FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIERRA CLUB; SIERRA NEVADA
FOREST PROTECTION CAMPAIGN,
Plaintiffs-Appellants,
v. No. 05-16989
DALE BOSWORTH, Chief of the US
Forest Service; JOHN BARRY; D.C. No.
CV-04-02114-GEB
LAURIE TIPPIN; UNITED STATES
OPINION
FOREST SERVICE; ANN M.
VENEMAN; DEPT. OF AGRICULTURE;
MIKE JOHANNS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
April 16, 2007—San Francisco, California
Filed December 5, 2007
Before: David R. Thompson, Andrew J. Kleinfeld, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thompson;
Concurrence by Judge Kleinfeld
15927
SIERRA CLUB v. BOSWORTH 15931
COUNSEL
Eric. E. Hubner, Boulder, Colorado, and Kristin Henry, San
Francisco, California, for the plaintiffs-appellants.
MacGregor W. Scott, Sacramento, California, for defendants-
appellees.
OPINION
THOMPSON, Senior Circuit Judge:
Appellants the Sierra Club and the Sierra Nevada Forest
Protection Campaign (collectively, “Sierra Club”) appeal the
district court’s summary judgment in favor of the United
States Forest Service and Department of Agriculture (collec-
tively, “Forest Service”), in their action alleging that the
defendants violated the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321-4370f. The Sierra Club chal-
lenges the Forest Service’s establishment of a NEPA categori-
cal exclusion (“Fuels CE”) for all fuel reduction projects up
to 1,000 acres and prescribed burn projects up to 4,500 acres
on all national forests in the United States.
We conclude that the Forest Service failed to assess prop-
erly the significance of the hazardous fuels reduction categori-
cal exclusion and thus it failed to demonstrate that it made a
“reasoned decision” to promulgate the Fuels CE based on rel-
evant factors and information. Accordingly, its promulgation
of the Fuels CE was arbitrary and capricious. See Marsh v.
Or. Natural Res. Council, 490 U.S. 360, 378 (1989); see also
40 C.F.R. § 1505.1. We reverse the district court’s summary
judgment in favor of the Forest Service and remand this case
for further proceedings as hereafter set forth.
15932 SIERRA CLUB v. BOSWORTH
I Background
A. Statutory and Regulatory Framework
NEPA is a procedural statute that does not “mandate partic-
ular results, but simply provides the necessary process to
ensure that federal agencies take a hard look at the environ-
mental consequences of their actions.” Neighbors of Cuddy
Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002)
(internal quotation marks omitted). To carry out the “hard
look” requirement, NEPA requires all federal agencies to pre-
pare a detailed Environmental Impact Statement (“EIS”) for
“every recommendation or report on proposals for legislation
and other major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(2)(C).
Under CEQ implementing regulations, an agency as a prelim-
inary step may prepare an Environmental Assessment (“EA”)
to determine whether the environmental impact of the pro-
posed action is significant enough to warrant an EIS. See 40
C.F.R. § 1508.9; Nat’l Parks & Conservation Ass’n v. Bab-
bitt, 241 F.3d 722, 730 (9th Cir. 2001). If an EA establishes
that the agency’s action “may have a significant effect upon
the . . . environment, an EIS must be prepared.” Id. (internal
quotation marks omitted) (alteration in original) (emphasis in
original). If the proposed action is found to have no signifi-
cant effect, the agency must issue a finding to that effect (a
“FONSI”), “accompanied by a convincing statement of rea-
sons to explain why a project’s impacts are insignificant.” Id.
(internal quotation marks omitted).
However, an agency does not have to prepare an EIS or an
EA if the action to be taken falls under a categorical exclusion
(“CE”). Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189
F.3d 851, 853-54 (9th Cir. 1999) (citing 40 C.F.R. § 1508.4).
“Pursuant to Council of Environmental Quality (CEQ) regula-
tions, each agency is required to identify categories of actions
which do not individually or cumulatively have a significant
effect on the human environment.” Id. (citing 40 C.F.R.
SIERRA CLUB v. BOSWORTH 15933
§§ 1507.3(b)(2)(ii), 1508.4). The CE procedures developed by
agencies “shall provide for extraordinary circumstances in
which a normally excluded action may have a significant
environmental effect,” 40 C.F.R. § 1508.4, in which case an
EIS or an EA/FONSI would be required.
B. Fuels Categorical Exclusion
The Forest Service developed the Fuels CE in response to
the Healthy Forests Initiative, announced by President Bush
on August 22, 2002. National Environmental Policy Act Doc-
umentation Needed for Fire Management Activities; Categori-
cal Exclusions, 67 Fed. Reg. 77038, 77039 (Dec. 16, 2002)
(codified at Forest Service Handbook 1909.15, ch. 30, § 31.2
(10) (2004) (hereinafter, “FSH”)). The Healthy Forests Initia-
tive directed “the Departments of Agriculture and Interior and
the Council on Environmental Quality to improve regulatory
processes to ensure more timely decisions, greater efficiency,
and better results in reducing the risk of catastrophic wildfires
by restoring forest health.” Id. The Healthy Forests Initiative
was prompted by the year 2000 fire season, which was one of
the worst in 50 years, with 123,000 fires burning more than
8.4 million acres, more than twice the 10-year national aver-
age. Id.
The Deputy Chief of the Forest Service announced on Sep-
tember 11, 2002, his intention to establish a categorical exclu-
sion for fuels reduction activities on national forests, and
requested data regarding fuels treatment projects from all
Regional Foresters. The data call generated for the Fuels CE
surveyed 2,500 hazardous fuels reduction and rehabilitation/
stabilization projects involving treatment of more than
2,500,000 acres. On December 16, 2002, the Forest Service
gave public notice of and requested comment on the proposed
Fuels CE. 67 Fed. Reg. at 77038. The Forest Service received
39,000 comments on the Fuels CE, National Environmental
Policy Act Documentation Needed for Fire Management
Activities; Categorical Exclusions, 68 Fed. Reg. 33814,
15934 SIERRA CLUB v. BOSWORTH
33815 (June 5, 2003), and published the final Fuels CE on
June 5, 2003, id. at 33814.
The Fuels CE is designed to reduce and thin hazardous
fuels, which are “combustible vegetation (live or dead), such
as grass, leaves, ground litter, plants shrubs, and trees, that
contribute to the threat of ignition and high fire intensity and/
or high rate of spread.” 67 Fed. Reg. at 77040. “Hazardous
fuels reduction involves manipulation, including combustion
or removal of fuels, to reduce the likelihood of ignition and/
or to lessen potential damage to the ecosystem from intense
wildfire and to create conditions where firefighters can safely
and effectively control wildfires.” Id. at 77040-41. The Fuels
CE encompasses “[h]azardous fuels reduction activities using
prescribed fire, not to exceed 4,500 acres, and mechanical
methods for crushing, piling, thinning, pruning, cutting, chip-
ping, mulching, and mowing, not to exceed 1,000 acres.” FSH
§ 1909.15, ch. 30, §31.2 (10).1 Any project proposed under
1
The complete hazardous fuels reduction category is, as follows:
[h]azardous fuels reduction activities using prescribed fire, not to
exceed 4,500 acres, and mechanical methods for crushing, piling,
thinning, pruning, cutting, chipping, mulching, and mowing, not
to exceed 1,000 acres. Such activities:
a. Shall be limited to areas:
(1) In the wildland-urban interface; or
(2) Condition Classes 2 or 3 in Fire Regime Groups I, II, or
III, outside the wildland-urban interface;
b. Shall be identified through a collaborative framework as
described in “A Collaborative Approach for Reducing Wild-
land Fire Risks to Communities and Environment 10-Year
Comprehensive Strategy Implementation Plan”;
c. Shall be conducted consistent with agency and Departmental
procedures and applicable land and resource management
plans;
d. Shall not be conducted in wilderness areas or impair the suit-
ability of wilderness study areas for preservation as wilder-
ness; and
SIERRA CLUB v. BOSWORTH 15935
the Fuels CE requires a project file and decision memo, con-
sisting of a description of the categorically excluded project,
the reasons for invoking the CE, a finding that no extraordi-
nary circumstances exist, and a description of the public
involvement. Id.
The Fuels CE calls for projects to be identified and priorit-
ized under the Secretary of the Interior and the United States
Department of Agriculture’s (“USDA”) “10-Year Compre-
hensive Strategy Implementation Plan.”2 67 Fed. Reg. at
77042. The 10-Year Plan calls for collaboration at the local,
tribal, State and Federal levels, with the amount of collabora-
tion to be “consistent with the complexity of land ownership
patterns, resource management issues, and the number of
interested stakeholders.” Id.
The Fuels CE was preceded by another significant change
to the Forest Service Handbook, the addition of language in
the extraordinary circumstances section which permits an
action to proceed under a CE even when a listed resource con-
dition exists.3 Clarification of Extraordinary Circumstances
e. Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and may include the sale of vegetative mate-
rial if the primary purpose of the activity is hazardous fuels
reduction.
Forest Service Handbook 1909.15, ch. 30, § 31.2 (10) (2004).
2
The 10-Year Plan was developed in response to Congress’s direction
in October 2000 that the Departments of Agriculture and the Interior
develop a ten-year strategy for implementing the National Fire Plan, and
to do so in collaboration with the states most affected by fire. See Depart-
ment of the Interior and Related Agencies Appropriations Act of 2001,
106 Pub. L. No. 291, 114 Stat. 922, 1008-1010 (Oct. 11, 2000) (requesting
agencies to prepare a strategic plan detailing their plans to use the nearly
$1 billion appropriated to address wildland fire danger, and to investigate
the possibility of expedited NEPA compliance procedures).
3
The previous Forest Service Handbook, adopted in 1992, required that
“a proposed action may be categorically excluded from documentation in
15936 SIERRA CLUB v. BOSWORTH
for Categories of Actions Excluded From Documentation in
an Environmental Assessment or an Environmental Impact
Statement, 67 Fed. Reg. 54622, 54627 (Aug. 23, 2002). Old
Forest Service guidance stated that examples of extraordinary
circumstances included, but were not limited to, the presence
of the following factors: steep slopes or highly erosive soils;
threatened and endangered species or their critical habitat;
flood plains, wetlands, or municipal watersheds; Congressio-
nally designated areas, such as wilderness, wilderness study
areas, or National Recreation Areas; inventoried roadless
areas; Research Natural Areas; and Native American religious
or cultural sites, archaeological sites, or historic properties or
areas. FSH § 1909.15, ch. 30, § 31.2 (2) (1992); see also
Dep’t of Agric., National Environmental Policy Act; Revised
Policy and Procedures, 57 Fed. Reg. 43180, 43208 (Sept. 18,
1992).
Now, however, these factors are “resource conditions that
should be considered” to determine whether extraordinary cir-
cumstances exist, but do not require any particular result. FSH
§ 1909.15, ch. 30, § 30.3 (2) (2007). The new Handbook
grants the Forest Service discretion to determine when an
extraordinary circumstance exists, because it provides that
“the mere presence of one or more of these resource condi-
tions does not preclude use of categorical exclusions.” Id.
Whereas the old Handbook called for production of an EA
when one of these conditions was present, the new guidelines
call for a preliminary analysis to determine whether there
exists “a cause-effect relationship between a proposed action
and the potential effect on these resource conditions and [ ] if
an environmental impact statement (EIS) or environmental assessment
(EA) only if the proposed action . . . [i]s within a category listed in sec.
31.1b or 31.2; and there are no extraordinary circumstances related to the
proposed action.” Forest Service Handbook § 1909.15.30.3(2) (1992); see
also Dep’t of Agric., National Environmental Policy Act; Revised Policy
and Procedures, 57 Fed. Reg. 43180, 43208 (Sept. 18, 1992).
SIERRA CLUB v. BOSWORTH 15937
such a relationship exists, the degree of the potential effect of
a proposed action on these resource conditions.” Id.
The Forest Service developed the new “extraordinary cir-
cumstances” provision in response to “[p]ublic and employee
confusion” and court decisions which had interpreted the pre-
vious rules to require preparation of an EIS whenever any
condition was present. See 67 Fed. Reg. at 54623-24; see also
Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986) (holding
that because the elements of the extraordinary circumstances
provision were in the disjunctive, “if any of the elements is
present, the Service must prepare an environmental assess-
ment or an environmental impact statement”).
C. Eldorado and Lassen Projects
The Sierra Club challenged the application of the Fuels CE
to three projects scheduled for 2004 in the Eldorado National
Forest — the Grey Eagle Fuels Reduction Project (logging
984 acres and prescribed burning 4,149 acres), the Forest
Guard Fuels Reduction Project (logging and prescribed burn-
ing 412 acres), and the Rockeye Fuels Reduction Project (log-
ging and prescribed burning 513 acres). The Sierra Club also
challenged one project in the Lassen National Forest, the
Adams Windthrow Fuels Reduction Project (wind thrown tree
removal on 760 acres), but withdrew its challenge to that proj-
ect at a motions hearing in the district court after the Forest
Service decided not to proceed with the project. However, as
the Forest Service has other Fuels CE projects planned for the
Lassen National Forest, the Sierra Club on appeal continues
to challenge the application of the Fuels CE to the Lassen
National Forest.
According to the most recent schedule of proposed actions,
the Forest Service has fifteen or more Fuels CE projects
planned for the Eldorado National Forest, covering more than
8,000 acres, U.S. Forest Serv., Schedule of Proposed Actions
4/1/2007 - 6/30/2007 Eldorado National Forest, available at
15938 SIERRA CLUB v. BOSWORTH
http://www.fs.fed.us/sopa/components/reports/sopa-110503-
2007-04.pdf, and seven projects planned under the Fuels CE
for the Lassen National Forest, U.S. Forest Serv., Schedule of
Proposed Actions 4/1/2007 - 6/30/2007 Lassen National For-
est, available at http://www.fs.fed.us/sopa/components/
reports/sopa-110506-2007-04.pdf.
D. District Court Decision
The Sierra Club filed the instant action challenging the
Fuels CE and seeking a nationwide injunction enjoining use
of the Fuels CE. In its amended complaint, the Sierra Club
alleged that the Fuels CE is invalid because (1) the CE inap-
propriately includes activities that have significant effects; (2)
data underlying the Fuels CE did not support promulgation of
the CE; (3) the Forest Service did not adequately identify
activities covered by the CE; and (4) the Forest Service did
not adequately determine there were no “extraordinary cir-
cumstances” under which the CE would not be appropriate.
The Sierra Club also asserted that the Forest Service violated
NEPA by failing to prepare an EA/FONSI or an EIS for the
Fuels CE, and that the Fuels CE was incorrectly applied to the
four projects in the Eldorado and Lassen National Forests.
On August 19, 2005, the district court granted the Sierra
Club’s motion to supplement the record with declarations
from three of its experts, Craig Thomas, Dr. Denis Odion, and
Monica Bond, but struck portions of the Thomas declaration.
In the same ruling, the district court granted summary judg-
ment in favor of the Forest Service.
The district court found that, in accordance with the Sev-
enth Circuit’s decision in Heartwood, Inc. v. United States
Forest Service, 230 F.3d 947, 954 (7th Cir. 2000), the Forest
Service is not required to produce an EIS or an EA prior to
promulgating a CE. The district court found that the Sierra
Club had not demonstrated that the Forest Service’s method-
ology was irrational or that its reliance on its own expert opin-
SIERRA CLUB v. BOSWORTH 15939
ions was misplaced. The district court also found that the
Forest Service had adequately determined and documented
that no extraordinary circumstances existed in the four proj-
ects which would trigger the requirement for an EA or EIS
and that the proposed fuels treatment did not increase fire
risk. The district court entered summary judgment in favor of
the Forest Service, and this appeal followed.
II Standards of Review
We review a grant of summary judgment de novo, viewing
the decision of the Forest Service from the same position as
the district court. Nev. Land Action Ass’n v. U.S. Forest Serv.,
8 F.3d 713, 716 (9th Cir. 1993). Summary judgment is appro-
priate “if the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c).
A. Challenge to Application of Fuels CE to Eldorado
and Lassen National Forest
The Sierra Club and the Forest Service agree that the
Administrative Procedure Act’s (APA) arbitrary and capri-
cious standard applies to the Sierra Club’s challenge to the
Fuels CE’s application to the Eldorado and Lassen National
Forest projects. “An agency’s determination that a particular
action falls within one of its categorical exclusions is
reviewed under the arbitrary and capricious standard.” Alaska
Ctr., 189 F.3d at 857.
Under the APA, a court may set aside an agency action if
the court determines that the action is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); see also Marsh, 490 U.S. at 375-
77 (arbitrary and capricious standard applies to agency find-
ings which involve agency expertise). “Although this inquiry
15940 SIERRA CLUB v. BOSWORTH
into the facts is to be searching and careful, the ultimate stan-
dard of review is a narrow one.” Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977). Under this deferential standard, we are “not empow-
ered to substitute [our] judgment for that of the agency.” Id.
Consequently, we may reverse the decision as arbitrary or
capricious only
if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an
important aspect of the problem, offered an explana-
tion that ran counter to the evidence before the
agency, or offered one that is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.
W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996).
Nevertheless, to withstand review “[t]he agency [ ] must
articulate a rational connection between the facts found and
the conclusions reached.” Earth Island Inst. v. U.S. Forest
Serv., 442 F.3d 1147, 1156-57 (9th Cir. 2006). We will defer
to an agency’s decision only if it is “fully informed and well-
considered,” Save the Yaak Comm. v. Block, 840 F.2d 714,
717 (9th Cir. 1988) (internal quotation marks omitted), and
we “will disapprove of an agency’s decision if it made ‘a
clear error of judgment,’ ” West v. Sec’y of Dep’t of Transp.,
206 F.3d 920, 924 (9th Cir. 2000) (quoting Marsh, 490 U.S.
at 378). Furthermore, when an agency has taken action with-
out observance of the procedure required by law, that action
will be set aside. Idaho Sporting Cong., Inc. v. Alexander, 222
F.3d 562, 567-68 (9th Cir. 2000).
B. Challenge to the Fuels CE
The Forest Service argues that the proper standard of
review for the Sierra Club’s challenge to the Fuels CE itself
SIERRA CLUB v. BOSWORTH 15941
is the “no set of circumstances” standard of review for facial
challenges to statutes, as that standard was established by the
Supreme Court in United States v. Salerno, 481 U.S. 739, 745
(1987), and extended by the Court in Reno v. Flores, 507 U.S.
292, 301 (1993), to agency regulations reviewed for inconsis-
tency with the authorizing statute. Under the “no set of cir-
cumstances” test, the Sierra Club would have to establish
“that no set of circumstances exists under which the regula-
tion would be valid.” Akhtar v. Burzynski, 384 F.3d 1193,
1198 (9th Cir. 2004) (citing Reno, 507 U.S. at 301). The
Sierra Club, on the other hand, contends that the proper stan-
dard of review is the “arbitrary and capricious” standard gen-
erally applied to agency actions.
Jurisprudence appears to be divided on the question
whether the Salerno “no set of circumstances” standard is
dicta or whether it is to be generally applied to facial challenges.4
4
See, e.g., City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (plu-
rality opinion) (“To the extent we have consistently articulated a clear
standard for facial challenges, it is not the Salerno formulation, which has
never been the decisive factor in any decision of this Court.”); Washington
v. Glucksberg, 521 U.S. 702, 740 (1997) (Stevens, J., concurring) (com-
menting on Court’s failure to apply Salerno standard even though chal-
lenge to assisted suicide ban was facial challenge, and stating that “I do
not believe the Court has ever actually applied such a strict standard, even
in Salerno itself” (footnote omitted)); Janklow v. Planned Parenthood,
Sioux Falls Clinic, 517 U.S. 1174, 1175 (1996) (Stevens, J., concurring in
denial of cert.) (stating that Salerno “no set of circumstances” standard
“does not accurately characterize the standard for deciding facial chal-
lenges,” and that this “rigid and unwise dictum has been properly ignored
in subsequent cases even outside the abortion context”); Planned Parent-
hood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992) (statute facially invalid
as “substantial obstacle” to exercise of right in “large fraction” of cases);
id. at 972-73 (Rehnquist, C.J., concurring in judgment in part and dissent-
ing in part) (arguing that “no set of circumstances” dictum should have led
to different result); Kraft Gen. Foods, Inc. v. Iowa Dep’t of Revenue &
Fin., 505 U.S. 71, 82-83 (1992) (Rehnquist, C.J., dissenting) (arguing that
tax statute was facially valid because it would be constitutional under cer-
tain facts); Bowen v. Kendrick, 487 U.S. 589, 602 (1988) (statute facially
invalid under Establishment Clause only if, inter alia, law’s “primary
15942 SIERRA CLUB v. BOSWORTH
We have mentioned the “no set of circumstances” standard in
only one published opinion, Akhtar v. Burzynski, where we
stated the standard and cited Reno, but did not discuss or
apply it. 384 F.3d at 1198. On the other hand, we have on
many occasions applied the Chevron test to facial challenges
to agency regulations with no mention of the “no set of cir-
cumstances” test. See, e.g., Natural Res. Def. Council v. Nat’l
Marine Fisheries Serv., 421 F.3d 872, 877-78 (9th Cir. 2005);
Cal. ex. rel. Lockyer v. Fed. Energy Regulatory Comm’n, 383
F.3d 1006, 1011-13 (9th Cir. 2004); Envtl. Def. Ctr., Inc. v.
U.S. Envtl. Prot. Agency, 344 F.3d 832, 854-55 (9th Cir.
2003); see also Babbitt v. Sweet Home Chapter, 515 U.S. 687,
703-04 (1995).
Apart from our general absence of application of the “no
set of circumstances” standard, we are not convinced that it
should be applied to agency procedures such as the categori-
cal exclusions in the present case. Indeed, the first circuit
court to address a facial attack on a Forest Service categorical
exclusion, Heartwood, Inc. v. United States Forest Service,
230 F.3d at 953, applied the “arbitrary and capricious” stan-
dard of review under the APA, 5 U.S.C. § 706. See also Cel-
lular Phone Taskforce v. F.C.C., 205 F.3d 82, 93-94 (2d Cir.
2000) (applying arbitrary and capricious standard of review to
facial challenge to CE established by the FCC).5
We need not decide, however, whether Salerno’s “no set of
circumstances” standard is the proper standard of review for
effect” is advancement of religion, or if it requires “excessive entangle-
ment” between church and state); id. at 627 n.1 (Blackmun, J., dissenting)
(pointing out and agreeing with majority’s rejection of “no set of circum-
stances” dictum); Michael C. Dorf, Facial Challenges to State and Fed-
eral Statutes, 46 Stan. L. Rev. 235, 236, 238 (1994).
5
We note that the Tenth Circuit in Colorado Wild v. United States For-
est Service, 435 F.3d 1204, 1214 (10th Cir. 2006), applied the Salerno “no
set of circumstances” review to a facial challenge to a Forest Service cate-
gorical exclusion.
SIERRA CLUB v. BOSWORTH 15943
facial challenges to agency procedures, because even if we
were to apply that standard in this case, it would not benefit
the Forest Service. If the Forest Service failed to comply with
the procedures required under NEPA in promulgating the
Fuels CE, then its procedural noncompliance would render
the Fuels CE unlawful regardless of how the CE is applied.
The invalidity of the CE flows from the NEPA violation, not
from the application of the CE. Moreover, our review of the
validity of the promulgation of the CE is based upon only the
evidence available to the agency at the time the agency made
the decision to adopt the CE. See Overton Park, 401 U.S. at
419-20 (directing federal courts to base review on full admin-
istrative record before the agency at time decision was made).
In other words, if the Sierra Club’s claims have merit, the
stricter Salerno standard is met and there would be no set of
circumstances under which the Fuels CE could be valid
because the Forest Service failed to comply with NEPA.
III Discussion
A. Preparation of an EIS or an EA/FONSI
Although an agency need not prepare an EIS or an EA if
an individual action falls under a valid categorical exclusion,
the Sierra Club argues that the promulgation of the new Fuels
categorical exclusion itself requires an EIS or an EA/FONSI
because it is a major federal action which has a significant
impact on the environment. See 42 U.S.C. § 4332(C).
The Sierra Club contends that the Fuels CE is a major fed-
eral action because it qualifies as a rule, which is defined
under the APA as “the whole or a part of an agency statement
of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or policy or
describing the organization, procedure, or practice require-
ments of an agency.” 5 U.S.C. § 551(4). Rules are federal
actions under the regulations published by the CEQ. 40
C.F.R. § 1508.18(a) (stating that federal actions include “new
15944 SIERRA CLUB v. BOSWORTH
or revised agency rules, regulations, plans, policies, or proce-
dures; and legislative proposals”). Even if the Fuels CE is not
a rule, regulation, or procedure, the Sierra Club alternatively
argues that it would fall under the major federal action defini-
tion of a “program,” see 40 C.F.R. § 1508.18(b)(3), because
it implements and carries out the policy of the President’s
Healthy Forests Initiative.
[1] The flaw in the Sierra Club’s argument is that a categor-
ical exclusion is by definition not a major federal action
because the CEQ regulations define it to be “a category of
actions which do not individually or cumulatively have a sig-
nificant effect on the human environment and which have
been found to have no such effect.” 40 C.F.R. § 1508.4. The
CEQ regulations also explicitly state that for this “category of
actions,” no EIS or EA is required. Id.
Accordingly, the one court to address this issue, the Sev-
enth Circuit in Heartwood, determined that because categori-
cal exclusions “by definition, do not have a significant effect
on the quality of the human environment,” the promulgation
of a new categorical exclusion does not require issuance of an
EIS or an EA/FONSI. 230 F.3d at 954; see also Daniel R.
Mandelker, NEPA Law & Litigation 7:10 (2d ed. 2003)
(“Consultation with CEQ on the adoption of categorical
exclusions is required, but a categorical exclusion adoption
does not require an environmental assessment or an impact
statement.”). The Sierra Club’s attempt to distinguish Heart-
wood on the basis that the categorical exclusion at issue here
differs in significance is unavailing because the court in
Heartwood based its holding on the regulatory definition of
categorical exclusion, not on the substance of the specific cat-
egorical exclusion at issue. 230 F.3d at 954-55.
[2] Moreover, the promulgation of a categorical exclusion
is an implementing procedure of the CEQ regulations, regula-
tions which do not require an EA/FONSI prior to promulga-
tion of a CE. The CEQ regulations require agencies to
SIERRA CLUB v. BOSWORTH 15945
establish “agency procedures” that include “specific criteria
for and identification of those typical classes of action . . .
which normally do not require either an environmental impact
statement or an environmental assessment.” 40 C.F.R.
§ 1507.3(b). However, no EIS or EA/FONSI need be pro-
duced prior to promulgation of a CE; rather, the agency need
only “consult with the Council while developing its proce-
dures and before publishing them in the Federal Register for
comment” and adopt procedures “only after an opportunity
for public review and after review by the Council for confor-
mity with the Act and these regulations.” Id. § 1507.3(a). We
therefore agree with the Seventh Circuit that “[f]or these pro-
cedures, the CEQ does not mandate that agencies conduct an
EA before classifying an action as a CE and we must give
great deference to the CEQ’s interpretation of its own regula-
tions.” Heartwood, 230 F.3d at 954 (citing Andrus v. Sierra
Club, 442 U.S. 347, 358 (1979)).
In addition, the decision not to produce an EIS or an EA
when promulgating a CE is not a change in the Forest Ser-
vice’s policy. Significantly, although the Sierra Club argues
that for more than 20 years EISs have been required for rules
and regulations, the Sierra Club points to no prior instance
where an agency has produced an EA/FONSI to accompany
promulgation of a new CE. None of the cases in which plain-
tiffs have challenged a CE itself made mention of an EA/
FONSI preceding the establishment of the CE. See, e.g., Colo.
Wild v. U.S. Forest Serv., 435 F.3d 1204, 1211-14 (10th Cir.
2006); Cellular Phone Taskforce, 205 F.3d at 93-94; Heart-
wood, 230 F.3d at 954.
Rather than require the Forest Service to produce an EIS or
an EA/FONSI, which the CEQ regulations do not require
when the Forest Service promulgates a CE, we will examine
the record to determine whether the evidence supports the
Forest Service’s determination that the identified category of
actions in the Fuels CE do not individually or cumulatively
have a significant impact on the environment. See Mandelker,
15946 SIERRA CLUB v. BOSWORTH
NEPA Law & Litigation § 7:10 (“The effect of this method of
defining categorical exclusions is to apply the same criteria
for determining whether an impact statement is necessary to
the categorical exclusion decision.”).
B. Fuels CE not in compliance with NEPA
We conclude that because the Forest Service failed to dem-
onstrate that it made a “reasoned decision” to promulgate the
Fuels CE based on all the relevant factors and information, its
promulgation of the Fuels CE was arbitrary and capricious.
Marsh, 490 U.S. at 378; see also 40 C.F.R. § 1505.1. “When
an agency decides to proceed with an action in the absence of
an EA or EIS, the agency must adequately explain its deci-
sion.” Alaska Ctr., 189 F.3d at 859. The Service erred by con-
ducting the data call as a post-hoc rationale for its
predetermined decision to promulgate the Fuels CE, failing to
properly assess significance, failing to define the categorical
exclusion with the requisite specificity, and therefore basing
its decision on an inadequate record.
1. Improper Post-Hoc Decision-Making
[3] The Department of the Interior and the Forest Service
inappropriately decided to establish a categorical exclusion
for hazardous fuels reduction before conducting the data call.
In requesting the data call, the Deputy Chief of the Forest Ser-
vice stated that the Forest Service “intend[s] to put this infor-
mation to good use supporting a categorical exclusion for
fuels treatment, rehab and salvage.” Post-hoc examination of
data to support a pre-determined conclusion is not permissible
because “[t]his would frustrate the fundamental purpose of
NEPA, which is to ensure that federal agencies take a ‘hard
look’ at the environmental consequences of their actions,
early enough so that it can serve as an important contribution
to the decision making process.” California v. Norton, 311
F.3d 1162, 1175 (9th Cir. 2002) (citation omitted). “[P]ost-
decision information [ ] may not be advanced as a new ratio-
SIERRA CLUB v. BOSWORTH 15947
nalization either for sustaining or attacking an agency’s deci-
sion.” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,
100 F.3d 1443, 1450 (9th Cir. 1996).
Moreover, the Forest Service failed to engage in the
required “scoping process” prior to establishment of the cate-
gorical exclusion in order to “ ‘determine the scope of the
issues to be addressed and for identifying the significant
issues related to a proposed action.’ ” Alaska Ctr., 189 F.3d
at 858 (quoting 40 C.F.R. § 1501.7); see also FSH § 1909.15,
ch. 30.3. In determining the “scope” of a proposed project, the
responsible Forest Service officer is required to consider the
cumulative impacts of connected, cumulative, and similar
actions, and is required to produce an EA if the proposed proj-
ect may have a significant effect on the environment. See FSH
§ 1909.15, ch. 30.3; 40 C.F.R. § 1508.25(a)(3).
[4] As the CEQ regulations state, NEPA procedures consti-
tute the framework decisional process, and “NEPA’s purpose
is not to generate paperwork—even excellent paperwork—but
to foster excellent action.” 40 C.F.R. § 1500.1(c). The deter-
mination that a categorical exclusion was the proper path to
take should have taken place after scoping, reviewing the data
call, and determining that the proposed actions did not have
individually or cumulatively significant impacts.
2. Failure to properly assess significance
“Categorical exclusions, by definition, are limited to situa-
tions where there is an insignificant or minor effect on the
environment.” Alaska Ctr., 189 F.3d at 859; see also 40
C.F.R. § 1508.4. The Forest Service must document that the
action to be undertaken is insignificant because the “threshold
question in a NEPA case is whether a proposed project will
‘significantly affect’ the environment, thereby triggering the
requirement for an EIS.” Blue Mountains Biodiversity Project
v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citing 42
U.S.C. § 4332(2)(c)). The Forest Service did not do this. It
15948 SIERRA CLUB v. BOSWORTH
failed to consider adequately the unique characteristics of the
applicable geographic areas, the degree to which effects on
the quality of the environment were controversial or the risks
were unknown, the degree to which the CEs might establish
a precedent for future actions with significant effects or repre-
sented a decision in principle about future considerations, the
degree to which the actions might affect endangered species,
and whether there existed cumulative impacts from other
related actions. 40 C.F.R. § 1508.27(b).
a. Cumulative Impacts
[5] The Forest Service concedes that no cumulative impacts
analysis was performed for the Fuels CE as a whole. The For-
est Service must perform this impacts analysis prior to pro-
mulgation of the CE. See 40 C.F.R. § 1508.4. “[C]umulative
impact analysis must be timely. It is not appropriate to defer
consideration of cumulative impacts to a future date when
meaningful consideration can be given now.” Kern v. U.S.
Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002)
(citing Neighbors of Cuddy Mountain, 137 F.3d at 1380).
That the Forest Service may perform an impacts analysis at
the project level does not relieve it of its obligation to ensure
that the Fuels CE as a whole has no cumulative impacts. Rely-
ing solely on a project level analysis is inadequate because it
fails to consider impacts from past, present, or reasonably
foreseeable future Fuels CE projects which may be located in
close proximity, in the same watershed or endangered species
habitat area. The CEQ regulations define “cumulative impact”
as
the 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.
SIERRA CLUB v. BOSWORTH 15949
40 C.F.R. § 1508.7. The regulations further state that
“[c]umulative impacts can result from individually minor but
collectively significant actions taking place over a period of
time.” Id. The record of decision must contain a “useful anal-
ysis of the cumulative impacts of past, present, and future
projects,” which requires “discussion of how [future] projects
together with the proposed . . . project will affect [the environ-
ment].” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177
F.3d 800, 810 (9th Cir. 1999) (internal quotation marks omit-
ted) (alterations in original).
Moreover, “NEPA [ ] prohibit[s] an agency from breaking
up a large or cumulative project into smaller components in
order to avoid designating the project a major federal action”
that would be subject to NEPA analysis requirements. Chur-
chill County v. Norton, 276 F.3d 1060, 1076 (9th Cir. 2001)
(internal quotation marks omitted). As the Sierra Club points
out, if assessing the cumulative impacts of the Fuels CE as a
whole is impractical, then use of the categorical exclusion
mechanism was improper. Cf. Nat’l Parks & Conservation
Ass’n, 241 F.3d at 733 (“[T]he Parks Service’s repeated
generic statement that the effects are unknown does not con-
stitute the requisite ‘hard look’ mandated by the statute if
preparation of an EIS is to be avoided.”).
[6] That an impacts analysis be done is of critical impor-
tance in a situation such as here, where the categorical exclu-
sion is nationwide in scope and has the potential to impact a
large number of acres. While dependent on the risk of wild-
fire, the Fuels CE could potentially be applicable beyond the
wildland-urban interface to all units of the national forest sys-
tem, totaling 192 million acres of land within 155 national
forests and 20 national grasslands. National Forest System
Land and Resource Management Planning, 65 Fed. Reg.
67514, 67514 (Nov. 9, 2000). The final notice published in
the federal registry for the Fuels CE states that the projects
surveyed represent a reasonable projection of its future use,
68 Fed. Reg. at 33815, which, at 2.5 million acres over 2
15950 SIERRA CLUB v. BOSWORTH
years, would exceed 1.2 million acres per year treated under
the Fuels CE.
The Forest Service’s assertion that the Fuels CE is not a
nationwide program that would necessitate a cumulative
impacts analysis because it has no immediate direct effects is
disingenuous; the Fuels CE is precisely a nationwide program
that was designed to implement the 10-year plan in a way that
avoids the need for production of EIS’s or EAs. And, as dem-
onstrated by the number of projects already planned or
approved in just the Eldorado and Lassen National Forests,
actions directly affecting the environment are being taken
under the Fuels CE. In addition, as the Sierra Club points out,
we rejected similar arguments regarding the hypothetical
nature of causation in Citizens for Better Forestry v. U.S.
Dep’t of Agric., 341 F.3d 961, 973-75 (9th Cir. 2003), and
Kootenai Tribe of Id. v. Veneman, 313 F.3d 1094, 1115 (9th
Cir. 2002). An environmental analysis must be performed
even for broad programmatic actions. See 40 C.F.R.
§ 1502.4(b); cf. Nat’l Parks & Conservation Ass’n, 241 F.3d
at 733-34; Blue Mountains Biodiversity Project, 161 F.3d at
1213.
[7] Although the record does contain a report from the
Department of Interior summarizing the results of the data
call, this report is inadequate as a cumulative impacts analysis
because it offers only conclusory statements that there would
be no significant impact. Cf. Muckleshoot, 177 F.3d at 811
(“While the district court was correct in observing that there
are ‘twelve sections entitled cumulative effects,’ these sec-
tions merely provide very broad and general statements
devoid of specific, reasoned conclusions.”). The Forest Ser-
vice does not reveal its methodology or offer any quantified
results supporting its conclusory statements that there are no
cumulative impacts — it argues only that through the exercise
of its expertise it determined that there was no such impact.
This is insufficient. See Klamath-Siskiyou Wildlands Ctr. v.
B.L.M., 387 F.3d 989, 993 (9th Cir. 2004) (“A proper consid-
SIERRA CLUB v. BOSWORTH 15951
eration of the cumulative impacts of a project requires some
quantified or detailed information.” (internal quotation marks
omitted)). Moreover, the cumulative impacts analysis cannot
focus only on the beneficial effects of hazardous fuels man-
agement in terms of controlling forest fires, but must also ana-
lyze the effects on the environment as a whole. Cf.
Muckleshoot, 177 F.3d at 811 (“The statement notably con-
tains no evaluation whatsoever of the impact on natural
resources of timber harvesting . . . , nor does it assess the pos-
sible impacts . . . upon surrounding areas. The statement
focuses solely on the beneficial impact the exchange will have
on lands received by the Forest Service.”).
For example, in assessing the effects on air quality from
prescribed burning, the report states that “a review of the proj-
ect data showed that these environmental effects were not
individually or cumulatively significant.” No hard data is pro-
vided to support this conclusion. There is no information on
how effects on air quality will be mitigated nor does the docu-
mentation explicitly state with which policies or smoke man-
agement plans the actions taken under the Fuels CE must
comply.
Furthermore, the report reveals potential significant effects,
such as effects on soil and water quality from mechanical
treatments, thinning operations, fire rehabilitation activities,
and temporary road construction. The report also notes that
seventy-four of the fuels projects in the data call resulted in
temporary increases in erosion, localized sterilization of soil,
and sedimentation of water quality. Nevertheless, the report
summarily concludes, without citing hard data to support its
conclusion, that there were no cumulative impacts because the
effects were “localized, temporary, and of minor magnitude.”
Yet this is precisely the reason why a global cumulative
impacts analysis must be performed — if multiple Fuels CE
projects are located in close proximity, then the effects on soil
and water quality could no longer be said to be localized or
of minor magnitude. In addition, the report reveals effects on
15952 SIERRA CLUB v. BOSWORTH
wildlife and vegetation. The effects include displacement of
wildlife from noise and activity caused by mechanized equip-
ment, and habitat modification (changes in food sources, ther-
mal and hiding cover) from changes in vegetation
composition, invasive weed species, and reduced vegetation
density.
[8] Although the report lists potential mitigation measures,
actions taken under a categorical exclusion do not require mit-
igation measures and the Fuels CE itself does not prescribe
such measures. In addition, while significant mitigation mea-
sures may compensate for adverse environmental effects, the
mitigation measures here are not “developed to a reasonable
degree” and lack supporting analytical data. Nat’l Parks &
Conservation Ass’n, 241 F.3d at 734 (internal quotation marks
omitted); cf. Okanogan Highlands Alliance v. Williams, 236
F.3d 468, 473-75 (9th Cir. 2000) (in analyzing mitigation
measures, the Forest Service conducted computer modeling to
predict the quality and quantity of environmental effects, dis-
cussed the monitoring measures to be put in place, ranked the
probable efficacy of the different measures, detailed steps to
achieve compliance should the measures fail, and identified
the environmental standards by which mitigation success
could be measured).
In order to assess significance properly, the Forest Service
must perform a programmatic cumulative impacts analysis for
the Fuels CE. The cumulative impacts analysis cannot merely
consist of conclusory statements, because “[g]eneral state-
ments about ‘possible’ effects and ‘some risk’ do not consti-
tute a ‘hard look’ absent a justification regarding why more
definitive information could not be provided.” Neighbors of
Cuddy Mountain, 137 F.3d at 1380. “The cumulative impact
analysis must be more than perfunctory; it must provide a
‘useful analysis of the cumulative impacts of past, present,
and future projects.’ ” Kern, 284 F.3d at 1075 (quoting Muck-
leshoot, 177 F.3d at 810); see also Heartwood, Inc. v. U.S.
Forest Serv., 73 F. Supp. 2d 962, 976 (S.D. Ill. 1999), aff’d,
SIERRA CLUB v. BOSWORTH 15953
230 F.3d 947 (7th Cir. 2000) (vacating and enjoining applica-
tion of timber harvest CE, in part because the “[Forest Ser-
vice] failed to adequately address or provide support for its
position that the timber harvests of these magnitude would not
have cumulative effects on the environment”).
The impacts analysis must also contain “some quantified or
detailed information.” Neighbors of Cuddy Mountain, 137
F.3d at 1379; see also Norton, 311 F.3d at 1177-78 (conclud-
ing that government needed to better document application of
CE to oil lease suspensions that allowed oil companies to
maintain production rights). “Agency regulations require that
public information be of ‘high quality’ because [a]ccurate sci-
entific analysis, expert agency comments, and public scrutiny
are essential to implementing NEPA.” Idaho Sporting Cong.,
137 F.3d at 1151 (internal quotation marks omitted) (empha-
sis in original).
[9] In accordance with the CEQ regulations, to assess sig-
nificance and measure context and intensity, the Forest Ser-
vice must assess cumulative impacts on a programmatic level.
While “[w]e recognize that the determination of the extent
and effect of [cumulative impact] factors, and particularly
identification of the geographic area within which they may
occur, is a task assigned to the special competency of the
appropriate agencies,” Blue Mountains Biodiversity Project,
161 F.3d at 1215, the Forest Service must ensure that impacts
are assessed at a level of detail such that useful data can be
generated to facilitate review. See 40 C.F.R. §§ 1502.4(b),
1508.27. The Forest Service must also consider the impacts
on wildlife and wildlife habitat. Cf. Heartwood, 73 F. Supp.
2d at 976 (vacating and enjoining application of the timber
harvest CE, in part because the Forest Service “did not distin-
guish between the environmental effects of live trees harvests
and salvage sales . . . and, in fact, failed to address the issue
of potential negative effects on wildlife at all”).
At this point, the Forest Service has a wealth of data that
it could review to determine cumulative impacts, including
15954 SIERRA CLUB v. BOSWORTH
the projects in the data call, the projects already undertaken
pursuant to the Fuels CE, and reasonably foreseeable future
projects. See 40 C.F.R. §§ 1508.7, 1508.27; Muckleshoot, 177
F.3d at 811-12 (“An agency must analyze the incremental
impact of the action when added to other past, present, and
reasonably foreseeable future actions.” (internal quotation
marks omitted) (emphasis in original)). This would address
the assertion that the projects in the data call are not compara-
ble to those taken under the CE because the data call projects
were for the most part subject to mitigation measures.
b. Highly Controversial and Risks Uncertain
[10] The Forest Service also erred in assessing significance
by failing to consider the extent to which the impact of the
fuels reduction projects on the environment was highly con-
troversial and the risks uncertain. See 40 C.F.R. § 1508.27;
Jones, 792 F.2d at 828. A proposal is highly controversial
when “substantial questions are raised as to whether a project
. . . may cause significant degradation of some human envi-
ronmental factor,” Nw. Envtl. Def. Ctr. v. Bonneville Power
Admin., 117 F.3d 1520, 1536 (9th Cir. 1997) (internal quota-
tion marks omitted), or there is a “substantial dispute [about]
the size, nature, or effect of the major Federal action,” Blue
Mountains Biodiversity Project, 161 F.3d at 1212 (alteration
in original) (internal quotation marks omitted). “A substantial
dispute exists when evidence, raised prior to the preparation
of an EIS or FONSI, casts serious doubt upon the reasonable-
ness of an agency’s conclusions.” Nat’l Parks & Conserva-
tion Ass’n, 241 F.3d at 736 (citation omitted).
[11] Here, the comments of several federal and state agen-
cies submitted in response to the Fuels CE raised substantial
questions as to whether the project would cause significant
environmental harm and expressed serious concerns about the
uncertain risk, size, nature, and effects of actions under the
CE. The United States Fish and Wildlife Service (“FWS”)
stated that reconstruction of decommissioned roads or cre-
SIERRA CLUB v. BOSWORTH 15955
ation of temporary roads could increase road density, decrease
wolf security habitat and grizzly bear core area, and contrib-
ute to increased sedimentation rate in streams. The FWS fur-
ther questioned the need for a categorical exclusion, stating
that it “supports the intent of the Healthy Forest Initiative, but
believes the existing NEPA processes are a useful and neces-
sary tool to analyze the full environmental effects of most
hazardous fuels reduction projects.” The FWS also expressed
concern that “efforts to streamline these analyses should not
results [sic] in a process counter to the basic premise of
NEPA — public disclosure.”
The Arizona Game and Fish Department (“AGFD”) noted
that fuel reduction activities have a higher likelihood of
affecting the environment than rehabilitation/stabilization
activities, yet the Forest Service data call does not adequately
identify the nature or scope of individual projects to allow for
a more detailed evaluation. AGFD pointed out that a recent
Forest Service timber sale proposed as a means to reduce fuel
loading provided for the cutting of large-diameter ponderosa
pine trees, even though ponderosa pine is a fire-resistant tree
species. AGFD also disputed the Forest Service’s determina-
tion that the Fuels CE would cause no significant impacts and
identified five of the ten evaluation criteria for significance
that are implicated by the Fuels CE, including highly uncer-
tain risks on forest structure, wildlife species, exotic species
invasion, erosion/sedimentation, and wildlife disease trans-
mission.
The AGFD further commented that it was “concerned
about making hazardous fuels reduction and rehabilitation/
stabilization actions for categorical exclusion.” The AGFD
expressed other concerns, including: “the types of activities
that will be categorically excluded; the lack of limitations on
the scope and scale of such activities; the lack of monitoring
of effects of the categorical exclusions on non-listed wildlife
species and habitats; and the over-all general nature of the cat-
egorical exclusion language.”
15956 SIERRA CLUB v. BOSWORTH
The California Resources Agency (“CRA”) commented
that the Forest Service has not evaluated the impacts of under-
story treatments on native plants and animals, and noted that
the brush to be removed in California under fuels reduction is
a significant component of fire-adapted ecosystems. The CRA
also cited a scientific article which finds that the effects of
thinning on wildlife and habitat are negative for at least 10
years, and unknown in the long-term. The CRA concluded
that “[a] significant amount of uncertainty regarding the effec-
tiveness of treatments on reduced risk and habitat use
remain.”
In addition, the CRA expressed disapproval of the use of a
categorical exclusion not requiring full NEPA review, con-
cluding that “the proposal could lead to significant degrada-
tion of public forestland in the state, especially when
considered in combination with the many other federal forest
policy proposals pending on both the state and regional
levels.” The CRA explained that “[f]uel reduction projects
will require trade-offs that need analysis and debate by the
public and decision-makers; and this is the very purpose for
which Congress passed, and President Nixon signed, the
National Environmental Policy Act.”
[12] The Forest Service failed to meet its burden to provide
a “well-reasoned explanation” demonstrating that these
responses to the Fuels CE “do not suffice to create a public
controversy based on potential environmental consequences.”
Nat’l Parks & Conservation Ass’n, 241 F.3d at 736 (internal
quotation marks omitted). Given the large number of com-
ments, close to 39,000, and the strong criticism from several
affected Western state agencies, we cannot summarily con-
clude that the effects of the Fuels CE are not controversial.
See id. (stating that 450 comments, with 85% negative, was
“more than sufficient to meet the outpouring of public pro-
test” test (internal quotation marks omitted)); Sierra Club v.
U.S. Forest Serv., 843 F.2d 1190, 1193 (9th Cir. 1988) (Forest
Service awarded timber contracts containing groves of giant
SIERRA CLUB v. BOSWORTH 15957
sequoia redwoods without preparing an EIS; after evidence
from numerous experts showing the EA’s inadequacies and
casting serious doubt on the Forest Service’s conclusions, we
held that this was “precisely the type of ‘controversial’ action
for which an EIS must be prepared”). The Forest Service must
address these issues prior to promulgating the Fuels CE.
3. Requisite Specificity
[13] The CEQ regulations require that agency procedures
on categorical exclusions include “[s]pecific criteria for and
identification of those typical classes of action . . . [w]hich
normally do not require either an environmental impact state-
ment or an environmental assessment (categorical exclusions
(§ 1508.4)).” 40 C.F.R. § 1507.3(b)(2). Although the Depart-
ment of Interior report revealed that twelve of the fuels treat-
ment projects in the data call had individually or cumulatively
significant effects, it neglected to identify what specific char-
acteristics of those projects made those effects significant.
The report also listed other effects, which, although deemed
“localized” or “temporary” in the projects analyzed, could
conceivably have a cumulative effect if multiple Fuels CE
projects were located in close proximity. The Fuels CE as
written lacks the requisite specificity to ensure that the proj-
ects taken under it achieve the objective of hazardous fuels
reduction, but do not individually or cumulatively inflict a
significant impact. See 40 C.F.R. § 1508.4. The Service must
take specific account of the significant impacts identified in
prior hazardous fuels reduction projects and their cumulative
impacts in the design and scope of any future Fuels CE so that
any such impacts can be prevented.
For example, the Fuels CE fails to identify the maximum
diameter or species of trees that are permitted to be logged
and, as the AGFD noted, allows for removal of trees, such as
the ponderosa pine, which are fire resistant. There is also no
limit on the proximity of different projects under the Fuels
CE, nor any cap on the number of projects in a particular
15958 SIERRA CLUB v. BOSWORTH
watershed, ecosystem, or endangered species habitat area. The
Fuels CE also lacks any restrictions on the thinning of trees
or the removal of combustible vegetation, and, as AGFD
points out, livestock grazing could potentially be categorically
excluded as removal of combustible vegetation, even though
grasses in most instances are not considered hazardous fuels.
There are also no provisions for identifying when tempo-
rary road removal is required, what road density is permitted,
or even a definition of what types of roads qualify as “tempo-
rary” roads. As the FWS points out, road density has signifi-
cant effects on several endangered species, as well as aquatic
habitats and stream sedimentation. The FWS also notes that
“ ‘adverse effect,’ as it pertains to extraordinary circum-
stances that may exempt a project from the proposed categori-
cal exclusions,” is not defined and “may have different
meanings for each agency.”6
IV Remedy
[14] In declaring that no significant environmental effects
were likely without complying with the requirements of
NEPA, the Forest Service’s decision-makers made a “clear
error of judgment.” Marsh, 490 U.S. at 378. Having deter-
mined that the district court erred in granting summary judg-
ment, we turn to the question of what remedy is appropriate.
The Sierra Club has made the requisite showing for injunc-
tive relief because “[e]nvironmental injury, by its nature, can
seldom be adequately remedied by money damages and is
6
Further specification and definition of what actions are permitted under
the Fuels CE based on the results of the programmatic cumulative impacts
analysis will reduce reliance on the current case-by-case approach necessi-
tated by the Fuels CE. Because the CEQ regulations require that the Forest
Service enact provisions for extraordinary circumstances, some analysis of
impacts at the project level will always be necessary. Therefore we need
not address the Sierra Club’s argument that the current approach creates
an unlawful case-by-case exception to NEPA.
SIERRA CLUB v. BOSWORTH 15959
often permanent or at least of long duration, i.e., irreparable.”
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545
(1987). Moreover, “[i]f environmental injury is sufficiently
likely, the balance of harms will usually favor the issuance of
an injunction to protect the environment.” High Sierra Hikers
Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir. 2004) (citing
Amoco, 480 U.S. at 545). While a violation of NEPA does not
automatically require the issuance of an injunction, “the pres-
ence of strong NEPA claims gives rise to more liberal stan-
dards for granting an injunction.” Am. Motorcyclist Ass’n v.
Watt, 714 F.2d 962, 965 (9th Cir. 1983). “When the proposed
project may significantly degrade some human environmental
factor, injunctive relief is appropriate.” Nat’l Parks & Conser-
vation Ass’n, 241 F.3d at 737 (internal quotation marks omit-
ted).
The balance of equities and the public interest favor issu-
ance of an injunction because allowing a potentially environ-
mentally damaging program to proceed without an adequate
record of decision runs contrary to the mandate of NEPA. See
Kootenai Tribe, 313 F.3d at 1125 (“[W]here the purpose of
the challenged action is to benefit the environment, the pub-
lic’s interest in preserving precious, unreplenishable resources
must be taken into account in balancing the hardships.”);
Nat’l Parks & Conservation Ass’n, 241 F.3d at 737. The pub-
lic interest is further implicated because the prescribed burn-
ing and logging have potential impacts on air, soil, and water
quality, and wildlife and forest resources. See Earth Island,
442 F.3d at 1177 (“The preservation of our environment, as
required by NEPA and the NFMA, is clearly in the public
interest.”); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d
1291, 1308 (9th Cir. 2003) (“[I]t is also appropriate to con-
sider the broader public interest in the preservation of the for-
est and its resources.”); cf. High Sierra Hikers, 390 F.3d at
643.
The Forest Service’s failure to properly assess the signifi-
cance of the Fuels CE, a broad programmatic action under
15960 SIERRA CLUB v. BOSWORTH
which in excess of 1.2 million acres will be annually logged
and burned, causes irreparable injury, as “[i]n the NEPA con-
text, irreparable injury flows from the failure to evaluate the
environmental impact of a major federal action.” Id. at 642.
The harm is compounded by the “added risk to the environ-
ment that takes place when governmental decisionmakers
make up their minds without having before them an analysis
(with public comment) of the likely effects of their decision
on the environment.” Citizens for Better Forestry, 341 F.3d at
971 (quoting West, 206 F.3d at 930 n.14).
[15] However, in balancing the hardships, we must recog-
nize that the challenged CE was promulgated in 2003 and
many individual projects already have been approved and are
in operational stages. The record before us does not show
which projects have been completed or are substantially near
completion. “[W]here the question of injunctive relief raise[s]
intensely factual issues, the scope of the injunction should be
determined in the first instance by the district court.” Nat’l
Parks & Conservation Ass’n, 241 F.3d at 738 (internal quota-
tion marks omitted) (alteration in original). Therefore, we
vacate the district court’s summary judgment, and remand this
case to that court with instructions to enter an injunction pre-
cluding the Forest Service from implementing the Fuels CE
pending its completion of an adequate assessment of the sig-
nificance of the categorical exclusion from NEPA. The
injunction shall be limited to those projects for which the For-
est Service did not issue approval prior to the initiation of this
lawsuit in October 2004, but we leave to the district court the
decision as to which projects approved after the lawsuit was
filed are appropriate to exclude from the injunction because
they are at or near completion.
REVERSED AND REMANDED WITH INSTRUC-
TIONS.
SIERRA CLUB v. BOSWORTH 15961
KLEINFELD, Circuit Judge, concurring:
I cannot bring myself to believe that a Forest Service deci-
sion to cut brush and use controlled burns to reduce forest fire
danger near urban areas is arbitrary and capricious. And I can-
not quite bring myself to believe that the categorical exclusion
in this case, covering less than one half of one percent of fed-
eral land, will have a cumulative impact on our environment
requiring years more research, analysis and report writing
before we do anything to protect people from forest fires. As
a matter of common sense, cutting brush and using controlled
burns on parcels no larger than 1,000 acres and 4,000 acres
respectively seems most likely to have the cumulative impact
of reducing the catastrophic effect of forest fires on people.
Nevertheless, the government’s brief does not point us to
anything in the record that supports my intuitive view. The
best I can find in the record is some scattered bits that were
written after the categorical exclusion was made, saying that
the categorical exclusion is not expected to contribute to
adverse cumulative impacts on sensitive wildlife species. The
briefs and record control, and the government has made no
serious attempt to show us why the categorical exclusion was
not arbitrary and capricious or that it gave the required “hard
look” at the categorical exclusion before promulgating it. A
judge’s duty is to decide the case based on the law and the
record, not his personal policy preference. I am therefore
compelled to concur.