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Center for Biological Diversity v. Ilano

United States Court of Appeals, Ninth Circuit

June 24, 2019

Center for Biological Diversity; Earth Island Institute, Plaintiffs-Appellants,
v.
Eli Ilano; Thomas Tidwell; United States Forest Service, Defendants-Appellees, Sierra Pacific Industries, Intervenor-Defendant-Appellee.

          Argued and Submitted December 18, 2018

          Appeal from the United States District Court for the Eastern District of California No. 2:16-cv-02322-VC Vince Chhabria, District Judge, Presiding

          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.

          Lawson E. Fite (argued) and Sara Ghafouri, American Forest Resource Council, Portland, Oregon, for Intervenor-Defendant-Appellee.

          Before: Milan D. Smith, Jr. and Jacqueline H. Nguyen, Circuit Judges, and Jane A. Restani, [*] Judge.

         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

          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.

          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.

         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 ...


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