Forest Conservation Council v. United States Forest Service

dissenting.

MEMORANDUM *

We affirm the district court’s grant of summary judgment to the United States Forest Service. It was not arbitrary or capricious for the agency to conclude that its “Roads and Trails” decision fell within the parameters of categorical exclusions 31.1(b)(3), (4) and (5). Nor was it arbitrary or capricious for the agency to conclude that its “Fence and Utility Line” decision fell within the parameters of categorical exclusions 31.1(b)(4) and 31.2(2). See Alaska Ctr. for the Env’t v. United States Forest Serv., 189 F.3d 851, 857 (9th Cir.1999) (agency interpretation of own categorical exclusion controls unless plainly erroneous or inconsistent with terms).

Because the agency was entitled to treat the ‘Wildland/Urban Interface” decision as a separate project, Forest Conservation Council’s appeal from the denial of injunctive relief has been mooted by the completion of the environmental assessment for this project. See Aluminum, Co. of Am. v. Admin’r, Bonneville Power Admin., 175 F.3d 1156 , 1163 (9th Cir.1999).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth…

dissenting.

Following Arizona’s June 2002 RodeoChediski fire, the Forest Service authorized tree removal on over 37,000 acres of National Forest land. Appellants claim that the Forest Service violated the National Environmental Protection Act (“NEPA”) when it authorized the tree removal project without first conducting a proper Environmental Impact Statement (“EIS”) or Environmental Assessment (“EA”) to evaluate the project’s environmental impact. Because I agree with Appellants that the Forest Service violated NEPA and disagree with my colleagues’ conclusion to the contrary, I dissent.

I.

NEPA established a complex system for evaluating environmental management decisions and the environmental effects of proposed federal agency actions. See 40 C.F.R. §§ 1500-08 . Depending on a proposed project’s “effect on the human environment,” NEPA and Council on Environmental Quality (“CEQ”) regulations authorize federal agencies to fulfill their NEPA requirements in one of three ways. 1 First, an agency may prepare an EIS, see 40 C.F.R. § 1501.3 , which, if properly completed, will always satisfy an agency’s NEPA requirements, see City of Carmel-by-the-Sea v. U.S. Dep’t of Trans., 123…