an incentive to
develop a community plan. The district court’s rule that a
project must border or abut an at-risk community flips
HFRA’s scheme on its head. Under that rule, communities
that adopt plans would enjoy HFRA’s protections only for
projects right next to the at-risk community, significantly
limiting their choice to “identif[y]” wildland-urban
interfaces in their community plans. Id. § 6511(16)(A).
HFRA prioritizes communities with plans and allows them
a more flexible standard for defining the wildland-urban
interface. Therefore, the district court’s interpretation is
belied by HFRA’s statutory language.
b
In issuing the injunction, the district court applied the
less-stringent “serious questions” standard instead of the
typical “likelihood of success of the merits” inquiry. Hanna
Flats II, 550 F. Supp. 3d at 898. But that does not alter our
analysis. In the context of injunctive relief, “serious
questions” refer to “questions that ‘cannot be resolved one
36 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
way or the other at the hearing on the injunction’ because
they require ‘more deliberative investigation.’” Manrique v.
Kolc, --- F.4th ---, No. 22-15705, 2023 WL 3036993, at *3
(9th Cir. 2023) (quoting Republic of the Philippines v.
Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (en banc)).
Though this standard is less demanding, it does not erase the
Supreme Court’s admonition that an injunction “may only
be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter, 555 U.S. at 22. Accordingly, a
“serious question” does not exist where the plaintiff’s claim
is “merely plausible” or just because there are legal
questions not directly answered by past precedent. Where
Do We Go Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852,
863 (9th Cir. 2022) (instructing that “the district court must
analyze the merits” and cannot “forgo legal analysis just
because it has not identified precedent that places the
question beyond debate”).
Here, the district court found a “serious question” about
the validity of the categorical exclusion due to an incorrect
interpretation of a statute—a pure error of law. But like
many legal questions, the meaning of HFRA’s unambiguous
provisions would not become clearer with “at least some
discovery” or a “further hearing on the merits.” Cottrell, 632
F.3d at 1131 (citation omitted). There is no need for more
deliberative investigation or development of the record to
resolve the plain meaning of HFRA.
We therefore conclude that the district court relied on a
misinterpretation of HFRA in concluding that serious
questions existed going to the merits.7 Because a legal error
7
We do not decide whether Nordman or Lamb Creek (or anywhere else)
qualify as “at-risk communities” for purposes of HFRA’s categorical
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 37
infected this “‘threshold inquiry,’ we need not consider the
other factors” governing injunctive relief. See California v.
Azar, 911 F.3d 558, 575 (9th Cir. 2018) (citation omitted).
c
Finally, Alliance argues that, even if the district court
erred in issuing the preliminary injunction, we should leave
it in place while the district court reconsiders whether there
are sufficient serious questions on remand. The district court
never addressed Alliance’s alternative theory for a
preliminary injunction: that the Project violates limitations
on roads in certain areas designated for bear protection
called Bears Outside Recovery Zones (BORZ).
It is counterintuitive to keep a preliminary injunction in
place after concluding the district court abused its discretion
in issuing it. Typically, a trial court’s decision about a
preliminary injunction is properly “set aside when it is based
on . . . improper legal premises.” Regents of Univ. of Cal.
v. Am. Broad. Cos., 747 F.2d 511, 515 (9th Cir. 1984). After
all, a preliminary injunction is an “extraordinary remedy
never awarded as of right” or without a “clear showing” of
entitlement; absent that, such relief should not issue. Winter,
555 U.S. at 22, 24. Yet on a handful of occasions, we have
retained an injunction granted on improper legal bases,
though under unique circumstances.
For example, in Gerling Global Reinsurance Corp. of
America v. Low, 240 F.3d 739, 754 (9th Cir. 2001), we held
that the district court erred in finding that a statute violated
the dormant Commerce Clause and the foreign affairs
power, yet still left the preliminary injunction in place to
exclusion. That question can be addressed on remand under proper legal
and statutory standards.
38 ALLIANCE FOR THE WILD ROCKIES V. PETRICK
give the district court an opportunity to consider an
unaddressed argument that the statute also violated the Due
Process Clause. But the defendant “acknowledged at oral
argument” that there was a “serious question” about the
validity of a statute under that alternative ground, and there
was no dispute that plaintiffs would suffer irreparable harm
if the statute took effect. Id. at 754 & n.11. And in United
States v. Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en
banc), we held that a district court erred in entering an
injunction preventing the government from deporting
someone. We also left the “the injunction in place . . . .
pending the conclusion of all proceedings in this case, in aid
of the court’s jurisdiction.” Id.This is not a case, however, where Alliance’s alternative
BORZ argument (which is discussed fairly briefly on appeal)
clearly has merit. Unlike in Gerling, the Forest Service
claims this alternative argument is meritless. And unlike in
Hovsepian, nothing suggests that retaining the injunction is
needed to protect our jurisdiction. Alliance makes no
argument that irreparable harm or mootness issues will arise
before it can renew its request for a preliminary injunction
on these alternative grounds. Ultimately, whether to issue a
preliminary injunction—or, in this case, retain one—“is an
exercise of discretion and judgment.” Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080, 2087 (2017). And here,
there is no reason to conclude that we should exercise our
equitable discretion to leave an injunction in place that was
wrongly granted, and where no likelihood of success on
another claim is clear.
Because the preliminary injunction was based on a legal
error, we vacate it.
ALLIANCE FOR THE WILD ROCKIES V. PETRICK 39
VI
For these reasons, the district court’s grant of summary
judgment in Hanna Flats I is VACATED and the district
court’s preliminary injunction in Hanna Flats II is
VACATED. We REMAND both matters for proceedings
consistent with this opinion.8
8
We DENY Alliance’s opposed request for judicial notice of a timber
sale cancellation letter. Even assuming this letter is judicially noticeable,
it is not “relevant to any issue on appeal.” Flick v. Liberty Mut. Fire Ins.
Co., 205 F.3d 386, 393 n.7 (9th Cir. 2000). We also DENY Alliance’s
request to strike portions of the Forest Service’s briefing that cite internet
sources. We permit “undisputed facts offered only for general
background” to be offered without a citation to the excerpts of record.
9th Cir. R. 28-2.8.