FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREAT OLD BROADS FOR

WILDERNESS; THE WILDERNESS

SOCIETY,

Plaintiffs-Appellants,

v.

ABIGAIL KIMBELL, Chief, United

States Forest Service; MIKE

JOHANNS, Secretary of Agriculture;

EDWARD MONNING, HumboldtToiyabe National Forest Supervisor;

JACK TROYER, Intermountain

Regional Forester; UNITED STATES

FOREST SERVICE; UNITED STATES OF

AMERICA,

Defendants-Appellees.

No. 11-16183

D.C. No.

3:07-cv-00170-

RLH-RAM

OPINION

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Senior District Judge, Presiding

Argued and Submitted

November 6, 2012—San Francisco, California

Filed March 4, 2013
2 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court *

of Appeals for the Second Circuit, 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.

Before: Robert D. Sack, Ronald M. Gould, *

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Gould

SUMMARY

**

Environmental Law

The panel reversed in part and affirmed in part the district

court’s judgment in favor of the United States Forest Service

in an action challenging the Forest Service’s approval of the

restoration of a flood-damaged road in the Humboldt-Toiyabe

National Forest in Nevada.

The panel reversed the district court’s holding on

exhaustion, and held that each of the claims presented on

appeal were adequately exhausted by plaintiff’s submissions

to the Forest Service. The panel affirmed the district court’s

alternative holding on the merits, granting summary judgment

in favor of the Forest Service. The panel held that the Forest

Service’s Record of Decision conformed to the National

Forest Management Act, Executive Order 11988, and the

National Environmental Policy Act. 
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 3

COUNSEL

Alison Christine Flint (argued) and Michael Freeman,

Earthjustice, Denver, Colorado; Craig Coleman, Faegre

Baker Daniels LLP, Minneapolis, Minnesota; Henry Egghart,

Attorney, Reno, Nevada, for Appellants.

Elizabeth Ann Peterson (argued), Environment & Natural

Resources Division, Department of Justice, Washington,

D.C.; Andrew A. Smith, Assistant United States Attorney,

Albuquerque, New Mexico, for Appellees.

OPINION

GOULD, Circuit Judge:

This case arises out of the long and contentious process to

repair a flood-damaged road in a sensitive area of the

Humboldt-Toiyabe National Forest in Elko County, Nevada.

A related dispute reached us twice before, when we ordered

that Appellants Great Old Broads and the Wilderness Society

(collectively, “Great Old Broads”) be allowed to intervene in

court-directed settlement talks to determine how best to repair

or replace the road, rejecting timeliness and standing

challenges. See United States v. Carpenter (Carpenter I),

298 F.3d 1122, 1125 (9th Cir. 2002); United States v.

Carpenter (Carpenter II), 526 F.3d 1237, 1240 (9th Cir.

2008). Great Old Broads now appeals the district court’s

grant of summary judgment to the United States Forest

Service (“Forest Service”) on Great Old Broads’s claims

related to the Forest Service’s record of decision (“ROD”)

determining the method for restoring the South Canyon Road

as a part of the Jarbidge Canyon Project (the “Project”). The
4 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

Project was an effort to reestablish the South Canyon Road

after flood waters damaged the road in 1995, eliminating

vehicle access to the Snowslide Gulch Wilderness Portal in

the Jarbidge Wilderness. Great Old Broads sought review in

federal court, contending that the Forest Service’s approval

of the Project violated (1) the National Forest Management

Act (“NFMA”), 16 U.S.C. §§ 1600–1687, because the Project

offended the Fisheries and Wildlife Restoration standard FW2 of the Inland Native Fish Strategy (“INFISH”), which is

incorporated into the Humboldt National Forest Land and

Resource Management Plan (“Humboldt Plan”); (2)

Executive Order 11988, (“EO 11988”), 42 Fed. Reg. 26951

(1977); and (3) the National Environmental Policy Act of

1969 (“NEPA”), 42 U.S.C. §§ 4321–4370f.

The district court gave summary judgment to the Forest

Service, holding that Great Old Broads did not exhaust its

administrative remedies and, alternatively, that Great Old

Broads’s claims failed on the merits. We have jurisdiction

under 28 U.S.C. § 1291. We reverse the district court’s

conclusion on exhaustion and affirm its alternate decision on

the merits.

I. BACKGROUND

Jarbidge Canyon is in the northeast corner of Nevada,

between Twin Falls, Idaho, and Elko, Nevada. The Jarbidge

River flows north from the Jarbidge Wilderness into Idaho,

where it joins the Bruneau River and eventually the Snake

and Columbia Rivers. The Jarbidge River is home to the only

population of bull trout known to exist south of the Snake

River. This population has been isolated from other bull trout

for more than 100 years by a combination of human and

natural barriers.
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 5

The South Canyon Road (indexed as Forest Road # 064)

follows the West Fork of the Jarbidge River through Jarbidge

Canyon. The road dates to 1909, when gold was discovered

in the canyon, leading to one of the last gold rushes in the

United States and spurring development of access roads

throughout the canyon. The disputed segment of the road

was completed between 1911 and 1918. In 1974, the road

was closed above Snowslide Gulch because annual landslides

made maintenance impractical. Until 1995, the South

Canyon Road gave the only motorized-vehicle access to the

wilderness area at Snowslide Gulch. The road climbs one

mile from Pine Creek Campground to the Urdahl

Concentrated Use Area (“Urdahl”) and then another half mile

to Snowslide Gulch. In 1995, the Jarbidge River flooded,

making this part of the South Canyon Road unpassable to

passenger vehicles for at least the fifth time since 1970.

In 1997, the Forest Service prepared an environmental

assessment and made a finding of no significant impact

(“FONSI”) for the recommended repair of the entire South

Canyon Road. Trout Unlimited mounted an administrative

challenge to this FONSI, arguing that the proposed

reconstruction would harm the bull trout population and

habitat, and suggesting that harm would lead to the trout’s

listing under the Endangered Species Act (“ESA”). The

Regional Forester remanded the environmental assessment to

the Forest Service to consider Trout Unlimited’s claims.

In June 1998, the United States Fish and Wildlife Service

(“FWS”) proposed listing the Jarbidge River bull trout as a

threatened species under the ESA. At the same time, after

receiving comments on its 1997 environmental assessment

and conducting more analysis in response to Trout

Unlimited’s suit, the Forest Service published a second
6 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

environmental assessment. This 1998 environmental

assessment identified a hiking trail as the preferred

alternative, eliminating motorized access along the entire

relevant stretch of the South Canyon Road.

In response to this proposed ESA listing and the

recommendation of the 1998 environmental assessment, Elko

County unilaterally directed its road department to begin

repair of the South Canyon Road, citing its need to access the

South Canyon to fight forest fires. While rebuilding the road,

Elko County diverted the river into a straight channel. This

channelization lifted a plume of sediment that stretched 3.5

miles down the river and damaged the river bank. Elko

County’s repair work was blocked by the Nevada Division of

Environmental Protection, but the repairs had so damaged the

river habitat that FWS issued an emergency listing of the

Jarbidge bull trout as endangered in August 1998.

EmergencyListing of the Jarbidge River Population Segment

of Bull Trout as Endangered, 63 Fed. Reg. 42757, August 11,

1998. Predicting that “impacts from the road reconstruction

to bull trout habitat will likely remain for years,” FWS

permanently listed the bull trout as threatened on April 8,

1999. Endangered and Threatened Wildlife and Plants;

Determination of Threatened Status for the Jarbidge River

Population Segment of Bull Trout, 64 Fed. Reg. 17110, April

8, 1999.

The Forest Service and Elko County tried to negotiate a

plan to reopen the road over the next few months, but this

effort failed. Frustrated by lack of progress and determined

to enable vehicle access to the wilderness area, a local

citizens’ group calling itself the “Shovel Brigade” decided to

reopen the road by hand. In October of 1999, District Judge

Hagen blocked the Brigade’s plan to reopen the road and
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 7

 RS 2477 formerly provided that “the right of way for the construction 1

of highways over public lands, not reserved for public uses, is hereby

granted.” 43 U.S.C. § 932 (1970), repealed by Federal Land Policy

Management Act (“FLPMA”), Pub. L. No. 94-579, § 706(a), 90 Stat.

2743, 2793 (1976). The FLPMA preserved rights-of-way that existed

before 1976. 43 U.S.C. § 1769(a). Parties claiming RS 2477 easements

must show the road on which their claim is based was built before the land

it crosses lost its public character. Humboldt County v. United States,

684 F.2d 1276, 1281 (9th Cir. 1982).

required the Brigade, Elko County, and the Forest Service to

enter confidential mediation. Off-road vehicle (ORV) riders

continued to enter the South Canyon, undeterred by road

conditions and the Forest Service’s attempts to block access.

These ORVs established trails along the length of the

washed-out road and further damaged the river habitat.

After months of unsuccessful talks, the Shovel Brigade

again made plans to reopen the road by hand. This time the

Brigade styled its effort as a protest scheduled on July 4,

2000. The district court did not enjoin the Brigade from its

plan, and the Brigade successfully opened a rudimentary,

quarter-mile road. In response, the United States charged

members of the Shovel Brigade with trespassing and renewed

a suit against Elko County for damage caused by the

County’s earlier road work. Elko County entered a crossclaim to quiet title to a right of way in the South Canyon

Road under Revised Statute 2477 (RS 2477).1

Judge Hagen again ordered the Forest Service, Elko

County, and the Shovel Brigade (represented by named

defendant John Carpenter) into confidential settlement talks.

On March 2, 2001, the parties told the court that they had

reached an agreement. Carpenter I, 298 F.3d at 1124. In the

proposed settlement agreement (“Proposed Settlement”), (1)
8 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

the parties released all claims against each other; (2) the

Forest Service recognized Elko County’s RS 2477 right of

way and agreed to allow the County to restore the South

Canyon Road; and (3) Elko County and Carpenter agreed that

the United States had authority to manage the land in accord

with federal environmental laws and promised to obtain

Forest Service authorization before performing any work on

the South Canyon Road.

At this point, the details of the Proposed Settlement were

publicized, and Great Old Broads moved to intervene as a

defendant in Elko County’s Quiet Title Act claim. Id. Great

Old Broads claimed that the Proposed Settlement “improperly

ceded a property interest in the road to the County of Elko,

thereby substantially diminishing the environmental

protections for the adjacent wilderness areas.” Id. The

district court rejected Great Old Broads’s motion as untimely

and accepted the Proposed Settlement. Id. Great Old Broads

appealed. We vacated the approval of the Proposed

Settlement and ordered that Great Old Broads be allowed to

intervene. Id. at 1125.

Great Old Broads renewed its motion to intervene in the

district court on the Quiet Title Act claim and filed

Administrative Procedure Act (“APA”) cross-claims against

the United States, challenging the settlement under NEPA,

the Federal Land Policy and Management Act, 43 U.S.C.

§ 1701 et seq., and Forest Service regulations, 36 C.F.R.

§ 251. Carpenter II, 526 F.3d at 1239. The district court

held that Great Old Broads lacked standing to challenge Elko

County’s Quiet Title Act claim. Id. And although the district

court allowed Great Old Broads to intervene on its other

claims, it dismissed them on the ground that the Attorney

General’s decision to settle was not reviewable under the
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 9

APA. Id. Nevertheless, the district court recognized that “the

government circumvented certain procedural mandates

imposed by Congress,” so the district court stayed its

approval until the United States demonstrated that the

Proposed Settlement complied with the environmental

statutes and regulations raised in Great Old Broads’s crossclaims. Id. at 1239–40.

After entering this order, Judge Hagen retired, and Judge

Hunt succeeded to judicial responsibility on the case. Id. at

1240; see Wilderness Soc’y v. U.S. Forest Serv.,

3:07-CV-00170-RLH, 2011 WL 1042612 (D. Nev. Mar. 17,

2011). Judge Hunt lifted the stay, relieving the government

of its obligation to demonstrate that the Proposed Settlement

did not violate the environmental laws identified by Great

Old Broads. Carpenter II, 526 F.3d at 1240. After lifting the

stay, Judge Hunt held hearings on the merits of the Proposed

Settlement. Id. Great Old Broads was not permitted to

present evidence or participate as a party. Id. After these

hearings, the district court approved the Proposed Settlement,

and Great Old Broads appealed. Id.

We again reversed the district court, holding that its

ruling that Great Old Broads did not have standing to

intervene in the Quiet Title Act claim was foreclosed by our

earlier decision. Id. (citing Carpenter I, 298 F.3d at

1125–26). We further held that Great Old Broads’s crossclaims were reviewable under the APA. Id. at 1241–42. We

vacated the approval of the Quiet Title Act settlement and

reversed the dismissal of Great Old Broads’s cross-claims.

Id. at 1243.

While Great Old Broads litigated its right to intervene,

Elko County and the Forest Service worked to put the
10 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

Proposed Settlement into effect. Elko County proposed a

plan to reestablish the road on August 16, 2002, as called for

by the Proposed Settlement. In April 2003, the Forest Service

published a draft Environmental Impact Statement (“EIS”),

that analyzed the Elko County proposal, and six other

management alternatives for the Project. Great Old Broads

commented on the draft EIS.

In April 2005, the Forest Service issued a draft Record of

Decision (“ROD”). The draft ROD did not adopt any of the

alternatives analyzed in the draft EIS to form the management

alternative selected for the Project (the “Selected

Alternative”). Instead, the Selected Alternative was a

combination of elements from the following draft EIS

alternatives:

Alternative 1 (The No-Action Alternative)

left the road in its condition as of early 2005,

including the primitive restoration work

performed by the Shovel Brigade and the

routes defined by unauthorized users.

Alternative 3 restored the road up to Urdahl

but replaced it with a hiking trail from there,

providing non-motorized access to Snowslide

Gulch. Alternative 3 required the

construction of two new bridges and several

new road segments.

Alternative 4 (The Elko County Proposal)

relocated the river and road to their 1995 preflood locations, providing passenger-vehicle

access to Snowslide Gulch.
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 11

The Selected Alternative largely followed Alternative 4,

restoring the road for the mile from Pine Creek Campground

to Urdahl, but it incorporated the hiking trail analyzed in

Alternative 3 from Urdahl to Snowslide Gulch. Alternative

3 reclaimed the road above Urdahl, so the Selected

Alternative allowed only non-motorized access in the last

half-mile to the wilderness area. The Selected Alternative

also avoided river and road relocation and bridge construction

in Alternatives 3 and 4 by replacing those features with lowwater crossings from the user-defined routes in Alternative 1.

The Selected Alternative did not recognize Elko County’s

claim to title in a right of way through the South Canyon.

The Selected Alternative incorporated no part of Great

Old Broads’s preferred alternative, Alternative 2, which

would have replaced the road with a hiking trail from Pine

Creek Campground to Snowslide Gulch, or Alternatives 5

and 6, which would have raised the road above the Jarbidge

River floodplain. Alternative 7, like Alternative 1,

contemplated no repairs to the road. It differed from

Alternative 1 in that it included a Road Management Plan and

Water Projects.

On April 13, 2005, Great Old Broads submitted a

comment letter on the ROD. Great Old Broads wrote that the

Selected Alternative represented a “substantial improvement”

over Elko County’s proposal, but Great Old Broads continued

to object to any decision to reconstruct the South Canyon

Road above Pine Creek Campground. Great Old Broads

urged that the Forest Service adopt Alternative 2, which the

Forest Service found would result in the lowest impacts from

erosion and mass wasting events. Great Old Broads also

argued that the Selected Alternative, unlike Alternative 2, was

legally infirm for three reasons: (1) the Selected Alternative
12 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

“would not meet the INFISH standards that are incorporated

into the [Humboldt Plan]”; (2) by rebuilding the South

Canyon Road, the Selected Alternative “contravenes [EO

11988] because it does not avoid the Jarbidge River

floodplain”; and (3) the Selected Alternative “represents a

significant change that merits further environmental

analysis.”

The Forest Service issued the final ROD and final EIS at

the end of April, adopting the Selected Alternative in a form

essentially unchanged from the draft ROD. The final EIS

analyzed the same seven alternatives considered in the draft

EIS and did not add additional analysis of the Selected

Alternative. The final ROD included a more detailed

explanation of the Selected Alternative, and the Forest

Supervisor explained that he “considered all views that have

been expressed” and that “[t]hese comments have helped me

make a better informed decision.” Neither the ROD nor the

final EIS attached or responded to Great Old Broads’s

comments in its April 13 letter.

On June 14, 2005, Great Old Broads filed an

administrative appeal of the decision to approve the ROD and

the final EIS “to protect [its] rights to challenge the decision”

if Elko County were to appeal. In its appeal letter, Great Old

Broads once again advocated the non-motorized trail

considered as Alternative 2. Great Old Broads also

contended that the Selected Alternative was arbitrary,

capricious, and did not comply with applicable law “[f]or the

reasons stated in the attached comment letters.” Of seven

attached letters, labeled Exhibits 1–7, the first five related to

the draft EIS. Exhibit 6 was the April 13 letter on the draft

ROD. Exhibit 7 commented on the draft biological opinion

that coincided with the draft ROD.
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 13

On July 5, Great Old Broads told the Forest Service that

it would not withdraw its appeal “[i]n light of the Shovel

Brigade’s administrative appeal, and Elko County’s decision

to re-commence litigation.” See United States v. Carpenter,

3:99-CV-00547-RLH, 2012 WL 3686872 (D. Nev. Aug. 27,

2012). The July 5 letter set out fuller descriptions of the

issues on which Great Old Broads contested the Selected

Alternative and responded to arguments made by Elko

County and the Shovel Brigade in their respective appeals.

Great Old Broads characterized the decision to leave the road

open from Pine Creek Campground to Urdahl as “an effort to

compromise with Elko County, and thus resolve this dispute

without further litigation.” “In light of the intransigence of

Elko County and the Shovel Brigade,” Great Old Broads

again urged the Forest Service to adopt a hiking trail as

analyzed in Alternative 2. The Forest Service’s Appeal

Deciding Officer notified Great Old Broads that the July 5

letter was untimely and would not be considered. See

36 C.F.R. § 215.15 (appeal time periods for National Forest

System Projects).

On July 21, 2005, the Forest Service denied Great Old

Broads’s appeal and affirmed the decision approving the

ROD and final EIS. The Appeal Deciding Officer did not

consider issues raised in the attachments because Great Old

Broads’s appeal letter did not explain how the initial decision

had failed to consider substantive comments and did not

identify the unconsidered aspects of the attached letters.

Based on this limited review, the Appeal Deciding Officer

held that the decision was “reasonable, based on

documentation in the record and consistent with the

[Humboldt] Plan.”
14 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

Great Old Broads timely filed an action in the U.S.

District Court for the District of Nevada seeking review of the

Forest Service’s actions. The district court granted the Forest

Service’s motion for summary judgment, holding that Great

Old Broads did not exhaust its administrative remedies on

any claim and that, in the alternative, Great Old Broads’s

claims failed on the merits. This appeal followed.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment

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

1217, 1220 (9th Cir. 2011). Section 706 of the APA governs

judicial review of agency decisions under the NFMA, NEPA,

and EO 11988. 5 U.S.C. § 706; see Native Ecosystems

Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002)

(applying arbitrary and capricious standard to NEPA and

NFMA claims); City of Carmel-By-The-Sea v. U.S. Dep’t of

Transp., 123 F.3d 1142, 1166 (9th Cir. 1997) (applying

arbitrary and capricious standard to EO 11988 claims). We

will not overturn agency action unless it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

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

Agency action is arbitrary and capricious if “the agency

has relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in

view or the product of agency expertise.” City of Sausalito v.

O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004) (citations

omitted). A reviewing court “generally must be ‘at its most

deferential’ when reviewing scientific judgments and
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 15

technical analyses within the agency’s expertise.” N. Plains

Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,

1075 (9th Cir. 2011) (quoting Balt. Gas & Elec. Co. v.

Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).

III. DISCUSSION

A. Exhaustion of Administrative Remedies

The Forest Service contends, and the district court held,

that Great Old Broads failed to exhaust its challenge to the

ROD. We disagree.

The exhaustion doctrine serves “to permit administrative

agencies to utilize their expertise, correct any mistakes, and

avoid unnecessary judicial intervention in the process.”

Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.

2010) (en banc) (citing Buckingham v. U.S. Dep’t of Agric.,

603 F.3d 1073, 1080 (9th Cir. 2010)). The APA requires that

plaintiffs exhaust available administrative remedies before

bringing grievances to federal court, 5 U.S.C. § 704,

including the specific appeal procedures established by the

Secretary before bringing an action in court against the

Secretary of Agriculture. 7 U.S.C. § 6912(e); 36 C.F.R.

§ 215. Plaintiffs need not frame issues in “precise legal

formulations,” so long as “the appeal, taken as a whole,

provide[s] sufficient notice to the Forest Service to afford it

the opportunity to rectify the violations that the plaintiffs

alleged.” Native Ecosystems Council, 304 F.3d at 899–900.

When appellants object to a Forest Service decision, “claims

raised at the administrative appeal and in the federal

complaint must be so similar that the district court can

ascertain that the agency was on notice of, and had an
16 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

opportunity to consider and decide, the same claims now

raised in federal court.” Id. (quotation removed).

The Forest Service and the district court, when reviewing

Great Old Broads’s claims, considered only the appeal letter

itself and not the attachments. The Appeal Deciding Officer

did not consider the attached comment letters because the

appeal letter did not explain which parts of which comments

in the attached letters were relevant to each element of the

appeal. But Forest Service regulations provide that

attachments are a part of an appeal, see 36 C.F.R. § 215.15(a)

(“Written appeals, including any attachments, must be filed”),

and we have previously allowed judicial review of claims

made in comment letters on a draft EIS when those comment

letters were not even attached to formal appeals. See Great

Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir.

2006).

The district court mistakenly seems not to have

recognized that Great Old Broads commented on the ROD at

all. In ruling that Great Old Broads did not exhaust its

administrative remedies, the district court found that “the

attached comment letters address the draft EIS rather than the

actual 2005 Decision.” Wilderness Soc’y, 2011 WL 1042612,

at *4. But one of the attachments, the letter of April 13,

2005, did address the ROD. That letter clearly asserted the

three issues that were raised in the appellate briefing: (1) that

the selected decision did not meet INFISH standards; (2) that

keeping the road open offended Executive Order 11988

because it did not avoid the Jarbidge River floodplain; and (3)

that the selected alternative, while an improvement,

represented a “significant change that merits further

environmental analysis,” and that the decision “did not
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 17

provide a full analysis of the environmental impacts now

being considered over time.”

This was not a case where the agency was asked to piece

together an appeal from a mountain of undifferentiated

comment letters. Great Old Broads attached its comment

letters as distinct exhibits. Any careful reviewer should have

recognized that one of the seven addressed the ROD and

should also have been able to see that the others gave added

context for the appeal. In the one letter addressing the ROD,

Great Old Broads succinctly stated three legal objections.

The appeal, taken as a whole, includes the attached comment

letters.

The Forest Service argues that even if Great Old Broads’s

April 13 letter were properly considered as part of its appeal,

the attachment was insufficient to exhaust Great Old Broads’s

claims under our recent decision in Native Village of Kivalina

IRA Council v. U.S. Environmental Protection Agency,

687 F.3d 1216 (9th Cir. 2012), because Great Old Broads did

not explain why it believed the ROD did not consider the

claims made in its April 13 comment letter. See 36 C.F.R.

§ 215.14(b)(8). This argument contradicts Great Basin Mine

Watch and misreads Kivalina.

In Kivalina, the Village of Kivalina petitioned for review

of a National Pollutant Discharge Elimination System permit

that allowed the discharge of wastewater from a mine into the

Wulik River, which enters the Chukchi Sea near Kivalina. Id.

at 1218. The Environmental Appeals Board (“EAB”) of the

Environmental Protection Agency (“EPA”) declined to

review the permit, concluding that Kivalina “had not satisfied

the procedural requirementsto obtain review under 40 C.F.R.

§ 124.19(a) because it did not demonstrate why the [EPA’s]
18 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

responses to comments were clearly erroneous or otherwise

warranted review.” Id. In denying Kivalina’s petition, we

noted that the EAB has consistently applied § 124.19(a) to

deny review “where petitioners merely reiterate or attach

comments previously submitted regarding a draft permit and

do not engage the EPA’s responses to those comments.” Id.

at 1220. This policy is similar to the Forest Service’s appeal

requirement that appellants demonstrate “[w]hy the appellant

believes the Responsible Official’s decision failed to consider

the substantive comments.” 36 C.F.R. § 215.14(b)(8).

Because of this similarity, the Forest Service contends that

our analysis in Kivalina controls here.

We reject the Forest Service’s argument for several

reasons. First, despite the facial similarity of the two

standards, Kivalina arose in an entirely different legal

context. The exhaustion of administrative remedies was not

at issue in Kivalina. See 687 F.3d at 1218–22. Thus,

Kivalina’s holding does not apply to the exhaustion issue

here, although its reasoning may be considered to the extent

persuasive on exhaustion. Instead of addressing an issue of

exhaustion of administrative remedies, Kivalina reviewed the

EAB’s decision to decline to review the grant of an EPA

permit. Id. We have consistently “defined the exhaustion

requirement broadly,” Great Basin Mine Watch, 456 F.3d at

965. But by contrast we held in Kivalina that the EAB’s

“power of review should be only sparingly exercised.”

687 F.3d at 1219 (quotation removed). Unlike judicial

review of agency actions under the APA, EAB review is only

available to petitioners who have: (1) demonstrated that the

challenged permit decision was clearly erroneous or (2)

convinced the EAB to exercise its discretion to review the

permit. Id. (quoting 40 C.F.R. § 124.19(a)). These different

standards of review do not aid the Forest Service’s argument
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 19

seeking to avoid review on the merits. Because Kivalina

addressed a more restrictive threshold for review than that

faced by Great Old Broads, Kivalina does not control the

outcome here.

Second, although the two situations have some similarity,

and Kivalina’s reasoning is instructive, this reasoning tends

to support Great Old Broads’s position on exhaustion, not that

of the government. In Kivalina, the EAB refused to consider

Kivalina’s challenge because Kivalina did not “engage the

EPA’s responses to public comments.” Id. at 1221. In its

decision to issue the permit, the EPA reproduced and

addressed several public comments, including comments by

Kivalina, on the monitoring provisions at issue. Id. at

1220–22. Rather than engaging with the EPA’s responses to

comments and explaining why those responses did not answer

Kivalina’s expressed concerns or justify the permitting

decision, Kivalina raised entirely new issues. See, e.g., id. at

1221. Here, by contrast, the Forest Service did not

acknowledge or respond to Great Old Broads’s April 13 letter

in the final EIS or the final ROD. The final EIS answered

Great Old Broads’s comments on the draft EIS, and the

Appeal Deciding Officer cited those responses when denying

Great Old Broads’s administrative appeal. But the only

indication that the Forest Service had considered the April 13

letter at all was the Forest Supervisor’s conclusory statement

that he had “considered all views that have been expressed.”

Where, as in Kivalina, an agency reproduces and responds

to comments, parties seeking review have a chance to bring

their own expertise to bear and explain why the agency’s

responses to comments do not dispose of their complaints.

Even in the sparingly-exercised EAB review, petitioners are

only required to “engage the EPA’s responses to [their]
20 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

comments.” Kivalina, 687 F.3d at 1220 (emphasis added).

But here the Forest Service did not clearly respond to Great

Old Broads’s comments in its April 13 letter, so the Forest

Service cannot reasonably require Great Old Broads to

explain why the “decision failed to consider th[ose]

substantive comments.” See 36 C.F.R. § 215.14(b)(8).

Stated another way, when an agency clearly responds to

comments, it creates a rebuttable presumption that it has

considered and answered the commenter’s concerns. To

overcome that presumption, the commenting party must

engage with those responses and at least say why they are

thought to be inadequate. If an agency does not respond,

however, appellants have nothing with which to engage.

To be presented on appeal, each of Great Old Broads’s

three claims must have been exhausted before the Forest

Service. We first address Great Old Broads’s contention that

the ROD violates the NFMA because it did not comply with

INFISH standard FW-2, which governs “fish and wildlife

interpretive and other user-enhancement facilities.” In its

April 13 letter, Great Old Broads argued that the Selected

Alternative did “not meet the INFISH standards that are

incorporated into the [Humboldt Plan].” Great Old Broads

cited pages in the draft EIS that described FW-2 as “one

INFISH standard and guideline . . . that pertains to fish and

wildlife for the Jarbidge Canyon EIS.” FW-2 is the first

standard listed under the first heading in the cited pages, and

its prominence put the Forest Service on notice that Great Old

Broads took issue with the ROD’s compliance with FW-2.

Second, Great Old Broads contends that the ROD violates

EO 11988, which limits agency actions in floodplains. In the

same April 13 letter, Great Old Broads argued that the

decision “contravenes Executive Order 11988, because it
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 21

does not avoid the Jarbidge River floodplain.” EO 11988 is

focused exclusively on preventing unnecessary development

in floodplains and limiting the harmful effects of actions that

must be sited in floodplains. By citing EO 11988, Great Old

Broads exhausted this claim.

Great Old Broads also exhausted its third claim, that the

Forest Service violated NEPA by not preparing a

supplemental EIS (“SEIS”) for the Selected Alternative. In

its April 13 letter, Great Old Broads explained that the

Selected Alternative, “while a major improvement over [draft

EIS] Alternative 4, represent[ed] a significant change that

merits further environmental analysis.” On this issue as with

the preceding two, Great Old Broads’s April 13 letter

“allow[ed] the agency to give the issue meaningful

consideration.” Great Basin Mine Watch, 456 F.3d at 971

(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764

(2004)).

We hold that the three claims presented on this appeal

each were adequately exhausted by Great Old Broads’s

submissions to the Forest Service, and we reach the merits of

Great Old Broads’s appeal.

B. Consideration of Claims on the Merits

Great Old Broads suggests three theories why the ROD

was an arbitrary and capricious action by the Forest Service:

(1) that the ROD violated the NFMA; (2) that the ROD

violated EO 11988; and (3) that the ROD violated NEPA.

The district court in its alternative holding granted summary

judgment in favor of the Forest Service on all three theories,

and we discuss each in turn.
22 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

1. The National Forest Management Act

The NFMA directs the Forest Service to develop a

comprehensive land and resource management plan (“Forest

Plan”) for each unit in the national forest system. 16 U.S.C.

§ 1604(a). Forest Plans aim to balance environmental and

economic concerns, while furthering the NFMA’s purpose to

“provide for diversity of plant and animal communities” in

national forests. Native Ecosystems Council v. Weldon,

697 F.3d 1043, 1056 (9th Cir. 2012) (quoting 16 U.S.C.

§ 1604(g)(3)(B)). After a Forest Plan has been developed and

implemented, the NFMA prohibits site-specific activities that

are inconsistent with the governing Forest Plan. Lands

Council v. Powell, 395 F.3d 1019, 1033 (9th Cir. 2005). The

Forest Service’s “interpretation and implementation of its

own forest plan is entitled to substantial deference.” Native

Ecosystems Council, 697 F.3d at 1056; see also Auer v.

Robbins, 519 U.S. 452, 461 (1997) (An agency’s

interpretation of its own regulations is controlling unless

“plainly erroneous or inconsistent with the regulation.”).

Great Old Broads contends that the ROD does not comply

with the Humboldt Plan because it violates FW-2, one of

INFISH’s fish and wildlife restoration standards.

The Humboldt Plan governs the Forest Service’s sitespecific decisions in the Jarbidge Canyon. The Humboldt

Plan was amended in 1995 by INFISH to give more

protections for habitat and populations ofresident native fish,

including the bull trout. See Inland Native Fish Strategy:

Decision Notice and Finding of No Significant Impact (1995)

(INFISH 95); see also Inland Native Fish Strategy, 60 Fed.

Reg. 39927, August 4, 1995. For watersheds occupied by

inland native fish, INFISH supplies Riparian Management

Objectives (“RMOs”) that set goals for pool frequency,
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 23

density of large woody debris, bank stability, width-to-depth

ratio, and water temperature. These categories identify

characteristics of healthy fish habitat. INFISH does not

require RMOs to be achieved as soon as they are announced;

instead, they serve as benchmarks against which progress can

be measured and degradation prevented.

For individual rivers, the Forest Service designates buffer

zones around Riparian Habitat Conservation Areas

(“RHCAs”). Parts of the South Canyon Road are in the

Jarbidge River RHCA. To promote attainment of RMOs,

INFISH sets standards and guidelines for activities inside

these buffer zones, including road-building, mining, logging,

and restoring fisheries and wildlife habitat. INFISH 95 A-6

to A-13. One standard, FW-2, requires the Forest Service to:

Design, construct, and operate fish and

wildlife interpretive and other userenhancement facilities in a manner that does

not retard or prevent attainment of the

Riparian Management Objectives or adversely

affect inland native fish. For existing fish and

wildlife interpretive and other userenhancement facilities inside Riparian Habitat

Conservation Areas, assure that Riparian

Management Objectives are met and adverse

effects on inland native fish are avoided.

Where Riparian Management Objectives

cannot be met or adverse effects on inland

native fish avoided, relocate or close such

facilities.

INFISH 95 A-13.
24 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

 Because we hold that FW-2 does not apply to road reconstruction, we 2

do not reach Great Old Broads’s second contention. We note, however,

that the ROD finds that the combined alternatives and the mitigation

strategies in the Selected Alternative would not retard attainment of the

RMOs under INFISH. This finding, which is due substantial deference as

the product of the Forest Service’s technical expertise, see Native

Ecosystems Council, 697 F.3d at 1056, could possibly prevent FW-2 from

mandating the closure of the road even if it did apply to the road.

Great Old Broads contends that several findings in the

final EIS show that the ROD violates Fisheries and Wildlife

Restoration standard FW-2, and therefore the Humboldt Plan

and the NFMA. In the final EIS, the Forest Service identified

FW-2 as “one INFISH standard . . . that pertains to fish and

wildlife for the Jarbidge Canyon EIS.” When analyzing each

alternative in the final EIS, the Forest Service assessed

whether it would or would not comply with FW-2 and

described the effect each alternative would have on the

RMOs. The alternatives that were combined to form the

Selected Alternative all had negative effects on RMOs. Great

Old Broads contends that these references to FW-2 in the

final EIS show (1) that the standard applies to the road

reconstruction and (2) that the ROD violates the standard, so

the road must be “relocated or closed.”2

We disagree. The final EIS does indicate that FW-2

applies in the Project. But even if FW-2 does apply to “fish

and wildlife in the Jarbidge Canyon EIS,” it requires action

only for “fish and wildlife interpretive and other

user-enhancement facilities.” The term “user enhancement

facilities” does not appear to apply to roads but instead, as the

Forest Service suggests, to trailhead facilities such as parking
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 25

 The Selected Alternative removed toilets at Urdahl and Snowslide 3

Gulch, as FW-2 would require.

areas and toilets. By contrast, INFISH “Roads 3

Management” standards explicitly apply to the Jarbidge

Canyon Road. INFISH 95 A-7 to A-8. The final EIS

described these as the “standards and guidelines for road

management that pertain to the Jarbidge Canyon project,” and

the ROD explained that the Selected Alternative complied

with INFISH by reference to Roads Management standards

RF-2 to RF-4. Like FW-2, the Roads Management standards

are concerned with attainment of RMOs. They promote

attainment of RMOs by requiring various design

modifications and mitigation strategies, many of which were

included in the ROD. Unlike FW-2, the Roads Management

standards do not require that roads be relocated or closed

unless the roads are obsolete.

The text of related INFISH standards also guides against

reading “user-enhancement facilities” to include roads. The

introduction to the collected standards and the Minerals

Management standard MM-2 include both “roads” and

“facilities” on lists, showing that INFISH considered

“facilities” and “roads” to be distinct categories. INFISH 95

A-6, A-10. There is no evidence in the final EIS that FW-2

applies beyond what its plain language indicates.

We will defer to the Forest Service’s interpretation of

FW-2 unless it is plainly erroneous or inconsistent with the

standard. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,

565 F.3d 545, 557 (9th Cir. 2009). It is neither. We hold that

the Forest Service’s interpretation of FW-2 is reasonable and

that the ROD does not violate the NFMA.
26 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

2. Executive Order 11988: Floodplain Management

EO 11988 calls on “federal agencies taking action ‘in or

affecting a floodplain’ to think twice.” Carmel-By-The-Sea,

123 F.3d at 1166. This executive order discourages

unnecessary development in floodplains. Agencies must

avoid siting actions in floodplains unless the head of the

agency finds there is no practicable alternative. 42 Fed. Reg.

26951 § 2(a)(2) (1977). If there is no practicable alternative,

the agency must “(i) design or modify its action in order to

minimize potential harm to or within the flood plain,” and

“(ii) prepare and circulate a notice containing an explanation

of why the action is proposed to be located in the flood

plain.” Id. We will set aside agency findings under EO

11988 only if they are arbitrary, capricious, or an abuse of

discretion. Carmel-By-The-Sea, 123 F.3d at 1166.

Great Old Broads contends that the Forest Service did not

comply with any of EO 11988’s three requirements,

beginning with the fact that it made no formal finding that

there was no practicable alternative to siting the road in the

Jarbidge Canyon floodplain. But the South Canyon Road had

been sited in the floodplain for years before the area was

added to the national forest system—long before EO 11988

was contemplated. Great Old Broads claims that this appeal

to the status quo is a prohibited post-hoc argument. But the

final EIS explained that the proposed action was “to authorize

the reestablishment of the South Canyon Road,” and the

Forest Service characterized the preexisting road, situated in

the floodplain, as the no-action alternative in the final EIS

and the ROD. Great Old Broads has not challenged those

characterizations and provides no authority showing that EO

11988 requires the relocation of existing roads that require

restoration or improvement. Longstanding custom and usage
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 27

of a community is not irrelevant to a sensible application of

environmental law. In considering options for the South

Canyon Road, the Forest Service was not siting a new project

but was crafting the next “phase in an essentially continuous

activity.” See Sierra Club v. Hassell, 636 F.2d 1095, 1099

(5th Cir. 1981) (quoting City & County of San Francisco v.

United States, 615 F.2d 498, 501 (9th Cir. 1980)). The Forest

Service was entitled to rely on the established location of the

South Canyon Road to comply with this first element of EO

11988.

EO 11988 separately requires that agencies “prepare and

circulate a notice containing an explanation of why the action

is proposed to be located in the floodplain.” 42 Fed. Reg.

26951 § 2(a)(2). This notice should be included in the

agency’s NEPA statement. Id. § 2(a)(1). As Great Old

Broads admits, this notice requirement is “closely related” to

the requirement that the agency make a finding of no

practicable alternative. Where the latter has been fulfilled,

courts have not found the former to be insufficient. See e.g.,

Carmel-by-the-Sea, 123 F.3d at 1166; Hassell, 636 F.3d at

1100. In addition to the indicators discussed above that show

the Forest Service complied with the requirement that it make

a finding of impracticability, the Forest Service advised

readers in the final EIS that it was considering the commands

of EO 11988, and the final EIS explicitly analyzed two

out-of-floodplain alternatives. This was sufficient notice.

Finally, EO 11988 requires an agency taking action in a

floodplain to “design or modify its action in order to

minimize potential harm to or within the floodplain.” 42 Fed.

Reg. 26951 § 2(a)(2). In forming the Selected Alternative,

the Forest Service took elements from Alternatives 1, 3, and

4 and modified the combination to minimize the road’s
28 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

impact on the floodplain. These modifications included: (1)

Replacing the upper part of the road with a hiking trail to

ameliorate mass wasting, which provided for “road

reclamation in the most unstable portion of the canyon

bottom.” (2) Choosing not to widen or realign the road,

which “decrease[d] the amount of sediment entering the river

over time” and avoided the “increased erosion noted for other

road alternatives.” (3) Replacing proposed structures in

Alternatives 3 and 4 with low-water crossings. The proposed

structures would have “impede[d] flow during high-water

events” and prevented the “pass-through of debris from large

flows.”

Great Old Broads contends these modifications were not

enough because EO 11988 requires an agency to “modify its

action in order to minimize potential harm to or within the

floodplain.” Id. § 2(a)(2). Great Old Broads argues that

“minimize” means the Forest Service must reduce potential

harm to “the smallest quantity, number, or degree possible or

permissible.” Webster’s New Twentieth Century Dictionary

1145 (2d ed.). But when we have considered the word

“minimize” in similar contexts, we have held any mitigation

only needs to be reasonable. The Department of

Transportation Act of 1970 mandates that all measures

“technically possible . . . be implemented” to “minimize

harm” to public parks. 49 U.S.C. § 1653(f)(2). We held that

“implied within the statement ‘all measures,’ is the condition

that such efforts to minimize harm be feasible and prudent, or

reasonable.” Adler v. Lewis, 675 F.2d 1085, 1094 (9th Cir.

1982). This understanding of “minimize” parallels the

definition of “practicable” that we have used when reviewing

actions under EO 11988. In Carmel-by-the-Sea, we

understood “practicable” to mean: “capable of being done

within reasonable natural, social, or economic constraints.”
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 29

123 F.3d at 1166 n.20 (quoting 23 C.F.R. § 650.105(k)). In

applying EO 11988, the D.C. Circuit held that the National

Park Service fulfilled its obligation to minimize impacts

when it “affirmatively required design changes to ameliorate

adverse effects on the floodplain.” Daingerfield Island

Protective Soc. v. Babbitt, 40 F.3d 442, 447 (D.C. Cir. 1994).

The D.C. Circuit did not analyze the degree to which those

modifications would ameliorate any adverse affects. Id.

The changes the Forest Service made in finalizing the

Selected Alternative possibly do not limit the floodplain

impacts of the ROD to the smallest degree possible, but they

were reasonable, affirmatively-required design changes that

the Forest Service determined would ameliorate adverse

effects on the floodplain. We will not second-guess that

determination. The Forest Service’s actions were not

arbitrary or capricious under EO 11988.

3. National Environmental Policy Act

Great Old Broads contends that “combining Alternatives

1, 3, and 4 dramatically changed their environmental impacts,

[so] the Forest Service violated NEPA by failing to prepare

a supplemental EIS (SEIS).” We review the Forest Service’s

decision not to prepare an SEIS under the arbitrary or

capricious standard. Russell Country Sportsmen v. U.S.

Forest Serv., 668 F.3d 1037, 1044 (9th Cir. 2011), cert.

denied, 132 S. Ct. 2439 (2012). We review de novo the

district court’s grant of summary judgment that no SEIS was

required. Friends of the Clearwater v. Dombeck, 222 F.3d

552, 556 (9th Cir. 2000). We affirm.

Under NEPA, an agency must prepare an EIS for any

proposed federal action “significantly affecting the quality of
30 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

the human environment.” 42 U.S.C. § 4332(2)(C). The EIS

must consider “the environmental impact of the proposed

action” and “any adverse environmental effects which cannot

be avoided should the proposal be implemented.” Id.

§ 4332(2)(C)(i)–(ii). The range of relevant effects is broad,

and the EIS must “[r]igorously explore and objectively

evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a).

By requiring this evaluation before a project is finalized,

“NEPA ensures that the agency will not act on incomplete

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

correct.” Marsh v. Oregon Natural Res. Council, 490 U.S.

360, 371 (1989).

An agency “must have some flexibility to modify

alternatives canvassed in the draft EIS to reflect public

input.” California v. Block, 690 F.2d 753, 771 (9th Cir.

1982). But if after this process, an “agencymakes substantial

changes in the proposed action that are relevant to

environmental concerns,” the agency must prepare an SEIS.

40 C.F.R. § 1502.9(c). In considering the terms “substantial

changes” and “environmental concerns,” we have adopted the

Council for Environmental Quality’s (“CEQ”) guidance that

“supplementation is not required when two requirements are

satisfied: (1) the new alternative is a ‘minor variation of one

of the alternatives discussed in the draft EIS,’ and (2) the new

alternative is ‘qualitatively within the spectrum of alternatives

that were discussed in the draft [EIS].’” Russell Country

Sportsmen, 668 F.3d at 1045 (emphasis added in Russell

Country Sportsmen) (quoting Forty Most Asked Questions

Concerning CEQ’s National Environmental Policy Act

Regulations, 46 Fed. Reg. 18,026, 18,035 (Mar. 23, 1981)).

Great Old Broads points to no specific changes that it

deems not adequately analyzed in the final EIS. Instead,
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 31

Great Old Broads relies on the First Circuit’s decision in

Dubois v. U.S. Department of Agriculture to argue that an

SEIS is required whenever a proposed project constitutes “a

different configuration” of previously analyzed elements.

102 F.3d 1273, 1291–93 (1st Cir. 1996). In Dubois, the

Forest Service published an EIS analyzing the effects of a

proposed ski resort. Id. at 1278. The preferred alternative

adapted an analyzed alternative to a smaller parcel of land,

eliminating woodland buffer zones between ski trails and

proposing an unanalyzed “28,500-square-foot base lodge

facility within the existing permit area.” Id. at 1292. The

First Circuit held that these were “substantial changes from

the previously-discussed alternatives, not mere modifications

‘within the spectrum’ of those prior alternatives.” Id.

Here, by contrast, the Selected Alternative is primarily

made of elements from Alternatives 1, 3, and 4 that were

analyzed—as elements—in the final EIS. From that analysis,

the Forest Service and the public could assess the cumulative

effect of these elements, and the Forest Service could

reasonably determine that the combination was “within the

spectrum” of previously analyzed alternatives.

In addition to these elements, the Selected Decision

incorporated several mitigating modifications. Most, such as

(1) minimizing the number of river crossings by heavy

equipment during construction, (2) clearly marking low-water

crossings and posting them with 5 MPH speed limits, and (3)

removing toilets at Snowslide Gulch and Urdahl, were

“minor variation[s] of one of the alternatives discussed in the

draft EIS.” See Russell Country Sportsmen, 668 F.3d at 1045

(internal quotation omitted). Another modification changed

the targeted “design vehicle” from a passenger car to a fourwheel-drive vehicle. The “design vehicle” is the type of
32 GREAT OLD BROADS FOR WILDERNESS V. KIMBELL

vehicle that the road is designed to accommodate, so this

change lowered the construction and maintenance costs for

the road and limited the amount of traffic the road is likely to

bear. Although this change is not identified as an element

from one of the analyzed alternatives, only a four-wheel-drive

vehicle could use the road as it was at the time of the final

EIS, so the reduction in service level brought the Selected

Alternative in line with Alternative 1—the no-action

alternative.

Great Old Broads alternatively contends that even if the

Forest Service correctly decided that an SEIS was not

required, it violated NEPA because it did not adequately

document that determination in the record. An agency must

make a reasoned decision whether an SEIS is required, see

Friends of the Clearwater, 222 F.3d at 557, and the Forest

Service often presents this threshold determination in a

supplemental information report (“SIR”). See Forest Service

Handbook 1909.15, ch. 10 §§ 18.1-18.2. Here the Forest

Service did not prepare a separate SIR, but it did make a

reasoned decision, documented in the record, that an SEIS

was not warranted.

An agency must document its decision that no SEIS is

required to ensure that it remains “alert to new information

that may alter the results of its original environmental

analysis, and continue[s] to take a ‘hard look at the

environmental effects of [its] planned action, even after a

proposal has received initial approval.’” Friends of the

Clearwater, 222 F.3d at 557 (quoting Marsh, 490 U.S. at

374). In Friends of the Clearwater, appellants challenged a

timber sale in the Nez Perce National Forest for which they

claimed the environmental analysis was inadequate. Id. at

554. The Forest Service completed a programmatic EIS for
GREAT OLD BROADS FOR WILDERNESS V. KIMBELL 33

the entire National Forest in 1987 and a site-specific EIS for

several timber sales in 1989. Id. at 554–55. In 1996, the last

two of those sales were awarded. Id. at 555. When

challenging those sales, appellants explained that the

project’s EIS did not consider the designation of sensitive tree

species in the ten years since the Forest Service completed the

site-specific EIS. Id. Those designations, appellants

contended, “constituted significant new information that

should be considered in an SEIS.” Id. at 555–56.

We faulted the Forest Service because there was “no

evidence in the record that . . . the Forest Service ever

considered whether the seven new sensitive [tree] species

designations . . . were sufficiently significant to require

preparation of an SEIS.” Id. at 558. By contrast, Great Old

Broads points to no new information that was not considered

in the final EIS, and the Forest Supervisor explained in the

ROD that he “determined that the Selected Alternative was

fully analyzed in Chapter 3 of the [final EIS].” This was

adequate documentation of the Forest Service’s reasoned

decision that no SEIS was required.

IV. CONCLUSION

We hold that Great Old Broads exhausted its claims

before the Forest Service but that the ROD conforms to the

NFMA, EO 11988, and NEPA. We reverse the district court

on its analysis of exhaustion, but we affirm the district court

on its alternate decision on the merits as to each of the claims

presented. The parties shall bear their own costs.

REVERSED ON EXHAUSTION and AFFIRMED ON

THE MERITS.