throbber
FILED
`United States Court of Appeals
`Tenth Circuit
`June 12, 2020
`Christopher M. Wolpert
`UNITED STATES COURT OF APPEALS
`Clerk of Court
`
`PUBLISH
`
`TENTH CIRCUIT
`
`WILD WATERSHED; MULTIPLE
`CHEMICAL SENSITIVITIES TASK
`FORCE; DR. ANN MCCAMPBELL,
`M.D.; JAN BOYER,
`
`Plaintiffs-Appellants,
`
`v.
`SANFORD HURLOCKER, District
`Ranger, Santa Fe National Forest;
`JAMES MELONAS, Supervisor, Santa
`Fe National Forest; CAL JOYNER,
`Southwest Regional Forester, U.S.
`Forest Service; and VICTORIA
`CHRISTIANSEN, Chief of the U.S.
`Forest Service, an agency of the U.S.
`Dept. of Agriculture,
`
`Defendants-Appellees.
`
`No. 19-2106
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`(D.C. NO. 1:18-CV-00486-JAP-SCY)
`
`Thomas J. Woodbury, Forest Defense, P.C., Missoula, Montana, for Appellants.
`
`Eric Grant, Deputy Assistant Attorney General, Environment and National
`Resources Division, U.S. Department of Justice (Andrew C. Mergen and Andrew
`A. Smith, Attorneys, Environment and National Resources Division, U.S.
`Department of Justice, and Stephen A. Vaden, General Counsel and Dawn
`Dickman, Attorney, Office of General Counsel, U.S. Department of Agriculture,
`with him on the brief), Washington, D.C., for Appellees.
`
`

`

`Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.
`
`TYMKOVICH, Chief Judge.
`
`The United States Forest Service approved two forest thinning projects in
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`the Santa Fe National Forest pursuant to statutory authority granted by a 2014
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`amendment to the Healthy Forests Restoration Act (HFRA). By thinning the
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`forest and then conducting prescribed burns in the project areas, the Forest
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`Service aimed to reduce the risk of high-intensity wildfires and tree mortality
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`related to insects and disease. Certain environmental organizations and
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`individuals (collectively Wild Watershed) challenged the projects’ approval under
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`the Administrative Procedure Act (APA). They assert the Forest Service1 failed
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`to comply with the National Environmental Policy Act (NEPA) and HFRA. The
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`district court rejected these claims.
`
`We similarly find the Forest Service complied with its obligations under
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`NEPA and HFRA when it approved the projects. The Forest Service adequately
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`considered the projects’ cumulative impacts as well as their potential effects on
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`sensitive species in the area and the development of old growth forest. We
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`therefore AFFIRM.
`
`1 Appellees are employees of the Santa Fe National Forest and United
`States Forest Service whom Wild Watershed sued in their official capacities only.
`
`-2-
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`

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`I. Background
`
`A. Statutory and Regulatory Frameworks
`
`1. National Environmental Policy Act
`
`NEPA requires federal agencies to analyze environmental consequences
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`before initiating actions that potentially affect the environment. The Act has two
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`broad aims. First, it “places upon an agency the obligation to consider every
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`significant aspect of the environmental impact of a proposed action.” Forest
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`Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir. 2010).
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`Second, it ensures “that the agency will inform the public that it has indeed
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`considered environmental concerns in its decisionmaking process.” Id. NEPA
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`does not mandate any particular substantive result. Instead, it “prescribes the
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`necessary process” that must accompany agency action. Robertson v. Methow
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`Valley Citizens Council, 490 U.S. 332, 350 (1989).
`
`One of the hallmarks of NEPA is that agencies must prepare an
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`environmental impact statement (EIS) when a proposed project will “significantly
`
`affect[] the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An EIS
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`“involves the most rigorous analysis” that an agency may be required to perform.
`
`See Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 736 (10th Cir. 2006). NEPA’s
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`implementing regulations establish a tiered framework for agencies to consider in
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`-3-
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`deciding whether an EIS is necessary.2 The regulations contemplate three
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`categories into which a proposed project might fall. First, the action may be of
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`the type that is generally so significant that it “[n]ormally requires an
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`environmental impact statement.” 40 C.F.R. § 1501.4(a)(1). Next, the action may
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`be of uncertain significance, in which case the agency will prepare an
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`environmental assessment (EA)—a more concise document designed to determine
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`whether a full EIS is necessary. 40 C.F.R. § 1501.4(b)–(c). Finally, the action
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`may be categorically excluded, meaning it normally does not require either an EA
`
`or an EIS. 40 C.F.R. § 1501.4(a)(2).
`
`Categorical exclusions come in one of two varieties: those established by
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`regulations and those established by statutes. Implementing regulations define
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`regulatory categorical exclusions as “a category of actions which do not
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`individually or cumulatively have a significant effect on the human environment
`
`and which have been found to have no such effect in procedures adopted by a
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`Federal agency . . . and for which, therefore, neither an environmental assessment
`
`nor an environmental impact statement is required.” 40 C.F.R. § 1508.4.
`
`2 The Council on Environmental Quality is responsible for implementing
`NEPA’s requirements by promulgating binding regulations. See 42 U.S.C.
`§§ 4342, 4344(3); 40 C.F.R. §§ 1501–08. Agencies such as the Forest Service
`comply with the Council’s regulations by adopting supplemental procedures. See,
`e.g., 36 C.F.R. § 220.1 et seq.
`
`-4-
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`

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`Although regulatory categorical exclusions generally do not require an EA
`
`or an EIS, implementing regulations provide that where “extraordinary
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`circumstances” exist such that “a normally excluded action may have a significant
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`environmental effect,” the agency must engage in one of the more thorough forms
`
`of review before proceeding. See 40 C.F.R. § 1508.4; 36 C.F.R. § 220.6(b).
`
`Thus, when relying on a regulatory categorical exclusion, the Forest Service
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`performs minimal procedures to assess whether such extraordinary circumstances
`
`exist. 36 C.F.R. § 220.6(b). We refer to these procedures as extraordinary
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`circumstances review.3
`
`In addition to regulatory categorical exclusions, Congress has intervened to
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`establish certain statutory categorical exclusions. See, e.g., 16 U.S.C. § 6591b.
`
`Many of these, including the provision at issue in this appeal, are codified in
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`HFRA.
`
`3 In conducting extraordinary circumstances review, the Forest Service
`considers the existence of certain “[r]esource conditions,” in the project area,
`including “[i]nventoried roadless area[s],” “potential wilderness area[s],” and
`“Forest Service sensitive species.” 36 C.F.R. § 220.6(b)(1). The mere presence
`of resource conditions does not preclude the agency relying on a categorical
`exclusion. Instead, it is the “degree of the potential effect of a proposed action on
`the[] resource conditions that determines whether extraordinary circumstances
`exist,” warranting an EA or EIS. Id.
`
`-5-
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`

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`2. Healthy Forests Restoration Act
`
`HFRA was originally enacted in 2003 “to reduce wildfire risk to
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`communities, municipal water supplies, and other at-risk Federal land through a
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`collaborative process of planning, prioritizing, and implementing hazardous fuel
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`reduction projects.” 16 U.S.C. § 6501(1). In 2014, Congress amended HFRA,
`
`establishing the statutory categorical exclusion at issue here—the Insect and
`
`Disease exclusion. See 16 U.S.C. § 6591b.
`
`This categorical exclusion authorizes “priority projects” to protect forests
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`from insect infestations and disease. See 16 U.S.C. § 6591a–b. It contemplates a
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`two-step process for approving such projects. The Forest Service must first
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`designate certain “landscape-scale areas” part of an insect and disease treatment
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`program. 16 U.S.C. § 6591a. Then, the Forest Service may carry out projects
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`within those areas provided they meet the statutory criteria. Id. § 6591b.
`
`To qualify, a project must (1) meet certain limitations related to the
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`building of new roads, location, and size, excluding projects of more than 3,000
`
`acres; (2) “maximize[] the retention of old-growth and large trees, as appropriate
`
`for the forest type, to the extent that the trees promote stands that are resilient to
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`insects and disease;” (3) “consider[] the best available scientific information to
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`maintain or restore the ecological integrity;” (4) be “developed and implemented
`
`through a collaborative process;” (5) “be consistent with the land and resource
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`management plan” for the area; and (6) involve “public notice and scoping.” 16
`
`U.S.C. § 6591b. Where such requirements are met, HFRA provides that the
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`project “may be . . . considered an action categorically excluded from the
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`requirements of [NEPA].” Id. § 6591b(a)(1).
`
`B. The Hyde Park and Pacheco Canyon Projects
`
`The Forest Service approved the two projects at issue here—the Hyde Park
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`Wildland Urban Interface Project and the Pacheco Canyon Forest Resiliency
`
`Project—pursuant to the authority granted by the Insect and Disease exclusion.
`
`App. at 45, 55 (citing 16 U.S.C. § 6591b). The details of the projects are similar.
`
`The Hyde Park project covers 1,840 acres approximately ten miles northeast of
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`Santa Fe. The Pacheco Canyon project covers 2,042 acres three miles farther
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`north.
`
`The forest in each project area comprises mostly ponderosa pine with some
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`Douglas fir, pinon juniper, and mixed conifer stands. Due in part to years of fire
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`suppression, the trees in the project areas have grown unnaturally dense.
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`Specifically, young and smaller trees make up a high percentage of the forest.
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`Because of this density, many of the small trees cannot access sufficient water
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`and sunlight. This stunts the trees and renders them vulnerable to insect and
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`disease outbreaks. The combination of dense growth and disease risk has made
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`the forest susceptible to a particularly intense type of fire—a crown fire—which
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`-7-
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`not only burns through the understory as a lower intensity fire might, but also
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`reaches the larger trees in the overstory.
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`Due to these risks, the Forest Service proposed thinning the forest and
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`applying prescribed burns in the project areas to “combat insect and disease,
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`restore natural fire regimes, improve wildlife habitat, and reduce the risk of
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`uncharacteristic fire effects.” App. at 53. Not every acre will be thinned or
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`burned. Thus, after the treatments, a mix of tree densities will remain.
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`The thinning would target trees less than 16 inches in diameter.4 Trees
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`larger than 16 inches in diameter would not be thinned except where disease or
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`other unusual circumstances warrant it. The felled trees would then be piled.
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`Subsequent prescribed burns would be utilized to reduce the thinned and piled
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`material and otherwise treat the understory. These burns roughly approximate the
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`effects of naturally occurring fires, which historically occurred every five to ten
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`years, “clearing out the understory while the thick-barked, fire resistant over-story
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`survived.” App. at 54. Although not designed to affect the larger trees in the
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`overstory, approximately 10 to 30 percent of the trees larger than 16 inches in
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`diameter may succumb to the controlled burns. According to the Forest Service,
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`similar procedures would need to be repeated every 10 to 15 years to continue
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`replicating naturally occurring wildfire patterns.
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`4 The 16-inch limit appears to stem from recommendations contained in
`scientific literature consulted by the Forest Service.
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`-8-
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`For both projects, considerable acreage is located within various
`
`inventoried roadless areas. But no new roads would be needed to complete either
`
`project, and the Forest Service has not planned any new road construction in
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`association with these projects.
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`The projects were not conceived in isolation. Instead, both projects are part
`
`of a larger initiative in the Santa Fe region conducted by the Greater Santa Fe
`
`Fireshed Coalition.5 As part of this endeavor, the Forest Service works with state,
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`local, tribal, and environmental organizations to address the risk of wildfire in the
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`lands around Sante Fe, which cover more than 100,000 acres and are referred to
`
`as the Santa Fe Fireshed. The Coalition’s primary goal is to “identify and
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`implement high priority on-the-ground projects that make the Fireshed and its
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`communities more resilient to wildfire, while maintaining and restoring resilient
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`landscapes.” App. at 33. The Hyde Park and Pacheco Canyon projects represent
`
`the Forest Service’s first efforts to contribute to the Coalition’s goal.6
`
`5 The Coalition’s members include the Forest Service, the City of Santa Fe,
`Santa Fe County, the Tesuque Pueblo, the Nature Conservancy, the Santa Fe
`Watershed Association, the Santa Fe Fat Tire Society, and the U.S.G.S. Jemez
`Field Station.
`
`6 The Hyde Park project was initially considered in 2005—prior to the
`formation of the Coalition—but it was set aside for further analysis. It was then
`reconsidered as part of the Forest Service’s contribution towards the Coalition’s
`goal.
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`-9-
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`On February 14, 2017, the Forest Service issued a single scoping letter
`
`covering both projects. The letter asked for public comment on the projects and
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`noted that they are “part of a larger effort sponsored by the Greater Santa Fe
`
`Fireshed Coalition.” App. at 37. After comments were received, the Forest
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`Service approved the Hyde Park and Pacheco Canyon projects through decision
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`memos issued on March 21, 2018 and June 1, 2018 respectively.
`
`C. Procedural History
`
`Wild Watershed brought suit challenging the projects, filing the operative
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`complaint in August 2018.7 Bringing claims under the APA, NEPA, and HFRA,
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`Wild Watershed sought to set aside the Forest Service’s approval of the projects.
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`As relevant here, it argued an EIS was required under NEPA for the larger goal of
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`treating the Fireshed and the less-extensive review actually conducted by the
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`Forest Service failed to adequately consider the projects’ effects on inventoried
`
`roadless areas and their cumulative impacts on the environment. Additionally,
`
`Wild Watershed claimed the projects violate HFRA’s requirements that the
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`projects be consistent with the applicable land and resource management plan,
`
`7 Although Wild Watershed initially sought to enjoin the projects, it
`withdrew this request for relief. Accordingly, certain aspects of the projects have
`commenced. As of November 2019, 140 acres have been thinned in the Hyde
`Park project and 246.5 acres have been thinned in the Pacheco Canyon project.
`Additionally, 500 acres have been burned in the Pacheco Canyon project.
`
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`maximize the retention of old growth, and consider the best available scientific
`
`evidence to maintain and restore wildlife habitats. See 16 U.S.C. § 6591b.
`
`The district court disagreed, holding the Forest Service was under no
`
`obligation to follow NEPA requirements because the Insect and Disease
`
`exclusion, by its plain terms, provided an exemption. According to the district
`
`court, all that could be reviewed was the Forest Service’s compliance with the
`
`explicit requirements of the Insect and Disease exclusion, codified in 16 U.S.C.
`
`§ 6591b. These, it held, were satisfied by the Forest Service’s review and
`
`approval of the projects. Accordingly, the court dismissed Wild Watershed’s
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`challenges.
`
`II. Standard of Review
`
`Because neither NEPA nor HFRA provide for a private right of action, we
`
`review the approval of the Hyde Park and Pacheco Canyon projects as a final
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`agency action under the APA. See Bosworth, 443 F.3d at 739; Native Ecosystem
`
`Council v. Marten, CV 17-153, 2018 WL 6046472, at *2 (D. Mo. Nov. 19, 2018).
`
`We consider the district court’s opinion de novo. See Am. Wildlands v. Browner,
`
`260 F.3d 1192, 1196 (10th Cir. 2001). But we apply a “deferential” standard of
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`review to the agency’s decision. Hoyl v. Babbit, 129 F.3d 1377, 1382 (10th Cir.
`
`1997). We will only overturn agency action if it is “arbitrary, capricious, an
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`abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
`
`§ 706(2)(A).
`
`In considering whether agency action meets this standard, “we must ensure
`
`that the agency decision was based on a consideration of the relevant factors and
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`examine whether there has been a clear error of judgment.” Colo. Envtl. Coal. v.
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`Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999). Agency action will not pass
`
`muster where the agency relies on factors which Congress did not intend it to
`
`consider, fails to consider an important aspect of the problem, offers an
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`explanation for its decision that runs counter to the evidence before it, or is so
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`implausible that it could not be ascribed to a difference in view or the product of
`
`agency expertise. Id.; Bosworth, 443 F.3d at 740.
`
`In applying this standard, we accord agency action “a presumption of
`
`validity.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir.
`
`2011). Thus, the challenger bears the burden of showing the action is arbitrary
`
`and capricious. Id. Even though courts adopt a deferential posture in reviewing
`
`agency action, we must “engage in a substantive review of the record” to assess
`
`the claims. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.
`
`1994).
`
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`III. Analysis
`
`Wild Watershed’s challenge proceeds along two paths. First, it asserts the
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`Forest Service failed to comply with NEPA and its implementing regulations.
`
`Second, it contends the Forest Service violated the statutory requirements of
`
`HFRA. We address each in turn.
`
`A. Compliance with NEPA
`
`The parties dispute whether, and to what extent, NEPA applies to the
`
`approval of the projects. The Forest Service contends it is exempt from NEPA’s
`
`requirements. Wild Watershed disagrees, arguing that when Congress enacted the
`
`Insect and Disease exclusion it did not exempt those types of projects wholesale
`
`from NEPA. It focuses on two NEPA requirements in particular as applicable to
`
`the projects at issue: the obligation to (1) perform extraordinary circumstances
`
`review, and (2) consider the potential cumulative impacts of the projects.
`
`We first consider extraordinary circumstances review and then turn to
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`cumulative impacts.
`
`1. Extraordinary Circumstances Review
`
`Wild Watershed contends the extraordinary circumstances review
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`requirement stems from the statutory text of the Insect and Disease exclusion,
`
`which states a project “may be . . . categorically excluded” from the requirements
`
`of NEPA. 16 U.S.C. § 6591b(a). To Wild Watershed, use of the “categorically
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`excluded” language signifies Congress’s intent to incorporate the regulatory
`
`definition of “categorical exclusion” and “all that term entails” into the statutory
`
`provision. Aplt. Br. at 13. Regulations define “Categorical exclusion” 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 in procedures adopted by a Federal agency
`in implementation of these regulations (§1507.3) and for which,
`therefore, neither an environmental assessment nor an environmental
`impact statement is required. . . . Any procedures under this section
`shall provide for extraordinary circumstances in which a normally
`excluded action may have a significant environmental effect.
`
`40 C.F.R. § 1508.4 (emphasis added).
`
`This definition mandates extraordinary circumstances review for regulatory
`
`categorical exclusions, and Wild Watershed would therefore have us read such a
`
`requirement into the statutory language of the Insect and Disease exclusion
`
`because “when Congress employs a term of art, it presumably knows and adopts
`
`the cluster of ideas that were attached to each borrowed word in the body of
`
`learning from which it was taken.” F.A.A. v. Cooper, 566 U.S. 284, 292 (2012).
`
`Wild Watershed also relies on the term “may” in the statute. This, it contends,
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`shows HFRA merely grants administrative discretion to the Forest Service. In
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`exercising that discretion and deciding to categorically exclude a project, the
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`Forest Service must be constrained by those regulations that ordinarily govern its
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`decision to categorically exclude projects, including by mandating extraordinary
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`circumstances review. See 40 C.F.R. § 1508.4; 36 C.F.R. § 220.6.
`
`Moreover, Wild Watershed argues, this is exactly how the Forest Service
`
`itself has interpreted the statute. Pointing to the Forest Service’s handbook and a
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`Frequently Asked Questions document, Wild Watershed contends the Forest
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`Service interpreted 16 U.S.C. § 6591b as requiring extraordinary circumstances
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`review since immediately after passage of the Insect and Disease exclusion. This
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`agency interpretation, it contends, is entitled to deference.
`
`We disagree. Beginning with the text of the statute, the Insect and Disease
`
`exclusion omits any explicit requirement to perform extraordinary circumstances
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`review. See 16 U.S.C. § 6591b. Where no explicit statutory requirements exist,
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`we generally refrain from reading any in. Dean v. United States, 556 U.S. 568,
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`572 (2009); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
`
`Interpretation of Legal Texts 93 (2012).
`
` But here we are not left to rely on this canon of construction alone. A
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`comparison to other HFRA statutory categorical exclusions shows Congress
`
`understands what extraordinary circumstances review entails and how to explicitly
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`require it where it intends to.
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`In a separate section of HFRA, Congress created a categorical exclusion for
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`applied silvicultural assessments (Applied Silvicultural Assessments exclusion)
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`using similar language to that at issue here. 16 U.S.C. § 6554(d)(1) (providing
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`that projects “carried out under this section . . . may be categorically excluded
`
`from documentation in an environmental impact statement and environmental
`
`assessment under [NEPA]”). Yet, unlike in the Insect and Disease exclusion,
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`Congress explicitly mandated that applied silvicultural assessment projects “be
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`subject to the extraordinary circumstances procedures established by the [Forest
`
`Service].” Id. § 6554(d)(2)(B).
`
`Similarly, in another provision of HFRA, Congress created a statutory
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`categorical exclusion for wildfire resilience projects. See 16 U.S.C. § 6591d
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`(establishing the Wildfire Resilience exclusion). Just as it did in the Insect and
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`Disease exclusion and the Applied Silvicultural Assessments exclusion, Congress
`
`stated that wildfire resilience projects are “categorically excluded from the
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`requirements of [NEPA].” 16 U.S.C. § 6591d(a)(2). But again, unlike the
`
`provision presently at issue, Congress explicitly added that the Forest Service
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`“shall apply the extraordinary circumstances procedures under [36 C.F.R. § 220.6]
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`when using” the Wildfire Resilience exclusion. Id. § 6591d(c)(4).
`
`The import of these provisions is clear: Congress does not use the
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`“categorically excluded” language as a term of art necessarily incorporating a
`
`requirement to perform extraordinary circumstances review. Russello v. United
`
`States, 464 U.S. 16, 23 (1983) (holding that where “Congress includes particular
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`language in one section of a statute but omits it in another section of the same
`
`Act,” courts presume that “Congress acts intentionally and purposely in the
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`disparate inclusion or exclusion”); see also Scalia & Garner, supra, at 170 (noting
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`that under the presumption of consistent usage canon, a word or phrase is
`
`presumed to bear the same meaning throughout a statute, and should be
`
`interpreted consistently with the way the term is used in other parts of the
`
`statute). Where Congress intends extraordinary circumstances review to be
`
`required before an agency may rely on a statutory categorical exclusion, it says so
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`explicitly. See, e.g., 16 U.S.C. § 6591d(c)(4).
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`Accordingly, the absence of an explicit extraordinary circumstances review
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`requirement in the Insect and Disease exclusion leads us to conclude that no such
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`requirement exists under the statute. To our knowledge, every court that has
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`squarely addressed this question has reached the same conclusion.8 See, e.g.,
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`Marten, 2018 WL 6046472, at *5; Greater Hells Canyon Council v. Stein, No.
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`2:17-cv-00843, 2018 WL 3966289, at *8 (D. Or. June 11, 2018) (Sullivan,
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`8 We do not suggest courts have treated this question uniformly. The
`Ninth Circuit, for example, recently assessed the adequacy of the Forest Service’s
`extraordinary circumstances review without deciding the threshold question of
`whether HFRA mandated such review. Ctr. for Biological Diversity v. Ilano, 928
`F.3d 774, 781 n.3 (9th Cir. 2019) (noting that it “need not address” whether
`HFRA mandated extraordinary circumstances review); Greater Hells Canyon
`Council v. Stein, No. 18-35742, 2020 WL 110523, at 1 (9th Cir. Jan. 9, 2020)
`(“Assuming, without deciding, that the [Insect and Disease exclusion] requires
`extraordinary circumstances review.”).
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`Magistrate J., proposing findings of fact and recommendations), adopted by, 2018
`
`WL 3964801, at *1 (D. Or. Aug. 17, 2018).
`
`Wild Watershed’s reliance on the regulatory definition of categorical
`
`exclusion, see 40 C.F.R. § 1508.4, fails to disturb this result. That definition, by
`
`its plain terms, applies only to regulatory categorical exclusions. 40 C.F.R.
`
`§ 1508.4 (defining “Categorical exclusion” as those actions “which have been
`
`found to have no such effect in procedures adopted by a federal agency in
`
`implementation of these regulations” (emphasis added)). It does not reach
`
`statutory categorical exclusions such as the Insect and Disease exclusion at issue
`
`here. See Stein, 2018 WL 3966289, at *8.
`
`Nor do the Forest Service’s guidance documents suggesting such review
`
`might be appropriate convince us of Wild Watershed’s position. 9 Although the
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`FAQ document and Forest Service handbook present some evidence in favor of
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`9 We consider these materials only for the persuasive value they may hold.
`See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (noting that agency
`interpretations—no matter what form they take—may be considered for
`persuasiveness based on “the thoroughness evident in [the agency’s]
`consideration, the validity of its reasoning, its consistency with earlier and later
`pronouncements, and all those factors which give it power to persuade, if lacking
`power to control”). Although in its opening brief Wild Watershed sought
`Chevron deference, such deference is inappropriate considering neither the FAQ
`document nor the Forest Service handbook carries the force of law. See United
`States v. Mead Corp., 533 U.S. 218, 234 (2001) (noting that interpretations
`contained in policy statements, agency manuals, and enforcement guidelines are
`“beyond the Chevron pale”). In its reply brief, Wild Watershed appears to
`concede the point by noting that “the handbook, like the FAQ guidance itself, are
`not enforceable – they are each persuasive for the courts only.” Reply at 5.
`
`-18-
`
`

`

`Wild Watershed’s interpretation, we find this insufficient to overcome our
`
`conclusion based on the text and structure of HFRA that no extraordinary
`
`circumstances review was required prior to approving the projects.
`
`The Forest Service’s FAQ document, first issued on May 1, 2014 in the
`
`wake of the 2014 Farm Bill’s passage, weighs in Wild Watershed’s favor. App. at
`
`21 (stating a Forest Service official must conduct extraordinary circumstances
`
`review for projects approved under 16 U.S.C. § 6591b). But immediately after
`
`issuing this FAQ document, the Forest Service updated its handbook. See Forest
`
`Service Handbook, Ch. 30, § 32.3 (Amendment No. 1909.15-2014-1, effective
`
`May 28, 2014).
`
`The updated handbook is more equivocal. It could be read either as
`
`supporting Wild Watershed’s interpretation or the Forest Service’s position.10 But
`
`we need not definitively resolve the question because we find the Forest Service’s
`
`guidance documents and past practice insufficiently clear, consistent, or thorough
`
`10 To Wild Watershed’s point, the handbook nowhere clearly states the
`position the Forest Service now advances—that statutory categorical exclusions
`are exempt from extraordinary circumstances review unless the statute explicitly
`states otherwise. See generally Forest Service Handbook, Ch. 30 (Amendment
`No. 1909.15-2014-1, effective May 28, 2014). The Forest Service would have us
`infer this point from the fact that the handbook states extraordinary circumstances
`review is required for one statutory categorical exclusion— the Applied
`Silvicultural Assessments exclusion—but omits any similar requirement from the
`section discussing the Insect and Disease exclusion. Id. This is one potential
`reading of the handbook, but far from the only plausible one.
`
`-19-
`
`

`

`to be persuasive in interpreting the applicable statutory and regulatory framework.
`
`See Skidmore, 323 U.S. at 140.
`
`2. Consideration of Cumulative Impacts
`
`Because we hold 16 U.S.C. § 6591b does not mandate extraordinary
`
`circumstances review, we need not address Wild Watershed’s arguments with
`
`respect to the alleged insufficiencies of that review. See Wyoming, 661 F.3d at
`
`1239 (noting the longstanding rule that as long as agencies “compl[y] with the
`
`statutory and regulatory minima, absent ‘extremely compelling circumstances,’ a
`
`reviewing court generally may not overturn an agency decision for failure to
`
`provide additional procedure”). Under this logic, the district court declined to
`
`consider Wild Watershed’s claims with respect to cumulative impacts and impacts
`
`to inventoried roadless areas.11
`
`We agree with respect to inventoried roadless areas, but find more is
`
`required before dismissing Wild Watershed’s claims with respect to cumulative
`
`impacts. Wild Watershed argues consideration of cumulative impacts is required
`
`not only as a subcomponent of extraordinary circumstances review, but also
`
`independently by HFRA’s “scoping” requirement and certain Forest Service
`
`regulations. See Aplt. Br. at 16. We have rejected the former contention, but not
`
`11 The district court is not alone in this approach. See Marten, 2018 WL
`6046472, at *5 (similarly dismissing cumulative impacts arguments based on its
`conclusion that HFRA did not mandate extraordinary circumstances review).
`
`-20-
`
`

`

`yet addressed the latter—whether HFRA’s “scoping” requirement and certain
`
`Forest Service regulations independently require consideration of potential
`
`cumulative impacts.
`
`While the parties argue this point in the briefing, we need not definitively
`
`resolve it. Assuming, without deciding, that the Forest Service was required
`
`under 16 U.S.C. § 6591b to consider the potential cumulative impacts of the
`
`projects, we nonetheless find the Forest Service’s conduct in this regard sufficient
`
`under the APA—that is, neither arbitrary nor capricious. Regulations define
`
`“cumulative impact” as,
`
`[T]he impact on the environment which results from the incremental
`impact of the action when added to other past, present, and reasonably
`foreseeable future actions regardless of what agency (Federal or non-
`Federal) or person undertakes such other actions. Cumulative impacts
`can result from individually minor but collectively significant actions
`taking place over a period of time.
`
`40 C.F.R. § 1508.7.
`
`But the Forest Service need not consider any and all past, present, and
`
`foreseeable actions. It must only consider those actions that are “relevant and
`
`useful” in the agency’s judgment, “because they have a significant cause-and-
`
`effect relationship with the direct and indirect effects of the proposal for agency
`
`action and its alternatives.” 36 C.F.R. § 220.4.
`
`-21-
`
`

`

`In approving the projects, the Forest Service considered certain potential
`
`cumulative impacts in detail. For example, it considered the potential cumulative
`
`effects of the expected subsequent treatments in the project areas on sensitive
`
`species. It also considered the potential cumulative effects of thinning in multiple
`
`areas within the Fireshed on management indicator species and threatened and
`
`endangered species. In each instance, it found no adverse cumulative effects.
`
`Wild Watershed slides by these portions of the record and instead asserts
`
`that the Forest Service was required to consider a separate type of cumulative
`
`impact, namely “the dramatic effects of extensive thinning and . . . burning” on
`
`21,896 acres of Forest Service land within the Fireshed. Aplt. Br. at 21.
`
`Specifically, Wild Watershed seeks an assessment of the e

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