Environmental Protection Information Center v. United States Forest Service

MEMORANDUM *

Environmental Protection Information Center (“EPIC”) appeals the district court’s order granting summary judgment to United States Forest Service (“USFS”) and denying EPIC’s motion for summary judgment in EPIC’s action seeking to enjoin a forest-thinning project (“the project”) in the Shasta-Trinity National Forest in California. 28 U.S.C. § 1291 gives us jurisdiction. We review the district court’s grant of summary judgment de novo, and, under the Administrative Procedure Act, we may set aside the agency’s action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706 (2)(A). Native Ecosystems Council v. USFS, 428 F.3d 1233 , 1238 (9th Cir.2005).

I

EPIC first argues that USFS’s environmental assessment (“EA”) violated the National Environmental Policy Act (“NEPA”) because it failed to analyze a reasonable range of alternatives to the forest-thinning project. NEPA mandates that federal agencies “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332 (2)(E).…

concurring in part and dissenting in part:

I dissent from Part I of the memorandum disposition because the environmental assessment (EA) complies with the National Environmental Policy Act’s (NEPA) *445 mandate to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332 (2)(E).

In Native Ecosystems Council v. United States Forest Service, 428 F.3d 1233, 1246 (9th Cir.2005), we rejected the argument that an EA’s detailed consideration of two alternatives—a “no-action” plan and a preferred course of action—violated NEPA. We wrote: “[s]o long as ‘all reasonable alternatives’ have been considered and an appropriate explanation is provided as to why an alternative was eliminated, the regulatory requirement is satisfied.” Id. Here the Forest Service considered but rejected an additional proposed alternative that did not involve a timber sale or the removal of any tree larger than 12 inches in diameter at breast height. The Forest Service rejected this proposal because it did not allow for the removal of fuel ladders that posed a fire…