                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUN 08 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


FOREST SERVICE EMPLOYEES FOR                     No.   17-35569
ENVIRONMENTAL ETHICS,
                                                 DC No. CV 16-293 TOR
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

UNITED STATES FOREST SERVICE;
UNITED STATES DEPARTMENT OF
AGRICULTURE,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Thomas O. Rice, Chief District Judge, Presiding

                            Submitted May 14, 2018**
                                Portland, Oregon

Before:      TASHIMA, McKEOWN, and PAEZ, Circuit Judges.

      Plaintiff-Appellant Forest Service Employees for Environmental Ethics

(“FSEEE”) sued the United States Forest Service and the United States Department

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
of Agriculture (collectively, the “Forest Service”), under the National

Environmental Policy Act (“NEPA”). FSEEE alleged that the Forest Service

violated NEPA by not preparing an environmental impact statement (“EIS”) or

environmental assessment (“EA”) prior to constructing a “community protection

line” (“CPL”) during the Wolverine wildfire of 2015 in the Okanogan-Wenatchee

National Forest in eastern Washington. The CPL was a 300-foot wide swath of

land thinned of vegetation that stretched for many miles. It was created in part by

logging significant amounts of timber. The Forest Service constructed the CPL to

act as a barrier between the Wolverine fire and populated communities. The Forest

Service argued that it relied on an emergency regulation which authorized it to

forego an EIS or EA prior to constructing the CPL. See 36 C.F.R. § 220.4(b)

(“USFS Emergency Rule”). The district court granted summary judgment to the

Forest Service and denied FSEEE’s motion for judicial notice of the North

Cascades National Park Fire Management Plan (“NC Plan”).




                                          2
      On appeal, FSEEE asserts an “as-applied” challenge to the Forest Service’s

reliance on the USFS Emergency Rule during the agency’s response to the

Wolverine fire.1 We affirm.

      1.     We review a district court’s summary judgment ruling de novo. Phx.

Mem’l Hosp. v. Sebelius, 622 F.3d 1219, 1224 (9th Cir. 2010). “An agency’s

action must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’” Lands Council v. McNair, 629 F.3d 1070,

1074 (9th Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)).

      FSEEE’s only argument is that “forest fires are not emergencies exempt

from NEPA.” In support, FSEEE cites a dictionary definition of “emergency”:

“an unforeseen combination of circumstances or the resulting state that requires

immediate action.” (Emphasis in original.) Because forest fires are a common

occurrence in the western Unied States, FSEEE reasons that they are not

“unforeseen” and, thus, that the Forest Service acted arbitrarily by resorting to the

USFS Emergency Rule during its response to the Wolverine fire.

      While it is true that fires happen every year, it defies plain language and

common sense to conclude that no individual fire – or its course, intensity, or


      1
             FSEEE does not reassert its arguments made below, that the USFS
Emergency Rule itself violates NEPA, or that the Forest Service failed to comply
with the procedural requirements of the USFS Emergency Rule.
                                           3
duration – could be unforeseeable. It is unreasonable to argue that forest fires can

never present emergency situations when viewed at the time the fire is raging.

Further, FSEEE provides no evidence – outside of the immaterial NC Plan, which

was crafted by a different agency in charge of a different area – that the Wolverine

fire was not an emergency. Therefore, FSEEE did not act arbitrarily or

capriciously in invoking the USFS Emergency Rule during the Wolverine fire.

      2.     A district court’s ruling on a motion for judicial notice is reviewed for

abuse of discretion. Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001). The

district court did not abuse its discretion in denying FSEEE’s motion for judicial

notice because the NC Plan is immaterial to this case. See Escobedo v. Applebees,

787 F.3d 1226, 1228 n.2 (9th Cir. 2015). That another agency has a high-level fire

management plan in an area nearby to the location of the fire is not relevant to the

actions of the Forest Service in dealing with an individual wildfire while it is

occuring.

                                     •    !    •

      The judgment of the district court is

      AFFIRMED.




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