Los Padres Forestwatch v. Usfs ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOS PADRES FORESTWATCH; EARTH No. 20-55859
ISLAND INSTITUTE; CENTER FOR
BIOLOGICAL DIVERSITY, D.C. No.
Plaintiffs-Appellants, 2:19-cv-05925-
PJW
v.
UNITED STATES FOREST SERVICE; OPINION
KEVIN ELLIOTT, Supervisor, Los
Padres National Forest; UNITED
STATES FISH AND WILDLIFE
SERVICE,
Defendants-Appellees,
AMERICAN FOREST RESOURCE
COUNCIL; CALIFORNIA FORESTRY
ASSOCIATION; ASSOCIATED
CALIFORNIA LOGGERS,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Patrick J. Walsh, Magistrate Judge, Presiding
Argued and Submitted May 12, 2021
Pasadena, California
Filed February 4, 2022
2 LOS PADRES FORESTWATCH V. USFS
Before: Ryan D. Nelson and Kenneth K. Lee, Circuit
Judges, and Sidney H. Stein, * District Judge.
Opinion by Judge Stein;
Dissent by Judge R. Nelson
SUMMARY **
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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
COUNSEL
Justin Augustine (argued), Law Office of Justin Augustine,
Oakland, California; Brian Segee, Center for Biological
Diversity, Los Angeles, California; for Plaintiffs-
Appellants.
Jeffrey S. Beelaert (argued), Bridget K. McNeil, and Sean C.
Duffy, Attorneys; Jean E. Williams, Acting Assistant
Attorney General; United States Department of Justice,
Environment and Natural Resources Division, Washington,
D.C.; for Defendants-Appellees.
Lawson E. Fite (argued) and Sara Ghafouri, American Forest
Resource Council, Portland, Oregon, for Intervenor-
Defendants-Appellees.
6 LOS PADRES FORESTWATCH V. USFS
OPINION
STEIN, District Judge:
The Tecuya Ridge, part of the San Emigdio Mountain
range, rises up from the Los Padres National Forest and
overlooks the mountain communities of Lebec, Frazier Park,
Lake of the Woods, Pine Mountain Club, and Pinon Pines
Estates. The Ridge falls within the Mt. Pinos Place
Management Area, an environment forested with old-growth
trees, including Singleleaf pinyon-California juniper and
Montane conifer. The area provides habitat for the
California condor, the California spotted owl, and the
northern goshawk and affords a scenic backdrop to the
mountain communities nestled within it. But because the
Tecuya Ridge is home to densely populated forest stands, 1
the Forest Service has determined that both the forest and the
adjacent mountain communities are at risk of destruction by
wildfire. To address this risk, the Forest Service proposed
the Tecuya Ridge Shaded Fuelbreak Project (the “Project”)
in March 2018. The Project aims to create a fuelbreak, a
“wide strip or block of land on which the native or pre-
existing vegetation has been permanently modified so that
fires burning into it can be more readily extinguished,” 2
running roughly in a jagged line along the Tecuya Ridge.
1
A “stand” is a “contiguous group of trees sufficiently uniform in
age class distribution, composition, and structure, and growing on a site
of sufficiently uniform quality, to be a distinguishable unit.”
Reforestation Glossary, U.S. Forest Serv., https://www.fs.fed.us/restora
tion/reforestation/glossary.shtml.
2
U.S. Dep’t of Agric., U.S. Forest Serv., Land Management Plan:
Part 3 Design Criteria for the Southern California National Forests 96
(2005).
LOS PADRES FORESTWATCH V. USFS 7
In April 2019, Los Padres Forest Supervisor Kevin Elliot
published a Decision Memo approving the Project.
Appellants Los Padres ForestWatch, Center for Biological
Diversity, and Earth Island Institute filed a complaint
challenging this decision on two grounds: that the Forest
Service’s approval of the project violates the National
Environmental Policy Act of 1969 (“NEPA”), and that the
Project authorizes logging large diameter trees in violation
of the Roadless Area Conservation Rule. The parties filed
cross-motions for summary judgment. The district court
granted Appellee’s motion for summary judgment and
denied Appellants’ motion for summary judgment.
Appellants filed a timely notice of appeal on August 20,
2020.
Because the Forest Service has failed to explain how its
decision to approve the Project complies with the
requirements of the Roadless Area Conservation Rule, the
Court vacates the district court’s decision and the Forest
Service’s Decision Memo approving the Project and
remands this case to the Forest Service to substantiate its
conclusions.
BACKGROUND
Since 1998, fifteen wildfires have burned through the
Tecuya Ridge. The Forest Service believes that the risk of
wildfire in that area remains high because the Tecuya Ridge
consists of densely packed forest stands. Overcrowded
stands are vulnerable to severe wildfire because they are full
of tightly packed forest fuels—combustible forest
materials—like shrubs, brush, and tree branches. 3 “Surface”
3
U.S. Dep’t of Agric., U.S. Forest Serv., Influence of Forest
Structure on Wildfire Behavior and the Severity of Its Effects 1 (2003).
8 LOS PADRES FORESTWATCH V. USFS
fuels lie on the forest floor, while “ladder” fuels allow
wildfire to climb from the forest floor to the tree canopies. 4
The Forest Service has determined that surface and ladder
fuel loads, dense tree crown cover, continued periods of
drought, and the presence of trees ravaged by insects and
disease in the Tecuya Ridge pose a risk of a wildfire with the
potential to destroy an entire forest stand.
Accordingly, the Forest Service proposed the Tecuya
Ridge Shaded Fuelbreak Project in March 2018. The Project
Decision Memo explains that the Project aims to create a
fuelbreak to “provide safe and effective locations from
which to perform fire suppression operations,” to “slow the
spread of wildland fire,” to “reduce the potential for the loss
of life, property, and natural resources,” and to “increase the
forest’s resilience to insects and diseases.”
To accomplish these goals, the Project authorizes
thinning 1,626 acres of forest, including approximately
1,100 acres within a protected area called the Antimony
Inventoried Roadless Area (“IRA”). “Thinning,” as
explained in the Project Decision Memo, means that
commercially viable trees will be cut down and
mechanically harvested for commercial sale. Smaller trees
and shrubs would either be treated by mastication—which
means using equipment to grind, chip, or break apart brush
and small trees into small pieces, leaving a “mulch” made
from wood chips on the forest floor 5—hand-thinning, or
4
Id. at 2–3.
5
U.S. Dep’t of Agric., Is Mastication Right For Your Site? Science-
Based Decision Trees for Forest Managers, Rocky Mountain Rsch.
Station Sci. You Can Use Bull., Nov. 2020, at 1, available at
https://www.fs.usda.gov/rmrs/sites/default/files/documents/SYCU_Is_
Mastication_Right_for_Your_Site.pdf.
LOS PADRES FORESTWATCH V. USFS 9
pruning. Any fuels created by these activities would be
scattered or piled by hand on the forest floor and burned.
The vast majority of the trees targeted for treatment will be
commercially logged and sold.
On March 13, 2018, the Forest Service issued a Project
Proposal for the Tecuya Ridge Shaded Fuelbreak Project and
a letter soliciting public comment on the proposal. Between
April 2018 and April 2019, Appellants and other interested
parties submitted comments to the Forest Service, raising
concerns, among others, that the Project violated 1) NEPA
by authorizing the sale of commercial wood products
pursuant to a categorical exclusion, and 2) the Roadless Area
Conservation Rule by authorizing commercial logging in the
Antimony IRA.
In April 2019, Los Padres Forest Supervisor Kevin Elliot
published a Decision Memo approving the Project. The
Decision Memo explained that the Forest Service had
considered the public’s concern regarding “impacts to
wildlife, the Antimony IRA, and the commercial sale of
timber and other wood products” but had determined that the
Project would not “imperil species of concern.”
Appellants filed a complaint challenging the Forest
Service’s decision to approve the Project on the grounds that
the decision violated the Roadless Area Conservation Rule
and NEPA. The district court granted Appellee’s motion for
summary judgment and denied Appellants’ motion for
summary judgment on August 20, 2020. This appeal
followed. 6
6
Appellants assert they have associational standing to bring this
suit. Appellees have not contested this. Nevertheless, Appellants have
10 LOS PADRES FORESTWATCH V. USFS
STANDARD OF REVIEW
Appellate courts “review a grant of summary judgment
de novo.” Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d
1217, 1220 (9th Cir. 2011) (citing Swanson v. U.S. Forest
Serv., 87 F.3d 339, 343 (9th Cir. 1996)).
Courts review agency decisions under NEPA and the
Roadless Area Conservation Rule under the standards set out
in the Administrative Procedure Act (“APA”), and “must set
aside agency action found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d
957, 964 (9th Cir. 2002) (citing 5 U.S.C. § 706).
ANALYSIS
I. The Forest Service’s Conclusion that the Tecuya
Ridge Project Is Consistent with the Roadless Area
Conservation Rule Is Arbitrary and Capricious.
The Roadless Area Conservation Rule was established in
2001 7 pursuant to a presidential directive to “initiate a
associational standing—the right to bring a suit on behalf of their
members—because their “members would have standing to sue in their
own right, the interests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief requested requires
individual members’ participation in the lawsuit.” Friends of the Earth,
Inc. v. Laidlaw Env’tl Servs. (TOC), Inc., 528 U.S. 167, 169 (2000)
(citing Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343
(1977)).
7
The 2001 Roadless Rule has a somewhat complex history. The
rule was enjoined before it went into effect, and the Forest Service
promulgated an alternative rule, see Special Areas; State Petitions for
Inventoried Roadless Area Management, 70 Fed. Reg. 25,654–55 (May
LOS PADRES FORESTWATCH V. USFS 11
nationwide plan to protect inventoried and uninventoried
roadless areas” within national forests. Kootenai Tribe of
Idaho v. Veneman, 313 F.3d 1094, 1105 (9th Cir. 2002). In
promulgating the rule, the Forest Service identified
58.5 million acres of “inventoried roadless areas,” including
the Antimony IRA. See id.An “Inventoried Roadless Area” (“IRA”) is an area that
“provide[s] large, relatively undisturbed landscapes that are
important to biological diversity and the long-term survival
of many at risk species.” Special Areas; Roadless Area
Conservation, 66 Fed. Reg. 3,244, 3,245 (Jan. 12, 2001); see
also 36 C.F.R. § 294.11. The Antimony IRA, forested with
pinyon pine, other conifers, and sagebrush, spans nearly
40,513 acres across the San Emigdio Mountain range.
Twenty-four miles long and three miles wide, it lies both
north of and adjacent to the San Andreas Rift Zone. The
ridge tops of Antimony provide expansive views of the
southern San Joaquin Valley. The Antimony IRA also
provides habitat for California condors, which, according to
the Final Supplemental Environmental Impact Statement for
the Southern California National Forests Land Management
Plan Amendment, use the area “extensively for travel and
roosting as they soar on uplifted winds along the southern
boundary of the San Joaquin Valley.”
The Project authorizes thinning, including commercial
thinning, of approximately 1,100 acres of forest within the
Antimony IRA. Generally, timber cutting, sale, or removal
13, 2005), which is still codified at 36 C.F.R. § 294. However, the Ninth
Circuit affirmed the judgment of a district court setting aside the
alternative rule, and reinstating the original 2001 rule, in 2009. See
California ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F. 3d 999, 1021
(9th Cir. 2009). The version of the Rule at issue in this case is the
original 2001 version.
12 LOS PADRES FORESTWATCH V. USFS
in areas like the Antimony IRA are prohibited by the
Roadless Area Conservation Rule because those activities
“have the greatest likelihood of altering and fragmenting
landscapes, resulting in immediate, long-term loss of
roadless area values and characteristics.” Special Areas;
Roadless Area Conservation, 66 Fed. Reg. at 3,244. But the
Rule provides for some exceptions. For instance, “[t]imber
may be cut, sold, or removed in inventoried roadless areas”
if the Responsible Official determines:
(1) The cutting, sale, or removal of generally
small diameter timber is needed for one
of the following purposes and will
maintain or improve one or more of the
roadless area characteristics as defined in
§ 294.11.
(i) To improve threatened, endangered,
proposed, or sensitive species habitat;
or
(ii) To maintain or restore the
characteristics of ecosystem
composition and structure, such as to
reduce the risk of uncharacteristic
wildfire effects, within the range of
variability that would be expected to
occur under natural disturbance
regimes of the current climatic
period[.]
36 C.F.R. § 294.13.
LOS PADRES FORESTWATCH V. USFS 13
The rule defines “roadless area characteristics” as
“[r]esources or features that are often present in and
characterize inventoried roadless areas,” including:
(1) High quality or undisturbed soil, water,
and air;
(2) Sources of public drinking water;
(3) Diversity of plant and animal
communities;
(4) Habitat for threatened, endangered,
proposed, candidate, and sensitive
species and for those species dependent
on large, undisturbed areas of land;
(5) Primitive, semi-primitive non-motorized
and semi-primitive motorized classes of
dispersed recreation;
(6) Reference landscapes;
(7) Natural appearing landscapes with high
scenic quality;
(8) Traditional cultural properties and sacred
sites; and
(9) Other locally identified unique
characteristics.
36 C.F.R. § 294.11.
14 LOS PADRES FORESTWATCH V. USFS
Thus, “[w]hether the [Forest] Service may harvest timber
in an inventoried roadless area is a three-step inquiry.” All.
for the Wild Rockies v. Krueger, 950 F. Supp. 2d 1196, 1214
(D. Mont. 2013), aff’d sub nom. All. for the Wild Rockies v.
Christensen, 663 F. App’x 515 (9th Cir. 2016). “First, the
timber to be harvested must be ‘generally small diameter.’
Second, the harvest must be needed for one of two listed
purposes [as defined in 36 C.F.R. § 294.13]. Third, the
harvest must maintain or improve one or more of the
roadless area characteristics as defined in § 294.11.” Id.
The Forest Service concluded that the Project complies
with the Roadless Rule because it seeks to reduce the risk of
uncharacteristic wildfire effects, a purpose specifically
identified in 36 C.F.R. § 294.13, may be needed for recovery
or conservation of threatened, endangered, proposed, or
sensitive species, a roadless area characteristic identified in
36 C.F.R. § 294.11, and removes generally smaller trees
with a diameter of less than 21 inches at breast height
(“dbh”) within the Antimony IRA. Appellants, however,
argue that the Forest Service has failed to substantiate its
assertion that trees measuring 21-inches dbh are “generally
small diameter timber” or explain how the Project will
maintain or improve one of the “roadless area
characteristics” listed in 36 C.F.R. § 294.11.
The Court disagrees with Appellants on the latter
contention and finds that the Forest Service has adequately
explained its determination that the Project will maintain or
improve one of the roadless area characteristics listed in
36 C.F.R. § 294.11. For instance, the fourth characteristic
covers the “[h]abitat for threatened, endangered, proposed,
candidate, and sensitive species” and the Forest Service’s
Decision Memo finds that “[t]he project would benefit
California condors by treating fuels to help prevent large,
LOS PADRES FORESTWATCH V. USFS 15
high intensity stand replacement wildland fire that could
eliminate roosting habitat over a larger area.”
But because the Forest Service has indeed failed to
explain its determination that 21-inch dbh trees are
“generally small diameter timber” within the meaning of the
Roadless Rule, its decision to approve the Project was
arbitrary and capricious.
A. The Forest Service’s Determination that 21-inch
dbh Trees Are “Generally Small Diameter
Timber” Is Arbitrary and Capricious.
“The intent of the [Roadless Area Conservation Rule] is
to limit the cutting, sale, or removal of timber to those areas
that have become overgrown with smaller diameter trees.”
Special Areas; Roadless Area Conservation, 66 Fed. Reg.
at 3,257. In promulgating the Rule, the Forest Service
specifically chose not to define “what constitutes ‘generally
small diameter timber’” because “[s]uch determinations are
best made through project specific or land and resource
management plan NEPA analyses,” as guided by certain
ecological considerations. Id.
Risk of fire is one of these considerations. The Forest
Service noted that “areas that have become overgrown with
shrubs and smaller diameter trees creating a fuel profile that
acts as a ‘fire ladder’ to the crowns of the dominant overstory
trees may benefit ecologically from thinning treatments that
cut and remove such vegetation.” Id. The notice of adoption
of the final version of the Rule specifically explains that
“[t]hinning of small diameter trees, for example, that became
established as the result of missed fire return intervals due to
fire suppression and the condition of which greatly increases
the likelihood of uncharacteristic wildfire effects,” is
permissible under the Rule. Id.
16 LOS PADRES FORESTWATCH V. USFS
The Project permits mechanical thinning of trees less
than 21-inches dbh inside the Antimony IRA to prevent
uncharacteristic wildfire effects. The Forest Service
contends that trees less than 21-inches dbh are “generally
small diameter timber” consistent with 36 C.F.R. § 294.13.
But the Court finds no evidence in the record to support the
Forest Service’s determination.
An agency must “articulate a satisfactory explanation for
its action including a ‘rational connection between the facts
found and the choice made.’” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Burlington Truck Lines v. United States, 371 U.S.
156, 168 (1962)). “Even when an agency explains its
decision with ‘less than ideal clarity,’ a reviewing court will
not upset the decision on that account ‘if the agency’s path
may reasonably be discerned.’” Alaska Dep’t of Env’tl
Conservation v. EPA, 540 U.S. 461, 497 (2004) (quoting
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974)). However, an agency’s
determination is arbitrary and capricious where it merely
provides “generic statements” to support its conclusion in
lieu of evidence that it has actually applied its substantive
expertise. Or. Nat. Desert Ass’n v. Rose, 921 F.3d 1185,
1191 (9th Cir. 2019). The Court “cannot defer to a void.”
Or. Nat. Desert Ass’n v. U.S. Forest Serv., 957 F.3d 1024,
1035 (9th Cir. 2020) (internal quotation marks omitted)
(quoting Or. Nat. Desert Ass’n v. Bureau of Land Mgmt.,
625 F.3d 1092, 1121 (9th Cir. 2010)).
The Forest Service has 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 that inhabit the Project area are “generally small”
within the meaning of the Roadless Rule. Problematically,
LOS PADRES FORESTWATCH V. USFS 17
the Forest Service fails to provide evidence of the average or
median dbh of the trees within the Tecuya Ridge Project area
at all. It is impossible to tell, from the record, which size
classes of trees inhabit the Project area and whether 21-inch
dbh trees can properly be considered “small” within those
classes. Instead, the Decision Memo approving the Project
merely contains a bare assertion—with no supporting
analysis—that the 21-inch dbh trees are “smaller trees”
consistent with the Roadless Area Conservation Rule.
The Briefing Paper accompanying the Decision Memo,
which references the Los Padres Land Management Plan,
also fails to provide clarity. The Los Padres Land
Management Plan defines large-diameter trees as those of
over 24-inches dbh. The Forest Service appears to argue that
any tree with a dbh of less than 24 inches can be considered
a “generally small diameter tree.” But the Court cannot
determine why, in the Forest Service’s view, the difference
between a “generally small” tree and a “large-diameter tree”
is merely three inches dbh because the Forest Service has
failed to provide any information that would help the Court
to do so. Indeed, the Land Management Plan’s declaration
that 24-inch dbh trees are large-diameter trees leads the
Court to conclude that a 21-inch dbh tree is, at best, a
medium-sized tree, not a “generally small” tree as
contemplated by the Roadless Rule.
Other evidence available in the record tends to confirm
that trees of up to 21-inches dbh are not “generally small.”
In an Environmental Assessment for another nearby project,
the Frazier Mountain Project, the Forest Service noted that
“larger diameter” trees were those with a dbh greater than
ten inches. Although the Forest Service contends that the
Frazier Mountain Project Environmental Assessment is
irrelevant here because that project thinned timber stands
18 LOS PADRES FORESTWATCH V. USFS
primarily overstocked with different tree species—Jeffrey
pine—the Court is not convinced. Jeffrey pine, a type of
coniferous tree, is a component of mixed-conifer forests and
a type of tree found within the Tecuya Project area. Because
the Frazier Project area is located in close proximity with the
Tecuya Ridge Project area and likely contains a similar stand
composition, the Forest Service has failed to justify its
determination that “larger diameter” trees in the Frazier
Project area have a dbh greater than ten inches while “small
diameter” trees in the Tecuya Ridge Project area have a dbh
of up to 21 inches.
Even assuming that the stand composition in the Frazier
Mountain Project area differs substantially from the stand
composition in the Tecuya Ridge Project area, the Forest
Service has failed to provide any data comparing the average
dbh of trees within the Frazier Mountain Project area with
the average dbh of trees in the Tecuya Ridge Project area to
support its conclusion that “small” trees in the Tecuya Ridge
are much larger than even the “large” trees on Frazier
Mountain. If the Forest Service had shown that trees on
Frazier Mountain have a generally smaller dbh on average
than the mixed conifer and pinyon-juniper trees on the
Tecuya Ridge, the Court might have deferred to its
determination that trees of up to 21 dbh in mixed conifer and
pinyon-juniper dominated stands in the Project area are
properly considered “small.” But the Forest Service did not
attempt to articulate this explanation or, indeed, provide any
information at all on the average dbh of the trees located
within the Tecuya Project area.
In attempting to support its determination that the Project
Decision Memo complies with the Roadless Rule, the Forest
Service notes that the Roadless Rule’s definition of generally
small timber is “flexible” and allows Forest Service experts
LOS PADRES FORESTWATCH V. USFS 19
to determine what timber is “generally small” based on
project-specific goals and ecological considerations. It
argues that 21-inch dbh trees must be removed within the
Project area to “meet the desired conditions of the proposed
[Project] to a 90 percent effective level,” and urges the Court
defer to its “technical expertise.” But although the Forest
Service may indeed apply its technical expertise to
determine which “generally small” trees pose an
uncharacteristically high risk of fire spread and intensity, see
Special Areas; Roadless Area Conservation, 66 Fed. Reg. at
3,257, the Forest Service provides no evidence that it has
actually performed the technical analysis necessary to
identify them.
For instance, the Decision Memo for the Project states
that the Forest Service conducted “stand exams” in the
project area, “coupled with walk-throughs by Forest
professionals and data from other sources,” which “confirm
that existing stand density and structure put the area at risk
from insects and disease, as well as from wildfire.” But this
proclamation pertains solely to the Forest Service’s rationale
for the Project—it does not substantiate the Forest Service’s
determination that 21-inch dbh trees are “generally small” or
why 21-inch dbh trees, specifically, are creating the risk of
wildfire the Project seeks to ameliorate. In fact, the Forest
Service has never explained what a “stand exam” or “walk-
through” entails, and how the data gleaned from those
activities helped it to determine that the Project complies
with the Roadless Rule. By failing to explain why 21-inch
dbh trees are the type of “generally small trees” the Roadless
Rule permits the Forest Service to harvest, the Forest Service
has failed to show that it has complied with the intent of the
Roadless Rule to “limit the cutting, sale, or removal of
timber to those areas that have become overgrown with
20 LOS PADRES FORESTWATCH V. USFS
smaller diameter trees.” Special Areas; Roadless Area
Conservation, 66 Fed. Reg. at 3,257.
To be clear, the Court does not require the Forest Service
to undertake any particular method of providing a reasoned
explanation for its choice to designate trees of up to 21-
inches dbh as “generally small.” The United States Supreme
Court has continually affirmed that “agencies should be free
to fashion their own rules of procedure.” Vermont Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
435 U.S. 519, 544 (1978). “[A] reviewing court may not,
after determining that additional evidence is requisite for
adequate review, proceed by dictating to the agency the
methods, procedures, and time dimension of the needed
inquiry.” Fed. Power Comm’n v. Transcon. Gas Pipe Line
Corp., 423 U.S. 326, 333 (1976). But where “the decision
of the agency ‘is not sustainable on the administrative record
made, then the . . . decision must be vacated and the matter
remanded . . . for further consideration.” Id. at 331 (quoting
Camp v. Pitts, 411 U.S. 138, 143 (1973)).
The Forest Service’s determination that the Project is
consistent with the Roadless Area Conservation Rule is not
sustainable on the current administrative record. The Court
cannot discern how the Forest Service arrived at the 21-inch
dbh number. The Court thus remands this case to the Forest
Service to substantiate its conclusion that 21-inch dbh trees
are “generally small” within the project area, consistent with
the Roadless Rule. See Blue Mountains Biodiversity Project
v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998) (finding
the Forest Service’s decision to be arbitrary and capricious
where the EA “contain[ed] virtually no references to any
material in support of or in opposition to its conclusions”).
LOS PADRES FORESTWATCH V. USFS 21
B. The Forest Service’s Determination that the
Project Will “Maintain or Improve” the
Antimony Roadless Area’s Characteristics Is Not
Arbitrary and Capricious.
Appellants further allege that the Forest Service violated
36 C.F.R. § 294.13 of the Roadless Rule by failing to
provide “any explanation at all” to establish that the logging
of 21-inch dbh trees will “maintain or improve one or more
of the roadless area characteristics as defined in § 294.11.”
But in this case, the Forest Service has met its obligations
under State Farm to “articulate a satisfactory explanation for
its action including ‘a rational connection between the facts
found and the choice made.’” State Farm Mut. Auto. Ins.
Co., 463 U.S. at 43 (quoting Burlington Truck Lines,
371 U.S. at 168).
The Forest Service avers that the Project will maintain or
improve habitat conditions for threatened, endangered,
proposed, candidate, and sensitive species, a roadless area
characteristic defined by 36 C.F.R. § 294.11. That assertion
is substantiated in the Decision Memo for the Project, which
includes the Forest Service’s determination that “in some
situations, cutting or removal of small diameter timber [in
the Project area] may be needed for recovery or conservation
of threatened, endangered, proposed or sensitive species to
improve stand structure or reduce encroachment into
meadows or other natural openings.” For instance, the
California condor, an endangered species, frequently flies
over the Project area and may use the Project area to roost or
nest. The Forest Service concluded that the Project “would
benefit California condors by treating fuels to help prevent
large, high intensity stand replacement wildland fire that
could eliminate roosting habitat over a larger area” and
might “improve condor foraging habitat by creating a more
22 LOS PADRES FORESTWATCH V. USFS
open area that facilitates finding and catching prey by birds
like condors that are dependent upon sight for locating
food.”
The Project area also contains two sensitive botanical
species, Hall’s Woolly Sunflower and Flaxleaf Monardella.
In its Botany Report for the Project, the Forest Service
concluded that the Project would maintain or improve
habitat suitability for both of these species because the
Project will reduce the “risk of mortality from moderate to
high intensity wildfires.” In addition, it concluded that
reducing stand density may provide indirect beneficial
impacts for these species because the Project will create or
maintain open areas which may provide additional suitable
habitat. On this record, the Forest Service’s determination
that the Project will maintain or improve at least one of the
Antimony Roadless Area’s characteristics was not arbitrary
and capricious.
II. The Forest Service’s Decision to “Categorically
Exclude” the Tecuya Ridge Project from Review in
an EA or EIS Was Not Arbitrary and Capricious.
Appellants further contend that the Forest Service’s
decision to approve the Project violated NEPA. First,
Appellants argue that the Forest Service improperly
authorized the Project pursuant to a Categorical Exclusion.
Second, Appellants argue that the Forest Service’s decision
to categorically exclude the Tecuya Ridge Project from
Review in an EA or EIS was arbitrary and capricious
because the Forest Service failed to analyze fuelbreak
efficacy as an “extraordinary circumstance” that would
prevent it from applying a Categorical Exclusion to the
Project.
LOS PADRES FORESTWATCH V. USFS 23
A. The Forest Service’s Determination that CE-6
Applies to the Project Is Not Arbitrary and
Capricious.
NEPA, 42 U.S.C. § 4321 et seq., “declares a broad
national commitment to protecting and promoting
environmental quality.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 348 (1989). It mandates
federal agencies to prepare an environmental impact
statement (“EIS”) for proposed “[f]ederal actions
significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). This statutory
requirement ensures that federal agencies thoroughly
consider “detailed information concerning significant
environmental impacts” before approving certain actions
and that they make this information “available to [a] larger
audience that may also play a role in both the
decisionmaking process and the implementation of that
decision.” Robertson, 490 U.S. at 349.
To effectuate these requirements, Congress established a
Council on Environmental Quality (CEQ), which
promulgates “binding regulations implementing the
procedural provisions of NEPA.” Id. at 354; 42 U.S.C.
§ 4344(4). CEQ regulations allow an agency to first prepare
an environmental assessment (“EA”) for a proposed project
to determine whether the environmental impact of the
project is “significant enough to warrant preparation of an
EIS.” Blackwood, 161 F.3d at 1212 (citing 40 C.F.R.
§ 1508.9).
But an agency may avoid preparing either an EA or an
EIS altogether by determining that a proposed action fits
within certain “categorical exclusions.” 40 C.F.R. § 1508.4.
A “Categorical Exclusion” (“CE”) is an action which a
federal agency has found “do[es] not individually or
24 LOS PADRES FORESTWATCH V. USFS
cumulatively have a significant effect on the human
environment.” Id. Normally, proposed actions that fit
within a categorical exclusion do not require an agency to
prepare either an environmental impact statement or an
environmental assessment. Id.In approving the Tecuya Ridge Project, the Forest
Service determined that Categorical Exclusion 6 (CE-6)
applied and exempted the Project from review in an EA or
EIS. CE-6 applies to “[t]imber stand and/or wildlife habitat
improvement activities that do not include the use of
herbicides or do not require more than 1 mile of low standard
road construction,” which may include activities such as:
i. Girdling trees to create snags;
ii. Thinning or brush control to improve
growth or to reduce fire hazard including
the opening of an existing road to a dense
timber stand;
iii. Prescribed burning to control understory
hardwoods in stands of southern pine;
and
iv. Prescribed burning to reduce natural fuel
build-up and improve plant vigor.
36 C.F.R. § 220.6(e)(6).
Appellants challenge this action, contending that CE-6
does not apply to the Tecuya Ridge Project because CE-6
permits only precommercial thinning and the Project
authorizes commercial thinning. The Forest Service
believes that CE-6 applies to the Tecuya Ridge project
because the Project does not include the use of herbicides or
LOS PADRES FORESTWATCH V. USFS 25
require road construction and because thinning is a timber
stand improvement activity. The Forest Service interprets
CE-6 to allow it to commercially thin trees, as long as the
commercial thinning is used to accomplish forest
improvement activities.
We do not decide this question here. In the related case
Mountain Communities for Fire Safety, Los Padres
ForestWatch, and Earth Island Institute v. Kevin Elliott and
the United States Forest Service, No. 20-55660 (9th Cir.
Feb. 4, 2022), this Court agreed with the Forest Service’s
reading of CE-6. Therefore, the sole remaining question
before the Court is whether the Forest Service’s decision to
apply CE-6 to the Project was arbitrary and capricious
because it failed to analyze fuelbreak efficacy as a potential
“extraordinary circumstance” that would prevent application
of any CE to the Project.
B. The Forest Service’s Determination that No
Extraordinary Circumstances Prevent its
Application of CE-6 to the Project Is Not
Arbitrary and Capricious.
Even if a proposed project fits within a CE category, the
Forest Service cannot opt out of further analysis and
documentation in an EA or EIS unless “there are no
extraordinary circumstances related to the proposed action.”
36 C.F.R. § 220.6(a). An “extraordinary circumstance” is a
circumstance “in which a normally excluded action may
have a significant environmental effect.” 40 C.F.R.
§ 1508.4. 36 C.F.R. § 220.6(b) provides that:
(1) Resource conditions that should be
considered in determining whether
extraordinary circumstances related to a
proposed action warrant further analysis
26 LOS PADRES FORESTWATCH V. USFS
and documentation in an EA or an EIS
are:
(i) Federally listed threatened or
endangered species or designated
critical habitat, species proposed
for Federal listing or proposed
critical habitat, or Forest Service
sensitive species;
(ii) Flood plains, wetlands, or
municipal watersheds;
(iii) Congressionally designated areas,
such as wilderness, wilderness
study areas, or national recreation
areas;
(iv) Inventoried roadless area or
potential wilderness area;
(v) Research natural areas;
(vi) American Indians and Alaska
Native religious or cultural sites;
and
(vii) Archaeological sites, or historic
properties or areas.
36 C.F.R. § 220.6(b).
In addition to these resource conditions, Appellants
contend that the Forest Service should have analyzed the
Project’s impacts to public safety as an additional
LOS PADRES FORESTWATCH V. USFS 27
“extraordinary circumstance.” Specifically, Appellants
contend that the Project’s potential impact to public safety is
an “extraordinary circumstance” that prevents the Forest
Service from authorizing the Project pursuant to a CE
because the Forest Service selected a project location that
will not reduce the risk of wildfire to the Mt. Pinos
Communities and is not consistent with the Mt. Pinos
Community Wildfire Protection Plan.
That plan, developed in 2006 by the Mt. Pinos
Communities Fire Safe Council, which includes
representatives from the U.S. Forest Service, identifies three
zones that comprise the wildland urban interface. The area
where man-made structures are located, like homes, is called
the “Defense Zone.” The “Threat Zone” is a one-quarter
mile buffer around the Defense Zone that “needs specific
and intense management and treatments” to “reduce the
spread and intensity of fire developing or moving” towards
the Defense Zone. The “Wildland Zone” is the area beyond
the “Threat Zone.” Approximately ninety-three percent of
the Proposed Project lies in the Wildland Zone, while the
remaining seven percent of the Project is located in the
Threat Zone.
Appellants contend that the Forest Service’s decision to
construct a fuelbreak in the Wildland Zone, instead of in the
Threat Zone, is arbitrary and capricious. They note that the
original, 2006 version of the Community Wildfire Protection
Plan did not include any projects located within the Wildland
Zone, although the Plan was updated to add the Tecuya
Ridge Fuel Break Project, as well as other projects located
in the Wildland Zone, in 2009.
28 LOS PADRES FORESTWATCH V. USFS
Appellants also point to the results of a scientific study 8
showing that “constructing fuel breaks in remote,
backcountry locations will do little to save homes during a
wildfire because most firefighters will be needed to protect
the wildland-urban interface, and fires will not be stopped by
those fuel breaks that are located farther away.” That study
concluded that “[f]irefighter access to fuel breaks was the
most influential factor in fuel treatment outcome” for the Los
Padres Forest.
The Forest Service, however, was not required to
examine impacts to public safety or fuelbreak location
efficacy in analyzing whether extraordinary circumstances
prevented the use of CE-6 for the Project. Consistent with
36 C.F.R. § 220.6, the Forest Service analyzed each resource
condition and determined that the Project would have “no
significant impact” on each. Although the list of resource
conditions located at 36 C.F.R. § 220.6(b) is not intended to
be exhaustive, NEPA merely permits, rather than requires,
the Forest Service to consider additional factors during its
extraordinary circumstances review. See, e.g., NEPA
Procedures, 73 Fed. Reg. 43,084, 43,091 (July 24, 2008)
(“The list of resource conditions is intended as a starting
place and does not preclude consideration of other factors or
conditions by the responsible official with the potential for
significant environmental effects.”). Courts have therefore
rejected the contention that the Forest Service is required to
analyze additional factors on top of the specified resource
conditions in determining whether extraordinary
circumstances prevent the application of a CE. See All. for
the Wild Rockies, 979 F. Supp. at 1127 (finding that the Fish
8
Syphard et al., Comparing the Role of Fuel Breaks Across Southern
California National Forests, Forest Ecology and Mgmt., Feb. 2011,
at 2038–48.
LOS PADRES FORESTWATCH V. USFS 29
and Wildlife Service did not need to analyze certain factors
set out under a different regulation related to bull trout
habitat in determining “no extraordinary circumstances”
prohibited its application of CE-6 to a proposed project).
Regardless, the Forest Service’s decision to locate the
Tecuya Ridge Project in the “Wildland Zone” instead of the
“Threat Zone” was not arbitrary and capricious. The Los
Padres National Forest Strategic Community Fuelbreak
Improvement Project Fire/Fuels Report states that while
most existing fuelbreaks are in “high hazard chaparral
areas,” a few fuelbreaks, like the one contemplated here, “are
in coniferous forest and serve to limit fire spread from or
towards communities or timber stands in poor condition.”
The Cuddy Valley/Tecuya Stand Improvement Projects
Fire/Fuels Report also notes that “[t]o reduce the threat of
spotting distance from firebrands (spotting potential), fuels
would need to be reduced both near and at some distance
from the WUI [Wildland Urban Interface].” (emphasis
added). The Decision Memo for the Project further explains
that the Forest Service chose the project location to
strategically “connect to past and future treatment areas on
both public and adjacent private lands.” It was therefore
reasonable for the Forest Service to conclude that the Project
location will “provide a buffer between developed areas and
wildlands,” one of the goals of the Mt. Pinos Community
Wildfire Protection Plan.
Nor is there evidence that the proposed fuelbreak will be
constructed in a “remote backcountry location” that will fail
to facilitate firefighter access. The Tecuya Ridge fuelbreak
will be located around communities within the wildland-
urban intermix, including Pine Mountain Club, Pinon Pines
Estates, Lake of the Woods, and Frazier Park. Sixty-six
percent of the Project overlaps with the Antimony IRA,
30 LOS PADRES FORESTWATCH V. USFS
which is linearly shaped and adjacent to major roadways.
There are 3.9 miles of Forest system road, 1.1 miles of
county roads, and approximately 1.5 miles of Forest
permitted roads in the Antimony IRA. Firefighters may
access the Antimony IRA via developed roads and trails.
Thus, the fuelbreak location does not appear to be too remote
for firefighters to approach in the case of wildfire.
Whether the location of the fuelbreak proposed for the
Tecuya Ridge Project will serve to protect the Mt. Pinos
Communities from wildfire is “a classic example of a factual
dispute the resolution of which implicates substantial agency
expertise.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360,
376 (1989). Because the Forest Service has substantiated its
decision to place the Tecuya Ridge Project within the
Wildland Zone with evidence in the record, its decision was
not arbitrary and capricious. The Court declines to substitute
Appellants’ judgment for that of the agency on this point.
See Morongo Band of Mission Indians v. Fed. Aviation
Admin., 161 F.3d 569, 573 (9th Cir. 1998).
CONCLUSION
Because the Forest Service’s determination that the
Tecuya Ridge Shaded Fuelbreak Project complies with the
Roadless Area Conservation Rule is arbitrary and capricious,
we VACATE the district court’s order granting summary
judgment to Appellees and the Forest Service’s Decision
Memo approving the Tecuya Ridge Shaded Fuelbreak
Project and REMAND this case to the Forest Service to
provide adequate substantiation for its determination that 21-
inch dbh trees are “generally small diameter timber” within
the Project Area.
LOS PADRES FORESTWATCH V. USFS 31
R. NELSON, Circuit Judge, dissenting:
I agree with Sections I.B and II of the majority opinion.
As the majority recognizes, the Forest Service “has
adequately explained its determination that the Project will
maintain or improve one of the roadless area
characteristics.” Maj. Op. 14. The majority wrongly holds,
however, that the Forest Service’s determination that 21-
inch dbh trees are “small diameter” was arbitrary or
capricious under the Administrative Procedure Act. I
therefore respectfully dissent as I would deny the petition for
review.
Under the Roadless Rule, the Forest Service can only
approve the commercial thinning of “generally small
diameter timber.” Special Areas; Roadless Area
Conservation, 66 Fed. Reg. 3244, 3273 (Jan. 12, 2001)
(previously codified at 36 C.F.R. § 294.13). The majority
assumes that this requires the Forest Service to explain in
detail why 21 inches dbh is small diameter. But such a
detailed explanation is not required. As long as the Forest
Service considers the factors laid out in the relevant federal
regulations, the agency need not provide a separate
exhaustive explanation of what trees are generally small
diameter.
As the majority acknowledges, the regulations do not
define what constitutes “generally small diameter timber.”
Maj. Op. 16. A single definition for “small diameter timber”
makes no sense; such determinations must be project-
specific and guided by local ecological considerations in
which the Forest Service has expertise. 66 Fed. Reg.
at 3257. The regulations require only that the Forest Service
use its expertise to determine which trees are small diameter
depending on “the great variation in stand characteristics
between vegetation types in different areas,” “the
32 LOS PADRES FORESTWATCH V. USFS
characteristics and interrelationships of plant and animal
communities associated with the site and the overall
landscape,” and how the “cutting or removal” of trees will
“affect the potential for future development of the stand.” Id.
The Forest Service adequately complied with this
administrative directive.
Over the course of preparing the Tecuya Ridge Project
Proposal, the Forest Service thoroughly analyzed local
plant-animal relationships and the future development of the
tree stands in the Project, including how removal “would
mimic the role and legacies of natural disturbance regimes.”
See 66 Fed. Reg. at 3257. It completed a botany report, a
fire fuels report, two decision memoranda, and a briefing
paper that specifically analyzed whether the Project
complied with CE-6 and the Roadless Rule. Silvicultural
specialists surveyed and conducted exams and walk-
throughs in the Project area. The Forest Service identified
forest stands that were overstocked due to their size and
density, subject to insect attack due to resource competition,
and at imminent risk of creating a “fire ladder” fuel profile.
It determined that forest stands over 120 square feet per acre
needed to be thinned to at least 80 feet per acre. It calculated
the size of trees that should be retained for California
condors and northern goshawks. And it decided that—to
meet the stated goals that the majority accepts, Maj.
Op. 15—only smaller diameter trees up to 21 inches dbh
should be cut for safety or operability reasons, especially
early seral species including Jeffrey and pinyon pine.
After this comprehensive ecological analysis, the Forest
Service concluded that trees under 21 inches dbh “needed to
be thinned to meet the desired conditions of the proposed
action to a 90 percent effective[ness] level.” As the majority
notes, “[e]ven when an agency explains its decision with
LOS PADRES FORESTWATCH V. USFS 33
‘less than ideal clarity,’ a reviewing court will not upset the
decision on that account ‘if the agency’s path may
reasonably be discerned.’” Alaska Dep’t of Env’t
Conservation v. EPA, 540 U.S. 461, 497 (2004) (quoting
Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974)). Here, the record allows us to
reasonably discern the Forest Service’s “path” in
considering the regulatory requirements. See id. That is
enough to survive our deferential review for arbitrary or
capricious agency action. See Nat’l Family Farm Coal. v.
EPA, 966 F.3d 893, 923 (9th Cir. 2020) (agency decision is
arbitrary or capricious “only if the agency relied on factors
Congress did not intend it to consider, . . . or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise” (citation omitted)).
The majority reaches the opposite conclusion by
improperly comparing the Tecuya Ridge Project here to the
Frazier Mountain Project, which it says “likely contains a
similar stand composition.” Maj. Op. 18. One of three
alternatives presented in that Project deemed trees large
diameter at 10 inches dbh. True, the Tecuya Ridge Project
and the Frazier Mountain Project are located nearby in the
same national forest. But the Los Padres National Forest
spans approximately 1.75 million acres, ranges in elevation
by over 8,000 feet, and consists of two separate land
divisions. 1 As the Forest Service explains, the two projects
contain different compositions of tree species. Nothing in
the record undermines that finding. Judges are hardly
1
Los Padres National Forest, Nat’l Forest Found.,
https://www.nationalforests.org/our-forests/find-a-forest/los-padres
(last visited Oct. 28, 2021); Los Padres National Forest – Animals
and Plants, U.S. Forest Serv., https://www.fs.usda.gov/detailfull/lpn
f/about-forest/?cid=FSM9_034061 (last visited Oct. 28, 2021).
34 LOS PADRES FORESTWATCH V. USFS
equipped, as the majority does, to second-guess the agency’s
evaluation of a forest stand’s composition. 2 Especially when
the regulations require that the Forest Service’s analysis be
done on a project-by-project basis, the agency need not
explain why small diameter may vary between projects. We
cannot rely on the Frazier Mountain Project to provide a
workable definition of small diameter trees for the Tecuya
Ridge Project. 66 Fed. Reg. at 3257 (determinations best
made through “project specific . . . analyses”).
We likewise cannot assume, as the majority does, that
because the Los Padres Land Management Plan describes
large diameter trees as greater than 24 inches dbh, trees up
to 21 inches dbh are “at best, . . . medium sized.” Maj.
Op. 17. The Plan’s reference to 24 inches dbh as large
diameter only refers to “shade intolerant conifer species.”
According to the record, shade-intolerant conifers include
ponderosa pine, which are not listed as within the Project.
Nothing in the record suggests that the trees in the Project
are shade intolerant. Further, if large diameter trees, sixteen
years ago when the Plan was adopted, were “old growth”
trees, then today those old growth trees would be even larger.
Even if we could rely on the Plan’s reference, small diameter
trees today would be smaller than or even up to 24 inches
dbh. The federal regulations do not suggest that the Forest
Service is bound by past data. Instead, they direct the Forest
Service to consider the “potential for future development of
the stand.” 66 Fed. Reg. at 3257. In reality, all trees can be
2
For instance, the majority states that the Tecuya Ridge Project is
filled with “Singleleaf pinyon-California juniper” trees. Maj. Op. 6. But
“singleleaf pinyon” and “California juniper” are two different tree
species, and “Single-leaf pinyon-California juniper” in the Los Padres
Land Management Plan describes a woodland including trees of those
two species.
LOS PADRES FORESTWATCH V. USFS 35
small or large diameter—as long as the record shows, as it
does here, that the Forest Service adequately considered the
regulatory factors.
Finally, the majority ignores basic rules of
administrative law. The majority correctly notes that we
cannot “require the Forest Service to undertake any
particular method of providing a reasoned explanation for its
choice.” Maj. Op. 20. But then it ignores that principle and
finds that the Forest Service failed to provide “the average
or median dbh of the trees.” Id. at 16–17. Neither the
Roadless Rule nor the related regulations require such an
analysis. To the contrary, the regulations list very different
considerations—namely, local “vegetation types in different
areas” and the “future development of the stand”—which
seems to exclude the average or mean dbh as a basis for
determining small diameter. 66 Fed. Reg. at 3257. Indeed,
the majority’s requirement to analyze the average or mean
dbh would be particularly detrimental to old growth forest
stands because it would allow thinning of larger trees
without consideration of the regulatory factors. Regardless,
the court may not “impose upon the agency its own notion
of which procedures are best.” Vt. Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 549 (1978)
(internal quotation marks omitted).
The right question is not “what trees objectively fall into
the category of small diameter trees?”—it is “did the Forest
Service perform project-specific analyses to support its
conclusion that less-than-21-inch dbh trees should be
thinned under project-specific circumstances?” The Forest
Service did not seek to establish a one-size-fits-all rule that
21 inches dbh was small diameter in all projects. Instead, it
determined that the Tecuya Ridge Project included
mechanically thinning trees that were less than 21 inches dbh
36 LOS PADRES FORESTWATCH V. USFS
and that the portion of the Project encompassing the
Antimony IRA complies with the Roadless Rule. 3 The
Forest Service explicitly stated that “[t]his diameter would
be needed to be thinned to meet the desired conditions.”
This conclusion was neither arbitrary nor capricious under
the discretion granted to the Forest Service by federal
regulations. I therefore respectfully dissent.
3
About 48 percent of the total 40,153 acres of the Antimony IRA,
which overlaps with the Project, is pinyon woodlands, sagebrush, and
other conifers. Tree thinning would occur on only 1,075 acres of the
Antimony IRA, or less than 3 percent of the IRA.