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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SIERRA CLUB, INC. and SIERRA ) 2:04-cv-2114-GEB-DAD

NEVADA FOREST PROTECTION CAMPAIGN, )

)

Plaintiffs, ) ORDER

)

v. )

)

DALE BOSWORTH, in his official )

capacity as Chief of the U.S. )

Forest Service; JOHN BERRY, in his )

official capacity as Forest )

Supervisor of the Eldorado )

National Forest; LAURIE TIPPIN, in )

her official capacity as Forest )

Supervisor of the Lassen National )

Forest; UNITED STATES FOREST )

SERVICE, an agency of the U.S. )

Department of Agriculture; ANN )

VENEMAN, in her official capacity )

as Secretary of the U.S. Dept. of )

Agriculture; and UNITED STATES )

DEPARTMENT OF AGRICULTURE, )

)

Defendants. )

)

Pending are cross-motions for summary judgment and

Plaintiffs’ motion to supplement the Administrative Record (“AR”). 

Plaintiffs contend the categorical exclusion (“CE”) established by the

United States Forest Service (“USFS”) for fuel reduction projects

(“Fuels CE”) violates the National Environmental Policy Act (“NEPA”);

and that the application of the Fuels CE to the timber project in the

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1 Plaintiffs’ motion also addresses the application of the

Fuels CE to a project in the Lassen National Forest; however, at the

hearing on the motions held on July 18, 2005, Plaintiffs withdrew

their challenge against the project in the Lassen National Forest

since the USFS has decided not to proceed with that project.

2

Eldorado National Forest also violates NEPA.1 Defendants counter that

the Fuels CE, and its application to the Eldorado National Forest

projects do not violate NEPA and must be upheld.

I. BACKGROUND

A. Overview of NEPA

NEPA, which is prescribed in pertinent part at 42 U.S.C. 

§§ 4321-4347, is the “basic national charter for protection of the

environment.” 40 C.F.R. § 1500.1. NEPA’s purpose is to “encourage

productive and enjoyable harmony between man and his environment; to

promote efforts which will prevent or eliminate damage to the

environment and biosphere and stimulate the health and welfare of man;

[and] to enrich the understanding of the ecological systems and

natural resources important to the Nation . . . .” 42 U.S.C. § 4321. 

“NEPA is a procedural statute that does not ‘mandate particular

results, but simply provides the necessary process to ensure that

federal agencies take a hard look at the environmental consequences of

their actions.’” High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630,

639 (9th Cir. 2004) (quoting Cuddy Mountain v. Alexander, 303 F.3d

1059, 1070 (9th Cir. 2004)). 

NEPA requires “all agencies of the Federal Government” to

include an environmental review document “in every recommendation or

report on proposals for legislation and other major Federal actions

significantly affecting the quality of the human environment.” 42

U.S.C. § 4332(2)(C). “In determining whether to prepare an

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environmental impact statement the Federal agency shall . . .

[d]etermine . . . whether the proposal is one which: (1) Normally

requires an environmental impact statement, or (2) Normally does not

require either an environmental impact statement or an environmental

assessment (categorical exclusion).” 40 C.F.R. § 1501.4. 

A categorical exclusion is “a category of actions which do

not individually or cumulatively have a significant effect on the

human environment . . . and for which, therefore, neither an

environmental assessment [(“EA”)] nor an environmental impact

statement [(“EIS”)] is required.” Id. § 1508.4. “In determining

whether an action will ‘significantly’ effect the environment, the CEQ

regulations provide certain factors that should be considered

[including], among others, (1) the degree to which the proposed action

affects public health or safety, (2) the degree to which the effects

will be highly controversial, (3) whether the action establishes a

precedent for further action with significant effects, and (4) whether

the action is related to other action which has individually

insignificant, but cumulatively significant impacts.” Alaska Ctr. for

the Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999)

(citing 40 C.F.R. § 1508.27(b)). 

When an agency determines that a category of actions should

be categorically excluded from NEPA review, the agency must include in

its regulations “specific criteria for and identification of” actions

that qualify for the categorical exclusion, and must also “provide for

extraordinary circumstances in which a normally excluded action may

have a significant environmental effect.” Id. §§ 1507.3(b)(2)(ii),

1508.4. “In such extraordinary circumstances, a categorically

excluded action would nevertheless trigger preparation of an EIS or an

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EA.” California v. Norton, 311 F.3d 1162, 1168 (9th Cir. 2002).

Furthermore, the agency must publish the proposed CE in the Federal

Register, provide an opportunity for public comment, and submit the CE

to the Council on Environmental Quality (“CEQ”) for review and

approval. 40 C.F.R. § 1507.3(a); 48 Fed. Reg. 34,263, 34,265 

(July 28, 1983). 

At issue is whether the USFS’s Fuels CE and/or the

application of it to the Eldorado National Forest projects should be

set aside. A court should “set aside [an agency’s] actions, findings,

or conclusions if they are ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.’” Ocean

Advocates v. U.S. Army Corps of Eng’rs, 361 F.3d 1108, 1118 (9th Cir.

2004) (quoting the Administrative Procedure Act (“APA”) at 5 U.S.C. 

§ 706(2)(A)). “Courts apply a ‘rule of reason’ standard in reviewing

the adequacy of a NEPA document.” Klamath-Siskiyou Wildlands Ctr. v.

U.S. Bureau of Land Mgmt., 387 F.3d 989, 992 (9th Cir. 2004) (citing 

Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001)). 

“Under this standard, we ask ‘whether an [environmental review]

contains a reasonably thorough discussion of the significant aspects

of the probable environment consequences.’” Churchill County, 276

F.3d at 1071 (citation omitted).

“The court must defer to an agency conclusion that is ‘fully

informed and well-considered,’ but need not rubber stamp a ‘clear

error of judgment.’” Anderson v. Evans, 371 F.3d 475, 486 (9th Cir.

2004) (quoting Blue Mountains Biodiversity Project v. Blackwood, 161

F.3d 1208, 1211 (9th Cir. 1998)). “If the adverse environmental

effects of the proposed action are adequately identified and

evaluated, the agency is not constrained by NEPA from deciding that

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other values outweigh the environmental costs. Thus the pertinent

question for the Court is not whether [it] would have arrived at the

same decision as that of the agency but merely whether the agency’s

decision was an informed one.” Australians for Animals v. Evans, 301

F. Supp. 2d 1114, 1120 (N.D. Cal. 2004). 

“District courts are not empowered to substitute their own

judgment for that of the government agency.” Id. at 1122 (quoting

Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105,

1114 (9th Cir. 2000)). The Court’s “task in reviewing NEPA claims is

simply to ensure that the procedure followed by the agency resulted in

a reasoned analysis of the evidence before it, and that the agency

made the evidence available to all concerned.” Cold Mountain v.

Garber, 375 F.3d 884, 893 (9th Cir. 2004) (quoting Friends of

Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.

1985)). 

Further, when considering “an agency’s actions under NEPA 

. . . courts must also be mindful to defer to agency expertise,

particularly with respect to scientific matters within the purview of

the agency.” Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 993. “When

specialists express conflicting views, an agency must have discretion

to rely on the reasonable opinions of its own qualified experts even

if, as an original matter, a court might find contrary views more

persuasive.” Marsh v. Or. Natural Resources Council, 490 U.S. 360,

378 (1989). 

B. Factual and Procedural Background

In response to concerns about the fire risk created by the

accumulation of hazardous fuels in many national forests, in August

2002, President Bush “established the Healthy Forests Initiative,

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directing the Departments of Agriculture and Interior and the Council

on Environmental Quality to improve regulatory processes to ensure

more timely decisions, greater efficiency, and better results in

reducing the risk of catastrophic wildfires by restoring forest help.” 

67 Fed. Reg. 77,038, 77,039 (Dec. 16, 2002). “[T]he Departments of

Agriculture and the Interior” responded to the Healthy Forests

Initiative by “consider[ing] whether new categorical exclusions could

be created for some of the fire management activities already

undertaken by those Departments.” (Defs.’ Mem. in Opp’n to Pls.’

Summ. J. Mot. & Supp. Defs.’ Summ. J. Mot. (“Defs.’ Mot.”) at 4-5.) 

“The Departments conducted an extensive review of over 2,500 past

hazardous fuel reduction and rehabilitation projects in order to

determine whether certain types of projects did not individually or

cumulatively have significant environmental effects and could

therefore form the basis for new categorical exclusions.” (Id. at 5;

see 68 Fed. Reg. 33,814 (June 5, 2003).) “The agencies also

considered peer[-]reviewed scientific literature concerning the

effects of hazardous fuel reduction activities.” (Defs.’ Mot. at 5.) 

“Based on this project review, the Departments identified a set of

limited hazardous fuel reduction and rehabilitation projects that

would not normally have significant effects on the environment. The

Departments proposed these limited categories of projects as a new

categorical exclusion in a Federal Register notice, and sought public

comment and review and approval by CEQ.” (Id.; see 67 Fed. Reg.

77,038 (Dec. 16, 2002).)

After revising the categories in response to public and

agency comments, on June 5, 2003, the USFS published the final Fuels

CE in the Federal Register. 68 Fed. Reg. 33,814 (June 5, 2003). The

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Fuels CE delineates what actions are categorically excluded as

follows:

• Hazardous fuels reduction activities using

prescribed fire not to exceed 4,500 acres, and

mechanical methods for crushing, piling, thinning,

pruning, cutting, chipping, mulching, and mowing,

not to exceed 1,000 acres. Such activities:

• Shall be limited to areas (1) in wildland-urban

interface and (2) Condition Classes 2 or 3 in Fire

Regime Groups I, II, or III, outside the

wildland-urban interface;

• Shall be identified through a collaborative

framework as described in "A Collaborative

Approach for Reducing Wildland Fire Risks to

Communities and the Environment 10-Year

Comprehensive Strategy Implementation Plan;"

• Shall be conducted consistent with agency and

Departmental procedures and applicable land and

resource management plans;

• Shall not be conducted in wilderness areas or

impair the suitability of wilderness study areas

for preservation as wilderness;

• Shall not include the use of herbicides or

pesticides or the construction of new permanent

roads or other new permanent infrastructure; and

may include the sale of vegetative material if the

primary purpose of the activity is hazardous fuels

reduction.

• Post-fire rehabilitation activities not to

exceed 4,200 acres (such as tree planting, fence

replacement, habitat restoration, heritage site

restoration, repair of roads and trails, and

repair of damage to minor facilities such as

campgrounds) to repair or improve lands unlikely

to recover to a management approved condition from

wildland fire damage, or to repair or replace

minor facilities damaged by fire. Such activities:

• Shall be conducted consistent with agency and

Departmental procedures and applicable land and

resource management plans;

• Shall not include the use of herbicides or

pesticides or the construction of new permanent

roads or other new permanent infrastructure; and

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• Shall be completed within three years following

a wildland fire.

68 Fed. Reg. 33,814. 

The CEQ reviewed the proposed categorical exclusions and

determined that they are “in conformance with NEPA and the CEQ

regulations.” (AR 78.) “Plaintiffs challenge only that portion of

the CE which relates to projects designed to reduce hazardous fuels.” 

(Defs.’ Mot. at 2.) 

“In 2004, the USFS applied the Fuels CE to at least three

projects in the Eldorado National Forest[: the] Grey Eagle Fuels

Reduction (logging 984 acres and prescribed burning 4,149 acres);

[the] Forest Guard Fuels Reduction (logging and prescribed burning 412

acres); and [the] Rockeye Fuels Reduction Project (logging and

prescribed burning 513 acres).” (Pls.’ Mem. Supp. Summ. J. Mot.

(“Pls.’ Mot.”) at 6.) “Plaintiffs also challenge the application of

the Fuels CE to [those] projects . . . .” (Defs.’ Mot. at 2.) 

II. ANALYSIS

A. Motion to Supplement the Administrative Record

Plaintiffs move to supplement the administrative record with

several documents and expert declarations. Plaintiffs argue this

supplementation is required because “judicial review of agency action

must be based on the ‘full administrative record,’ and [since] the

Forest Service omitted documents that were before the agency at the

time the Fuels CE was under review . . . .” (Pls.’ Mot. to Supplement

AR at 1.) Plaintiffs also contend “the administrative record [should

be supplemented] to ensure that the agency considered all relevant

factors and to explain or clarify a technical matter; thus

guaranteeing a fair and effective judicial review of the agency

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action.” (Id.)

Since “Defendants do not oppose supplementation of the

record with the ‘10-Year Comprehensive Strategy Implementation Plan,’

. . . the Forest Service Handbook, . . . the Scoping Notices and 

Schedule of Proposed Actions in the Eldorado and Lassen National

Forests . . . or the Healthy Forest Report[, and since the] series of

memoranda from the Forest Service Office of General Counsel . . . were

submitted to the Forest Service in public comments on the Forest

Service’s decision to revise its extraordinary circumstances

provisions, and are appropriately part of the administrative record,”

those documents will supplement the record. (Defs.’ Opp’n to Mot. to

Supplement AR at 1-2.)

“Thus, the sole dispute [is] whether it is appropriate to

supplement the record with the declarations of [Craig] Thomas, [Dr.

Denis] Odion and [Monica] Bond.” (Id. at 2.) “Generally, judicial

review of agency action is limited to review of the administrative

record.” Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.

1988). “The task of the reviewing court is to apply the appropriate

APA standard of review, 5 U.S.C. § 706, to the agency decision based

on the record the agency presents to the reviewing court.” Fl. Power

& Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). However,

supplementation is permitted: “(1) if necessary to determine whether

the agency has considered all relevant factors and has explained its

decision, (2) when the agency has relied on documents not in the

record, . . . (3) when [it] is necessary [for] expla[nation of]

technical terms or complex subject matter[, or (4)] when plaintiffs

[need it to] make a showing of agency bad faith.” Inland Empire Pub.

Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)

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(quoting Friends of the Payette v. Horseshoe Bend Hydroelectric Co.,

988 F.2d 989, 997 (9th Cir. 1993) & Nat’l Audubon Soc’y v. U.S. Forest

Serv., 46 F.3d 1437, 1447 n.9 (9th Cir. 1993)) (internal quotation

marks omitted).

Plaintiffs argue the declarations of Odion, Bond, and Thomas

“will assist the Court in determining whether the Forest Service has

considered all relevant factors.” (Pls.’ Mot. to Supplement AR at

10.) Plaintiffs contend the declarations 

highlight the breadth of information the Forest

Service was not privy to because the agency did

not do an environmental assessment or

environmental impact statement before promulgating

the Fuels CE or approving the challenged projects.

Second, they explain . . . how the Forest

Service’s own administrative record demonstrates

that the . . . [p]rojects will significantly

impact a number of sensitive species. Third, due

to the incomplete information in the

Administrative Record regarding individual and

cumulative impacts, two of the declarants

conducted a field visit to various units in the

Project Areas and reviewed past, present and

reasonably foreseeable projects, so that

[Plaintiffs] could explain to this Court the true

cumulative impacts of three of the challenged

projects. Finally, the Declarations provide

background information that is needed to

effectively review the Fuels CE and its

application to the challenged projects. 

(Id. at 10-11.)

Further, Plaintiffs contend that “[t]he effectiveness of

fuel reduction activities on the spread of wildfire has been the

‘subject of on-going scientific study by teams of researchers,

analyzing technical and complex environmental and biological

information’ and Dr. Odion’s declaration will be helpful to this court

by ‘highlighting . . . deficiencies in the [Forest Service’s]

environmental review process.’” (Id. at 11 (quoting Env’t Now! v.

Espy, 877 F. Supp. 1397, 1404 (E.D. Cal. 1994)).) Plaintiffs argue

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“Dr. Odion’s entire declaration demonstrates that the environmental

review performed by the Forest Service in promulgating the Fuels CE

and approving the . . . challenged projects was deficient because it

did not consider a wealth of scientific information[; and therefore,]

Dr. Odion’s declaration will help this court determine whether the

Forest Service has considered all relevant factors in promulgating the

Fuels CE.” (Pls.’ Mot. to Supplement AR at 11.) 

Plaintiffs contend Monica Bond’s declaration would “help

explain why the Forest Service’s decision making process was

insufficient with regard to the agency’s analysis of individual and

cumulative environmental impacts for the challenged Eldorado

Projects.” (Id.) Plaintiffs contend “[t]he Declaration highlights

that the Administrative Record is devoid of any information to support

the Forest Service’s allegation that the Fuels CE and the projects

approved under it will have no significant impacts [and] demonstrates

that the projects will have both individual and significant impacts on

the California spotted owl.” (Id. at 11-12.) 

Plaintiffs argue that “Craig Thomas’[s] Declaration provides

background information that will assist this Court in determining

whether the Forest Service has considered all relevant information[;

and] provides background information on past, present, and future

logging projects on both the Eldorado and Lassen National Forests.” 

(Id. at 12.) Furthermore, Plaintiffs contend these declarations will

“explain and illuminate the complex scientific issues of fire and

wildlife ecology.” (Id.) 

Defendants argue the record should not be supplemented with

Dr. Odion’s testimony because that “testimony is in large part

non-responsive to the actual projects being challenged, is mere expert

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disagreement with the agency, and should have been submitted to the

agency during the public comment periods.” (Defs.’ Opp’n to Mot. to

Supplement AR at 6.) 

Defendants object to Ms. Bond’s declaration, arguing that it

“constitutes little more than an articulation of her disagreement with

the scientific conclusions reached by . . . the Forest Service’s own

wildlife experts,” which should not be adjudicated. (Id. at 9.) 

Further, Defendants argue “Ms. Bond’s testimony does not fall into any

of the exceptions under which this Court may consider extra-record

evidence, but instead disputes the agency’s conclusions regarding the

projects’ impacts on the California spotted owl.” (Id.) 

Defendants also object to Mr. Thomas’s declaration, arguing

that it “provides no competent evidence that the Forest Service failed

to consider all relevant factors, and indeed does not identify any

‘past present and future logging projects’ the agency failed to

consider. Instead Mr. Thomas offers legal and scientific argument

that he is not qualified to give.” (Id. at 4.) 

Finally, Defendants contend that if Plaintiffs’

supplementation motion is granted, the record should also be

supplemented with the following rebuttal declarations: “the

declaration of Jeffrey Barnhart, responding to the allegations made in

the declaration of Dr. Odion[;] the declaration of Charis Parker,

responding to the allegations made in the declaration of Ms. Bond with

regard to the Grey Eagle and Rockeye Projects[; and] the declaration

of Jennifer Ebert responding to the allegations made in the

declaration of Ms. Bond with regard to the Forest Guard Project.” 

(Id. at 10.)

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Since the declarations of Bond and Odion are offered to

assist the Court in determining whether the USFS considered all

relevant factors and to assist in explaining complex scientific

issues, Plaintiffs’ motion to supplement the administrative record

with these declarations is granted. Portions of the Thomas

declaration are also admitted for this purpose; but Thomas’s legal

arguments and emotional distress arguments are excluded because they

are inappropriate expert opinions. See Pac. Gas & Elec. Co. v. Lynch,

216 F. Supp. 2d 1016, 1027 (N.D. Cal. 2002) (granting motion to strike

a declaration “because th[e] declaration primarily contain[ed] legal

argument rather than evidentiary matter”); Metro. Edison Co. v. People

Against Nuclear Energy, 460 U.S. 766, 773-776 (1983) (stating that

“psychological health damage [is not] cognizable under NEPA”). 

Furthermore, Defendants’ request that the Court consider its rebuttal

declarations is also granted. See Tri-Valley Cares v. U.S. Dep’t of

Energy, 2004 WL 2043034, at *3 (N.D. Cal. 2004) (granting “Defendants

leave to file rebuttal declarations because they had not had an

opportunity to respond to the extra record materials [and] Defendants’

response was essential to [its] review of the underlying motions.”). 

B. Cross-Motions for Summary Judgment

Plaintiffs move for summary judgment, arguing that 

the Forest Service’s promulgation of the Fuels CE

was arbitrary and capricious . . . because: 1) the

terms of the Fuels CE are contrary to 40 C.F.R. 

§§ 1508.4 and 1507.3, in that they do not specify

and identify adequately the actions to be covered,

create an unlawful ‘case-by-case’ categorical

exclusion, and fail to establish properly

‘extraordinary circumstances’; and 2) the actions

to be covered are not appropriate for categorical

exclusion under 40 C.F.R. § 1508.4 because they

have individual and/or cumulative significant

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effects; and the [USFS]’s findings of nonsignificance were arbitrary and capricious and

contrary to the evidence before the agency. 

(Pls.’ Mot. at 1.) Plaintiffs also contend that “the Fuels CE was not

in accordance with NEPA . . . because the [USFS] failed to prepare an

environmental assessment or environmental impact statement for the

Fuels CE prior to approving it” and “the Fuels CE cannot be applied to

the challenged timber projects in the . . . Eldorado National Forest

in California because they . . . involve individual and/or cumulative

significant effects.” (Id.)

Defendants counter that “[t]he Fuels CE was promulgated in

compliance with all law and regulations on the basis of an exhaustive

record, and the [USFS] properly determined that the . . . specific

projects challenged by Plaintiffs are covered by the Fuels CE.” 

(Defs.’ Mot. at 41.) 

1. Was the promulgation of the Fuels CE in violation of NEPA?

a. Does the Fuels CE violate the CEQ regulations?

Plaintiffs contend “the terms of the Fuels CE are contrary

to 40 C.F.R. §§ 1508.4 and 1507.3, in that they do not specify and

identify adequately the actions to be covered, create an unlawful

‘case-by-case’ categorical exclusion, and fail to establish properly

‘extraordinary circumstances.’” (Pls.’ Mot. at 1.) Defendants rejoin

that “the Departments have complied with all regulatory requirements

in promulgating the Fuels CE[: t]he CE identifies a specific class of

actions, and the Forest Service has appropriately defined the

extraordinary circumstances that would preclude authorizing a project

under the CE.” (Defs.’ Mot. at 15.) 

Plaintiffs contend “[t]he Fuels CE is contrary to

[1507.3(b)(2)(ii)] because the actions to be covered are not specified

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or identified [and i]nstead, identification of the actions is left to

future, ad hoc determination.” (Pls.’ Mot. at 8.) The CEQ

regulations require agencies promulgating a CE to include “[s]pecific

criteria for and identification of those typical classes of action”

which are covered by the CE. 40 C.F.R. § 1507.3(b)(2)(ii). 

Plaintiffs argue there is noncompliance with this regulation because

“the Fuels CE states that the projects to be covered by it: ‘[s]hall

be identified through a collaborative framework as described in [the]

10-Year Comprehensive Strategy Implementation Plan[, which] does not,

however, “identify” the “category of actions” to be covered by a

categorical exclusion.’” (Pls.’ Mot. at 8-9.) Plaintiffs also argue

that “[t]he Fuels CE . . . does not define key terms used in the

categorical exclusion . . . .” (Id. at 9.) 

Defendants counter that “the Fuels CE sets forth in explicit

detail specific criteria for identifying the ‘classes of action’ to

which it applies.” (Defs.’ Mot. at 8.) Defendants assert the Fuels

CE “is limited to projects designed to meet a specific purpose, the

reduction of hazardous fuels[; it is] limited to specific types of

treatments on specific acreages[;] projects may not use herbicides,

pesticides or involve construction of new roads or other permanent

infrastructure[; it] is limited geographically to the wildland-urban

interface or areas in fire condition classes 2 or 3 in Fire Regime

Groups I, II or III[; and it] cannot be applied to projects . . .

unless the project is identified through the collaborative process set

forth in the 10-Year Comprehensive Strategy Implementation Plan.” 

(Id. at 8-9 (citing 68 Fed. Reg. at 33,824).) Defendants argue the

requirement that all projects under the Fuels CE be identified through

the 10-Year Comprehensive Strategy Implementation Plan’s collaborative

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framework “does not mean . . . that the CE can be broadened to include

projects outside the ‘typical classes of action’ identified in the CE;

it simply means that when determining where to implement a project and

what type of treatment methods to use – within the types already

authorized by the CE – the Forest Service will collaborate with state,

local and tribal governments.” (Defs.’ Mot. at 9.)

Plaintiffs further contend that the Fuels CE creates a caseby-case categorical exclusion, which is prohibited by 40 C.F.R. 

§§ 1507.3(b)(2)(ii) and 1508.4, since “by leaving determination of

whether a project is covered by the Fuels CE to the process of the

‘10-Year Comprehensive Strategy Implementation Plan,’ the Fuels CE

refers to another, future decision-making process, which is itself

without specificity.” (Pls.’ Mot. at 9.) Plaintiffs support this

contention by citing to memoranda from the Department of Agriculture

Office of General Counsel (“OGC”) for the proposition that case-bycase categorical exclusions violate the CEQ regulations. (Id. at 10.)

Defendants rejoin that Plaintiffs’ argument fails because “[u]nlike

the CEs addressed in the OGC memoranda, the Fuels CE identifies a very

discrete and precise category of actions that may be included, and

unlike the true ‘case-by-case’ CEs criticized by the OGC, the Fuels CE

does not allow the Forest Service to categorically exclude, based on a

case-by-case determination of significance, other activities not

included in the CE.” (Defs.’ Mot. at 13.) 

Finally, Plaintiffs argue that the Fuels CE violates 40

C.F.R. § 1508.4, which requires categorical exclusions to “provide for

extraordinary circumstances in which a normally excluded action may

have a significant environmental effect.” 40 C.F.R. § 1508.4. The

USFS Handbook directs land managers to consider certain “resource

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conditions” when determining whether the proposed action involves

extraordinary circumstances that warrant further environmental review.

67 Fed. Reg. 54,622, 54,627 (Aug. 23, 2002). The “resource

conditions” include: threatened and endangered species or their

designated critical habitat, or USFS sensitive species; flood plains,

wetland, or municipal watersheds; wilderness areas; inventoried

roadless areas; research natural areas; Native American religious or

cultural sites; and archaeological or historical sites. Id.

Plaintiffs contend the “provision for ‘extraordinary circumstances in

the [USFS] Handbook . . . does not meet the requirements of 40 C.F.R.

§ 1508.4 because the [USFS] did not specify or identify the

extraordinary circumstances [but rather] qualified the definition and

application of the ‘extraordinary circumstances exception based on the

‘degree of potential effect’ of an action on the ‘resource

conditions.’” (Pls.’ Mot. at 11 (citing Exh. H at § 30.3(2)(a)).) 

Plaintiffs argue “[o]nce a ‘case-by-case’ determination of

significance or degree of impact must be done . . . , the action

cannot be excluded from review with a categorical exclusion [and] must

be analyzed under an EA and FONSI or EIS.” (Pls.’ Mot. at 11.)

Defendants rejoin that the USFS properly designated

extraordinary circumstances. Defendants contend that in determining

whether the proposed action involves extraordinary circumstances

warranting further analysis in an EA or EIS, land managers are

required to consider the resource conditions and “[i]f the responsible

official determines, based on the public scoping process, that it is

uncertain whether the project may have a significant effect, the

agency must prepare an EA, and if [the official] determines, . . .

based on public scoping, that it may have a significant effect the

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agency must prepare an EIS.” (Defs.’ Mot. at 13-14.) Defendants

argue “it is difficult to envision how any agency could comply with

the CE’s requirement that the agency ‘provide for extraordinary

circumstances in which a normally excluded action may have a

significant environmental effect,’ 40 C.F.R. § 1508.4 (emphasis

added), without empowering decisionmakers to decide on a case-by-case

basis whether the circumstances present in each case actually involve

a potential significant effect.’” (Defs.’ Mot. at 14.) Defendants

also argue “the fact that other Federal agencies take the same

approach” and the fact that the approach was “reviewed by the CEQ

itself,” indicates that the USFS’s approach is “reasonable and

appropriate.” (Id. at 15.) Defendants also point to the CEQ’s

notation “that the Forest Service efforts ‘to clarify the effect of

the existence of extraordinary circumstances on the ability to

categorically exclude designated actions . . . is to be commended.’” 

(Id. (citing AR 23).) 

Plaintiffs disagree with Defendants’ position, contending

that the Fuels CE violates the CEQ regulations, regardless of the CEQ

determination that the Fuels CE is “in conformance with NEPA and the

CEQ regulations.” (AR 78.) Specifically, Plaintiffs argue the Fuels

CE fails to properly identify the projects covered by the Fuels CE,

but the USFS identified specific criteria governing which actions fall

within the Fuels CE. The CEQ “encourages the agencies to consider

broadly defined criteria which characterize types of actions that,

based on the agency’s experience, do not cause significant

environmental effects.” 48 Fed. Reg. 34,263, 34,265 (July 28, 1983). 

Further, the fact that the particular projects will be identified by

the 10-Year Collaborative Implementation Strategy Plan does not

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broaden the Fuels CE, it merely requires collaboration with state,

local, and tribal governments. Additionally, although Plaintiffs

contend the Fuels CE is an invalid case-by-case categorical exclusion,

it is permissible for an agency to determine, case by case, whether a

particular action fits within a CE; NEPA only prohibits an agency from

creating a new CE on a case-by-case basis. 

Plaintiffs also challenge the Fuels CE’s extraordinary

circumstances provision; however, the USFS adequately defined

extraordinary circumstances when it established the list of resource

conditions. Further, the CEQ specifically found that the USFS’s

extraordinary circumstances provisions “conform[] to [NEPA] and the

CEQ regulations for implementing the procedural provisions of [NEPA].” 

(AR 46.) “The CEQ’s interpretation of NEPA is entitled to substantial

deference” because CEQ is charged by Congress with the obligation of

overseeing how federal agencies implement NEPA. Trustees for Alaska

v. Hodel, 806 F.2d 1378, 1382 (9th Cir. 1986) (citing Andrus v. Sierra

Club, 442 U.S. 347, 358 (1979)). 

For the stated reasons, Defendants prevail on their position

and their motion for summary judgment is granted, and Plaintiffs’

motion for summary judgment is denied. 

b. Will the projects covered by the Fuels CE have

cumulatively and/or individually significant effects on the

environment?

Plaintiffs also challenge the Fuels CE, arguing the Fuels CE

is improper since the projects covered by it will have cumulatively

significant effects on the environment. (Pls.’ Mot. at 12.) By

definition, a categorical exclusion is “a category of actions which do

not individually or cumulatively have a significant effect on the

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human environment.” 40 C.F.R. § 1508.4. Plaintiffs, relying on

Klamath-Siskiyou Wildlands Center, 387 F.3d at 993-94, for the

proposition that the total number of acres affected by a project “may

demonstrate by itself that the environmental impact will be

significant,” argue “[t]he projects covered by the Fuels CE certainly

meet the Klamath-Siskiyou standard . . . .” (Pls.’ Mot. at 13.) 

Plaintiffs contend, since “[t]here is no limitation on the number of

the times the Fuels CE can be invoked nationwide, in any particular

National Forest, or in any particular watershed . . . , many

individually insignificant (small) projects could be right next to

each other, or close enough to one another to have a combined or

cumulative effect on soils, water, fish and wildlife, without their

total cumulative effect being taken into account.” (Id. at 13-14.) 

Plaintiffs contend the projects in the Eldorado National Forest are an

example of this problem. (Id. at 14.) 

Plaintiffs contend “the term ‘significantly,’ for purposes

of NEPA, requires the consideration of both context and intensity [and

that i]n evaluating intensity, the agency must consider the degree to

which effects are likely to be ‘highly controversial.’” (Id.) 

Plaintiffs argue since “[a]pproximately 39,000 comments were submitted

regarding the Fuels CE, including thousands of comments relating to

the environmental impacts of the Fuels CE,” the Fuels CE “is by

definition significant, and not an allowable CE under 40 C.F.R. 

§ 1508.4.” (Id. at 15.) Finally, Plaintiffs argue that comparison of

the Fuels CE with other “longstanding categorical exclusions of the

agency” makes evident that the Fuels CE “is not a proper categorical

exclusion.” (Id.)

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Defendants counter that the projects covered by the Fuels CE

will not have significant cumulative effects. Defendants argue “the

Departments evaluated approximately 2,500 hazardous fuel reduction

projects nationwide before determining that the category of actions

described in the CE will not have significant cumulative effects on

the human environment.” (Defs.’ Mot. at 15.) Defendants argue

“[n]othing in Klamath-Siskiyou . . . stands for the proposition that

impacts on a large number of acres constitutes a per se significant

cumulative impact . . . .” (Id. at 16.) 

Defendants assert that Plaintiffs’ concern about two

projects being “right next to each other” without their total

cumulative effects being taken into account, “is unfounded [since] CEQ

regulations prohibit an agency from the segmentation of projects into

pieces that, due to their small size, fall below the NEPA radar.” 

(Id. at 16-17.) Furthermore, Defendants note that “[t]he Fuels CE is

not some sort of national program of hazardous fuels reduction

projects which would itself be subject to a NEPA analysis[; it] is

only a procedural device under NEPA which allows an agency to identify

existing categories of projects that from the agency’s experience do

not normally have a significant impact [and its] only ‘purpose’ . . .

is to allow the agency to authorize low-impact projects which would

otherwise have had to have been evaluated under an EA.” (Id. at 17-

18.)

Defendants counter Plaintiffs’ argument that the Fuels CE is

impermissible because it is highly controversial, stating “[t]he

appropriate inquiry . . . is not whether . . . the CE is

controversial, but whether there is sufficient controversy over the

degree of impacts of hazardous fuels reduction projects to suggest

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they will have significant impacts and preclude their authorization

through the CE[; and, i]n this case there is not.” (Id. at 18.) 

Furthermore, Defendants contend “[t]he receipt of a large number of

comments opposing a proposal does not render that proposal

controversial under NEPA.” (Id.)

Plaintiffs also contend the Fuels CE is “improper because

the class of actions includes individually significant projects.” 

(Pls.’ Mot. at 16.) Plaintiffs note that “[o]f the NEPA projects

contained in [the] data call, 28 individual projects had environmental

impact statements prepared for them, which meant the implementing

agency considered the projects’ impacts significant.” (Id.) Further,

Plaintiffs contend “[t]imber projects like those authorized under the

Fuels CE often have significant impacts, which is why EISs are

required for them.” (Id.) Plaintiffs assert “[t]he record includes

numerous examples of fuel reduction projects that have significant

impacts,” contending that “the fuel reduction projects named in the

Complaint serve as examples of projects with significant individual

effects that the Forest Service considers covered by the Fuels CE.” 

(Id. at 16-17.)

Defendants rejoin that “[t]he record . . . belies

[Plaintiffs’] claim.” (Defs.’ Mot. at 19.) Defendants contend that

although “of the 2,500 projects reviewed by the Departments, twelve

were found to have significant impacts[, t]his fact does not mean that

the Fuels CE includes projects with significant effects,” because the

Departments found those twelve projects would not be covered by the

Fuels CE since they “involved extraordinary circumstances.” (Id.) 

Defendants also argue that although “Plaintiffs list a

series of ecological impacts they assert are associated with fuel

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reduction projects . . . , Plaintiffs fail to link any of these

alleged impacts to any of the 2,500 projects in the data set reviewed

by the Departments, and fail to point to anything arbitrary or

capricious in the Departments’ conclusion that . . . ‘none of the[]

environmental effects was individually or cumulatively significant

because the effects were localized, temporary, and of minor

magnitude.’” (Id. at 20 (citing AR 155 at 8).) 

Plaintiffs contend the public comments by state and federal

agencies demonstrate the individual and cumulative significance of the

projects covered by the Fuels CE. (Pls.’ Mot. at 17.) Specifically,

Plaintiffs assert that “[i]n their public comments to the Forest

Service, several States opposed the Fuels CE because of the direct and

cumulative environmental impacts.” (Id. at 17-18.) Plaintiffs argue

“the Forest Service chose to approve the Fuels CE over the objections

of these state and federal agencies, and disregarded the evidence of

individual and cumulative harm they provided.” (Id. at 20.) 

Defendants counter that “[t]he fact that other agencies

expressed concern, or even opposition to the proposal, does not carry

Plaintiffs’ burden of proving the agency’s action was arbitrary or

capricious.” (Defs.’ Mot. at 20.) Defendants note that “[t]he record

before the Court demonstrates that the Departments carefully evaluated

and responded to all public comments.” (Id. at 21.)

Plaintiffs disagree, contending the USFS’s conclusion that

the impacts of the projects to be covered by the Fuels CE were not

individually or cumulatively significant was arbitrary and capricious. 

(Pls.’ Mot. at 21.) Plaintiffs argue that the USFS’s finding of no

significance “was based primarily on: 1) a review of scientific

literature on fuel reduction and forest fires; and 2) a “data call”

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that consisted of a database of approximately 2,500 projects involving

fuel reduction . . . .” (Id.) Plaintiffs contend those sources “do

not support the Forest Service’s finding of no significant cumulative

effect, and the Forest Service’s reliance on them was arbitrary and

capricious . . . .” (Id.) Plaintiffs argue “[t]here was little or no

analysis of the cumulative effects of fuel reduction projects —

especially on the scale contemplated here — on fish, wildlife, water

or soils [and t]he Forest Service did not review the scientific

literature regarding the actual effects of fuels reduction activities

on fish, wildlife, water or soils . . . .” (Id.)

Plaintiffs also contend the data does not support the USFS’s

finding of no cumulative significant impacts. (Id. at 22-29.) 

Plaintiffs argue that

there is a cumulative effects column in the

Spreadsheet Compiling Data Call Records. . . .

However, the spreadsheet does not state what other

projects were considered in conjunction with any

particular project – if any. There is no telling

whether the projects were considered to be

cumulative with other projects in the same

watershed or in the same National Forest, much

less cumulatively with all other projects in the

“data call.” Nowhere in the data call is there a

“quantified assessment” of the combined

environmental impacts from these projects.

Further, . . . the Forest Service did not

determine how many projects it expects the Fuels

CE to cover; the total acres it expects will be

impacted; or the total amount of board feet of

timber it expects to remove. The Forest Service

provides no quantitative measure of cumulative

“significance” in the promulgation of the Fuels

CE; and no qualitative measure of cumulative

“significance” in the promulgation of the Fuels

CE. . . .

[T]he Forest Service . . . us[ed] the “data

call” as a post-hoc rationale for an already made

decision. The Forest Service’s . . . analysis was

not done objectively in good faith because the

agency had already decided to issue a categorical

exclusion. . . .

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The data call . . . is insufficient . . .

because the determination of whether individual

projects had “significant effects” is based on the

“personal observation” of individual Forest

Service employees[;] a majority of the projects

that were reviewed were actually themselves analyzed in an EA or

EIS[;] the 1,000 and 4,500 acre figures the Fuels CE ultimately

established were arbitrary levels and not determinative of whether

there is significant individual or cumulative harm above that

threshold[;] the data call does not provide adequate information to

assess the impacts of these projects[; and because] many of the data

call projects were not hazardous fuel treatment reduction projects at

all. . . . In sum, the data call does not support the conclusion that

the projects to be covered by the Fuels CE have no individual or

cumulative significant environmental effects.

(Id. at 23-29.)

Defendants rejoin the record supports the USFS’s conclusion

that the Fuels CE will not have significant individual or cumulative

impacts. Defendants assert that each of Plaintiffs’ criticisms of the

USFS’s methodology fails because “NEPA does not obligate an agency to

prepare an EIS or EA before promulgation of a CE, and the Plaintiffs

cannot seek [to] impose such a requirement through the backdoor by

asserting that the agency’s evaluation of cumulative impacts must be

equivalent to that conducted in an EA or EIS.” (Defs.’ Mot. at 21.) 

Further, Defendants argue “the agencies complied with the CEQ’s

directions [in 40 C.F.R. § 1507.3(b)(2), by] evaluating over 2,500

past hazardous fuel reduction projects to determine whether certain

types of projects did not individually or cumulatively have

significant environmental effects . . . .” (Id. at 22.) Defendants

contend they were therefore in the position to conclude “that the

class of projects included in the CE will not normally have

significant cumulative impacts.” (Id.) Defendants contend “[t]here

is no evidence that the Departments did not act in good faith in

collecting and evaluating past hazardous fuel projects to develop the

fuels CE [and that t]he relevant legal inquiry is not whether the

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Forest Service collected the data for a specific purpose, but whether

the agency examined the data objectively and in good faith. . . .” 

(Id. at 22-23.) 

Further, Defendants argue “the Forest Service was not

required by either NEPA or the CEQ regulations to conduct any

post-implementation monitoring before promulgating a CE [and] there is

nothing inappropriate about the Forest Service’s choice to utilize the

observations of its trained and professional personnel as part of its

methodology for reviewing the over the past fuel reduction projects.” 

(Id. at 23-24.) Defendants argue “the agency provides a rational

explanation for its reliance on the observations of field personal:

‘resource specialists and stakeholders involved in the design and

analysis of each specific on-the-ground project were best qualified to

identify resulting environmental effects or whether extraordinary

circumstances were present.’” (Id. at 24 (citing AR 139 (68 Fed. Reg

at 33,817)).)

Defendants also contend Plaintiffs “misunderstand . . . how

the Departments reviewed the 2,500 projects in the study[; b]ecause

the Departments reviewed the projects as they were finally

implemented, those projects included whatever modifications or

mitigation might have been made during the NEPA procedures.” (Defs.’

Mot. at 25.)

Defendants contend, although Plaintiffs assert the acreage

limitations adopted in the CE are arbitrary, “the Departments made a

reasonable finding based on the extensive record of past projects, and

that finding must be upheld.” (Id.) Defendants note that the “USDA

and DOI reviewed 2,500 hazardous fuels reduction projects for which

the initial NEPA reviews predicted the environmental effects would not

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be significant, and for which that prediction had been validated by

post-implementation review[, and that a]fter reviewing th[e] data, and

in response to public comment, the agencies determined [the acreage

limitations for] the categorical exclusion.” (Id.) Defendants

contend the acreage limitations “are well within the range of acreages

analyzed in the data” and “Plaintiffs point to nothing arbitrary or

capricious in this approach. . . .” (Id.)

Finally, Defendants contend “the data collection form used

by the Departments allowed personnel to describe significant impacts,

and they were not limited to a ‘binary’ choice[;] the data used by the

Agencies includes fuel reduction projects from a five year period,

from 1998 through 2002[; and t]he inclusion of fuel reduction projects

from grasslands is appropriate and should be upheld.” (Id. at 25-26.)

Although Plaintiffs challenge the methodology used by the

agencies, since Plaintiffs fail to demonstrate that the methodology

used was “irrational,” the methodology will be upheld. Marsh v. Or.

Natural Resources Council, 490 U.S. at 378. Plaintiffs’ contention

that it was inappropriate for the USFS to use personal observations of

agency experts in conducting its data call is unsupported; the USFS

has not been shown unreasonable in relying on these expert opinions. 

Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998)

(stating that an agency is entitled to rely on its own expert

opinions). Plaintiffs’ contention that it was inappropriate for the

USFS to use the data call “as a post-hoc rationale for an already made

decision” is also unavailing. (Pls.’ Mot. at 24) “[A]n agency can

formulate a proposal or even identify a preferred course of action

before completing an EIS.” Metcalf v. Daley, 214 F.3d 1135, 1145 (9th

Cir. 2000). Furthermore, the past projects were reviewed as

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implemented, not as proposed; the acreage limits in the Fuels CE are

supported by the record and the choice of acreage is within the

agencies’ expertise; the USFS’s evaluation contained sufficient

information about the appropriateness of the Fuels CE; and the

projects included in the evaluation were sufficient.

The agencies reviewed over 2,500 hazardous fuels reduction

projects and rehabilitation projects and considered peer-reviewed

scientific literature concerning the effects of hazardous fuel

reduction activities before identifying the category of actions that

would not normally have significant effects on the environment. 68

Fed. Reg. 33,814 (June 5, 2003); AR 139. The USFS proposed the

category of actions to be covered by the categorical exclusion in a

Federal Register notice, and sought public comment and review and

approval by CEQ. 67 Fed. Reg. 77,038 (Dec. 16, 2002); AR 135. Before

the Fuels CE was adopted, the USFS considered and responded to

numerous comments from the public. 68 Fed. Reg. at 33,815-33,823; 67

Fed. Reg. at 54,623-54,627. The USFS provided reasoned explanations

for their conclusions that the category of actions covered by the

Fuels CE would not normally have a significant impact on the

environment. The USFS’s determination that the projects covered by

the Fuels CE would not have cumulative or individually significant

impacts on the environment was not arbitrary and capricious. 

Therefore, Defendants’ motion for summary judgment on this issue is

granted and Plaintiffs’ motion for summary judgment is denied.

c. Did the USFS violate NEPA by failing to prepare an EA or

an EIS for the Fuels CE?

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Plaintiffs argue “NEPA and its implementing regulations

require an EIS or at least an EA for the Fuels CE [since] the Fuels CE

is a ‘major federal action[] significantly affecting the quality of

the human environment.’” (Pls.’ Mot. at 30.) “[A]n EIS must be

prepared if 'substantial questions are raised as to whether a project

. . . may cause significant degradation of some human environmental

factor.’” Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th

Cir. 1998) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1332

(9th Cir. 1992)). Plaintiffs contend “[t]he Fuels CE . . .

constitutes a ‘rulemaking’ and NEPA analysis was required for it.” 

(Pls.’ Mot. at 31.) Defendants counter “[n]either NEPA nor the CEQ’s

regulations require preparation of an EIS when an agency develops a

categorical exclusion[, and] the caselaw squarely rejects

[Plaintiffs’] claim.” (Defs.’ Mot. at 27.)

Plaintiffs cite Kootenai Tribe of Idaho v. Veneman, 313 F.3d

1094 (9th Cir. 2002), and Citizens for a Better Forestry v. U.S. Dep’t

of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003), in support of their

argument that the USFS was required to prepare an EIS for the Fuels

CE. In Kootenai Tribe of Idaho, the Court held that the USFS was

required to prepare an EIS in promulgating the roadless area

conservation rule for national forests, since the rule immediately

altered substantive management of almost 60 million acres of land

without the need for any future decisions. In Citizens for Better

Forestry, the Court stated in dicta, that the agency erred in not

circulating for public comment the EA it prepared for its Forest

Planning Regulation, but the decision does not address the issue

whether an agency is required to prepare an EA or EIS when

promulgating a CE. 341 F.3d at 970.

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Plaintiffs assert “NEPA and its implementing regulations

require an EIS or at least an EA for the Fuels CE” because “the Fuels

CE is a ‘major federal action[] significantly affecting the quality of

the human environment.’” (Pls.’ Mot. at 30.) Plaintiffs further

argue the Fuels CE should be characterized as “adoption of new agency

programs or regulations” and therefore “require[s] the preparation of

an EIS outright.” (Id. at 31 (citing 40 C.F.R. § 1508.18(b)(1), where

it is stated “Federal Actions requiring NEPA review include

‘[a]doption of official policy, such as rules, regulations, and

interpretations adopted pursuant to the Administrative Procedure Act,

5 U.S.C. 551 et seq.’”).)

However, neither NEPA nor the CEQ regulations require

preparation of an EIS when an agency develops a categorical exclusion. 

As the Seventh Circuit stated in Heartwood, Inc. v. United States

Forest Service, 230 F.3d 947, 954 (7th Cir. 2000): “CEs are not

proposed actions, they are categories of actions for which an EA or

EIS has been deemed unnecessary . . . . For these procedures, the CEQ

does not mandate that agencies conduct an EA before classifying an

action as a CE and we must give great deference to the CEQ’s

interpretation of its own regulations.” See also Trustees for Alaska,

806 F.2d at 1382 (stating “[t]he CEQ’s interpretation of NEPA is

entitled to substantial deference.”). The CEQ’s interpretation of its

own implementing regulations is “controlling” unless it is “plainly

erroneous or inconsistent with the regulation.” Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 359 (1989) (internal quotations

omitted). The CEQ regulations specifically provide the procedures for

how agencies are to develop categorical exclusions: agencies must

publish all procedures for implementing NEPA in the Federal Register

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and “the procedures shall be adopted only after an opportunity for

public review and after review by the [CEQ] for conformity with [NEPA]

and the[] regulations.” 40 C.F.R. § 1507.3(a). Here, the Final

Federal Register Notices for the Fuels CE explain that “establishing

categorical exclusions does not require preparation of a NEPA analysis

or document.” 68 Fed. Reg. at 33,823. Therefore, Plaintiffs’ motion

for summary judgment on this issue is denied, and Defendants’ motion

is granted. 

2. Does the application of the Fuels CE to the Eldorado National

Forest projects violate NEPA?

Plaintiffs also seek summary judgment on the issue that the

USFS unlawfully applied the Fuels CE to the projects in the Eldorado

National Forest. (Pls.’ Mot. at 31.) Defendants counter that “[e]ach

of the challenged projects meets the specifications for inclusion in

the Fuels CE [and that f]or each project, the Forest Service undertook

public scoping to help identify potentially significant issues[;]

undertook studies of the proposed actions to determine whether

extraordinary circumstances were present that might preclude the use

of the Fuels CE[; and] provided a reasoned explanation for its

application of the Fuels CE to these projects and its determination

that no extraordinary circumstances were present.” (Defs.’ Mot. at

30-31.)

“If a proposed action fits within a categorical exclusion,

NEPA review is not required unless there are ‘extraordinary

circumstances’ related to the proposed action.” Alaska Ctr. for the

Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 (9th Cir. 1999) (quoting

40 C.F.R. § 1508.4); California v. Norton, 311 F.3d at 1176 (noting

that “[i]n many instances, a brief statement that a categorical

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exclusion is being invoked will suffice”). When determining whether a

proposed action fits within a categorical exclusion, a “scoping

process is used to ‘determine the scope of the issues to be addressed

and for identifying the significant issues related to a proposed

action.’” Alaska Ctr. for the Env’t, 189 F.3d at 858 (citing 40

C.F.R. § 1501.7). The arbitrary and capricious standard is applied

“to an agency’s determination that a particular action falls within

[a] categorical exclusion[].” Bicycle Trails Council of Marin v.

Babbitt, 82 F.3d 1445, 1456 (9th Cir. 1996). “When an agency decides

to proceed with an action in the absence of an EA or EIS, the agency

must adequately explain its decision. . . . To determine whether

agency action is arbitrary or capricious, a court must consider

‘whether the decision was based on a consideration of the relevant

factors and whether there has been clear error of judgment.’” Alaska

Ctr. for the Env’t, 189 F.3d at 859 (internal citations omitted).

Defendants argue the USFS reasonably determined there are no

extraordinary circumstances related to any of the named projects. 

Defendants contend “[f]or each of the projects challenged by

Plaintiffs, the Forest Service determined and documented that no

extraordinary circumstances exist that would preclude the use of the

Fuels CE.” (Defs.’ Mot. at 32 (citing AR 1917, 2371, 2759).) 

Plaintiffs argue this finding was arbitrary and capricious

because it “overlooked several important impacts of the projects

and/or reached conclusions that were contrary to the evidence before

the agency.” (Pls.’ Mot. at 37.) Plaintiffs contend this conclusion

was reached “without considering the effect of other projects.” (Id.

at 38.) Plaintiffs also argue that “[a]lthough the three projects on

the Eldorado National Forest were approved within months of each

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other, none of the Decision Memos mention either of the other projects

as either past, present or reasonably foreseeable projects.” (Id. at

38.) Plaintiffs contend “[n]umerous ‘resource conditions’ that could

constitute ‘extraordinary circumstances’ are present within each

project area.” (Id. at 39.) 

Further, Plaintiffs argue “[t]he Forest Service concluded

that these projects would not significantly affect the resource

conditions without considering the ten factors that define

significance under the NEPA regulations.” (Id. at 40 (citing 40

C.F.R. § 1508.27).) Plaintiffs argue “[i]nstead, the Forest Service

makes conclusory statements that the projects will have no significant

impacts.” (Id.)

Specifically, Plaintiffs argue the Eldorado projects will

have significant cumulative impacts on wildlife, water quality, and

will not reduce fire risk. Plaintiffs argue “[t]he Eldorado projects

will degrade habitat for several sensitive species by simplifying

mature forest stand structures, logging and removing trees up to 30"

in diameter, and reducing the density of downed logs and snags [and]

will adversely affect these species’ ability to breed, feed, and

shelter. . . .” (Id. at 32.) Plaintiffs contend the USFS has not

provided a convincing statement of reasons why potential effects on

the California spotted owl are insignificant. (Id.; Bond Decl. ¶¶ 36-

43.) Furthermore, Plaintiffs argue “[t]he Eldorado projects include

activities that will directly contribute to an increase in sediment in

the watersheds, which adversely affects water quality and fisheries

habitat.” (Pls.’ Mot. at 34.) Plaintiffs also note that “the Forest

Service’s assertion that these projects will reduce wildfire potential

is not supported in the record. In fact, projects such as this may

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increase fire risk.” (Id. at 35; Odion Decl.) Plaintiffs also

contend the projects in the Eldorado National Forest will have

significant individual impacts on various species, including the

California spotted owl, and therefore use of the Fuels CE is

prohibited. (Pls.’ Mot. at 36; Bond Decl.) 

Defendants rejoin: “Plaintiffs . . . err in suggesting that

the mere presence of a resource condition is sufficient to preclude

the use of a categorical exclusion.” (Defs.’ Mot. at 32.) Defendants

note that “Forest Service implementing procedures for categorical

exclusions state that ‘[t]he mere presence of one or more of these

resource conditions does not preclude use of a categorical exclusion[;

i]t is the degree of the potential effect of a proposed action on

these resource conditions that determines whether extraordinary

circumstances exist.’” (Id. (citing 67 Fed. Reg. 54,622, 54,627 (Aug.

23, 2002)).) Defendants argue “the Forest Service appropriately

considered both the presence of threatened or sensitive species and

cultural or archaeological sites and determined neither constitute

extraordinary circumstances precluding the use of the Fuels CE for any

of the challenged projects.” (Defs.’ Mot. at 32.) Defendants assert

“[a] Biological Evaluation and Assessment (BEA) was prepared for each

project” which “examine[d] the direct, indirect, and cumulative

effects of the proposed action on sensitive and threatened wildlife

species and habitat if present in the project area.” (Id. at 33.) 

Defendants assert “[t]he Forest Service provided reasoned explanations

for its conclusions [and] each project will require limited operating

periods to protect known spotted owl and goshawk nest sites and

includes protection measures designed to minimize any potential

project effects.” (Id. at 33-34.) Defendants contend “[c]ontrary to

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Ms. Bond’s assertions, the Forest Service addressed cumulative effects

to sensitive species and threatened species in its BEAs.” (Id. at 34-

35.) 

Defendants also contend “[t]he Forest Service surveyed each

project area for the presence of archaeological, historic, and

cultural resource sites, and analyzed potential project effects to

these sites for each. The Forest Service set out specific protection

measures that will be applied to these resources, including flagging

and avoiding identified sites.” (Id. at 36.) 

Finally, Defendants contend that although Plaintiffs assert

the projects on the Eldorado National Forest will have significant

cumulative impacts on water quality, and will not meet the USFS’s goal

of reducing the risk of fire, “these allegations should have been

[made against] the promulgation of the Fuels CE as a whole, rather

than [against] the specific named projects.” (Id. at 37.) Defendants

also assert “even if Plaintiffs’ allegations were properly raised

against the specific projects, they are without merit.” (Id.)

The issue is whether the USFS “provided a reasoned decision

. . . specifically indicat[ing] that during the scoping process there

were no extraordinary circumstances found that would warrant the

preparation of an EA or EIS” for any of the Eldorado National Forest

projects. Alaska Ctr. for the Env’t, 189 F.3d at 859.

For each of the projects Plaintiffs challenge, the USFS

adequately determined and documented that no extraordinary

circumstances exist which would require the preparation of an EA or an

EIS. (AR 1916, 2371, 2759.) The USFS prepared a BEA for each project

which evaluated the direct, indirect, and cumulative effects of the

proposed action on sensitive and threatened wildlife species, and

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habitat if present in the project area. (AR 1946-60, 2381-2412, 2459-

61, 2792-2817.) The USFS specifically considered the effects on the

California spotted owl. (AR 1956, 2406, 2803.) The USFS then

determined there would be no long-lasting effects, and any effects

would be minimized by using limited operating periods, and prepared

reasoned explanations for these conclusions. (AR 1167, 1912, 1917,

2366, 2754-55, 2759.) 

In its BEAs, the USFS also surveyed each project area for

the presence of archaeological, historical, and cultural resource

sites; analyzed potential effects at these sites; set out specific

protection measures to be applied at the sites; and then reasonably

concluded the proposed projects will not have a significant effect on

those sites. (AR 1162-63, 1166-67, 1912-13, 2014, 2367, 2754-55,

2764.) The USFS also conducted a Riparian Conservation Objectives

Analysis for each project and adequately explained its conclusion that

the projects would not have a significant effect on water quality or

aquatic habitat. (AR 1968, 2460.) Finally, although Plaintiffs

contend the projects could increase fire risk (see Sierra Club v.

Eubanks, 335 F. Supp. 2d 1070 (E.D. Cal. 2004), and Odion Decl.), the

USFS adequately explained that the Eldorado National Forest projects

involve understory thinning designed to reduce the intensity and

severity of fire once it starts. (AR 1908, 2361, 2751.) 

“Employing the deferential standard of review, which . . .

must [be used] when reviewing factual conclusions within the agency’s

expertise, [I] conclude that the Forest Service considered the

relevant factors and determined that no extraordinary circumstances

were present. Accordingly, the Forest Service did not violate NEPA.” 

Alaska Ctr. for the Env’t, 189 F.3d at 859. 

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III. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for summary

judgment is denied and Defendants’ motion for summary judgment is

granted. The Clerk of the Court shall enter judgment in favor of

Defendants and against Plaintiffs.

IT IS SO ORDERED.

DATED: September 16, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge 

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