Alliance for the Wild Rockies v. Carl Petrick

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD No. 21-35504

ROCKIES,

D.C. No.

Plaintiff-Appellee, 2:19-cv-00332-

REP

v.

CARL PETRICK, his official capacity OPINION

as Forest Supervisor for the Idaho

Panhandle National Forests; UNITED

STATES FOREST SERVICE, an

agency of the U.S. Department of

Agriculture; UNITED STATES FISH

AND WILDLIFE SERVICE, an

agency of the U.S. Department of

Interior,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Idaho

Ronald E. Bush, Magistrate Judge, Presiding

2 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

ALLIANCE FOR THE WILD No. 21-35785

ROCKIES,

D.C. No.

Plaintiff-Appellee, 2:21-cv-00244-

BLW

v.

UNITED STATES FOREST

SERVICE, an agency of the U.S.

Department of Agriculture; CARL

PETRICK, in his official capacity as

Forest Supervisor for the Idaho

Panhandle National Forests,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted October 20, 2022

Seattle, Washington

Filed May 16, 2023

Before: Ryan D. Nelson, Danielle J. Forrest, and Jennifer

Sung, Circuit Judges.

Opinion by Judge R. Nelson

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 3

SUMMARY*

Environmental Law / Timber Projects

The panel vacated the district court’s grant of summary

judgment in Hanna Flats I, and vacated the district court’s

preliminary injunction in Hanna Flats II, in two appeals

involving an ongoing dispute over the Hanna Flats logging

project in the Idaho panhandle (the “Project”).

The United States Forest Service designated several

thousand acres of national forest for various treatments,

including commercial logging, to reduce the risk of wildfires

and disease. The Forest Service invoked a categorical

exclusion from National Environmental Policy Act (NEPA)

review for projects in the wildland-urban interface. In

Hanna Flats I, the district court granted summary judgment

for Alliance for the Wild Rockies, based on reasoning that

the record did not show that the Project fell within the

statutory definition of wildland-urban interface, and ordered

further analysis supporting the categorical exclusion on

remand. Subsequently, the Forest Service issued a

Supplement to the Decision Memo further justifying the

categorical exclusion. In Hanna Flats II, the district court

issued a preliminary injunction based on the reasoning that

the Forest Service could not invoke the categorical

exclusion.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

The panel held that in Hanna Flats I, the district court

erred in finding that Alliance’s public comments adequately

put the Forest Service on notice of its eventual claim.

The panel concluded that it had appellate jurisdiction.

First, the panel held that the appeal was not moot. The

parties did not intend to settle this matter; and the

government’s compliance with the judgment of a lower

court—even where compliance involved a new agency

decision—did not necessarily moot the appeal, especially

where some redress remained possible. Second, the Forest

Service had standing to pursue this appeal. The Forest

Service remains injured by the final judgment in Hanna

Flats I, and this court can redress that injury with a favorable

decision.

The panel next evaluated whether the doctrine of

administrative waiver barred Alliance’s challenge in Hanna

Flats I because Alliance did not raise its arguments during

the public-comment period. First, the panel held that the

Forest Service sufficiently preserved its notice argument,

even though it framed notice as an exhaustion requirement

below and as a waiver issue on appeal. Second, the panel

held that Alliance’s comments did not put the Forest Service

on notice of the wildland-urban interface issue. Alliance’s

vague and generalized statement that the district court cited,

contained within more than a hundred pages of comments,

did not provide sufficient notice to the government of

Alliance’s current concerns. Alliance therefore never gave

the Forest Service an opportunity to consider the issue

presented by Alliance’s eventual claim in federal

court. Alliance’s comment did not identify any violation of

the Healthy Forests Restoration Act (“HFRA”), nor did it

allege that the Project fell outside the wildland-urban

interface. In addition, Alliance’s other comments were even

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 5

more removed from Alliance’s claim. The panel remanded

for the district court to consider Alliance’s unaddressed

argument that there was no administrative-objection

requirement in this context.

In Hanna Flats II, which Alliance brought after the

Forest Service complied with the remand order and issued

the Supplement, the district court enjoined the

implementation of the Project because it found serious

questions about whether the Forest Service validly applied

HFRA’s categorical exclusion to the Project. First, the

parties disagreed on the standard of review that should be

applied to the Forest Service’s decision to rely on a

categorical exclusion. Pursuant to the text of the

Administrative Procedures Act (“APA”) and precedent, the

panel reviewed the Forest Service’s reliance on HFRA’s

categorical exclusion under the familiar arbitrary or

capricious standard. Next, the panel considered the district

court’s ruling that there were serious questions about the

application of the categorical exclusion. The panel held that

the district court did not, as the Forest Service contended,

impermissibly create and impose new procedural duties on

the Forest Service. It simply held the Forest Service to the

strictures already required by the APA (and, by extension,

HFRA). Turning to the district court’s analysis, the panel

agreed with the district court that, under these facts, the

Project’s location within the area designated as wildland-

urban interface by the Bonner County community plan was

not enough to establish the valid application of the

categorical exclusion. However, the district court’s

conclusion—that there were serious questions whether the

categorical exclusion applied—was based on an erroneous

interpretation of the HFRA. Because the preliminary

injunction was based on faulty legal premises, the panel

6 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

vacated and remanded. Finally, the panel held that there was

no reason to conclude that it should exercise its equitable

discretion to leave an injunction in place that was wrongly

granted, and where there was no clear likelihood of success

on another claim.

COUNSEL

Joan M. Pepin (argued), Rachel E. Heron, John P. Tustin,

and Emma L. Hamilton, Attorneys; Todd Kim, Assistant

Attorney General; Environment and Natural Resources

Division, United States Department of Justice; Washington,

D.C.; Rickey D. Turner, Attorney; Environment and Natural

Resources Division, United States Department of Justice;

Denver, Colorado; Elise Foster, Attorney; United States

Department of Agriculture, Office of the General Counsel;

Washington, D.C.; for Defendants-Appellants.

Rebecca K. Smith (argued), Public Interest Defense Center,

Missoula, Montana, for Plaintiff-Appellee.

OPINION

R. NELSON, Circuit Judge:

We address two appeals involving an ongoing dispute

over the Hanna Flats logging project (the Project) in the

Idaho panhandle. The United States Forest Service

designated several thousand acres of national forest for

various treatments, including commercial logging, to reduce

the risk of wildfires and disease. The Forest Service invoked

a categorical exclusion from National Environmental Policy

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 7

Act (NEPA) review for projects “in the wildland-urban

interface.” 16 U.S.C. § 6591b(c)(2)(A).

In the first case (Hanna Flats I), the district court granted

summary judgment for Alliance for the Wild Rockies

(Alliance), reasoning that the record did not show that the

Project fell within the statutory definition of “wildland-

urban interface,” and ordered further analysis supporting the

categorical exclusion on remand.

The Forest Service complied and issued a Supplement to

the Decision Memo further justifying the categorical

exclusion. But in a new action (Hanna Flats II), the district

court issued a preliminary injunction, again reasoning that

the Forest Service could not invoke the categorical

exclusion.

We find reversible error in both cases. In Hanna Flats I,

we conclude that the district court erred in finding that

Alliance’s comment adequately put the Forest Service on

notice of its eventual claim. We remand to the district court

to consider Alliance’s unaddressed argument that there is no

administrative-objection requirement in this context.

In Hanna Flats II, we agree with the district court that,

under these facts, the Project’s location within the area

designated as wildland-urban interface by the Bonner

County community plan alone is not enough to establish the

valid application of the categorical exclusion. But the

district court’s conclusion that there were serious questions

whether the categorical exclusion applied was based on an

erroneous interpretation of the Healthy Forests Restoration

Act (HFRA). Because the preliminary injunction was issued

on faulty legal premises, we vacate it and remand.

8 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

I

This case involves the interplay between two statutory

regimes: NEPA and HFRA. “Congress enacted NEPA to

establish a national policy for the environment.” Mountain

Cmtys. for Fire Safety v. Elliott, 25 F.4th 667, 674 (9th Cir.

2022). “NEPA imposes only procedural requirements on

federal agencies with a particular focus on requiring

agencies to undertake analyses of the environmental impact

of their proposals and actions.” Dep’t of Transp. v. Pub.

Citizen, 541 U.S. 752, 756–57 (2004). NEPA requires the

preparation of an environmental impact statement (EIS) for

“every recommendation or report on proposals for . . . major

Federal actions significantly affecting the quality of the

human environment.” Friends of Se.’s Future v. Morrison,

153 F.3d 1059, 1062 (9th Cir. 1998) (quoting 42 U.S.C. §

4332(C)).

To decide whether an EIS is needed, the agency can first

prepare an environmental assessment (EA) “to determine

whether a proposed federal action will have a significant

impact.” Native Ecosystems Council v. U.S. Forest Serv.,

428 F.3d 1233, 1238–39 (9th Cir. 2005) (citation omitted).

“Some actions, however, are categorically excepted or

excluded from NEPA’s procedural requirements.” Ctr. for

Biological Diversity v. Ilano, 928 F.3d 774, 777 (9th Cir.

2019). When a categorical exclusion applies, the agency

need not prepare an EIS or EA. Mountain Cmtys. for Fire

Safety, 25 F.4th at 675.

HFRA creates one such statutory exclusion. HFRA

“directs the Forest Service to take action to ‘reduce wildfire

risk’ and ‘enhance efforts to protect watersheds and address

threats to forest and rangeland health.’” WildWest Inst. v.

Bull, 547 F.3d 1162, 1165 (9th Cir. 2008) (quoting 16 U.S.C.

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 9

§ 6501(1), (3)). “Specifically, the Forest Service is required

‘[a]s soon as practicable’ to implement an ‘authorized

hazardous fuel reduction project[]’ on federal land” where

certain imminent risks exist. Id. (alterations in original)

(quoting 16 U.S.C. § 6512(a)(4)). HFRA also requires

public notice of the decision-making process and public

collaboration. Id. at 1166. And typically, projects under

HFRA require NEPA compliance, meaning the preparation

of an EA and potentially an EIS. See id. at 1165 (citing 16

U.S.C. § 6514(a)).

But HFRA provides a statutory categorical exclusion to

NEPA when the project is located “in the wildland-urban

interface.” 16 U.S.C. § 6591b(c)(2)(A). Broadly speaking,

a “wildland-urban interface” is an area where structures and

other human development intermingle with undeveloped

wild areas. Wildfires pose extraordinary risks to life and

property in such areas. HFRA specifically defines a

“wildland-urban interface” as “an area within or adjacent to

an at-risk community that is identified in recommendations

to the Secretary in a community wildfire protection plan.”

Id. § 6511(16)(A) (emphases added).1 An “at-risk

community” must satisfy multiple requirements; as relevant

here, it “is comprised of . . . a group of homes and other

structures with basic infrastructure and services . . . within

or adjacent to Federal land.” Id. § 6511(1)(A)(ii).

A

In August 2017, the Forest Service issued a Scoping

Notice announcing an agency project in the Idaho Panhandle

1

A separate definition applies “in the case of any area for which a

community wildfire protection plan is not in effect.” Id. § 6511(16)(B).

That definition is not applicable here because there is a community

wildfire protection plan in place.

10 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

National Forests within Bonner County, Idaho. The Project

involves several treatments, including commercial thinning,

noncommercial thinning, and prescribed burning. The

Forest Service, through the Project, seeks to remove forest

fuel hazards to minimize wildfire risk and remove diseased

trees spanning 6,814 acres, nearly 97% of which is public

land.

The Forest Service sought public comment. The

Scoping Notice stated that the Project would likely be

exempt from NEPA because of HFRA’s categorical

exclusion, since “the entire project area is in the wildland-

urban interface,” as defined by Bonner County’s

Community Wildfire Protection Plan (the Bonner County

community plan). Members of the public, including

Alliance, provided extensive comments.

The Forest Service issued a Decision Memo authorizing

the Project. Like the Scoping Notice, the Decision Memo

invoked HFRA’s categorical exclusion because the Project

fell within the wildland-urban interface.

B

In Hanna Flats I, Alliance brought several claims

seeking judicial review of the Forest Service’s Decision

Memo approving the Project. All. for the Wild Rockies v.

Higgins, 535 F. Supp. 3d 957, 962 (D. Idaho 2021). At issue

on appeal is Alliance’s claim that the Project does not qualify

for HFRA’s categorical exclusion because it is not within the

“wildland urban interface.”

The parties cross-moved for summary judgment, and the

district court granted summary judgment for Alliance. Id. at

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 11

975, 981.2 First, the district court ruled that Alliance had

sufficiently exhausted its administrative remedies. Id. at

974–75. Then, the district court concluded that the record

did not show that the Project qualified for the categorical

exclusion. Id. at 975–79. Though the Forest Service

determined that the Project fell within the wildland-urban

interface as identified in the Bonner County community

plan, that plan defines wildland-urban interface differently

than does the HFRA. Id. at 979. Thus, the community plan

could not support use of the categorical exclusion. Id.

Finally, the district court concluded that remand without

vacatur was proper. Id. at 980. The district court directed

the Forest Service to issue a supplemental Decision Memo

to explain how the Project area falls within the wildland-

urban interface under HFRA. Id. at 980–81.

About a month later, the Forest Service issued a

Supplement to the Decision Memo (the Supplement). The

Forest Service explained that the Project fell within the

wildland-urban interface—and thus qualified for the

categorical exclusion—because it was “entirely within the

Bonner County [wildland-urban interface] as it is defined in

the County’s [community wildfire protection plan].” The

Supplement provided a map of the Project, the surrounding

area, and the Bonner County community plan’s wildland-

urban interface. It also highlighted nearby locations

Nordman and Lamb Creek as at-risk communities.

In Hanna Flats II, Alliance sued the Forest Service again

and sought a preliminary injunction against implementation

of the Project. All. for the Wild Rockies v. Pierson, 550 F.

2

Chief Magistrate Judge Bush decided Hanna Flats I with the parties’

consent. See 28 U.S.C. § 636(c).

12 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

Supp. 3d 894, 895 (D. Idaho 2021). The district court

granted the motion, noting “serious questions” about the

valid application of the categorical exclusion to the Project.

Id. at 898. The district court reasoned that the Bonner

County community plan still could not justify use of the

categorical exclusion because it departed from HFRA’s

definition of wildland-urban interface. Id. at 899–900. The

district court also rejected the Forest Service’s argument that

the Supplement demonstrated that Nordman and Lamb

Creek were “at-risk communities” under HFRA. Id. at 901–

04. The Forest Service appealed both orders.

II

We begin with the Forest Service’s appeal of the district

court’s grant of summary judgment in Hanna Flats I. We

have jurisdiction under 28 U.S.C. § 1291 and “review de

novo a district court’s grant of summary judgment.” Ctr. for

Biological Diversity v. U.S. Fish & Wildlife Serv., 33 F.4th

1202, 1216 (9th Cir. 2022) (citation omitted). When a “case

involves review of a final agency determination under the

Administrative Procedure Act,” our “review is limited to the

administrative record.” Nw. Motorcycle Ass’n v. U.S. Dep’t

of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).

A

We start with jurisdiction. Alliance argues that Hanna

Flats I is moot because the Forest Service has completed its

remand analysis and provided thirty days’ notice from the

start of the Project, as ordered by the district court.3 Alliance

3

We denied the motion to dismiss for lack of jurisdiction without

prejudice to renewing the arguments in the answering brief. Though the

briefing on appeal raises a slightly different theory, we consider the full

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 13

also argues that the Forest Service lacks standing because it

has complied with the remand order. Alliance is incorrect,

and we decline to dismiss the Hanna Flats I appeal.

1

To begin, the appeal is not moot. Article III “requires

that an actual, ongoing controversy exist at all stages of

federal court proceedings.” Bayer v. Neiman Marcus Grp.,

Inc., 861 F.3d 853, 862 (9th Cir. 2017) (quoting Pitts v.

Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011)).

“The basic question in determining mootness is whether

there is a present controversy as to which effective relief can

be granted.” Id. (quoting Ruiz v. City of Santa Maria, 160

F.3d 543, 549 (9th Cir. 1998)).

“Compliance with a judgment pending appeal presents

distinctive mootness questions,” but “[t]he general rule is

now well settled: the case is not moot unless the parties

intended to settle, or unless it is not possible to take any

effective action to undo the results of compliance.” 13B

Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 3533.2.2 (3d ed.); see United States ex rel.

Morgan & Son Earth Moving, Inc. v. Timberland Paving &

Constr. Co., 745 F.2d 595, 598 (9th Cir. 1984) (“The usual

rule in federal courts is that satisfaction of judgment does not

foreclose appeal.”). Here, the parties did not intend to settle

this matter. And a long line of Supreme Court authority

instructs that the government’s compliance with the

judgment of a lower court—even where compliance

extent of the arguments to ensure our jurisdiction. Snell v. Cleveland,

Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“[A] court may raise the question

of subject matter jurisdiction, sua sponte, at any time during the

pendency of the action, even on appeal.”).

14 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

involves a new agency decision—does not necessarily moot

an appeal, especially where some redress remains possible.

For example, the issuance of provisional regulations by

the Secretary of the Department of Health and Human

Services did not moot controversy over the validity of the

original regulations. Schweiker v. Gray Panthers, 453 U.S.

34, 42 n.12 (1981). “In issuing the provisional regulations,

the Secretary simply was adhering to the lower court’s

reasoning and mandate,” and the Secretary had represented

“that the new regulations probably would be rescinded if the

Court of Appeals’ decision were reversed.” Id. Likewise,

the adoption of a new regulation did not moot an appeal

involving the previous regulation when the new regulation

was “only for the purpose of interim compliance with the

District Court’s judgment and order” and when the “appeal

was taken and submitted on the theory that [the state] desires

to reinstate the invalidated regulation.” Maher v. Roe, 432

U.S. 464, 468 n.4 (1977). And a revision to challenged

regulations to comply with a court order did not moot the

case when the government’s subsequent actions were

“consistent with a desire to reinstate its prior regulations.”

Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S.

788, 791 n.1 (1985).

So too here. The Forest Service’s compliance with the

district court’s judgment does not moot this appeal. The

Forest Service issued the Supplement “in response to the

Idaho District Court’s order.” The Forest Service has

consistently claimed it should be allowed to proceed based

on the original Decision Memo alone and intends to rescind

the Supplement if this court reverses the decision below.

The agency rightly complied with the district court’s

judgment. Still, the effect of that compliance can be undone

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 15

by withdrawal of the Supplement that the judgment

mandated. Thus, the matter is not moot.

2

For similar reasons, the Forest Service has standing to

pursue this appeal. The doctrine of standing, which also

arises from Article III, “requires the litigant to prove that he

has suffered a concrete and particularized injury that is fairly

traceable to the challenged conduct, and is likely to be

redressed by a favorable judicial decision.” Hollingsworth

v. Perry, 570 U.S. 693, 704 (2013). This requirement

persists “throughout all stages of litigation” and “must be

met by persons seeking appellate review, just as it must be

met by persons appearing in courts of first instance.” Id. at

705 (quoting Arizonans for Off. English v. Arizona, 520 U.S.

43, 64 (1997)).

Alliance contends that the Forest Service lacks any

redressable injury because this court can no longer provide

any relief in Hanna Flats I given the Forest Service’s

Supplement. According to Alliance, even a favorable

decision from this court cannot remedy the Forest Service’s

voluntary compliance with the district court’s remand order.

Yet Alliance does not dispute that the district court’s

judgment renders the Forest Service unable to withdraw the

Supplement, as the Forest Service currently wishes to do.

And although the remand order from Hanna Flats I has been

fully complied with, we have the power to undo the effects

of that compliance. Cf. DBSI/TRI IV Ltd. P’ship v. United

States, 465 F.3d 1031, 1039 (9th Cir. 2006) (holding that

appeal remained justiciable despite compliance with court-

ordered sale because sale could “be undone”). The Forest

Service remains injured by the final judgment in Hanna

16 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

Flats I, and this court can redress that injury with a favorable

decision. Therefore, the Forest Service has standing.

Alliance relies on Natural Resource Defense Council v.

Gutierrez for the proposition that an agency has “no standing

to challenge the district court’s legal rulings in the abstract.”

457 F.3d 904, 906 (9th Cir. 2006) (per curiam). That case

involved a unique set of facts where an agency did “not

challenge” the only relief granted (a permanent injunction)

and instead sought only to excise a portion of the district

court’s ruling stating that the agency had violated a statute.

Id. We declined to “line-edit the district court’s ruling”

because parties must seek “a reversal or a modification of

the relief granted by the district court.” Id. (citation

omitted). Here, by contrast, the Forest Service seeks to

reverse the relief granted by the district court by

withdrawing the Supplement that it was ordered to create.

Alliance also cites Crow Indian Tribe v. United States,

965 F.3d 662 (9th Cir. 2020). There, we rejected a challenge

to our appellate jurisdiction, distinguishing Gutierrez

because the Fish and Wildlife Service did “challenge what

the district court ordered it to do on remand.” Id. at 676. The

Fish and Wildlife Service was therefore not “merely

seek[ing] an advisory opinion.” Id. Likewise here, the

Forest Service challenges what the district court ordered it to

do on remand. Though Crow Indian Tribe involved a

challenge made before the agency complied with the

remand, that does not alter its application because, as

discussed, the Forest Service can still turn to this court to

undo the order’s effects.

We therefore conclude that the doctrines of mootness

and standing do not deprive us of appellate jurisdiction and

so turn to the merits of the appeal.

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 17

B

We next evaluate whether the doctrine of administrative

waiver bars Alliance’s challenge in Hanna Flats I because

Alliance did not raise its arguments during the public-

comment period.

“[A]s a general rule . . . courts should not topple over

administrative decisions unless the administrative body not

only has erred but has erred against objection made at the

time appropriate under its practice.” United States v. L. A.

Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952); see Sisley

v. DEA, 11 F.4th 1029, 1035 (9th Cir. 2021) (same). And

absent exceptional circumstances, failure to raise arguments

before an agency, such as in comments during a public-

comment process, usually waives a litigant’s rights to make

those arguments in court. See Exxon Mobil Corp. v. EPA

217 F.3d 1246, 1249 (9th Cir. 2000) (“Petitioners have

waived their right to judicial review of these final two

arguments as they were not made before the administrative

agency, in the comment to the proposed rule . . . .”). Thus,

the question is whether Alliance adequately raised in its

public comments that the Project was not within the

wildland-urban interface or that the wildland-urban interface

was not a basis for the exclusion.

1

At the start, we note the Forest Service has created some

confusion about its precise argument. On appeal, the Forest

Service frames the issue as one of administrative waiver.

Yet below, the Forest Service framed the issue as one of

administrative exhaustion. This change in the Forest

Service’s framing of the issue matters because waiver and

exhaustion are related but distinct doctrines: “the waiver rule

only forecloses arguments that may be raised on judicial

18 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

review; it is not an exhaustion of remedies rule that

forecloses judicial review.” Universal Health Servs., Inc. v.

Thompson, 363 F.3d 1013, 1020 (9th Cir. 2004). Further,

the waiver and exhaustion doctrines do not apply under the

same circumstances and do not have the same exceptions.

See, e.g., Portland Gen. Elec. Co. v. Bonneville Power

Admin., 501 F.3d 1009, 1023–24 (9th Cir. 2007) (discussing

differences).

For purposes of this appeal, we understand the Forest

Service to be specifically invoking the doctrine of waiver.

In fact, the Forest Service’s reply brief expressly disclaims

reliance on the doctrine of exhaustion.

There is no “bright line rule” when determining whether

a matter has been properly raised below, but the usual

standard requires simply “that the argument . . . be raised

sufficiently for the trial court to rule on it.” Yamada v. Nobel

Biocare Holding AG, 825 F.3d 536, 543 (9th Cir. 2016)

(quoting Whittaker Corp. v. Execuair Corp., 953 F.2d 510,

515 (9th Cir. 1992)). The Forest Service’s labelling of its

argument is not dispositive in this instance, as even this court

has “phrased” waiver principles “in terms of standing or

exhaustion.” Portland Gen. Elec. Co., 501 F.3d at 1023.

Not that the doctrines are the same, or that any time the

government raises exhaustion, it can change course and

argue waiver on appeal. But the question of preservation

should not elevate form over substance, particularly on an

issue where labels have been used imprecisely in the past.

The Forest Service sufficiently preserved its notice

argument, even though it framed notice as an exhaustion

requirement below and as a waiver issue on appeal. Looking

to the essence of the Forest Service’s argument below, the

parties focused on whether Alliance’s comments

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 19

“sufficiently alerted” the Forest Service “of its concern about

how the wildland-urban interface was delineated for the

Project.” Hanna Flats I, 535 F. Supp. 3d at 974. That

inquiry, asking whether arguments had been “adequately

raised before the agency” during a public-comment period,

is an element of both exhaustion and waiver, but turns on a

principle “best characterized as waiver.” Portland Gen.

Elec. Co., 501 F.3d at 1023. The district court concluded

that Alliance “put [the Forest Service] on notice of the

issue,” 535 F. Supp. 3d at 974, which created a sufficient

record for us to review the question of whether Alliance gave

adequate notice on appeal, W. Watersheds Project v. U.S.

Dep’t of Interior, 677 F.3d 922, 925 (9th Cir. 2012) (“There

is no waiver if the issue was raised, the party took a position,

and the district court ruled on it.”). We thus assess the Forest

Service’s notice argument.

2

We conclude that Alliance’s comments did not put the

Forest Service on notice of the wildland-urban interface

issue. The district court relied on a single comment from

Alliance to satisfy notice:

The forest plan Glossary definition of

[wildland-urban interface] under (A) has

allowed entities other than the general public

to set [wildland-urban interface] boundaries

outside of NEPA . . . processes, and under (B)

defines it so vaguely as to expand the

delineation of the [wildland-urban interface]

greatly – again outside . . . NEPA processes.

20 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

See Hanna Flats I, 535 F. Supp. 3d at 974. This sole

statement bears little resemblance to Alliance’s arguments in

court.

The doctrine of administrative waiver “protects the

agency’s prerogative to apply its expertise, to correct its own

errors, and to create a record for our review.” Portland Gen.

Elec. Co., 501 F.3d at 1024. “In general, we will not invoke

the waiver rule in our review of a notice-and-comment

proceeding if an agency has had an opportunity to consider

the issue.” Id. But challengers to government action cannot

avoid waiver with “cryptic and obscure” objections or issues

presented at a very high level of generality. See Vermont

Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

435 U.S. 519, 553–54 (1978). Rather, they must present

timely and “particular objections” that “alert[] the agency to

the [parties’] position and contentions” and allow “the

agency to give the issue meaningful consideration.” Pub.

Citizen, 541 U.S. at 764 (second alteration in original)

(citation omitted); see Lands Council v. McNair, 629 F.3d

1070, 1076 (9th Cir. 2010).

Here, Alliance’s vague and generalized statement that

the district court cites, contained within more than a hundred

pages of comments, did not provide sufficient notice to the

government of Alliance’s current concerns. That comment

complains only that the definition of “wildland-urban

interface” is vague and allows “entities other than the

general public to set [wildland-urban interface] boundaries.”

This may reflect a broad concern about the size of the

wildland-urban interface. And it may even be a criticism of

HFRA. But it is not a claim that the Forest Service has

violated HFRA—the claim raised in court.

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 21

Alliance therefore never gave the Forest Service “an

opportunity to consider the issue,” Portland Gen. Elec. Co.,

501 F.3d at 1024, presented by Alliance’s eventual claim in

federal court: “The Forest Service has failed to establish that

this Project is in ‘wildland urban interface’ as defined under

the HFRA.” Alliance’s comment does not identify any

violation of HFRA; nor does it allege that the Project falls

outside the wildland-urban interface. Even more, the

wildland-urban interface definition complained about (found

in the glossary of terms attached to the Idaho Panhandle

National Forests Land Management Plan) is identical to

HFRA’s definition of wildland-urban interface. This

comment could not have reasonably alerted the Forest

Service to Alliance’s eventual claim that the Project violated

HFRA’s definition of wildland-urban interface, when the

comment complained of the very definition used by HFRA.

Alliance also points to other comments and portions of

the record. For example, Alliance cites comments

requesting a map of the density of human residences within

1.5 miles of the project unit boundaries, the exact criteria for

a place to be designated as a “landscape-scale insect and

disease area,” and a detailed map of condition classes and

fire regimes. Alliance argues that, taken together, the record

shows that the Forest Service was on notice that it lacked a

basis to categorically exempt the Project from NEPA “based

upon a claimed need for wildland-urban interface fuels

reduction to protect structures or residences” in the Project.

Yet these comments are even more removed from Alliance’s

claim. The Forest Service may have been broadly aware that

Alliance was concerned about the need for the Project or the

potential lack of risk to local communities or structures

because of wildfire. But Alliance did not mention before the

agency that the Forest Service failed to establish that the

22 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

Project was in the wildland-urban interface as defined by

HFRA. That is the claim that Alliance has raised in court.

Alliance did not put the Forest Service on notice about

the issue that would provide the basis for Alliance’s eventual

claim in federal court. The district court erred in concluding

otherwise.4

***

The district court’s grant of summary judgment for

Alliance was based on the incorrect conclusion that

Alliance’s public comments sufficiently alerted the Forest

Service of the concerns that undergird its current court

challenge. We thus vacate the grant of summary judgment

and remand for the district court to consider in the first

instance whether any such comments were necessary to

challenge a project exempted from NEPA analysis by a

categorical exclusion.

III

We now address Hanna Flats II, which Alliance brought

after the Forest Service complied with the remand order and

4

Alliance provides an alternative argument for affirmance on this issue:

that challengers need not file an administrative objection for projects

exempted from NEPA analysis with a categorical exclusion. The district

court declined to resolve this issue below. Hanna Flats I, 535 F. Supp.

3d at 974 n.14. “[W]e generally do not resolve issues that the district

court did not first reach.” Munden v. Stewart Title Guar. Co., 8 F.4th

1040, 1049 (9th Cir. 2021). While we have discretion to resolve this

question, Singleton v. Wulff, 428 U.S. 106, 120–21 (1976), the issue is

better left for the district court in the first instance on remand. Alliance

may raise other waiver-specific arguments that the district court

concludes were reasonably not made previously given the Forest

Service’s framing of the issue as one of exhaustion.

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 23

issued the Supplement.5 The district court enjoined the

implementation of the Project because it found “serious

questions” about whether the Forest Service validly applied

HFRA’s categorical exclusion to the Project. Hanna Flats

II, 550 F. Supp. 3d at 898. We have jurisdiction under 28

U.S.C. § 1292(a)(1) and vacate the preliminary injunction.

A

To obtain a preliminary injunction, a plaintiff must

establish that (1) it is likely to prevail on the merits of its

substantive claims, (2) it is likely to suffer imminent,

irreparable harm absent an injunction, (3) the balance of

equities favors an injunction, and (4) an injunction is in the

public interest. Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20, 22–23 (2008). This court has also instructed that

“‘serious questions going to the merits’ and a hardship

balance that tips sharply toward the plaintiff can support

issuance of an injunction, assuming the other two elements

of the Winter test are also met.” All. for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).

We review a district court’s decision to grant a

preliminary injunction for abuse of discretion. Sw. Voter

Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th

Cir. 2003) (en banc). “An abuse of discretion will be found

if the district court based its decision on an erroneous legal

standard or clearly erroneous finding of fact.” Cottrell, 632

F.3d at 1131 (internal quotation marks and citation omitted).

We review conclusions of law de novo and findings of fact

for clear error and “will not reverse the district court where

it got the law right, even if we would have arrived at a

5

The Forest Service concedes that it did not raise an administrative

waiver argument in Hanna Flats II.

24 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

different result, so long as the district court did not clearly

err in its factual determinations.” Id. (internal quotation

marks and citation omitted).

B

The parties disagree at the outset about the standard of

review that we apply to the Forest Service’s decision to rely

on a categorical exclusion. The Forest Service submits that

we should apply the traditional “arbitrary or capricious”

standard. But Alliance argues that a less deferential standard

of “reasonableness” applies.

Usually, where a statute fails to provide a private right of

action, judicial review of an agency action proceeds under

the Administrative Procedure Act (APA). See Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 882–83 (1990); 5 U.S.C. § 702

(“A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial

review thereof.”). Under the APA, an agency action may not

be upheld if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). Here, “neither NEPA nor HFRA

provide for a private right of action” for violating their

provisions. Wild Watershed v. Hurlocker, 961 F.3d 1119,

1125 (10th Cir. 2020); accord Lujan, 497 U.S. at 882

(addressing NEPA); Native Ecosystems Council v. Erickson,

330 F. Supp. 3d 1218, 1228 (D. Mont. 2018) (addressing

HFRA). Thus, the general rule suggests that we apply

arbitrary or capricious review.

To support its contention that a reasonableness standard

should apply, Alliance invokes our instruction that “the less

deferential standard of ‘reasonableness’ applies to threshold

agency decisions that certain activities are not subject to

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 25

NEPA’s procedures.” Northcoast Env’t Cent. v. Glickman,

136 F.3d 660, 667 (9th Cir. 1998). Glickman involved

review of an agency’s determination that an EIS was not

required because the project did not constitute a “major

federal action.” Id. We applied a more stringent standard

since the dispute “involve[d] primarily legal issues . . . based

upon undisputed historical facts.” Id.; see Alaska Wilderness

Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 727

(9th Cir. 1995) (“We find that it makes sense to distinguish

the strong level of deference we accord an agency in

deciding factual or technical matters from that to be

accorded in disputes involving predominantly legal

questions.”).

Yet Glickman did not involve the invocation of a

categorical exclusion. Alliance cites no authority

establishing that a “reasonableness” standard applies in this

context. Quite the contrary, we have consistently reviewed

an agency’s reliance on a categorical exclusion under the

arbitrary or capricious standard. See Alaska Ctr. for the

Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.5 (9th Cir.

1999) (“The question of whether an action . . . fits within the

categorical exclusion is a factual determination that

implicates substantial agency expertise and is reviewed

under the arbitrary and capricious standard.”); see also

Mountain Cmtys. for Fire Safety, 25 F.4th at 680 (“Given the

deferential standard of review, we cannot say that the Forest

Service’s decision to apply [the categorical exclusion] was

arbitrary and capricious.”); Alcoa, Inc. v. Bonneville Power

Admin., 698 F.3d 774, 795 (9th Cir. 2012) (“We will uphold

an agency’s reliance on a categorical exclusion if ‘the

application of the exclusions to the facts of the particular

action is not arbitrary and capricious.’”) (quoting Bicycle

26 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 &

n.5 (9th Cir. 1996)).

Following the text of the APA and our precedent, we

review the Forest Service’s reliance on HFRA’s categorical

exclusion under the familiar arbitrary or capricious standard.

Applying that standard, we set aside an agency’s action

if the agency has relied on factors which

Congress has not intended it to consider,

entirely failed to consider an important aspect

of the problem, offered an explanation for its

decision 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.

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

C

Turning to the merits, the district court ruled that there

were “serious questions as to whether the [Forest Service]

has adequately demonstrated that the Project area falls

within HFRA’s statutory definition of the wildland-urban

interface, and thus whether the [Forest Service’s] invoking

of HFRA’s categorical exclusion is unlawful.” Hanna Flats

II, 550 F. Supp. 3d at 899. The Forest Service challenges

this ruling on multiple grounds, which we address in turn.

1

The Forest Service first contends that the district court

violated the prohibition against “impos[ing] procedural

requirements not explicitly enumerated in the pertinent

statutes,” Lands Council v. McNair, 537 F.3d 981, 993 (9th

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 27

Cir. 2008) (en banc) (internal quotation marks and citation

omitted), by creating a new duty to analyze and show the

wildland-urban interface’s location before invoking the

categorical exclusion.

The Forest Service relies on Oregon Natural Desert

Association v. U.S. Forest Service, where we rejected an

argument under the APA and National Forest Management

Act (NFMA) that the agency acted arbitrarily or capriciously

when it failed to “analyze and show” that grazing

authorizations were consistent with the governing forest

plan. 957 F.3d 1024, 1033–35 (9th Cir. 2020). There, we

distinguished caselaw about an agency’s obligations to

produce NEPA-mandated documentation because NEPA did

not govern. Id. at 1034. We emphasized that the particular

duty invoked by plaintiff—mandating “a project’s

consistency analysis to be memorialized at the time the

project is authorized”—did not apply “in the absence of

NEPA’s requirements.” Id. Nor did any “statute, regulation,

or caselaw” impose the specific obligation “to memorialize

each site-specific grazing authorization’s consistency with

the forest plan.” Id. We declined to read that duty into the

APA or NFMA and therefore concluded that “the absence of

such a document [was] not in itself arbitrary and capricious.”

Id.

Oregon Natural Desert Association does not control.

The district court did not craft any new procedural duties or

graft duties from other statutory schemes. The district court

concluded that there were serious questions about whether

the Forest Service had “adequately demonstrated” that the

Project fell within the wildland-urban interface, but it did not

impose any duties beyond what the APA requires. Hanna

Flats II, 550 F. Supp. 3d at 899.

“[T]he touchstone of ‘arbitrary and capricious’ review under

28 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

the APA is ‘reasoned decisionmaking.’” Altera Corp. &

Subsidiaries v. Comm’r, 926 F.3d 1061, 1080 (9th Cir. 2019)

(quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52). That

means an agency’s action can only survive arbitrary or

capricious review where it has “articulate[d] a satisfactory

explanation for its action including a ‘rational connection

between the facts found and the choice made.’” Id. (citation

omitted); see Cal. Pub. Utils. Comm’n v. FERC, 29 F.4th

454, 463 (9th Cir. 2022).

Tracking the duties already imposed by the APA, the

district court concluded that the exclusive justification found

in the record for applying the categorical exclusion—that the

Project is within the Bonner County community plan’s

definition of the wildland-urban interface—did not provide

a satisfactory explanation for avoiding NEPA compliance.6

Hanna Flats II, 550 F. Supp. 3d at 900. Though the district

court also noted the Forest Service’s “failure to conduct an

analysis” applying HFRA’s definition of wildland-urban

interface, it only did so because it found the Forest Service’s

“exclusive reliance” on the Bonner County community

plan’s definition insufficient. Id. The district court did not

purport to create a freestanding duty that the Forest Service

conduct a type of independent analysis to be memorialized

in every categorical-exclusion case.

In sum, the district court did not, as the Forest Service

contends, impermissibly create and impose new procedural

6

Moreover, Alliance’s claim is not limited to arguing that the Forest

Service had a unique procedural duty to independently analyze the

location of the wildland-urban interface. Alliance alleges more broadly

that the Forest Service “violate[d] . . . HFRA” by relying on the Bonner

County community plan which did not use “the definition of ‘at-risk

community’ from the HFRA to define and map its wildland urban

interface.”

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 29

duties on the Forest Service. It simply held the Forest

Service to the strictures already required by the APA (and,

by extension, HFRA). The question thus becomes whether

the district court’s analysis was proper.

2

The Forest Service next contends that its Decision Memo

and Supplement offered a sufficient explanation for use of

the categorical exclusion simply by noting that the Project is

within the wildland-urban interface identified by the Bonner

County community plan.

Under HFRA, the wildland-urban interface is “an area

within or adjacent to an at-risk community that is identified

. . . in a community wildfire protection plan.” 16 U.S.C. §

6511(16)(A). Here, Bonner County adopted such a plan, and

the Project falls within the area defined by the plan as

wildland-urban interface. The Forest Service emphasizes

that the local community—not the Forest Service—

identifies the wildland-urban interface in a community plan.

And so the Forest Service argues that it can simply rely on

the fact that the Project is within the Bonner County

community plan’s identified wildland-urban interface;

nothing else is required when invoking HFRA’s categorical

exclusion.

The district court rejected this argument, emphasizing

that the Bonner County community plan “uses a definition

that is inconsistent with HFRA’s definition of the wildland-

urban interface.” Hanna Flats II, 550 F. Supp. 3d at 899

(citing Hanna Flats I, 535 F. Supp. 3d at 978–79). Adopting

analysis from the summary judgment order in Hanna Flats

I, the district court explained:

30 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

Although a county’s wildfire protection plan

can be relied upon in assessing the wildland-

urban interface, where, as here, a wildfire

protection plan defines the wildland-urban

interface differently than HFRA, the wildfire

protection plan definition cannot provide the

justification for a categorical exclusion under

HFRA.

Id. (internal quotation marks omitted).

We reject the Forest Service’s argument as well. What

constitutes a wildland-urban interface is specifically defined

by HFRA: in pertinent part, it is “an area within or adjacent

to an at-risk community that is identified in

recommendations to the Secretary in a community wildfire

protection plan.” 16 U.S.C. § 6511(16)(A). HFRA further

defines “at-risk community” as an area “that is comprised

of” “an interface community” as defined by federal

regulation, or “a group of homes and other structures with

basic infrastructure and services . . . within or adjacent to

Federal land.” Id. § 6511(1)(A)(i), (ii). Thus, under HFRA,

a wildland-urban interface’s boundaries are tethered to the

location of at-risk communities, which are themselves

defined with technical detail.

The Bonner County community plan, by contrast, has a

broader definition unmoored from the specifics of HFRA:

“[A]n area where developed lands interact with undeveloped

lands and includes the infrastructure and natural resources

communities rely on for existence. Location: It is found in

remote scattered development areas to highly developed

urban areas and everywhere in between.” This definition is

followed by a “[r]ationale for designating the wildland-

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 31

urban interface,” which discusses historical trends for fire

events and best practices for reducing fire risk.

Notably absent from the Bonner County community

plan, however, is any discussion of the HFRA definition of

wildland-urban interface or “at-risk communities.” Nor is

there any discussion of interface communities or the relative

location of federal lands—i.e., the metrics for determining

at-risk communities under HFRA. Untethered from

HFRA’s more limited definitions, the Bonner County

community plan’s broader definition may well sweep in

more land than its HFRA counterpart.

Put simply, the Forest Service seeks to justify invoking

the categorical exclusion solely because the Project fell

within the wildland-urban interface designated by the

Bonner County community plan. But the community plan’s

definition of its wildland-urban interface—on its face—

deviates from HFRA and likely results in a covered area

beyond what Congress authorized. Thus, in this case, the

Forest Service cannot properly rely on the Bonner County

community plan—alone—to justify the categorical

exclusion. This is not to say that the Forest Service can never

rely on a community plan’s definition of the wildland-urban

interface or that a community plan’s definition must simply

parrot HFRA’s. Community plans may well inform the

Forest Service’s analysis under HFRA. But reliance on a

plainly overinclusive wildland-urban interface, without

more, is the sort of “clear error of judgment” that arbitrary

or capricious review is meant to prevent. Marsh v. Or. Nat.

Res. Council, 490 U.S. 360, 378, 385 (1989); see Michigan

v. EPA, 576 U.S. 743, 750 (2015) (“[A]gency action is

lawful only if it rests on a consideration of the relevant

factors.” (internal quotation marks and citation omitted)).

32 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

We thus conclude that the Project’s location within the

Bonner County community plan’s asserted wildland-urban

interface is not enough by itself to justify use of HFRA’s

categorical exclusion.

3

The Forest Service also argues that new information

provided in the Supplement shows that the Project is, in fact,

within the wildland-urban interface as defined by HFRA. In

particular, the Supplement contains a map showing the

Project positioned near the Lamb Creek and Nordman

communities. The Supplement also highlights that historical

trends show communities in Bonner County are at the

“greatest risk from wildfire.” Thus, the Forest Service

argues that the record shows the Project falls within “an area

within or adjacent to an at-risk community” and therefore,

falls within HFRA’s definition of the wildland-urban

interface. 16 U.S.C. § 6511(16)(A).

The district court disagreed. It concluded that serious

questions existed about whether Nordman and Lamb Creek

qualified as an “at-risk community,” which is defined as “a

group of homes and other structures with basic infrastructure

and services (such as utilities and collectively maintained

transportation routes) within or adjacent to Federal land.”

Hanna Flats II, 550 F. Supp. 3d at 903 (quoting 16 U.S.C. §

6511(1)(A)(ii)).

Drawing from § 6511(1)(A), the district court stated that

“under the plain language of HFRA . . . the at-risk

community must be ‘within or adjacent to,’ i.e., border or

‘abut,’ the Federal land at issue, i.e., the Project area.” Id.

at 904 (emphasis added). There is no dispute that “neither

Nordman nor Lamb Creek border the Project area.” Id. at

903–04 (“[T]he communities identified in the Supplemental

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 33

Memo—Nordman and Lamb Creek—are three miles away

and one mile away, respectively, from the Project area.”).

Thus, the district court concluded that those communities did

not qualify as “at-risk communities” under § 6511(1)(A) and

therefore did not support the “determination that the Project

area is entirely located within the wildland-urban interface.”

Id. at 904.

On appeal, the Forest Service contends that the district

court’s reading of HFRA—which requires a community to

border or abut the project area to qualify as an “at-risk

community”—is incorrect. In particular, the Forest Service

challenges the district court’s substitution of the words “the

Project area” for the statutory text “Federal land.”

a

The district court erred in its interpretation. In fairness,

HFRA is not a model of clarity and contains several

interrelated provisions. But a careful reading of the

unambiguous text shows that a project is subject to the

categorical exclusion when it is “in the wildland-urban

interface.” 16 U.S.C. § 6591b(c)(2)(A) (“A project under

this section shall be limited to areas . . . in the wildland-urban

interface . . . .”). An “area” qualifies as “wildland-urban

interface” if it is “within or adjacent to an at-risk

community.” Id. § 6511(16)(A). And a community is “at

risk” if it is “within or adjacent to Federal land.” Id.

§ 6511(1)(A)(ii).

In summary, the project must fall within an area (the

wildland-urban interface) that is within or adjacent to an at-

risk community. An at-risk community must be within or

adjacent to federal land. But the district court’s

interpretation collapses these distinct provisions into a rule

that the project itself must border the at-risk community. For

34 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

the district court, “Federal land” must be the federal land at

issue in the case (which would be the Project land here).

Under the district court’s interpretation, even if a project

falls within a properly defined wildland-urban interface, the

project is not valid unless it also directly borders or abuts an

at-risk community. Yet nothing in the statutory language

supports this limitation.

The district court justified its “border or abut” rule by

noting “the distinction made by HFRA between an area that

has a community wildfire protection plan and an area that

does not have a community wildfire protection plan.”

Hanna Flats II, 550 F. Supp. 3d at 904. Where, as here, there

is a community wildfire protection plan in place, the

wildland-urban interface is defined as an area “within or

adjacent to an at-risk community.” 16 U.S.C. §

6511(16)(A). By contrast, for an area where the community

has not adopted such a plan, the wildland-urban interface is

defined as an area either 0.5 miles or 1.5 miles from the

boundary of an at-risk community, depending on geographic

and other characteristics. See id. § 6511(16)(B)(i), (ii).

Thus, HFRA provides communities without plans a

baseline level of protection but imposes a specific wildland-

urban interface boundary of either 0.5 miles or 1.5 miles

away, depending on various factors. Id. § 6511(16)(B). But

HFRA also allows communities to adopt a community

wildfire protection plan that “identifies and prioritizes areas

for hazardous fuel reduction treatments.” Id. § 6511(3)(B).

HFRA “gives priority” to projects “that implement

community wildfire protection plans,” id. § 6513(a), and

ensures that funding allocations “give priority to

communities that have adopted a community wildfire

protection plan,” id. § 6513(d)(2)(B). And for communities

with such a plan, the wildland-urban interface is defined in

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 35

more flexible terms: “an area within or adjacent to an at-risk

community that is identified . . . in a community wildfire

protection plan.” Id. § 6511(16)(A).

In sum, the statutory scheme creates a baseline

protection of at least 0.5 or 1.5 miles around at-risk

communities. But the statutory scheme permits

communities with plans to identify wildland-urban

interfaces that extend beyond those strict limitations to meet

their communities’ needs. Thus, while we agree with the

district court that the statutory scheme treats communities

with and without community plans differently, we conclude

that the statutory scheme gives communities with plans

more—not less—flexibility. This makes sense, because the

increased flexibility gives communities an incentive to

develop a community plan. The district court’s rule that a

project must border or abut an at-risk community flips

HFRA’s scheme on its head. Under that rule, communities

that adopt plans would enjoy HFRA’s protections only for

projects right next to the at-risk community, significantly

limiting their choice to “identif[y]” wildland-urban

interfaces in their community plans. Id. § 6511(16)(A).

HFRA prioritizes communities with plans and allows them

a more flexible standard for defining the wildland-urban

interface. Therefore, the district court’s interpretation is

belied by HFRA’s statutory language.

b

In issuing the injunction, the district court applied the

less-stringent “serious questions” standard instead of the

typical “likelihood of success of the merits” inquiry. Hanna

Flats II, 550 F. Supp. 3d at 898. But that does not alter our

analysis. In the context of injunctive relief, “serious

questions” refer to “questions that ‘cannot be resolved one

36 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

way or the other at the hearing on the injunction’ because

they require ‘more deliberative investigation.’” Manrique v.

Kolc, --- F.4th ---, No. 22-15705, 2023 WL 3036993, at *3

(9th Cir. 2023) (quoting Republic of the Philippines v.

Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (en banc)).

Though this standard is less demanding, it does not erase the

Supreme Court’s admonition that an injunction “may only

be awarded upon a clear showing that the plaintiff is entitled

to such relief.” Winter, 555 U.S. at 22. Accordingly, a

“serious question” does not exist where the plaintiff’s claim

is “merely plausible” or just because there are legal

questions not directly answered by past precedent. Where

Do We Go Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852,

863 (9th Cir. 2022) (instructing that “the district court must

analyze the merits” and cannot “forgo legal analysis just

because it has not identified precedent that places the

question beyond debate”).

Here, the district court found a “serious question” about

the validity of the categorical exclusion due to an incorrect

interpretation of a statute—a pure error of law. But like

many legal questions, the meaning of HFRA’s unambiguous

provisions would not become clearer with “at least some

discovery” or a “further hearing on the merits.” Cottrell, 632

F.3d at 1131 (citation omitted). There is no need for more

deliberative investigation or development of the record to

resolve the plain meaning of HFRA.

We therefore conclude that the district court relied on a

misinterpretation of HFRA in concluding that serious

questions existed going to the merits.7 Because a legal error

7

We do not decide whether Nordman or Lamb Creek (or anywhere else)

qualify as “at-risk communities” for purposes of HFRA’s categorical

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 37

infected this “‘threshold inquiry,’ we need not consider the

other factors” governing injunctive relief. See California v.

Azar, 911 F.3d 558, 575 (9th Cir. 2018) (citation omitted).

c

Finally, Alliance argues that, even if the district court

erred in issuing the preliminary injunction, we should leave

it in place while the district court reconsiders whether there

are sufficient serious questions on remand. The district court

never addressed Alliance’s alternative theory for a

preliminary injunction: that the Project violates limitations

on roads in certain areas designated for bear protection

called Bears Outside Recovery Zones (BORZ).

It is counterintuitive to keep a preliminary injunction in

place after concluding the district court abused its discretion

in issuing it. Typically, a trial court’s decision about a

preliminary injunction is properly “set aside when it is based

on . . . improper legal premises.” Regents of Univ. of Cal.

v. Am. Broad. Cos., 747 F.2d 511, 515 (9th Cir. 1984). After

all, a preliminary injunction is an “extraordinary remedy

never awarded as of right” or without a “clear showing” of

entitlement; absent that, such relief should not issue. Winter,

555 U.S. at 22, 24. Yet on a handful of occasions, we have

retained an injunction granted on improper legal bases,

though under unique circumstances.

For example, in Gerling Global Reinsurance Corp. of

America v. Low, 240 F.3d 739, 754 (9th Cir. 2001), we held

that the district court erred in finding that a statute violated

the dormant Commerce Clause and the foreign affairs

power, yet still left the preliminary injunction in place to

exclusion. That question can be addressed on remand under proper legal

and statutory standards.

38 ALLIANCE FOR THE WILD ROCKIES V. PETRICK

give the district court an opportunity to consider an

unaddressed argument that the statute also violated the Due

Process Clause. But the defendant “acknowledged at oral

argument” that there was a “serious question” about the

validity of a statute under that alternative ground, and there

was no dispute that plaintiffs would suffer irreparable harm

if the statute took effect. Id. at 754 & n.11. And in United

States v. Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en

banc), we held that a district court erred in entering an

injunction preventing the government from deporting

someone. We also left the “the injunction in place . . . .

pending the conclusion of all proceedings in this case, in aid

of the court’s jurisdiction.” Id.

This is not a case, however, where Alliance’s alternative

BORZ argument (which is discussed fairly briefly on appeal)

clearly has merit. Unlike in Gerling, the Forest Service

claims this alternative argument is meritless. And unlike in

Hovsepian, nothing suggests that retaining the injunction is

needed to protect our jurisdiction. Alliance makes no

argument that irreparable harm or mootness issues will arise

before it can renew its request for a preliminary injunction

on these alternative grounds. Ultimately, whether to issue a

preliminary injunction—or, in this case, retain one—“is an

exercise of discretion and judgment.” Trump v. Int’l Refugee

Assistance Project, 137 S. Ct. 2080, 2087 (2017). And here,

there is no reason to conclude that we should exercise our

equitable discretion to leave an injunction in place that was

wrongly granted, and where no likelihood of success on

another claim is clear.

Because the preliminary injunction was based on a legal

error, we vacate it.

ALLIANCE FOR THE WILD ROCKIES V. PETRICK 39

VI

For these reasons, the district court’s grant of summary

judgment in Hanna Flats I is VACATED and the district

court’s preliminary injunction in Hanna Flats II is

VACATED. We REMAND both matters for proceedings

consistent with this opinion.8

8

We DENY Alliance’s opposed request for judicial notice of a timber

sale cancellation letter. Even assuming this letter is judicially noticeable,

it is not “relevant to any issue on appeal.” Flick v. Liberty Mut. Fire Ins.

Co., 205 F.3d 386, 393 n.7 (9th Cir. 2000). We also DENY Alliance’s

request to strike portions of the Forest Service’s briefing that cite internet

sources. We permit “undisputed facts offered only for general

background” to be offered without a citation to the excerpts of record.

9th Cir. R. 28-2.8.