UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EARTH ISLAND INSTITUTE, a non- No. 22-16483 profit corporation, D.C. No. Plaintiff-Appellant, 1:22-cv-00710- AWI-EPG v. CICELY MULDOON, in her official OPINION capacity as Superintendent of Yosemite National Park; U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES NATIONAL PARK SERVICE, an agency of the United States Department of the Interior,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Argued and Submitted May 9, 2023 San Francisco, California

Filed September 12, 2023 2 EARTH ISLAND INSTITUTE V. MULDOON

Before: Mary H. Murguia, Chief Judge, and Michelle T. Friedland and Mark J. Bennett, Circuit Judges.

Opinion by Judge Friedland

SUMMARY *

Environmental Law

The panel affirmed the district court’s denial of Earth Island Institute’s motion for a preliminary injunction against the Superintendent of Yosemite National Park, the National Park Service, and the Department of the Interior (collectively, “the Agency”) to halt parts of two projects to thin vegetation in Yosemite National Park in preparation for controlled burns. Earth Island Institute sued the Agency under the National Environmental Policy Act (“NEPA”), arguing that it was unlawful for the Agency to approve the projects without conducting a full review of their environmental impacts. Applying the arbitrary and capricious standard, the panel upheld the Agency’s determination that the projects fell under a categorical exclusion called the “minor-change exclusion” that exempted them from the requirement that the Agency prepare an environmental assessment or an environmental impact statement. The projects fell under that categorical exclusion because they were “changes or

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. EARTH ISLAND INSTITUTE V. MULDOON 3

amendments” to the 2004 Fire Management Plan that would cause “no or only minimal environmental impact.” The panel held that the projects were consistent with the Fire Management Plan, contributing to its goals and using its methods, with only minor modifications. The Agency adequately explained its conclusion that those modifications would have “no or only minimal” environmental impacts, including on threatened and endangered species. In holding that the Agency’s determination was not arbitrary and capricious, the panel emphasized that the relevant issue was the expected environmental impact of the aspects of the projects that deviated from the Fire Management Plan, not the environmental impact of the projects overall. The panel acknowledged that even if a proposed project fits within a categorical exclusion, an agency may not rely on that exclusion if there are “extraordinary circumstances in which a normally excluded action may have a significant effect” on the environment. 40 C.F.R. § 1501.4(b). The panel rejected Earth Island Institute’s argument that the projects are highly controversial and upheld the Agency’s determination that no extraordinary circumstances were present. Because Earth Island Institute failed to meet the threshold inquiry of showing a likelihood of success on the merits, the panel did not consider the other preliminary injunction factors. 4 EARTH ISLAND INSTITUTE V. MULDOON

COUNSEL Thomas C. Buchele (argued) and Haley Nicholson, Earthrise Law Center, Lewis & Clark Law School, Portland, Oregon; Bridgett A. Chevallier, Willamette Law Group, Oregon City, Oregon; for Plaintiff-Appellant