          United States Court of Appeals
                     For the First Circuit

No. 08-1978

          SIERRA CLUB, CENTER FOR BIOLOGICAL DIVERSITY,
                   and THE WILDERNESS SOCIETY,

                     Plaintiffs, Appellants,

                                v.
 THOMAS WAGNER, in his official capacity as Forest Supervisor of
   the White Mountain National Forest; ABIGAIL KIMBELL, in her
 official capacity as Chief of the United States Forest Service;
 EDWARD T. SCHAFER, in his official capacity as Secretary of the
 United States Department of Agriculture; and the UNITED STATES
                    DEPARTMENT OF AGRICULTURE,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                              Before
                     Boudin, Selya and Stahl,
                         Circuit Judges.


     Kristin A. Henry, with whom Eric E. Huber and Bradford W.
Kuster were on brief for appellants.
     Charles R. Scott, United States Department of Justice,
Environment & Natural Resources Division, with whom Cynthia S.
Huber and Mark R. Haag, United States Department of Justice,
Environment & Natural Resources Division, and Ronald J. Tenpas,
Assistant Attorney General, were on brief for appellees.


                        February 6, 2009
            BOUDIN, Circuit Judge.      The Sierra Club, along with two

other conservation groups (for simplicity we refer only to the

Sierra Club), challenges the Forest Service's approval of two

forest resource management projects in the White Mountain National

Forest ("Forest" or "WMNF"): the Than Forest Resource Management

Project   ("Than   Project")   and    the    Batchelder    Brook     Vegetation

Management Project ("Batchelder Project").             The district court's

decision,    upholding   the   Forest       Service,      provides    detailed

background, Sierra Club v. Wagner, ___ F. Supp. 2d ___, 2008 WL

2336902, at *1-5 (D.N.H. Jun. 6, 2008), which we summarize here.

            The Forest Service, an agency of the U.S. Department of

Agriculture, is responsible for national forests.               The National

Forest Management Act ("NFMA"), 16 U.S.C. §§ 472a, 521b, 1600 et

seq. (2006), provides for management of national forests at two

levels, the programmatic (or plan) level and the project level

(where the Forest Service implements the broader programs and goals

laid out in the forest plan).        Ohio Forestry Ass'n v. Sierra Club,

523 U.S. 726, 729-30 (1998).

            All projects within a forest must comply with the overall

plan for that forest, 16 U.S.C. § 1604(i), which is revised

periodically, id. § 1604(f)(5).             The governing White Mountain

National Forest Land and Resource Management Plan was most recently

revised and adopted in September 2005 ("the 2005 Plan").               The 2005

Plan was revised pursuant to the 1982 forest service regulations


                                     -2-
("the 1982 rules"), which could still permissibly be considered for

Plan revisions when the new plan was adopted.                 See 36 C.F.R. §

219.35(b).

               The White Mountain National Forest covers almost 800,000

acres in northern New Hampshire and western Maine.              The governing

2005       Plan   promotes   multiple    uses    for   the   Forest   including

recreation, timber harvesting, and preservation of wildlife and

wilderness, as required by the NFMA.             16 U.S.C. §§ 1604(a), (e).

The 2005 Plan classifies approximately 281,000 acres in the WMNF as

appropriate for harvesting timber, but currently harvesting is

allowed only on roughly 3,400 acres annually, a tiny fraction of

the forest.

               During the 2005 Plan revision process, the land was

inventoried to determine whether it qualified as "roadless."                  36

C.F.R. § 219.17(a) (1983).              In the eastern United States, to

qualify as roadless, land must meet certain environmental standards

including very few constructed roads or recent timber harvesting.1

Twenty-seven areas, totaling 403,000 acres, met these criteria and

comprise      inventoried    roadless    areas    ("IRA's"),    which   can   be

designated by Congress as Wilderness Areas, thereby affording the


       1
      To qualify requires a natural, untrammeled appearance;
improvements in the area must be disappearing or muted; the
location must be conducive to perpetuating wilderness values; the
area may contain no more than one-half mile of improved road for
each 1,000 acres; and only twenty percent or less of the area may
have been the subject of timber harvesting within the past ten
years. Forest Serv. Handbook 1909.12, § 7.12 (1992).

                                        -3-
lands special protection, 16 U.S.C. § 1132(b).                 The Forest Service

recommended that Congress so designate 34,500 acres over and above

the 114,000 acres previously protected.

           After adoption of the 2005 Plan, the Forest Service

evaluated various management areas within the Forest to determine

what new projects were required to achieve the 2005 Plan goals.                   It

determined, for the areas encompassing the Than and Batchelder

projects, that more diverse habitats, including new vegetation in

younger age classes, were needed and that it would be beneficial to

harvest   some      mature   trees   to    create     room    for    younger    trees

(creating what is known as early successional habitat).

           Ultimately the Forest Service proposed to allow timber

harvesting     of    approximately      929   acres    in     the    Than    project,

creating up to 231 acres of early successional habitat.                         Some

existing roads would receive maintenance or reconstruction, and a

500 foot section of new road was planned.                   Part of this project

would affect the Wild River Inventoried Roadless Area, including

464 acres of timber harvesting in that area.

           The      other    proposed     action,   the      Batchelder      Project,

involved harvesting on 380 acres, including 139 acres within the

South   Carr   Mountain      Inventoried      Roadless       Area.     The    Project

requires no new road construction, but does authorize maintenance

on approximately three miles of road, one-half mile of which is

located in the South Carr Mountain IRA.


                                        -4-
            The National Environmental Policy Act ("NEPA"), 42 U.S.C.

§ 4321 et seq., obligates agencies such as the Forest Service to

evaluate the environmental impacts of its proposed actions. Dubois

v. U.S. Dep't of Agriculture, 102 F.3d 1273, 1284 (1st Cir. 1996),

cert. denied sub. nom. Loon Mtn. Recreation Corp. v. Dubois, 521

U.S. 1119 (1997).        To comply with NEPA, the Forest Service was

first   required    to    determine         whether    either      the    Than   or   the

Batchelder Project would have a significant environmental impact.

40 C.F.R. § 1501.4 (2007); Save Our Heritage, Inc. v. F.A.A., 269

F.3d 49, 57 (1st Cir. 2001).

            A detailed environmental impact statement ("EIS") is

required whenever proposed actions will "significantly affect the

quality of the human environment."                42 U.S.C. § 4332; 40 C.F.R. §§

1502.1, 1502.14; Dubois, 102 F.3d at 1285.                      If uncertain about

impact, the agency may start with a less detailed Environmental

Assessment    ("EA");     40    C.F.R.      §     1501.3.     If    the    EA    finds   a

significant impact, a full EIS must be prepared; if not, the agency

makes   a   "Finding     of    No   Significant       Impact"      ("FONSI"),      which

exhausts    its   obligation        under    NEPA.      Id.   §§    1501.4,      1508.9,

1508.13.

            The Forest Service prepared an EIS in connection with the

2005 Plan revision and it was also required to prepare either an

EIS or EA for both the Than and Batchelder projects.                       40 C.F.R. §

1501.4; see also Blue Mountains Biodiversity Project v. Blackwood,


                                            -5-
161 F.3d 1208, 1214 (9th Cir. 1998), cert. denied, 527 U.S. 1003

(1999).   Under the 2005 Plan, specific projects' environmental

analyses may incorporate by reference ("tier") information that is

in the Plan EIS, so an EA need not start from scratch.             40 C.F.R.

§ 1508.28.

              The Forest Service prepared an initial EA for the Than

Project in May 2006 but, after an administrative appeal, issued in

November 2006 a revised EA for public comment.               After receiving

comments and after an injunction deferred the operation of new

Forest Service rules relied on in the November 2006 draft, the

Forest Service revised the EA and issued the final Than EA in April

2007.

              Despite certain possible adverse effects of the Than

Project on the Wild River Inventoried Roadless Area--including

sediment inputs to streams, some soil disturbance, and effects on

stream temperature--the Forest Service concluded that the project

would

              not significantly alter the character of the
              area or the qualities which qualified it for
              inclusion in the inventory . . . because the
              harvests are of limited intensity and minimal
              road systems will be used [and that there
              would be no] lasting or significant effect on
              the roadless character of the area.

It   issued    a   FONSI   and   thereafter   denied   the    Sierra   Club's

administrative appeal.




                                     -6-
           As for the Batchelder project, an initial EA draft was

withdrawn when the initial Than EA was set aside; a revised EA was

issued in December 2006 for public comment followed by a final EA

and a revised decision notice with a FONSI in May 2007.             The FONSI

conceded   certain   potential     adverse   effects    (on     wildlife   and

possible   sedimentation     of    streams),   but     concluded    that    no

significant impact would result on the South Carr Mountain Area's

roadless   or   wilderness        characteristics.        A     Sierra     Club

administrative appeal was thereafter denied.

           In August 2007, the Sierra Club filed a complaint in the

district court challenging the Than Project.                  It amended its

complaint to incorporate claims regarding the Batchelder Brook

Project in October 2007.      On cross-motions for summary judgment,

the district court upheld the Forest Service's actions, granted the

Forest Service's motion and denied Sierra Club's. We denied a stay

pending appeal but expedited the case.

           On appeal, Sierra Club claims error by the Forest Service

in several respects.   We review questions of law de novo, WorldNet

Telecommunications, Inc. v. Puerto Rico Telephone Co., 497 F.3d 1,

5 (1st Cir. 2007), but are deferential to the agency in its

interpretation of its own rules, Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, 467 U.S. 837, 843-44 (1984), and in judgment

calls as to the likely impact of proposed actions.                 Associated

Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.


                                     -7-
1997).   The latter, reflected in the FONSI findings, are to be

upheld unless arbitrary and capricious.     Marsh v. Oregon Natural

Res. Council, 490 U.S. 360, 374, 376 (1989); see also 5 U.S.C. §

706(2)(A).

          Sierra Club argues first that the Forest Service erred by

applying the "best available science" standard found in the Forest

Service rules, adopted in 2000, see 36 C.F.R. § 219.35(a) (2001),

to its evaluation of the Than and Batchelder Brook projects, rather

than a set of rules adopted in 1982.   One might think from the name

that "best available science" is an unexceptionable standard, but

according to Sierra Club, the 1982 rules provided a set of precise

tests for evaluating a project's impact on species that are more

rigorous and were intentionally weakened by the 2000 rules.

          Its brief provides a short description of the difference

and, as the characterization is not denied by the Forest Service's

brief, we will assume it to be true.      See Forest Watch v. U.S.

Forest Serv., 410 F.3d 115, 116-17 (2d Cir. 2005). However, Sierra

Club's brief fails to explain whether or how the allegedly more

rigorous standards of the 1982 rules would likely have altered the

Forest Service's ultimate evaluation of the two projects. This may

not derail the argument but it reduces one's enthusiasm for it.

          In all events, Sierra Club contends that the 1982 rules

apply in this case, and understanding the argument requires a brief

excursion.   When the new 2000 NFMA rules were announced, their


                               -8-
transition provision deferred many of the new rules until November

2003 (a date thereafter extended)2; but the provision said that

effective immediately the Forest Service "must consider the best

available science in implementing . . . the current plan."                  36

C.F.R. § 219.35(a).       The parties take this language to supercede

the allegedly more stringent 1982 rules on species evaluation, but

disagree as to whether the transition provision covers the two

projects in issue here.

          Sierra    Club    argues   that   the    plain   language   of   the

transition    provision    applies   only   to    forest   plans   that    were

"current" when the transition provision was adopted in 2000.               See

Utah Environmental Congress v. Troyer, 479 F.3d 1269, 1272-74 (10th

Cir. 2007).    And, the argument goes, the 2005 Plan for the forest

(which had been implemented when the two projects were approved)

was not "current" in 2000. The Forest Service counters that Sierra

Club waived this argument because it was not presented to the

district court.

          Ordinarily, arguments not raised in the district court

cannot be raised for the first time on appeal.                 E.g., Boston


     2
      The extensions continued until January 2005 when a revised
set of rules were adopted, which (according to Sierra Club) are
even weaker in protecting the environment; but they have been
enjoined nationwide pendente lite, Citizens for Better Forestry v.
U.S. Dep't of Agriculture, 481 F. Supp. 2d 1059, 1100 (N.D. Cal.
2007), so prior rules, including the 2000 transition provision,
seemingly remain in effect for the present. See Action on Smoking
& Health v. Civil Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir.
1983).

                                     -9-
Celtics Ltd. P'ship v. Shaw, 908 F.2d 1041, 1045 (1st Cir.1990).

Sierra Club agrees that it did not raise its "current plan"

argument in the district court but says that it did there oppose

the "best available science" standard on other grounds and this is

enough to allow us to consider its new legal theory in support of

the same result.    This is a misunderstanding of the requirements

for preserving issues for review.

          We can affirm a judgment on a legal ground not relied

upon in the district court, Plymouth Sav. Bank v. I.R.S., 187 F.3d

203, 209-10 (1st Cir. 1999)--after all, why send the case back if

the result was right--but it is altogether different to reverse a

judgment on a ground never raised in the lower court.    See In re

Boston Reg'l Med. Ctr., 291 F.3d 111, 125 n.16 (1st Cir. 2002).   We

may ourselves choose to consider newly minted arguments from the

parties, or devise them ourselves, but this is not an entitlement

of the parties.3   See, e.g., United States v. La Guardia, 902 F.2d

1010, 1013 (1st Cir. 1990)).

          In sum, the Sierra Club has forfeited the argument, and

we decline to consider it.   The 2005 rules have been enjoined but



     3
      For example, we may choose to hear an argument not raised
below in “cases that involv[e] important constitutional or
governmental issues [which are] exceptional . . . and, as such
[warrant] a full legal treatment of all legal issues involved,
whether squarely introduced by the parties or not.” TI Fed. Credit
Union v. DelBonis, 72 F.3d 921, 930 (1st Cir. 1995) (citing Nat'l
Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628 (1st
Cir.1995)).

                                -10-
to return to the 1982 rules, instead of the 2000 transition

provision, is not appealing where, as here, Sierra Club has not

troubled to explain why the outcome would change (delay aside) if

the 1982 rules were applied.     Nor do we find the Forest Service's

reading of the transition provision patently wrong, a circumstance

that might help persuade us to excuse the forfeiture.

           Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1281 (10th

Cir. 2007), agrees with Sierra Club's belated argument--indeed,

probably   prompted   it--but   Troyer      is   quite   possibly    wrong   in

thinking the word "current" can yield only one meaning. And Troyer

is at odds with a 2004 interpretive rule issued by the Forest

Service, 69 Fed. Reg. 58055, 58057 (2004),4 ordinarily entitled to

"substantial     deference"   where   the    subject     is   "the   agency's

interpretation of its own regulations."           N. Wind, Inc. v. Daley,

200 F.3d 13, 17 (1st Cir. 1999).

           Next, Sierra Club contends that the Than Project EA was

based on the Management Indicator Species Provision of the 2005

rules, 36 C.F.R. § 219.14(f) (2005), which were enjoined nationwide

in March 2007.    See Citizens for Better Forestry, 481 F. Supp. 2d

at 1100.    Admittedly, the final Than Project EA says once that

"[t]he analysis of MIS [the species analysis] was undertaken in the


     4
      The rule, directly addressing the claim now advanced by the
Sierra Club as to the meaning of its transition rule, states that
"the best available science" standard should be used in
"implementing national forest land management plans." 69 Fed. Reg.
at 58,056.

                                  -11-
context of 36 C.F.R. § 219.14(f)" [which is only found in the

enjoined 2005 rules].    Below, the Forest Service disclaimed this

reference as a typographical error--and the district court agreed.

            It appears that when the revised draft Than EA was

published for public comment in 2006, the 2005 rules had been

adopted as a rewriting of the long deferred 2000 rules.     Once the

injunction against the 2005 rules issued, the Forest Service

removed almost all of the references in the draft to the 2005 rules

and issued the final Than Project EA shortly thereafter, relying

instead on the 2000 transition provision's "best available science"

standard.    But, says the Forest Service, the one reference to the

2005 rules was missed in the clean-up.

            This is hardly the "post hoc rationalization" claimed by

Sierra Club, see NRDC v. U.S. Envtl. Prot. Agency, 824 F.2d 1258,

1286 n.19 (1st Cir. 1987), since the agency itself identified the

typographical error as such in denying Sierra Club's administrative

appeal and the explanation is therefore part of the administrative

record.     Nor does Sierra Club provide any reason to doubt the

Forest Service's explanation.       So the citation may fairly be

treated as a typographical error; but this is not automatically

dispositive.

            Had the revised draft Than EA relied on the 2005 rules in

any way critical to the outcome, Sierra Club might well have an

argument--regardless of missed citations--that the Than Project EA


                                 -12-
could not be saved by an overnight mechanical deletion of specific

references. But whatever weakening attended the 2005 rules, Sierra

Club has not shown that those rules were pertinently less demanding

than the 2000 rule's "best available science" standard.       Instead,

the distinctions it draws are between the 1982 rules and the 2000

rules, which is not the relevant comparison.

          Sierra Club also contends that because the 2005 rules

were enjoined by a district court, the 1982 rules went back into

effect.   Had we in fact found that the 2000 rules did not apply,

this argument would have merit.    See Action on Smoking & Health,

713 F.2d at 797 (holding that where one agency rule is invalidated

the previous rule in force applies).    However, because we hold the

best available science standard applied, that portion of the 2000

rules went back into effect when the 2005 rules were enjoined.

          Sierra Club next says that the EAs were inconsistent in

identifying which rules governed and did not explicitly use the

"best available science" standard on which the Forest Service now

relies.   Sierra   Club's   argument   rests   heavily   on the Second

Circuit's opinion in Forest Watch v. U.S. Forest Service, 410 F.3d

115, 119 (2d Cir. 2005), which held that Forest Service's failure

to "consider or mention the 'best available science' standard" in

implementing two site-specific projects amounted to conduct that

was arbitrary and capricious.




                                -13-
          In fact, the Batchelder EA did refer to the best evidence

standard, the Forest Service says that the Than EA complied with it

in substance and the FONSIs for the projects state the Forest

Service relied on the "best available science"--all consistent with

the Forest Service's view of the 2000 transition provision.     By

contrast, in Forest Watch, the EAs and the FONSIs made no reference

to "best available science" and, more significant, there were

repeated citations to the 1982 rules.    Forest Watch, 410 F.3d at

119.

          On top of all this, it is not clear why references to

"best available science" matter: unlike Forest Watch, there is no

indication here that the Forest Service invoked the 1982 rules,

allegedly misapplied them and is now claiming that it used the

newer standard instead.   Of course, Sierra Club could point us to

some specific substantive dispute and then argue the science relied

upon by the agency was not "the best."   But Sierra Club identifies

no such controversy in this case.

          Sierra Club next argues that even if the 1982 rules did

not apply to the Than and Batchelder projects by their own force,

they apply because the Forest Service chose to revise the 2005

Forest Plan so as to incorporate the 1982 rules for future site-

specific projects.   The Forest Service agrees that the conclusion

would follow if the premise were correct, see Troyer, 479 F.3d at




                               -14-
1282; but it denies that the 2005 Plan adopted the 1982 rules as

requirements for subsequent projects like Than and Batchelder.

             The district court found that the 2005 Plan did not

"specifically incorporate" the 1982 rules and so they did not apply

under   an   "adoption"   theory   to   the   Than   and   Batchelder   Brook

projects.     Wagner, 2008 WL 4560669, at *11.         The 2005 Plan does

refer to the 1982 rules on several different occasions, notably

several references to "MIS Monitoring." But the 2005 Plan does not

say that the 1982 rules govern plan projects; in fact, it states

that "[t]he regulations do not require MIS monitoring on every

project."

             In addition to its "wrong rules" arguments, Sierra Club

objects to the Forest Service's substantive finding that the Than

and Batchelder projects would have no significant impact on the

environment.     This is an argument that one might think could have

promise because the two projects are not trivial and the Forest

Service itself conceded that there would be some negative effects.

But Sierra Club's own arguments do not seriously undermine the

FONSI findings.

             A substantive attack on an impact assessment is not easy.

The Council on Environmental Quality ("CEQ") and case law standards

for "significance" are (perhaps inevitably) general, and courts

have good reason to take seriously the deference due to the agency

in technical and scientific matters.          Kleppe v. Sierra Club, 427


                                   -15-
U.S. 390, 410 n.21 (1976); see also Sierra Club v. Marsh, 769 F.2d

868, 871 (1st Cir. 1985) (Breyer, J.).   Ordinarily, the attack has

to start by explaining just what harms might result and make, in

the Third Circuit's words,

          at least some effort . . . to advance specific
          allegations    that   the   agency   .   .   .
          misinterpreted    the   evidence,   overlooked
          certain testimony, or unreasonably reached its
          'no significant impact determination.'

Lower Alloways Creek Twp. v. Pub. Serv. Elec. & Gas Co., 687 F.2d

732, 747 (3d Cir. 1982).

          The Forest is almost 800,000 acres and has a history of

mixed uses included timber harvesting.    The Than Project involves

timber harvesting, subject to maximum amounts, on 929 acres, with

clear cutting for new timber on up to 231 acres; Batchelder Brook

Project involves harvesting on 380 acres; some of the harvesting in

each case is in inventoried roadless areas. Than requires 500 feet

of new road; Batchelder none.   On an order of magnitude basis these

do not seem like negligible enterprises but--without more--neither

are they self-evidently "significant" in potential negative impact.

          Yet Sierra Club makes only a single concrete point as to

immediate harm: it argues that harvesting, especially clear cutting

for new growths, creates visual scars visible even from outside the

area; that the Forest Service concedes that the effects could

endure for a decade or two; and that in California v. Block, 690

F.2d 753, 763 (9th Cir. 1982), the court said that "[t]he 'critical


                                -16-
decision' to commit [roadless] areas for nonwilderness uses, at

least for the next ten to fifteen years, is 'irreversible and

irretrievable.'"

              Block, very different from this case, involved a decision

by the Forest Service to "command that [certain roadless areas

nationwide] be used for non-wilderness purposes" without troubling

to "assess the wilderness value of each area [that would have been

allocated] and to evaluate the impact of Nonwilderness designations

upon each area's wilderness characteristics and value."                         Id. at

764.     Here we have a narrow judgment that neither of the two

precisely     defined      projects   will     have   a    "significant"    adverse

effect.

              In estimating duration, the Forest Service was talking

only of the visual effect from clear-cutting, which diminishes over

time and a more complete version of its verdict is that the effects

"should not be noticeable to the untrained eye within a decade or

two."     If so, the visual blight would begin to be dissipating

almost from the start. So, too, harvesting would disturb solitude;

but    this   would   be    primarily   limited       to   the   period    in    which

harvesting was occurring.

              It is perhaps more troubling that the Forest Service EAs

also conceded that there would or could be negative effects from

sedimentation in waters due to erosion and other effects from

logging and that disturbances could harm both water and wildlife.


                                        -17-
Still, mitigating measures were promised and are relevant, e.g.,

Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v.

Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982), and Sierra Club's

brief makes no effort to develop an attack on their adequacy.

            Sierra Club does argue that the Forest Service failed to

consider the impact the projects would have on so-called "roadless

characteristics," which are identified in the 2001 Roadless Area

Conservation Rule ("Roadless Rule"), 36 C.F.R. § 294.                    The Forest

Service    says,    without      any   answer   from    Sierra   Club,    that   the

Roadless Rule does not apply to these projects.5                    Sierra Club

concedes    in     its   reply    brief   that    the    Roadless   Rule    merely

identifies concerns that the Forest Service must address.

            The so-called roadless characteristics to which Sierra

Club points are a catch-all list of potential concerns,6 and some


     5
      The Forest Service says that the Roadless Rule applies only
to areas so designated at the time the new regime was established
in November 2000 or before, 66 Fed. Reg. at 3272, and that the IRAs
involved in Than and Batchelder were not included.
     6
      They are as follows:
     (1) high quality or undisturbed soil, water, and air;
     (2) sources of public drinking water;
     (3) diversity of plant and animal communities;
     (4) habitat for threatened, endangered, proposed, candidate,
     and sensitive species and for those species dependent on
     large, undisturbed areas of land;
     (5) primitive, semi-primitive nonmotorized and semi-primitive
     motorized classes of dispersed recreation;
     (6) reference landscapes;
     (7) natural appearing landscapes with high scenic quality;
     (8) traditional cultural properties and sacred sites; and
     (9) other locally identified unique characteristics.


                                        -18-
were certainly considered (soil and water quality, appearance)

while others (e.g., sacred sites) are not even alleged to be of

issue.         It   is   up     to    Sierra    Club     to   identify      important

considerations that were presented by the record but were not

seriously addressed in an EA.            The generality of the argument made

renders it ineffective.

               Sierra Club next says that the Forest Service failed to

consider whether the timber harvesting would disqualify any of the

land involved from future recommended designation for wilderness

protection that Congress may afford.                   The Forest Service fairly

responds that harvesting does not automatically preclude such a

designation7 and that the South Carr Mountain area was considered

for    designation       despite     past     timber    harvesting    but    thought

unsuitable for other reasons.

               Further, the 2005 Plan (to whose analysis the Than and

Batchelder      projects      were    tiered)   contains      even   more   specific

analysis, including explicit findings that the areas in question

were       inappropriate      for    future    wilderness     designation.       See

Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d 428, 433 (8th Cir.


66 Fed. Reg. 3,244, 3272 (Jan. 12, 2001).
       7
      The Forest Service has recognized in its own handbook the
difference between Eastern and Western forests, with Eastern land
with up to 20 percent of a given area harvested for timber still
eligible for wilderness designation. FSH 1909.12 ch. 71.12 (2005).
Land is eligible in the west for wilderness designation only in
"areas where logging and prior road construction are not evident."
FSH 1909.12 ch. 71.1, 71.11 (2005).

                                         -19-
2004) (EA permissible when tiered to broader plan that did address

impact). And contrary to Sierra Club's assertion that wildlife was

not taken into consideration, the Forest Service explicitly looked

at the impact on a host of species.

            Independent of concrete harms from this project, Sierra

Club makes a set of arguments that the projects are significant

because of their "context" and ostensibly controversial nature.

One might be surprised to discover that even if a particular

project threatens no significant environmental harm, the decision

to permit it may still be significant, depending on "contextual

factors."    Yet, the regulations do suggest such a reading.     40

C.F.R. § 1508.27 (2008).    Sierra Club argues that the Forest

Service failed to consider that "these projects are the first to

authorize commercial logging and road building in an IRA in the

eastern United States and the first to enter a roadless area under

the 'Forest Plan IRAs' theory, since promulgation of the Roadless

Rule."   However, such a broad definition of context is explicitly

disclaimed by the relevant regulation, which states that the

relevant context for "site specific action[s] . . . would usually

depend upon the effects in the locale rather than in the world as

a whole."   40 C.F.R. § 1508.27 (2008).

            Its other argument is that the effects of the projects

were "controversial," requiring the completion of an EIS. But once

again, the highly general character of this claim deprives it of


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force.   We are not told where the controversy lies, or even amongst

whom there is a meaningful dispute.            As best we can tell, the

controversy is that the Sierra Club disagrees with the conclusions

the Forest Service reaches, which is not sufficient by itself to

warrant an EIS.      Cf. Native Ecosystems Council v. United States

Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005).

            The Forest Service did no EIS but also did not brush off

environmental concerns.      Its EAs that are lengthy by any standard

(appendices aside, the Than EA is 194 pages and the Batchelder EA

is 146 pages) addressing in detail the environmental concerns that

might    arise   before   concluding   that,   as   subject   to   intended

mitigation, the impacts were not significant.            The substantive

decisions thus did not ignore the possible environmental effects.

            The Forest Service's EA discussion makes clear that it

considered all of the arguable categories of harm--such as visual

effects, noise, soil effects, impact on wildlife, road and bridge

construction or maintenance, and impact on watershed--and that it

addressed and answered claims concerning precedential significance,

impact on wilderness designation and the impact of the roadless

rule.    Possibly little was saved by doing EAs of this character

instead of EISs, but it is not clear that anything was lost.

            Sierra Club ends with a procedural argument that the

Forest Service violated NEPA by not making the FONSIs available

for thirty days of notice and comment.          CEQ regulations require


                                  -21-
that draft FONSIs be made available for public review and comment,

inter alia, when "[t]he proposed action is, or is closely similar

to,   one     which   normally   requires   the   preparation   of   an

environmental impact statement."         40 C.F.R. § 1501.4(e)(2)(i)

(2008).     Sierra Club says that the projects here meet the test for

such notice.

             Whether or not this is so, the evident intent to allow

public comment on FONSI findings seems to have been satisfied here

in spades.     An agency that adopts a FONSI without seeking input

can be expected at least to accept comments before acting on the

merits of a decision; but here both EAs were circulated in draft

form and comments solicited even before any FONSI was finally

adopted.     Why this does not satisfy the purpose of the thirty day

rule Sierra Club does not explain.

             Affirmed.




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