FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILDEARTH GUARDIANS; GRAND 

CANYON WILDLANDS COUNCIL;

WILDLANDS NETWORK; SIERRA 

CLUB,

Plaintiffs-Appellants,

v.

HEATHER PROVENCIO, in her official 

capacity as Kaibab National Forest 

Supervisor; UNITED STATES FOREST 

SERVICE,

Defendants-Appellees,

and

STATE OF ARIZONA, on behalf of 

Arizona Department of Game and 

Fish; SAFARI CLUB INTERNATIONAL,

Intervenors-Defendants-Appellees.

No. 17-17373

D.C. No.

3:16-cv-08010-

SMM

OPINION

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted February 7, 2019

Phoenix, Arizona
2 WILDEARTH GUARDIANS V. PROVENCIO

Filed March 13, 2019

Before: MICHAEL DALY HAWKINS, MILAN D. 

SMITH, JR., and ANDREW D. HURWITZ, 

Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY*

Environmental Law

The panel affirmed the district court’s summary 

judgment in favor of the United States Forest Service in an 

action by plaintiff environmental groups challenging travel 

management plans implemented by the Forest Service to 

permit limited motorized big game retrieval in three Ranger 

Districts of the Kaibab National Forest.

The Travel Management Rule, promulgated by the U.S. 

Department of Agriculture for Forest Service lands, 

generally prohibits off-road, motorized travel, but permits 

the “limited” use of motor vehicles within a specified 

distance of “certain” forest roads for the purposes of 

camping or retrieval of downed big game animals. The 

panel rejected plaintiffs’ contention that the Forest Service 

violated the Travel Management Rule by implementing 

plans that did not sufficiently limit motorized big game 

retrieval in the Ranger Districts. The panel concluded that 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
WILDEARTH GUARDIANS V. PROVENCIO 3

the Forest Service did not violate the plain terms of the 

Travel Management Rule.

Addressing plaintiffs’ claims under the National 

Environmental Policy Act (“NEPA”), the panel held that the 

plaintiffs had standing to bring their NEPA claims because 

they were trying to protect the environment, which was 

within NEPA’s zone of interests. The panel concluded that 

the environmental impacts discussed in the environmental 

assessments did not raise substantial concerns that 

necessitated the preparation of environmental impact 

statements. The panel held that there was no indication that 

the agency failed to satisfy NEPA’s procedural 

requirements. The panel concluded that the Forest Service 

gave the requisite hard look and made determinations that 

were neither arbitrary nor capricious, and were consistent 

with the evidence before it; and accordingly, the Forest 

Service did not violate NEPA.

The panel held that the Forest Service conducted the 

required prefield work, consulted with the appropriate 

entities, and reached a determination with the evidence 

before it, and satisfied its procedural obligations under the 

National Historic Preservation Act.
4 WILDEARTH GUARDIANS V. PROVENCIO

COUNSEL

John R. Mellgren (argued), and Susan Jane Brown, Western 

Environmental Law Center, Eugene, Oregon, for PlaintiffsAppellants.

Stuart Wilcox, WildEarth Guardians, Denver, Colorado, for 

Plaintiff-Appellant WildEarth Guardians.

Mark R. Haag (argued), Allen M. Brabender, Attorneys, 

Environment & Natural Resources Division; Eric Grant, 

Deputy Assistant Attorney General, Jeffrey H. Wood, 

Acting Assistant Attorney General, United States 

Department of Justice, Washington, D.C.; M’Leah 

Woodard, Attorney Advisor, Albuquerque Field Office, 

Office of the General Counsel, United States Department of 

Agriculture, Albuquerque, New Mexico; for DefendantsAppellees.

Dominic Draye (argued), John LeSueur, Assistant Attorney 

General, and Mark Brnovich, Attorney General, Arizona 

Attorney General’s Office, Phoenix, Arizona, for 

Intervenor-Defendant-Appellee State of Arizona.

Anna M. Seidman, Douglas S. Burdin, and Jeremy E. Clare, 

Safari Club International, Washington, D.C., for IntervenorDefendant-Appellee Safari Club International.
WILDEARTH GUARDIANS V. PROVENCIO 5

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants (Plaintiffs) are environmental 

advocacy groups that challenged travel management plans 

implemented by Defendant-Appellee United States Forest 

Service (the Forest Service) to permit limited motorized big 

game retrieval in three Ranger Districts of the Kaibab 

National Forest. The district court granted the Forest 

Service’s motion for summary judgment, concluding that the 

Forest Service complied with the Travel Management Rule, 

the National Environmental Policy Act (NEPA), and the 

National Historic Preservation Act (NHPA). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

A. The Kaibab National Forest

The Kaibab National Forest encompasses approximately 

1.6 million acres of public land in northern Arizona, 

including Grand Canyon National Park. It is comprised of 

three noncontiguous Ranger Districts: the Williams Ranger 

District, the Tusayan Ranger District, and the North Kaibab 

Ranger District.

The Williams Ranger District is the southernmost, 

covering 560,305 acres approximately thirty-five miles west 

of Flagstaff and sixty miles south of Grand Canyon National 

Park. It includes the Kendrick Mountain Wilderness, which 

extends into Coconino National Forest and features a diverse 

array of vegetation including Douglas firs, white firs, 

ponderosa pines, and aspens. The Williams Ranger District 

also serves as a habitat for a number of endangered species, 
6 WILDEARTH GUARDIANS V. PROVENCIO

including the Mexican spotted owl, the California condor, 

and the black-footed ferret. It contains six areas where 

spotted owls are known to live and breed, and three spotted 

owl critical habitats overlap the District.

The Tusayan Ranger District, located just south of Grand 

Canyon National Park’s south rim, encompasses 331,427 

acres. It features varied terrain, from ponderosa pine forests 

to grasslands, and is home to a number of sensitive species, 

including bald eagles, goshawks, peregrine falcons, 

burrowing owls, bats, and voles.

The North Kaibab Ranger District covers 655,078 acres 

immediately north of Grand Canyon National Park. Like the 

Williams and Tusayan Ranger Districts, the North Kaibab 

Ranger District boasts diverse terrain and vegetation, as well 

as sensitive animal species. Two federally listed endangered 

species—the Mexican spotted owl and California condor—

live in the District, which the U.S. Fish and Wildlife Service 

has designated as critical habitat for the spotted owl.

B. The Travel Management Rule

In 2005, the U.S. Department of Agriculture 

promulgated a Travel Management Rule to “provide[] for a 

system of National Forest System roads, National Forest 

System trails, and areas on National Forest System lands that 

are designated for motor vehicle use.” 36 C.F.R. 

§ 212.50(a).1 As part of this system, “[d]esignated roads, 

trails, and areas [are] identified on a motor vehicle map,” 

which also “specif[ies] the classes of vehicles” and “the 

 1 The Rule’s antecedents include executive orders issued by 

Presidents Nixon and Carter that sought to limit the damage to federal 

public lands caused by off-road vehicles. See Utah Shared Access All. 

v. Carpenter, 463 F.3d 1125, 1129–30 (10th Cir. 2006).
WILDEARTH GUARDIANS V. PROVENCIO 7

times of year for which use is designated.” Id. § 212.56. 

Motor vehicle use is prohibited on roads not so designated. 

Id. § 212.50(a). The regulations include a specific provision 

concerning the use of motor vehicles for dispersed camping 

and big game retrieval, which allows that

in designating routes, the responsible official 

may include in the designation the limited use 

of motor vehicles within a specified distance 

of certain forest roads or trails where motor 

vehicle use is allowed, and if appropriate 

within specified time periods, solely for the 

purposes of dispersed camping or retrieval of 

a downed big game animal by an individual 

who has legally taken that animal.

Id. § 212.51(b).

The Forest Service’s Southwestern Regional Office 

issued guidelines for implementation of the Travel 

Management Rule, including its motorized big game 

retrieval provision. The guidelines noted that “National 

Forests in the Southwestern Region provide hunting 

opportunities that are important to the public,” and directed 

forests to identify designated routes for game retrieval “in 

close collaboration with the responsible State agency.” They 

also suggested, pursuant to discussions with the Arizona 

Game and Fish Department, that motorized big game 

retrieval be allowed “up to three miles from a designated 

route” for bison and “up to one mile from a designated route” 

for elk and mule deer.
8 WILDEARTH GUARDIANS V. PROVENCIO

The Forest Service crafted travel management plans for 

each of the three Ranger Districts in the Kaibab National 

Forest. It also prepared an Environmental Assessment (EA) 

for each plan to ascertain its environmental impact, but did 

not undertake a more rigorous Environmental Impact 

Statement (EIS).

i. The Williams Ranger District

In July 2010, the Forest Service released the EA for the 

Williams Ranger District’s travel management plan, and 

subsequently issued a Decision Notice and Finding of No 

Significant Impact (DN/FONSI). The DN/FONSI generally 

“prohibit[s] motorized travel off of designated routes on the 

Williams Ranger District,” but permits “the limited use of 

motor vehicles within one mile of all designated system 

roads (except where prohibited) to retrieve a legally hunted 

and tagged elk during all elk hunting seasons.” It allows 

motorized big game retrieval of elk (but not bison) up to one 

mile off all designated open roads, so long as hunters make 

only “[o]ne trip that uses [the] most direct route and least 

ground disturbing.” The designated open road system 

consists of 1,114 miles of roadway, a reduction from 

previous motor vehicle activity, when 1,460 miles of roads 

and 95 percent of the District were open to motor vehicle 

use. Several miles of the open roads pass through the spotted 

owl critical habitat.

ii. The Tusayan Ranger District

Previously, the Tusayan Ranger District contained more 

than 700 miles of roads open to motor vehicles, and a vast 

majority of the District was open to cross-country motor 

vehicle travel. The Forest Service’s final DN/FONSI for the 
WILDEARTH GUARDIANS V. PROVENCIO 9

District2 designated 566 miles of road open to motor 

vehicles. The decision permits “[l]egally harvested elk [to] 

be retrieved during all legal elk hunting seasons” by motor 

vehicles within one mile of designated roads. Motorized 

retrieval of bison is not permitted, and the DN/FONSI limits 

use of motor vehicles when “conditions are such that travel 

would cause damage to natural and/or cultural resources,” 

and mandated that “[m]otorized vehicles would not be 

permitted to cross riparian areas, streams and rivers except 

at hardened crossings or crossings with existing culverts.”

iii. The North Kaibab Ranger District

Prior to implementation of a new travel management 

plan, 1,852 miles of road in the North Kaibab Ranger District 

were open to motor vehicle use, with 83 percent of the 

District open to cross-county travel. In September 2012, the 

Forest Service released an EA analyzing the District’s new 

plan. Among other data, the EA noted that while “[c]rosscountry motorized travel, whether to retrieve game or for 

other purposes, can adversely affect cultural resource sites if 

a vehicle is driven across a site,” only thirty-eight bison and 

no elk were taken from the District in 2009.

The Forest Service issued a DN/FONSI that designated 

1,476 miles of open roads for motorized travel, including an 

additional 16 miles of unauthorized, user-created roads. 

Motor vehicles can be used to retrieve elk or bison during 

hunting seasons, under certain limiting conditions. Notably, 

 2 In April 2009, the Forest Service issued an initial EA that analyzed 

the impact of the new travel management plan, as well as a subsequent 

DN/FONSI. In response to administrative appeals, that decision was 

reversed, and a new environmental survey undertaken. The resulting 

EA, issued in January 2011, reflected additional analysis and public 

comment.
10 WILDEARTH GUARDIANS V. PROVENCIO

the plan prohibits motorized retrieval of mule deer; the data 

indicated that far more mule deer—1,020—were harvested 

in the District in 2009 than bison or elk. The DN/FONSI 

also included guidance for monitoring and mitigation, as 

well as practices to limit the spread of invasive exotic weeds.

II. Procedural Background

The Districts’ travel management plans—their 

motorized big game retrieval provisions in particular—were 

administratively appealed, and the Regional Forester upheld 

them.

Plaintiffs then filed a complaint for declaratory and 

injunctive relief in the district court. They challenged the 

travel management plans for each of the three Ranger 

Districts, alleging violations of the Travel Management 

Rule, the Administrative Procedure Act (APA), NEPA, and 

the NHPA. After the parties filed and briefed cross-motions 

for summary judgment, the district court granted the Forest 

Service’s motion and denied Plaintiffs’ motion. It further 

denied the motions for summary judgment filed by 

Intervenors-Defendants-Appellees State of Arizona (the 

State) and Safari Club International (Safari Club) as moot. 

This timely appeal followed.

STANDARD OF REVIEW AND JURISDICTION

We review de novo a district court’s order granting or 

denying a motion for summary judgment. Churchill County 

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

APA, agency action can be set aside if it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706(2)(A); see also

WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 

920, 932 (9th Cir. 2015) (Travel Management Rule reviewed 
WILDEARTH GUARDIANS V. PROVENCIO 11

under the APA); San Carlos Apache Tribe v. United States, 

417 F.3d 1091, 1099 (9th Cir. 2005) (NHPA challenge 

reviewed under the APA); Churchill County, 276 F.3d at 

1071 (NEPA challenge reviewed under the APA).

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

ANALYSIS

I. The Travel Management Rule

Plaintiffs argue that the Forest Service violated the 

Travel Management Rule by implementing plans that did not 

sufficiently limit motorized big game retrieval in the 

Districts.

Although the Travel Management Rule generally 

prohibits off-road, motorized travel, it permits officials to 

designate “the limited use of motor vehicles within a 

specified distance of certain forest roads . . . solely for the 

purposes of dispersed camping or retrieval of a downed big 

game animal.” 36 C.F.R. § 212.51(b) (emphases added). As 

part of this designation process, the Forest Service must 

consider various criteria, ranging from “public safety” and 

“conflicts among uses of National Forest System lands” to 

“[d]amage to soil, watershed, vegetation, and other forest 

resources” and “[h]arassment of wildlife and significant 

disruption of wildlife habitats.” 36 C.F.R. § 212.55(a)–(b). 

Compliance with these “minimization criteria” is 

mandatory. Mont. Snowmobile, 790 F.3d at 929–32.

Plaintiffs contend that the Forest Service violated the 

Travel Management Rule by permitting off-road motorized 

vehicle use to collect downed game within one mile of every 

open road in the Districts, in purported violation of the 
12 WILDEARTH GUARDIANS V. PROVENCIO

Rule’s mandate that such activity be “limited” and only on 

“certain” roads. We disagree.

A. “Limited”

First, Plaintiffs argue that “designating cross-country 

off-road motor vehicle use for one mile off both sides of 

every single open road on each Ranger District is not a 

‘limited’ designation as contemplated by the Travel 

Management Rule.” They note that the Forest Service’s own 

regional office acknowledged as much when reviewing the 

North Kaibab Ranger District’s plan proposal; the office 

commented, “Motorized [big game retrieval] is being 

proposed on all system routes which is not consistent with 

rule for ‘limited use.’” The assistant NEPA coordinator of 

that District also questioned the scope of the plan, noting, 

“What I don’t see is how this got you to your proposed 

actions, particularly the [motorized big game retrieval] on 

ALL roads with 1 mile corridor . . . . that’s huge.” In their 

brief, Plaintiffs include maps prepared by the Forest Service, 

which illustrate the extent of areas (in light blue) where 

motorized big game retrieval is allowed in the Tusayan and 

Williams Ranger Districts. These maps indicate, as 

Plaintiffs argue, that the plans permit motorized big game 

retrieval across a vast swath of the Districts’ lands:
WILDEARTH GUARDIANS V. PROVENCIO 13
14 WILDEARTH GUARDIANS V. PROVENCIO

As the district court correctly noted, however, Plaintiffs’ 

focus on only the spatial limitation of the Districts’ plans 

ignores the other restrictions on motorized big game 

retrieval. The North Kaibab Ranger District plan illustrates 

some of these additional limitations: restricting retrieval to 

legally hunted elk and bison3; permitting only one vehicle 

per harvested animal; requiring hunters to “use the most 

direct and least ground disturbing route in and out of the area 

to accomplish the retrieval”; and limiting the temporal 

period to the “appropriate season as designated by the 

[State], and for 24 hours following each season.” The 

Williams and Tusayan Ranger Districts further exclude the 

retrieval of bison and require motor vehicles to cross streams 

and rivers only at designated crossings. We agree with the 

district court that “these limitations are a significant 

departure from the previous policy which did not limit the 

number of trips . . . , did not limit the type of species which 

could be retrieved by motor vehicle, did not limit the 

distance traveled from system roads, and had no restrictions 

on seasons or weather conditions and no requirement for use 

of a direct route.”

Plaintiffs assert that “the nearly unlimited spatial 

allowance . . . in and of itself[] violates the plain terms of the 

Travel Management Rule,” but provide no authority for that 

proposition. Because we find no support for it in either case 

law or the applicable regulations, we conclude that the Forest 

Service did not abuse its discretion when it authorized plans 

that limit motorized big game retrieval based on factors other 

than geography. See 5 U.S.C. § 706(2)(A).

 3 The State notes that additional, non-qualifying big game species 

can also be found in the Kaibab National Forest, including mule deer, 

pronghorn, and black bears.
WILDEARTH GUARDIANS V. PROVENCIO 15

As for the regional office’s skepticism regarding the 

scope of retrieval permitted under the plans, “the fact that a 

preliminary determination by a local agency representative 

is later overruled at a higher level within the agency does not 

render the decisionmaking process arbitrary and capricious,” 

as agencies are “fully entitled” to “change[] their minds . . . 

as long as the proper procedures were followed.” Nat’l 

Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 

659 (2007). Such apparent inconsistencies might serve as 

evidence of arbitrariness or capriciousness, see Barnes v. 

U.S. Dep’t of Transp., 655 F.3d 1124, 1134 (9th Cir. 2011) 

(noting that Home Builders “did not hold, however, that such 

preliminary determinations are irrelevant in any context”), 

but absent other evidence that the plans violated the Travel 

Management Rule, we do not find these comments 

particularly enlightening, especially since the Regional 

Forester ultimately upheld the designation decisions as to 

each Ranger District.4

Ultimately, as the district court concluded, “Plaintiffs 

have only identified dissatisfaction with the ultimate 

decisions made by the Forest Service in authorizing 

[motorized big game retrieval] in the three ranger districts.” 

Although it is not unreasonable to interpret “limited use” 

spatially, Plaintiffs point to no statute, regulation, or ruling 

that requires a geographic limitation of this sort. The 

Districts’ plans limit motorized big game retrieval as to 

timing, qualified species, and number of vehicles, which is 

 4 The same can be said for any inconsistencies between the final 

plans and the guidance provided by the Forest Service’s regional officer, 

to which Plaintiffs point as evidence that the Rule was violated. 

Although, for example, the guidance suggested that retrieval of elk not 

be allowed “between one hour before sunrise and 10:00 am,” that 

limitation was not a requirement, but merely a recommendation, and so 

a failure to implement it does not render the plans unlawful.
16 WILDEARTH GUARDIANS V. PROVENCIO

both a reasonable interpretation of the Rule and an indication 

that the Forest Service both considered and applied the 

mandatory minimization criteria. See Mont. Snowmobile, 

790 F.3d at 932. Given that much of the Districts’ land was 

open to cross-country motorized travel prior to 

implementation of the plans, we conclude that the new 

restrictions constitute a “limited” use of motorized vehicles.

B. “Certain”

Next, the Rule allows motorized retrieval on “certain 

forest roads.” 36 C.F.R. § 212.51(b). Plaintiffs argue that 

the word “certain” requires that it only be allowed on “some, 

but not all” roads. Because the plans permit retrieval within 

one mile of all designated roads, Plaintiffs conclude that they 

are unlawful. The Forest Service, however, correctly notes 

that while the word “certain” can mean “some, but not all,” 

the more common definition of the term is “definite” or 

“fixed.” See, e.g., Webster’s Third New International 

Dictionary 367 (2002) (listing the primary definitions of 

“certain” as “fixed, settled, stated” and “exact, precise”).

Because the Forest Service limited motor vehicle use to 

a defined set of roads in each District, it complied with the 

Rule. Even if the proper interpretation of the word “certain” 

were ambiguous, the Forest Service’s definition of “fixed” 

or “definite” is permissible, consistent with the text of the 

Rule, and entitled to deference. See Home Builders, 

551 U.S. at 672 (“An agency’s interpretation of the meaning 

of its own regulations is entitled to deference ‘unless plainly 

erroneous or inconsistent with the regulation.’” (quoting 

Auer v. Robbins, 519 U.S. 452, 461 (1997))).
WILDEARTH GUARDIANS V. PROVENCIO 17

C. “Sparingly”

Lastly, Plaintiffs contend that the Forest Service failed to 

implement motorized big game retrieval “sparingly.” Travel 

Management; Designated Routes and Areas for Motor 

Vehicle Use, 70 Fed. Reg. 68,264, 68,285 (Nov. 9, 2005) 

(“The Department expects the Forest Service to apply this 

provision sparingly, on a local or State-wide basis, to avoid 

undermining the purposes of the final rule and to promote 

consistency in implementation.” (emphasis added)). They 

argue that “allowing motorized big game retrieval off of 

every single open road is not using [the Forest Service’s] 

authority sparingly,” and that the Forest Service erroneously 

concluded that the plans were sparing and limited because 

they permitted less motorized retrieval than under the prior 

policies that imposed no restrictions.

This argument is unpersuasive. First, the word 

“sparingly” does not appear in the Rule, but instead in its 

preamble. We look to a preamble only when the regulation 

itself is ambiguous. El Comité para el Bienstar de Earlimart 

v. Warmerdam, 539 F.3d 1062, 1070 (9th Cir. 2008). 

Accordingly, as the Forest Service correctly asserts, the 

preamble does not “impose a duty above and beyond the 

actual terms of the regulation.”

Moreover, Plaintiffs’ argument fails for much the same 

reason as their “limited” argument above: it relies on a 

strictly spatial conception of “sparingly,” while ignoring the 

other restrictions that the plans impose on motorized big 

game retrieval. Absent authority requiring a strictly 

geographic interpretation of the words “limited” and 

“sparingly,” we conclude that the Forest Service did not 

violate the plain terms of the Travel Management Rule.
18 WILDEARTH GUARDIANS V. PROVENCIO

II. NEPA

A. Standing

As a preliminary matter, Safari Club challenges whether 

Plaintiffs have standing to bring their NEPA claims. It 

observes that Plaintiffs’ “standing declarant, Kim Crumbo, 

revealed that his own activities in the forests cause the very 

same impact that [they] seek to attribute to motorized big 

game retrieval,” since Crumbo recounted “incidents during

which he, on his bicycle, interfered with young goshawk and 

a goshawk pursuing its prey.” Accordingly, Safari Club 

suggests that Plaintiffs cannot satisfy the redressability 

requirement for standing, see Salmon Spawning & Recovery 

All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008), 

because Plaintiffs “themselves are a source of” the negative 

effects that they seek to analyze through an EIS, and so “[n]o 

change in process and no [EIS] analysis of motorized big 

game retrieval will prevent [Plaintiffs’] members from 

engaging in conduct that is the source of effects” that they 

seek to mitigate.

Under Safari Club’s reasoning, a hypothetical plaintiff 

challenging an EPA decision on a CO2-emitting power plant 

would lack standing just because she also happens to exhale 

carbon dioxide. This result would not only be absurd, but 

also contrary to our prior precedent, for we have held that

the mere existence of multiple causes of an 

injury does not defeat redressability, 

particularly for a procedural injury. So long 

as a defendant is at least partially causing the 

alleged injury, a plaintiff may sue that 

defendant, even if the defendant is just one of 

multiple causes of the plaintiff’s injury.
WILDEARTH GUARDIANS V. PROVENCIO 19

WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 

1157 (9th Cir. 2015).

Safari Club also challenges Plaintiffs’ NEPA standing 

based on their perceived motivation for bringing suit. 

Asserting that Plaintiffs’ “goal in bringing this action was to 

use NEPA and the NHPA to force [the Forest Service] to 

reverse [its] authorization of motorized big game retrieval,” 

it contends that “NEPA does not provide a cause of action” 

and that Plaintiffs lack prudential standing. Regardless of 

Plaintiffs’ motivation in commencing this suit, however, if a 

group is “trying to protect the environment,” then its “suit [] 

lies well within NEPA’s zone of interests.” Citizens for 

Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 976 

(9th Cir. 2003); see also Havasupai Tribe v. Provencio, 

906 F.3d 1155, 1166 (9th Cir. 2018). Accordingly, we 

conclude that Plaintiffs have standing to bring their NEPA 

claims.

B. Legal Framework

NEPA requires federal agencies, including the Forest 

Service, to assess the environmental impact of proposed 

actions that “significantly affect[] the quality of the human 

environment.” 42 U.S.C. § 4332(C). It

serves two fundamental objectives. First, it 

“ensures that the agency, in reaching its 

decision, will have available, and will 

carefully consider, detailed information 

concerning significant environmental 

impacts.” And, second, it requires “that the 

relevant information will be made available 

to the larger audience that may also play a 

role in both the decisionmaking process and 

the implementation of that decision.”
20 WILDEARTH GUARDIANS V. PROVENCIO

Mont. Snowmobile, 790 F.3d at 924 (citation omitted) 

(quoting Robertson v. Methow Valley Citizens Council, 

490 U.S. 332, 349 (1989)). In short, “NEPA’s purpose is to 

ensure that ‘the agency will not act on incomplete 

information, only to regret its decision after it is too late to 

correct.’” Friends of Clearwater v. Dombeck, 222 F.3d 552, 

557 (9th Cir. 2000) (quoting Marsh v. Or. Nat. Res. Council, 

490 U.S. 360, 371 (1989)). We have admonished that “[w]e 

must . . . strictly interpret the procedural requirements in 

NEPA . . . ‘to the fullest extent possible’ consistent with the 

policies embodied in NEPA. ‘[G]rudging, pro forma 

compliance will not do.’” Churchill County, 276 F.3d at 

1072 (fourth alteration in original) (citation omitted) 

(quoting Lathan v. Brinegar, 506 F.2d 677, 687, 693 (9th 

Cir. 1974) (en banc)). As part of this compliance, agencies 

must ensure “that environmental information is available to 

public officials and citizens before decisions are made and 

before actions are taken. The information must be of high 

quality. Accurate scientific analysis, expert agency 

comments, and public scrutiny are essential to implementing 

NEPA.” 40 C.F.R. § 1500.1(b).

The Forest Service must prepare an EIS—a more 

thorough undertaking than an EA5—if an action might 

significantly affect environmental quality. As we have 

explained,

 5 “Before deciding whether to complete an EIS, government 

agencies may prepare a less formal EA which ‘briefly provides sufficient 

evidence and analysis for determining whether to prepare an 

environmental impact statement or a finding of no significant impact.’” 

Anderson v. Evans, 371 F.3d 475, 488 (9th Cir. 2004) (quoting Tillamook 

County v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1144 (9th Cir. 

2002)).
WILDEARTH GUARDIANS V. PROVENCIO 21

An EIS must be prepared if “substantial 

questions are raised as to whether a project 

. . . may cause significant degradation of 

some human environmental factor.” Thus, to 

prevail on a claim that the Forest Service 

violated its statutory duty to prepare an EIS, 

a “plaintiff need not show that significant 

effects will in fact occur.” It is enough for the 

plaintiff to raise “substantial questions 

whether a project may have a significant 

effect” on the environment.

Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 

1208, 1212 (9th Cir. 1998) (alteration in original) (citations 

omitted) (quoting Idaho Sporting Cong. v. Thomas, 137 F.3d 

1146, 1149–50 (9th Cir. 1998)); see also Save the Yaak 

Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (“[A]n 

agency’s decision not to prepare an EIS will be considered 

unreasonable if the agency fails to ‘supply a convincing 

statement of reasons why potential effects are 

insignificant.’” (quoting Steamboaters v. FERC, 759 F.2d 

1382, 1393 (9th Cir. 1985))). The significance of an action 

depends on its context and intensity, the latter of which is 

assessed using a list of criteria enumerated in the relevant 

regulation. See 40 C.F.R. § 1508.27(a)–(b).

C. Whether the Forest Service Needed to Prepare 

EISs

Plaintiffs contend that “the presence of several 

significance factors indicating possible significant 

environmental consequences of the proposed actions” 

required the Forest Service to prepare EISs for each of the 

Districts’ travel management plans. We analyze in turn each 

consideration to which they point.
22 WILDEARTH GUARDIANS V. PROVENCIO

i. Impacts

The first enumerated consideration in evaluating an 

action’s intensity concerns “[i]mpacts that may be both 

beneficial and adverse,” and notes that “[a] significant effect 

may exist even if the Federal agency believes that on balance 

the effect will be beneficial.” 40 C.F.R. § 1508.27(b)(1). 

“Significance exists if it is reasonable to anticipate a 

cumulatively significant impact on the environment. 

Significance cannot be avoided by terming an action 

temporary or by breaking it down into small component 

parts.” Id. § 1508.27(b)(7).

Plaintiffs suggest that “the travel management plans for 

each Ranger District would have significant direct, indirect, 

and cumulative impacts,” noting that both motorized vehicle 

use on open, designated roads and cross-country, off-road 

motorized vehicle use can have “significant detrimental 

effects . . . on a variety of resources.”

The assertion that motorized big game retrieval can have 

detrimental effects on the environment is consistent with the 

information contained in the EAs prepared for the Williams 

and Tusayan Ranger Districts. Those EAs noted that “[t]he 

scientific literature documents a variety of negative effects 

of roads and motorized travel on wildlife,” with

[p]otential direct and indirect effects of roads 

and motorized travel on wildlife includ[ing] 

habitat loss, fragmentation, and degradation 

caused by roads and cross country motorized 

travel; roads can create barriers to 

movements of certain species; animals can be 

killed or injured as a result of being hit or run 

over by motor vehicles; human disturbance 

or harassment of animals caused by or 
WILDEARTH GUARDIANS V. PROVENCIO 23

facilitated by motorized travel; [and] 

shooting or harvest of animals facilitated by 

motor vehicle access to wildlife habitats.

The Williams Ranger District EA further indicated that offroad vehicle use “in areas with sensitive or moist soils can 

create tracks, ruts and new user routes that may crush, 

displace, and/or destroy cultural materials (i.e. artifacts, 

features, traditionally used plants), and damage significant 

information that may contribute to our understanding of 

history.” A particularly vexatious problem related to 

motorized vehicle use is the spread of invasive weeds. Each 

of the three EAs noted that vehicles are a common cause of 

weed introduction and spread, with the North Kaibab Ranger 

District EA reporting that “[t]he authorization of motorized 

big game retrieval will have an increased threat of invasive 

species spread as every vehicle that travels cross-country has 

the ability to serve as a vector and create disturbance.”6

We do not disagree with Plaintiffs’ assertion that 

motorized big game retrieval can have a negative effect on 

the environment. But we nevertheless conclude that the 

environmental impacts discussed in the EAs did not raise 

substantial concerns that necessitated the preparation of 

EISs. Plaintiffs might disagree with the Forest Service’s 

substantive conclusions, but we see no indication that the 

agency failed to satisfy NEPA’s procedural requirements—

a crucial distinction that is lost in Plaintiffs’ formulation of 

the issue.

 6 This is because, as explained in the Williams Ranger District EA, 

“[v]ehicles driving through populations of invasive plants often get 

seed[s] entrapped in tire tread or undercarriages, move to another area 

and then drop seeds into a previously uninfested area.”
24 WILDEARTH GUARDIANS V. PROVENCIO

Plaintiffs’ treatment of the spread of invasive weeds is 

illustrative. They tie the problem of weeds to another 

enumerated NEPA consideration that implicates “[u]nique 

characteristics of the geographic area such as proximity to 

historic or cultural resources, park lands, prime farmlands, 

wetlands, wild and scenic rivers, or ecologically critical 

areas.” Id. § 1508.27(b)(3). They note that “both the North 

Kaibab and Tusayan Ranger Districts immediately abut 

Grand Canyon National Park.” The EAs agreed: they 

described Grand Canyon National Park as “internationally 

important,” and noted the Tusayan Ranger District’s “unique 

location” as “a gateway to one of the most famous national 

parks in the country.” In that District’s EA, the Forest 

Service acknowledged that recreation and hunting—

activities facilitated by the travel management plan—“have 

the potential to introduce exotic plants” that “may then 

spread to adjoining lands, including the Grand Canyon 

National Park.” The National Park Service, in a letter from 

the Acting Park Superintendent of Grand Canyon National 

Park, advised the Forest Service to “institute a buffer zone 

of 1-mile along the park boundary for any purpose including 

big-game retrieval, fuel-wood gathering, cross-county 

travel, etc.,” due to “increased pressure from motorized 

vehicles at or near the southern park boundary over the past 

several years”—a recommendation that was not adopted in 

the Tusayan Ranger District DN/FONSI.

Clearly, the EAs demonstrated that motorized big game 

retrieval risks the spread of invasive weeds, an undeniable 

environmental impact. In response, the Forest Service relies 

in part on questionable reasoning by focusing on the fact that 

the plans reduced negative impacts when compared with 

pre-plan activity. It notes that the plan eventually selected 

for the Tusayan Ranger District opted to limit the number of 

roads open to the public, which, the EA noted, “reduces the 
WILDEARTH GUARDIANS V. PROVENCIO 25

number of opportunities for noxious and invasive exotic 

weeds to be introduced and spread.” “Thus,” the Forest 

Service concludes, “contrary to [Plaintiffs’] argument, the 

Tusayan EA confirms that the Forest Service considered the 

issue and reasonably concluded that the decision will reduce, 

not increase, the spread of exotic plants.”

However, a conclusion, even a correct one, that a given 

action might reduce a potential impact does not alone 

indicate that the impact would not be significant. We have 

noted that the use of baselines is a helpful, and perhaps 

inevitable, tool in conducting environmental surveys. See

Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 568 (9th Cir. 

2016) (“The establishment of a ‘baseline is not an 

independent legal requirement, but rather, a practical 

requirement in environmental analysis often employed to 

identify the environmental consequences of a proposed 

agency action.’” (quoting Am. Rivers v. FERC, 201 F.3d 

1186, 1195 n.15 (9th Cir. 1999))). But we have also 

determined that “simply because the Final Rule may be an 

improvement over the [previous] standard does not 

necessarily mean that it will not have a ‘significant effect’ 

on the environment” where the agency “has not explained 

why its rule will not have a significant effect.” Ctr. for 

Biological Diversity v. NHTSA, 538 F.3d 1172, 1224 (9th 

Cir. 2008). The plans chosen by the Forest Service might 

reduce (even substantially reduce) the spread of noxious 

weeds in the Districts, but that alone does not address 

whether that reduced impact itself has a significant impact 

on the environment generally and Grand Canyon National 

Park in particular. Therefore, the Forest Service cannot rely 

solely on the reduction of adverse impacts to demonstrate 

that those impacts are not significant.
26 WILDEARTH GUARDIANS V. PROVENCIO

But that the Forest Service occasionally conflates 

reduction with insignificance does not necessarily mean that 

it violated NEPA. To demonstrate, we once again go into 

the weeds.

The Forest Service acknowledged that the North Kaibab 

Ranger District contained “several species of invasive 

weeds,” which “are spread [] via roads and forest visitors.” 

The plan that was eventually selected “reduce[d] the number 

of roads that can be traveled on by 376 miles,” which, the 

EA found, would “lower the amount of invasive species seed 

introduced or spread.” But notably, the EA continued:

The authorization of motorized big game 

retrieval will have an increased threat of 

invasive species spread as every vehicle that 

travels cross-country has the ability to serve 

as a vector and create disturbance. 

Alternative 2 [the selected plan] authorizes 

motorized big game retrieval for only elk and 

mule deer. This is expected to lead to only a 

small increase in the potential for invasive 

species spread and disturbance when 

compared to Alternative 3 and should not 

generate any realistic impacts.

This passage demonstrates that the Forest Service did not 

merely rely on the possibility of reduction, but also 

concluded that the plan would “not generate any realistic 

impacts”; in other words, that the effects would not be 

significant. Furthermore, as the district court noted, the EA 

mentioned that the North Kaibab Ranger District featured 

“projects focus[ed] on treating known infestations across the 

District, prioritizing the species and locations that pose the 

greatest threats,” methods that had “proven successful in 
WILDEARTH GUARDIANS V. PROVENCIO 27

eradicating or reducing potentially serious noxious species 

threats.” This language indicates that the Forest Service 

acknowledged a potential environmental impact, and then 

determined that, due to features of the travel management 

plan and other remediation efforts, it was unlikely to be 

significant. Contrary to Plaintiffs’ argument, the Forest 

Service did not merely determine that the problem would be 

reduced; it also concluded that the impact would not be 

significant. Plaintiffs disagree with the EA’s conclusion, but 

this is “a classic example of a factual dispute the resolution 

of which implicates substantial agency expertise.” Marsh, 

490 U.S. at 376. We agree with the district court: “Plaintiffs’ 

singular and conclusory statement that exotic plants might 

spread . . . does not raise substantial questions that would 

trigger the need for an EIS.”

Similarly, although the Forest Service did not follow all 

of the recommendations made by Grand Canyon National 

Park’s Acting Park Superintendent, this fact does not mean 

that it ignored a significant environmental impact. Agencies 

can thoughtfully consider suggestions but ultimately decide 

to reject them, and the presence of an articulated concern 

does not alone trigger the need to conduct an EIS. See Native 

Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 

1240 (9th Cir. 2005) (“NEPA permits a federal agency to 

disclose [] impacts without automatically triggering the 

‘substantial questions’ threshold.”). Here, the record 

indicates that the Forest Service explained why a buffer 

would not be employed (“We don’t expect to use a buffer 

zone as many management actions will need to extend to the 

Forest Service-National Park boundary”), and further 

articulated means of remedying the risk of illegal motor 

vehicle use (such as “limit[ing] motorized big game retrieval 

during all elk seasons” and “work[ing] closely with Arizona 

Game and Fish Department to monitor and enforce illegal 
28 WILDEARTH GUARDIANS V. PROVENCIO

cross-country travel associated with hunting activities”). We 

find no indication in the record that the Forest Service did 

not adequately consider potential impacts, or that substantial 

questions remained that required the preparation of an EIS.

The same conclusion ultimately applies to all of the 

environmental impacts that Plaintiffs highlight in their 

briefs: although Plaintiffs disagree with the EAs’ factual 

conclusions, the Forest Service nonetheless considered the 

issues, gave them the requisite “hard look,” and thus fulfilled 

their NEPA obligations. Save the Yaak, 840 F.2d at 717. In 

reaching its conclusions that none of the impacts cited by 

Plaintiffs were sufficiently significant to require the 

preparation of EISs, the Forest Service did not “rel[y] on 

factors Congress did not intend it to consider, ‘entirely fail[] 

to consider an important aspect of the problem,’ or offer[] an 

explanation ‘that runs counter to the evidence before the 

agency or is so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.’” 

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) 

(en banc) (quoting Earth Island Inst. v. U.S. Forest Serv., 

442 F.3d 1147, 1157 (9th Cir. 2006)), overruled on other 

grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 

7 (2008). Instead, the evidence in the record indicates that, 

although the EAs acknowledged that motorized big game 

retrieval might have negative impacts on the environment, 

the Forest Service’s determination that these impacts would 

not be significant evinced “a rational connection between the 

facts found and the conclusions made.” Or. Nat. Res. 

Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). 

Therefore, its conclusions were not arbitrary and capricious, 

and the Forest Service did not violate NEPA by declining to 

prepare EISs based on the plans’ environmental impacts.
WILDEARTH GUARDIANS V. PROVENCIO 29

ii. Controversy and Uncertainty

NEPA also requires the preparation of an EIS when an 

action’s “effects on the quality of the human environment 

are likely to be highly controversial,” and/or “are highly 

uncertain or involve unique or unknown risks.” 40 C.F.R. 

§ 1508.27(b)(4)–(5). “A project is ‘highly controversial’ if 

there is a ‘“substantial dispute [about] the size, nature, or 

effect of the major Federal action rather than the existence 

of opposition to a use.”’” Native Ecosystems Council, 

428 F.3d at 1240 (alteration in original) (emphases added) 

(quoting Blue Mountains, 161 F.3d at 1212); see also

Wetlands Action Network v. U.S. Army Corps of Eng’rs, 

222 F.3d 1105, 1122 (9th Cir. 2000) (“The existence of 

opposition to a use, however, does not render an action 

controversial.”), abrogated on other grounds by Wilderness 

Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). 

“A substantial dispute exists when evidence, raised prior to 

the preparation of an EIS or FONSI casts serious doubt upon 

the reasonableness of an agency’s conclusions.” Nat’l Parks 

& Conservation Ass’n v. Babbitt, 241 F.3d 722, 736 (9th Cir. 

2001) (citation omitted), abrogated on other grounds by

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010). 

Additionally, because “[a]n agency must generally prepare 

an EIS if the environmental effects of a proposed agency 

action are highly uncertain,” such preparation “is mandated 

‘where uncertainty may be resolved by further collection of 

data, or where the collection of such data may prevent 

speculation on potential . . . effects.’” Barnes, 655 F.3d at 

1140 (second alteration in original) (quoting Native 

Ecosystems Council, 428 F.3d at 1240). However, NEPA 

regulations “do not anticipate the need for an EIS anytime 

there is some uncertainty, but only if the effects of the project 

are ‘highly’ uncertain.” Envtl. Prot. Info. Ctr. v. U.S. Forest 

Serv., 451 F.3d 1005, 1011 (9th Cir. 2006).
30 WILDEARTH GUARDIANS V. PROVENCIO

Plaintiffs contend that “the travel management plans for 

the Tusayan, Williams, and North Kaibab Ranger Districts 

present highly controversial and highly uncertain effects that 

involve unique or unknown risks,” because “significant 

controversy exists as to the amount and type of motorized 

recreation that would be allowed across the three Ranger 

Districts.” But Plaintiffs point to nothing in the record 

indicating the existence of a substantial dispute that casts 

doubt on the Forest Service’s conclusions about 

environmental impacts. There may have been opposition to 

the plans, but mere opposition alone is insufficient to support 

a finding of controversy. The Forest Service “recognize[d] 

that elements of the Selected Alternative [] generated 

controversy,” but concluded—apparently correctly—that 

there was “no substantiated scientific controversy over the 

effects as described.”

Plaintiffs assert that various questions raised during the 

EA process revealed a high level of scientific uncertainty, 

but the record belies that assertion. For example, as to the 

potential risks “based on the broad allowance of motorized 

big game retrieval,” the Forest Service attempted to estimate 

hunting activity based on past data, and used this information 

to conclude that the impacts of motorized big game retrieval 

would be limited. Plaintiffs identity nothing in the record to 

suggest that the Forest Service’s estimates were unduly 

speculative, or that it unreasonably relied upon these 

predictions. Plaintiffs also argue that there was “uncertainty 

regarding whether or not hunters will actually remove gut 

piles” when retrieving carcasses, which they must do “to 

protect California condors from lead poisoning.” But 

although the Forest Service acknowledged that this issue 

might present a problem, the record also indicates that it 

considered the issue and reasonably concluded that it was 

unlikely to significantly impact the North Kaibab Ranger 
WILDEARTH GUARDIANS V. PROVENCIO 31

District’s condors because the Arizona Game and Fish 

Department had provided to hunters, among other 

incentives, lead-free ammunition. The Forest Service also 

noted that “there would be decreased risk of human 

disturbance of scavenging condors as a result of a reduced 

open road system and substantially restricted motorized 

cross-country travel,” and concluded that the North Kaibab 

Ranger District plan “is not likely to jeopardize the 

continued existence [of] California condors.” Plaintiffs 

neither challenge nor address these conclusions, and instead 

rely on the mere existence of potential problems as evidence 

of significant uncertainty—a tactic that does not pass muster. 

See Native Ecosystems Council, 428 F.3d at 1240 (“Simply 

because a challenger can cherry pick information and data 

out of the administrative record to support its position does 

not mean that a project is highly controversial or highly 

uncertain.”).

iii. Precedent for Future Actions

Another consideration for measuring an action’s 

intensity for NEPA purposes is “[t]he degree to which the 

action may establish a precedent for future actions with 

significant effects or represents a decision in principle about 

a future consideration.” 40 C.F.R. § 1508.27(b)(6). 

Although “EAs are usually highly specific to the project and 

the locale, thus creating no binding precedent,” In Def. of 

Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1071 (9th 

Cir. 2014) (quoting Barnes, 655 F.3d at 1140), and the Forest 

Service here explicitly found that each of the three travel 

management plans was “not likely to establish a precedent 

for future actions with significant effects,” Plaintiffs assert 

that this consideration is nonetheless implicated because 

“the Forest Service has [] made public statements indicating 
32 WILDEARTH GUARDIANS V. PROVENCIO

that what the Kaibab National Forest does, so too will other 

southwestern National Forests.”

It is true that the record contains evidence to this effect—

including that the Coconino National Forest “will defer to 

the neighboring Kaibab National Forest’s policy for 

[motorized big game retrieval] in units shared with the 

Williams Ranger District, regardless of how the Coconino 

proposes to apply the Travel Management Rule,” and that 

the Prescott National Forest will “match them as best as we 

can”—but that does not mean that the Districts’ plans bind 

or necessarily shape other forests’ plans in such a way that 

they should be considered precedential, especially since any 

other forest’s plan would be subject to its own NEPA 

analysis. Cf. Sierra Club v. Marsh, 769 F.2d 868, 879 (1st 

Cir. 1985) (determining that an action was precedential 

because “once Maine completes the causeway and port, 

pressure to develop the rest of the island could well prove 

irreversible”). In Oregon Wild v. Bureau of Land 

Management, a district court dealt with a similar situation, 

where a project was “part of a larger series of ‘pilot projects’ 

aimed at ‘inform[ing] long-term planning’ for management 

of [] lands in Oregon and California.” No. 6:14-CV-0110-

AA, 2015 WL 1190131, at *9 (D. Or. Mar. 14, 2015) (first 

alteration in original). There, as here, the most that could be 

concluded from such a minor precedential effect is that this 

consideration “supports the conclusion that an EIS is 

necessary”—but “the precedential factor alone is not 

dispositive.” Id.; see also Anderson v. Evans, 371 F.3d 475, 

493 (9th Cir. 2004) (finding this factor “insufficient on its 

own to demonstrate a significant environmental impact” 

where an action is merely influential and not binding). Thus, 

this consideration alone did not require preparation of an 

EIS.
WILDEARTH GUARDIANS V. PROVENCIO 33

iv. Threatened Species

Finally, there is the issue of the Mexican spotted owl, a 

threatened species found in the Williams and North Kaibab 

Ranger Districts. The Forest Service must consider “[t]he 

degree to which the action may adversely affect an 

endangered or threatened species or its habitat that has been 

determined to be critical under the Endangered Species Act 

of 1973.” 40 C.F.R. § 1508.27(b)(9). Plaintiffs point to 

portions of the record that raise the specter of adverse 

effects—including consultation letters between the Williams 

and North Kaibab Ranger Districts and the U.S. Fish and 

Wildlife Service regarding the owls—but they again ignore 

the Forest Service’s overall conclusions. For example, the 

Williams Ranger District EA reported that some roads would 

pass through Mexican spotted owl critical habitats, which 

might result in “increased potential human disturbance.” 

But the EA ultimately concluded that the selected plan 

would be “primarily beneficial,” and would “not adversely 

affect Mexican spotted owl or Mexican spotted owl 

designated Critical Habitat.” In a separate biological 

assessment, the Forest Service concluded that “[t]he effects 

determination for Mexican spotted owl and Mexican spotted 

owl critical habitat is may affect, not likely to adversely 

affect,” based on the

determination [] that potential effects of the 

proposed action on the Mexican spotted owl 

would be primarily beneficial. Closing roads 

and restricting motorized cross-country 

travel under the proposed action would result 

in reduced motorized access to spotted owl 

habitat compared to current management and 

thus reduced risk of human disturbance to 

spotted owls, reduced impacts to habitat of 
34 WILDEARTH GUARDIANS V. PROVENCIO

spotted owls and their small mammal prey 

species, and reduced impacts to designated 

critical habitat.

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

determination.

In short, although the Forest Service did not definitively 

conclude that no Mexican spotted owls would be adversely 

affected by the Districts’ travel management plans, the 

record indicates that they sufficiently considered the issue 

and arrived at a reasonable conclusion that the effects would 

not be significant, thus obviating the need for an EIS.

v. Summation

In the end, we conclude that the Forest Service’s 

determination that no EISs were needed as to the Districts’ 

travel management plans was reasonable. The plans might 

have some precedential effect, there is a possibility that 

Mexican spotted owls might be affected, and exotic weeds 

might be spread by motorized big game retrieval, but the 

record ultimately supports the Forest Service’s conclusion 

that these concerns do not rise to the level of significance 

that would require EISs. The Forest Service gave the 

requisite hard look and made determinations that were 

neither arbitrary nor capricious, and were consistent with the 

evidence before it. Absent substantial questions that would 

have mandated EISs, the Forest Service did not violate 

NEPA.7

 7 Two other enumerated considerations are relevant in this case: 

“[t]he degree to which the action may adversely affect . . . objects listed 

in or eligible for listing in the National Register of Historic Places or may 
WILDEARTH GUARDIANS V. PROVENCIO 35

III. NHPA

Finally, Plaintiffs contend that the Forest Service 

violated the NHPA by failing to identify and evaluate the 

“high density of cultural resources” that might be damaged 

as a result of motorized travel in the Districts.

The NHPA’s purpose is to “foster conditions under 

which our modern society and our historic property can exist 

in productive harmony,” 54 U.S.C. § 300101(1), and it 

requires federal agencies to “make a reasonable and good 

faith effort” to identify historic properties that might be 

affected by an action, and to “take [those potential effects] 

into account.” 36 C.F.R. § 800.4(b)(1); see also 54 U.S.C. 

§ 306108.8 “Like NEPA, ‘[s]ection 106 of NHPA is a “stop, 

look, and listen” provision that requires each federal agency 

to consider the effects of its programs.’” Te-Moak Tribe of 

W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 

 cause loss or destruction of significant scientific, cultural, or historical 

resources,” and “[w]hether the action threatens a violation of Federal, 

State, or local law or requirements imposed for the protection of the 

environment.” 40 C.F.R. § 1508.27(b)(8), (10). However, the former 

consideration essentially depends on whether the Forest Service 

complied with the NHPA, while the latter hinges on the Forest Service’s 

compliance with both the NHPA and the Travel Management Rule. 

Because we conclude that the Forest Service complied with both, we also 

conclude that no federal laws were violated, and no cultural resources 

adversely affected, such that EISs were required based on these 

considerations.

8 “Historic property means any prehistoric or historic district, site, 

building, structure, or object included in, or eligible for inclusion in, the 

National Register of Historic Places maintained by the Secretary of the 

Interior.” 36 C.F.R. § 800.16(l)(1).
36 WILDEARTH GUARDIANS V. PROVENCIO

607 (9th Cir. 2010) (quoting Muckleshoot Indian Tribe v. 

U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999)).

Plaintiffs assert that the Forest Service violated the 

NHPA in three ways: (1) by failing “to make a reasonable 

and good faith effort to identify and evaluate cultural 

properties”; (2) by “erroneously determin[ing] that 

‘Exemption Q’ excuses NHPA consultation for the Tusayan 

and Williams Ranger Districts”; and (3) by arbitrarily 

making “a ‘no adverse effect’ determination for the North 

Kaibab Ranger District after admitting that cross-country 

travel damages cultural resources.” We consider each 

argument in turn.

A. Identification of Cultural Properties

Section 106 of the NHPA requires the Forest Service to 

“make a reasonable and good faith effort to identify historic 

properties; determine whether identified properties are 

eligible for listing on the National Register . . .; [and] assess 

the effects of the undertaking on any eligible historic 

properties found.” Te-Moak Tribe, 608 F.3d at 607 (first

alteration in original) (quoting Muckleshoot Indian Tribe, 

177 F.3d at 805). It must also engage in consultation with 

the State Historic Preservation Officer (SHPO) to 

“[d]etermine and document the area of potential effects,” 

“[g]ather information,” and “develop and evaluate 

alternatives or modifications to the undertaking that could 

avoid, minimize, or mitigate adverse effects on historic 

properties.” 36 C.F.R. §§ 800.4(a), 800.6(a).

Plaintiffs principally argue that the Forest Service failed 

to “make a reasonable and good faith effort” because it did 

not complete 100 percent surveys of potentially affected 

areas. The First Amended Programmatic Agreement 

Regarding Historic Property Protection and Responsibilities 
WILDEARTH GUARDIANS V. PROVENCIO 37

(Programmatic Agreement), which the parties agree 

provided the relevant guidelines, mandated that “[t]he level 

of need and extent of new field surveys or inspections will 

be proposed by a Professional Cultural Resource Specialist 

and approved by the Forest Archaeologist based on the 

guidelines provided in this section.” Those guidelines 

included the use of “relevant information to assess the 

potential to affect historic properties and the expected nature 

and distribution of heritage properties that may be affected”; 

namely, “[t]he expected nature and severity of all associated 

impacts” and “[t]he expected nature and distribution of 

heritage resources.” Based on the results of this “prefield 

research,” the Resource Specialist and Forest Archeologist 

were directed to “determine the relative level of field survey 

to be conducted.” The Programmatic Agreement called for 

“100% surveys” where “site density is expected to be high” 

and where “site densities are unknown and expected visitor 

use or impacts will be high.” By contrast, “areas may be 

surveyed at less than 100%” where “known site density is 

low.”

Here, the record supports the Forest Service’s conclusion 

that the Programmatic Agreement did not require 

100 percent surveys. At the time the travel management 

plans were decided, the Forest Service had surveyed 42 

percent of the Williams Ranger District, 23 percent of the 

Tusayan Ranger District, and 25 percent of the North Kaibab 

Ranger District. It concluded that no further surveying was 

required, based on the expected density of cultural resources 

and the nature and severity of impacts upon them.

The record reinforces the determination that the expected 

impacts of the travel management plans would be low. After 

considering historic hunting data, the EAs concluded that 

less than 0.1 percent of each District’s acreage would be 
38 WILDEARTH GUARDIANS V. PROVENCIO

impacted by motorized big game retrieval. However, the 

fact that “[t]he expected nature and severity of all associated 

impacts” might have been low does not necessarily mean 

that the Forest Service did not need to conduct 100 percent 

surveys, for the Programmatic Agreement required 

100 percent surveys for high-density sites regardless of 

impact level. Accordingly, the Forest Service’s obligation 

rested on “[t]he expected nature and distribution of heritage 

resources.”

The record is somewhat unclear as to the density of 

heritage resources in the areas open to motorized big game 

retrieval. Plaintiffs note that many of the Districts’ cultural 

resources are close to the roads, but that does not necessarily 

speak to the density of resources because the Programmatic 

Agreement does not provide any benchmark or guidance as 

to what constitutes a high-density site. Ultimately, the lack 

of clarity weighs in the Forest Service’s favor: it was not 

unreasonable for it to determine that the density was low or 

unknown, either of which would have excused 100 percent 

surveys.9 Thus, the Forest Service followed a reasonable 

interpretation of the Programmatic Agreement.

B. Exemption Q

The Programmatic Agreement’s Exemption Q provided 

that “[a]ctivities not involving ground or surface disturbance 

(e.g., timber stand improvement and precommercial thinning 

by hand)” are “exempt from further review and 

consultation.” Plaintiffs argue that the Forest Service 

 9 The Programmatic Agreement required 100 percent surveys 

“where site densities are unknown and expected visitor use or impacts 

will be high,” so it would have been reasonable for the Forest Service to 

conclude that 100 percent surveys were not needed where densities were 

unknown and use impacts were low.
WILDEARTH GUARDIANS V. PROVENCIO 39

arbitrarily relied on Exemption Q to excuse review of 

motorized big game retrieval in the Williams and Tusayan 

Ranger Districts.

Once again, however, the record does not support 

Plaintiffs’ assertions. We agree with Plaintiffs that invoking 

Exemption Q would have been inappropriate here. It is 

clear, and the Forest Service does not dispute, that motorized 

travel causes surface disturbance. But although the Forest 

Service’s correspondence with non-party Center for 

Biological Diversity suggested that it applied Exemption 

Q,10 the record as a whole supports a contrary conclusion. 

The Forest Service consulted with both the Arizona SHPO 

and potentially affected tribes as to each District’s travel 

management plan—consultations that would not have been 

required if Exemption Q had been applied. Moreover, the 

Forest Service made no other references to Exemption Q as 

part of the travel management plan decision process, which 

further supports the conclusion that it was not in fact 

invoked. Accordingly, the references to Exemption Q at 

 10 The Forest Service claims that Plaintiffs’ “brief does not identify 

where or how the Tusayan and Williams decisions purportedly relied on 

Exemption Q,” and that their “responses to the non-party Center for 

Biological Diversity’s administrative appeals of those decisions” contain 

only “an isolated reference to Exemption Q,” but these assertions are

misleading. In its response to the appeal regarding the Tusayan Ranger 

District, the Forest Service wrote that it “determined that motorized big 

game retrieval fell under Exemption Q of the PA, ‘Activities not 

involving ground or surface disturbance (e.g., timber stand improvement 

and precommercial thinning by hand)’ and would have limited impacts 

similar to the examples cited in the exemption in the” Programmatic 

Agreement. That is more than a mere “isolated reference,” as it implies 

that the Forest Service actually applied Exemption Q to the Tusayan 

Ranger District. This same language invoking Exemption Q appeared in 

the Forest Service’s response regarding the Williams Ranger District.
40 WILDEARTH GUARDIANS V. PROVENCIO

most amounted to harmless error, as they had no effect on 

the NHPA consultation process. See 5 U.S.C. § 706 

(requiring the court to take “due account . . . of the rule of 

prejudicial error” when conducting APA review); Tucson 

Herpetological Soc’y v. Salazar, 566 F.3d 870, 880 (9th Cir. 

2009) (“We have held that the harmless error doctrine ‘may 

be employed only “when a mistake of the administrative 

body is one that clearly had no bearing on the procedure 

used or the substance of decision reached.”’” (quoting 

Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 

378 F.3d 1059, 1071 (9th Cir. 2004))).11

C. “No Adverse Effect” Determination

Finally, Plaintiffs argue that the Forest Service’s 

conclusion that motorized big game retrieval would have no 

adverse effect on cultural resources was arbitrary. But to 

buttress this assertion, Plaintiffs again cherry pick isolated 

segments from the record without considering their broader 

context. For example, the Cultural Resources Specialist 

Report prepared for the North Kaibab Ranger District noted 

that “[c]ross country motorized travel, whether to retrieve 

game or for other purposes, can adversely affect cultural 

resource sites if a vehicle is driven across a site,” since 

“[v]ehicles can [] crush or displace artifacts and features 

 11 Curiously, although the Forest Service similarly argued in the 

district court that “the agency’s decisions did not rely on Exemption Q,” 

we note that the court concluded that Exemption Q did apply. On appeal, 

the Forest Service does not argue that the district court’s conclusion on 

this point was correct, and we can affirm the court’s ruling even though 

we agree with the parties that Exemption Q was not in fact applicable. 

See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 892 (9th 

Cir. 2019) (“We will affirm the district court’s correct legal results, even 

if reached for the wrong reasons.” (quoting Alcaraz v. Block, 746 F.2d 

593, 602 (9th Cir. 1984))).
WILDEARTH GUARDIANS V. PROVENCIO 41

impacting the physical integrity of the site and impairing or 

destroying scientific information that may contribute to the 

understanding of the history and prehistory of an area.” But 

that same report also concluded as follows:

Quantifying the potential for damage from 

big game retrieval is difficult. The results 

vary depending on the number of game 

retrieval trips annually, the location of those 

retrievals (high site probability areas versus 

low probability), site types found in the area, 

soil characteristics, routes used to access the 

game and weather conditions at the time of 

retrieval. However, the fewer number of 

motorized trips that occur, the lower the 

likelihood of encountering and impacting a 

site. . . .

Limiting cross-country travel will have a 

beneficial effect on cultural resources by 

reducing the potential for sites to be 

damaged. This alternative would restrict 

motorized big game retrieval to elk and 

bison. In 2009, 38 buffalo and no elk were 

taken . . . . While there is a possibility that

cross-country game retrieval of either of 

these species could impact a cultural resource 

site, given the low number of takes each year, 

it is anticipated that the potential for adverse 

effects to a site would be negligible: 

38 entries per year equates to less than 

.0099% of the acreage on the NKRD. The 

odds of adversely affecting a cultural 

resource site under these conditions are 

extremely low.
42 WILDEARTH GUARDIANS V. PROVENCIO

(emphases added). In light of this ultimate conclusion, as 

well as the implementation of the suggested mitigation 

measures, it was not arbitrary for the Forest Service to 

conclude, based on the evidence before it, that adverse 

effects were unlikely. See Motor Vehicle Mfrs. Ass’n of 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983) (“[A]n agency rule would be arbitrary and capricious 

if the agency . . . offered an explanation for its decision that 

runs counter to the evidence before the agency.”).

D. Summation

The NHPA—and NEPA—“create obligations that are 

chiefly procedural in nature.” San Carlos Apache Tribe, 

417 F.3d at 1097 (quoting Pres. Coal., Inc. v. Pierce, 

667 F.2d 851, 859 (9th Cir. 1982)). Even if cultural 

resources might be harmed as a result of motorized big game 

retrieval, that fact alone does not indicate that the Forest 

Service violated the NHPA. The Forest Service conducted 

the required prefield work, consulted with the appropriate 

entities, and reached a determination consistent with the 

evidence before it—in short, satisfied its procedural 

obligations.

CONCLUSION

The travel management plans that the Forest Service 

implemented in the three Ranger Districts of the Kaibab 

National Forest limited motorized big game retrieval to 

certain roads and imposed additional restrictions to reduce 

the level and effect of motorized activity. In crafting the 

plans, the Forest Service investigated potential impacts on 

both the environment and historic properties and reasonably 

determined that no further action was needed. Accordingly, 

we conclude that the Forest Service followed the Travel 
WILDEARTH GUARDIANS V. PROVENCIO 43

Management Rule and fulfilled its procedural obligations 

under NEPA and the NHPA.12

AFFIRMED.

 12 Amicus Curiae Rocky Mountain Elk Foundation filed a motion 

for leave to file an amicus brief in support of the Forest Service. We 

conclude that the proposed brief provides neither legal nor factual 

support to help resolve the issues on appeal, and so deny the motion.