Bmbp v. Shane Jeffries

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BLUE MOUNTAINS No. 22-35857

BIODIVERSITY PROJECT, an

Oregon non-profit corporation, D.C. No. 2:20-

cv-02158-MO

Plaintiff-Appellant,

v. OPINION

SHANE JEFFRIES, in his official

capacity as Ochoco National Forest

Supervisor; UNITED STATES

FOREST SERVICE, an agency of the

United States Department of

Agriculture,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted March 30, 2023

Seattle, Washington

Filed July 3, 2023

2 BMBP V. JEFFRIES

Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,

Circuit Judges, and Dean D. Pregerson, * District Judge.

Opinion by Judge Hurwitz

SUMMARY **

Environmental Law

The panel affirmed the district court’s summary

judgment in favor of the U.S. Forest Service in an action

brought by Blue Mountains Biodiversity Project (“BMBP”)

alleging that the Service’s approval of the Walton Lake

Restoration Project violated the National Environmental

Policy Act (“NEPA”), the National Forest Management Act,

and the Administrative Procedure Act.

The Forest Service developed the Project to replace trees

infested with laminated root rot and bark beetles with

disease-resistant ones. In May 2016, the Service contracted

with T2, a private company, for logging to implement the

decision. The Service issued a revised Environmental

Assessment (“EA”) in July 2020 and a revised decision

notice in December 2020. BMBP filed this action

challenging the 2020 decision notice. The Service filed an

administrative record (“AR”) in 2021.

*

The Honorable Dean D. Pregerson, United States District Judge for the

Central District of California, sitting by designation.

**

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

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

BMBP V. JEFFRIES 3

The panel first addressed BMBP’s argument that the AR

was incomplete. First, BMBP argued that deliberative

materials were part of the “whole record” and that a privilege

log was required if they were not included in the AR. The

panel held that deliberative materials are generally not part

of the AR absent impropriety or bad faith by the

agency. Because deliberative materials are not part of the

administrative record to begin with, they are not required to

be placed on a privilege log. The district court did not abuse

its discretion by declining to order the production of a

privilege log. Second, BMBP argued that all documents in

the 2016 AR should be in the AR for this case. BMBP

contended that the documents in the 2016 AR were

necessarily before the agency in the 2020 process because

the Project was a continuation of the withdrawn one. The

panel held that BMBP’s arguments failed to overcome the

presumption of regularity. The 2020 decision notice

expressly stated that the Forest Service began the NEPA

process again in 2019. The record also supported the

Service’s contention that it included only documents from

previous NEPA analyses that were considered in the 2020

decision. The panel concluded that the district court acted

within its discretion in denying the motion to supplement the

AR.

The panel next addressed whether the Service violated

NEPA by approving the Project. First, the panel held that

BMBP failed to establish that the logging contract with T2

improperly committed resources under any standard. There

is also no evidence that the agency merely engaged in post

hoc rationalization in the 2020 decision. Second, the panel

rejected BMBP’s contention that the EA diluted the

significance of some impacts by analyzing them on too large

a scale. The BMBP did not show why the choice of a

4 BMBP V. JEFFRIES

broader context in the challenged instances was arbitrary or

capricious. Also, the regulations list ten non-exhaustive

relevant factors for consideration. The panel held that

whether the factors were assessed individually or

cumulatively, the record did not establish a clear error of

judgment in the Service’s intensity findings, which “refers

to the severity of impact” within the selected context. 40

C.F.R. § 1508.27(b).

The panel affirmed the judgment of the district court and

lifted the previous stay of its order dissolving the preliminary

injunction.

COUNSEL

Jesse A. Buss (argued) and Bridgett A. Chevallier,

Willamette Law Group PC, Oregon City, Oregon; Thomas

C. Buchele, Earthrise Law Center, Portland, Oregon; for

Plaintiff-Appellant.

Robert P. Stockman (argued), Sean C. Duffy, and Joan M.

Pepin, Attorneys; Todd Kim, Assistant Attorney General;

Environment and Natural Resources Division, United States

Department of Justice; Washington, D.C.; Rick Grisel,

Attorney; Rebecca Harrison, Senior Counsel; Office of the

General Counsel; Washington, D.C.; for Defendants-

Appellees.

BMBP V. JEFFRIES 5

OPINION

HURWITZ, Circuit Judge:

This case involves claims by the Blue Mountains

Biodiversity Project (“BMBP”) that the approval of the

Walton Lake Restoration Project by the U.S. Forest Service

violated the National Environmental Policy Act, the

National Forest Management Act, and the Administrative

Procedure Act. The district court granted summary

judgment against BMBP on all claims relevant to this appeal.

We affirm.

BACKGROUND

Walton Lake is a 218-acre recreation site in the Ochoco

National Forest in Oregon. The Forest Service developed

the Walton Lake Restoration Project (“Project”) to replace

trees infested with laminated root rot and bark beetles with

disease-resistant ones. In 2015, relying on a regulation that

excludes the sanitation harvest of trees to control disease and

insects from some National Environmental Policy Act

(“NEPA”) requirements, 36 C.F.R. § 220.6(e)(14) (2015),

the Service issued a decision memorandum approving the

Project. In May 2016, the Service contracted with T2, a

private company, for logging to implement that decision.

Although no logging has yet occurred, the T2 contract

remains in place.

BMBP sued, challenging the 2015 decision, and the

district court preliminarily enjoined the logging on October

18, 2016. The next day, the Service withdrew its decision

“to allow additional analysis of the proposed activities.” On

October 21, 2016, the Service stated that it would undertake

6 BMBP V. JEFFRIES

“[a]dditional planning and analysis . . . with the goal of

releasing an Environmental [Assessment (“EA”)].” 1

The Service issued an EA and a decision notice

approving the Project in 2017 but withdrew the decision

notice later that year, citing a need for “additional dialogue

and analysis.” The Service issued a revised EA in July 2020

and a revised decision notice in December 2020. The

revised EA analyzed four alternatives, including a no-action

alternative. The selected alternative authorizes thirty-five

acres of sanitation logging and 143 acres of commercial and

noncommercial thinning to reduce the risk of wildfires and

bark beetle infestation. The 2020 decision notice stated that

the Project “provides the best opportunity for long-term

public enjoyment of this area, with fewer risks of falling

trees, and more longevity in the large ponderosa pines that

provide much of the scenic quality”; found that there would

be no significant environmental impact; and made four

Project-specific amendments to the Ochoco National Forest

Plan.

BMBP then filed this action challenging the 2020

decision notice. The Service filed an administrative record

(“AR”) in early 2021. A magistrate judge recommended

denial of BMBP’s motion to compel completion of the AR

and declined to order the Service to produce a privilege log,

concluding that certain documents sought by BMBP were

deliberative materials, and BMBP did not establish that

some documents in the AR filed in response to the 2016 suit

were “before the agency” in its 2020 decision. The district

judge adopted the magistrate judge’s reasoning and denied

1

The district court granted BMBP’s motion to dismiss the 2016 suit on

June 19, 2017.

BMBP V. JEFFRIES 7

the motion, but again preliminarily enjoined any logging for

the Project.

The district court later granted the Service summary

judgment on all but one of BMBP’s claims. It concluded

that the logging contract with T2 was not an “irreversible and

irretrievable commitment” of resources because it could be

unilaterally modified or terminated. It also held that the

Service reasonably found that the Project would not have a

significant environmental impact and thus reasonably

declined to prepare an environmental impact statement

(“EIS”). The court entered a final judgment and dissolved

the preliminary injunction. 2 BMBP timely appealed, and we

have jurisdiction under 28 U.S.C. § 1291. 3

DISCUSSION

I.

We first address BMBP’s argument that the AR is

incomplete. The Administrative Procedure Act (“APA”)

requires us to “review the whole record,” 5 U.S.C. § 706,

including “all documents and materials directly or indirectly

considered by agency decision-makers,” Thompson v. U.S.

Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (cleaned

up). BMBP argues that deliberative materials are part of the

“whole record” and that a privilege log is required if they are

not included in the AR. It also contends that all documents

in the 2016 AR should be in the AR for this case.

2

The district court stayed its order dissolving the preliminary injunction,

however, pending our decision on a motion for a stay pending appeal.

We granted that stay and expedited this appeal.

3

The Service has not appealed the district court’s grant of summary

judgment to BMBP on one of its NEPA claims.

8 BMBP V. JEFFRIES

A.

No previous Ninth Circuit opinion addresses whether

deliberative materials are part of the “whole record.”

District courts in this Circuit are split on the issue. See Save

the Colorado v. U.S. Dep’t of the Interior, 517 F. Supp. 3d

890, 896–97 (D. Ariz. 2021) (collecting cases). The District

of Columbia Circuit, however, has held that deliberative

materials are generally not part of the AR absent impropriety

or bad faith by the agency. See Oceana, Inc. v. Ross, 920

F.3d 855, 865 (D.C. Cir. 2019). We agree.

Our holding rests on two well-settled principles

governing judicial review of agency action under the APA.

First, “the whole record,” 5 U.S.C. § 706, is ordinarily “the

record the agency presents,” Fla. Power & Light Co. v.

Lorion, 470 U.S. 729, 743–44 (1985). “[L]ike other official

agency actions, an agency’s statement of what is in the

record is subject to a presumption of regularity.” Goffney v.

Becerra, 995 F.3d 737, 748 (9th Cir. 2021). Thus, barring

“clear evidence to the contrary,” we “presume that an agency

properly designated the Administrative Record.” Id.

(cleaned up).

Second, we assess the lawfulness of agency action based

on the reasons offered by the agency. See Motor Vehicle

Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 50 (1983). Deliberative documents, which

are prepared to aid the decision-maker in arriving at a

decision, are ordinarily not relevant to that analysis. See

Oceana, 920 F.3d at 865; see also Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)

(“[I]nquiry into the mental processes of administrative

decisionmakers is usually to be avoided.”), abrogated on

other grounds by Califano v. Sanders, 430 U.S. 99, 105

BMBP V. JEFFRIES 9

(1977); Morgan v. United States, 304 U.S. 1, 18 (1938)

(noting it is “not the function of the court to probe the mental

processes of the Secretary in reaching his conclusions”).

Because deliberative materials are “not part of the

administrative record to begin with,” they are “not required

to be placed on a privilege log.” Oceana, 920 F.3d at 865

(cleaned up). We agree, however, with the D.C. Circuit that

“a showing of bad faith or improper behavior” might justify

production of a privilege log to allow the district to

determine whether excluded documents are actually

deliberative. Id.; see also In re United States, 875 F.3d 1200,

1211–12 (9th Cir. 2017) (Watford, J., dissenting) (discussing

potential circumstances justifying expansion of the AR),

vacated, 138 S. Ct. 443, 445 (2017).

But, BMBP does not assert any misconduct by the

Service, nor does it contend that specific documents were

improperly classified as deliberative. Although we leave for

another day a detailed exploration of the precise

circumstances under which a district court can order the

production of a privilege log, the court here did not abuse its

discretion by declining to do so in this case.

B.

BMBP also contends that the documents in the 2016 AR

were necessarily before the agency in the 2020 process

because the Project is a continuation of the withdrawn one.

In so arguing, BMBP cites statements by the Service

suggesting that the 2020 decision relied on an “additional”

NEPA analysis, a District Ranger’s description of that

analysis as a “continuation of the Walton Lake Restoration

analysis and documentation,” and the Service’s reliance on

a 2015 Forest Health Report before the district court and an

appellate motions panel.

10 BMBP V. JEFFRIES

BMBP’s arguments, however, fail to overcome the

presumption of regularity. See Goffney, 995 F.3d at 748.

The 2020 decision notice expressly stated that “[t]he Forest

Service began the NEPA process again in 2019 with a

scoping letter dated August 7, 2019.” The phrase “additional

analysis” is not inconsistent with preparing a new AR to

support a new NEPA analysis. Nor do the views of a single

Service employee necessarily reflect those of the agency or

its ultimate decision-maker. See Nat’l Ass’n of Home

Builders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007). The

record also supports the Service’s contention that it included

only documents from previous NEPA analyses that were

considered in the 2020 decision. For example, the Service

did not cite the 2015 Forest Health Report in its 2020

decision, relying instead on a new 2019 Forest Health

Report. And, the Service’s citations to the 2015 Report in

prior court proceedings did not involve the validity of the

2020 decision but rather a separate 2017 decision to close

sections of the recreation site because of safety concerns.

We place a thumb on the scale against supplementation

of the AR, see Goffney, 995 F.3d at 747–48, and BMBP has

not demonstrated how the inclusion of “over two thousand

pages that the Service had included in the 2016 AR,” would

“identify and plug holes in the administrative record,” Fence

Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131

(9th Cir. 2010) (cleaned up). Because BMBP “has not met

its heavy burden to show that the additional materials sought

are necessary to adequately review the Forest Service’s

decision,” id., the district court acted within its discretion in

denying the motion to supplement the AR.

BMBP V. JEFFRIES 11

II.

We next address whether the Service violated NEPA by

approving the Project. NEPA imposes “a set of action-

forcing procedures that require that agencies take a hard look

at [the] environmental consequences” of their actions.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

350 (1989) (cleaned up). “Although these procedures are

almost certain to affect the agency’s substantive decision,

. . . NEPA itself does not mandate particular results, but

simply prescribes the necessary process.” Id.

A.

The Council on Environmental Quality (“CEQ”) issues

regulations to guide agencies in determining what actions are

subject to NEPA requirements. See 40 C.F.R. § 1500.3. 4

Those regulations prohibit an agency from “commit[ting]

resources prejudicing selection of alternatives” or taking

actions that would “[l]imit the choice of reasonable

alternatives.” Id. §§ 1502.2(f), 1506.1(a)(2). BMBP

contends that the logging contract with T2 violated these

regulations. The parties dispute whether an improper

commitment of resources must be “irreversible and

irretrievable,” Metcalf v. Daley, 214 F.3d 1135, 1143 (9th

Cir. 2000) (cleaned up), or something less. We need not

decide that issue, however, because BMBP has failed to

establish that the contract improperly committed resources

under any standard.

Under the contract, T2 will receive $78,262 to remove

non-commercial timber and about $36,000 worth of

harvested commercial timber. Critically, the Service

4

Unless otherwise indicated, all citations are to the 2019 version of the

Code of Federal Regulations.

12 BMBP V. JEFFRIES

reserved the right to “terminate this contract, or any part

hereof, for its sole convenience,” at which point T2 “shall

immediately stop all work.” 48 C.F.R. § 52.212-4(l); see

WildWest Inst. v. Bull, 547 F.3d 1162, 1169 (9th Cir. 2008)

(stressing that the Service “clearly retained the authority to

change course or to alter the plan it was considering

implementing”); see also Nat’l Audubon Soc’y v. Dep’t of

the Navy, 422 F.3d 174, 206 (4th Cir. 2005) (holding that

preparatory activities did not violate NEPA in part because

that they did not “include cutting even a single blade of grass

in preparation for construction”). T2 has not conducted any

logging under the contract because the Service has not issued

a notice to proceed. And, given the district court’s

preliminary injunction against logging, which has been

stayed pending appeal, no logging can occur until this case

is resolved. See supra note 2. Nor has the Service made any

payments to T2.

There is also no evidence that the agency “merely

engaged” in “post hoc rationalization” in the 2020 decision.

Nat’l Audubon Soc’y, 422 F.3d at 199. BMBP argues that

an internal email by a Service employee suggests that

termination of the contract would cost the Service

appropriated dollars and prevent funding of a new project.

But, another Service employee explained in the same email

chain that any future work under the contract “must adhere

to what is in the new NEPA decision” and that pending the

outcome of that decision, the Service might need to

“terminate[ ] and resolicit[ ]” the contract.

Rather than rely on “the alleged subjective intent of

agency personnel divined through selective quotations from

email trails,” we “look to . . . the environmental analysis

itself.” Id. The EA contains no indication that the T2

contract prejudiced or limited the consideration of

BMBP V. JEFFRIES 13

alternatives. After analyzing the effects of no action and

several alternatives that reduced or eliminated commercial

logging, the Service chose the Project because it “best meets

the Purpose and Need of Action,” would “better meet the

management objectives of the area,” and “provides the best

opportunity for long-term public enjoyment of this area.”

The Service also stated that it “considered all reasonable

alternatives and would not be limited in choice because the

final service agreement or other tool of implementation

would be written to align with the final decision.”

B.

NEPA mandates an EIS for “major Federal actions

significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(C). An agency need not,

however, prepare an EIS if it prepares an EA that “briefly

presents the reasons why the proposed agency action will not

have a significant impact on the human environment.” Dep’t

of Transp. v. Pub. Citizen, 541 U.S. 752, 757–58 (2004).

Significance depends on an action’s “context” and

“intensity.” 40 C.F.R. § 1508.27. “Although . . . review

under the arbitrary and capricious standard is deferential,”

an agency’s finding of no significant impact is arbitrary or

capricious if the petitioner has raised “substantial questions

whether a project may have a significant effect on the

environment.” Blue Mountains Biodiversity Project v.

Blackwood, 161 F.3d 1208, 1212–14, 1216 (9th Cir. 1998)

(cleaned up).

1.

“Context simply delimits the scope of the agency’s

action, including the interests affected.” In Defense of

Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1068

(9th Cir. 2014) (cleaned up); see 40 C.F.R. § 1508.27(a)

14 BMBP V. JEFFRIES

(listing potential contexts). Although the agency should be

mindful “that use of a larger analysis area can dilute the

apparent magnitude of environmental impacts,”

“[i]dentifying the appropriate geographic scope is a task

assigned to the special competency of the appropriate

agency.” Friends of the Wild Swan v. Weber, 767 F.3d 936,

943 (9th Cir. 2014) (cleaned up).

BMBP contends that the EA diluted the significance of

some impacts by analyzing them on too large a scale.

However, “[a]lthough 40 C.F.R. § 1508.27(a) suggests that

site-specific actions are generally evaluated in the context of

a project locale, nothing in the regulation prohibits the

[Service] from exercising its discretion to apply a [larger]

analysis when appropriate.” Tri-Valley CAREs v. U.S. Dep’t

of Energy, 671 F.3d 1113, 1127 (9th Cir. 2012). And BMBP

has not shown why the choice of a broader context in the

challenged instances was arbitrary or capricious. See Ctr.

for Cmty. Action & Env’t Just. v. FAA, 18 F.4th 592, 599

(9th Cir. 2021) (noting that the petitioner bears the burden of

persuasion); cf. Anderson v. Evans, 371 F.3d 475, 489–92

(9th Cir. 2004) (explaining why the local context was

especially relevant for assessing whether the project’s

effects would be controversial).

Indeed, BMBP concedes in its briefing that the 2020

decision “acknowledges the highly-localized nature of the

Project’s effects” and that the EA contains a “disclosure of

local impacts.” The Service extensively analyzed various

local impacts—including those on scenic integrity, on late

and old structure stands, and on threatened and endangered

species. And, the EA explained why it chose certain broader

contexts for analysis in other instances. The record fails to

establish that the agency’s decisions about context were

BMBP V. JEFFRIES 15

“arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A).

2.

Intensity “refers to the severity of impact” within the

selected context. 40 C.F.R. § 1508.27(b). The regulations

list ten non-exhaustive relevant factors for consideration,

including the “[u]nique characteristics of the geographic

area”; the “degree to which the effects . . . are likely to be

highly controversial”; the “degree to which the action may

establish a precedent for future actions with significant

effects”; and whether the action “threatens a violation of

Federal, State, or local law or requirements imposed for the

protection of the environment.” Id. Whether the factors are

assessed individually or cumulatively, the record does not

establish a “clear error of judgment” in the Service’s

intensity findings. Blue Mountains Biodiversity Project, 161

F.3d at 1211 (cleaned up).

Although the EA described Walton Lake as “unique”

because it boasts a high number of visitors and is “the only

Developed Recreation Management Area that has a lake

with the combination of moist mixed conifer and dry mixed

conifer forest surrounding it,” the Service reasonably found

that the Project would affect neither the lake itself, nor “the

diversity of tree species in the project area around Walton

Lake.” The Service also reasonably concluded that the

Project “would not substantially affect the use of the area as

a recreation site” because the infested area was already

closed to recreational uses for safety reasons. And BMBP

does not challenge the Service’s conclusion that the Project

would not affect any of the “unique” characteristics listed in

the regulation. See 40 C.F.R. § 1508.27(b)(3).

16 BMBP V. JEFFRIES

The record also does not suggest that the Project is highly

controversial. See id. § 1508.27(b)(4). “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.”

Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir.

1992). Rather, “[w]hen specialists express conflicting

views, an agency must have discretion to rely on the

reasonable opinions of its own qualified experts.” Marsh v.

Or. Nat. Res. Council, 490 U.S. 360, 378 (1989).

The Service concluded that the Project was not highly

controversial because its potential effects were well-

established or supported by the best available science.

Citing a range of research, the Service found “no evidence

that the proposed treatments would exacerbate” laminated

root rot. It also decided against stump removal because of

“soil disturbance” and “the high cost of removing stumps.”

The scientific studies cited by BMBP do not render these

findings arbitrary or capricious. One acknowledges that “an

appropriate strategy” is “based on several factors”; another

expresses some skepticism about sanitation harvesting but

also notes the potential effectiveness of “spacing trees

through thinning, by removing stumps, or by planting and

managing resistant and immune trees species”; and a third

does not discuss sanitation harvesting at all. Although

BMBP also cites Dr. Chad Hanson’s opinion that logging

would “likely increase [laminated root rot] occurrence,” the

Service reviewed that opinion but ultimately concluded that

the overall evidence weighed against its conclusions. One

BMBP V. JEFFRIES 17

negative comment does not establish high controversy. See

Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d

1233, 1243–44 (9th Cir. 2005).

It was also reasonable for the Service to conclude that

the Project is unlikely to establish a precedent for future

actions. See 40 C.F.R. § 1508.27(b)(6). The Service

explained that “no other known Developed Recreation

Management Areas . . . have a laminated root rot problem on

the Ochoco National Forest.” The Service found that the

Project is “site-specific” and “any future decision would

need to go through the NEPA process.” Even if other sites

might one day develop similar infestation issues, that does

not necessarily make this Project precedential, “especially

since any other [project] would be subject to its own NEPA

analysis.” WildEarth Guardians, 923 F.3d at 674.

The Service’s decision also reasonably accounted for

federal, state, and local laws. See 40 C.F.R.

§ 1508.27(b)(10). Although forest plan amendments that

“may create a significant environmental effect” require an

EIS, there is an exception for “every plan amendment . . .

that applies only to one project or activity.” 36 C.F.R.

§ 219.13(b)(3). The amendments to the Ochoco National

Forest Plan at issue are each related to one project.

CONCLUSION

We AFFIRM the judgment of the district court and lift

our previous stay of its order dissolving the preliminary

injunction.