This case concerned the legality of a proposed Forest Service Project. The proposed project authorized thinning trees and vegetation in the Cuddy Valley to address overcrowding. This would involve the Forest Service cutting commercially viable trees and mechanically harvesting them for sale. When the Forest Service decided to proceed with the project, conservation and community groups sued, arguing that the proposed project violated the National Environmental Policy Act. That Act permits an agency to carry out a project without an environmental assessment or impact statement only if the agency decides that a proposed project fits within a specific “categorical exception.” The exception relied upon by the Forest Service, and thus at issue in this case, was CE-6, which permits “timber stand . . . improvement activities” such as “thinning” to “reduce fire hazard.” 36 U.S.C. § 220.6(e)(6).
The parties disagreed on whether “thinning” under the statute can include thinning of large, commercially viable trees or only precommercial saplings. To answer the question, the panel began with the text of CE-6, noting that it does not limit thinning based on tree age or size, nor does it make an explicit exception for commercial thinning. It also examined the ordinary meaning of the word “thinning,” which it found doesn’t include such qualifiers. The panel then considered whether “timber stand improvement” itself limits the concept of thinning by tree age or size. After noting that this phrase bears a technical meaning, the panel looked to evidence of the term’s meaning at the time the regulation was promulgated. The court concluded that the term’s technical sense does not connote any particular tree age or size and that it does not exclude commercial thinning. And because CE-6 was unambiguous, the panel noted that Auer deference was not required. The panel then concluded that the Forest Service’s decision to invoke CE-6 for the project was not arbitrary and capricious under the APA.
Judge Stein filed a dissent.