Colorado Wild v. United States Forest Service

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 18, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

COLORADO WILD; HEARTWOOD,

Plaintiffs - Appellants,
No. 05-1265
v.

UNITED STATES FOREST
SERVICE,

Defendant - Appellee,

and

INTERMOUNTAIN FOREST
ASSOCIATION, an Idaho corporation,

Defendant-Intervenor-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 04-M-2472)

Matthew G. Kenna, Western Environmental Law Center, Durango, Colorado, for
Plaintiffs - Appellants.

Barclay T. Samford (and Kelly A. Johnson, Acting Assistant Attorney General, on
the brief), United States Department of Justice, Environment & Natural Resources
Division, Denver, Colorado, for Defendant - Appellee.

Scott W. Horngren, Haglund, Kelley, Horngren, Jones and Wilder, L.L.P.,
Portland, Oregon, for Defendant-Intervenor - Appellee.
Before KELLY, PORFILIO, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellants Colorado Wild, Inc. and Heartwood, Inc. (collectively,

the “Conservation Groups”) appeal from a final judgment in favor of Defendant-

Appellee, United States Forest Service (“Forest Service”) and Intervenor-

Defendant-Appellee Intermountain Forest Association (“Intermountain”). The

Conservation Groups challenge, pursuant to the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 701-06, a categorical exclusion promulgated by the Forest

Service (“Category 13”) that allows the salvage of dead and/or dying trees on up

to 250 acres (with up to one-half mile of temporary road construction) to proceed

without preparation of an environmental impact statement (“EIS”) or an

environmental assessment (“EA”) under the National Environmental Policy Act

(“NEPA”), 42 U.S.C. §§ 4321-4370f. The Shaw Lake Vegetation Project (“Shaw

Lake Project”) was approved pursuant to Category 13. Our jurisdiction arises

under 28 U.S.C. § 1291, and we affirm.

Statutory Background

Our review of the challenged regulation is set against the backdrop of

-2-
NEPA and the regulations and guidance created by the administrative agency

charged with its implementation, the Council on Environmental Quality (“CEQ”).

We therefore begin with a brief overview thereof. NEPA was enacted to regulate

government activity that significantly impacts the environment and “to help public

officials make decisions that are based on [an] understanding of environmental

consequences, and take actions that protect, restore, and enhance the

environment.” 40 C.F.R. § 1500.1(c). The CEQ administers NEPA and

promulgates regulations related to NEPA that are binding on federal agencies.

See 42 U.S.C. §§ 4342, 4344(3); 40 C.F.R. §§ 1501-08. Every federal agency

then drafts its own administrative regulations to implement and supplement the

CEQ regulations. See 40 C.F.R. § 1507.3.

To effectuate the goals of NEPA, the CEQ created rules requiring agencies

to establish implementing procedures that facilitate the evaluation of management

decisions and the environmental effects of proposed federal agency actions.

Under these guidelines, an agency must identify those actions which normally

require an EIS. See id. § 1501.4(a)(1). An EIS is required for “major Federal

actions significantly affecting the quality of the human environment.” 42 U.S.C.

§ 4332(2)(C).

In order to determine whether a particular proposed action requires the

preparation of an EIS, agencies perform an EA. An EA is a public document

-3-
(shorter than an EIS) that contains information pertaining to the need for the

proposed action, other alternatives, the environmental impact of the proposal and

its alternatives, and other relevant information. See 40 C.F.R. § 1508.9(b). An

agency may prepare an EA for one of several reasons: (1) to provide evidence and

analysis that establish whether or not an EIS or a Finding of No Significant

Impact (“FONSI”) should be prepared; (2) to help the agency comply with NEPA

when no EIS is necessary; and (3) to facilitate preparation of an EIS when one is

necessary. See id. § 1508.9(a)(1)-(3).

When an agency identifies certain actions that do not have any significant

effect on the environment, the agency may classify those actions as categorical

exclusions (“CEs”). Under NEPA and CEQ regulations, if an action falls within a

particular CE, the agency need prepare neither an EIS nor an EA. The CEQ

requires federal agencies to design procedures for establishing CEs. Specifically,

a CE is

a category of actions which do not individually or cumulatively have
a significant effect on the human environment and which have been
found to have no such effect in procedures adopted by a Federal
agency in implementation of these regulations (§ 1507.3) and for
which, therefore, neither an environmental assessment nor an
environmental impact statement is required. An agency may decide
in its procedures or otherwise, to prepare environmental assessments
for the reasons stated in § 1508.9 even though it is not required to do
so. Any procedures under this section shall provide for extraordinary
circumstances in which a normally excluded action may have a
significant environmental effect.

-4-
40 C.F.R. § 1508.4.

In Guidance Regarding NEPA Regulations, 48 Fed. Reg. 34,263, 34,265

(July 28, 1983), the CEQ expressed concern that some agencies were developing

lists of specific activities which qualify as CEs. The CEQ discouraged this

practice, noting that “if this approach is applied narrowly it will not provide the

agency with sufficient flexibility to make decisions on a project-by-project basis

with full consideration to the issues and impacts that are unique to a specific

project.” Id. The CEQ went on to encourage agencies “to consider broadly

defined criteria which characterize types of actions that, based on the agency’s

experience, do not cause significant environmental effects.” Id.

In order to establish a CE, the CEQ requires that an agency publish the

proposed CE in the Federal Register, provide an opportunity for public comment,

and submit the CE to the CEQ for review and approval. See 40 C.F.R. §

1507.3(a). The CEQ reviews proposed CEs at the draft stage. 48 Fed. Reg.

34,265. After reviewing comments received during the review period and prior to

publication in final form, the CEQ determines whether the CEs are consistent

with NEPA regulations. Id.

Factual Background

In 1992, the Forest Service promulgated and adopted a CE for timber

-5-
harvests “which remove 250,000 board feet or less of merchantable wood

products or salvage which removes 1,000,000 board feet or less.” 57 Fed. Reg.

43,180, 43,209 (Sept. 18, 1992) (the “Former CE”). In 1999, a federal district

court in Illinois struck down the Former CE. Heartwood, Inc. v. U.S. Forest

Serv., 73 F. Supp. 2d 962, 975 (S.D. Ill. 1999).

In 2001, the Forest Service began developing a new set of CEs to cover

small-scale timber harvests. As a basis for proposing a new set of CEs, the Forest

Service looked at two sets of data. The Forest Service first analyzed all 306

timber harvest projects performed under the Former CE for the year 1998, the last

year the Former CE was available to the Forest Service. This data was compiled

and reviewed to estimate the extent to which the Former CE was used and to

determine average project size (in acres) and harvest volume (in board feet).

Second, in 2001, the Forest Service selected, on a nationwide basis, 154

timber harvest projects that were either (1) approved under the Former CE, (2)

approved after an EA or an EIS was prepared but fit within the Former CE

requirements, or (3) were otherwise small in scope. This sample consisted of 101

dead timber salvage projects and 53 green timber harvest projects. None of the

154 projects reviewed predicted significant effects on the environment before the

project was implemented.

Of the 154 projects reviewed, 122 were approved under the Former CE and

-6-
were documented with decision memos 1 while 32 were documented with EAs. In

addition to reviewing these documents, teams of interdisciplinary resource

specialists from the Forest Service (the “Interdisciplinary Teams”) conducted on-

site, post-implementation assessments of these projects’ environmental effects.

The Interdisciplinary Teams monitored and documented whether each project met

project standards (e.g., Forest Plan Standards or Guidelines, state water quality

standards, etc.) for “soil, water, air, vegetation, wildlife, fish, cultural and

historic resources, [and] other pertinent issue related resources.” Aplt. App. at

38.

The resulting data indicated that a few of the projects showed “minor soil

disturbance and compaction,” while a few others showed that “small numbers of

noxious weeds or invasive plants entered the area where the trees had been

removed.” 68 Fed. Reg. 44,598 (July 29, 2003). However, based on the

information provided by the Interdisciplinary Teams, the respective Forest Service

line officer responsible for each timber harvest project reviewed made a finding

1
Amongst other things, a Decision Memo documents the reasons for
categorically excluding a proposed action, including: the category of the proposed
action; the rationale for using the category and, if more than one category could
have been used, an explanation of why the specific category was chosen; and a
finding that no extraordinary circumstances exist. See Forest Service Handbook
(“FSH”) 1909.15, ch. 30, § 32.3 (2004). A Decision Memo also requires a listing
of any interested and affected agencies, organizations, and persons contacted. Id.
Once signed and dated by the responsible officer, the Decision Memo is
distributed to these agencies, organizations, or persons. Id. § 33.

-7-
that these impacts were not significant in the NEPA context, i.e., they did not

individually or cumulatively have a significant effect on the human environment.

Id. at 44,599. Thus, the Forest Service considered pre-implementation prediction

and post-implementation verification of no significance in the NEPA context.

Based on the 154 projects reviewed, the Forest Service identified three

types of actions that it determined normally do not individually or cumulatively

have a significant effect on the human environment. As such, the Forest Service

defined the criteria which characterize these actions and proposed three new

categories of CEs consistent therewith: (1) harvest of live trees not to exceed 70

acres (green timber harvests or “Category 12”), (2) salvage of dead and/or dying

trees not to exceed 250 acres (salvage timber harvests or Category 13), and (3)

commercial and non-commercial sanitation of trees to control insects or disease

not to exceed 250 acres (“Category 14”). See 68 Fed. Reg. 44,598. The Forest

Service also defined all three CEs to permit no more than one-half mile of

temporary road construction. Id.

In addition, each CE contains the limitation that it cannot be employed for a

given project where there are “extraordinary circumstances” present that would

preclude its usage. Extraordinary circumstances include, but are not limited to,

potentially significant effects on the following:

Federally listed threatened or endangered species or designated
critical habitat, species proposed for Federal listing or proposed

-8-
 critical habitat, or Forest Service sensitive species; floodplains,
wetlands or municipal watersheds; Congressionally designated areas
such as wilderness, wilderness study areas, or national recreation
areas; inventoried roadless areas; research natural areas; American
Indian and Alaska Native religious or cultural sites; Archeological
sites, or historic properties or areas.

68 Fed. Reg. 44,599; FSH 1909.15, ch. 30, § 30.3.

In accordance with CEQ regulations, the Forest Service published a draft of

the proposed CEs in the Federal Register on January 8, 2003. See 68 Fed. Reg.

1026-30 (January 8, 2003). It took public comment for the prescribed 60 days

during which approximately 16,700 comment letters were received from

individuals; representatives of federal agencies; tribes; state and local government

agencies; environmental groups; professional organizations; and both commodity

and non-commodity groups. 68 Fed. Reg. 44,599. The Forest Service responded

to these comments with form letters as well as individual letters. Id. Thereafter,

pursuant to CEQ procedures, the CEQ reviewed the proposed CEs and in a letter

dated July 22, 2003, notified the Forest Service of the following:

Based on this review, CEQ concludes that the [proposed CEs]
conform with NEPA and the CEQ regulations. The [CEs] will take
effect once [they are] published in final form in the Federal Register.
Once established, the agencies will satisfy NEPA when using these
[CEs] by determining whether a proposed action falls within the
description of the activities and by reviewing the proposal to
determine whether extraordinary circumstances exist. In the event
extraordinary circumstances exist, an [EA] or an [EIS] would be
prepared before proceeding with the proposed action.

Aplt. App. at 28 (emphasis in original). On July 29, 2003, the Forest Service

-9-
published in the Federal Register a final version of the CEs, 68 Fed. Reg. 44,598-

608, which are now incorporated in FSH 1909.15, ch. 30, § 31.2.

On July 31, 2004, the Rio Grande National Forest announced the Shaw

Lake Project, which proposed to treat approximately 241 acres on the Rio Grande

National Forest to address a severe spruce beetle outbreak under Category 13.

The Forest Service accepted public comment until August 30, 2005. After

consideration of public comments, the Forest Service determined that the project

involved less than 250 acres of salvage of dead or dying trees and construction of

less than one-half mile of temporary road and did not involve any extraordinary

circumstances which would preclude issuance of the project pursuant to Category

13. On September 28, 2004, District Ranger Tom Malecek signed a Decision

Memo authorizing the project.

In late 2004, the Conservation Groups mounted both a facial challenge to

Category 13 and a challenge to the Forest Service’s use of Category 13 with

respect to the Shaw Lake Project. 2 Aplt. App. at 1-7. The Conservation Groups

attacked the Forest Service’s promulgation of Category 13 arguing that it violates

2
As the Forest Service points out in its brief, the Conservation Groups do
not assert that the Forest Service erred in its determination that the Shaw Lake
Project properly fits within Category 13; rather, the Conservation Groups tether
their challenge with regards to the Shaw Lake Project to the proposition that if
Category 13 is invalid, so too is the Shaw Lake Project. Accordingly, the entirety
of the Conservation Groups’ claim hinges on our resolution of their facial
challenge.

- 10 -
section 1508.4’s requirement that a CE only encompass those activities “which do

not individually or cumulatively have a significant effect on the human

environment.” The Conservation Groups maintained that the Forest Service’s

promulgation of Category 13 constituted arbitrary and capricious agency action on

two grounds. First, they challenged, for several reasons, the methodology used by

the Forest Service in promulgating Category 13. Second, they contended that the

Forest Service erred, in multiple ways, in its substantive conclusion that the

activities included in Category 13 normally will not have significant

environmental impacts. Intermountain, an organization representing forest

product companies and timber purchasing sawmills, intervened unopposed as a

defendant. The district court held in favor of the Forest Service finding that the

Conservation Groups “failed to show that the [Forest Service’s] adoption of

[Category 13] was arbitrary, capricious or contrary to law.” Aplt. App. at 135.

Discussion

This case is before us on review pursuant to the APA. We review the

district court’s decision de novo. Defenders of Wildlife v. U.S. Environmental

Protection Agency, 415 F.3d 1121, 1126 (10th Cir. 2005) (citation omitted).

When reviewing agency action, our scope of review is set forth in the APA. We

may not overturn the decision of an administrative agency unless we determine

- 11 -
that the decision was “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A); Utahns for Better Transp. v.

U.S. Dept. of Transp., 305 F.3d 1152, 1164 (2002).

The scope of our review under the “arbitrary or capricious” standard is

narrow and we are not to substitute our judgment for that of the agency. Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

We confine our review to ascertaining whether the agency examined the relevant

data and articulated a satisfactory explanation for its decision, including a rational

connection between the facts found and the decision made. Id.; Olenhouse v.

Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994). In reviewing the

agency’s explanation, we must determine whether the agency considered all

relevant factors and whether there has been a clear error of judgment. Motor

Vehicle Mfrs., 463 U.S. at 43 (citation omitted). Agency action will be set aside

if “the agency has relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the problem, offered

an explanation for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.” Id.

Because the arbitrary and capricious standard focuses on the rationality of

an agency’s decision making process rather than on the rationality of the actual

- 12 -
decision, “[i]t is well-established that an agency’s action must be upheld, if at all,

on the basis articulated by the agency itself.” Motor Vehicle Mfrs., 463 U.S. at

50. Thus, the grounds upon which the agency acted must be clearly disclosed in,

and sustained by, the record. Olenhouse, 42 F.3d at 1575. The agency must make

plain its course of inquiry, its analysis and its reasoning. Id. After-the-fact

rationalization by counsel in briefs or argument will not cure noncompliance by

the agency with these principles. Id.

In addition to requiring a reasoned basis for agency action, the “arbitrary or

capricious” standard requires an agency’s action to be supported by facts in the

record. Olenhouse, 42 F.3d at 1575. Accordingly, agency action will be set aside

as arbitrary unless it is supported by “substantial evidence” in the administrative

record. Id. “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Pennaco Energy Inc. v. U.S.

Dep’t of the Interior, 377 F.3d 1147, 1156 (10th Cir. 2004) (quotations and

citation omitted). “This is something more than a mere scintilla but something

less than the weight of the evidence.” Foust v. Lujan, 942 F.2d 712, 714 (10th

Cir. 1991) (discussing “substantial evidence” standard). “Evidence is generally

substantial under the APA if it is enough to justify, if the trial were to a jury,

refusal to direct a verdict on a factual conclusion.” Hoyl v. Babbitt, 129 F.3d

1377, 1383 (10th Cir. 1997). It is not our duty, however, to substitute our

- 13 -
judgment for that of the agency’s on matters within its expertise. Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). Moreover, we

typically defer to the “reasonable opinions” of agency experts in matters

implicating conflicting expert opinions. See id.

Moreover, because the Conservation Groups have challenged Category 13

on its face and seek to enjoin its usage by the Forest Service, our review is also

governed by the standard applicable to facial challenges. See Pub. Land Council

v. Babbit, 167 F.3d 1287, 1293 (10th Cir. 1999). To prevail on a facial

challenge, the Conservation Groups “must establish that no set of circumstances

exist under which the [regulation] would be valid.” Id. (quotations omitted;

alteration in original). With these principles of review in mind, we turn now to

the challenges posed by the Conservation Groups.

On appeal, the Conservation Groups press the same two challenges to the

Forest Service’s promulgation of Category 13 they raised below.

1. Forest Service’s Methodology

With regards to the methodology employed by the Forest Service in

promulgating Category 13, the Conservation Groups object to the following: (1)

the statistical analysis used in establishing the 250 acre limit; (2) the sample of

projects considered in setting the length of permissible temporary road

construction; and (3) the Forest Service’s reliance on the “personal observations”

- 14 -
of the Interdisciplinary Teams in concluding that the projects reviewed did not

have significant environmental impacts.

A. Acreage limit

The Forest Service set the acreage limit for Category 13 at 250 acres,

slightly below the mean acreage of the 101 salvage projects reviewed, 255. The

median acreage of the salvage projects reviewed was 50 acres. Some of the

difference between the mean and median acreage is attributable to the inclusion of

a few large salvage projects in the relevant sample subset, including one salvage

project that covered 9,000 acres and four projects totaling over 6,500 acres

(collectively, the “largest salvage projects”). By removing the largest salvage

projects from the sample subset, the mean of the remaining salvage projects drops

to 114 acres. The Conservation Groups maintain that because the inclusion of the

largest salvage projects affected the results in this manner, it was arbitrary and

capricious for the Forest Service to not use either (1) a mean analysis which

excluded the largest salvage projects (i.e., removing them from the sample subset

as statistical outliers) or (2) a median analysis.

The Conservation Groups draw heavily on Ass’n of Oil Pipelines v. Fed.

Energy Reg. Comm’n, 281 F.3d 239, 246 (D.C. Cir. 2002), and American Iron &

Steel Institute v. Occupational Safety and Health Admin., 939 F.2d 975, 981

(D.C. Cir. 1991), in support of their argument. Accordingly, as a preliminary

- 15 -
matter, we address the import of Oil Pipelines and Am. Iron & Steel to the case

here.

We conclude that neither Oil Pipelines nor Am. Iron & Steel compels the

result urged by the Conservation Groups. In Oil Pipelines, the D.C. Circuit found

that the Federal Energy Regulatory Commission failed to adequately explain its

decision not to follow its prior method of removing, from the relevant sample set,

statistical outliers, which it defined as those data points that are “so extreme as to

raise a question whether they may be the result of recording or measurement

errors or some other anomaly.” 281 F.3d at 245. The D.C. Circuit was concerned

that the decision to exclude outliers was outcome driven–to avoid increasing the

average value: “To the extent that FERC refused to exclude outliers on the ground

that doing so changed the result, it obviously missed the whole point: the object

of excluding outliers is to prevent extreme and spurious data from biasing an

analysis, i.e., affecting its result adversely.” Id. at 246.

In this case, no one has suggested that Forest Service inexplicably deviated

from past practices or did not conduct an investigation into the largest salvage

projects so as to preordain a particular average. In light of the evidence put forth

by the Forest Service, the Conservation Groups have not carried their burden of

establishing that the largest salvage projects are abnormal, will not recur, and

ought to be eliminated. All 101 salvage projects in the sample set, from the

- 16 -
smallest five to the largest five, were individually reviewed and resulted in a

finding of no significant impact. The suggestion by the Conservation Groups

(without benefit of citation to the record) in its reply brief that the “likely

anomaly that produced the outliers here was that the [largest salvage projects]

reviewed had a relatively small amount of timber removed relative to their

acreages” is merely a hunch. Aplt. Rply. Br. at 9. The solution proposed by the

Conservation Groups, eliminating the largest salvage projects, from the average

seems arbitrary and result-oriented given the process an agency is supposed to

engage in when coming up with a CE.

In Am. Iron & Steel, the D.C. Circuit addressed an industry challenge to

OSHA’s use of a geometric mean in its technological feasibility analysis as unfair

because OSHA does not use the geometric mean in its enforcement. 939 F.2d at

990-91. The D.C. Circuit decided to uphold OSHA’s preference for using a

geometric mean (which basically excludes statistical outliers) rather than an

arithmetic mean (which does not exclude outliers) because OSHA reasoned that

the geometric mean was the best statistical method to summarize the routine

exposure levels and was, therefore, a good indicator of the feasibility of

compliance. Id. We do not read Am. Iron & Steel as holding (as the

Conservation Groups suggest) that it would have in fact been arbitrary and

capricious for the agency to have included the outliers. As the Forest Service

accurately points out, the D.C. Circuit did not address this issue as it ultimately
- 17 -
deferred to OSHA’s choice of statistical analysis. Id. at 991.

Accordingly, we turn to the remaining question of whether the Forest

Service acted arbitrarily or capriciously in not using a median analysis when

setting Category 13’s acreage limit. 3 But we must be mindful that under the

arbitrary and capricious standard, “our deference to the agency is greatest when

reviewing technical matters within its area of expertise, particularly its choice of

scientific data and statistical methodology.” Louisiana ex rel. Guste v. Verity,

853 F.2d 322, 329 (5th Cir. 1988) (noting that we do not review an agency’s

decision as statisticians, but “as a reviewing court exercising our narrowly

defined duty of holding agencies to certain minimal standards of rationality”).

As such, we look to the Forest Service’s rationale for using the mean

acreage of the salvage projects reviewed when setting Category 13’s acreage

3
We note in passing that although the district court was furnished with a
complete administrative record of Category 13’s promulgation process, the
appendix submitted to us on appeal by the Conservation Groups, and
supplemented by the Forest Service, is rather limited in many respects. In
particular, the appendix does not demonstrate whether the Forest Service was
properly faced with the proposition of using a median rather than a mean analysis
when setting Category 13’s acreage limit or whether the Conservation Groups
forfeited the opportunity to seek judicial review of the Forest Service’s
determination in that regard by failing to raise the issue during the administrative
phase of the promulgation process. See Advocates for Highway and Auto Safety
v. Fed. Motor Carrier Safety Admin., — F.3d —, 2005 WL 3242383 (D.C. Cir.
2005) (holding that issues not raised during the administrative phase of the
rulemaking process are deemed waived unless they are the kind of clear points
than an agency must consider sua sponte). Nevertheless, because the Forest
Service does not press a waiver argument here, we consider the Conservation
Groups’ argument on the merits.
- 18 -
limit. Explaining its choice, the Forest Service stated,

The [sample of projects reviewed] was limited to projects that were
either categorically excluded [under the Former CE], could have
been categorically excluded had [the Former CE] still been
available, or that were otherwise small in scope. Based on this
limitation, it follows that project sizes would be biased toward
smaller acreages. Consequently, the median project size is . . . 50
acres for salvage harvests. Since direct, indirect, and cumulative
effects arise from acres of activity and not the number of projects,
average acreages were used rather than median project size.

Aplee. App. at 18.

From our admittedly lay perspective and this record, the Forest Service’s

rejection of the median because of the over-representation of small projects (and

its focus on the acres of activity) does not seem irrational. We cannot substitute

our views on statistics (including skewed data and outlier analysis) for those of

the Forest Service and insist that one measure or another be used.

B. Road Length

The Conservation Groups claim that the Forest Service erred in permitting

one-half mile of temporary road construction in the new CEs. Of the 154 timber

harvest projects the Forest Service reviewed, 35 involved an average of one-half

mile of temporary road construction. Finding no significant environmental

impacts from these 35 projects, the Forest Service determined to include one-half

mile of temporary road construction in the new CEs. The Conservation Groups

maintain that “[g]iven that the Forest Service’s approach was to base the [CEs] on

the typical [project] amongst those reviewed, the result should have been to
- 19 -
eliminate roads from the [CEs], as the typical [timber harvest project] had no

roads.” Aplt. Br. at 22-23. The Conservation Groups argue alternatively that if

the Forest Service was determined to include temporary road construction in the

CEs, it should have used the average road length for all 154 projects, giving road

lengths of zero to the timber harvest projects it reviewed without roads.

Both these arguments are wanting. The Forest Service’s purpose for

reviewing the timber harvest projects was to determine whether particular

activities normally have significant environmental impacts. To determine whether

timber harvest projects containing temporary road construction have significant

environmental impacts, the Forest Service logically looked to the data collected

from those projects it reviewed which contained road construction, i.e., the

relevant data. Motor Vehicle Mfrs., 463 U.S. at 43. It would have, in fact, been

against reason for the Forest Service to consider timber harvest projects without

road construction because they add nothing to the determination of whether this

particular activity, temporary road construction, normally has significant

environmental impacts. The Forest Services’s decision to confine its analysis to

those timber harvest projects containing temporary road construction was not,

therefore, arbitrary or capricious.

C. Forest Service’s Reliance on Personal Observations

The Conservation Groups claim that the Forest Service impermissibly relied

on the “personal observations” of the Interdisciplinary Teams conducting the
- 20 -
post-implementation review process as a basis for finding that the reviewed

projects did not have significant environmental impacts. The Conservation

Groups draw upon Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d

1468, 1475 (9th Cir. 1994), and Heartwood, 73 F. Supp. 2d at 975, in support of

this proposition.

We find Northwest Motorcycle Ass’n and Heartwood distinguishable.

In Northwest Motorcycle Ass’n, the Ninth Circuit was not concerned with the

agency’s reliance on the “personal observations” of its interdisciplinary team to

support its substantive conclusions, but rather the court was troubled by the lack,

in the administrative record, of “any direct statements from the [i]nterdisciplinary

[t]eam that illustrates the personal experiences of the [agency] employees.” 18

F.3d 1475. Likewise, the Heartwood court’s rejection of the Forest Service’s

rationale for the Former CE was similarly predicated on the lack of any

evidentiary support in the administrative record, not on the Forest Service’s

reliance on the personal observations of its own personnel. See Heartwood, 73 F.

Supp. 2d at 975.

Here there are no such evidentiary deficiencies. The record fully

demonstrates the factors the Interdisciplinary Teams considered (e.g., whether the

timber harvest project’s effects met Forest Plan Standards or Guidelines, state

water quality standards, etc.), the monitoring techniques they employed (personal

observations, measurements, photo-point, etc.), and the resulting data. Based on
- 21 -
this field monitoring data, the respective Forest Service line officer responsible

made a determination as to whether the timber harvest project caused a significant

impact on the human environment. Supported by this record, we are unpersuaded

that the Forest Service acted arbitrarily or capriciously in relying on the personal

observations of its Interdisciplinary Teams.

The Conservation Groups further contend that because “it was in the Forest

Service’s self-interest to find ‘no significance’ for [the projects reviewed],

reliance on ‘personal observation[s]’ of the Forest Service personnel is

particularly questionable.” Aplt. Br. at 24-25. This argument must be rejected as

speculative. Accordingly, we reject all claims by the Conservation Groups that

the methodology employed by the Forest Service in promulgating Category 13

was arbitrary or capricious.

2. The Forest Service’s Substantive Conclusions

In addition to challenging the methodology employed by the Forest Service

in promulgating Category 13, the Conservation Groups assert, on several grounds,

that the record shows the Forest Service erred substantively in concluding that

projects under Category 13 will normally not have significant impact on the

human environment.

A. Dead Timber Salvaging v. Green Timber Harvesting

Relying on Heartwood, the Conservation Groups strenuously press the

proposition that dead timber salvaging and green timber harvesting have the same
- 22 -
environmental impacts. The Conservation Groups claim, therefore, that the Forest

Service acted arbitrarily and capriciously in promulgating Category 13 because it

allows dead timber salvaging on 250 acres while Category 12 limits green timber

harvesting to 70 acres.

The Forest Service does not maintain that there is an intrinsic difference

between the environmental impacts of green timber harvesting and dead timber

salvaging. The Forest Service argues, however, that Heartwood is distinguishable

on the basis that, unlike here, in Heartwood the Forest Service failed to provide

evidence in the administrative record to support its decision to have differing

limitations applicable to green timber harvesting and dead timber salvaging. We

agree.

In developing Categories 12 and 13, the Forest Service reviewed 154 timber

harvest projects, 53 of which involved green timber harvesting and 101 of which

involved dead timber salvaging. Based on data gathered from this review, the

Forest Service found that none of these projects caused significant environmental

impacts. The Forest Service then determined that the mean acreage size of the

projects involving dead timber salvaging was 255 acres, while the mean acreage

size of the project involving green timber harvesting was 70 acres. As such, the

Forest Service concluded that the evidence supported a 70 acre limit applicable to

green timber harvesting, while the evidence available for dead timber salvaging

supported a larger applicable acreage limit of 255 acres. There is nothing in
- 23 -
Heartwood to suggest that this approach is arbitrary or capricious. Rather, the

Forest Service’s decision to set different acreage limitations applicable to

Categories 12 and 13 was a rational response to the evidence before it. Cf. Motor

Vehicle Mfrs., 463 U.S. at 43 (agency action will be set aside if “the agency has .

. . offered an explanation for its decision that runs counter to the evidence before

the agency . . .”).

The Conservation Groups contend that the Forest Service’s rationale is a

“false syllogism,” because it only shows that larger salvage projects were chosen

for analysis than green timber projects. Aplt. Br. at 30. The Conservation

Groups maintain that this result was preordained by the project selection process,

whereby the projects reviewed were those that were, or could have been, approved

under the Former CE. That is, because the Former CE allowed green timber

harvests of 250,000 board feet, and dead timber salvages of one million board

feet, it is logical that the latter would be almost four times larger than the former.

We are not, however, persuaded that this observation compels a different

conclusion. When developing the new CEs, pursuant to CEQ Regulations and

Guidance, the Forest Service was to consider types of actions that, “based on [its]

experience, do not cause significant environmental impacts.” 48 Fed. Reg.

34,265. In accordance therewith, the Forest Service drew upon prior timber

harvest projects, which based on its experience did not cause significant

environmental impacts. It is true, as it were, that these projects were previously
- 24 -
approved under the Former CE, which had differing board feet limitations

applicable to green timber harvesting and dead timber salvaging, and that the

resulting data was thereby affected. However, this fact does not place the Forest

Service’s rationale in conflict with the proposition that the environmental impacts

from these two actions are the same. Nor does it prove that dead timber salvaging

normally causes significant environmental impacts. Rather, it merely

demonstrates the Forest Service’s lack of experience with, and ability to provide

an evidentiary record for, a CE applicable to green timber harvests of a size equal

to dead timber salvages.

B. The Record Showing No Significant Impact

The Conservation Groups next forward a succession of substantive claims,

through a series of quotations from public comment letters opposing the then

proposed Category 13, regarding the following: (1) the reduction of collaboration

between the Forest Service and states and tribes, (2) the use of an acreage limit

rather than a timber volume limit, (3) the potential for significant cumulative

impacts from the use of multiple CEs, and (4) the significance of environmental

impacts from temporary road construction. We address each in turn.

First, the Conservation Groups contend that use of Category 13 will

severely limit the opportunity for State agencies, Indian Tribes, and the public to

provide meaningful input into the decision making process of the Forest Service.

Aplt. Br. at 34-36. Public involvement is an important aspect of preparing an
- 25 -
EIS. See 40 C.F.R. §§ 1503.1, .3 (requiring an agency preparing an EIS to

request, and respond to, comments from federal, state, and local agencies, Indian

tribes, and the public). Public involvement, of a lesser magnitude, is also

required for preparing an EA. See id. § 1501.4(b). CEQ regulations do not,

however, require public involvement in an agency’s decision to employ a CE once

that CE has been approved.

The Conservation Groups’ contention is, of course, grounded in its concern

that the Forest Service will approve dead timber salvages under Category 13

without the level of public involvement that it deems necessary to making

appropriate environmental decisions. However, the CEQ regulations clearly do

not contemplate the level of public involvement that the Conservation Groups

seek, nor do the Conservation Groups attack, in this litigation, the CEQ

regulations in that regard. As such, while the Conservation Groups may feel

strongly about their contention, we are certain that it has no bearing on whether

the Forest Service acted arbitrarily or capriciously in promulgating category 13.

Second, the Conservation Groups argue that the Forest Service erred in

limiting Category 13 by acreage rather than the total volume of timber removed,

or some other un-disclosed hybrid thereof. Aplt. Br. at 37, 38, 43. Although the

Conservation Groups concede that an acreage limit may be proper if small

enough, they maintain that the 250 acre limit, without some kind of a volume

restriction, is impermissible because it may allow a single project to salvage
- 26 -
hundreds of thousands, even millions, of board feet of dead timber, which could

cause significant environmental impacts.

As stated previously, our role in reviewing the Forest Service’s decisions in

promulgating Category 13 is not to inject our own views or pick sides, see Motor

Vehicle Mfrs., 463 U.S. at 43; Marsh, 490 U.S. at 378; rather, our role is to

ascertain whether the Forest Service examined the relevant data and articulated a

rational connection between the facts found and the decision made. See Motor

Vehicle Mfrs., 463 U.S. at 43. This review also requires us to determine whether

the Forest Service’s decision was supported by facts in the record. Olenhouse, 42

F.3d at 1574.

Our review of the record reveals that the Forest Service gave due

consideration to limiting Category 13’s application by the total volume of timber

removed. However, in gathering data on the 154 timber harvest projects

reviewed, various problems associated with using a volume limit were revealed

that made its selection less favorable, including the fact that “[h]arvesting a given

volume of timber from one acre is likely to have different environmental impacts

than harvesting the same volume from tens of hundreds of acres,” and that

“timber volumes are estimated in advance of the sale, and there can be errors

associated with those predications; an acreage limit is not as subject to

uncertainty of estimation.” 68 Fed. Reg. 44,604. Considering the problems

associated with using a volume limit, the Forest Service concluded that “potential
- 27 -
environmental impacts are better predicted using acres treated rather than the total

volume of timber removed, regardless of acreage.” Id. Moreover, according to

the Forest Service, acreage limits are easier to control and administer in the field.

Id. Based on the record and its consideration of the problems associated with

using a volume limit, we find the Forest Service’s decision to use an acreage

limitation permissible and rational.

The Conservation Groups’ concerns, while certainly not trivial, ignore

Category 13’s own limitations. Each dead timber salvage project proposed under

Category 13 will have different environmental consequences, some of which

could pose the risk of significant environmental impacts. For example, one

proposed project could significantly impact federally listed threatened or

endangered species, flood plains, research natural areas, etc., while another

proposed project could, in fact, involve the intense harvest of a large (e.g., 240

acre) densely populated timber area. Yet, both scenarios are adequately addressed

by Category 13’s own requirement that the Forest Service consider whether

extraordinary circumstances are present that would preclude its use, see 68 Fed.

Reg. 44,599, and we must presume that the Forest Service will act properly in

applying it. See, e.g., Sullivan v. Everhart, 494 U.S. 83, 94 (1990).

Third, the Conservation Groups argue that multiple uses of Category 13

may result in cumulatively significant impacts on the environment. The

- 28 -
Conservation Groups’ contention in this respect is twofold: (1) there is a risk that

similar salvage projects, over both time and different geographic areas, will cause

significant cumulative impacts on the environment, and (2) there is a risk that the

Forest Service will split up larger salvage projects into smaller ones so as to fit

them within Category 13.

The Conservation Groups’ concerns are fully addressed in the CEQ

regulations adopted by the Forest Service applicable to all proposed projects,

including those falling under Category 13. As to the first of the Conservation

Group’s cumulative effect contentions, the Forest Service requires “scoping” on

all proposed projects, including those that would appear to be categorically

excluded. FSH 1909.15, ch. 30, § 30.3. In determining the “scope” of a proposed

project, the responsible Forest Service officer is required to consider the

cumulative impacts of connected, cumulative, and similar actions. See, e.g., 40

C.F.R. § 1508.25(a)(3) (the Forest Service must consider “[s]imilar actions, which

when viewed with other reasonably foreseeable or proposed agency actions, have

similarities that provide a basis for evaluating their environmental consequences

together, such as common timing or geography”); FSH 1909.15, ch. 10, § 11.2

(referencing 40 C.F.R. § 1508.25). If the responsible Forest Service official

determines, based on this scoping, that he is uncertain whether the proposed

project “may have a significant effect on the environment,” he must prepare an

- 29 -
EA. FSH 1909.15, ch. 30, § 30.3 (emphasis added). The scoping process

therefore addresses the risk that similar salvage projects, over both time and

different geographic areas, will cause significant cumulative impacts on the

environment.

As to the second of the Conservation Group’s cumulative effect arguments,

CEQ regulations preclude the breaking down of projects into small component

parts to avoid cumulative significance. See 40 C.F.R. § 1508.27(b)(7) (in

evaluating the significance of impact, an agency must consider “[w]hether the

action is related to other actions with individually insignificant but cumulatively

significant impacts . . . . Significance cannot be avoided by . . . breaking [a

project] down into small component parts.”). The Conservation Groups contends

that the Forest Service has shown, through other cases, that it has lost its

presumption of good faith when it comes to heeding this prohibition. In support

of this assertion, they Conservation Groups rely on Blue Mountains Biodiversity

Project v. Blackwood, 161 F.3d 1208, 1215 n.6 (9th Cir. 1998) (holding that a

single EIS was required to address the cumulative effects of five projects that

were part of a coordinated strategy); Foundation for Global Sustainability v.

McConnell, 829 F. Supp. 147, 151 (W.D. N.C. 1993) (finding that the evidence

that the Forest Service did not segment the operation purposely to avoid the

mandatory documentation outweighed the inference of improper motive); and

- 30 -
Mahler v. U.S. Forest Service, 128 F.3d 578, 5881, 583 n.6 (7th Cir. 1997) (while

not an issue in the litigation, providing a factual background that the Former CE

was used for three dead timber salvages). These cases certainly fail, however, to

the rebut the presumption that the Forest Service is entitled to here, in this facial

challenge, that it will observe this CEQ regulation. See Sullivan, 494 U.S. at 94.

Last, the Conservation Groups claim that the Forest Service erred in

allowing up to one-half mile of temporary road construction under Category 13

because the record, i.e., several comment letters, shows that such road building

may cause significant environmental impacts. The Forest Service counters, of

course, arguing that the administrative record supports its decision in this regard.

Our function in this review is not to weigh the evidence. See Pennaco Energy,

377 F.3d at 1159. Rather, our role is confined to ascertaining whether the Forest

Service’s decision was supported by “substantial evidence.” See Olenhouse, 42

F.3d at 1574.

As discussed supra, the administrative record demonstrates that the Forest

Service reviewed 35 timber harvest projects that involved temporary road

construction of an average of one-half mile. Each such project reviewed resulted

in a finding of no significant environmental impacts from the limited road

construction involved. Based on this record, the Forest Service was adequately

supported in its determination that temporary road construction of an average of

- 31 -
one-half mile does not cause significant environmental impacts. The fact that the

administrative record contains some evidence pointing to a different conclusion

does not render the Forest Service’s decision arbitrary and capricious. See

Pennaco Energy, 377 F.3d at 1159.

Accordingly, we reject all claims by the Conservation Groups that the

substantive conclusions reached by the Forest Service in promulgating Category

13 were arbitrary or capricious.

AFFIRMED.

- 32 -