SIERRA CLUB v. BOSWORTH
The Ninth Circuit Court of Appeals today released an opinion in SIERRA CLUB v. BOSWORTH, No. 05-16989, an appeal in a civil action against the United States. The panel consisted of David R. Thompson, Andrew J. Kleinfeld, and Sidney R. Thomas, Circuit Judges.
THOMPSON, Senior Circuit Judge:
Appellants the Sierra Club and the Sierra Nevada Forest Protection Campaign (collectively, “Sierra Club”) appeal the district court’s summary judgment in favor of the United States Forest Service and Department of Agriculture (collectively, “Forest Service”), in their action alleging that the defendants violated the National Environmental Policy Act (”NEPA”), 42 U.S.C. §§ 4321-4370f. The Sierra Club challenges the Forest Service’s establishment of a NEPA categorical exclusion (”Fuels CE”) for all fuel reduction projects up to 1,000 acres and prescribed burn projects up to 4,500 acres on all national forests in the United States. We conclude that the Forest Service failed to assess properly the significance of the hazardous fuels reduction categorical exclusion and thus it failed to demonstrate that it made a “reasoned decision” to promulgate the Fuels CE based on relevant factors and information. Accordingly, its promulgation of the Fuels CE was arbitrary and capricious. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989); see also 40 C.F.R. § 1505.1. We reverse the district court’s summary judgment in favor of the Forest Service and remand this case for further proceedings as hereafter set forth. . . .
KLEINFELD, Circuit Judge, concurring:
I cannot bring myself to believe that a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious. And I cannot quite bring myself to believe that the categorical exclusion in this case, covering less than one half of one percent of federal land, will have a cumulative impact on our environment requiring years more research, analysis and report writing before we do anything to protect people from forest fires. As a matter of common sense, cutting brush and using controlled burns on parcels no larger than 1,000 acres and 4,000 acres respectively seems most likely to have the cumulative impact of reducing the catastrophic effect of forest fires on people. Nevertheless, the government’s brief does not point us to anything in the record that supports my intuitive view. The best I can find in the record is some scattered bits that were written after the categorical exclusion was made, saying that the categorical exclusion is not expected to contribute to adverse cumulative impacts on sensitive wildlife species. The briefs and record control, and the government has made no serious attempt to show us why the categorical exclusion was not arbitrary and capricious or that it gave the required “hard look” at the categorical exclusion before promulgating it. A judge’s duty is to decide the case based on the law and the record, not his personal policy preference. I am therefore compelled to concur. . . .