Los Padres ForestWatch v. United States Forest Service, No. 20-55859 (9th Cir. 2022)
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Tecuya Ridge, within the Los Padres National Forest, is home to densely populated forest stands that the Forest Service determined to be at risk of destruction by wildfire. The Tecuya Ridge Shaded Fuelbreak Project authorized thinning 1,626 acres of forest, including approximately 1,100 acres within the protected Antimony Inventoried Roadless Area. The Roadless Area Conservation Rule generally prohibits timber cutting, sale, or removal in areas like Antimony, with some exceptions.
The Ninth Circuit vacated the approval. The Service’s conclusion that the Project was consistent with the Rule was arbitrary and capricious as was its determination that 21-inch diameter trees were “generally small timber.” The Service’s determination that the Project will “maintain or improve” Antimony’s characteristics was not arbitrary; the Service articulated a satisfactory explanation. The decision to “categorically exclude” the Project from review in an environmental assessment or environmental impact statement, under the National Environmental Policy Act was not arbitrary and capricious. The court agreed that Categorical Exclusion 6 (CE-6) applied and that no extraordinary circumstances prevented CE-6's application to the Project. Consistent with 36 C.F.R. 220.6, the Service analyzed each resource condition that should be considered in determining whether there were extraordinary circumstances related to the proposed action and determined that the Project would have “no significant impact” on each. The decision to locate the Project in the “wildland zone” instead of the “threat zone” was not arbitrary.
Court Description: Environmental Law. The panel vacated the district court’s summary judgment in favor of the U.S. Forest Service, and the Forest Service’s Decision Memo approving the proposed Tecuya Ridge Shaded Fuelbreak Project; and remanded to the Forest Service to provide adequate substantiation for its determination that 21-inch dbh (diameter at breast height) trees are generally small diameter timber within the Project Area. Tecuya Ridge is located within the Los Padres National Forest, and is home to densely populated forest stands that the Forest Service determined to be at risk of destruction by wildfire. The Tecuya Ridge Project authorized thinning 1,626 acres of forest, including approximately 1,100 acres within a protected area called the Antimony Inventoried Roadless Area (“IRA”). The Roadless Area Conservation Rule was established in 2001 pursuant to a presidential * The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. LOS PADRES FORESTWATCH V. USFS 3 directive to initiate a nationwide plan to protect inventoried and uninventoried roadless areas within national forests. Generally, timber cutting, sale or removal in areas like the Antimony IRA are prohibited by the Roadless Area Conservation Rule. The Rule provides for some exceptions. The panel held that the Forest Service’s conclusion that the Tecuya Ridge Project was consistent with the Roadless Area Conservation Rule was arbitrary and capricious. The panel held that the Forest Service’s determination that 21- inch dbh trees were “generally small timber” was arbitrary and capricious. The panel found no record evidence to support this determination. In addition, the Forest Service failed to articulate a satisfactory explanation – in the administrative record, in briefing, and at oral argument – for its determination that the 21-inch dbh trees in the Project area were “generally small” within the meaning of the Roadless Rule. Because the panel could not discern how the Forest Service arrived at the 21-inch dbh number, the panel remanded for the Forest Service to substantiate its conclusion that 21-inch dbh trees are “generally small” within the project area, consistent with the Roadless Rule. The panel held that the Forest Service’s determination that the Project will “maintain or improve” the Antimony Roadless Area’s characteristics was not arbitrary and capricious. The Forest Service met its obligations under Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983), to articulate a satisfactory explanation for its action. The panel held that the Forest Service’s decision to “categorically exclude” the Tecuya Ridge Project from review in an environmental assessment or environmental impact statement, pursuant to the National Environmental 4 LOS PADRES FORESTWATCH V. USFS Policy Act (“NEPA”), was not arbitrary and capricious. First, the Forest Service’s determination that Categorical Exclusion 6 (“CE-6”) applied to the Project was not arbitrary and capricious. Second, the Forest Service’s determination that no extraordinary circumstances prevented its application of CE-6 to the Project was not arbitrary and capricious. Consistent with 36 C.F.R. § 220.6, the Forest Service analyzed each resource condition – that should be considered in determining whether there were extraordinary circumstances related to the proposed action – and determined that the Project would have “no significant impact” on each. In addition, the Forest Service’s decision to locate the Project in the “wildland zone” instead of the “threat zone” was not arbitrary and capricious because the Forest Service substantiated its decision with evidence in the record. Judge R. Nelson dissented. He agreed with Sections I.B and II of the majority opinion. He wrote, however, that the majority wrongly held that the Forest Service’s determination that 21-inch dbh trees are “small diameter” was arbitrary or capricious under the Administrative Procedure Act. He would deny the petition for review. LOS PADRES FORESTWATCH V. USFS 5
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