BMBP V. JEFFRIES, No. 22-35857 (9th Cir. 2024)
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The Blue Mountains Biodiversity Project (BMBP) sued the U.S. Forest Service, alleging that the Service's approval of the Walton Lake Restoration Project violated the National Environmental Policy Act (NEPA), the National Forest Management Act, and the Administrative Procedure Act (APA). The Forest Service developed the project to replace trees infested with laminated root rot and bark beetles with disease-resistant trees. In 2016, the Service contracted with T2, a private company, for logging to implement the decision. BMBP filed this action challenging the 2020 decision notice. The Service filed an administrative record (AR) in 2021.
BMBP argued that the AR was incomplete, contending that deliberative materials were part of the “whole record” and that a privilege log was required if they were not included in the AR. BMBP also argued that all documents in the 2016 AR should be in the AR for this case. The court held that deliberative materials are generally not part of the AR absent impropriety or bad faith by the agency. The court also held that BMBP’s arguments failed to overcome the presumption of regularity.
The court then addressed whether the Service violated NEPA by approving the Project. The court held that BMBP failed to establish that the logging contract with T2 improperly committed resources under any standard. The court also rejected BMBP’s contention that the EA diluted the significance of some impacts by analyzing them on too large a scale. The court affirmed the judgment of the district court and lifted the previous stay of its order dissolving the preliminary injunction.
Court Description: Environmental Law The panel filed (1) an order denying a petition for panel rehearing, denying a petition for rehearing en banc, and amending the opinion filed on July 3, 2023; and (2) an amended opinion affirming the district court’s summary judgment in favor of the U.S. Forest Service in an action brought by Blue Mountains Biodiversity Project (“BMBP”) alleging that the Service’s approval of the Walton Lake Restoration Project violated the National Environmental Policy Act (“NEPA”), the National Forest Management Act, and the Administrative Procedure Act (“APA”).
The Forest Service developed the Project to replace trees infested with laminated root rot and bark beetles with disease-resistant trees. In May 2016, the Service contracted * The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. with T2, a private company, for logging to implement the decision. The Service issued a revised Environmental Assessment (“EA”) in July 2020 and a revised decision notice in December 2020. BMBP filed this action challenging the 2020 decision notice. The Service filed an administrative record (“AR”) in 2021.
The panel first addressed BMBP’s argument that the AR was incomplete. First, BMBP argued that deliberative materials were part of the “whole record” and that a privilege log was required if they were not included in the AR. The panel held that deliberative materials are generally not part of the AR absent impropriety or bad faith by the agency. Because deliberative materials are not part of the administrative record to begin with, they are not required to be placed on a privilege log. The district court did not abuse its discretion by declining to order the production of a privilege log. Second, BMBP argued that all documents in the 2016 AR should be in the AR for this case. BMBP contended that the documents in the 2016 AR were necessarily before the agency in the 2020 process because the Project was a continuation of the withdrawn one. The panel held that BMBP’s arguments failed to overcome the presumption of regularity. The 2020 decision notice expressly stated that the Forest Service began the NEPA process again in 2019. The record also supported the Service’s contention that it included only documents from previous NEPA analyses that were considered in the 2020 decision. The panel concluded that the district court acted within its discretion in denying the motion to supplement the AR.
The panel next addressed whether the Service violated NEPA by approving the Project. First, the panel held that BMBP failed to establish that the logging contract with T2 improperly committed resources under any standard. There is also no evidence that the agency merely engaged in post hoc rationalization in the 2020 decision. Second, the panel rejected BMBP’s contention that the EA diluted the significance of some impacts by analyzing them on too large a scale. The BMBP did not show why the choice of a broader context in the challenged instances was arbitrary or capricious. Also, the regulations list ten non-exhaustive relevant factors for consideration. The panel held that whether the factors were assessed individually or cumulatively, the record did not establish a clear error of judgment in the Service’s intensity findings, which “refers to the severity of impact” within the selected context. 40 C.F.R. § 1508.27(b).
The panel affirmed the judgment of the district court and lifted the previous stay of its order dissolving the preliminary injunction.
In a statement respecting the denial of rehearing en banc, Judge Berzon, joined by Wardlaw, Paez, and Koh, wrote that the panel’s holding permits government agencies to sanitize the record available to reviewing courts, thereby severely curtailing meaningful judicial review of administrative action. The panel’s opinion conflicts with case law by holding that materials protected by the deliberative process privilege were not part of the “whole record” for purposes of judicial review under the APA. Judge Berzon would hold that if government agencies wish to withhold documents in APA cases based on a privilege, they should have to provide a privilege log with justification for each document for which they assert a privilege, as they must do under Freedom of Information Act precedent.
This opinion or order relates to an opinion or order originally issued on July 3, 2023.
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