Wildearth Guardians v. Heather Provencio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILDEARTH GUARDIANS; GRAND No. 17-17373
CANYON WILDLANDS COUNCIL;
WILDLANDS NETWORK; SIERRA D.C. No.
CLUB, 3:16-cv-08010-
Plaintiffs-Appellants, SMM

v.
OPINION
HEATHER PROVENCIO, in her official
capacity as Kaibab National Forest
Supervisor; UNITED STATES FOREST
SERVICE,
Defendants-Appellees,

and

STATE OF ARIZONA, on behalf of
Arizona Department of Game and
Fish; SAFARI CLUB INTERNATIONAL,
Intervenors-Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted February 7, 2019
Phoenix, Arizona
2 WILDEARTH GUARDIANS V. PROVENCIO

Filed March 13, 2019

Before: MICHAEL DALY HAWKINS, MILAN D.
SMITH, JR., and ANDREW D. HURWITZ,
Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY *

Environmental Law

The panel affirmed the district court’s summary
judgment in favor of the United States Forest Service in an
action by plaintiff environmental groups challenging travel
management plans implemented by the Forest Service to
permit limited motorized big game retrieval in three Ranger
Districts of the Kaibab National Forest.

The Travel Management Rule, promulgated by the U.S.
Department of Agriculture for Forest Service lands,
generally prohibits off-road, motorized travel, but permits
the “limited” use of motor vehicles within a specified
distance of “certain” forest roads for the purposes of
camping or retrieval of downed big game animals. The
panel rejected plaintiffs’ contention that the Forest Service
violated the Travel Management Rule by implementing
plans that did not sufficiently limit motorized big game
retrieval in the Ranger Districts. The panel concluded that

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 WILDEARTH GUARDIANS V. PROVENCIO 3

the Forest Service did not violate the plain terms of the
Travel Management Rule.

Addressing plaintiffs’ claims under the National
Environmental Policy Act (“NEPA”), the panel held that the
plaintiffs had standing to bring their NEPA claims because
they were trying to protect the environment, which was
within NEPA’s zone of interests. The panel concluded that
the environmental impacts discussed in the environmental
assessments did not raise substantial concerns that
necessitated the preparation of environmental impact
statements. The panel held that there was no indication that
the agency failed to satisfy NEPA’s procedural
requirements. The panel concluded that the Forest Service
gave the requisite hard look and made determinations that
were neither arbitrary nor capricious, and were consistent
with the evidence before it; and accordingly, the Forest
Service did not violate NEPA.

The panel held that the Forest Service conducted the
required prefield work, consulted with the appropriate
entities, and reached a determination with the evidence
before it, and satisfied its procedural obligations under the
National Historic Preservation Act.
4 WILDEARTH GUARDIANS V. PROVENCIO

COUNSEL

John R. Mellgren (argued), and Susan Jane Brown, Western
Environmental Law Center, Eugene, Oregon, for Plaintiffs-
Appellants.

Stuart Wilcox, WildEarth Guardians, Denver, Colorado, for
Plaintiff-Appellant WildEarth Guardians.

Mark R. Haag (argued), Allen M. Brabender, Attorneys,
Environment & Natural Resources Division; Eric Grant,
Deputy Assistant Attorney General, Jeffrey H. Wood,
Acting Assistant Attorney General, United States
Department of Justice, Washington, D.C.; M’Leah
Woodard, Attorney Advisor, Albuquerque Field Office,
Office of the General Counsel, United States Department of
Agriculture, Albuquerque, New Mexico; for Defendants-
Appellees.

Dominic Draye (argued), John LeSueur, Assistant Attorney
General, and Mark Brnovich, Attorney General, Arizona
Attorney General’s Office, Phoenix, Arizona, for
Intervenor-Defendant-Appellee State of Arizona.

Anna M. Seidman, Douglas S. Burdin, and Jeremy E. Clare,
Safari Club International, Washington, D.C., for Intervenor-
Defendant-Appellee Safari Club International.
 WILDEARTH GUARDIANS V. PROVENCIO 5

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants (Plaintiffs) are environmental
advocacy groups that challenged travel management plans
implemented by Defendant-Appellee United States Forest
Service (the Forest Service) to permit limited motorized big
game retrieval in three Ranger Districts of the Kaibab
National Forest. The district court granted the Forest
Service’s motion for summary judgment, concluding that the
Forest Service complied with the Travel Management Rule,
the National Environmental Policy Act (NEPA), and the
National Historic Preservation Act (NHPA). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

A. The Kaibab National Forest

The Kaibab National Forest encompasses approximately
1.6 million acres of public land in northern Arizona,
including Grand Canyon National Park. It is comprised of
three noncontiguous Ranger Districts: the Williams Ranger
District, the Tusayan Ranger District, and the North Kaibab
Ranger District.

The Williams Ranger District is the southernmost,
covering 560,305 acres approximately thirty-five miles west
of Flagstaff and sixty miles south of Grand Canyon National
Park. It includes the Kendrick Mountain Wilderness, which
extends into Coconino National Forest and features a diverse
array of vegetation including Douglas firs, white firs,
ponderosa pines, and aspens. The Williams Ranger District
also serves as a habitat for a number of endangered species,
6 WILDEARTH GUARDIANS V. PROVENCIO

including the Mexican spotted owl, the California condor,
and the black-footed ferret. It contains six areas where
spotted owls are known to live and breed, and three spotted
owl critical habitats overlap the District.

The Tusayan Ranger District, located just south of Grand
Canyon National Park’s south rim, encompasses 331,427
acres. It features varied terrain, from ponderosa pine forests
to grasslands, and is home to a number of sensitive species,
including bald eagles, goshawks, peregrine falcons,
burrowing owls, bats, and voles.

The North Kaibab Ranger District covers 655,078 acres
immediately north of Grand Canyon National Park. Like the
Williams and Tusayan Ranger Districts, the North Kaibab
Ranger District boasts diverse terrain and vegetation, as well
as sensitive animal species. Two federally listed endangered
species—the Mexican spotted owl and California condor—
live in the District, which the U.S. Fish and Wildlife Service
has designated as critical habitat for the spotted owl.

B. The Travel Management Rule

In 2005, the U.S. Department of Agriculture
promulgated a Travel Management Rule to “provide[] for a
system of National Forest System roads, National Forest
System trails, and areas on National Forest System lands that
are designated for motor vehicle use.” 36 C.F.R.
§ 212.50(a). 1 As part of this system, “[d]esignated roads,
trails, and areas [are] identified on a motor vehicle map,”
which also “specif[ies] the classes of vehicles” and “the
1
The Rule’s antecedents include executive orders issued by
Presidents Nixon and Carter that sought to limit the damage to federal
public lands caused by off-road vehicles. See Utah Shared Access All.
v. Carpenter, 463 F.3d 1125, 1129–30 (10th Cir. 2006).
 WILDEARTH GUARDIANS V. PROVENCIO 7

times of year for which use is designated.” Id. § 212.56.
Motor vehicle use is prohibited on roads not so designated.
Id. § 212.50(a). The regulations include a specific provision
concerning the use of motor vehicles for dispersed camping
and big game retrieval, which allows that

in designating routes, the responsible official
may include in the designation the limited use
of motor vehicles within a specified distance
of certain forest roads or trails where motor
vehicle use is allowed, and if appropriate
within specified time periods, solely for the
purposes of dispersed camping or retrieval of
a downed big game animal by an individual
who has legally taken that animal.

Id. § 212.51(b).

The Forest Service’s Southwestern Regional Office
issued guidelines for implementation of the Travel
Management Rule, including its motorized big game
retrieval provision. The guidelines noted that “National
Forests in the Southwestern Region provide hunting
opportunities that are important to the public,” and directed
forests to identify designated routes for game retrieval “in
close collaboration with the responsible State agency.” They
also suggested, pursuant to discussions with the Arizona
Game and Fish Department, that motorized big game
retrieval be allowed “up to three miles from a designated
route” for bison and “up to one mile from a designated route”
for elk and mule deer.
8 WILDEARTH GUARDIANS V. PROVENCIO

The Forest Service crafted travel management plans for
each of the three Ranger Districts in the Kaibab National
Forest. It also prepared an Environmental Assessment (EA)
for each plan to ascertain its environmental impact, but did
not undertake a more rigorous Environmental Impact
Statement (EIS).

i. The Williams Ranger District

In July 2010, the Forest Service released the EA for the
Williams Ranger District’s travel management plan, and
subsequently issued a Decision Notice and Finding of No
Significant Impact (DN/FONSI). The DN/FONSI generally
“prohibit[s] motorized travel off of designated routes on the
Williams Ranger District,” but permits “the limited use of
motor vehicles within one mile of all designated system
roads (except where prohibited) to retrieve a legally hunted
and tagged elk during all elk hunting seasons.” It allows
motorized big game retrieval of elk (but not bison) up to one
mile off all designated open roads, so long as hunters make
only “[o]ne trip that uses [the] most direct route and least
ground disturbing.” The designated open road system
consists of 1,114 miles of roadway, a reduction from
previous motor vehicle activity, when 1,460 miles of roads
and 95 percent of the District were open to motor vehicle
use. Several miles of the open roads pass through the spotted
owl critical habitat.

ii. The Tusayan Ranger District

Previously, the Tusayan Ranger District contained more
than 700 miles of roads open to motor vehicles, and a vast
majority of the District was open to cross-country motor
vehicle travel. The Forest Service’s final DN/FONSI for the
 WILDEARTH GUARDIANS V. PROVENCIO 9

District 2 designated 566 miles of road open to motor
vehicles. The decision permits “[l]egally harvested elk [to]
be retrieved during all legal elk hunting seasons” by motor
vehicles within one mile of designated roads. Motorized
retrieval of bison is not permitted, and the DN/FONSI limits
use of motor vehicles when “conditions are such that travel
would cause damage to natural and/or cultural resources,”
and mandated that “[m]otorized vehicles would not be
permitted to cross riparian areas, streams and rivers except
at hardened crossings or crossings with existing culverts.”

iii. The North Kaibab Ranger District

Prior to implementation of a new travel management
plan, 1,852 miles of road in the North Kaibab Ranger District
were open to motor vehicle use, with 83 percent of the
District open to cross-county travel. In September 2012, the
Forest Service released an EA analyzing the District’s new
plan. Among other data, the EA noted that while “[c]ross-
country motorized travel, whether to retrieve game or for
other purposes, can adversely affect cultural resource sites if
a vehicle is driven across a site,” only thirty-eight bison and
no elk were taken from the District in 2009.

The Forest Service issued a DN/FONSI that designated
1,476 miles of open roads for motorized travel, including an
additional 16 miles of unauthorized, user-created roads.
Motor vehicles can be used to retrieve elk or bison during
hunting seasons, under certain limiting conditions. Notably,

2
In April 2009, the Forest Service issued an initial EA that analyzed
the impact of the new travel management plan, as well as a subsequent
DN/FONSI. In response to administrative appeals, that decision was
reversed, and a new environmental survey undertaken. The resulting
EA, issued in January 2011, reflected additional analysis and public
comment.
10 WILDEARTH GUARDIANS V. PROVENCIO

the plan prohibits motorized retrieval of mule deer; the data
indicated that far more mule deer—1,020—were harvested
in the District in 2009 than bison or elk. The DN/FONSI
also included guidance for monitoring and mitigation, as
well as practices to limit the spread of invasive exotic weeds.

II. Procedural Background

The Districts’ travel management plans—their
motorized big game retrieval provisions in particular—were
administratively appealed, and the Regional Forester upheld
them.

Plaintiffs then filed a complaint for declaratory and
injunctive relief in the district court. They challenged the
travel management plans for each of the three Ranger
Districts, alleging violations of the Travel Management
Rule, the Administrative Procedure Act (APA), NEPA, and
the NHPA. After the parties filed and briefed cross-motions
for summary judgment, the district court granted the Forest
Service’s motion and denied Plaintiffs’ motion. It further
denied the motions for summary judgment filed by
Intervenors-Defendants-Appellees State of Arizona (the
State) and Safari Club International (Safari Club) as moot.
This timely appeal followed.

STANDARD OF REVIEW AND JURISDICTION

We review de novo a district court’s order granting or
denying a motion for summary judgment. Churchill County
v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001). Under the
APA, agency action can be set aside if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see also
WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d
920, 932 (9th Cir. 2015) (Travel Management Rule reviewed
 WILDEARTH GUARDIANS V. PROVENCIO 11

under the APA); San Carlos Apache Tribe v. United States,
417 F.3d 1091, 1099 (9th Cir. 2005) (NHPA challenge
reviewed under the APA); Churchill County, 276 F.3d at
1071 (NEPA challenge reviewed under the APA).

We have jurisdiction pursuant to 28 U.S.C. § 1291.

ANALYSIS

I. The Travel Management Rule

Plaintiffs argue that the Forest Service violated the
Travel Management Rule by implementing plans that did not
sufficiently limit motorized big game retrieval in the
Districts.

Although the Travel Management Rule generally
prohibits off-road, motorized travel, it permits officials to
designate “the limited use of motor vehicles within a
specified distance of certain forest roads . . . solely for the
purposes of dispersed camping or retrieval of a downed big
game animal.” 36 C.F.R. § 212.51(b) (emphases added). As
part of this designation process, the Forest Service must
consider various criteria, ranging from “public safety” and
“conflicts among uses of National Forest System lands” to
“[d]amage to soil, watershed, vegetation, and other forest
resources” and “[h]arassment of wildlife and significant
disruption of wildlife habitats.” 36 C.F.R. § 212.55(a)–(b).
Compliance with these “minimization criteria” is
mandatory. Mont. Snowmobile, 790 F.3d at 929–32.

Plaintiffs contend that the Forest Service violated the
Travel Management Rule by permitting off-road motorized
vehicle use to collect downed game within one mile of every
open road in the Districts, in purported violation of the
12 WILDEARTH GUARDIANS V. PROVENCIO

Rule’s mandate that such activity be “limited” and only on
“certain” roads. We disagree.

A. “Limited”

First, Plaintiffs argue that “designating cross-country
off-road motor vehicle use for one mile off both sides of
every single open road on each Ranger District is not a
‘limited’ designation as contemplated by the Travel
Management Rule.” They note that the Forest Service’s own
regional office acknowledged as much when reviewing the
North Kaibab Ranger District’s plan proposal; the office
commented, “Motorized [big game retrieval] is being
proposed on all system routes which is not consistent with
rule for ‘limited use.’” The assistant NEPA coordinator of
that District also questioned the scope of the plan, noting,
“What I don’t see is how this got you to your proposed
actions, particularly the [motorized big game retrieval] on
ALL roads with 1 mile corridor . . . . that’s huge.” In their
brief, Plaintiffs include maps prepared by the Forest Service,
which illustrate the extent of areas (in light blue) where
motorized big game retrieval is allowed in the Tusayan and
Williams Ranger Districts. These maps indicate, as
Plaintiffs argue, that the plans permit motorized big game
retrieval across a vast swath of the Districts’ lands:
WILDEARTH GUARDIANS V. PROVENCIO 13
14 WILDEARTH GUARDIANS V. PROVENCIO

As the district court correctly noted, however, Plaintiffs’
focus on only the spatial limitation of the Districts’ plans
ignores the other restrictions on motorized big game
retrieval. The North Kaibab Ranger District plan illustrates
some of these additional limitations: restricting retrieval to
legally hunted elk and bison 3; permitting only one vehicle
per harvested animal; requiring hunters to “use the most
direct and least ground disturbing route in and out of the area
to accomplish the retrieval”; and limiting the temporal
period to the “appropriate season as designated by the
[State], and for 24 hours following each season.” The
Williams and Tusayan Ranger Districts further exclude the
retrieval of bison and require motor vehicles to cross streams
and rivers only at designated crossings. We agree with the
district court that “these limitations are a significant
departure from the previous policy which did not limit the
number of trips . . . , did not limit the type of species which
could be retrieved by motor vehicle, did not limit the
distance traveled from system roads, and had no restrictions
on seasons or weather conditions and no requirement for use
of a direct route.”

Plaintiffs assert that “the nearly unlimited spatial
allowance . . . in and of itself[] violates the plain terms of the
Travel Management Rule,” but provide no authority for that
proposition. Because we find no support for it in either case
law or the applicable regulations, we conclude that the Forest
Service did not abuse its discretion when it authorized plans
that limit motorized big game retrieval based on factors other
than geography. See 5 U.S.C. § 706(2)(A).

3
The State notes that additional, non-qualifying big game species
can also be found in the Kaibab National Forest, including mule deer,
pronghorn, and black bears.
 WILDEARTH GUARDIANS V. PROVENCIO 15

As for the regional office’s skepticism regarding the
scope of retrieval permitted under the plans, “the fact that a
preliminary determination by a local agency representative
is later overruled at a higher level within the agency does not
render the decisionmaking process arbitrary and capricious,”
as agencies are “fully entitled” to “change[] their minds . . .
as long as the proper procedures were followed.” Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
659 (2007). Such apparent inconsistencies might serve as
evidence of arbitrariness or capriciousness, see Barnes v.
U.S. Dep’t of Transp., 655 F.3d 1124, 1134 (9th Cir. 2011)
(noting that Home Builders “did not hold, however, that such
preliminary determinations are irrelevant in any context”),
but absent other evidence that the plans violated the Travel
Management Rule, we do not find these comments
particularly enlightening, especially since the Regional
Forester ultimately upheld the designation decisions as to
each Ranger District. 4

Ultimately, as the district court concluded, “Plaintiffs
have only identified dissatisfaction with the ultimate
decisions made by the Forest Service in authorizing
[motorized big game retrieval] in the three ranger districts.”
Although it is not unreasonable to interpret “limited use”
spatially, Plaintiffs point to no statute, regulation, or ruling
that requires a geographic limitation of this sort. The
Districts’ plans limit motorized big game retrieval as to
timing, qualified species, and number of vehicles, which is

4
The same can be said for any inconsistencies between the final
plans and the guidance provided by the Forest Service’s regional officer,
to which Plaintiffs point as evidence that the Rule was violated.
Although, for example, the guidance suggested that retrieval of elk not
be allowed “between one hour before sunrise and 10:00 am,” that
limitation was not a requirement, but merely a recommendation, and so
a failure to implement it does not render the plans unlawful.
16 WILDEARTH GUARDIANS V. PROVENCIO

both a reasonable interpretation of the Rule and an indication
that the Forest Service both considered and applied the
mandatory minimization criteria. See Mont. Snowmobile,
790 F.3d at 932. Given that much of the Districts’ land was
open to cross-country motorized travel prior to
implementation of the plans, we conclude that the new
restrictions constitute a “limited” use of motorized vehicles.

B. “Certain”

Next, the Rule allows motorized retrieval on “certain
forest roads.” 36 C.F.R. § 212.51(b). Plaintiffs argue that
the word “certain” requires that it only be allowed on “some,
but not all” roads. Because the plans permit retrieval within
one mile of all designated roads, Plaintiffs conclude that they
are unlawful. The Forest Service, however, correctly notes
that while the word “certain” can mean “some, but not all,”
the more common definition of the term is “definite” or
“fixed.” See, e.g., Webster’s Third New International
Dictionary 367 (2002) (listing the primary definitions of
“certain” as “fixed, settled, stated” and “exact, precise”).

Because the Forest Service limited motor vehicle use to
a defined set of roads in each District, it complied with the
Rule. Even if the proper interpretation of the word “certain”
were ambiguous, the Forest Service’s definition of “fixed”
or “definite” is permissible, consistent with the text of the
Rule, and entitled to deference. See Home Builders,
551 U.S. at 672 (“An agency’s interpretation of the meaning
of its own regulations is entitled to deference ‘unless plainly
erroneous or inconsistent with the regulation.’” (quoting
Auer v. Robbins, 519 U.S. 452, 461 (1997))).
 WILDEARTH GUARDIANS V. PROVENCIO 17

C. “Sparingly”

Lastly, Plaintiffs contend that the Forest Service failed to
implement motorized big game retrieval “sparingly.” Travel
Management; Designated Routes and Areas for Motor
Vehicle Use, 70 Fed. Reg. 68,264, 68,285 (Nov. 9, 2005)
(“The Department expects the Forest Service to apply this
provision sparingly, on a local or State-wide basis, to avoid
undermining the purposes of the final rule and to promote
consistency in implementation.” (emphasis added)). They
argue that “allowing motorized big game retrieval off of
every single open road is not using [the Forest Service’s]
authority sparingly,” and that the Forest Service erroneously
concluded that the plans were sparing and limited because
they permitted less motorized retrieval than under the prior
policies that imposed no restrictions.

This argument is unpersuasive. First, the word
“sparingly” does not appear in the Rule, but instead in its
preamble. We look to a preamble only when the regulation
itself is ambiguous. El Comité para el Bienstar de Earlimart
v. Warmerdam, 539 F.3d 1062, 1070 (9th Cir. 2008).
Accordingly, as the Forest Service correctly asserts, the
preamble does not “impose a duty above and beyond the
actual terms of the regulation.”

Moreover, Plaintiffs’ argument fails for much the same
reason as their “limited” argument above: it relies on a
strictly spatial conception of “sparingly,” while ignoring the
other restrictions that the plans impose on motorized big
game retrieval. Absent authority requiring a strictly
geographic interpretation of the words “limited” and
“sparingly,” we conclude that the Forest Service did not
violate the plain terms of the Travel Management Rule.
18 WILDEARTH GUARDIANS V. PROVENCIO

II. NEPA

A. Standing

As a preliminary matter, Safari Club challenges whether
Plaintiffs have standing to bring their NEPA claims. It
observes that Plaintiffs’ “standing declarant, Kim Crumbo,
revealed that his own activities in the forests cause the very
same impact that [they] seek to attribute to motorized big
game retrieval,” since Crumbo recounted “incidents during
which he, on his bicycle, interfered with young goshawk and
a goshawk pursuing its prey.” Accordingly, Safari Club
suggests that Plaintiffs cannot satisfy the redressability
requirement for standing, see Salmon Spawning & Recovery
All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008),
because Plaintiffs “themselves are a source of” the negative
effects that they seek to analyze through an EIS, and so “[n]o
change in process and no [EIS] analysis of motorized big
game retrieval will prevent [Plaintiffs’] members from
engaging in conduct that is the source of effects” that they
seek to mitigate.

Under Safari Club’s reasoning, a hypothetical plaintiff
challenging an EPA decision on a CO2-emitting power plant
would lack standing just because she also happens to exhale
carbon dioxide. This result would not only be absurd, but
also contrary to our prior precedent, for we have held that

the mere existence of multiple causes of an
injury does not defeat redressability,
particularly for a procedural injury. So long
as a defendant is at least partially causing the
alleged injury, a plaintiff may sue that
defendant, even if the defendant is just one of
multiple causes of the plaintiff’s injury.
 WILDEARTH GUARDIANS V. PROVENCIO 19

WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148,
1157 (9th Cir. 2015).

Safari Club also challenges Plaintiffs’ NEPA standing
based on their perceived motivation for bringing suit.
Asserting that Plaintiffs’ “goal in bringing this action was to
use NEPA and the NHPA to force [the Forest Service] to
reverse [its] authorization of motorized big game retrieval,”
it contends that “NEPA does not provide a cause of action”
and that Plaintiffs lack prudential standing. Regardless of
Plaintiffs’ motivation in commencing this suit, however, if a
group is “trying to protect the environment,” then its “suit []
lies well within NEPA’s zone of interests.” Citizens for
Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 976
(9th Cir. 2003); see also Havasupai Tribe v. Provencio,
906 F.3d 1155, 1166 (9th Cir. 2018). Accordingly, we
conclude that Plaintiffs have standing to bring their NEPA
claims.

B. Legal Framework

NEPA requires federal agencies, including the Forest
Service, to assess the environmental impact of proposed
actions that “significantly affect[] the quality of the human
environment.” 42 U.S.C. § 4332(C). It

serves two fundamental objectives. First, it
“ensures that the agency, in reaching its
decision, will have available, and will
carefully consider, detailed information
concerning significant environmental
impacts.” And, second, it requires “that the
relevant information will be made available
to the larger audience that may also play a
role in both the decisionmaking process and
the implementation of that decision.”
20 WILDEARTH GUARDIANS V. PROVENCIO

Mont. Snowmobile, 790 F.3d at 924 (citation omitted)
(quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349 (1989)). In short, “NEPA’s purpose is to
ensure that ‘the agency will not act on incomplete
information, only to regret its decision after it is too late to
correct.’” Friends of Clearwater v. Dombeck, 222 F.3d 552,
557 (9th Cir. 2000) (quoting Marsh v. Or. Nat. Res. Council,
490 U.S. 360, 371 (1989)). We have admonished that “[w]e
must . . . strictly interpret the procedural requirements in
NEPA . . . ‘to the fullest extent possible’ consistent with the
policies embodied in NEPA. ‘[G]rudging, pro forma
compliance will not do.’” Churchill County, 276 F.3d at
1072 (fourth alteration in original) (citation omitted)
(quoting Lathan v. Brinegar, 506 F.2d 677, 687, 693 (9th
Cir. 1974) (en banc)). As part of this compliance, agencies
must ensure “that environmental information is available to
public officials and citizens before decisions are made and
before actions are taken. The information must be of high
quality. Accurate scientific analysis, expert agency
comments, and public scrutiny are essential to implementing
NEPA.” 40 C.F.R. § 1500.1(b).

The Forest Service must prepare an EIS—a more
thorough undertaking than an EA 5—if an action might
significantly affect environmental quality. As we have
explained,

5
“Before deciding whether to complete an EIS, government
agencies may prepare a less formal EA which ‘briefly provides sufficient
evidence and analysis for determining whether to prepare an
environmental impact statement or a finding of no significant impact.’”
Anderson v. Evans, 371 F.3d 475, 488 (9th Cir. 2004) (quoting Tillamook
County v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1144 (9th Cir.
2002)).
 WILDEARTH GUARDIANS V. PROVENCIO 21

An EIS must be prepared if “substantial
questions are raised as to whether a project
. . . may cause significant degradation of
some human environmental factor.” Thus, to
prevail on a claim that the Forest Service
violated its statutory duty to prepare an EIS,
a “plaintiff need not show that significant
effects will in fact occur.” It is enough for the
plaintiff to raise “substantial questions
whether a project may have a significant
effect” on the environment.

Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d
1208, 1212 (9th Cir. 1998) (alteration in original) (citations
omitted) (quoting Idaho Sporting Cong. v. Thomas, 137 F.3d
1146, 1149–50 (9th Cir. 1998)); see also Save the Yaak
Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (“[A]n
agency’s decision not to prepare an EIS will be considered
unreasonable if the agency fails to ‘supply a convincing
statement of reasons why potential effects are
insignificant.’” (quoting Steamboaters v. FERC, 759 F.2d
1382, 1393 (9th Cir. 1985))). The significance of an action
depends on its context and intensity, the latter of which is
assessed using a list of criteria enumerated in the relevant
regulation. See 40 C.F.R. § 1508.27(a)–(b).

C. Whether the Forest Service Needed to Prepare
EISs

Plaintiffs contend that “the presence of several
significance factors indicating possible significant
environmental consequences of the proposed actions”
required the Forest Service to prepare EISs for each of the
Districts’ travel management plans. We analyze in turn each
consideration to which they point.
22 WILDEARTH GUARDIANS V. PROVENCIO

i. Impacts

The first enumerated consideration in evaluating an
action’s intensity concerns “[i]mpacts that may be both
beneficial and adverse,” and notes that “[a] significant effect
may exist even if the Federal agency believes that on balance
the effect will be beneficial.” 40 C.F.R. § 1508.27(b)(1).
“Significance exists if it is reasonable to anticipate a
cumulatively significant impact on the environment.
Significance cannot be avoided by terming an action
temporary or by breaking it down into small component
parts.” Id. § 1508.27(b)(7).

Plaintiffs suggest that “the travel management plans for
each Ranger District would have significant direct, indirect,
and cumulative impacts,” noting that both motorized vehicle
use on open, designated roads and cross-country, off-road
motorized vehicle use can have “significant detrimental
effects . . . on a variety of resources.”

The assertion that motorized big game retrieval can have
detrimental effects on the environment is consistent with the
information contained in the EAs prepared for the Williams
and Tusayan Ranger Districts. Those EAs noted that “[t]he
scientific literature documents a variety of negative effects
of roads and motorized travel on wildlife,” with

[p]otential direct and indirect effects of roads
and motorized travel on wildlife includ[ing]
habitat loss, fragmentation, and degradation
caused by roads and cross country motorized
travel; roads can create barriers to
movements of certain species; animals can be
killed or injured as a result of being hit or run
over by motor vehicles; human disturbance
or harassment of animals caused by or
 WILDEARTH GUARDIANS V. PROVENCIO 23

facilitated by motorized travel; [and]
shooting or harvest of animals facilitated by
motor vehicle access to wildlife habitats.

The Williams Ranger District EA further indicated that off-
road vehicle use “in areas with sensitive or moist soils can
create tracks, ruts and new user routes that may crush,
displace, and/or destroy cultural materials (i.e. artifacts,
features, traditionally used plants), and damage significant
information that may contribute to our understanding of
history.” A particularly vexatious problem related to
motorized vehicle use is the spread of invasive weeds. Each
of the three EAs noted that vehicles are a common cause of
weed introduction and spread, with the North Kaibab Ranger
District EA reporting that “[t]he authorization of motorized
big game retrieval will have an increased threat of invasive
species spread as every vehicle that travels cross-country has
the ability to serve as a vector and create disturbance.” 6

We do not disagree with Plaintiffs’ assertion that
motorized big game retrieval can have a negative effect on
the environment. But we nevertheless conclude that the
environmental impacts discussed in the EAs did not raise
substantial concerns that necessitated the preparation of
EISs. Plaintiffs might disagree with the Forest Service’s
substantive conclusions, but we see no indication that the
agency failed to satisfy NEPA’s procedural requirements—
a crucial distinction that is lost in Plaintiffs’ formulation of
the issue.

6
This is because, as explained in the Williams Ranger District EA,
“[v]ehicles driving through populations of invasive plants often get
seed[s] entrapped in tire tread or undercarriages, move to another area
and then drop seeds into a previously uninfested area.”
24 WILDEARTH GUARDIANS V. PROVENCIO

Plaintiffs’ treatment of the spread of invasive weeds is
illustrative. They tie the problem of weeds to another
enumerated NEPA consideration that implicates “[u]nique
characteristics of the geographic area such as proximity to
historic or cultural resources, park lands, prime farmlands,
wetlands, wild and scenic rivers, or ecologically critical
areas.” Id. § 1508.27(b)(3). They note that “both the North
Kaibab and Tusayan Ranger Districts immediately abut
Grand Canyon National Park.” The EAs agreed: they
described Grand Canyon National Park as “internationally
important,” and noted the Tusayan Ranger District’s “unique
location” as “a gateway to one of the most famous national
parks in the country.” In that District’s EA, the Forest
Service acknowledged that recreation and hunting—
activities facilitated by the travel management plan—“have
the potential to introduce exotic plants” that “may then
spread to adjoining lands, including the Grand Canyon
National Park.” The National Park Service, in a letter from
the Acting Park Superintendent of Grand Canyon National
Park, advised the Forest Service to “institute a buffer zone
of 1-mile along the park boundary for any purpose including
big-game retrieval, fuel-wood gathering, cross-county
travel, etc.,” due to “increased pressure from motorized
vehicles at or near the southern park boundary over the past
several years”—a recommendation that was not adopted in
the Tusayan Ranger District DN/FONSI.

Clearly, the EAs demonstrated that motorized big game
retrieval risks the spread of invasive weeds, an undeniable
environmental impact. In response, the Forest Service relies
in part on questionable reasoning by focusing on the fact that
the plans reduced negative impacts when compared with
pre-plan activity. It notes that the plan eventually selected
for the Tusayan Ranger District opted to limit the number of
roads open to the public, which, the EA noted, “reduces the
 WILDEARTH GUARDIANS V. PROVENCIO 25

number of opportunities for noxious and invasive exotic
weeds to be introduced and spread.” “Thus,” the Forest
Service concludes, “contrary to [Plaintiffs’] argument, the
Tusayan EA confirms that the Forest Service considered the
issue and reasonably concluded that the decision will reduce,
not increase, the spread of exotic plants.”

However, a conclusion, even a correct one, that a given
action might reduce a potential impact does not alone
indicate that the impact would not be significant. We have
noted that the use of baselines is a helpful, and perhaps
inevitable, tool in conducting environmental surveys. See
Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 568 (9th Cir.
2016) (“The establishment of a ‘baseline is not an
independent legal requirement, but rather, a practical
requirement in environmental analysis often employed to
identify the environmental consequences of a proposed
agency action.’” (quoting Am. Rivers v. FERC, 201 F.3d
1186, 1195 n.15 (9th Cir. 1999))). But we have also
determined that “simply because the Final Rule may be an
improvement over the [previous] standard does not
necessarily mean that it will not have a ‘significant effect’
on the environment” where the agency “has not explained
why its rule will not have a significant effect.” Ctr. for
Biological Diversity v. NHTSA, 538 F.3d 1172, 1224 (9th
Cir. 2008). The plans chosen by the Forest Service might
reduce (even substantially reduce) the spread of noxious
weeds in the Districts, but that alone does not address
whether that reduced impact itself has a significant impact
on the environment generally and Grand Canyon National
Park in particular. Therefore, the Forest Service cannot rely
solely on the reduction of adverse impacts to demonstrate
that those impacts are not significant.
26 WILDEARTH GUARDIANS V. PROVENCIO

But that the Forest Service occasionally conflates
reduction with insignificance does not necessarily mean that
it violated NEPA. To demonstrate, we once again go into
the weeds.

The Forest Service acknowledged that the North Kaibab
Ranger District contained “several species of invasive
weeds,” which “are spread [] via roads and forest visitors.”
The plan that was eventually selected “reduce[d] the number
of roads that can be traveled on by 376 miles,” which, the
EA found, would “lower the amount of invasive species seed
introduced or spread.” But notably, the EA continued:

The authorization of motorized big game
retrieval will have an increased threat of
invasive species spread as every vehicle that
travels cross-country has the ability to serve
as a vector and create disturbance.
Alternative 2 [the selected plan] authorizes
motorized big game retrieval for only elk and
mule deer. This is expected to lead to only a
small increase in the potential for invasive
species spread and disturbance when
compared to Alternative 3 and should not
generate any realistic impacts.

This passage demonstrates that the Forest Service did not
merely rely on the possibility of reduction, but also
concluded that the plan would “not generate any realistic
impacts”; in other words, that the effects would not be
significant. Furthermore, as the district court noted, the EA
mentioned that the North Kaibab Ranger District featured
“projects focus[ed] on treating known infestations across the
District, prioritizing the species and locations that pose the
greatest threats,” methods that had “proven successful in
 WILDEARTH GUARDIANS V. PROVENCIO 27

eradicating or reducing potentially serious noxious species
threats.” This language indicates that the Forest Service
acknowledged a potential environmental impact, and then
determined that, due to features of the travel management
plan and other remediation efforts, it was unlikely to be
significant. Contrary to Plaintiffs’ argument, the Forest
Service did not merely determine that the problem would be
reduced; it also concluded that the impact would not be
significant. Plaintiffs disagree with the EA’s conclusion, but
this is “a classic example of a factual dispute the resolution
of which implicates substantial agency expertise.” Marsh,
490 U.S. at 376. We agree with the district court: “Plaintiffs’
singular and conclusory statement that exotic plants might
spread . . . does not raise substantial questions that would
trigger the need for an EIS.”

Similarly, although the Forest Service did not follow all
of the recommendations made by Grand Canyon National
Park’s Acting Park Superintendent, this fact does not mean
that it ignored a significant environmental impact. Agencies
can thoughtfully consider suggestions but ultimately decide
to reject them, and the presence of an articulated concern
does not alone trigger the need to conduct an EIS. See Native
Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233,
1240 (9th Cir. 2005) (“NEPA permits a federal agency to
disclose [] impacts without automatically triggering the
‘substantial questions’ threshold.”). Here, the record
indicates that the Forest Service explained why a buffer
would not be employed (“We don’t expect to use a buffer
zone as many management actions will need to extend to the
Forest Service-National Park boundary”), and further
articulated means of remedying the risk of illegal motor
vehicle use (such as “limit[ing] motorized big game retrieval
during all elk seasons” and “work[ing] closely with Arizona
Game and Fish Department to monitor and enforce illegal
28 WILDEARTH GUARDIANS V. PROVENCIO

cross-country travel associated with hunting activities”). We
find no indication in the record that the Forest Service did
not adequately consider potential impacts, or that substantial
questions remained that required the preparation of an EIS.

The same conclusion ultimately applies to all of the
environmental impacts that Plaintiffs highlight in their
briefs: although Plaintiffs disagree with the EAs’ factual
conclusions, the Forest Service nonetheless considered the
issues, gave them the requisite “hard look,” and thus fulfilled
their NEPA obligations. Save the Yaak, 840 F.2d at 717. In
reaching its conclusions that none of the impacts cited by
Plaintiffs were sufficiently significant to require the
preparation of EISs, the Forest Service did not “rel[y] on
factors Congress did not intend it to consider, ‘entirely fail[]
to consider an important aspect of the problem,’ or offer[] 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.’”
Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)
(en banc) (quoting Earth Island Inst. v. U.S. Forest Serv.,
442 F.3d 1147, 1157 (9th Cir. 2006)), overruled on other
grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7 (2008). Instead, the evidence in the record indicates that,
although the EAs acknowledged that motorized big game
retrieval might have negative impacts on the environment,
the Forest Service’s determination that these impacts would
not be significant evinced “a rational connection between the
facts found and the conclusions made.” Or. Nat. Res.
Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997).
Therefore, its conclusions were not arbitrary and capricious,
and the Forest Service did not violate NEPA by declining to
prepare EISs based on the plans’ environmental impacts.
 WILDEARTH GUARDIANS V. PROVENCIO 29

ii. Controversy and Uncertainty

NEPA also requires the preparation of an EIS when an
action’s “effects on the quality of the human environment
are likely to be highly controversial,” and/or “are highly
uncertain or involve unique or unknown risks.” 40 C.F.R.
§ 1508.27(b)(4)–(5). “A project is ‘highly controversial’ if
there is a ‘“substantial dispute [about] the size, nature, or
effect of the major Federal action rather than the existence
of opposition to a use.”’” Native Ecosystems Council,
428 F.3d at 1240 (alteration in original) (emphases added)
(quoting Blue Mountains, 161 F.3d at 1212); see also
Wetlands Action Network v. U.S. Army Corps of Eng’rs,
222 F.3d 1105, 1122 (9th Cir. 2000) (“The existence of
opposition to a use, however, does not render an action
controversial.”), abrogated on other grounds by Wilderness
Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
“A substantial dispute exists when evidence, raised prior to
the preparation of an EIS or FONSI casts serious doubt upon
the reasonableness of an agency’s conclusions.” Nat’l Parks
& Conservation Ass’n v. Babbitt, 241 F.3d 722, 736 (9th Cir.
2001) (citation omitted), abrogated on other grounds by
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).
Additionally, because “[a]n agency must generally prepare
an EIS if the environmental effects of a proposed agency
action are highly uncertain,” such preparation “is mandated
‘where uncertainty may be resolved by further collection of
data, or where the collection of such data may prevent
speculation on potential . . . effects.’” Barnes, 655 F.3d at
1140 (second alteration in original) (quoting Native
Ecosystems Council, 428 F.3d at 1240). However, NEPA
regulations “do not anticipate the need for an EIS anytime
there is some uncertainty, but only if the effects of the project
are ‘highly’ uncertain.” Envtl. Prot. Info. Ctr. v. U.S. Forest
Serv., 451 F.3d 1005, 1011 (9th Cir. 2006).
30 WILDEARTH GUARDIANS V. PROVENCIO

Plaintiffs contend that “the travel management plans for
the Tusayan, Williams, and North Kaibab Ranger Districts
present highly controversial and highly uncertain effects that
involve unique or unknown risks,” because “significant
controversy exists as to the amount and type of motorized
recreation that would be allowed across the three Ranger
Districts.” But Plaintiffs point to nothing in the record
indicating the existence of a substantial dispute that casts
doubt on the Forest Service’s conclusions about
environmental impacts. There may have been opposition to
the plans, but mere opposition alone is insufficient to support
a finding of controversy. The Forest Service “recognize[d]
that elements of the Selected Alternative [] generated
controversy,” but concluded—apparently correctly—that
there was “no substantiated scientific controversy over the
effects as described.”

Plaintiffs assert that various questions raised during the
EA process revealed a high level of scientific uncertainty,
but the record belies that assertion. For example, as to the
potential risks “based on the broad allowance of motorized
big game retrieval,” the Forest Service attempted to estimate
hunting activity based on past data, and used this information
to conclude that the impacts of motorized big game retrieval
would be limited. Plaintiffs identity nothing in the record to
suggest that the Forest Service’s estimates were unduly
speculative, or that it unreasonably relied upon these
predictions. Plaintiffs also argue that there was “uncertainty
regarding whether or not hunters will actually remove gut
piles” when retrieving carcasses, which they must do “to
protect California condors from lead poisoning.” But
although the Forest Service acknowledged that this issue
might present a problem, the record also indicates that it
considered the issue and reasonably concluded that it was
unlikely to significantly impact the North Kaibab Ranger
 WILDEARTH GUARDIANS V. PROVENCIO 31

District’s condors because the Arizona Game and Fish
Department had provided to hunters, among other
incentives, lead-free ammunition. The Forest Service also
noted that “there would be decreased risk of human
disturbance of scavenging condors as a result of a reduced
open road system and substantially restricted motorized
cross-country travel,” and concluded that the North Kaibab
Ranger District plan “is not likely to jeopardize the
continued existence [of] California condors.” Plaintiffs
neither challenge nor address these conclusions, and instead
rely on the mere existence of potential problems as evidence
of significant uncertainty—a tactic that does not pass muster.
See Native Ecosystems Council, 428 F.3d at 1240 (“Simply
because a challenger can cherry pick information and data
out of the administrative record to support its position does
not mean that a project is highly controversial or highly
uncertain.”).

iii. Precedent for Future Actions

Another consideration for measuring an action’s
intensity for NEPA purposes is “[t]he degree to which the
action may establish a precedent for future actions with
significant effects or represents a decision in principle about
a future consideration.” 40 C.F.R. § 1508.27(b)(6).
Although “EAs are usually highly specific to the project and
the locale, thus creating no binding precedent,” In Def. of
Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1071 (9th
Cir. 2014) (quoting Barnes, 655 F.3d at 1140), and the Forest
Service here explicitly found that each of the three travel
management plans was “not likely to establish a precedent
for future actions with significant effects,” Plaintiffs assert
that this consideration is nonetheless implicated because
“the Forest Service has [] made public statements indicating
32 WILDEARTH GUARDIANS V. PROVENCIO

that what the Kaibab National Forest does, so too will other
southwestern National Forests.”

It is true that the record contains evidence to this effect—
including that the Coconino National Forest “will defer to
the neighboring Kaibab National Forest’s policy for
[motorized big game retrieval] in units shared with the
Williams Ranger District, regardless of how the Coconino
proposes to apply the Travel Management Rule,” and that
the Prescott National Forest will “match them as best as we
can”—but that does not mean that the Districts’ plans bind
or necessarily shape other forests’ plans in such a way that
they should be considered precedential, especially since any
other forest’s plan would be subject to its own NEPA
analysis. Cf. Sierra Club v. Marsh, 769 F.2d 868, 879 (1st
Cir. 1985) (determining that an action was precedential
because “once Maine completes the causeway and port,
pressure to develop the rest of the island could well prove
irreversible”). In Oregon Wild v. Bureau of Land
Management, a district court dealt with a similar situation,
where a project was “part of a larger series of ‘pilot projects’
aimed at ‘inform[ing] long-term planning’ for management
of [] lands in Oregon and California.” No. 6:14-CV-0110-
AA, 2015 WL 1190131, at *9 (D. Or. Mar. 14, 2015) (first
alteration in original). There, as here, the most that could be
concluded from such a minor precedential effect is that this
consideration “supports the conclusion that an EIS is
necessary”—but “the precedential factor alone is not
dispositive.” Id.; see also Anderson v. Evans, 371 F.3d 475,
493 (9th Cir. 2004) (finding this factor “insufficient on its
own to demonstrate a significant environmental impact”
where an action is merely influential and not binding). Thus,
this consideration alone did not require preparation of an
EIS.
 WILDEARTH GUARDIANS V. PROVENCIO 33

iv. Threatened Species

Finally, there is the issue of the Mexican spotted owl, a
threatened species found in the Williams and North Kaibab
Ranger Districts. The Forest Service must consider “[t]he
degree to which the action may adversely affect an
endangered or threatened species or its habitat that has been
determined to be critical under the Endangered Species Act
of 1973.” 40 C.F.R. § 1508.27(b)(9). Plaintiffs point to
portions of the record that raise the specter of adverse
effects—including consultation letters between the Williams
and North Kaibab Ranger Districts and the U.S. Fish and
Wildlife Service regarding the owls—but they again ignore
the Forest Service’s overall conclusions. For example, the
Williams Ranger District EA reported that some roads would
pass through Mexican spotted owl critical habitats, which
might result in “increased potential human disturbance.”
But the EA ultimately concluded that the selected plan
would be “primarily beneficial,” and would “not adversely
affect Mexican spotted owl or Mexican spotted owl
designated Critical Habitat.” In a separate biological
assessment, the Forest Service concluded that “[t]he effects
determination for Mexican spotted owl and Mexican spotted
owl critical habitat is may affect, not likely to adversely
affect,” based on the

determination [] that potential effects of the
proposed action on the Mexican spotted owl
would be primarily beneficial. Closing roads
and restricting motorized cross-country
travel under the proposed action would result
in reduced motorized access to spotted owl
habitat compared to current management and
thus reduced risk of human disturbance to
spotted owls, reduced impacts to habitat of
34 WILDEARTH GUARDIANS V. PROVENCIO

spotted owls and their small mammal prey
species, and reduced impacts to designated
critical habitat.

Notably, the U.S. Fish and Wildlife Service concurred in this
determination.

In short, although the Forest Service did not definitively
conclude that no Mexican spotted owls would be adversely
affected by the Districts’ travel management plans, the
record indicates that they sufficiently considered the issue
and arrived at a reasonable conclusion that the effects would
not be significant, thus obviating the need for an EIS.

v. Summation

In the end, we conclude that the Forest Service’s
determination that no EISs were needed as to the Districts’
travel management plans was reasonable. The plans might
have some precedential effect, there is a possibility that
Mexican spotted owls might be affected, and exotic weeds
might be spread by motorized big game retrieval, but the
record ultimately supports the Forest Service’s conclusion
that these concerns do not rise to the level of significance
that would require EISs. The Forest Service gave the
requisite hard look and made determinations that were
neither arbitrary nor capricious, and were consistent with the
evidence before it. Absent substantial questions that would
have mandated EISs, the Forest Service did not violate
NEPA. 7

7
Two other enumerated considerations are relevant in this case:
“[t]he degree to which the action may adversely affect . . . objects listed
in or eligible for listing in the National Register of Historic Places or may
 WILDEARTH GUARDIANS V. PROVENCIO 35

III. NHPA

Finally, Plaintiffs contend that the Forest Service
violated the NHPA by failing to identify and evaluate the
“high density of cultural resources” that might be damaged
as a result of motorized travel in the Districts.

The NHPA’s purpose is to “foster conditions under
which our modern society and our historic property can exist
in productive harmony,” 54 U.S.C. § 300101(1), and it
requires federal agencies to “make a reasonable and good
faith effort” to identify historic properties that might be
affected by an action, and to “take [those potential effects]
into account.” 36 C.F.R. § 800.4(b)(1); see also 54 U.S.C.
§ 306108. 8 “Like NEPA, ‘[s]ection 106 of NHPA is a “stop,
look, and listen” provision that requires each federal agency
to consider the effects of its programs.’” Te-Moak Tribe of
W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592,

cause loss or destruction of significant scientific, cultural, or historical
resources,” and “[w]hether the action threatens a violation of Federal,
State, or local law or requirements imposed for the protection of the
environment.” 40 C.F.R. § 1508.27(b)(8), (10). However, the former
consideration essentially depends on whether the Forest Service
complied with the NHPA, while the latter hinges on the Forest Service’s
compliance with both the NHPA and the Travel Management Rule.
Because we conclude that the Forest Service complied with both, we also
conclude that no federal laws were violated, and no cultural resources
adversely affected, such that EISs were required based on these
considerations.

8
“Historic property means any prehistoric or historic district, site,
building, structure, or object included in, or eligible for inclusion in, the
National Register of Historic Places maintained by the Secretary of the
Interior.” 36 C.F.R. § 800.16(l)(1).
36 WILDEARTH GUARDIANS V. PROVENCIO

607 (9th Cir. 2010) (quoting Muckleshoot Indian Tribe v.
U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999)).

Plaintiffs assert that the Forest Service violated the
NHPA in three ways: (1) by failing “to make a reasonable
and good faith effort to identify and evaluate cultural
properties”; (2) by “erroneously determin[ing] that
‘Exemption Q’ excuses NHPA consultation for the Tusayan
and Williams Ranger Districts”; and (3) by arbitrarily
making “a ‘no adverse effect’ determination for the North
Kaibab Ranger District after admitting that cross-country
travel damages cultural resources.” We consider each
argument in turn.

A. Identification of Cultural Properties

Section 106 of the NHPA requires the Forest Service to
“make a reasonable and good faith effort to identify historic
properties; determine whether identified properties are
eligible for listing on the National Register . . .; [and] assess
the effects of the undertaking on any eligible historic
properties found.” Te-Moak Tribe, 608 F.3d at 607 (first
alteration in original) (quoting Muckleshoot Indian Tribe,
177 F.3d at 805). It must also engage in consultation with
the State Historic Preservation Officer (SHPO) to
“[d]etermine and document the area of potential effects,”
“[g]ather information,” and “develop and evaluate
alternatives or modifications to the undertaking that could
avoid, minimize, or mitigate adverse effects on historic
properties.” 36 C.F.R. §§ 800.4(a), 800.6(a).

Plaintiffs principally argue that the Forest Service failed
to “make a reasonable and good faith effort” because it did
not complete 100 percent surveys of potentially affected
areas. The First Amended Programmatic Agreement
Regarding Historic Property Protection and Responsibilities
 WILDEARTH GUARDIANS V. PROVENCIO 37

(Programmatic Agreement), which the parties agree
provided the relevant guidelines, mandated that “[t]he level
of need and extent of new field surveys or inspections will
be proposed by a Professional Cultural Resource Specialist
and approved by the Forest Archaeologist based on the
guidelines provided in this section.” Those guidelines
included the use of “relevant information to assess the
potential to affect historic properties and the expected nature
and distribution of heritage properties that may be affected”;
namely, “[t]he expected nature and severity of all associated
impacts” and “[t]he expected nature and distribution of
heritage resources.” Based on the results of this “prefield
research,” the Resource Specialist and Forest Archeologist
were directed to “determine the relative level of field survey
to be conducted.” The Programmatic Agreement called for
“100% surveys” where “site density is expected to be high”
and where “site densities are unknown and expected visitor
use or impacts will be high.” By contrast, “areas may be
surveyed at less than 100%” where “known site density is
low.”

Here, the record supports the Forest Service’s conclusion
that the Programmatic Agreement did not require
100 percent surveys. At the time the travel management
plans were decided, the Forest Service had surveyed 42
percent of the Williams Ranger District, 23 percent of the
Tusayan Ranger District, and 25 percent of the North Kaibab
Ranger District. It concluded that no further surveying was
required, based on the expected density of cultural resources
and the nature and severity of impacts upon them.

The record reinforces the determination that the expected
impacts of the travel management plans would be low. After
considering historic hunting data, the EAs concluded that
less than 0.1 percent of each District’s acreage would be
38 WILDEARTH GUARDIANS V. PROVENCIO

impacted by motorized big game retrieval. However, the
fact that “[t]he expected nature and severity of all associated
impacts” might have been low does not necessarily mean
that the Forest Service did not need to conduct 100 percent
surveys, for the Programmatic Agreement required
100 percent surveys for high-density sites regardless of
impact level. Accordingly, the Forest Service’s obligation
rested on “[t]he expected nature and distribution of heritage
resources.”

The record is somewhat unclear as to the density of
heritage resources in the areas open to motorized big game
retrieval. Plaintiffs note that many of the Districts’ cultural
resources are close to the roads, but that does not necessarily
speak to the density of resources because the Programmatic
Agreement does not provide any benchmark or guidance as
to what constitutes a high-density site. Ultimately, the lack
of clarity weighs in the Forest Service’s favor: it was not
unreasonable for it to determine that the density was low or
unknown, either of which would have excused 100 percent
surveys. 9 Thus, the Forest Service followed a reasonable
interpretation of the Programmatic Agreement.

B. Exemption Q

The Programmatic Agreement’s Exemption Q provided
that “[a]ctivities not involving ground or surface disturbance
(e.g., timber stand improvement and precommercial thinning
by hand)” are “exempt from further review and
consultation.” Plaintiffs argue that the Forest Service
9
The Programmatic Agreement required 100 percent surveys
“where site densities are unknown and expected visitor use or impacts
will be high,” so it would have been reasonable for the Forest Service to
conclude that 100 percent surveys were not needed where densities were
unknown and use impacts were low.
 WILDEARTH GUARDIANS V. PROVENCIO 39

arbitrarily relied on Exemption Q to excuse review of
motorized big game retrieval in the Williams and Tusayan
Ranger Districts.

Once again, however, the record does not support
Plaintiffs’ assertions. We agree with Plaintiffs that invoking
Exemption Q would have been inappropriate here. It is
clear, and the Forest Service does not dispute, that motorized
travel causes surface disturbance. But although the Forest
Service’s correspondence with non-party Center for
Biological Diversity suggested that it applied Exemption
Q, 10 the record as a whole supports a contrary conclusion.
The Forest Service consulted with both the Arizona SHPO
and potentially affected tribes as to each District’s travel
management plan—consultations that would not have been
required if Exemption Q had been applied. Moreover, the
Forest Service made no other references to Exemption Q as
part of the travel management plan decision process, which
further supports the conclusion that it was not in fact
invoked. Accordingly, the references to Exemption Q at

10
The Forest Service claims that Plaintiffs’ “brief does not identify
where or how the Tusayan and Williams decisions purportedly relied on
Exemption Q,” and that their “responses to the non-party Center for
Biological Diversity’s administrative appeals of those decisions” contain
only “an isolated reference to Exemption Q,” but these assertions are
misleading. In its response to the appeal regarding the Tusayan Ranger
District, the Forest Service wrote that it “determined that motorized big
game retrieval fell under Exemption Q of the PA, ‘Activities not
involving ground or surface disturbance (e.g., timber stand improvement
and precommercial thinning by hand)’ and would have limited impacts
similar to the examples cited in the exemption in the” Programmatic
Agreement. That is more than a mere “isolated reference,” as it implies
that the Forest Service actually applied Exemption Q to the Tusayan
Ranger District. This same language invoking Exemption Q appeared in
the Forest Service’s response regarding the Williams Ranger District.
40 WILDEARTH GUARDIANS V. PROVENCIO

most amounted to harmless error, as they had no effect on
the NHPA consultation process. See 5 U.S.C. § 706
(requiring the court to take “due account . . . of the rule of
prejudicial error” when conducting APA review); Tucson
Herpetological Soc’y v. Salazar, 566 F.3d 870, 880 (9th Cir.
2009) (“We have held that the harmless error doctrine ‘may
be employed only “when a mistake of the administrative
body is one that clearly had no bearing on the procedure
used or the substance of decision reached.”’” (quoting
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv.,
378 F.3d 1059, 1071 (9th Cir. 2004))). 11

C. “No Adverse Effect” Determination

Finally, Plaintiffs argue that the Forest Service’s
conclusion that motorized big game retrieval would have no
adverse effect on cultural resources was arbitrary. But to
buttress this assertion, Plaintiffs again cherry pick isolated
segments from the record without considering their broader
context. For example, the Cultural Resources Specialist
Report prepared for the North Kaibab Ranger District noted
that “[c]ross country motorized travel, whether to retrieve
game or for other purposes, can adversely affect cultural
resource sites if a vehicle is driven across a site,” since
“[v]ehicles can [] crush or displace artifacts and features

11
Curiously, although the Forest Service similarly argued in the
district court that “the agency’s decisions did not rely on Exemption Q,”
we note that the court concluded that Exemption Q did apply. On appeal,
the Forest Service does not argue that the district court’s conclusion on
this point was correct, and we can affirm the court’s ruling even though
we agree with the parties that Exemption Q was not in fact applicable.
See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 892 (9th
Cir. 2019) (“We will affirm the district court’s correct legal results, even
if reached for the wrong reasons.” (quoting Alcaraz v. Block, 746 F.2d
593, 602 (9th Cir. 1984))).
 WILDEARTH GUARDIANS V. PROVENCIO 41

impacting the physical integrity of the site and impairing or
destroying scientific information that may contribute to the
understanding of the history and prehistory of an area.” But
that same report also concluded as follows:

Quantifying the potential for damage from
big game retrieval is difficult. The results
vary depending on the number of game
retrieval trips annually, the location of those
retrievals (high site probability areas versus
low probability), site types found in the area,
soil characteristics, routes used to access the
game and weather conditions at the time of
retrieval. However, the fewer number of
motorized trips that occur, the lower the
likelihood of encountering and impacting a
site. . . .

Limiting cross-country travel will have a
beneficial effect on cultural resources by
reducing the potential for sites to be
damaged. This alternative would restrict
motorized big game retrieval to elk and
bison. In 2009, 38 buffalo and no elk were
taken . . . . While there is a possibility that
cross-country game retrieval of either of
these species could impact a cultural resource
site, given the low number of takes each year,
it is anticipated that the potential for adverse
effects to a site would be negligible:
38 entries per year equates to less than
.0099% of the acreage on the NKRD. The
odds of adversely affecting a cultural
resource site under these conditions are
extremely low.
42 WILDEARTH GUARDIANS V. PROVENCIO

(emphases added). In light of this ultimate conclusion, as
well as the implementation of the suggested mitigation
measures, it was not arbitrary for the Forest Service to
conclude, based on the evidence before it, that adverse
effects were unlikely. See Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (“[A]n agency rule would be arbitrary and capricious
if the agency . . . offered an explanation for its decision that
runs counter to the evidence before the agency.”).

D. Summation

The NHPA—and NEPA—“create obligations that are
chiefly procedural in nature.” San Carlos Apache Tribe,
417 F.3d at 1097 (quoting Pres. Coal., Inc. v. Pierce,
667 F.2d 851, 859 (9th Cir. 1982)). Even if cultural
resources might be harmed as a result of motorized big game
retrieval, that fact alone does not indicate that the Forest
Service violated the NHPA. The Forest Service conducted
the required prefield work, consulted with the appropriate
entities, and reached a determination consistent with the
evidence before it—in short, satisfied its procedural
obligations.

CONCLUSION

The travel management plans that the Forest Service
implemented in the three Ranger Districts of the Kaibab
National Forest limited motorized big game retrieval to
certain roads and imposed additional restrictions to reduce
the level and effect of motorized activity. In crafting the
plans, the Forest Service investigated potential impacts on
both the environment and historic properties and reasonably
determined that no further action was needed. Accordingly,
we conclude that the Forest Service followed the Travel
 WILDEARTH GUARDIANS V. PROVENCIO 43

Management Rule and fulfilled its procedural obligations
under NEPA and the NHPA. 12

AFFIRMED.

12
Amicus Curiae Rocky Mountain Elk Foundation filed a motion
for leave to file an amicus brief in support of the Forest Service. We
conclude that the proposed brief provides neither legal nor factual
support to help resolve the issues on appeal, and so deny the motion.