9th Circuit: Environmental group didn't waive its right to challenge a Forest Service logging project…
Alliance for the Wild Rockies v. Higgins
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9th Circuit: Environmental group didn't waive its right to challenge a Forest Service logging project exemption by failing to raise the issue during an informal scoping process.
Why it matters
The Ninth Circuit reversed a district court ruling that had blocked the Alliance for the Wild Rockies from challenging a Forest Service decision to exempt a logging project in Idaho from full environmental review under NEPA. The court held that because the HFRA scoping process was informal and non-adversarial, there was no basis to require the Alliance to have raised its specific objection during that process before suing. The case was sent back to the lower court to decide the merits of whether the project actually qualified for the exemption.
Who it affects
- The U.S. Forest Service
- Communities near national forests
What happens next
Current
Decision issued Jul 16, 2026
Published opinion
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- Decision issued Jul 16, 2026Published opinion
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Jul 16, 2026 · Published opinion
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DEEPER READ
This case concerns a proposed logging project called the Hanna Flats Good Neighbor Authority Project in the Idaho Panhandle National Forest. Normally, federal agencies must prepare a detailed environmental impact statement under the National Environmental Policy Act before undertaking major projects. However, the Forest Service concluded that the Healthy Forest Restoration Act exempted this project from that full review process, after conducting an informal public scoping process. The Alliance for the Wild Rockies sued, arguing the project did not qualify for the exemption because it did not fall within the legally defined wildland-urban interface. The district court never reached that question. Instead, it ruled against the Alliance on procedural grounds, finding that the Alliance had failed to raise its specific objection during the scoping process and therefore could not raise it in court. This legal concept is called issue exhaustion, which generally requires a party to raise a concern before an agency before challenging it in court. The Ninth Circuit disagreed and reversed. The majority, written by Judge Forrest, held that issue exhaustion was not appropriate here for two reasons. First, the HFRA scoping process was informal and did not resemble an adversarial proceeding, making it similar to informal rulemaking situations where courts have declined to impose exhaustion requirements. Second, the Alliance's core claim, that the Forest Service failed to apply the correct statutory definition of wildland-urban interface, was the type of legal challenge that does not need to be exhausted before an agency first. Judge R. Nelson dissented, arguing that the Alliance had clear notice of the need to raise its objection and a full opportunity to do so during scoping, but never did. The dissent contended that the majority discarded settled principles and improperly imported a legal framework from Social Security adjudication that other courts have not applied to rulemaking contexts. The case now returns to the district court to address whether the project genuinely qualifies for the HFRA exemption.
CITATION AND RECORD
Record source: CourtListener
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALLIANCE FOR THE WILD No. 24-1500 ROCKIES, D.C. No. 2:19-cv-00332- Plaintiff - Appellant, REP v. JEANNE HIGGINS, Idaho OPINION Panhandle National Forest Supervisor; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; UNITED STATES FISH & WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendants - Appellees. Appeal from the United States District Court for the District of Idaho Raymond Edward Patricco, Jr., Magistrate Judge, Presiding Argued and Submitted March 20, 2025 Submission Vacated March 21, 2025 Resubmitted July 16, 2026 San Francisco, California Filed July 16, 2026 2 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS Before: Ryan D. Nelson, Danielle J. Forrest, and Jennifer Sung, Circuit Judges. Opinion by Judge Forrest; Dissent by Judge R. Nelson SUMMARY * Environmental Law The panel reversed the district court’s summary judgment in favor of the United States Forest Service in an action brought by the Alliance for the Wild Rockies challenging the Forest Service’s decision that the Healthy Forest Restoration Act (“HFRA”) exempted the Hanna Flats Good Neighbor Authority Project—a restoration project in the Idaho Panhandle National Forest—from full National Environmental Policy Act (“NEPA”) review. The Alliance sued to enjoin the Project, asserting that it did not fall within the “wildland-urban interface,” as defined by HFRA, and therefore was not exempt from NEPA review. The district court granted summary judgment based on issue exhaustion—that Alliance failed to challenge the applicability of the Forest Service’s asserted HFRA- exemption. NEPA mandates that agencies prepare an environmental impact statement (EIS) for federal actions significantly * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 3 affecting the quality of the human environment. Where an agency determines in advance that a class of actions will not significantly affect the environment, it may categorically exempt such actions from NEPA review. Following HFRA’s procedures, the Forest Service published a Scoping Notice outlining the Project’s objectives and components and soliciting feedback. In deciding whether to impose an issue-exhaustion requirement to HFRA scoping under 16 U.S.C. § 6591b(f), the panel first considered whether scoping was the type of administrative proceeding that warranted requiring issue exhaustion. The panel held that scoping under HFRA was analogous to the informal non-notice-and-comment rulemaking at issue in Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073 (9th Cir. 2013). The panel further held that because nothing about the scoping process under § 6591b(f) generally, or how the Forest Service implemented this process for the Hannah Flats Project specifically, resembled an adversarial proceeding, the nature of this proceeding suggested that a judicially imposed issue- exhaustion requirement was improper. The panel next considered whether the type of claim that Alliance asserted warranted imposing issue exhaustion, separate from the nature of the underlying proceeding. The panel held that the Forest Service’s failure to apply the governing statutory definition of wildland-urban interface was not the kind of challenge that must normally be exhausted before the agency. The panel concluded that there was no statutory or regulatory issue-exhaustion requirement, and a judicially imposed issue-exhaustion requirement was unwarranted. Accordingly, the panel reversed the district court’s grant of 4 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS summary judgment, and remanded for the district court to address the merits of Alliance’s challenge. Dissenting, Judge R. Nelson would hold that the administrative waiver doctrine applied to the HFRA notice- and-scoping process. Alliance had notice of the need to raise its wildland-urban-interface objection and a full opportunity to do so, but it never did. Alliance waived the issue before the agency. The majority reached the opposite result by discarding settled principles of informal rulemaking and importing an adversariness framework from Social Security adjudication that other courts have refused to extend to the rulemaking context. COUNSEL Rebecca K. Smith (argued), Public Interest Defense Center PC, Missoula, Montana, for Plaintiff-Appellant. Joan M. Pepin (argued), Jacob D. Ecker, Emma L. Hamilton, John P. Tustin, Allen Brabender, and Rachel Heron, Attorneys, Environment & Natural Resources Division; Adam R.F. Gustafson, Acting Assistant Attorney General; Todd Kim, Assistant Attorney General; United States Department of Justice, Washington, D.C.; Elise Foster, Attorney, Office of the General Counsel, United States Department of Agriculture, Washington, D.C.; for Defendants-Appellees. ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 5 OPINION FORREST, Circuit Judge: The United States Forest Service proposes a logging project to increase the health of the Idaho Panhandle National Forests by addressing “insect or disease infection” and reducing wildfire fuel, among other things. The project is called the Hanna Flats Good Neighbor Authority Project. Usually, the Forest Service must assess the environmental impacts of a project like this under the National Environmental Policy Act (NEPA). But here, after conducting an initial scoping process under the Healthy Forest Restoration Act (HFRA) and informally soliciting feedback from the public and other regulatory entities, the Forest Service concluded that HFRA exempted the Hanna Flats Project from full NEPA review. Plaintiff-Appellant Alliance for the Wild Rockies sued the Forest Service, challenging this exemption decision. The Forest Service successfully moved for summary judgment based on issue exhaustion—that Alliance failed to challenge the applicability of the Forest Service’s asserted HFRA- exemption. We reverse and remand. There is no statutory or regulatory issue-exhaustion requirement, and a judicially imposed issue-exhaustion requirement is unwarranted where neither the administrative proceeding at issue—HFRA scoping—nor the nature of Alliance’s challenge warrant requiring issue exhaustion under governing precedent. BACKGROUND A. Governing Statutes NEPA mandates that agencies prepare an environmental impact statement (EIS) for all “major Federal actions 6 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see also id. § 4336(b)(1). “The EIS must address the significant environmental effects of a proposed project and identify feasible alternatives that could mitigate those effects.” Seven County Infrastructure Coal. v. Eagle County, 605 U.S. 168, 172 (2025). Promulgation of an EIS requires notice-and- comment rulemaking. 42 U.S.C. § 4336a(c); see also Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 951–52 (9th Cir. 2008). Often, agencies prepare “a more limited document” known as an environmental assessment (EA) to determine if a project requires a full EIS. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004); see also 42 U.S.C. § 4336(b)(2). But where an agency determines in advance that a class of acti
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