Alliance for the Wild Rockies v. Petrick

Absent exceptional circumstances, failure to raise arguments before an agency, such as in comments during a public-comment process, usually waives a litigant’s rights to make those arguments in court. See Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1249 (9th Cir. 2000). Under HFRA, the wildland-urban interface is “an area within or adjacent to an at-risk community that is identified . . . in a community wildfire protection plan.” 16 U.S.C. § 6511(16)(A).

The United States Forest Service and the Alliance for the Wild Rockies (“Alliance”) had an ongoing dispute about a logging project (“the Project”) involving several acres of national forest. The Forest Service invoked the National Environmental Policy Act’s categorical exclusion from review for projects in the “wildland-urban interface,” and Alliance claimed the decision was inconsistent with the Healthy Forests Restoration Act (HFRA). The Forest Service appealed the district court’s grant of summary judgment for Alliance, assigning error to the district court’s finding that Alliance’s public comments adequately put the Forest Service on notice that they lacked a basis to categorically exempt the Project. Absent exceptional circumstances, failure to raise arguments before an agency, such as in comments during a public-comment process, usually waives a litigant’s rights to make those arguments in court. See Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1249 (9th Cir. 2000). Under HFRA, the wildland-urban interface is “an area within or adjacent to an at-risk community that is identified . . . in a community wildfire protection plan.” 16 U.S.C. § 6511(16)(A). Alliance’s comments were “vague and generalized” about a broad concern and did not claim that the Forest Service had violated HFRA, which was the argument raised in court. The definition of “wildland-urban interface” that the Forest Service relied on deviated from that of the HFRA. The Court concluded that Alliance's comments were inadequate to put the Forest Service on notice and that the categorical exclusion was not justified. VACATED and REMANDED.