NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARK; et al., 

Plaintiffs-Appellants, 

 v. 

UNITED STATES FOREST SERVICE, a 

federal agency, 

Defendant-Appellee, 

HIGH CASCADE, INC., 

Intervenor-DefendantAppellee.

No. 19-35665 

D.C. No. 3:18-cv-01645-MO 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted December 10, 2019

Seattle, Washington

Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** Stephen A. Higginson, United States Circuit Judge for the U.S. Court 

of Appeals for the Fifth Circuit, sitting by designation.

FILED

APR 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-35665 

Appellants Bark, Cascadia Wildlands, and Oregon Wild timely appeal the 

district court’s summary judgment in favor of Appellees, the United States Forest 

Service (USFS) and High Cascade, for claimed violations of the National 

Environmental Policy Act (NEPA) and the National Forest Management Act 

(NFMA). Reviewing de novo the district court’s grant of summary judgment, 

Center for Biological Diversity v. Ilano, 928 F.3d 774, 779 (9th Cir. 2019), we 

hold that the USFS’s determination that the Crystal Clear Restoration (CCR)

Project did not require an Environmental Impact Statement (EIS) was arbitrary and 

capricious and so reverse. We do not reach the NFMA claims.

The USFS’s decision not to prepare an EIS was arbitrary and capricious 

under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), for two 

independent reasons.

1. The effects of the Project are highly controversial and uncertain, thus 

mandating the creation of an EIS. See 40 C.F.R. § 1508.27(b)(4) & (5) (listing 

relevant factors for whether an EIS is required, including if the project’s effects are 

“highly controversial” and “highly uncertain”). The stated primary purpose of the 

CCR Project is to reduce the risk of wildfires and promote safe fire-suppression 

activities, but Appellants identify scientific evidence showing that variable density 

thinning will not achieve this purpose. Considering both context and intensity, as 

required by 40 C.F.R. § 1508.27, this evidence raises substantial questions about 
3 19-35665 

the Project’s environmental impact, and an EIS is required. See, e.g., Blue 

Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) 

(holding that an EIS is required when an environmental assessment raises 

“substantial questions” about whether an agency’s action will have a significant 

effect on the quality of the human environment); see also Native Ecosystems 

Council v. U.S. Forest Serv., 428 F.3d 1233, 1238–39 (9th Cir. 2005).

“A project is ‘highly controversial’ if there is a ‘substantial dispute [about] 

the size, nature, or effect of the major Federal action rather than the existence of 

opposition to a use.’” Native Ecosystems Council, 428 F.3d at 1240 (alteration in 

original) (quoting Blackwood, 161 F.3d at 1212). “A substantial dispute exists 

when evidence . . . casts serious doubt upon the reasonableness of an agency’s 

conclusions.” In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1069

(9th Cir. 2014) (quoting Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 

722, 736 (9th Cir. 2001), abrogated in part on other grounds by Monsanto Co. v. 

Geertson Seed Farms, 561 U.S. 139, 157 (2010)). To demonstrate a substantial 

dispute, appellants must show that “evidence from numerous experts” undermines 

the agency’s conclusions. Blackwood, 161 F.3d at 1212. “[M]ere opposition alone 

is insufficient to support a finding of controversy.” WildEarth Guardians v. 

Provencio, 923 F.3d 655, 673 (9th Cir. 2019).

The Environmental Assessment (EA) explained that the CCR Project will 
4 19-35665 

use “variable density thinning” to address wildfire concerns. “In variable density 

thinning, selected trees of all sizes . . . would be removed.” This process would 

assertedly make the treated areas “more resilient to perturbations such as . . . largescale high-intensity fire occurrence because of the reductions in total stand 

density.” Variable density thinning will occur in the entire Project area.

Substantial expert opinion presented by the Appellants during the 

administrative process disputes the USFS’s conclusion that thinning is helpful for 

fire suppression and safety. For example, Oregon Wild pointed out in its EA

comments that “[f]uel treatments have a modest effect on fire behavior, and could 

even make fire worse instead of better.” It averred that removing mature trees is 

especially likely to have a net negative effect on fire suppression. Importantly, the 

organization pointed to expert studies and research reviews that support this 

assertion.

Bark also raised this issue: “It is becoming more and more commonly 

accepted that reducing fuels does not consistently prevent large forest fires, and 

seldom significantly reduces the outcome of these large fires,” citing an article 

from Forest Ecology and Management. Bark also directed the USFS to a recent 

study published in The Open Forest Science Journal, which concluded that fuel 

treatments are unlikely to reduce fire severity and consequent impacts, because 

often the treated area is not affected by fire before the fuels return to normal levels.
5 19-35665 

Bark further noted that, while “Bark discussed [during the scoping process] the 

studies that have found that fuel reduction may actually exacerbate fire severity in 

some cases as such projects leave behind combustible slash, open the forest canopy 

to create more ground-level biomass, and increase solar radiation which dries out 

the understory[,] [t]he EA did not discuss this information.”

Oregon Wild also pointed out in its EA comments that fuel reduction does 

not necessarily suppress fire. Indeed, it asserted that “[s]ome fuel can actually help 

reduce fire, such as deciduous hardwoods that act as heat sinks (under some 

conditions), and dense canopy fuels that keep the forest cool and moist and help 

suppress the growth of surface and ladder fuels . . . .” Oregon Wild cited more than 

ten expert sources supporting this view. Importantly, even the Fuels Specialist 

Report produced by the USFS itself noted that “reducing canopy cover can also 

have the effect of increasing [a fire’s rate of spread] by allowing solar radiation to 

dry surface fuels, allowing finer fuels to grow on . . . the forest floor, and reducing 

the impact of sheltering from wind the canopy provides.”

The effects analysis in the EA did not engage with the considerable contrary 

scientific and expert opinion; it instead drew general conclusions such as that 

“[t]here are no negative effects to fuels from the Proposed Action treatments.”

Appellants thus have shown a substantial dispute about the effect of variable 

density thinning on fire suppression. Although it is not our role to assess the merits 
6 19-35665 

of whether variable density thinning is indeed effective in the project area to 

prevent fires, or to take sides in a battle of the experts, see Greenpeace Action v. 

Franklin, 14 F.3d 1324, 1333 (9th Cir. 1992), NEPA requires agencies to consider 

all important aspects of a problem. See WildEarth Guardians v. U.S. E.P.A., 759 

F.3d 1064, 1069–70 (9th Cir. 2014). Throughout the USFS’s investigative process, 

Appellants pointed to numerous expert sources concluding that thinning activities 

do not improve fire outcomes. In its responses to these comments and in its finding 

of no significant impact, the USFS reiterated its conclusions about vegetation 

management but did not engage with the substantial body of research cited by 

Appellants. Failing to meaningfully consider contrary sources in the EA weighs 

against a finding that the agency met NEPA’s “hard look” requirement as to the 

decision not to prepare an EIS. Blackwood, 161 F.3d at 1213. This dispute is of 

substantial consequence because variable density thinning is planned in the entire 

Project area, and fire management is a crucial issue that has wide-ranging 

ecological impacts and affects human life. When one factor alone raises

“substantial questions” about whether an agency action will have a significant 

environmental effect, an EIS is warranted. See Ocean Advocates v. U.S. Army 

Corps of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2005) (“We have held that one of [the 

NEPA intensity] factors may be sufficient to require preparation of an EIS in 

appropriate circumstances.”). Thus, the USFS’s decision not to prepare an EIS was 
7 19-35665 

arbitrary and capricious. See Blackwood, 161 F.3d at 1213 (holding that conflicting 

evidence on the effects of ecological intervention in post-fire landscapes made a 

proposed project highly uncertain, thus requiring an EIS).

2. The USFS also failed to identify and meaningfully analyze the cumulative 

impacts of the Project. “Cumulative impact is the impact on the environment which 

results from the incremental impact of the action when added to other past, present, 

and reasonably foreseeable future actions regardless of what agency . . . undertakes 

such other actions.” 40 C.F.R. § 1508.7. “Cumulative impacts can result from 

individually minor but collectively significant actions taking place over a period of 

time.” Id. “[I]n considering cumulative impact, an agency must provide ‘some 

quantified or detailed information; . . . [g]eneral statements about possible effects 

and some risk do not constitute a hard look absent a justification regarding why 

more definitive information could not be provided.’” Ocean Advocates, 402 F.3d at

868 (alterations in original) (quoting Neighbors of Cuddy Mountain v. U.S. Forest 

Serv., 137 F.3d 1372, 1380 (9th Cir. 1998)). “This cumulative analysis ‘must be 

more than perfunctory; it must provide a useful analysis of the cumulative impacts 

of past, present, and future projects.’” Id. (quoting Kern v. U.S. Bureau of Land 

Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002)) (internal quotation marks omitted).

We have held that cumulative impact analyses were insufficient when they 

“discusse[d] only the direct effects of the project at issue on [a small area]” and 
8 19-35665 

merely “contemplated” other projects but had “no quantified assessment” of their 

combined impacts. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 

F.3d 989, 994 (9th Cir. 2004).

The EA ostensibly analyzed the cumulative effects of the CCR Project, and

included a table of other projects that were “considered in the cumulative effects 

analyses.” The cumulative impact analysis is insufficient because there is no 

meaningful analysis of any of the identified projects. The table gave no 

information about any of the projects listed; it merely named them. The section of 

the EA actually analyzing the cumulative effects on vegetation resources did not 

refer to any of these other projects. Nor are there any specific factual findings that 

would allow for informed decision-making. The EA simply concluded that “there 

are no direct or indirect effects that would cumulate from other projects due to the 

minimal amount of connectivity with past treatments” and that the Project “would 

have a beneficial effect on the stands by moving them toward a more resilient 

condition that would allow fire to play a vital role in maintaining stand health, 

composition and structure.” These are the kind of conclusory statements, based on 

“vague and uncertain analysis,” that are insufficient to satisfy NEPA’s 

requirements. Ocean Advocates, 402 F.3d at 869.

The EA also mentioned the possibility of cumulative effects in sections on 

other specific sub-topics such as fuels management, transportation resources, and 
9 19-35665 

soil productivity. These sections similarly relied on conclusory assertions that the 

Project has “no cumulative effects.” When the EA did acknowledge the possibility 

of the Project’s impact, such as in the section that analyzed the Project’s effects on 

spotted owls, it noted only that “[t]imber harvest on federal, tribal, and private 

land, and utility corridor operations have reduced the amount of suitable habitat . . . 

on the landscape and could continue to do so in the future,” without attempting to 

quantify the cumulative loss or naming other projects. Yet there were other 

relevant timber projects to discuss. Appellants pointed out at least three other 

recent or future timber projects in their comments responding to the EA, but the 

relevant section of the document limited its analysis to only the Project area and a 

1.2-mile buffer surrounding it. Such a small buffer zone fails to distinguish the 

EA’s cumulative impact analysis from an analysis of the direct effects of the 

Project. See Klamath-Siskiyou Wildlands Ctr., 387 F.3d. at 997 (assessing 

cumulative effects at the critical habitat unit scale). The USFS’s failure to engage 

with the other projects identified by Appellants leaves open the possibility that 

several small forest management actions will together result in a loss of suitable 

owl habitat. Preventing or adequately mitigating this potential loss is the 

fundamental purpose of NEPA’s requirement that agencies analyze cumulative 
10 19-35665 

impacts, and we have no basis in the record to assess whether the USFS has taken 

the necessary steps to consider this possibility.

Overall, there is nothing in the EA that could constitute “quantified or 

detailed information” about the cumulative effects of the Project. Ocean 

Advocates, 402 F.3d at 868 (internal quotation marks omitted). The USFS’s 

analysis creates substantial questions about whether the action will have a 

cumulatively significant environmental impact. Therefore, this factor also requires 

the USFS to conduct an EIS. See 40 C.F.R. § 1508.27(b)(7).

3. Because an EIS is required, and because the findings in the EIS could 

prompt the USFS to change the scope of the Project or the methods it plans to use, 

we do not reach the Appellants’ other claims. We reverse the district court’s 

judgment and remand to the district court with instructions to remand to the USFS 

for the preparation of an EIS.

REVERSED and REMANDED.
Bark v. U.S. Forest Serv., No. 19-35665

GRABER, Circuit Judge, concurring:

I concur in full in the judgment and in all but section 2 of the majority’s

disposition. The project’s proposed methodology of variable density thinning is

both highly controversial and highly uncertain, so an environmental impact

statement is required. I would not reach whether the Environmental Assessment’s

discussion of cumulative impacts also was arbitrary and capricious.

FILED

APR 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS