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Sierra Club v. Bosworth



Plaintiffs Sierra Club and Sierra Nevada Forest Protection Campaign (Sierra Club) sued in federal district court alleging the United States Forest Service and the Department of Agriculture (USFS) violated the National Environmental Policy Act[1](NEPA) by promulgating a “categorical exclusion” (CE) for all fuel reduction projects less than 1,000 acres and all burn projects less than 4,500 acres (the “Fuels CE”). Sierra Club challenged the application of the Fuels CE to projects in the Eldorado and Lassen National Forests, and sought a nation-wide injunction against USFS use of the Fuels CE. The district court granted summary judgment for USFS, finding the agency was not required to prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS), that Sierra Club had not demonstrated that USFS used irrational methodology, and that USFS had adequately demonstrated that no extraordinary circumstances existed that would trigger the requirement for an EA or EIS for the challenged Eldorado and Lassen National Forest Fuels CE projects. On appeal, the Ninth Circuit reviewed the district court’s grant of summary judgment de novo, under the Administrative Procedure Act’s[2](APA) “arbitrary and capricious” standard for agency action. Finding the agency’s promulgation of the Fuels CE arbitrary and capricious, the Ninth Circuit reversed the district court’s grant of summary judgment.

To comply with NEPA, federal agencies must prepare an EIS for all recommendations or major federal actions that “significantly affect[] the quality of the human environment[;]” however, an agency is not required to prepare an EA (a preliminary step to determine whether an EIS is warranted) or an EIS if the action to be taken falls under a categorical exclusion. A CE is “a category of actions which do not individually or cumulatively have a significant effect on the human environment[.]”[3]As part of its CE procedures, an agency “shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect[,]” thus requiring either an EIS or an EA with a finding of no significant impact (FONSI).[4]

The 2002 Healthy Forests Initiative (HFI) directed various agencies to “improve regulatory processes to ensure more timely decisions, greater efficiency, and better results in reducing the risk of catastrophic wildfires by restoring forest health.”[5]To comply with the HFI, USFS developed the Fuels CE for fuels reduction activities in National Forests. After giving public notice and receiving 39,000 comments, USFS published the final Fuels CE on June 5, 2003.[6]The Fuels CE was designed to reduce and thin hazardous fuels by using controlled burning on less than 4,500 acres and mechanical methods such as cutting, crushing, thinning, pruning and mulching on areas of less than 1,000 acres. Any Fuels CE project requires a decision memo describing the project, the reason for invoking the Fuels CE, a finding that no extraordinary circumstances exist, and a description of public involvement.

Prior to the development of the Fuels CE, USFS changed the Forest Service Handbook (FSH) by adding a section allowing a Fuels CE project to proceed even when listed resource conditions exist. Examples of listed resource conditions include the presence of threatened or endangered species, critical habitat for such species, wetlands, or the existence of a congressionally designated wilderness area. Courts previously interpreted the 1992 FSH to require preparation of an EA or EIS whenever a listed resource condition was present; however, the 2007 FSH states that listed resource conditions are only factors “that should be considered” in determining whether extraordinary circumstances exist.[7]Thus, the existence of a listed resource condition does not automatically preclude use of a CE.

The Ninth Circuit first rejected the Sierra Club’s argument that USFS was required to issue an EIS or an EA/FONSI when it promulgated the Fuels CE. Sierra Club argued that promulgation of the Fuels CE was itself a major federal action significantly impacting the environment because it was either a “rule” or a “program.”[8]The Ninth Circuit rejected this argument because Council on Environmental Quality (CEQ) regulations explicitly state that no EIS or EA is required for CEs.[9]Additionally, the court determined that promulgating a CE is an implementing procedure of CEQ regulations, which do not require an EA/FONSI prior to promulgation of a CE. The Ninth Circuit agreed with the rationale of the Seventh Circuit in Heartwood v. U.S. Forest Service[10]that an agency is not required to issue an EIS or an EA/FONSI when it promulgates a CE because, by definition, a CE does not significantly affect the human environment.[11]

Next, the Ninth Circuit considered whether the evidence in the record supported USFS’s determination that the category of actions identified in the Fuels CE do not individually or cumulatively have a significant impact on the environment. The Ninth Circuit found USFS’s promulgation of the Fuels CE arbitrary and capricious because USFS 1) used improper post-hoc decision making, 2) failed to properly assess the significance of the Fuels CE, and 3) did not define the CE with the requisite specificity.

The Ninth Circuit first determined USFS violated NEPA because it decided to establish the Fuels CE before requesting data regarding fuels reduction projects from all Regional Foresters (the “data call”). Post-hoc decision-making violates the fundamental NEPA requirement that agencies to take a “hard look” at the environmental impact of their action as part of the decision-making process. Further, USFS failed to engage in the required scoping process before promulgating the Fuels CE. The scoping process requires USFS to “consider the cumulative impacts of connected, cumulative, and similar actions” and produce an EA if a significant impact will result.[12]In short, the Ninth Circuit held that USFS violated NEPA because it did not follow the decisional framework mandated by NEPA procedures.

Next, the Ninth Circuit deemed issuance of the Fuels CE arbitrary and capricious because USFS, in considering the significance of the Fuels CE’s impact, failed to adequately consider unique characteristics of geographical areas, the degree to which risks are unknown, potential effects on endangered species, and cumulative impacts from other projects.

The court first looked to USFS’s analysis of the cumulative impacts of the Fuels CE. The court held that performing project-level impacts analyses did not satisfy the cumulative impact analysis requirement because project-level analyses “fails to consider impacts from past, present, or reasonably foreseeable future Fuels CE projects which may be located in close proximity, in the same watershed or endangered species habitat area.”[13]Additionally, NEPA prohibits an agency from breaking up a large project into smaller components so as to avoid classification as a major federal action, thereby avoiding NEPA requirements.[14]The Ninth Circuit noted that a cumulative impacts analysis was especially critical to the Fuels CE because it was a nationwide project that could potentially impact all 192 million acres of the United States National Forest system.

The court concluded that a report from the Department of Interior summarizing the data call was not an adequate cumulative impacts analysis because it offered only conclusory statements that there would be no significant impact and provided no methodology or quantifiable results to support these conclusions. The court rejected the report’s conclusion that there were no cumulative impacts because the effects on individual projects were localized, temporary, or minor, explaining that a global cumulative impacts analysis was necessary because overall environmental effects of multiple projects encompassed by the CE could cause effects exceeding a localized or minor magnitude. Further, mitigation measures in the report were not required in the Fuels CE nor were they developed to a reasonable degree.

The court concluded that USFS could not properly assess the significance of environmental impacts without performing a proper cumulative impacts analysis. The Ninth Circuit emphasized that the cumulative impacts analysis must contain more than merely conclusory statements, and must provide a useful analysis based on quantified or detailed information. Additionally, the court explained that USFS must assess cumulative impacts on a programmatic level, with enough detailed data to facilitate review, and also consider impacts on wildlife and habitat.

The Ninth Circuit also explained that USFS erred in promulgating the Fuels CE because it failed to consider the highly controversial nature of the fuels reduction projects and the uncertain risks to the environment. The court specifically pointed to comments submitted by federal and state agencies that expressed concern about uncertain risks and the possibility that the Fuels CE would cause significant environmental harm. The United States Fish and Wildlife Service (FWS) expressed concern about how reconstruction of roads could increase road density, decrease wolf and bear habitat, and add more sediment to streams. FWS also expressed concerns about use of a CE because it believed NEPA provided useful procedures to analyze the risks and effects of fuels reduction projects. Similarly, the Arizona Game and Fish Department disputed USFS’s determination that the Fuels CE would cause no significant impacts and expressed concern about the uncertain risks the Fuels CE could create for forest structure, wildlife species, invasion of exotic species, and erosion. Additionally, the California Resources Agency (CRA) expressed concern about the uncertain effects of understory treatments and brush removal on native plants, animals, and fire-adapted ecosystems. Additionally, CRA disapproved of the attempt to remove projects from full NEPA review, and concluded the Fuel CE proposal could seriously degrade California public forest land. The Ninth Circuit held USFS did not provide a well-reasoned explanation of why these comments do not create a public controversy based upon potential environmental consequences.

Next, the Ninth Circuit held the Fuels CE lacked the specificity, required by CEQ regulations, to identify typical classes of action that do not have significant impacts the environment. As examples, the court noted the Fuels CE did not identify permissible road density, maximum diameter or species of trees permitted to be logged, a limit on proximity of different projects, or a cap on the number of projects in a watershed, ecosystem, or endangered species habitat. Similarly, the Fuels CE did not define what types of roads qualified as temporary roads or define “adverse effect” as relating to extraordinary circumstances that would exempt a project from the CE.

Lastly, having found the district court erred in granting summary judgment, the Ninth Circuit considered the appropriate remedy. The Ninth Circuit held that the balance of equities and the public interest weighed in favor of an injunction “because allowing a potentially environmentally damaging program to proceed without an adequate record of decision runs contrary to the mandate of NEPA.”[15]The Fuels CE particularly implicated the public interest because projects would involve burning and logging that could potentially impact air, water quality, wildlife, and forest resources. The court also noted the intrinsic risk for harm that occurs when agency officials make decisions without considering the potential impact on the environment. The Ninth Circuit limited the scope of the injunction to projects approved by USFS after the lawsuit’s initiation in October 2004 that were also not completed or substantially close to completion. The Ninth Circuit thus vacated the district court’s grant of summary judgment and remanded the case to the district court for a determination of the applicability of the injunction to specific projects.

In his brief concurrence, Judge Kleinfeld explained that intuitively, he could not “believe that a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious.”[16]However, he noted the record did not adequately support USFS’s contention that it took a “hard look” at environmental impacts, nor did the record demonstrate that USFS actions were not arbitrary and capricious. Noting that a “judge’s duty is to decide the case based on the law and the record, not his personal policy preference,” Judge Kleinfeld concurred.[17]

[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[2] 5 U.S.C. § 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

[3] 40 C.F.R. § 1508.4 (2007).


[5] NEPA Documentation Needed for Fire Management Activities; Categorical Exclusions, 67 Fed. Reg. 77,038, 77,039 (Dec. 16, 2002).

[6] NEPA Documentation Needed for Fire Management Activities; Categorical Exclusions, 68 Fed. Reg. 33,814 (June 5, 2003).

[7] U.S. Dep’t of Agriculture, Environmental Policy and Procedures Handbook: Forest Service Handbook § 1909.15, ch. 30, § 30.3(2) (2007).

[8] 40 C.F.R. § 1508.18(a), (b)(3) (2007).

[9] Id. § 1508.4 (defining a CE as “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect”).

[10] 230 F.3d 947 (7th Cir. 2000).

[11]Id. at 954.

[12] Sierra Club v. Bosworth,510 F.3d 1016,1027 (9th Cir. 2007).


[14] Churchill County v. Norton,276 F.3d 1060, 1076 (9th Cir. 2001).

[15] Sierra Club v. Bosworth, 510 F.3d 1016,1033 (9th Cir. 2007).

[16]Id. at1034.

[17]Id. at 1034-35.

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