FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOS PADRES FORESTWATCH; EARTH 

ISLAND INSTITUTE; CENTER FOR 

BIOLOGICAL DIVERSITY,

Plaintiffs-Appellants,

v.

UNITED STATES FOREST SERVICE;

KEVIN ELLIOTT, Supervisor, Los 

Padres National Forest; UNITED 

STATES FISH AND WILDLIFE 

SERVICE,

Defendants-Appellees,

AMERICAN FOREST RESOURCE 

COUNCIL; CALIFORNIA FORESTRY 

ASSOCIATION; ASSOCIATED 

CALIFORNIA LOGGERS,

Intervenor-Defendants-Appellees.

No. 20-55859

D.C. No.

2:19-cv-05925-

PJW

OPINION

Appeal from the United States District Court

for the Central District of California

Patrick J. Walsh, Magistrate Judge, Presiding

Argued and Submitted May 12, 2021

Pasadena, California

Filed February 4, 2022
2 LOS PADRES FORESTWATCH V. USFS

Before: Ryan D. Nelson and Kenneth K. Lee, Circuit 

Judges, and Sidney H. Stein,* District Judge.

Opinion by Judge Stein;

Dissent by Judge R. Nelson

SUMMARY**

Environmental Law

The panel vacated the district court’s summary judgment 

in favor of the U.S. Forest Service, and the Forest Service’s 

Decision Memo approving the proposed Tecuya Ridge 

Shaded Fuelbreak Project; and remanded to the Forest 

Service to provide adequate substantiation for its 

determination that 21-inch dbh (diameter at breast height) 

trees are generally small diameter timber within the Project 

Area.

Tecuya Ridge is located within the Los Padres National 

Forest, and is home to densely populated forest stands that 

the Forest Service determined to be at risk of destruction by 

wildfire. The Tecuya Ridge Project authorized thinning 

1,626 acres of forest, including approximately 1,100 acres 

within a protected area called the Antimony Inventoried 

Roadless Area (“IRA”). The Roadless Area Conservation 

Rule was established in 2001 pursuant to a presidential 

* The Honorable Sidney H. Stein, United States District Judge for 

the Southern District of New York, sitting by designation.

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

has been prepared by court staff for the convenience of the reader.
LOS PADRES FORESTWATCH V. USFS 3

directive to initiate a nationwide plan to protect inventoried 

and uninventoried roadless areas within national forests. 

Generally, timber cutting, sale or removal in areas like the 

Antimony IRA are prohibited by the Roadless Area 

Conservation Rule. The Rule provides for some exceptions. 

The panel held that the Forest Service’s conclusion that 

the Tecuya Ridge Project was consistent with the Roadless 

Area Conservation Rule was arbitrary and capricious. The 

panel held that the Forest Service’s determination that 21-

inch dbh trees were “generally small timber” was arbitrary 

and capricious. The panel found no record evidence to 

support this determination. In addition, the Forest Service 

failed to articulate a satisfactory explanation – in the 

administrative record, in briefing, and at oral argument – for 

its determination that the 21-inch dbh trees in the Project 

area were “generally small” within the meaning of the 

Roadless Rule. Because the panel could not discern how the 

Forest Service arrived at the 21-inch dbh number, the panel 

remanded for the Forest Service to substantiate its 

conclusion that 21-inch dbh trees are “generally small” 

within the project area, consistent with the Roadless Rule.

The panel held that the Forest Service’s determination 

that the Project will “maintain or improve” the Antimony 

Roadless Area’s characteristics was not arbitrary and 

capricious. The Forest Service met its obligations under 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29, 43 (1983), to articulate a satisfactory 

explanation for its action.

The panel held that the Forest Service’s decision to 

“categorically exclude” the Tecuya Ridge Project from 

review in an environmental assessment or environmental 

impact statement, pursuant to the National Environmental 
4 LOS PADRES FORESTWATCH V. USFS

Policy Act (“NEPA”), was not arbitrary and capricious. 

First, the Forest Service’s determination that Categorical 

Exclusion 6 (“CE-6”) applied to the Project was not arbitrary 

and capricious. Second, the Forest Service’s determination 

that no extraordinary circumstances prevented its 

application of CE-6 to the Project was not arbitrary and 

capricious. Consistent with 36 C.F.R. § 220.6, the Forest 

Service analyzed each resource condition – that should be 

considered in determining whether there were extraordinary 

circumstances related to the proposed action – and 

determined that the Project would have “no significant 

impact” on each. In addition, the Forest Service’s decision 

to locate the Project in the “wildland zone” instead of the 

“threat zone” was not arbitrary and capricious because the 

Forest Service substantiated its decision with evidence in the 

record.

Judge R. Nelson dissented. He agreed with Sections I.B 

and II of the majority opinion. He wrote, however, that the 

majority wrongly held that the Forest Service’s 

determination that 21-inch dbh trees are “small diameter” 

was arbitrary or capricious under the Administrative 

Procedure Act. He would deny the petition for review.
LOS PADRES FORESTWATCH V. USFS 5

COUNSEL

Justin Augustine (argued), Law Office of Justin Augustine, 

Oakland, California; Brian Segee, Center for Biological 

Diversity, Los Angeles, California; for PlaintiffsAppellants.

Jeffrey S. Beelaert (argued), Bridget K. McNeil, and Sean C.

Duffy, Attorneys; Jean E. Williams, Acting Assistant 

Attorney General; United States Department of Justice, 

Environment and Natural Resources Division, Washington, 

D.C.; for Defendants-Appellees.

Lawson E. Fite (argued) and Sara Ghafouri, American Forest 

Resource Council, Portland, Oregon, for IntervenorDefendants-Appellees.
6 LOS PADRES FORESTWATCH V. USFS

OPINION

STEIN, District Judge:

The Tecuya Ridge, part of the San Emigdio Mountain 

range, rises up from the Los Padres National Forest and 

overlooks the mountain communities of Lebec, Frazier Park, 

Lake of the Woods, Pine Mountain Club, and Pinon Pines 

Estates. The Ridge falls within the Mt. Pinos Place 

Management Area, an environment forested with old-growth 

trees, including Singleleaf pinyon-California juniper and 

Montane conifer. The area provides habitat for the 

California condor, the California spotted owl, and the 

northern goshawk and affords a scenic backdrop to the 

mountain communities nestled within it. But because the 

Tecuya Ridge is home to densely populated forest stands,1

the Forest Service has determined that both the forest and the 

adjacent mountain communities are at risk of destruction by 

wildfire. To address this risk, the Forest Service proposed 

the Tecuya Ridge Shaded Fuelbreak Project (the “Project”) 

in March 2018. The Project aims to create a fuelbreak, a 

“wide strip or block of land on which the native or preexisting vegetation has been permanently modified so that 

fires burning into it can be more readily extinguished,”2

running roughly in a jagged line along the Tecuya Ridge.

1 A “stand” is a “contiguous group of trees sufficiently uniform in 

age class distribution, composition, and structure, and growing on a site 

of sufficiently uniform quality, to be a distinguishable unit.” 

Reforestation Glossary, U.S. Forest Serv., https://www.fs.fed.us/restora

tion/reforestation/glossary.shtml.

2 U.S. Dep’t of Agric., U.S. Forest Serv., Land Management Plan: 

Part 3 Design Criteria for the Southern California National Forests 96 

(2005).
LOS PADRES FORESTWATCH V. USFS 7

In April 2019, Los Padres Forest Supervisor Kevin Elliot 

published a Decision Memo approving the Project. 

Appellants Los Padres ForestWatch, Center for Biological 

Diversity, and Earth Island Institute filed a complaint 

challenging this decision on two grounds: that the Forest 

Service’s approval of the project violates the National 

Environmental Policy Act of 1969 (“NEPA”), and that the 

Project authorizes logging large diameter trees in violation 

of the Roadless Area Conservation Rule. The parties filed 

cross-motions for summary judgment. The district court 

granted Appellee’s motion for summary judgment and 

denied Appellants’ motion for summary judgment. 

Appellants filed a timely notice of appeal on August 20, 

2020.

Because the Forest Service has failed to explain how its 

decision to approve the Project complies with the 

requirements of the Roadless Area Conservation Rule, the 

Court vacates the district court’s decision and the Forest 

Service’s Decision Memo approving the Project and 

remands this case to the Forest Service to substantiate its 

conclusions.

BACKGROUND

Since 1998, fifteen wildfires have burned through the 

Tecuya Ridge. The Forest Service believes that the risk of 

wildfire in that area remains high because the Tecuya Ridge 

consists of densely packed forest stands. Overcrowded 

stands are vulnerable to severe wildfire because they are full 

of tightly packed forest fuels—combustible forest 

materials—like shrubs, brush, and tree branches.3

 “Surface” 

3 U.S. Dep’t of Agric., U.S. Forest Serv., Influence of Forest 

Structure on Wildfire Behavior and the Severity of Its Effects 1 (2003).
8 LOS PADRES FORESTWATCH V. USFS

fuels lie on the forest floor, while “ladder” fuels allow 

wildfire to climb from the forest floor to the tree canopies.4 

The Forest Service has determined that surface and ladder 

fuel loads, dense tree crown cover, continued periods of 

drought, and the presence of trees ravaged by insects and 

disease in the Tecuya Ridge pose a risk of a wildfire with the 

potential to destroy an entire forest stand.

Accordingly, the Forest Service proposed the Tecuya 

Ridge Shaded Fuelbreak Project in March 2018. The Project 

Decision Memo explains that the Project aims to create a 

fuelbreak to “provide safe and effective locations from 

which to perform fire suppression operations,” to “slow the 

spread of wildland fire,” to “reduce the potential for the loss 

of life, property, and natural resources,” and to “increase the 

forest’s resilience to insects and diseases.”

To accomplish these goals, the Project authorizes 

thinning 1,626 acres of forest, including approximately 

1,100 acres within a protected area called the Antimony 

Inventoried Roadless Area (“IRA”). “Thinning,” as 

explained in the Project Decision Memo, means that 

commercially viable trees will be cut down and 

mechanically harvested for commercial sale. Smaller trees 

and shrubs would either be treated by mastication—which 

means using equipment to grind, chip, or break apart brush 

and small trees into small pieces, leaving a “mulch” made 

from wood chips on the forest floor5

—hand-thinning, or 

4 Id. at 2–3.

5 U.S. Dep’t of Agric., Is Mastication Right For Your Site? ScienceBased Decision Trees for Forest Managers, Rocky Mountain Rsch. 

Station Sci. You Can Use Bull., Nov. 2020, at 1, available at 

https://www.fs.usda.gov/rmrs/sites/default/files/documents/SYCU_Is_

Mastication_Right_for_Your_Site.pdf.
LOS PADRES FORESTWATCH V. USFS 9

pruning. Any fuels created by these activities would be 

scattered or piled by hand on the forest floor and burned. 

The vast majority of the trees targeted for treatment will be 

commercially logged and sold.

On March 13, 2018, the Forest Service issued a Project 

Proposal for the Tecuya Ridge Shaded Fuelbreak Project and 

a letter soliciting public comment on the proposal. Between 

April 2018 and April 2019, Appellants and other interested 

parties submitted comments to the Forest Service, raising 

concerns, among others, that the Project violated 1) NEPA 

by authorizing the sale of commercial wood products 

pursuant to a categorical exclusion, and 2) the Roadless Area 

Conservation Rule by authorizing commercial logging in the 

Antimony IRA.

In April 2019, Los Padres Forest Supervisor Kevin Elliot 

published a Decision Memo approving the Project. The 

Decision Memo explained that the Forest Service had 

considered the public’s concern regarding “impacts to 

wildlife, the Antimony IRA, and the commercial sale of 

timber and other wood products” but had determined that the 

Project would not “imperil species of concern.”

Appellants filed a complaint challenging the Forest 

Service’s decision to approve the Project on the grounds that 

the decision violated the Roadless Area Conservation Rule 

and NEPA. The district court granted Appellee’s motion for 

summary judgment and denied Appellants’ motion for 

summary judgment on August 20, 2020. This appeal 

followed.6

6 Appellants assert they have associational standing to bring this 

suit. Appellees have not contested this. Nevertheless, Appellants have 
10 LOS PADRES FORESTWATCH V. USFS

STANDARD OF REVIEW

Appellate courts “review a grant of summary judgment 

de novo.” Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 

1217, 1220 (9th Cir. 2011) (citing Swanson v. U.S. Forest 

Serv., 87 F.3d 339, 343 (9th Cir. 1996)).

Courts review agency decisions under NEPA and the 

Roadless Area Conservation Rule under the standards set out 

in the Administrative Procedure Act (“APA”), and “must set 

aside agency action found to be arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law.” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 

957, 964 (9th Cir. 2002) (citing 5 U.S.C. § 706).

ANALYSIS

I. The Forest Service’s Conclusion that the Tecuya 

Ridge Project Is Consistent with the Roadless Area 

Conservation Rule Is Arbitrary and Capricious.

The Roadless Area Conservation Rule was established in 

20017 pursuant to a presidential directive to “initiate a 

associational standing—the right to bring a suit on behalf of their 

members—because their “members would have standing to sue in their 

own right, the interests at stake are germane to the organization’s 

purpose, and neither the claim asserted nor the relief requested requires 

individual members’ participation in the lawsuit.” Friends of the Earth, 

Inc. v. Laidlaw Env’tl Servs. (TOC), Inc., 528 U.S. 167, 169 (2000) 

(citing Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 

(1977)).

7 The 2001 Roadless Rule has a somewhat complex history. The 

rule was enjoined before it went into effect, and the Forest Service 

promulgated an alternative rule, see Special Areas; State Petitions for 

Inventoried Roadless Area Management, 70 Fed. Reg. 25,654–55 (May 
LOS PADRES FORESTWATCH V. USFS 11

nationwide plan to protect inventoried and uninventoried 

roadless areas” within national forests. Kootenai Tribe of 

Idaho v. Veneman, 313 F.3d 1094, 1105 (9th Cir. 2002). In 

promulgating the rule, the Forest Service identified 

58.5 million acres of “inventoried roadless areas,” including 

the Antimony IRA. See id.

An “Inventoried Roadless Area” (“IRA”) is an area that 

“provide[s] large, relatively undisturbed landscapes that are 

important to biological diversity and the long-term survival 

of many at risk species.” Special Areas; Roadless Area 

Conservation, 66 Fed. Reg. 3,244, 3,245 (Jan. 12, 2001); see 

also 36 C.F.R. § 294.11. The Antimony IRA, forested with 

pinyon pine, other conifers, and sagebrush, spans nearly 

40,513 acres across the San Emigdio Mountain range. 

Twenty-four miles long and three miles wide, it lies both 

north of and adjacent to the San Andreas Rift Zone. The 

ridge tops of Antimony provide expansive views of the 

southern San Joaquin Valley. The Antimony IRA also 

provides habitat for California condors, which, according to 

the Final Supplemental Environmental Impact Statement for 

the Southern California National Forests Land Management 

Plan Amendment, use the area “extensively for travel and 

roosting as they soar on uplifted winds along the southern 

boundary of the San Joaquin Valley.”

The Project authorizes thinning, including commercial 

thinning, of approximately 1,100 acres of forest within the 

Antimony IRA. Generally, timber cutting, sale, or removal 

13, 2005), which is still codified at 36 C.F.R. § 294. However, the Ninth 

Circuit affirmed the judgment of a district court setting aside the 

alternative rule, and reinstating the original 2001 rule, in 2009. See 

California ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F. 3d 999, 1021 

(9th Cir. 2009). The version of the Rule at issue in this case is the 

original 2001 version.
12 LOS PADRES FORESTWATCH V. USFS

in areas like the Antimony IRA are prohibited by the 

Roadless Area Conservation Rule because those activities 

“have the greatest likelihood of altering and fragmenting 

landscapes, resulting in immediate, long-term loss of 

roadless area values and characteristics.” Special Areas; 

Roadless Area Conservation, 66 Fed. Reg. at 3,244. But the 

Rule provides for some exceptions. For instance, “[t]imber 

may be cut, sold, or removed in inventoried roadless areas” 

if the Responsible Official determines:

(1) The cutting, sale, or removal of generally 

small diameter timber is needed for one 

of the following purposes and will 

maintain or improve one or more of the 

roadless area characteristics as defined in 

§ 294.11.

(i) To improve threatened, endangered, 

proposed, or sensitive species habitat; 

or

(ii) To maintain or restore the 

characteristics of ecosystem

composition and structure, such as to 

reduce the risk of uncharacteristic 

wildfire effects, within the range of 

variability that would be expected to 

occur under natural disturbance 

regimes of the current climatic 

period[.]

36 C.F.R. § 294.13.
LOS PADRES FORESTWATCH V. USFS 13

The rule defines “roadless area characteristics” as 

“[r]esources or features that are often present in and 

characterize inventoried roadless areas,” including:

(1) High quality or undisturbed soil, water, 

and air;

(2) Sources of public drinking water;

(3) Diversity of plant and animal 

communities;

(4) Habitat for threatened, endangered, 

proposed, candidate, and sensitive 

species and for those species dependent 

on large, undisturbed areas of land;

(5) Primitive, semi-primitive non-motorized 

and semi-primitive motorized classes of 

dispersed recreation;

(6) Reference landscapes;

(7) Natural appearing landscapes with high 

scenic quality;

(8) Traditional cultural properties and sacred 

sites; and

(9) Other locally identified unique 

characteristics.

36 C.F.R. § 294.11.
14 LOS PADRES FORESTWATCH V. USFS

Thus, “[w]hether the [Forest] Service may harvest timber 

in an inventoried roadless area is a three-step inquiry.” All. 

for the Wild Rockies v. Krueger, 950 F. Supp. 2d 1196, 1214 

(D. Mont. 2013), aff’d sub nom. All. for the Wild Rockies v. 

Christensen, 663 F. App’x 515 (9th Cir. 2016). “First, the 

timber to be harvested must be ‘generally small diameter.’ 

Second, the harvest must be needed for one of two listed 

purposes [as defined in 36 C.F.R. § 294.13]. Third, the 

harvest must maintain or improve one or more of the 

roadless area characteristics as defined in § 294.11.” Id.

The Forest Service concluded that the Project complies 

with the Roadless Rule because it seeks to reduce the risk of 

uncharacteristic wildfire effects, a purpose specifically 

identified in 36 C.F.R. § 294.13, may be needed for recovery 

or conservation of threatened, endangered, proposed, or 

sensitive species, a roadless area characteristic identified in 

36 C.F.R. § 294.11, and removes generally smaller trees 

with a diameter of less than 21 inches at breast height 

(“dbh”) within the Antimony IRA. Appellants, however, 

argue that the Forest Service has failed to substantiate its 

assertion that trees measuring 21-inches dbh are “generally 

small diameter timber” or explain how the Project will 

maintain or improve one of the “roadless area 

characteristics” listed in 36 C.F.R. § 294.11.

The Court disagrees with Appellants on the latter 

contention and finds that the Forest Service has adequately 

explained its determination that the Project will maintain or 

improve one of the roadless area characteristics listed in 

36 C.F.R. § 294.11. For instance, the fourth characteristic 

covers the “[h]abitat for threatened, endangered, proposed, 

candidate, and sensitive species” and the Forest Service’s 

Decision Memo finds that “[t]he project would benefit 

California condors by treating fuels to help prevent large, 
LOS PADRES FORESTWATCH V. USFS 15

high intensity stand replacement wildland fire that could 

eliminate roosting habitat over a larger area.”

But because the Forest Service has indeed failed to 

explain its determination that 21-inch dbh trees are 

“generally small diameter timber” within the meaning of the 

Roadless Rule, its decision to approve the Project was 

arbitrary and capricious.

A. The Forest Service’s Determination that 21-inch 

dbh Trees Are “Generally Small Diameter 

Timber” Is Arbitrary and Capricious.

“The intent of the [Roadless Area Conservation Rule] is 

to limit the cutting, sale, or removal of timber to those areas 

that have become overgrown with smaller diameter trees.” 

Special Areas; Roadless Area Conservation, 66 Fed. Reg. 

at 3,257. In promulgating the Rule, the Forest Service 

specifically chose not to define “what constitutes ‘generally 

small diameter timber’” because “[s]uch determinations are 

best made through project specific or land and resource 

management plan NEPA analyses,” as guided by certain 

ecological considerations. Id.

Risk of fire is one of these considerations. The Forest 

Service noted that “areas that have become overgrown with 

shrubs and smaller diameter trees creating a fuel profile that 

acts as a ‘fire ladder’ to the crowns of the dominant overstory 

trees may benefit ecologically from thinning treatments that 

cut and remove such vegetation.” Id. The notice of adoption 

of the final version of the Rule specifically explains that 

“[t]hinning of small diameter trees, for example, that became 

established as the result of missed fire return intervals due to 

fire suppression and the condition of which greatly increases 

the likelihood of uncharacteristic wildfire effects,” is 

permissible under the Rule. Id.
16 LOS PADRES FORESTWATCH V. USFS

The Project permits mechanical thinning of trees less 

than 21-inches dbh inside the Antimony IRA to prevent 

uncharacteristic wildfire effects. The Forest Service 

contends that trees less than 21-inches dbh are “generally 

small diameter timber” consistent with 36 C.F.R. § 294.13. 

But the Court finds no evidence in the record to support the 

Forest Service’s determination.

An agency must “articulate a satisfactory explanation for 

its action including a ‘rational connection between the facts 

found and the choice made.’” Motor Vehicle Mfrs. Ass’n v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) 

(quoting Burlington Truck Lines v. United States, 371 U.S. 

156, 168 (1962)). “Even when an agency explains its 

decision with ‘less than ideal clarity,’ a reviewing court will 

not upset the decision on that account ‘if the agency’s path 

may reasonably be discerned.’” Alaska Dep’t of Env’tl 

Conservation v. EPA, 540 U.S. 461, 497 (2004) (quoting 

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 

419 U.S. 281, 286 (1974)). However, an agency’s 

determination is arbitrary and capricious where it merely 

provides “generic statements” to support its conclusion in 

lieu of evidence that it has actually applied its substantive 

expertise. Or. Nat. Desert Ass’n v. Rose, 921 F.3d 1185, 

1191 (9th Cir. 2019). The Court “cannot defer to a void.” 

Or. Nat. Desert Ass’n v. U.S. Forest Serv., 957 F.3d 1024, 

1035 (9th Cir. 2020) (internal quotation marks omitted) 

(quoting Or. Nat. Desert Ass’n v. Bureau of Land Mgmt., 

625 F.3d 1092, 1121 (9th Cir. 2010)).

The Forest Service has failed to articulate a satisfactory 

explanation—in the administrative record, in briefing, and at 

oral argument—for its determination that the 21-inch dbh 

trees that inhabit the Project area are “generally small” 

within the meaning of the Roadless Rule. Problematically, 
LOS PADRES FORESTWATCH V. USFS 17

the Forest Service fails to provide evidence of the average or 

median dbh of the trees within the Tecuya Ridge Project area 

at all. It is impossible to tell, from the record, which size 

classes of trees inhabit the Project area and whether 21-inch 

dbh trees can properly be considered “small” within those 

classes. Instead, the Decision Memo approving the Project 

merely contains a bare assertion—with no supporting 

analysis—that the 21-inch dbh trees are “smaller trees” 

consistent with the Roadless Area Conservation Rule.

The Briefing Paper accompanying the Decision Memo, 

which references the Los Padres Land Management Plan, 

also fails to provide clarity. The Los Padres Land 

Management Plan defines large-diameter trees as those of 

over 24-inches dbh. The Forest Service appears to argue that 

any tree with a dbh of less than 24 inches can be considered 

a “generally small diameter tree.” But the Court cannot 

determine why, in the Forest Service’s view, the difference 

between a “generally small” tree and a “large-diameter tree” 

is merely three inches dbh because the Forest Service has 

failed to provide any information that would help the Court 

to do so. Indeed, the Land Management Plan’s declaration 

that 24-inch dbh trees are large-diameter trees leads the 

Court to conclude that a 21-inch dbh tree is, at best, a 

medium-sized tree, not a “generally small” tree as 

contemplated by the Roadless Rule.

Other evidence available in the record tends to confirm 

that trees of up to 21-inches dbh are not “generally small.” 

In an Environmental Assessment for another nearby project, 

the Frazier Mountain Project, the Forest Service noted that 

“larger diameter” trees were those with a dbh greater than 

ten inches. Although the Forest Service contends that the 

Frazier Mountain Project Environmental Assessment is 

irrelevant here because that project thinned timber stands 
18 LOS PADRES FORESTWATCH V. USFS

primarily overstocked with different tree species—Jeffrey 

pine—the Court is not convinced. Jeffrey pine, a type of 

coniferous tree, is a component of mixed-conifer forests and 

a type of tree found within the Tecuya Project area. Because 

the Frazier Project area is located in close proximity with the 

Tecuya Ridge Project area and likely contains a similar stand 

composition, the Forest Service has failed to justify its 

determination that “larger diameter” trees in the Frazier 

Project area have a dbh greater than ten inches while “small 

diameter” trees in the Tecuya Ridge Project area have a dbh 

of up to 21 inches.

Even assuming that the stand composition in the Frazier 

Mountain Project area differs substantially from the stand 

composition in the Tecuya Ridge Project area, the Forest 

Service has failed to provide any data comparing the average 

dbh of trees within the Frazier Mountain Project area with 

the average dbh of trees in the Tecuya Ridge Project area to 

support its conclusion that “small” trees in the Tecuya Ridge 

are much larger than even the “large” trees on Frazier 

Mountain. If the Forest Service had shown that trees on 

Frazier Mountain have a generally smaller dbh on average 

than the mixed conifer and pinyon-juniper trees on the 

Tecuya Ridge, the Court might have deferred to its 

determination that trees of up to 21 dbh in mixed conifer and 

pinyon-juniper dominated stands in the Project area are 

properly considered “small.” But the Forest Service did not 

attempt to articulate this explanation or, indeed, provide any 

information at all on the average dbh of the trees located 

within the Tecuya Project area.

In attempting to support its determination that the Project 

Decision Memo complies with the Roadless Rule, the Forest 

Service notes that the Roadless Rule’s definition of generally 

small timber is “flexible” and allows Forest Service experts 
LOS PADRES FORESTWATCH V. USFS 19

to determine what timber is “generally small” based on 

project-specific goals and ecological considerations. It 

argues that 21-inch dbh trees must be removed within the 

Project area to “meet the desired conditions of the proposed 

[Project] to a 90 percent effective level,” and urges the Court 

defer to its “technical expertise.” But although the Forest 

Service may indeed apply its technical expertise to 

determine which “generally small” trees pose an 

uncharacteristically high risk of fire spread and intensity, see 

Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 

3,257, the Forest Service provides no evidence that it has 

actually performed the technical analysis necessary to 

identify them.

For instance, the Decision Memo for the Project states 

that the Forest Service conducted “stand exams” in the 

project area, “coupled with walk-throughs by Forest 

professionals and data from other sources,” which “confirm 

that existing stand density and structure put the area at risk 

from insects and disease, as well as from wildfire.” But this 

proclamation pertains solely to the Forest Service’s rationale 

for the Project—it does not substantiate the Forest Service’s 

determination that 21-inch dbh trees are “generally small” or 

why 21-inch dbh trees, specifically, are creating the risk of 

wildfire the Project seeks to ameliorate. In fact, the Forest 

Service has never explained what a “stand exam” or “walkthrough” entails, and how the data gleaned from those 

activities helped it to determine that the Project complies 

with the Roadless Rule. By failing to explain why 21-inch 

dbh trees are the type of “generally small trees” the Roadless 

Rule permits the Forest Service to harvest, the Forest Service 

has failed to show that it has complied with the intent of the 

Roadless Rule to “limit the cutting, sale, or removal of 

timber to those areas that have become overgrown with 
20 LOS PADRES FORESTWATCH V. USFS

smaller diameter trees.” Special Areas; Roadless Area 

Conservation, 66 Fed. Reg. at 3,257.

To be clear, the Court does not require the Forest Service 

to undertake any particular method of providing a reasoned 

explanation for its choice to designate trees of up to 21-

inches dbh as “generally small.” The United States Supreme 

Court has continually affirmed that “agencies should be free 

to fashion their own rules of procedure.” Vermont Yankee 

Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 

435 U.S. 519, 544 (1978). “[A] reviewing court may not, 

after determining that additional evidence is requisite for 

adequate review, proceed by dictating to the agency the 

methods, procedures, and time dimension of the needed 

inquiry.” Fed. Power Comm’n v. Transcon. Gas Pipe Line 

Corp., 423 U.S. 326, 333 (1976). But where “the decision 

of the agency ‘is not sustainable on the administrative record 

made, then the . . . decision must be vacated and the matter 

remanded . . . for further consideration.” Id. at 331 (quoting 

Camp v. Pitts, 411 U.S. 138, 143 (1973)).

The Forest Service’s determination that the Project is 

consistent with the Roadless Area Conservation Rule is not 

sustainable on the current administrative record. The Court 

cannot discern how the Forest Service arrived at the 21-inch 

dbh number. The Court thus remands this case to the Forest 

Service to substantiate its conclusion that 21-inch dbh trees 

are “generally small” within the project area, consistent with 

the Roadless Rule. See Blue Mountains Biodiversity Project 

v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998) (finding 

the Forest Service’s decision to be arbitrary and capricious 

where the EA “contain[ed] virtually no references to any 

material in support of or in opposition to its conclusions”).
LOS PADRES FORESTWATCH V. USFS 21

B. The Forest Service’s Determination that the 

Project Will “Maintain or Improve” the 

Antimony Roadless Area’s Characteristics Is Not 

Arbitrary and Capricious.

Appellants further allege that the Forest Service violated 

36 C.F.R. § 294.13 of the Roadless Rule by failing to 

provide “any explanation at all” to establish that the logging 

of 21-inch dbh trees will “maintain or improve one or more 

of the roadless area characteristics as defined in § 294.11.” 

But in this case, the Forest Service has met its obligations 

under State Farm to “articulate a satisfactory explanation for 

its action including ‘a rational connection between the facts 

found and the choice made.’” State Farm Mut. Auto. Ins. 

Co., 463 U.S. at 43 (quoting Burlington Truck Lines, 

371 U.S. at 168).

The Forest Service avers that the Project will maintain or 

improve habitat conditions for threatened, endangered, 

proposed, candidate, and sensitive species, a roadless area 

characteristic defined by 36 C.F.R. § 294.11. That assertion 

is substantiated in the Decision Memo for the Project, which 

includes the Forest Service’s determination that “in some 

situations, cutting or removal of small diameter timber [in 

the Project area] may be needed for recovery or conservation 

of threatened, endangered, proposed or sensitive species to 

improve stand structure or reduce encroachment into 

meadows or other natural openings.” For instance, the 

California condor, an endangered species, frequently flies 

over the Project area and may use the Project area to roost or 

nest. The Forest Service concluded that the Project “would 

benefit California condors by treating fuels to help prevent 

large, high intensity stand replacement wildland fire that 

could eliminate roosting habitat over a larger area” and 

might “improve condor foraging habitat by creating a more 
22 LOS PADRES FORESTWATCH V. USFS

open area that facilitates finding and catching prey by birds 

like condors that are dependent upon sight for locating 

food.”

The Project area also contains two sensitive botanical 

species, Hall’s Woolly Sunflower and Flaxleaf Monardella. 

In its Botany Report for the Project, the Forest Service 

concluded that the Project would maintain or improve 

habitat suitability for both of these species because the 

Project will reduce the “risk of mortality from moderate to 

high intensity wildfires.” In addition, it concluded that 

reducing stand density may provide indirect beneficial 

impacts for these species because the Project will create or 

maintain open areas which may provide additional suitable 

habitat. On this record, the Forest Service’s determination 

that the Project will maintain or improve at least one of the 

Antimony Roadless Area’s characteristics was not arbitrary 

and capricious.

II. The Forest Service’s Decision to “Categorically 

Exclude” the Tecuya Ridge Project from Review in 

an EA or EIS Was Not Arbitrary and Capricious.

Appellants further contend that the Forest Service’s 

decision to approve the Project violated NEPA. First, 

Appellants argue that the Forest Service improperly 

authorized the Project pursuant to a Categorical Exclusion. 

Second, Appellants argue that the Forest Service’s decision 

to categorically exclude the Tecuya Ridge Project from 

Review in an EA or EIS was arbitrary and capricious 

because the Forest Service failed to analyze fuelbreak 

efficacy as an “extraordinary circumstance” that would 

prevent it from applying a Categorical Exclusion to the 

Project.
LOS PADRES FORESTWATCH V. USFS 23

A. The Forest Service’s Determination that CE-6

Applies to the Project Is Not Arbitrary and 

Capricious.

NEPA, 42 U.S.C. § 4321 et seq., “declares a broad 

national commitment to protecting and promoting 

environmental quality.” Robertson v. Methow Valley 

Citizens Council, 490 U.S. 332, 348 (1989). It mandates 

federal agencies to prepare an environmental impact 

statement (“EIS”) for proposed “[f]ederal actions 

significantly affecting the quality of the human 

environment.” 42 U.S.C. § 4332(C). This statutory 

requirement ensures that federal agencies thoroughly 

consider “detailed information concerning significant 

environmental impacts” before approving certain actions 

and that they make this information “available to [a] larger 

audience that may also play a role in both the 

decisionmaking process and the implementation of that 

decision.” Robertson, 490 U.S. at 349.

To effectuate these requirements, Congress established a 

Council on Environmental Quality (CEQ), which 

promulgates “binding regulations implementing the 

procedural provisions of NEPA.” Id. at 354; 42 U.S.C. 

§ 4344(4). CEQ regulations allow an agency to first prepare 

an environmental assessment (“EA”) for a proposed project 

to determine whether the environmental impact of the 

project is “significant enough to warrant preparation of an 

EIS.” Blackwood, 161 F.3d at 1212 (citing 40 C.F.R. 

§ 1508.9).

But an agency may avoid preparing either an EA or an 

EIS altogether by determining that a proposed action fits 

within certain “categorical exclusions.” 40 C.F.R. § 1508.4. 

A “Categorical Exclusion” (“CE”) is an action which a 

federal agency has found “do[es] not individually or 
24 LOS PADRES FORESTWATCH V. USFS

cumulatively have a significant effect on the human 

environment.” Id. Normally, proposed actions that fit 

within a categorical exclusion do not require an agency to 

prepare either an environmental impact statement or an 

environmental assessment. Id.

In approving the Tecuya Ridge Project, the Forest 

Service determined that Categorical Exclusion 6 (CE-6) 

applied and exempted the Project from review in an EA or 

EIS. CE-6 applies to “[t]imber stand and/or wildlife habitat 

improvement activities that do not include the use of 

herbicides or do not require more than 1 mile of low standard 

road construction,” which may include activities such as:

i. Girdling trees to create snags;

ii. Thinning or brush control to improve 

growth or to reduce fire hazard including 

the opening of an existing road to a dense 

timber stand;

iii. Prescribed burning to control understory 

hardwoods in stands of southern pine; 

and

iv. Prescribed burning to reduce natural fuel 

build-up and improve plant vigor.

36 C.F.R. § 220.6(e)(6).

Appellants challenge this action, contending that CE-6 

does not apply to the Tecuya Ridge Project because CE-6 

permits only precommercial thinning and the Project 

authorizes commercial thinning. The Forest Service 

believes that CE-6 applies to the Tecuya Ridge project 

because the Project does not include the use of herbicides or 
LOS PADRES FORESTWATCH V. USFS 25

require road construction and because thinning is a timber 

stand improvement activity. The Forest Service interprets 

CE-6 to allow it to commercially thin trees, as long as the 

commercial thinning is used to accomplish forest 

improvement activities.

We do not decide this question here. In the related case 

Mountain Communities for Fire Safety, Los Padres 

ForestWatch, and Earth Island Institute v. Kevin Elliott and 

the United States Forest Service, No. 20-55660 (9th Cir. 

Feb. 4, 2022), this Court agreed with the Forest Service’s 

reading of CE-6. Therefore, the sole remaining question 

before the Court is whether the Forest Service’s decision to 

apply CE-6 to the Project was arbitrary and capricious 

because it failed to analyze fuelbreak efficacy as a potential 

“extraordinary circumstance” that would prevent application 

of any CE to the Project.

B. The Forest Service’s Determination that No 

Extraordinary Circumstances Prevent its 

Application of CE-6 to the Project Is Not 

Arbitrary and Capricious.

Even if a proposed project fits within a CE category, the 

Forest Service cannot opt out of further analysis and 

documentation in an EA or EIS unless “there are no 

extraordinary circumstances related to the proposed action.” 

36 C.F.R. § 220.6(a). An “extraordinary circumstance” is a 

circumstance “in which a normally excluded action may 

have a significant environmental effect.” 40 C.F.R. 

§ 1508.4. 36 C.F.R. § 220.6(b) provides that:

(1) Resource conditions that should be 

considered in determining whether 

extraordinary circumstances related to a 

proposed action warrant further analysis 
26 LOS PADRES FORESTWATCH V. USFS

and documentation in an EA or an EIS 

are:

(i) Federally listed threatened or 

endangered species or designated 

critical habitat, species proposed 

for Federal listing or proposed 

critical habitat, or Forest Service 

sensitive species;

(ii) Flood plains, wetlands, or 

municipal watersheds;

(iii) Congressionally designated areas, 

such as wilderness, wilderness 

study areas, or national recreation 

areas;

(iv) Inventoried roadless area or 

potential wilderness area;

(v) Research natural areas;

(vi) American Indians and Alaska 

Native religious or cultural sites; 

and

(vii) Archaeological sites, or historic 

properties or areas.

36 C.F.R. § 220.6(b).

In addition to these resource conditions, Appellants 

contend that the Forest Service should have analyzed the 

Project’s impacts to public safety as an additional 
LOS PADRES FORESTWATCH V. USFS 27

“extraordinary circumstance.” Specifically, Appellants 

contend that the Project’s potential impact to public safety is 

an “extraordinary circumstance” that prevents the Forest 

Service from authorizing the Project pursuant to a CE 

because the Forest Service selected a project location that 

will not reduce the risk of wildfire to the Mt. Pinos 

Communities and is not consistent with the Mt. Pinos 

Community Wildfire Protection Plan.

That plan, developed in 2006 by the Mt. Pinos 

Communities Fire Safe Council, which includes 

representatives from the U.S. Forest Service, identifies three 

zones that comprise the wildland urban interface. The area 

where man-made structures are located, like homes, is called 

the “Defense Zone.” The “Threat Zone” is a one-quarter 

mile buffer around the Defense Zone that “needs specific 

and intense management and treatments” to “reduce the 

spread and intensity of fire developing or moving” towards 

the Defense Zone. The “Wildland Zone” is the area beyond 

the “Threat Zone.” Approximately ninety-three percent of 

the Proposed Project lies in the Wildland Zone, while the 

remaining seven percent of the Project is located in the 

Threat Zone.

Appellants contend that the Forest Service’s decision to 

construct a fuelbreak in the Wildland Zone, instead of in the 

Threat Zone, is arbitrary and capricious. They note that the 

original, 2006 version of the Community Wildfire Protection 

Plan did not include any projects located within the Wildland 

Zone, although the Plan was updated to add the Tecuya 

Ridge Fuel Break Project, as well as other projects located 

in the Wildland Zone, in 2009.
28 LOS PADRES FORESTWATCH V. USFS

Appellants also point to the results of a scientific study8

showing that “constructing fuel breaks in remote, 

backcountry locations will do little to save homes during a 

wildfire because most firefighters will be needed to protect 

the wildland-urban interface, and fires will not be stopped by 

those fuel breaks that are located farther away.” That study 

concluded that “[f]irefighter access to fuel breaks was the 

most influential factor in fuel treatment outcome” for the Los 

Padres Forest.

The Forest Service, however, was not required to 

examine impacts to public safety or fuelbreak location 

efficacy in analyzing whether extraordinary circumstances 

prevented the use of CE-6 for the Project. Consistent with 

36 C.F.R. § 220.6, the Forest Service analyzed each resource 

condition and determined that the Project would have “no 

significant impact” on each. Although the list of resource 

conditions located at 36 C.F.R. § 220.6(b) is not intended to 

be exhaustive, NEPA merely permits, rather than requires, 

the Forest Service to consider additional factors during its 

extraordinary circumstances review. See, e.g., NEPA 

Procedures, 73 Fed. Reg. 43,084, 43,091 (July 24, 2008) 

(“The list of resource conditions is intended as a starting 

place and does not preclude consideration of other factors or 

conditions by the responsible official with the potential for 

significant environmental effects.”). Courts have therefore 

rejected the contention that the Forest Service is required to 

analyze additional factors on top of the specified resource 

conditions in determining whether extraordinary 

circumstances prevent the application of a CE. See All. for 

the Wild Rockies, 979 F. Supp. at 1127 (finding that the Fish 

8 Syphard et al., Comparing the Role of Fuel Breaks Across Southern 

California National Forests, Forest Ecology and Mgmt., Feb. 2011, 

at 2038–48.
LOS PADRES FORESTWATCH V. USFS 29

and Wildlife Service did not need to analyze certain factors 

set out under a different regulation related to bull trout 

habitat in determining “no extraordinary circumstances” 

prohibited its application of CE-6 to a proposed project).

Regardless, the Forest Service’s decision to locate the 

Tecuya Ridge Project in the “Wildland Zone” instead of the 

“Threat Zone” was not arbitrary and capricious. The Los 

Padres National Forest Strategic Community Fuelbreak 

Improvement Project Fire/Fuels Report states that while 

most existing fuelbreaks are in “high hazard chaparral 

areas,” a few fuelbreaks, like the one contemplated here, “are 

in coniferous forest and serve to limit fire spread from or 

towards communities or timber stands in poor condition.” 

The Cuddy Valley/Tecuya Stand Improvement Projects 

Fire/Fuels Report also notes that “[t]o reduce the threat of 

spotting distance from firebrands (spotting potential), fuels 

would need to be reduced both near and at some distance

from the WUI [Wildland Urban Interface].” (emphasis 

added). The Decision Memo for the Project further explains 

that the Forest Service chose the project location to 

strategically “connect to past and future treatment areas on 

both public and adjacent private lands.” It was therefore 

reasonable for the Forest Service to conclude that the Project 

location will “provide a buffer between developed areas and 

wildlands,” one of the goals of the Mt. Pinos Community 

Wildfire Protection Plan.

Nor is there evidence that the proposed fuelbreak will be 

constructed in a “remote backcountry location” that will fail 

to facilitate firefighter access. The Tecuya Ridge fuelbreak 

will be located around communities within the wildlandurban intermix, including Pine Mountain Club, Pinon Pines 

Estates, Lake of the Woods, and Frazier Park. Sixty-six 

percent of the Project overlaps with the Antimony IRA, 
30 LOS PADRES FORESTWATCH V. USFS

which is linearly shaped and adjacent to major roadways. 

There are 3.9 miles of Forest system road, 1.1 miles of 

county roads, and approximately 1.5 miles of Forest 

permitted roads in the Antimony IRA. Firefighters may 

access the Antimony IRA via developed roads and trails. 

Thus, the fuelbreak location does not appear to be too remote 

for firefighters to approach in the case of wildfire.

Whether the location of the fuelbreak proposed for the 

Tecuya Ridge Project will serve to protect the Mt. Pinos 

Communities from wildfire is “a classic example of a factual 

dispute the resolution of which implicates substantial agency 

expertise.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 

376 (1989). Because the Forest Service has substantiated its 

decision to place the Tecuya Ridge Project within the 

Wildland Zone with evidence in the record, its decision was 

not arbitrary and capricious. The Court declines to substitute 

Appellants’ judgment for that of the agency on this point. 

See Morongo Band of Mission Indians v. Fed. Aviation 

Admin., 161 F.3d 569, 573 (9th Cir. 1998).

CONCLUSION

Because the Forest Service’s determination that the 

Tecuya Ridge Shaded Fuelbreak Project complies with the 

Roadless Area Conservation Rule is arbitrary and capricious, 

we VACATE the district court’s order granting summary 

judgment to Appellees and the Forest Service’s Decision 

Memo approving the Tecuya Ridge Shaded Fuelbreak 

Project and REMAND this case to the Forest Service to 

provide adequate substantiation for its determination that 21-

inch dbh trees are “generally small diameter timber” within 

the Project Area.
LOS PADRES FORESTWATCH V. USFS 31

R. NELSON, Circuit Judge, dissenting:

I agree with Sections I.B and II of the majority opinion. 

As the majority recognizes, the Forest Service “has 

adequately explained its determination that the Project will 

maintain or improve one of the roadless area 

characteristics.” Maj. Op. 14. The majority wrongly holds, 

however, that the Forest Service’s determination that 21-

inch dbh trees are “small diameter” was arbitrary or 

capricious under the Administrative Procedure Act. I 

therefore respectfully dissent as I would deny the petition for 

review.

Under the Roadless Rule, the Forest Service can only 

approve the commercial thinning of “generally small 

diameter timber.” Special Areas; Roadless Area 

Conservation, 66 Fed. Reg. 3244, 3273 (Jan. 12, 2001) 

(previously codified at 36 C.F.R. § 294.13). The majority 

assumes that this requires the Forest Service to explain in 

detail why 21 inches dbh is small diameter. But such a 

detailed explanation is not required. As long as the Forest 

Service considers the factors laid out in the relevant federal 

regulations, the agency need not provide a separate 

exhaustive explanation of what trees are generally small 

diameter.

As the majority acknowledges, the regulations do not 

define what constitutes “generally small diameter timber.” 

Maj. Op. 16. A single definition for “small diameter timber” 

makes no sense; such determinations must be projectspecific and guided by local ecological considerations in 

which the Forest Service has expertise. 66 Fed. Reg. 

at 3257. The regulations require only that the Forest Service 

use its expertise to determine which trees are small diameter 

depending on “the great variation in stand characteristics 

between vegetation types in different areas,” “the 
32 LOS PADRES FORESTWATCH V. USFS

characteristics and interrelationships of plant and animal 

communities associated with the site and the overall 

landscape,” and how the “cutting or removal” of trees will 

“affect the potential for future development of the stand.” Id. 

The Forest Service adequately complied with this 

administrative directive.

Over the course of preparing the Tecuya Ridge Project 

Proposal, the Forest Service thoroughly analyzed local 

plant-animal relationships and the future development of the 

tree stands in the Project, including how removal “would 

mimic the role and legacies of natural disturbance regimes.” 

See 66 Fed. Reg. at 3257. It completed a botany report, a 

fire fuels report, two decision memoranda, and a briefing 

paper that specifically analyzed whether the Project 

complied with CE-6 and the Roadless Rule. Silvicultural 

specialists surveyed and conducted exams and walkthroughs in the Project area. The Forest Service identified 

forest stands that were overstocked due to their size and 

density, subject to insect attack due to resource competition, 

and at imminent risk of creating a “fire ladder” fuel profile. 

It determined that forest stands over 120 square feet per acre 

needed to be thinned to at least 80 feet per acre. It calculated 

the size of trees that should be retained for California 

condors and northern goshawks. And it decided that—to 

meet the stated goals that the majority accepts, Maj. 

Op. 15—only smaller diameter trees up to 21 inches dbh 

should be cut for safety or operability reasons, especially 

early seral species including Jeffrey and pinyon pine.

After this comprehensive ecological analysis, the Forest 

Service concluded that trees under 21 inches dbh “needed to 

be thinned to meet the desired conditions of the proposed 

action to a 90 percent effective[ness] level.” As the majority 

notes, “[e]ven when an agency explains its decision with 
LOS PADRES FORESTWATCH V. USFS 33

‘less than ideal clarity,’ a reviewing court will not upset the 

decision on that account ‘if the agency’s path may 

reasonably be discerned.’” Alaska Dep’t of Env’t 

Conservation v. EPA, 540 U.S. 461, 497 (2004) (quoting 

Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 

419 U.S. 281, 286 (1974)). Here, the record allows us to 

reasonably discern the Forest Service’s “path” in 

considering the regulatory requirements. See id. That is 

enough to survive our deferential review for arbitrary or 

capricious agency action. See Nat’l Family Farm Coal. v. 

EPA, 966 F.3d 893, 923 (9th Cir. 2020) (agency decision is 

arbitrary or capricious “only if the agency relied on factors 

Congress did not intend it to consider, . . . or is so 

implausible that it could not be ascribed to a difference in 

view or the product of agency expertise” (citation omitted)).

The majority reaches the opposite conclusion by 

improperly comparing the Tecuya Ridge Project here to the 

Frazier Mountain Project, which it says “likely contains a 

similar stand composition.” Maj. Op. 18. One of three 

alternatives presented in that Project deemed trees large 

diameter at 10 inches dbh. True, the Tecuya Ridge Project 

and the Frazier Mountain Project are located nearby in the 

same national forest. But the Los Padres National Forest 

spans approximately 1.75 million acres, ranges in elevation 

by over 8,000 feet, and consists of two separate land 

divisions.1

 As the Forest Service explains, the two projects 

contain different compositions of tree species. Nothing in 

the record undermines that finding. Judges are hardly 

1 Los Padres National Forest, Nat’l Forest Found., 

https://www.nationalforests.org/our-forests/find-a-forest/los-padres

(last visited Oct. 28, 2021); Los Padres National Forest – Animals 

and Plants, U.S. Forest Serv., https://www.fs.usda.gov/detailfull/lpn

f/about-forest/?cid=FSM9_034061 (last visited Oct. 28, 2021).
34 LOS PADRES FORESTWATCH V. USFS

equipped, as the majority does, to second-guess the agency’s 

evaluation of a forest stand’s composition.2 Especially when 

the regulations require that the Forest Service’s analysis be 

done on a project-by-project basis, the agency need not 

explain why small diameter may vary between projects. We 

cannot rely on the Frazier Mountain Project to provide a 

workable definition of small diameter trees for the Tecuya 

Ridge Project. 66 Fed. Reg. at 3257 (determinations best 

made through “project specific . . . analyses”).

We likewise cannot assume, as the majority does, that 

because the Los Padres Land Management Plan describes 

large diameter trees as greater than 24 inches dbh, trees up 

to 21 inches dbh are “at best, . . . medium sized.” Maj. 

Op. 17. The Plan’s reference to 24 inches dbh as large 

diameter only refers to “shade intolerant conifer species.” 

According to the record, shade-intolerant conifers include 

ponderosa pine, which are not listed as within the Project. 

Nothing in the record suggests that the trees in the Project 

are shade intolerant. Further, if large diameter trees, sixteen 

years ago when the Plan was adopted, were “old growth” 

trees, then today those old growth trees would be even larger. 

Even if we could rely on the Plan’s reference, small diameter 

trees today would be smaller than or even up to 24 inches 

dbh. The federal regulations do not suggest that the Forest 

Service is bound by past data. Instead, they direct the Forest 

Service to consider the “potential for future development of 

the stand.” 66 Fed. Reg. at 3257. In reality, all trees can be 

2 For instance, the majority states that the Tecuya Ridge Project is 

filled with “Singleleaf pinyon-California juniper” trees. Maj. Op. 6. But 

“singleleaf pinyon” and “California juniper” are two different tree 

species, and “Single-leaf pinyon-California juniper” in the Los Padres 

Land Management Plan describes a woodland including trees of those 

two species.
LOS PADRES FORESTWATCH V. USFS 35

small or large diameter—as long as the record shows, as it 

does here, that the Forest Service adequately considered the 

regulatory factors.

Finally, the majority ignores basic rules of 

administrative law. The majority correctly notes that we 

cannot “require the Forest Service to undertake any 

particular method of providing a reasoned explanation for its 

choice.” Maj. Op. 20. But then it ignores that principle and 

finds that the Forest Service failed to provide “the average 

or median dbh of the trees.” Id. at 16–17. Neither the 

Roadless Rule nor the related regulations require such an 

analysis. To the contrary, the regulations list very different 

considerations—namely, local “vegetation types in different 

areas” and the “future development of the stand”—which 

seems to exclude the average or mean dbh as a basis for 

determining small diameter. 66 Fed. Reg. at 3257. Indeed, 

the majority’s requirement to analyze the average or mean 

dbh would be particularly detrimental to old growth forest 

stands because it would allow thinning of larger trees 

without consideration of the regulatory factors. Regardless, 

the court may not “impose upon the agency its own notion 

of which procedures are best.” Vt. Yankee Nuclear Power 

Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 549 (1978) 

(internal quotation marks omitted).

The right question is not “what trees objectively fall into 

the category of small diameter trees?”—it is “did the Forest 

Service perform project-specific analyses to support its 

conclusion that less-than-21-inch dbh trees should be 

thinned under project-specific circumstances?” The Forest 

Service did not seek to establish a one-size-fits-all rule that 

21 inches dbh was small diameter in all projects. Instead, it 

determined that the Tecuya Ridge Project included 

mechanically thinning trees that were less than 21 inches dbh 
36 LOS PADRES FORESTWATCH V. USFS

and that the portion of the Project encompassing the 

Antimony IRA complies with the Roadless Rule.3 The 

Forest Service explicitly stated that “[t]his diameter would 

be needed to be thinned to meet the desired conditions.” 

This conclusion was neither arbitrary nor capricious under 

the discretion granted to the Forest Service by federal 

regulations. I therefore respectfully dissent.

3 About 48 percent of the total 40,153 acres of the Antimony IRA, 

which overlaps with the Project, is pinyon woodlands, sagebrush, and 

other conifers. Tree thinning would occur on only 1,075 acres of the 

Antimony IRA, or less than 3 percent of the IRA.