## Facts

- The U.S. Forest Service approved the Smith Creek Project in Montana’s Gallatin National Forest to reduce wildfire and insect risk and to alter habitat conditions.
- The project authorized commercial logging on about 810 acres and prescribed burning on about 300 additional acres.
- The Forest Service completed a NEPA Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI), declining to prepare an Environmental Impact Statement (EIS).
- The Gallatin National Forest Plan included an elk “hiding cover” standard, defining hiding cover as vegetation capable of hiding 90% of an elk at 200 feet or less.
- The plan limited reductions of hiding cover within relevant analysis units to no more than 33% “over time.”
- Environmental plaintiffs sued, alleging violations of NFMA (project inconsistency with the forest plan) and NEPA (inadequate EA and improper FONSI), and the district court entered summary judgment for the Forest Service.
- On appeal, the Forest Service argued the 33% limit applied only to the incremental effect of the Smith Creek Project itself, not to cumulative reductions measured from the forest-plan baseline.

## Issues

1. Whether NFMA required measuring the forest plan’s 33% elk-hiding-cover limit against the baseline at the time of plan adoption (cumulative “over time”) rather than project-by-project incremental change.
2. Whether the EA and FONSI violated NEPA by failing to take a hard look at cumulative impacts on elk hiding cover and related resources.
3. Whether the Forest Service’s forest-plan interpretation and NEPA analysis were arbitrary and capricious under the APA.

## Decision

- The Ninth Circuit reversed in part the district court’s judgment and remanded.
- The court held the Forest Service’s project-by-project interpretation of the 33% hiding-cover limit was unreasonable and inconsistent with the forest plan.
- Applying the correct baseline (plan conditions “over time”), the court concluded the approved project violated NFMA because it would result in hiding-cover reduction exceeding the plan’s limit.
- The court also held the EA and FONSI were inadequate under NEPA because they relied on the erroneous baseline and did not adequately assess cumulative impacts.
- The court vacated the project approval to the extent inconsistent with NFMA and NEPA and directed further proceedings and renewed environmental review consistent with its interpretation.

## Legal Principles

- Under NFMA, site-specific forest projects must be consistent with the governing forest plan’s substantive standards.
- Forest-plan wildlife standards framed as limits “over time” constrain cumulative habitat loss and generally must be assessed against an appropriate plan-based baseline, not only a single project’s incremental effects.
- NEPA is procedural and requires agencies to take a “hard look” at environmental consequences, including cumulative impacts of past, present, and reasonably foreseeable actions.
- An EA supporting a FONSI is arbitrary and capricious if it rests on an incorrect baseline that masks cumulative impacts central to the resource standard at issue.
- Agency interpretations of their plans may receive deference only when consistent with the plan’s text and objectives; interpretations that nullify plan protections are not entitled to deference.

## Conclusion

The Ninth Circuit held that the Forest Service unlawfully approved the Smith Creek Project because it misinterpreted the forest plan’s elk-hiding-cover cap as a project-by-project limit and, as a result, conducted a NEPA review that failed to adequately evaluate cumulative habitat impacts; the approval was vacated in relevant part and the matter remanded for compliance with NFMA and NEPA.


Hapner v. Tidwell, 621 F.3d 1239 (9th Cir. 2010)