FRIENDS OF THE BIG BEAR VALLEY v. UNITED STATES FOREST SERVICE (2025)

MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

I.

INTRODUCTION

On August 10, 2023, plaintiffs Friends of the Big Bear Valley, John Muir Project of Earth Island Institute (“John Muir Project”), and San Bernardino Valley Audubon Society filed a complaint against defendants United States Forest Service (“Forest Service”) and District Ranger Freddie Duncan, in his official capacity. Plaintiffs allege violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and seek declaratory and injunctive relief, including an order directing the Forest Service to vacate and rescind its approval of the North Big Bear Landscape Restoration Project (the “Project”).

Before the court are the parties' cross motions for summary judgment. Defendants lodged the administrative record (“AR”) on January 31, 2024. Plaintiffs filed their Motion for Summary Judgment (“P. MSJ”) on March 15, 2024, supported by declarations of Sandy Steers, Dori Myers, Rush E. Wallace, Teri Ashmore, and Chad Hanson, and exhibits. On April 19, 2024, defendants filed their Combined Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (“D. MSJ”), supported by an exhibit. Plaintiffs filed their Combined Reply to Defendants' Opposition to Motion for Summary Judgement and Opposition to Defendant's Cross-Motion for Summary Judgment (“P. Reply”) on May 10, 2024. Defendants filed their Reply in Support of Their Motion for Summary Judgment (“D. Reply”) on May 24, 2025. Plaintiffs filed a notice of supplemental authority on June 12, 2024.

The court held a hearing on the motions on June 18, 2024. For the reasons that follow, the court now denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross-Motion for Summary Judgment.

II.

REGULATORY BACKGROUND

“The National Environmental Policy Act (NEPA) is our basic national charter for the protection of the environment.” 40 U.S.C. § 1500.1(a).¹ “NEPA is a procedural statute that requires the federal government to carefully consider the impacts of and alternatives to major environmental decisions.” Native Ecosys. Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012). NEPA does not mandate a particular result, but “imposes ‘a set of action-forcing procedures that require that agencies take a hard look at [the] environmental consequences’ of their actions.” Blue Mountains Biodiversity Proj. v. Jeffries, 99 F.4th 438, 446 (9th Cir. 2024) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989) (cleaned up)); Env't Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 988 (9th Cir. 2020). “To satisfy the hard look requirement, an agency must provide a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” 350 Montana v. Haaland, 50 F.4th 1254, 1265 (9th Cir. 2022) (quotation marks and citation omitted).

NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C); Bark v. U.S. Forest Serv., 958 F.3d 865, 868 (9th Cir. 2020). “An agency need not, however, prepare an EIS if it prepares an [environmental assessment (“EA”)] that ‘briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment.’ ” Blue Mountains Biodiversity Proj., 99 F.4th at 447 (quoting Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757-58, 124 S. Ct. 2204, 159 L. Ed. 2d 60 (2004)). An EA is a “concise public document” prepared by a Federal agency that serves to “provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact” and “aid an agency's compliance with [NEPA].” 40 C.F.R. § 1508.9(a)(1)-(2); see Bark, 968 F.3d at 868; Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005). In other words, an agency may prepare an EA in order to determine whether the EIS requirement is triggered. See 40 C.F.R. § 1508.9(a)(1).

To determine whether a proposed project will have significant effects requires consideration of a plan's context and intensity. 40 C.F.R. § 1508.27. An agency analyzes different contexts such as the society and potentially affected region. 40 C.F.R. § 1508.27(a). Intensity refers to the severity of a project's impact. 40 C.F.R. § 1508.27(b). The regulations list ten non-exhaustive factors an agency should consider in evaluating intensity, including the degree to which the effects on the quality of the human environment are likely to be highly controversial and the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.² 40 C.F.R. § 1508.27(b)(4)-(5).

III.

FACTUAL BACKGROUND

The Forest Service developed the North Big Bear Landscape Restoration Project to increase forest health and diversity, improve hydrologic function, restore a fire-resilient fire structure, and improve recreation opportunities. AR at 9-10. Among the actions the Project authorized in order to accomplish its goals are hand and mechanical thinning depending on the area, and prescribed fire. See AR at 12-14. Prescribed fire includes broadcast burning (burning of surface fuels, small plants, shrubs, and small trees), pile burning (burning of slash piles, usually limbs, shrubs, and small trees), and jackpot burning. AR at 12.

In September 2020, the Forest Service published a request for comments on the scope of the Project. See AR at 5883-92. The Forest Service received dozens of comments during the scoping process. See AR at 5461-5882. The majority of the comments were supportive of the Project. See id. Dr. Chad Hanson of plaintiff John Muir Project submitted comments and asked the Forest Service to prepare an EIS. See AR at 5467-68. Hanson urged the Forest Service to narrow the spatial scope of the Project to the protection of homes and lives from wildland fire, and specifically focus on vegetation management within 100 feet of homes. Id. at 5467. Hanson also asked the Forest Service to acknowledge, among other things, that substantial scientific evidence shows that thinning does not reduce fire intensity, denser forests do not burn more intensely, and tree or shrub removal are not necessary prior to prescribed burning. See AR at 5467-68.

Following scoping, the Forest Service circulated a draft EA for public input. See AR at 202-48. Hanson, on behalf of John Muir Project, and Richard Halsey, on behalf of California Chaparral Institute, submitted comments (see AR at 2521-41) to the draft EA, as well as numerous studies (see AR at 2542-4062). Hanson and Halsey opined the Forest Service did not consider the “best available science.” AR at 2521. In relevant part, Hanson and Halsey disagreed with the EA's assessment of the Project's effects on future wildfire behavior. AR at 2524-36. Specifically, they disagreed with the implication that any amount of high intensity or severity fire was undesirable and unnatural and opined the agency overstated its ability to alter future fire behavior by focusing only on fuel when other factors such as climate, weather, and topography exert greater influence. See AR at 2524-28. Hanson and Hasley contended there is also evidence that thinning can actually increase the severity of wildfires. See AR at 2530-36. The Forest Service responded to the comments by category (see AR at 152-72), including providing a detailed response to Hanson's and Halsey's comments about vegetation management and citing to the evidence relied upon by the Forest Service (see AR at 161-68).³

The Forest Service then circulated a second draft of the EA, along with a draft Decision Notice and Finding of No Significant Impact (“FONSI”). See AR 89-146. The Forest Service received over 80 objections, most concerning the impact on the habitat for eagles and the e-bike trails. See AR at 1119-1613. Plaintiffs submitted objections to the second draft EA and FONSI, as well as communicated directly with Forest Service employees. See AR at 883-910, 1119-1217, 1220-1418. On October 28, 2022, the Forest Service responded to the objections by letter. See AR at 877-82.

After the public commenting period ended, Hanson continued to communicate with the Forest Service about his disagreements with the EA. AR at 5113-14, 5128-29.

On May 1, 2023, the Forest Service concluded the Project would not have a significant impact and issued the final EA, Decision Notice, and FONSI. See AR at 7-71.

IV.

STANDARD OF REVIEW

A. Administrative Procedures Act

Agency decisions allegedly violating NEPA are reviewed under the Administrative Procedures Act (“APA”). Native Ecosys. Council, 428 F.3d at 1238. Under the APA, a court may set aside an agency decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Earth Island Inst. v. Muldoon, 82 F.4th 624, 633 (9th Cir. 2023); Native Ecosys. Council, 428 F.3d at 1238. “The party challenging an administrative decision as arbitrary and capricious under NEPA bears the burden of proof and persuasion.” Friends of Crazy Mountains v. Erickson, 2024 WL 1502507, at *1 (9th Cir. Apr. 8, 2024).

“A decision is arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.” Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1054 (9th Cir. 2013). The court “must defer to a reasonable agency action even if the administrative record contains evidence for and against its decision.” Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1036 (9th Cir. 2010); Conservation Cong., 720 F.3d at 1054 (“Agency action is valid if the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made.”). Indeed, the court is to be “most deferential” to an agency's review of scientific judgments and technical analyses when it is within the agency's expertise.⁴ Conservation Cong., 720 F.3d at 1054.

B. Summary Judgment

Under Federal Rule of Civil Procedure 56(a), summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[C]ases involving a review of a final agency action under the APA[, however,] do not involve fact finding but only a review of the administrative record.” Native Ecosys. Council v. Marten, 612 F. Supp. 3d 1146, 1154 (D. Mont. 2020). In these cases, the court does not apply the standard factfinding analysis under Rule 56. Scholl v. Mnuchin, 494 F. Supp. 3d 661, 673 (N.D. Cal. 2020); W. Watersheds Proj. v. Zinke, 441 F. Supp. 3d 1042, 1056 (D. Idaho 2020). Instead, summary judgment is a mechanism for deciding, as a matter of law whether an agency action is supported by the administrative record and otherwise consistent with the APA standard of review. Impetus Techs., Inc. v. Baran, 440 F. Supp. 3d 1095, 1099 (C.D. Cal. 2020).

V.

DISCUSSION

Plaintiffs argue they are entitled to summary judgment because the Forest Service's approval of the Project was arbitrary and violated NEPA by failing to take a “hard look.” P. MSJ at 26. Plaintiffs maintain that, in concluding an EA was sufficient, the Forest Service unreasonably ignored the controversy surrounding the Project's impacts, as well as the highly uncertain effects. Id. Specifically, plaintiffs contend the Forest Service ignored credible scientific evidence that: (1) fuel mitigation through the removal of trees could increase the severity of forest fires ⁵ ; (2) tree removal more than 100 feet from structures cannot effectively protect structures from ignition; and (3) Project area forests are not any denser than they were 100 years ago. Id. at 27-42.

Defendants oppose plaintiff's summary judgment motion and cross-move for summary judgment on the bases that the Forest Service was not obligated to consider or respond to plaintiffs' non-credible scientific viewpoints and, in any event, addressed plaintiffs' arguments on the efficacy of fuel treatments; properly considered the impact of fuel treatments more than 100 feet from structures; and appropriately rejected plaintiffs' allegations regarding forest density. D. MSJ at 12-29.

Based on a review of the administrative record, the court finds the Forest Service's approval of the Project and analysis of the environmental impact was not arbitrary and capricious under NEPA. The Forest Service took a hard look at the scientific evidence and considered opposing viewpoints.⁶

A. Fuel Treatment

Plaintiffs argue they are entitled to summary judgment because the Forest Service ignored the credible scientific evidence that fuel mitigation through the removal of tress could increase, rather than reduce, the severity and speed of forest fires. P. MSJ at 27-37. Plaintiffs contend defendants failed to consider this evidence, which indicates the effects of the Project are highly controversial and uncertain, and therefore there are substantial questions about whether the Project will have a significant impact. See id. Plaintiffs also contend that the Ninth Circuit addressed a similar situation in Bark and agreed – concluding the effects of forest thinning are highly controversial and uncertain and thus an EIS was required. See id. at 30-37. Defendants assert they are entitled to summary judgment because the regulation requiring agencies to respond to “any responsible opposing view” that was not adequately discussed in an EIS does not apply to EAs, Hanson's comments do not constitute a “responsible opposing view,” and in any event they addressed Hanson's comments. D. MSJ at 13-19. Specifically, defendants contend they fully considered and responded to Hanson, and provided an explanation why the thinning and prescribed fire plans authorized by the Project were neither highly controversial nor highly uncertain. Id. at 16-19.

“A project is highly controversial if there is a substantial dispute about the size, nature, or effect of the major Federal action,” which “exists when evidence ․ casts serious doubt upon the reasonableness of an agency's conclusions.” WildEarth Guardians v. Provencio, 923 F.3d 655, 673 (9th Cir. 2019) (cleaned up). “But, a project is not rendered highly controversial simply because ‘qualified experts disagree.’ ” Blue Mountains Biodiversity Proj., 99 F.4th at 449 (citing Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir. 1992)). Instead, when qualified experts disagree, “ ‘an agency must have discretion to rely on the reasonable opinions of its own qualified experts.’ ” Id. (quoting Marsh v. Or. Nat.. Res. Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989)).

1. Thinning Projects Are Not Per Se Highly Controversial

Plaintiffs suggest Bark established as a matter of law that forest thinning projects are per se highly controversial. See P. MSJ at 30-37; P. Reply at 23. Plaintiffs argue that Bark “stands in part for the proposition that substantial controversy exists concerning the impact of vegetation thinning as a strategy for reducing the severity of forest wildfires, especially where, as here, mature trees would be removed, which reduces canopy cover.” P. Reply at 13. Defendants contend Bark is not controlling because the record in Bark is different than the record here, and the Ninth Circuit has declined to endorse plaintiffs' reading of Bark. See D. MSJ at 19-23.

In Bark, the Forest Service aimed to reduce the risk of high-severity fires and promote fire-suppression activities through variable density thinning. Bark, 958 F.3d at 870. The Ninth Circuit held the Forest Service's determination that the project did not require an EIS was arbitrary and capricious, in part because the effects of the project were highly controversial and uncertain. Id. at 870-71. The Ninth Circuit noted that the plaintiffs in Bark provided substantial expert opinions disputing the Forest Service's conclusion that thinning is helpful for fire suppression and safety, but the EA did not address or engage with these opinions. See id. Instead, the EA simply drew general conclusions that there would be no negative effects. Id. at 871. The Ninth Circuit thus concluded this “dispute [was] of substantial consequence” or highly controversial and the Forest Service's decision not to complete an EIS was arbitrary and capricious. Id.

Although instructive, Bark does not stand for the proposition that the effectiveness of thinning is per se highly controversial. Nor is Bark controlling here. Central to the Ninth Circuit's decision was the evidence the Forest Service entirely failed to engage with the comments and opposing studies. See id. In other words, the efficacy of the proposed variable density thinning project was highly controversial not because there were opposing opinions, but because the agency failed to consider all important aspects of the issue. See Muldoon, 82 F.4th at 639 (in Bark, “the agency's conclusion was arbitrary and capricious because the agency failed to address arguments raised during the administrative process that challenged whether variable density thinning effectively reduces the risk of wildfires”). The failure to consider and address the multiple opposing opinions left the dispute open and cast doubt on the reasonableness of the agency's conclusion.

Moreover, even if Bark had found variable density thinning was per se highly controversial, the Project here is distinguishable from the project in Bark because the Project here involves thinning followed by prescribed burns, as opposed to variable density thinning alone. This is a significant distinction. As the Ninth Circuit noted in Muldoon, “the fact that the Bark thinning would not be followed by a prescribed burn was one of the reasons why we concluded that the scientific evidence demonstrated that a significant controversy existed.” Muldoon, 82 F.4th at 639-40 (citing Bark, 958 F.3d at 871). Plaintiff have argued that every instance of thinning here may not be followed by a prescribed burn; however, even assuming such instances occur, prescribed burns are clearly an integral and critical element of the Project here. See AR at 12-14.

Accordingly, Bark does not stand for the proposition that thinning projects are per se highly controversial, and nor is it controlling here since the Project at issue is not a standalone thinning plan. This case is further distinguishable from Bark because, as discussed below, the Forest Service addressed the opposing viewpoints raised during the administrative process, determined there were concerns about the scientific methodology behind the studies, and determined they were outside the scientific consensus.

2. Defendants Considered and Addressed Dissenting Viewpoints

As an initial matter, to the extent plaintiffs argue defendants failed to disclose and explicitly respond to Hanson's dissenting opinion in the final EA, “[t]he duty to disclose and respond to ‘responsible opposing viewpoints’ imposed by 40 C.F.R. § 1502.9(b) applies only to environmental impact statements, not environmental assessments.” N. Slope Borough v. Minerals Mgmt. Serv., 343 F. App'x 272, 275 (9th Cir. 2009). Indeed, in a prior case involving some of the same parties here, the Ninth Circuit rejected the plaintiff's argument that the Forest Service violated its duty to disclose by “not appropriately responding to four comments” submitted by Hanson in response to the initial EA because the regulation requiring the agency to respond to responsible opposing views only applied to a final EIS. Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1020 (9th Cir. 2012). Thus, without addressing defendants' contention that Hanson is not a “responsible opposing” viewpoint, the court notes that the Forest Service was not required to explicitly address Hanson's comments in the final EA.

Nonetheless, these cases do not stand for the proposition that an agency may simply disregard opposing viewpoints. While an agency is not required to disclose and respond to dissenting viewpoints in a final EA, it still must consider all scientific evidence in order to consider whether a project is highly controversial (i.e., whether there is substantial dispute about the size, nature, or effect of the Project). But here, defendants did consider and respond to Hanson's comments.

The Forest Service based its decision here on extensive scientific evidence. The administrative record contains detailed reports and studies. See, e.g., AR at 587-629, 7878-7928, 8648-89. Contrary to plaintiff's contentions, the administrative record shows the Forest Service acknowledged disagreements in scientific literature and considered Hanson's submissions and supporting studies. Plaintiff John Muir Project, along with California Chaparral Institute, submitted the only substantive comment about thinning during the comments period. See AR at 2521-41; see also AR at 2542-4062. The Forest Service devoted eight pages of their 21-page response to addressing these comments about fuel or vegetation management (AR at 161-68), and thoroughly discussed the effects of the Project, as well as opposing viewpoints, in great detail throughout the various accompanying reports, including the Fuels Effects Analysis (AR at 598-629) and Silviculture Report (AR at 840-57).

At the objections phase, plaintiffs submitted the only substantive objections to the thinning aspect of the Project. See AR at 1119-1217, 1220-1418. The Forest Service responded to their objections in a letter, and also met with Hanson. AR at 877-82; see AR at 587. In the letter, the Forest Service explained that plaintiffs' viewpoints were unsupported by the Forest Service's analysis and cited to the Fuels Effects Analysis and other studies. See AR at 877-82. Following the meeting with Hanson, the Forest Service drafted an internal memorandum further addressing concerns raised by Hanson during the meeting. AR at 587-97. The Forest Service also considered other experts' responses to Hanson's claims regarding the ineffectiveness of thinning and prescribed burns. See AR at 5458-60.

In their summary judgment motion, plaintiffs specifically argue the Forest Service failed to consider the following of Hanson's arguments: vegetation management activities beyond 100 feet from homes provide no additional benefit in terms of protecting homes from wildfires; the Forest Service's own analysis concluded the Grass Valley fire demonstrates that thinning and removal of dead trees was not effective at reducing severity and protecting homes; thinning and removing dead trees alter the local microclimate and creates drier and windier conditions; the most long-unburned forests, which are often denser and have more dead trees, do not burn more intensely; denser forests have a cooler, shadier, and moister microclimate; and thinning increases fire risk and effects. P. MSJ at 34-35. Hanson primarily supported his arguments with studies he authored or co-authored. As discussed above, the Forest Service considered all of these viewpoints and found they were contrary to the scientific consensus.

First, with regard to Hanson's contention that the Forest Service failed to consider evidence that vegetation management beyond 100 feet from a home does not protect the home, the Forest Service explained that home ignition was beyond the scope of the EA because it was not a purpose of the Project. AR at 160.

Second, Hanson mischaracterizes the analyses of the 2007 Grass Valley Fire in the San Bernardino National Forest. After the fire, the Forest Service performed two analyses, one focused on home destruction and the other on the fuel treatment effects. AR at 1842-70, 10923-64. Contrary to Hanson's contentions, the Forest Service, in the fuel treatment effects analysis, concluded the fire behavior in fuel treatment areas was less rapid and intense than in untreated areas. AR at 10929. Indeed, the Forest Service found that the reduced spread rate and intensity, along with the removal of dead trees, allowed people to evacuate more safely and firefighters to prevent spread. AR at 10929, 10957. The Forest Service cited this analysis, as well as the analyses of two other fires, in support of its conclusion that thinning projects do not cause hotter and faster fires. See AR at 167-68. The Forest Service's separate analysis of the home destruction by the Grass Valley Fire concluded that, with minor exception, high intensity wildfire was not a direct factor in igniting homes and the principal influence related to home ignition was the firebrand shower that produced simultaneous ignitions on houses. See AR at 1842-70. The home destruction analysis did not discuss thinning and did not find that thinning was ineffective at protecting structures. See id.

Third, the Forest Service noted the debate about and trade-offs associated with fuel reduction, including the wind effects, solar radiation, and potential for invasive species, and explained why it concluded scientific evidence supporting the proposed thinning followed by prescribed burns. See AR at 164-68,170, 611-13. The Forest Service explained how the evidence and modeling supported its conclusion that even with potential wind increase, the rate of spread would be lower, and why it disagreed with the evidence submitted by Hanson. See id. Similarly, the Forest Service explained that the modeling it performed did not support the concern that thinning projects would create faster and hotter fires, the Project accounted for an increase in solar radiation, and other studies showed that canopy gaps showed no statistically significant differences to the microclimate. AR at 165-67, 611-13. This discussion, along with the Grass Valley analysis and internal memorandum, counters Hanson's arguments that unburned forests burn mostly at lower intensities. See AR at 589. The Forest Service also acknowledged that the effectiveness of mechanical thinning as a standalone treatment is questionable and site dependent, but studies show that when thinning is combined with prescribed fire and surface fuels are reduced, the net effect is clearly a reduction in fire hazard. See AR at 592.

Finally, the administrative record clearly reflects the Forest Service reviewed Hanson's late submission of a paper critiquing some of the primary studies relied on by the agency. AR at 594. The Forest Service explained why it found the paper unpersuasive and determined it fell outside of professional scientific norms, including its failure to cite new science, its publication in an online journal with lax peer review standards, and its reliance on previous studies using controversial methodologies. Id.; see also AR at 4964-65. The Forest Service also noted that the primary studies it relied on reviewed the “full body of published literature,” and their views are the consensus. AR at 594.

In sum, the Administrative Record reflects the Forest Service provided extensive scientific evidence and discussion to support its conclusion that the thinning and prescribed burning portion of the Project was not highly controversial and would not have significant impacts, and therefore did not trigger the EIS requirement. The Forest Service discussed its evidence, as well as the opposing viewpoints raised by Hanson, and concluded that the scientific consensus was thinning combined with prescribed burning was an effective method for reducing the severity of forest fires. The Forest Service explained that Hanson's studies were insufficient to challenge the scientific consensus and a range of credible scientists have significant concerns about the quality and integrity of Hanson's and some of his colleagues' work. See AR at 589-97, 4964-65, 5458-60; D. MSJ, Ex. A.⁷ Among other things, dozens of other scientists have expressed concern that Hanson and his colleagues' studies failed to take into account important variables, inappropriately omitted data or findings that do not support his conclusions, and oversimplified results. See AR at 4964-65, 5458-60. The court finds the administrative record shows the Forest Service took a sufficiently hard look and its finding that the thinning and prescribed burning plan was not highly controversial was not arbitrary or capricious. As such, the court must defer to the Forest Service's review and analysis of the scientific evidence regarding thinning and prescribed burning.

Summary judgment will be denied to plaintiffs and granted to defendants on this claim.

B. Fuel Treatment More Than 100 Feet From Structures

Plaintiffs contend the EA was arbitrary because defendants ignored evidence that tree removal more than 100 feet away structures cannot effectively protect structures. P. MSJ at 37-40. Defendants argue the Forest Service had no obligation under NEPA to examine this evidence because protecting structures from ignition was not one of the purposes of the Project, but in any event the Forest Service considered the evidence proffered by plaintiffs. D. MSJ at 23-27.

As discussed above, the Project's purposes include increasing forest health and diversity and restoring a more fire-resilient forest structure. AR at 9-10. Although plaintiffs advocated for the Forest Service to alter the objective of the Project to focus on the protection of homes (see AR at 5467; see also P. MSJ at 37), it was not among the listed purposes of the Project. See AR at 9. Indeed, in response to comments, the Forest Service clarified that the “EA does not include home ignition in its purpose.” AR at 160. The Forest Service recognized that the actions needed to achieve the purposes of the Project, including fuel treatment, would reduce risk to communities and reduce fire behavior directly adjacent to communities so as to prevent undesirable fire effects. See AR at 9. But simply because reduced risk to communities is a byproduct of the Project's actions does not mean it was the purpose. As such, the Forest Service had no obligation to examine the evidence concerning the effectiveness of protecting homes by tree removal more than 100 feet away from structures. See City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986) (“When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.”).

Nevertheless, as discussed above, the Forest Service considered plaintiffs' evidence regarding the effectiveness of fuel treatments and found that the scientific consensus was that thinning followed by prescribed burning reduced the intensity and severity of wildfires. This, in turn, reduces the risk to adjacent communities. The Forest Service cited multiple studies that supported its conclusion that by reducing the severity and intensity of wildfires though fuel treatment, it would also protect homes by, among other things, creating defensible space. See, e.g., AR at 8648-77, 9532-9542.

Thus, the Forest Service's conclusions were not arbitrary and capricious. Summary judgment is therefore granted to defendants and denied to plaintiffs on this claim.

C. Forest Density

Plaintiffs argue that one of the stated goals of the Project is to “restore a fire-resilient forest structure” or “restore presettlement conditions,” but Hanson's analysis of the data relied on by the Forest Service contradicts its finding that the areas forests had become too dense. P. MSJ at 40-41. Plaintiffs contend there is no evidence in the record that the Forest Service adequately considered Hanson's conflicting analysis, and the Forest Service therefore failed to take a hard look at the issue of historical forest density. Id. at 42. Defendants assert that although the Forest Service was not obligated to address Hanson's analysis, it did so and explained why it discounted his opinion. D. MSJ at 27-29.

In his comments, Hanson stated that the study relied on by the Forest Service regarding forest conditions did not represent current forest conditions. AR at 1225. Hanson performed an analysis using information from the Silviculture Report and concluded the current forests in the Project area are substantially less dense than historical forests. Id. But the mere existence of a contrary study does not establish a project is highly controversial. See Blue Mountains Biodiversity Proj., 99 F.4th at 449 (a project is not highly controversial simply because experts disagree).

Further, the administrative record reflects the Forest Service considered Hanson's assertion and, in a memorandum, explained why it concluded Hanson's findings were faulty. AR at 587-89. The Forest Service found that although Hanson was purportedly reanalyzing data from one study, he was converting data to basal area values, which were not a part of that study. AR at 587. Further, the Forest Service noted Hanson failed to account for the variability of stand conditions through the Project area, failed to recognize that a range of historical basal area values could be considered appropriate, and the basal area used by him to represent the current condition was an oversimplification of the data set. AR at 587-88. The Forest Service further determined that even if Hanson's basal area calculations were sound, the conclusions were still flawed because he failed to recognize that basal area alone is inadequate for assessing structural forest change through time. AR at 588-89. Hanson also excluded critical information about size class and species composition. AR at 589.

Accordingly, the Forest Service's determination was not arbitrary and capricious. The Forest Service took a hard look and determined the issue of history forest density is not highly controversial. Defendants are therefore entitled to summary judgment on this claim and summary judgment is denied to plaintiffs.

VI.

ORDER

IT IS THEREFORE ORDERED that Plaintiffs' Motion for Summary Judgment (docket no. 30) is denied, and Defendants' Cross-Motion for Summary Judgment (docket no. 36) is granted. Judgment will be entered in favor of defendants.

FOOTNOTES

1.   The Council on Environmental Quality (“CEQ”) revised the regulations implementing NEPA in two phases in 2020 and 2024. See 85 Fed. Reg. 43304-01, 2020 WL 4001797 (Jul. 16, 2020); 89 Fed. Reg. 35442-01, 2024 WL 1886267 (May 1, 2024). The 2020 revisions applied to “any NEPA process begun after September 14, 2020,” although an agency had the discretion to apply them “to ongoing activities and environmental documents begun before” the effective date. 40 C.F.R. § 1506.13 (effective Sept. 14, 2020 through June 30, 2024). Here, the scoping process for the Project began on September 3, 2020 and both parties agreed the regulations in effect prior to September 14, 2020 apply. As such, unless otherwise stated, all references to statutes and regulations are to those in effect when the scoping process began.

2.   Under the phase one revisions (2020 revisions), rather than “context” and “intensity,” agencies were directed to consider the “potentially affected areas” and “degree of the effects.” 40 C.F.R. § 1501.3(b) (effective Sept. 14, 2020 through June 30, 2024). The CEQ excluded consideration of controversy “because the extent to which effects may be controversial is subjective and is not dispositive of effects' significance,” and directed an agency to look at the strength of the science instead. 85 Fed. Reg. 43304-01, 2020 WL 4001797 (Jul. 16, 2020). Under the phase two revisions, a significance determination once again requires consideration of “context” and “intensity,” but continues to exclude consideration of controversy as a relevant factor of intensity. See 40 CFR § 1501.3(d) (effective July 1, 2024).

3.   The Forest Service did not identify Hanson, Halsey, John Muir Project, or California Chaparral Institute by name in its response, but other than a few general comments opposed to thinning (AR at 2045, 2070, 2270), only Hanson and Halsey submitted extensive comments with citations and articles concerning forest thinning. See AR at 2521-4062. See also AR at 2085-89 (comment supporting fuel management and attaching article critical of Hanson).

4.   The Supreme Court's decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244 (2024), is inapplicable here. In Loper, the Supreme Court overruled Chevron U.S.A. Inc. v. Nat'l Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), and held that courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and may not defer to an agency interpretation of the law simply because a statute is ambiguous. 603 U.S. at 412-13. Here, the regulations set forth a procedural process and are not ambiguous. Instead, the question is whether the Forest Service followed the procedures set forth by NEPA. To the extent the court is required to defer to the agency here, it is to its review of scientific opinions and analysis, and not statutory interpretation.

5.   The court uses the terms wildfires and forest fires interchangeably.

6.   In the Complaint, plaintiff also alleges violations of NEPA based on defendants' failure to consider scientific evidence about the Project's impact on bald eagles and other species. None of the parties address these allegations in their respective summary judgment motions, and as such they are abandoned.

7.   Defendants represent Exhibit A to their summary judgment motion was available via an embedded link in the AR. See D. MSJ at 15 n.3. Plaintiffs do not dispute the link is embedded in the AR, but argue the court should not consider Exhibit A because defendants did not lay any foundation for it, why it is reliable, and that it is appropriate for consideration. P. Reply 15 n.2. The court only considers the fact that Exhibit A was among the documents relied upon by the Forest Service.

SHERI PYM United States Magistrate Judge