Mountain Communities for Fire Safety v. Elliott, No. 20-55660 (9th Cir. 2022)
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The U.S. Forest Service proposed “thinning” overcrowded areas in Cuddy Valley within Los Padres National Forest. If some trees are not removed, the forest will face increased risks of wildfires, and insects and diseases may ravage the trees, according to the Forest Service.
The Ninth Circuit rejected a challenge by environmental groups. The “CE-6” exemption, 36 C.F.R. 220.6(e)(6) to the National Environmental Policy Act, 42 U.S.C. 4321, unambiguously allows the Forest Service to thin trees, including larger commercially viable ones, to reduce fire hazards without having to conduct an environmental impact statement or an environmental assessment. Its plain language does not limit thinning by tree age, size, or type. Nor is thinning defined to exclude commercial thinning. If the thinning project reduces fire hazards and meets certain other conditions, CE-6 greenlights the project, even if it means felling commercially viable trees. The Forest Service did not act arbitrarily in invoking the CE-6 exemption and did not violate the National Forest Management Act, 16 U.S.C. 1600, which sets certain aesthetic management standards. The Service did not have to explain how the project would meet such standards but did explain how the project area would retain sufficient scenic integrity.
Court Description: Environmental Law. The panel affirmed the district court’s summary judgment for the U.S. Forest Service in an action brought by several nonprofit groups concerning the Service’s proposed timber project of “thinning” overcrowded areas in Cuddy Valley within Los Padres National Forest. U.S. Forest Service regulation 36 C.F.R. § 220.6(e)(6) allows “timber stand improvement” activities such as “thinning . . . to reduce fire hazard” (“CE-6” exemption). The panel held that CE-6 – the “Timber Stand Improvement” categorical exclusion – allows for thinning of larger commercially viable trees, and is not limited to thinning small saplings. First, the National Environmental Policy Act (“NEPA”) permits categorical exclusions to proceed without an environmental impact statement or an environmental assessment. The panel held that CE-6 unambiguously allowed commercial thinning, and, therefore, it need not consider whether it must give Auer deference to the Forest Service’s interpretation of CE-6. MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT 3 Second, CE-6 is not genuinely ambiguous and allows for commercial thinning. The plain language of CE-6 is clear. It does not limit activities based on tree age or size; rather it allows for timber stand improvement. In addition, the phrase “timber stand improvement” itself does not limit tree age or size. The panel further held that the Forest Service was not bound by the 2014 Forest Service Manual definition of “stand improvement.” The panel rejected appellants argument that other categorical exceptions implicitly limited CE-6’s scope. The panel held that the Forest Service’s decision to apply CE-6 to the project was not arbitrary and capricious. Because the Cuddy Valley Project authorized thinning to reduce “stand density, competing vegetation, and fuels” and will not require the use of herbicides or any road construction, the Forest Service reasonably determined that it fell within the scope of CE-6. Also, when analyzing whether extraordinary circumstances prevented the use of CE-6, the Forest Service did not have to examine the NEPA intensity factors listed at 40 C.F.R. § 1508.27. Finally, the Forest Service adequately considered the resource conditions listed at 36 C.F.R. § 220.6(b). The Forest Service did not violate the National Forest Management Act (“NFMA”) in determining that the project tracked the Los Padres Forest Plan’s Aesthetic Management Standards. The panel rejected appellants’ NFMA-related arguments. The Forest Service did not have to issue explanatory documentation when the project was authorized. Although NFMA regulations promulgated later require a document describing how proposed activities follow the forest plan, 36 C.F.R. § 219.15(d), such regulations do not apply to plans that predate their enactment; and the Los Padres Forest Plan predated those recent regulations. 4 MOUNTAIN COMMUNITIES FOR FIRE SAFETY V. ELLIOTT Moreover, the Forest Service’s articulated rationale was not a mere post hac rationalization. In addition, the Forest Service’s conclusion that the project met the Scenic Integrity Standards in the Forest Plan was not arbitrary and capricious. District Judge Stein dissented because he would find, employing all the traditional tools of statutory construction, that the CE-6 exemption unambiguously prohibits the Forest Service from performing commercial thinning of trees pursuant to CE-6. He disagreed with Part I.B of the majority’s analysis and would reverse the district court’s denial of appellants’ motion for summary judgment.
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