FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLUE MOUNTAINS No. 22-35857
BIODIVERSITY PROJECT, an
Oregon non-profit corporation, D.C. No. 2:20-
cv-02158-MO
Plaintiff-Appellant,
v. OPINION
SHANE JEFFRIES, in his official
capacity as Ochoco National Forest
Supervisor; UNITED STATES
FOREST SERVICE, an agency of the
United States Department of
Agriculture,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted March 30, 2023
Seattle, Washington
Filed July 3, 2023
2 BMBP V. JEFFRIES
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges, and Dean D. Pregerson, * District Judge.
Opinion by Judge Hurwitz
SUMMARY **
Environmental Law
The panel affirmed the district court’s summary
judgment in favor of the U.S. Forest Service in an action
brought by Blue Mountains Biodiversity Project (“BMBP”)
alleging that the Service’s approval of the Walton Lake
Restoration Project violated the National Environmental
Policy Act (“NEPA”), the National Forest Management Act,
and the Administrative Procedure Act.
The Forest Service developed the Project to replace trees
infested with laminated root rot and bark beetles with
disease-resistant ones. In May 2016, the Service contracted
with T2, a private company, for logging to implement the
decision. The Service issued a revised Environmental
Assessment (“EA”) in July 2020 and a revised decision
notice in December 2020. BMBP filed this action
challenging the 2020 decision notice. The Service filed an
administrative record (“AR”) in 2021.
*
The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BMBP V. JEFFRIES 3
The panel first addressed BMBP’s argument that the AR
was incomplete. First, BMBP argued that deliberative
materials were part of the “whole record” and that a privilege
log was required if they were not included in the AR. The
panel held that deliberative materials are generally not part
of the AR absent impropriety or bad faith by the
agency. Because deliberative materials are not part of the
administrative record to begin with, they are not required to
be placed on a privilege log. The district court did not abuse
its discretion by declining to order the production of a
privilege log. Second, BMBP argued that all documents in
the 2016 AR should be in the AR for this case. BMBP
contended that the documents in the 2016 AR were
necessarily before the agency in the 2020 process because
the Project was a continuation of the withdrawn one. The
panel held that BMBP’s arguments failed to overcome the
presumption of regularity. The 2020 decision notice
expressly stated that the Forest Service began the NEPA
process again in 2019. The record also supported the
Service’s contention that it included only documents from
previous NEPA analyses that were considered in the 2020
decision. The panel concluded that the district court acted
within its discretion in denying the motion to supplement the
AR.
The panel next addressed whether the Service violated
NEPA by approving the Project. First, the panel held that
BMBP failed to establish that the logging contract with T2
improperly committed resources under any standard. There
is also no evidence that the agency merely engaged in post
hoc rationalization in the 2020 decision. Second, the panel
rejected BMBP’s contention that the EA diluted the
significance of some impacts by analyzing them on too large
a scale. The BMBP did not show why the choice of a
4 BMBP V. JEFFRIES
broader context in the challenged instances was arbitrary or
capricious. Also, the regulations list ten non-exhaustive
relevant factors for consideration. The panel held that
whether the factors were assessed individually or
cumulatively, the record did not establish a clear error of
judgment in the Service’s intensity findings, which “refers
to the severity of impact” within the selected context. 40
C.F.R. § 1508.27(b).
The panel affirmed the judgment of the district court and
lifted the previous stay of its order dissolving the preliminary
injunction.
COUNSEL
Jesse A. Buss (argued) and Bridgett A. Chevallier,
Willamette Law Group PC, Oregon City, Oregon; Thomas
C. Buchele, Earthrise Law Center, Portland, Oregon; for
Plaintiff-Appellant.
Robert P. Stockman (argued), Sean C. Duffy, and Joan M.
Pepin, Attorneys; Todd Kim, Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice; Washington, D.C.; Rick Grisel,
Attorney; Rebecca Harrison, Senior Counsel; Office of the
General Counsel; Washington, D.C.; for Defendants-
Appellees.
BMBP V. JEFFRIES 5
OPINION
HURWITZ, Circuit Judge:
This case involves claims by the Blue Mountains
Biodiversity Project (“BMBP”) that the approval of the
Walton Lake Restoration Project by the U.S. Forest Service
violated the National Environmental Policy Act, the
National Forest Management Act, and the Administrative
Procedure Act. The district court granted summary
judgment against BMBP on all claims relevant to this appeal.
We affirm.
BACKGROUND
Walton Lake is a 218-acre recreation site in the Ochoco
National Forest in Oregon. The Forest Service developed
the Walton Lake Restoration Project (“Project”) to replace
trees infested with laminated root rot and bark beetles with
disease-resistant ones. In 2015, relying on a regulation that
excludes the sanitation harvest of trees to control disease and
insects from some National Environmental Policy Act
(“NEPA”) requirements, 36 C.F.R. § 220.6(e)(14) (2015),
the Service issued a decision memorandum approving the
Project. In May 2016, the Service contracted with T2, a
private company, for logging to implement that decision.
Although no logging has yet occurred, the T2 contract
remains in place.
BMBP sued, challenging the 2015 decision, and the
district court preliminarily enjoined the logging on October
18, 2016. The next day, the Service withdrew its decision
“to allow additional analysis of the proposed activities.” On
October 21, 2016, the Service stated that it would undertake
6 BMBP V. JEFFRIES
“[a]dditional planning and analysis . . . with the goal of
releasing an Environmental [Assessment (“EA”)].” 1
The Service issued an EA and a decision notice
approving the Project in 2017 but withdrew the decision
notice later that year, citing a need for “additional dialogue
and analysis.” The Service issued a revised EA in July 2020
and a revised decision notice in December 2020. The
revised EA analyzed four alternatives, including a no-action
alternative. The selected alternative authorizes thirty-five
acres of sanitation logging and 143 acres of commercial and
noncommercial thinning to reduce the risk of wildfires and
bark beetle infestation. The 2020 decision notice stated that
the Project “provides the best opportunity for long-term
public enjoyment of this area, with fewer risks of falling
trees, and more longevity in the large ponderosa pines that
provide much of the scenic quality”; found that there would
be no significant environmental impact; and made four
Project-specific amendments to the Ochoco National Forest
Plan.
BMBP then filed this action challenging the 2020
decision notice. The Service filed an administrative record
(“AR”) in early 2021. A magistrate judge recommended
denial of BMBP’s motion to compel completion of the AR
and declined to order the Service to produce a privilege log,
concluding that certain documents sought by BMBP were
deliberative materials, and BMBP did not establish that
some documents in the AR filed in response to the 2016 suit
were “before the agency” in its 2020 decision. The district
judge adopted the magistrate judge’s reasoning and denied
1
The district court granted BMBP’s motion to dismiss the 2016 suit on
June 19, 2017.
BMBP V. JEFFRIES 7
the motion, but again preliminarily enjoined any logging for
the Project.
The district court later granted the Service summary
judgment on all but one of BMBP’s claims. It concluded
that the logging contract with T2 was not an “irreversible and
irretrievable commitment” of resources because it could be
unilaterally modified or terminated. It also held that the
Service reasonably found that the Project would not have a
significant environmental impact and thus reasonably
declined to prepare an environmental impact statement
(“EIS”). The court entered a final judgment and dissolved
the preliminary injunction. 2 BMBP timely appealed, and we
have jurisdiction under 28 U.S.C. § 1291. 3
DISCUSSION
I.
We first address BMBP’s argument that the AR is
incomplete. The Administrative Procedure Act (“APA”)
requires us to “review the whole record,” 5 U.S.C. § 706,
including “all documents and materials directly or indirectly
considered by agency decision-makers,” Thompson v. U.S.
Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (cleaned
up). BMBP argues that deliberative materials are part of the
“whole record” and that a privilege log is required if they are
not included in the AR. It also contends that all documents
in the 2016 AR should be in the AR for this case.
2
The district court stayed its order dissolving the preliminary injunction,
however, pending our decision on a motion for a stay pending appeal.
We granted that stay and expedited this appeal.
3
The Service has not appealed the district court’s grant of summary
judgment to BMBP on one of its NEPA claims.
8 BMBP V. JEFFRIES
A.
No previous Ninth Circuit opinion addresses whether
deliberative materials are part of the “whole record.”
District courts in this Circuit are split on the issue. See Save
the Colorado v. U.S. Dep’t of the Interior, 517 F. Supp. 3d
890, 896–97 (D. Ariz. 2021) (collecting cases). The District
of Columbia Circuit, however, has held that deliberative
materials are generally not part of the AR absent impropriety
or bad faith by the agency. See Oceana, Inc. v. Ross, 920
F.3d 855, 865 (D.C. Cir. 2019). We agree.
Our holding rests on two well-settled principles
governing judicial review of agency action under the APA.
First, “the whole record,” 5 U.S.C. § 706, is ordinarily “the
record the agency presents,” Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 743–44 (1985). “[L]ike other official
agency actions, an agency’s statement of what is in the
record is subject to a presumption of regularity.” Goffney v.
Becerra, 995 F.3d 737, 748 (9th Cir. 2021). Thus, barring
“clear evidence to the contrary,” we “presume that an agency
properly designated the Administrative Record.” Id.
(cleaned up).
Second, we assess the lawfulness of agency action based
on the reasons offered by the agency. See Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 50 (1983). Deliberative documents, which
are prepared to aid the decision-maker in arriving at a
decision, are ordinarily not relevant to that analysis. See
Oceana, 920 F.3d at 865; see also Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)
(“[I]nquiry into the mental processes of administrative
decisionmakers is usually to be avoided.”), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99, 105
BMBP V. JEFFRIES 9
(1977); Morgan v. United States, 304 U.S. 1, 18 (1938)
(noting it is “not the function of the court to probe the mental
processes of the Secretary in reaching his conclusions”).
Because deliberative materials are “not part of the
administrative record to begin with,” they are “not required
to be placed on a privilege log.” Oceana, 920 F.3d at 865
(cleaned up). We agree, however, with the D.C. Circuit that
“a showing of bad faith or improper behavior” might justify
production of a privilege log to allow the district to
determine whether excluded documents are actually
deliberative. Id.; see also In re United States, 875 F.3d 1200,
1211–12 (9th Cir. 2017) (Watford, J., dissenting) (discussing
potential circumstances justifying expansion of the AR),
vacated, 138 S. Ct. 443, 445 (2017).
But, BMBP does not assert any misconduct by the
Service, nor does it contend that specific documents were
improperly classified as deliberative. Although we leave for
another day a detailed exploration of the precise
circumstances under which a district court can order the
production of a privilege log, the court here did not abuse its
discretion by declining to do so in this case.
B.
BMBP also contends that the documents in the 2016 AR
were necessarily before the agency in the 2020 process
because the Project is a continuation of the withdrawn one.
In so arguing, BMBP cites statements by the Service
suggesting that the 2020 decision relied on an “additional”
NEPA analysis, a District Ranger’s description of that
analysis as a “continuation of the Walton Lake Restoration
analysis and documentation,” and the Service’s reliance on
a 2015 Forest Health Report before the district court and an
appellate motions panel.
10 BMBP V. JEFFRIES
BMBP’s arguments, however, fail to overcome the
presumption of regularity. See Goffney, 995 F.3d at 748.
The 2020 decision notice expressly stated that “[t]he Forest
Service began the NEPA process again in 2019 with a
scoping letter dated August 7, 2019.” The phrase “additional
analysis” is not inconsistent with preparing a new AR to
support a new NEPA analysis. Nor do the views of a single
Service employee necessarily reflect those of the agency or
its ultimate decision-maker. See Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007). The
record also supports the Service’s contention that it included
only documents from previous NEPA analyses that were
considered in the 2020 decision. For example, the Service
did not cite the 2015 Forest Health Report in its 2020
decision, relying instead on a new 2019 Forest Health
Report. And, the Service’s citations to the 2015 Report in
prior court proceedings did not involve the validity of the
2020 decision but rather a separate 2017 decision to close
sections of the recreation site because of safety concerns.
We place a thumb on the scale against supplementation
of the AR, see Goffney, 995 F.3d at 747–48, and BMBP has
not demonstrated how the inclusion of “over two thousand
pages that the Service had included in the 2016 AR,” would
“identify and plug holes in the administrative record,” Fence
Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131
(9th Cir. 2010) (cleaned up). Because BMBP “has not met
its heavy burden to show that the additional materials sought
are necessary to adequately review the Forest Service’s
decision,” id., the district court acted within its discretion in
denying the motion to supplement the AR.
BMBP V. JEFFRIES 11
II.
We next address whether the Service violated NEPA by
approving the Project. NEPA imposes “a set of action-
forcing procedures that require that agencies take a hard look
at [the] environmental consequences” of their actions.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989) (cleaned up). “Although these procedures are
almost certain to affect the agency’s substantive decision,
. . . NEPA itself does not mandate particular results, but
simply prescribes the necessary process.” Id.
A.
The Council on Environmental Quality (“CEQ”) issues
regulations to guide agencies in determining what actions are
subject to NEPA requirements. See 40 C.F.R. § 1500.3. 4
Those regulations prohibit an agency from “commit[ting]
resources prejudicing selection of alternatives” or taking
actions that would “[l]imit the choice of reasonable
alternatives.” Id. §§ 1502.2(f), 1506.1(a)(2). BMBP
contends that the logging contract with T2 violated these
regulations. The parties dispute whether an improper
commitment of resources must be “irreversible and
irretrievable,” Metcalf v. Daley, 214 F.3d 1135, 1143 (9th
Cir. 2000) (cleaned up), or something less. We need not
decide that issue, however, because BMBP has failed to
establish that the contract improperly committed resources
under any standard.
Under the contract, T2 will receive $78,262 to remove
non-commercial timber and about $36,000 worth of
harvested commercial timber. Critically, the Service
4
Unless otherwise indicated, all citations are to the 2019 version of the
Code of Federal Regulations.
12 BMBP V. JEFFRIES
reserved the right to “terminate this contract, or any part
hereof, for its sole convenience,” at which point T2 “shall
immediately stop all work.” 48 C.F.R. § 52.212-4(l); see
WildWest Inst. v. Bull, 547 F.3d 1162, 1169 (9th Cir. 2008)
(stressing that the Service “clearly retained the authority to
change course or to alter the plan it was considering
implementing”); see also Nat’l Audubon Soc’y v. Dep’t of
the Navy, 422 F.3d 174, 206 (4th Cir. 2005) (holding that
preparatory activities did not violate NEPA in part because
that they did not “include cutting even a single blade of grass
in preparation for construction”). T2 has not conducted any
logging under the contract because the Service has not issued
a notice to proceed. And, given the district court’s
preliminary injunction against logging, which has been
stayed pending appeal, no logging can occur until this case
is resolved. See supra note 2. Nor has the Service made any
payments to T2.
There is also no evidence that the agency “merely
engaged” in “post hoc rationalization” in the 2020 decision.
Nat’l Audubon Soc’y, 422 F.3d at 199. BMBP argues that
an internal email by a Service employee suggests that
termination of the contract would cost the Service
appropriated dollars and prevent funding of a new project.
But, another Service employee explained in the same email
chain that any future work under the contract “must adhere
to what is in the new NEPA decision” and that pending the
outcome of that decision, the Service might need to
“terminate[ ] and resolicit[ ]” the contract.
Rather than rely on “the alleged subjective intent of
agency personnel divined through selective quotations from
email trails,” we “look to . . . the environmental analysis
itself.” Id. The EA contains no indication that the T2
contract prejudiced or limited the consideration of
BMBP V. JEFFRIES 13
alternatives. After analyzing the effects of no action and
several alternatives that reduced or eliminated commercial
logging, the Service chose the Project because it “best meets
the Purpose and Need of Action,” would “better meet the
management objectives of the area,” and “provides the best
opportunity for long-term public enjoyment of this area.”
The Service also stated that it “considered all reasonable
alternatives and would not be limited in choice because the
final service agreement or other tool of implementation
would be written to align with the final decision.”
B.
NEPA mandates an EIS for “major Federal actions
significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). An agency need not,
however, prepare an EIS if it prepares an EA that “briefly
presents the reasons why the proposed agency action will not
have a significant impact on the human environment.” Dep’t
of Transp. v. Pub. Citizen, 541 U.S. 752, 757–58 (2004).
Significance depends on an action’s “context” and
“intensity.” 40 C.F.R. § 1508.27. “Although . . . review
under the arbitrary and capricious standard is deferential,”
an agency’s finding of no significant impact is arbitrary or
capricious if the petitioner has raised “substantial questions
whether a project may have a significant effect on the
environment.” Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1212–14, 1216 (9th Cir. 1998)
(cleaned up).
1.
“Context simply delimits the scope of the agency’s
action, including the interests affected.” In Defense of
Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1068
(9th Cir. 2014) (cleaned up); see 40 C.F.R. § 1508.27(a)
14 BMBP V. JEFFRIES
(listing potential contexts). Although the agency should be
mindful “that use of a larger analysis area can dilute the
apparent magnitude of environmental impacts,”
“[i]dentifying the appropriate geographic scope is a task
assigned to the special competency of the appropriate
agency.” Friends of the Wild Swan v. Weber, 767 F.3d 936,
943 (9th Cir. 2014) (cleaned up).
BMBP contends that the EA diluted the significance of
some impacts by analyzing them on too large a scale.
However, “[a]lthough 40 C.F.R. § 1508.27(a) suggests that
site-specific actions are generally evaluated in the context of
a project locale, nothing in the regulation prohibits the
[Service] from exercising its discretion to apply a [larger]
analysis when appropriate.” Tri-Valley CAREs v. U.S. Dep’t
of Energy, 671 F.3d 1113, 1127 (9th Cir. 2012). And BMBP
has not shown why the choice of a broader context in the
challenged instances was arbitrary or capricious. See Ctr.
for Cmty. Action & Env’t Just. v. FAA, 18 F.4th 592, 599
(9th Cir. 2021) (noting that the petitioner bears the burden of
persuasion); cf. Anderson v. Evans, 371 F.3d 475, 489–92
(9th Cir. 2004) (explaining why the local context was
especially relevant for assessing whether the project’s
effects would be controversial).
Indeed, BMBP concedes in its briefing that the 2020
decision “acknowledges the highly-localized nature of the
Project’s effects” and that the EA contains a “disclosure of
local impacts.” The Service extensively analyzed various
local impacts—including those on scenic integrity, on late
and old structure stands, and on threatened and endangered
species. And, the EA explained why it chose certain broader
contexts for analysis in other instances. The record fails to
establish that the agency’s decisions about context were
BMBP V. JEFFRIES 15
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).
2.
Intensity “refers to the severity of impact” within the
selected context. 40 C.F.R. § 1508.27(b). The regulations
list ten non-exhaustive relevant factors for consideration,
including the “[u]nique characteristics of the geographic
area”; the “degree to which the effects . . . are likely to be
highly controversial”; the “degree to which the action may
establish a precedent for future actions with significant
effects”; and whether the action “threatens a violation of
Federal, State, or local law or requirements imposed for the
protection of the environment.” Id. Whether the factors are
assessed individually or cumulatively, the record does not
establish a “clear error of judgment” in the Service’s
intensity findings. Blue Mountains Biodiversity Project, 161
F.3d at 1211 (cleaned up).
Although the EA described Walton Lake as “unique”
because it boasts a high number of visitors and is “the only
Developed Recreation Management Area that has a lake
with the combination of moist mixed conifer and dry mixed
conifer forest surrounding it,” the Service reasonably found
that the Project would affect neither the lake itself, nor “the
diversity of tree species in the project area around Walton
Lake.” The Service also reasonably concluded that the
Project “would not substantially affect the use of the area as
a recreation site” because the infested area was already
closed to recreational uses for safety reasons. And BMBP
does not challenge the Service’s conclusion that the Project
would not affect any of the “unique” characteristics listed in
the regulation. See 40 C.F.R. § 1508.27(b)(3).
16 BMBP V. JEFFRIES
The record also does not suggest that the Project is highly
controversial. See id. § 1508.27(b)(4). “A project is highly
controversial if there is a substantial dispute about the size,
nature, or effect of the major Federal action,” which “exists
when evidence . . . casts serious doubt upon the
reasonableness of an agency’s conclusions.” WildEarth
Guardians v. Provencio, 923 F.3d 655, 673 (9th Cir. 2019)
(cleaned up). But, a project is not rendered highly
controversial simply because “qualified experts disagree.”
Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir.
1992). Rather, “[w]hen specialists express conflicting
views, an agency must have discretion to rely on the
reasonable opinions of its own qualified experts.” Marsh v.
Or. Nat. Res. Council, 490 U.S. 360, 378 (1989).
The Service concluded that the Project was not highly
controversial because its potential effects were well-
established or supported by the best available science.
Citing a range of research, the Service found “no evidence
that the proposed treatments would exacerbate” laminated
root rot. It also decided against stump removal because of
“soil disturbance” and “the high cost of removing stumps.”
The scientific studies cited by BMBP do not render these
findings arbitrary or capricious. One acknowledges that “an
appropriate strategy” is “based on several factors”; another
expresses some skepticism about sanitation harvesting but
also notes the potential effectiveness of “spacing trees
through thinning, by removing stumps, or by planting and
managing resistant and immune trees species”; and a third
does not discuss sanitation harvesting at all. Although
BMBP also cites Dr. Chad Hanson’s opinion that logging
would “likely increase [laminated root rot] occurrence,” the
Service reviewed that opinion but ultimately concluded that
the overall evidence weighed against its conclusions. One
BMBP V. JEFFRIES 17
negative comment does not establish high controversy. See
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1243–44 (9th Cir. 2005).
It was also reasonable for the Service to conclude that
the Project is unlikely to establish a precedent for future
actions. See 40 C.F.R. § 1508.27(b)(6). The Service
explained that “no other known Developed Recreation
Management Areas . . . have a laminated root rot problem on
the Ochoco National Forest.” The Service found that the
Project is “site-specific” and “any future decision would
need to go through the NEPA process.” Even if other sites
might one day develop similar infestation issues, that does
not necessarily make this Project precedential, “especially
since any other [project] would be subject to its own NEPA
analysis.” WildEarth Guardians, 923 F.3d at 674.
The Service’s decision also reasonably accounted for
federal, state, and local laws. See 40 C.F.R.
§ 1508.27(b)(10). Although forest plan amendments that
“may create a significant environmental effect” require an
EIS, there is an exception for “every plan amendment . . .
that applies only to one project or activity.” 36 C.F.R.
§ 219.13(b)(3). The amendments to the Ochoco National
Forest Plan at issue are each related to one project.
CONCLUSION
We AFFIRM the judgment of the district court and lift
our previous stay of its order dissolving the preliminary
injunction.