Earth Island Institute, et al v. USFS, et al

Filing

FILED OPINION (STEPHEN R. REINHARDT, RICHARD R. CLIFTON and N. RANDY SMITH) AFFIRMED. Judge: NRS Authoring. FILED AND ENTERED JUDGMENT. [8331010]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARTH ISLAND INSTITUTE; CENTER
FOR BIOLOGICAL DIVERSITY,
Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE;
NANCY GIBSON, in her official
capacity as Forest Supervisor for
the Lake Tahoe Basin Mgt. Unit,
Defendants-Appellees.




No. 11-16718
D.C. No.
2:11-cv-00402GEB-DAD
OPINION



Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted
May 14, 2012—San Francisco, California
Filed September 20, 2012
Before: Stephen Reinhardt, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith

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COUNSEL
Rachel M. Fazio, Cedar Ridge, California, for the appellants.
Vivian H.W. Wang, U.S. Department of Justice, Environment
& Natural Res. Div., Washington, D.C., for the appellees.

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OPINION
N.R. SMITH, Circuit Judge:
Under the National Forest Management Act (“NFMA”), an
agency’s project is required to comply with 1982 viability
requirements only to the extent they have been incorporated
in the relevant forest plan. Earth Island Inst. v. Carlton, 626
F.3d 462, 470 (9th Cir. 2010). Here, we conclude that the
Lake Tahoe Forest Plan did not require the Forest Service to
demonstrate at the project level that the Angora Fire Restoration Project (“Angora Project”) would maintain viable population levels of management indicator species, including the
black-backed woodpecker. Therefore, the Forest Service’s
analysis of the Angora Project’s impact on the black-backed
woodpecker’s habitat was not arbitrary and capricious under
NFMA.
The National Environmental Policy Act (“NEPA”) requires
an Environmental Assessment (“EA”) to comply with certain
procedural requirements to ensure that agencies will make
informed decisions about the environmental effects of proposed federal actions and to make this information available
to the public. Ecology Center v. Castaneda, 574 F.3d 652,
656-57 (9th Cir. 2009). Here, because the Forest Service did
not fail to (1) ensure the scientific integrity of the final EA,
(2) properly respond to dissenting scientific opinion, (3) properly consider proposed alternatives to the Angora Project
Environmental Assessment, and (4) take the requisite “hard
look” at the impacts of the Angora Project, we also conclude
that the Forest Service’s analysis of the Angora Project’s
environmental effects was not arbitrary and capricious under
NEPA. Accordingly, we AFFIRM the district court.
I.

FACTS AND PROCEDURAL HISTORY

The Forest Service designed the Angora Project in response
to damage caused by the Angora Fire, which consumed over

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3,100 acres of land. The Forest Service’s Lake Tahoe Basin
Management Unit (“LTBMU”) manages the affected National
Forest System land. The LTBMU developed the Angora Project pursuant to the LTBMU Forest Plan in an effort to balance
the ecological needs of restoring the ecosystem and protecting
area residents and visitors from falling trees and future fires.
Project activities include the removal of certain live and dead
trees from portions of the forest. The Forest Service determined that, if no action was taken, surface fuels would accumulate as dead and damaged trees fall, increasing the risk of
another harmful fire that would threaten both local communities and the forest ecosystem.
Before implementing the Angora Project, the Forest Service prepared an EA and solicited public comment on the EA.
The EA discussed the impact of the Angora Project on various
species, including black-backed woodpeckers. The EA also
responded to some concerns raised in the comments and
assessed a “no-action” alternative and the preferred alternative that the Forest Service determined would best reduce fuel
loads and the severity of future fires. The Forest Service also
briefly considered an option submitted by Earth Island Institute that would limit removal of standing dead trees (“snags”)
to those greater than 16 inches in diameter. However, the Forest Service dismissed this alternative, because the agency concluded that this alternative would not effectively accomplish
the Forest Service’s goals.
Subsequently, the Forest Service issued a Decision Notice
and a Finding of No Significant Impact (“FONSI”), and it
approved the proposed project with some modifications. The
decision authorized the removal of snags and downed trees
and the thinning of live trees on approximately 1,411 acres.
The remaining burned area, consisting of approximately 1,168
acres, would be left untreated to provide habitat diversity in
the forest.
The Angora Project also creates twelve “wildlife snag
zones” within the treated areas that would be subject to lim-

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ited or no snag removal in order to address further concerns
about providing habitat for species such as the black-backed
woodpecker. The agency determined that about half of the
habitat that is suitable for black-backed woodpecker habitat in
the relevant area would be retained. The Forest Service concluded that the Project would not “lead to a change in the distribution of black-backed woodpecker[s] across the Sierra
Nevada bioregion.”
Earth Island Institute and Center for Biological Diversity
(“Plaintiffs”) filed suit over the Angora Project in 2011, alleging noncompliance with NFMA and NEPA. The district court
granted summary judgment in favor of the Forest Service on
all claims. Plaintiffs timely appealed the decision. The district
court and we both denied Plaintiffs’ motions for an injunction
pending appeal.
II.

STANDARD OF REVIEW

The Forest Service is “entitled to deference to [its] interpretation of [its] own . . . Forest Plans[,]” unless the interpretation “is plainly inconsistent with [a Forest Plan].” Native
Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960
(9th Cir. 2005) (internal quotation marks omitted).
“Because NFMA and NEPA do not provide a private cause
of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the
Administrative Procedure Act (‘APA’).” Native Ecosystems
Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir.
2005). “Under the APA, [a court] may set aside an agency
decision if it is ‘arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.’ ” Id. (quoting 5
U.S.C. § 706(2)(A)).
In Lands Council II, we explained that “[r]eview under the
arbitrary and capricious standard ‘is narrow, and we do not
substitute our judgment for that of the agency.’ ” Lands Coun-

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cil v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir.
2008) (en banc) (alterations in original omitted) (quoting
Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156
(9th Cir. 2006)), abrogated on other grounds by Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). Accordingly, an agency’s decision can be set aside
only if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an explanation that runs counter to the evidence before the
agency or is so implausible that it could not be
ascribed to a difference in view or the product of
agency expertise.
Id. (emphasis added) (internal quotation marks omitted).
We conduct a de novo review of a district court’s grant of
summary judgment. Lands Council v. Powell, 395 F.3d 1019,
1026 (9th Cir. 2005).
III.
A.

DISCUSSION

The Lake Tahoe Forest Plan did not require the
Forest Service to demonstrate at the project level
that the Angora Project would maintain viable
population levels of management indicator species,
including the black-backed woodpecker.

[1] Under NFMA, the Secretary was required to promulgate regulations that set out guidelines and standards to “provide for diversity of plant and animal communities based on
the suitability and capability of the specific land area . . . .”
16 U.S.C. § 1604(g)(3)(B). Accordingly, in 1982 the Forest
Service issued planning regulations (known as the 1982 rule)
to implement NFMA’s viability requirements. The 1982 rule
“require[d] the Forest Service to identify and monitor management indicator species (‘MIS’) and direct[ed] that ‘fish

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and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate
species.’ ” Castaneda, 574 F.3d at 657 (quoting 47 Fed. Reg.
43,048 (Sept. 30, 1982)); see also 36 C.F.R. § 219.19 (1982).
However, the 1982 rule was superseded in 2000. Therefore,
“[t]he requirements of the superceded 1982 [r]ule apply only
to the extent they [are] incorporated into” the relevant forest
plan. Carlton, 626 F.3d at 470 (quoting Castaneda, 574 F.3d
at 657 (internal quotation marks omitted)).
[2] The language of the LTBMU Forest Plan did not incorporate the 1982 rule’s viability requirements. In Carlton, 626
F.3d at 470-71, we determined that a forest plan almost identical to the LTBMU Forest Plan did not “clearly” incorporate
the viability requirements, because it did not “contain[ ] specific provisions regarding wildlife viability.” Compare id. at
470 (management approach “will provide the fish and wildlife
habitat and other ecological conditions necessary to maintain
well-distributed viable populations of vertebrate species”
(emphasis added) (internal quotation marks omitted)), with
LTBMU Forest Plan, p. III-22 (“The Forest Service must
manage habitat to, at the least, maintain viable populations”
(emphasis added)). There is nothing significantly different
about the words “will” and “must,” and certainly any distinction is not obvious enough that the Forest Service’s interpretation can be viewed as “plainly inconsistent” with the LTBMU
Forest Plan. Therefore, Carlton requires that we rule in the
Forest Service’s favor. See also Castaneda, 574 F.3d at 660
(“[T]he presence of a few, isolated provisions cast in mandatory language does not transform an otherwise suggestive set
of guidelines into binding agency regulations.” (quoting Terbush v. United States, 516 F.3d 1125, 1139 n.7 (9th Cir. 2008)
(internal quotation marks omitted))); Utah Envtl. Cong. v.
Richmond, 483 F.3d 1127, 1135 (10th Cir. 2007) (holding that
the 1982 rules were not incorporated because the “forest plan
did not expressly reference the 1982 regulations”).

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[3] Even if the LTBMU Forest Plan’s language did incorporate some aspects of the 1982 rule’s viability requirements,
any species monitoring requirements for viability were
expressly incorporated only at the planning level rather than
the project level.1 NFMA and its implementing regulations
provide for forest planning and management at two levels: the
forest level and at the individual project level. See 16 U.S.C.
§ 1604; Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726,
729-30 (1998). At the forest level, the agency develops a forest plan, which is a broad, long-term planning document for
an administrative unit of the National Forest System. A forest
plan establishes goals and objectives for management of forest resources. 16 U.S.C. § 1604(g)(1)-(3). Here, the relevant
forest plan is the LTBMU Forest Plan. At the project level,
site-specific projects must be consistent with the applicable
forest plan. Id. § 1604(i); Idaho Sporting Cong. Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir. 2002). Here, the relevant
project is the Angora Project.
Plaintiffs argue that the language in the LTBMU Forest
Plan discussing the Forest Service’s obligation to “manage
habitat to, at the least, maintain viable populations of existing
native and desired nonnative species” incorporates the 1982
rule’s viability requirements. LTBMU Forest Plan, p. III-22.2
However, none of the language (on which Plaintiffs rely) contradicts the Forest Service’s argument that any requirements
1

A forest plan does not have to incorporate all aspects of the 1982 viability requirements. See Carlton, 626 F.3d at 472 (“[O]nly the aspects of
§ 219.19 in the 1982 planning rule related to selecting MIS
(§ 219.19(a)(1)) and monitoring during forest plan implementation
(§ 219.19(a)(6)) apply. Other aspects of § 219.19 are related to forest plan
development or revision and do not apply.” (internal quotation marks
omitted)).
2
See also LTBMU Forest Plan, p. IV-11 (“Viable populations of native
and desired nonnative species will be maintained through active vegetative
management and other methods.”); LTBMU Forest Plan, p. IV-26 (“The
primary purpose is to perpetuate viable populations of wildlife species
native to the area through management of their habitat . . . .”).

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regarding the monitoring and assessment of population trends
have only been incorporated at the planning level. In fact, one
of the provisions from the 2007 Amendment to the Forest
Plan cited by Plaintiffs specifically disavows such a projectlevel requirement. It states, “[t]he viability requirements at the
planning area scale are described under the first paragraph of
the 1982 36 CFR § 219.19; these have already been met in
each forest plan, as revised.” 2007 Amendment FEIS, p. 338
(emphasis added). For “project level analysis . . . [t]here is no
requirement to ‘track trends of species to evaluate viability.’ ”
Id.
In response, the Forest Service also cites to other provisions
that illustrate that the agency’s only project-level duty with
respect to MIS is to ensure that the project record “contain[s]
a discussion of the effects of the alternatives on the MIS
habitat(s) that will be directly affected by the Forest Service
action.” 2007 Amendment Record of Decision, p. 14; see also
id. at 11 (“The sole MIS requirement that is applied at the
project level is the assessment of habitat for MIS. . . . There
are no MIS monitoring requirements in the project area or at
the project level.”). Therefore, because the Forest Service
determined that the Angora Project would not significantly
impact the black-backed woodpecker’s habitat, the Forest Service complied with any project-level viability requirements.
Plaintiffs reply, arguing that the passages relied on by the
Forest Service only refer to monitoring, and that the Forest
Service should still be required to analyze the “quantity and
quality of habitat necessary” to support the black-backed
woodpecker. However, this argument misunderstands the
relationship between monitoring and viability trend assessment requirements. To understand this relationship, one must
analyze the language of 36 C.F.R. § 219.19 (1982), and our
case law analyzing this regulation. We agree with the Plaintiffs that the text of the 1982 regulation requires that “[f]ish
and wildlife habitat shall be managed to maintain viable populations of existing . . . species in the planning area.” 36

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C.F.R. § 219.19 (1982). But one of the primary methods,
through which the regulation requires that this viability management be accomplished, is through the monitoring of population trends of management indicator species. The regulation
states:
To meet this [viability] goal, management planning
for the fish and wildlife resource shall meet the [following] requirements . . . certain . . . species present
in the area shall be identified and selected as management indicator species . . . . Population trends of
the management indicator species will be monitored
and relationships to habitat changes determined.
Id. § 219.19(a)(1), (6) (1982) (emphasis added).
Where a forest plan requires the Forest Service to monitor
population trends at the project level, our case law has
allowed the Forest Service to substitute direct monitoring of
the species population trends with an analysis of the “type and
quantity of habitat” that is necessary to support that species.
This is sometimes referred to as “habitat monitoring,” or the
proxy-on-proxy approach. For instance, in Native Ecosystems
Council v. U.S. Forest Service, we explained that “the Forest
Service’s knowledge of what quality and quantity of habitat
is necessary to support the [indicator] species” can be used
“as a proxy for population monitoring of the management
indicator species.” 428 F.3d 1233, 1250-51 (9th Cir. 2005);
id. at 1251 (“We have, in appropriate cases, allowed the Forest Service to avoid studying the population trends of the Indicator Species by using Indicator Species habitat as a proxy for
Indicator Species population trends in a so-called ‘proxy on
proxy’ approach.” (internal quotation marks omitted)); accord
Native Ecosystems Council v. Tidwell, 599 F.3d 926, 933 (9th
Cir. 2010) (“The proxy-on-proxy approach effectively allows
the Forest Service to avoid studying the population trends of
the Indicator Species by using Indicator Species habitat as a

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proxy for Indicator species population trends.” (internal quotation marks omitted)).
Thus, it is contradictory for Plaintiffs to admit in their
briefs and at oral argument that monitoring is not required,
but then to argue that the Forest Service must still analyze the
“quantity and quality of habitat necessary” to support the
black-backed woodpecker, because that type of analysis is
monitoring: habitat monitoring, to be specific. See Alliance
for Wild Rockies v. Kimbell, 310 F. App’x 106, 108-09 (9th
Cir. 2009) (describing “habitat monitoring” where the Forest
Service describes the “quantity and quality of habitat that is
necessary to sustain the viability of the species group in question” (alteration in original omitted) (internal quotation marks
omitted)).
[4] It is also unsurprising that Plaintiffs are unable to cite
to any case where the forest plan expressly disavowed a monitoring requirement at the project level, and yet the court still
required the Forest Service to engage in project-level habitat
monitoring by identifying the appropriate quantity and quality
of MIS habitat. Indeed, in Tidwell, this court explained that
the “proxy-on-proxy result” aimed at establishing species
population trends is only required in situations such as where
“the forest plan requires monitoring of the MIS.” 599 F.3d at
933-34. The Forest Plan in Tidwell was markedly different
from the LTBMU Forest Plan, because it required monitoring
without limiting this requirement to the planning level. See id.
at 932-33 (“Viable populations of all existing wildlife species
will be maintained by providing a diversity of habitats
throughout the Forest. Wildlife indicator species have been
identified and will be monitored to ensure that assumptions
concerning the effects of management activities on wildlife
habitat and populations are appropriate.” (emphasis added)).
Thus, because monitoring is equivalent to either analyzing
viable population trends or “describing the quality and quantity of habitat necessary to sustain the viability of” the blackbacked woodpecker, Lands Council II, 537 F.3d at 997-99,

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and because the LTBMU Forest Plan expressly disavows this
requirement at the project level, the Forest Service’s decision
to not engage in that analysis for the Angora Project was not
arbitrary and capricious.
Indeed, we have already rejected very similar arguments in
Earth Island Institute v. Carlton, in which the same Plaintiff
challenged another Forest Service project. 626 F.3d at 470-71.
The Carlton court analyzed the language of the amendment to
the forest plan and determined that “the [viability] requirement pertains to the planning area, not the project area at
issue in this case.” Id. at 471 (emphasis added). In reaching
this conclusion, we analyzed virtually identical language to
the language from the 2007 Amendment to the Sierra Nevada
Framework Plan in this case. Compare Carlton, 626 F.3d at
470-71 (the “sole MIS requirement that is applied at the project level is the assessment of habitat for MIS” and “there are
no monitoring requirements for MIS at the project level”
(internal quotation marks omitted)), with 2007 Amendment
Record of Decision, p. 11 (“The sole MIS requirement that is
applied at the project level is the assessment of habitat for
MIS. . . . There are no MIS monitoring requirements in the
project area or at the project level.”).
Plaintiffs attempt to distinguish Carlton by arguing that the
case analyzed only subsequent, region-wide amendments and
“said nothing about whether an individual forest plan . . . contains a viability requirement.” We do not find that distinction
persuasive, because the issue in Carlton was still whether
these amendments had incorporated the 1982 rule into a specific forest plan. Carlton, 626 F.3d at 470-71. Moreover, the
analysis in Carlton was not based on the type of document it
was analyzing, but rather the type of language in the amendments. We made clear that the general viability language was
not enough to incorporate the 1982 rules. Id. Plaintiff’s argument is further belied by the dissent in Carlton, which discussed the binding effect of the viability language in the
amendments on the individual forest plan at issue. Id. at 480

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(Reinhardt, J., dissenting) (“The Forest Service’s decision to
simply ignore a binding viability requirement in the Plumas
National Forest Plan violates the NFMA.”).
Plaintiffs cite to Lands Council II and Castaneda in support
of their arguments. But neither of these cases control the outcome here, because they only discussed the method for agencies to comply with viability assessment requirements, rather
than the threshold for when an agency is required to comply
with these requirements. See Lands Council II, 537 F.3d at
988-89 (the parties did not contest the forest plan’s requirement to “manage the habitat of species” that were listed “to
prevent further declines in populations;” the parties merely
contested whether these duties had been fulfilled (internal
quotation marks omitted)); Castaneda, 574 F.3d at 663 (the
parties did not contest the Forest Service’s requirement “to
measure [p]opulation levels of old-growth dependent species”
to “[m]aintain viable population[s] of old-growth dependent
species;” the parties merely contested whether these duties
had been fulfilled (alterations in original) (internal quotation
marks omitted)).3
Plaintiffs also argue that the Forest Service’s interpretation
would allow projects to not comply with governing forest
plans, which would contravene 16 U.S.C. § 1604(i). See also
Lands Council II, 537 F.3d at 989 (“After a forest plan is
developed, all subsequent agency action, including sitespecific plans . . . must comply with the NFMA and be consistent with the governing forest plan.”). However, the Forest
Service’s interpretation is consistent with any viability
requirements at the planning level in the LTBMU Forest Plan.
Though the Forest Service was not required to engage in mon3

Plaintiffs also cite to two other cases that are irrelevant because they
were evaluating projects developed when the 1982 regulations were still
in effect, rather than the 2000 regulations that apply to the Angora Project.
See Tidwell, 599 F.3d at 932 & n.8; Or. Natural Res. Council Fund v.
Goodman, 505 F.3d 884, 889 (9th Cir. 2007).

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itoring (either of habitat or indicator species) at the project
level, the Forest Service did engage in other viability management activities for the black-backed woodpeckers by disclosing the impacts the Angora Project will have on the blackbacked woodpecker’s habitat.
In the final EA, the Forest Service explained that the
Angora Project “would not alter the existing trend in the
ecosystem component, nor would it lead to a change in the
distribution of black-backed woodpecker across the Sierra
Nevada bioregion.” Furthermore, the EA discusses the
amount of habitat that would be affected by treatment, and the
amount of habitat in the project-area left to the black-backed
woodpecker. The EA also explains the many ways that the
Forest Service monitors the black-backed woodpecker at the
planning level. The EA notes that the Forest Service’s analysis was “informed by both habitat and distribution population
monitoring data” that occurs at the planning level.4
In Lands Council II, 537 F.3d at 995-96, we recognized
that these types of activities fulfilled the 1982 viability
requirements. For instance, we noted the fact that
“[m]onitoring surveys” at the planning “confirm[ed] that owls
are using” and were present in their historic habitat areas. Id.
4

It appears that MIS monitoring occurred when the LTBMU Forest Plan
was originally drafted, and it continues to occur annually and whenever
the plan is revised. See Lake Tahoe Basin Mgt. Unit, Planning,
http://www.fs.usda.gov/main/ltbmu/landmanagement/planning (last visited Aug. 10, 2012) (explaining that annual monitoring and comprehensive
evaluation informs the need for revising the forest plan); LTBMU Forest
Plan
V-1,
available
at
http://www.fs.usda.gov/Internet/FSE_
DOCUMENTS/stelprdb5114537.pdf (describing planning-wide monitoring activities).
If Earth Island wishes to challenge the Forest Service’s planning-level
monitoring techniques, as set forth in documents such as the LTBMU
plan, such a claim is not appropriate for the present suit. Here, this court
is merely asked to determine whether the EA for the Angora Project was
arbitrary and capricious.

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at 995 (internal quotation marks omitted). Also similar to this
case, we noted the Forest Service’s conclusion that the owls
would “be able to maintain their current distribution” also fulfilled viability requirements. Id. at 997 (emphasis added). In
addition, as here, the Forest Service’s conclusion that the
agency action would not “contribute to a trend toward a ‘Federal listing’ under the Endangered Species Act” also fulfilled
viability requirements. Id. at 996.
Finally, even assuming there is ambiguity about whether
the LTBMU Forest Plan incorporated the 1982 viability
requirements, the Forest Service is “entitled to deference to
[its] interpretation of [its] own . . . Forest Plans[,]” unless the
interpretation “is plainly inconsistent with [a Forest Plan].”
Native Ecosystems Council, 418 F.3d at 960; Castaneda, 574
F.3d at 661 (if there is “ambiguity . . . we defer to the Forest
Service’s reasonable interpretation of the Forest Plan’s
requirements”). A court “will conclude that the Forest Service
acts arbitrarily and capriciously only when the record plainly
demonstrates that the Forest Service made a clear error in
judgment in concluding that a project meets the requirements
of the NFMA and relevant Forest Plan.” Lands Council II,
537 F.3d at 994.
[5] Reviewing the LTBMU Forest Plan’s requirements
with deference to the agency, and given the absence of case
law in support of Plaintiff’s arguments, the Forest Service
surely did not make “a clear error in judgment in concluding”
that the LTBMU Forest Plan did not require it to assess the
“quantity and quality of habitat necessary” to support the
black-backed woodpecker at the project level. Id. at 994. As
a result, the Forest Service’s actions of discussing the impact
of the Angora Project on the black-backed woodpecker’s habitat were not arbitrary and capricious under NFMA. Such a
holding “comports with our reluctance to require an agency to
show us, by any particular means, that it has met the requirements of NFMA every time it proposes action.” Id. at 992.

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The Angora Project EA was not arbitrary and
capricious under NEPA.

NEPA sets forth procedural (rather than substantive)
requirements for agency decision-makers. NEPA seeks to
ensure that agencies will make informed decisions about the
environmental effects of proposed federal actions and to make
this information available to the public. See Castaneda, 574
F.3d at 656-57. Pursuant to NEPA’s implementing regulations, an agency may prepare an EA to determine whether a
proposed action may significantly affect the quality of the
environment such that the agency needs to prepare a more
detailed Environmental Impact Statement (“EIS”). See 40
C.F.R. §§ 1501.4(b), 1508.9. An EA is a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding
of no significant impact [FONSI].” Id. § 1508.9(a)(1); see
also Bering Strait Citizens for Responsible Res. Dev. v. U.S.
Army Corps of Eng’rs, 524 F.3d 938, 954 (9th Cir. 2008).
The Forest Service’s analysis of environmental effects in
the Angora Project EA was not arbitrary and capricious under
NEPA, because the agency did not fail to (1) ensure the scientific integrity of the final EA, (2) properly respond to dissenting scientific opinion, (3) properly consider proposed
alternatives to the Angora Project in the final EA, or (4) take
the requisite “hard look” at the impacts of the Angora Project.
1.

Scientific Integrity

[6] NEPA requires that “[a]gencies shall insure the professional integrity including scientific integrity, of the discussions and analyses in environmental impact statements.” 40
C.F.R. § 1502.24. By its terms, this regulation only applies to
preparation of an EIS, but the Forest Service does not dispute
that this scientific integrity requirement applied to their EA.
Therefore, we assume without deciding that this requirement
does in fact apply to the Angora Project EA.

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The EA’s assertion about black-backed woodpecker distribution is as follows: “[D]ata indicate that the black-backed
woodpecker continue to be distributed across the Sierra
Nevada; current data at the rangewide, California, and Sierra
Nevada scales indicate that the distribution of black-backed
woodpecker populations in the Sierra Nevada is stable.”
These data were gathered by monitoring that takes place at
“various sample locations by avian point counts, spot mapping, mist-netting, and breeding bird survey protocols.”
[7] Plaintiffs argue that the Forest Service failed to ensure
the scientific integrity of the final EA by misrepresenting the
facts regarding trends in the black-backed woodpecker’s population. However, this argument is based on an incorrect
premise, because the agency was citing the studies primarily
in regard to the historic geographic distribution of blackbacked woodpeckers rather than population trend statistics.
Though the Forest Service listed a range-wide population
trend index (and noted the credibility problems with the data),
the Forest Service was primarily making a claim about the
geographic distribution of the black-backed woodpecker and
whether the distribution was stable.
The California Partners in Flight (“CPIF”) 2002 report supports the Forest Service’s claims about distribution. The
report provides a map (citing to other sources) that indicates
the locations where black-backed woodpeckers have been
detected in recent years in relation to their historic distribution. The Forest Service also cited to a 25-year study that concluded: “The data from these various sources indicate that
black-backed woodpeckers continue to be distributed across
the Sierra Nevada.” Dist. Ct. Op. at 14. The Siegel and
Kaschube study indicates that black-backed woodpeckers
were captured at five monitoring stations operated in the
Sierra Nevada between 1992 and 2005. The Forest Service
also asserts that other studies cited were intended to “contextualize population information through a variety of spatial
scales.”

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[8] The data sufficiently supports the agency’s claim about
black-backed woodpecker population distribution. Thus, the
Forest Service was not arbitrary and capricious in failing to
fulfill the requirement of “insur[ing] the professional integrity, including scientific integrity, of [its] discussions and
analyses . . . .” 40 C.F.R. § 1502.24. Furthermore, “[b]ecause
analysis of scientific data requires a high level of technical
expertise, courts must defer to the informed discretion of the
responsible federal agencies.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1301 (9th Cir. 2003). Finally, “reviewing court[s] may not ‘fly speck’ an [EA] and hold it
insufficient on the basis of inconsequential, technical deficiencies.” Or. Envtl. Council v. Kunzman, 817 F.2d 484, 492
(9th Cir. 1987). Thus, the Angora Project EA’s analysis was
not arbitrary and capricious with regard to NEPA’s scientific
integrity requirements.
2.

Responses to Dissenting Opinions

[9] In the context of environmental impact statements,
NEPA requires agencies to respond explicitly and directly to
“responsible opposing view[s].” 40 C.F.R. § 1502.9(b)
(“§ 1502.9(b)”). Plaintiffs argue that the Forest Service violated that requirement here by not appropriately responding to
four comments submitted by Dr. Chad Hanson in response to
the initial EA. However, we conclude that the Forest Service
was not required by § 1502.9(b) to respond to Dr. Hanson’s
comments, because the regulation by its own terms only
applies this requirement to “[f]inal environmental impact
statements,” 40 C.F.R. § 1502.9(b). As a general rule, courts
should not impose new requirements on agencies not imposed
by the APA or a substantive statute. Vt. Yankee Nuclear
Power Corp. v. Natural Res. Def. Council Inc., 435 U.S. 519,
549 (1978) (a court should not “impose upon the agency its
own notion of which procedures are ‘best’ or most likely to
further some vague, undefined public good”); see N. Slope
Borough v. Minerals Mgmt. Serv., 343 F. App’x. 272, 275
(9th Cir. 2009) (“The duty to disclose and respond to ‘respon-

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sible opposing viewpoints’ imposed by 40 C.F.R. § 1502.9(b)
applies only to environmental impact statements, not environmental assessments.”); see also Greenpeace, Inc. v. Cole, 445
F. App’x 925, 928 n.4 (9th Cir. 2011).
Although the Plaintiffs cite to Save Our Ecosystems v.
Clark, 747 F.2d 1240, 1245 n.6 (9th Cir. 1984), for the proposition that both EAs and EISs are required to respond to dissenting views, this case is not controlling here. Save Our
Ecosystems was a case based on a finding that the agency’s
EA was the “functional equivalent of an EIS.” 747 F.2d at
1247 (“When an EA is the functional equivalent of an EIS, it
is subject to the same procedures.”). Plaintiffs have not
argued in this case that the EA is the functional equivalent of
an EIS. Thus, Plaintiffs rely on no authority for the proposition that § 1502.9(b) applies to an EA that is not the functional equivalent of an EIS.5
Furthermore, even if the Forest Service were required to
comply with the requirements of § 1502.9(b) and respond to
dissenting views, the Forest Service did not fail to meet that
requirement in an arbitrary and capricious manner here. As
the district court noted, the Forest Service responded to Dr.
Hanson’s comments concerning the Hutto and Gallo study by
discussing the finding of that study. The agency also
responded in the FONSI to Dr. Hanson’s comments concerning the distribution of black-backed woodpecker populations
when the Forest Service stated, “[m]onitoring data indicate
that black-backed woodpeckers continue to be distributed
across the Sierra Nevada; current data at the range-wide, California, and Sierra Nevada scales indicate that the distribution
of black-backed woodpecker populations in the Sierra Nevada
5

Plaintiffs also cited to two other cases for support that did not even
mention the applicability of 40 C.F.R. § 1502.9(b). See Idaho Sporting
Cong. v. Thomas, 137 F.3d 1146, 1152 (9th Cir. 1998), overruled by
Lands Council II, 537 F.3d 981; Price Rd. Neighborhood Ass’n v. U.S.
Dep’t of Transp., 113 F.3d 1505, 1508-09 (9th Cir. 1997).

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is stable.” Dist. Ct. Op. at 16. The comment also directed the
reader to other areas of the EA that contained further discussion of this issue. Finally, the Forest Service responded both
in the final EA and the FONSI to Dr. Hanson’s comments
concerning the viability of the black-backed woodpecker. The
Forest Service stated that “[t]he forecast for increasing stand
replacing fires for the foreseeable future across a significant
part of the western United States indicates an increase in
black-backed woodpecker habitat availability for continued
[black-backed woodpecker] population growth.” Id. The
agency also said that a request for a comprehensive assessment of the viability of the black-backed woodpecker “is
beyond the scope of this analysis. . . . MIS are monitored at
the Sierra Nevada bioregional scale. Information gathered at
the bioregional scale is ongoing, will continue over multiple
years and will support conclusions made about species status
and trends.” Id.
In addition, Plaintiffs cannot use the notice and comment
procedure as a back-door method of forcing the 1982 species
viability assessment requirements on the Forest Service. As
discussed above, the Forest Plan does did not itself incorporate these requirements, and thus the NFMA does not require
such analysis here.
[10] Though the Forest Service did not perform the pointby-point type of counter-argument to experts that Plaintiffs
appear to desire, our precedent makes clear that an agency
“need not respond to every single scientific study or comment.” See Castaneda, 574 F.3d at 668 (addressing duty to
respond to opposing views in an EIS). Furthermore, even if
Plaintiffs disagree with the agency’s responses, “that disagreement does not render the Forest Service’s review and
comment process improper.” Carlton, 626 F.3d at 473. Therefore, even if response to dissenting views was required, the
Forest Service’s responses were not arbitrary and capricious.

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Consideration of Proposed Alternatives

[11] We conclude that the Forest Service’s consideration
of a no action alternative and its preferred action was not arbitrary and capricious under the less rigorous requirements of
an EA (rather than an EIS). In Native Ecosystems Council,
428 F.3d at 1246, we “join[ed] our sister circuits in holding
that an agency’s obligation to consider alternatives under an
EA is a lesser one than under an EIS.” Since that decision, we
are aware of no Ninth Circuit case where an EA was found
arbitrary and capricious when it considered both a no-action
and preferred action alternative.
For instance, in Native Ecosystems Council, we explained
that NEPA’s implementing regulations merely require an EA
to include consideration of appropriate alternatives, including
“a ‘no action’ alternative” and “the agency must designate a
‘preferred’ alternative.” Id. at 1245-46 (citing 40 C.F.R.
§ 1502.14(a), (d), and (e)). Beyond that, NEPA’s “statutory
and regulatory requirements . . . do[ ] not dictate the minimum
number of alternatives that an agency must consider.” Id. at
1246. Therefore, in Native Ecosystems Council, we upheld
“the Forest Service’s consideration of a ‘no action’ alternative
and its ‘preferred’ alternative,” even though no other alternatives were considered in detail. Id. at 1249.
Similarly, in North Idaho Community Action Network v.
U.S. Department of Transportation, 545 F.3d 1147, 1154 (9th
Cir. 2008) (per curiam), we held that the agency had “fulfilled
[its] obligation[ ] under NEPA’s alternatives provision when
[it] considered and discussed only two alternatives in the . . .
EA.” These two alternatives were identical to those in this
case: “the Project with the changes proposed in the . . . EA,
and the Project without the proposed changes . . . .” Id. at
1153. Notably, in North Idaho Community Action Network,
we did not even discuss the other alternatives the agency had
rejected and whether the agency had provided sufficient reasons for rejecting the alternatives. We merely explained that,

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because the forest service “briefly discussed two alternatives,”
and because “the Project proposed in the 2005 EA will not
result in significant environmental effects,” the analysis was
sufficient. Id. at 1153-54.
Here, the Forest Service explained that its proposed alternative was better at accomplishing its goals than Plaintiffs’ proposed alternative was. See Native Ecosystems Council, 428
F.3d at 1247 (“Alternatives that do not advance the purpose
of [a project] will not be considered reasonable or appropriate.”). Plaintiffs argue that the Forest Service did not properly
dismiss the 16-inch alternative, because it was analyzed under
a higher estimate of snag fall rate. Plaintiffs argue that this
skewed the results, because an assumption of higher snag falls
was not used to analyze other alternatives.
[12] However, even without assuming a higher snag fall
rate, the Forest Service has offered a reasonable explanation
for how its preferred alternative better accomplished its goal
of reducing the risk of severe fires than Plaintiffs’ proposed
alternative. The Forest Service explained that, “[e]ven under
a less conservative assumption of snag fall rates than ‘all
snags fall,’ the alternative proposed by Earth Island would
result in fuel loadings” beyond the Forest Service’s desired
limit. “Therefore, leaving an additional 2 to 40 large snags per
acre, weighing more than one ton per tree, would not achieve
the Project objective of reducing the risk of a severe fire.”6
The Forest Service also explained in the EA itself that the
Plaintiff’s proposed alternative was not as effective at accomplishing its goal of preventing fire danger because allowing
more snags to stand would “contribute to high fuel loads”
within five to ten years.
6

Although Plaintiffs also argue that their proposed 15-inch or 16-inch
alternatives would have accomplished the Forest Service’s goals more
effectively than the “no action” approach, this argument is irrelevant, as
an agency is always required to consider a “no action” approach. See
Native Ecosystems Council, 428 F.3d at 1245-46.

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The Forest Service’s argument is consistent with our previous reasoning in Native Ecosystems Council, that “it makes no
sense” for agencies “to consider alternatives that do not promote the goal” or the “purpose” the agency is trying to
accomplish. 428 F.3d at 1248 (internal quotation marks omitted). Thus, we held that “[w]hen the purpose of the . . . Project
is to reduce fire risk, the Forest Service need not consider
alternatives that would increase fire risk.” Id.
Similarly, a Fifth Circuit case has explained that “it makes
little sense to fault an agency for failing to consider more
environmentally sound alternatives to a project which it has
properly determined, through its decision not to file an impact
statement, will have no significant environmental effects anyway.” Sierra Club v. Espy, 38 F.3d 792, 803 (5th Cir. 1994)
(internal quotation marks omitted). Moreover, in Louisiana
Crawfish Producers Ass’n-West v. U.S. Army Corps of Engineers, 463 F.3d 352, 356-57 (5th Cir. 2006), the Fifth Circuit
explained that the Army Corps was not required to explain in
its EA why it had rejected an alternative, when that alternative
resulted in sedimentation above the Army Corps’ desired
goal. The court reasoned that there is “no case law” that “require[s an agency] to consider and reject [a] proposed alternative in [an] EA.” Id. at 356. Further, “the range of alternatives
that the [agency] must consider decreases as the environmental impact of the proposed action becomes less and less substantial.” Id. at 357 (alteration in original) (internal quotation
marks omitted). Therefore, the court relied on the arguments
“the Corps has briefed [discussing] why the proposal was not
accepted” to determine that the “Corps was not arbitrary and
capricious in choosing to reject the [plaintiff’s] proposed
alternative.” Id. (emphasis added).
[13] The concerns that Plaintiffs raise all rely on authority
dealing with the more stringent analysis requirements for an
EIS. However, under the less stringent analysis requirements
for an EA, the Forest Service’s consideration of alternatives
was not arbitrary and capricious.

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4.

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Requisite “Hard Look” at Impacts

[14] Plaintiffs argue that the Forest Service failed to take
a “hard look” at the Angora Project’s impact on black-backed
woodpeckers and future fire behavior. Plaintiffs rely on the
Forest Service’s “analytical failings as a whole” in the EA in
support of this argument. However, because we do not agree
that the alleged analytical failings of the Forest Service were
arbitrary and capricious, Plaintiffs have not demonstrated that
the Forest Service’s analysis overall failed to take the required
hard look under NEPA.
IV.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s
decision.