Full opinion text
OPINION MYRON H. THOMPSON, District Judge. Plaintiffs Wildlaw et al. (collectively referred to as Wildlaw), a group of 18 environmental coalitions and nonprofit organizations from around the country, have brought this suit against defendants United States Forest Service et al. (collectively referred to as the Forest Service). In an 11-count complaint, Wildlaw challenges the validity of three sets of regulations promulgated by the Forest Service in 2003. The Forest Service denies that the regulations are invalid and also argues that Wildlaw lacks standing and that its claims are not ripe for adjudication. Jurisdiction is proper under 28 U.S.C. § 1331, and this cause of action arises under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. The parties have agreed to forgo summary-judgment proceedings as well as trial; this case is now under final submission for a decision on the basis of the administrative records and briefs filed with the court. For the reasons that follow, the court finds in favor of the Forest Service. I. FACTUAL BACKGROUND A. The Healthy Forests Initiative In August 2002, the President of the United States unveiled his Healthy Forests Initiative, a program designed to confront “a crisis of deteriorating forest and rangeland health, the result of a century of well-intentioned but misguided land management.” Healthy Forests: An Initiative for Wildfire Prevention and Stronger Communities 1 (2002), available at http:// www.whitehouse.gov/infocus/ healthyforests/Health y_Forests_v2.pdf. According to the President’s report, “[n]at-ural, low-intensity fires” contribute to forest health by “reducing the buildup of fuels,” thereby reducing vulnerability to severe fires. Id. Due to the government’s over-suppression of wildfires in the past, forests had become “unnaturally dense” and “overloaded with fuels,” significantly increasing the risk of catastrophic wildfires. Id. The Healthy Forests Initiative was designed to restore American forests to health. In addition to detailing this new substantive policy goal of enhancing forest health by removing fuels and reducing the risk of catastrophic wildfires, the President’s report identified “considerable administrative delays” preventing the government from efficiently addressing the forest crisis. Id. at 13; see also The Process Predicament: How Statutory, Regulatory, and Administrative Factors Affect National Forest Management 15 (2002) (“Procedural constraints keep national forest management from being as efficient and effective as it should be.”), available at http://www.fs.fed.us/projects/documents/ Process-Predica ment.pdf. A significant part of the Healthy Forests Initiative was therefore dedicated to reducing the procedural and administrative burdens associated with regulating our Nation’s forests. See Healthy Forests at 3 (“President Bush is directing Agriculture Secretary Vene-man, Interior Secretary Norton and Council on Environmental Quality Chairman Connaughton to improve regulatory processes to ensure more timely decisions, greater efficiency, and better results in reducing the risk of catastrophic wildfires by restoring forest health.” (emphasis added)). B. Categorical Exclusions One significant procedural change available to the Forest Service in furtherance of the Healthy Forests Initiative was the adoption of new categories of agency actions to be excluded from documentation under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f. To place the concept of categorical exclusion in context, a brief description of NEPA is appropriate. A description of the so-called “categorical exclusions” follows. 1. NEPA and the Concept of Categorical Exclusion NEPA is the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1. Among other things, NEPA requires that federal agencies prepare a detailed report, known as an environmental impact statement (EIS), for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). “NEPA does not work by mandating that agencies achieve particular substantive environmental results. Rather, NEPA promotes its sweeping commitment to ‘prevent or eliminate damage to the environment and biosphere’ by focusing Government and public attention on the environmental effects of proposed agency action.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting 42 U.S.C. § 4321). Pursuant to NEPA, the Council on Environmental Quality has promulgated a complex array of regulations, some of which govern the procedures a federal agency must follow to determine whether an agency action is one that requires the preparation of an EIS. See generally 40 C.F.R. pts. 1500-1508. There are generally two ways a federal agency can act without preparing an EIS. See 40 C.F.R. § 1501.4. First, the agency can prepare a shorter document, known as an environmental assessment (EA), and, based on the EA’s conclusion that the action will not significantly affect the human environment, issue a “finding of no significant impact.” Id. §§ 1508.9, 1508.13. Second, because the preparation of an EA is itself time-consuming and burdensome, an agency can identify a class of actions, known as a categorical exclusion (CE), that normally do not significantly affect the human environment. Id. §§ 1507.3(b)(2)(h), 1508.4. If the agency determines that an action falls into a previously adopted CE and that there are no extraordinary circumstances rendering a normally excluded action likely to have a significant effect, id. § 1508.4, it can go forward with the action absent NEPA documentation-that is, without the need to prepare an EA or EIS, id. § 1501.4. 2. The Challenged CEs Consequently, one way for federal agencies to reduce the paperwork and delays associated with agency action is to adopt more CEs, thereby eliminating the need for NEPA documentation for future categorically excluded actions. In 2003, the Forest Service did just that. The relevant CEs for the purposes of this litigation are two CEs adopted for fire-management activities (Fire CEs) and three CEs adopted for limited-timber harvesting (Timber CEs). a. Fire CEs As part of the Healthy Forests Initiative, the Forest Service proposed and implemented two new CEs for fire-management activities. National Environmental Policy Act Documentation Needed for Fire Management Activities; Categorical Ex-elusions, 68 Fed.Reg. 33,814 (June 5, 2003) (codified at Forest Service Handbook 1909.15, ch. 30, § 31.2(10)-(11) (2004)). The first is a CE for “hazardous fuels reduction activities.” Such activities, including prescribed burning, thin the forest in an attempt to reduce fuels for ignition and thereby lower the risk and severity of wildfires. The second is a CE for “post-fire rehabilitation activities.” Such activities occur after a wildfire and are designed to restore affected areas to their original or improved conditions. By determining that these activities “do not individually or cumulatively have a significant effect on the human environment and therefore normally do not require further analysis in either an environmental assessment or an environmental impact statement,” 68 Fed. Reg. at 33,814, the Forest Service categorically excluded them from NEPA documentation, thus reducing their procedural burdens. b. Timber CEs At nearly the same time it adopted the Fire CEs, the Forest Service proposed and implemented three new CEs for limited-timber harvesting. National Environmental Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed.Reg. 44,598 (July 29, 2003) (codified at Forest Service Handbook 1909.15, ch. 30, § 31.2(12)-(14)). The first Timber CE, known as Category 12, permits the harvesting of up to 70 acres of live trees. The second Timber CE, known as Category 13, allows the salvage of dead or dying trees not to exceed 250 acres. The third Timber CE, known as Category 14, allows the harvesting of trees, also not to exceed 250 acres, to control the spread of insects and disease. It appears that the Timber CEs are not formally a part of the Healthy Forests Initiative. However, the Timber CEs implement similar goals and policies as the Fire CEs. For instance, “[ejxamples of projects that could be implemented under Category 12 include thinning of overly dense stands of trees to improve the health and vigor of the remaining trees.” 68 Fed.Reg. at 44,598. In Category 13, the CE “allows salvage harvest in areas where trees have been severely damaged by forces such as fire, wind, ice, insects, or disease and still have some economic value as a forest product.” Id. And, in Category 14, the CE “allows the agency to apply harvest methods to control insects and disease before they spread to adjacent healthy trees.” Id. Thus, like the Fire CEs, the Timber CEs implemented the Forest Service’s goals of (1) thinning those areas of the forests most vulnerable to fire and disease in an effort to fortify their general health, and (2) improving the efficiency of such actions by reducing their administrative burdens such as NEPA documentation. Again, by determining that these activities “do not individually or cumulatively have a significant effect on the human environment and therefore normally do not require further analysis in either an environmental assessment or an environmental impact statement,” 68 Fed. Reg. at 44,598, the Forest Service categorically excluded them from NEPA documentation. C. Notice, Comment, and Appeal Procedures Another significant procedural change available to the Forest Service in furtherance of the Healthy Forests Initiative was the promulgation of new rules governing the notice, comment, and administrative-appeal procedures for Forest Service actions. These regulations were issued pursuant to the Forest Service Decision Making and Appeals Reform Act (ARA), Pub.L. 102-381, § 322, 106 Stat. 1419 (1992) (codified at 16 U.S.C. § 1612 (note)). The court will first describe the history and content of the ARA, followed by a description of the Forest Service’s new procedural rules pursuant to that statute. 1. The ARA Prior to the enactment of the ARA, there was no statutory requirement that the Forest Service provide a system of administrative appeals for agency actions. Idaho Sporting Congress, Inc. v. U.S. Forest Service, 843 F.Supp. 1373, 1375 (D.Idaho 1994) (Ryan, J.). Instead, the Forest Service had provided such a system through its own regulations. Id. In 1992, concerned that the administrative appeal process had become too burdensome, the Forest Service proposed new regulations that would do away with administrative appeals for most Forest Service project-level decisions. Review of and Comment on National Forest Plans and Project Decisions, 57 Fed.Reg. 10,444 (Mar. 26, 1992). Alarmed by the prospect that project-level decisions of the Forest Service would no longer be subject to administrative appeal, Congress enacted the ARA. 106 Stat. 1419. The ARA requires the Forest Service to promulgate administrative regulations establishing notice, comment, and appeal procedures for “actions of the Forest Service concerning projects and activities implementing land and resource management plans.” Pub.L. 102-381, § 322(a). The statute provides for public notice of proposed actions, id. § 322(b)(1); a 30-day comment period following publication of notice, id. § 322(b)(2); a 45-day right of appeal for any person involved in the comment process, id. § 322(c); and, except in an emergency, an automatic stay of the agency’s action or decision for the 45-day period during which it can be appealed, id. § 322(e). 2. The Appeal Rule In addition to relieving the Forest Service of administrative burdens under NEPA, the Healthy Forests Initiative sought to simplify the administrative appeal procedure. See Healthy Forests at 14 (“The appeals process is complex, time consuming and burdensome.”); U.S. Forest Service, Healthy Forests Initiative Fact Sheet, Release No. FS-0177.03 (2003) (discussing plans to amend the Forest Service’s administrative appeal rule), available at http://www.fs.fed.us/projects/hfi/ May-2003/ docs/admin-fact-sheet.pdf. The Forest Service therefore promulgated new procedural regulations implementing the ARA. Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities (Appeal Rule), 68 Fed. Reg. 33,582 (June 4, 2003) (codified at 36 C.F.R. pt. 215). The new Appeal Rule exempts several types of agency action from the notice, comment, and appeal requirements of the ARA, two of which are relevant here. First, all actions categorically excluded from NEPA documentation are also excluded from the ARA, 36 C.F.R. § 215.4(a), even though in the old rule a timber harvest CE had been subject to the ARA, see 58 Fed.Reg. at 58,911 (previously codified at 36 C.F.R. § 215.3(b) (1994)). Second, all decisions issued by the Secretary of Agriculture or Undersecretary for Natural Resources and Environment are exempt from the ARA. 36 C.F.R. § 215.20(b). The Appeal Rule also places restrictions on who may comment and who may appeal. According to the rule, the Forest Service need only consider “substantive” comments during the comment period. Id. § 215.6(b)(1). Furthermore, only those persons who submitted “substantive” comments during the comment period are eligible to appeal. Id. §§ 215.6(a)(3)(iii), 215.13(a), 215.16(a)(6). The Appeal Rule makes several other changes that, in the Forest Service’s view, would help reduce the administrative burdens of the notice, comment, and appeal process. For instance, the Appeal Rule defines the term “emergency” to include “substantial loss of economic value to the Federal Government,” id. § 215.2, potentially augmenting the category of decisions that need not be stayed pending appeal, see Pub.L. 102-381, § 322(e). The Appeal Rule also allows the Forest Service official responsible for an action to “[d]etermine the most effective timing” for the 30-day notice and comment period, 36 C.F.R. § 215.5(a)(2), thereby permitting the agency to begin the notice and comment period early in the decisionmaking process for some actions and later in the process for others. D. Instant Litigation In 2003, following the Forest Service’s promulgation of new rules in connection with the Healthy Forests Initiative, Wild-law filed the instant action alleging a wide array of statutory violations. The 11 counts of Wildlaw’s amended complaint can be generally classified as follows. First, Wildlaw claims that the Forest Service violated NEPA’s documentation and analysis requirements by issuing the Fire CEs, the Timber CEs, and the Appeal Rule without properly seeking public input and without preparing either an EA to determine whether the issuance of those regulations would significantly affect the quality of the human environment or an EIS to report such effects. Second, Wild-law claims that the Forest Service violated NEPA in adopting the Fire CEs and the Timber CEs because actions falling into those CEs do significantly affect the human environment. Third, Wildlaw claims that various parts of the Appeal Rule violate the ARA and that at least one part of the Appeal Rule was issued without providing the public with adequate notice. The Forest Service denies these claims. It also argues that Wildlaw lacks standing to bring this suit, and that its claims are not ripe for adjudication. II. STANDARDS OF REVIEW A. The Arbitrary-and-Capricious Standard Challenges to agency action under NEPA are governed by the arbitrary-and-capricious standard as set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538 (11th Cir.1990). Under the Administrative Procedure Act, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As its terms suggest, the arbitrary-and-capricious standard is a deferential one. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996). The court is not permitted to substitute its own judgment for that of the agency. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Skinner, 903 F.2d at 1539. However, the court must also “look beyond the scope of the decision itself to the relevant factors that the agency considered.” Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1216 (11th Cir.2002) (citing State Farm, 463 U.S. at 43, 103 S.Ct. 2856). The court must ensure that “agency decisions are founded on a reasoned evaluation of the relevant factors.” Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). To do so, the court must review the entire administrative record. Army Corps, 295 F.3d at 1216. Its duty is to ensure that the agency took a “hard look” at the relevant factors, but not to scrutinize the wisdom of the decision itself. 33 Wright & Koch, Federal Practice & Procedure § 8335, at 175 (2006). Agency action should be set aside as arbitrary and capricious if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856; see also Army Corps, 295 F.3d at 1216. In other words, judicial review of agency action must by “searching and careful,” but “the ultimate standard of review is a narrow one.” Marsh, 490 U.S. at 378, 109 S.Ct. 1851; see also Skinner, 903 F.2d at 1538. The arbitrary and capricious standard will govern this court’s review of Wildlaw’s allegations that the Forest Service violated NEPA. B. Chevron Deference When, as is the case here, the court is called upon to review an agency’s interpretation of a statute that the agency is responsible for administering, the standard of review is governed by a two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Sierra Club v. Johnson, 436 F.3d 1269, 1274 (11th Cir.2006). “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted). Should the court determine that the statute is silent or ambiguous, the Chevron standard of review is further refined at step two. If the statute contains an express delegation of authority to the agency to fill in a gap left by the statute, then the agency’s gap-filling regulation must be upheld unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778. If, on the other hand, the statute’s delegation to the agency is merely implicit, then the court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. This two-step standard of review, known as Chevron deference, governs the cpurt’s review of the Forest Service’s interpretation of the ARA. As it turns out, see infra Subsection III.A.2.b., there is ultimately no need to apply Chevron deference in this case, as the court’s consideration of the merits of the Appeal Rule is foreclosed by its ripeness analysis. C. The No-Set-of-Circumstances Standard The parties are in some disagreement over whether review in this case should involve an additional measure of deference because Wildlaw has challenged the facial validity of the Forest Service’s regulations. When administrative regulations are challenged on their face, rather than as applied, the court must apply the “no-set-of-circumstances” test to the challenge. Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (holding that a facial challenge to an administrative regulation can succeed only if “ ‘no set of circumstances exists under which the regulation would be valid’ ” (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (brackets omitted))). Thus, the Forest Service argues that the regulations challenged in this case cannot be set aside unless all possible applications of the regulation would be invalid. Def. Br. at 16, 48. Wildlaw disagrees and argues that the no-set-of-circumstances test should not apply to this case. Pl. Reply Br. at 11-16. The court agrees with the Forest Service that this case presents facial challenges and that Reno v. Flores is controlling. However, in the context of a NEPA challenge, the no-set-of-circumstances test is not as strong a defense as the Forest Service would have one believe. Where the agency is under an obligation to comply with a statute in a certain way before issuing a regulation, then the agency’s procedural noncompliance renders the regulation illegal from day one regardless of how, or whether, it is applied. Thus, if an agency is required to prepare an EIS and fails to do so, then the plaintiffs no-set-of-circumstances burden is met because the “invalidity” of all applications of the regulation flows from the agency’s NEPA violation in having promulgated it without first preparing an EIS. Waiting to see whether the regulation could be validly applied, when it was not validly promulgated in the first place, would be nonsensical. Likewise, the facial validity of an agency’s CEs relates back to the evidence available to the agency at the time the decision to adopt the CE was made. See Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (directing the district court to base its review on the full administrative record before the agency at the time the agency decision was made). Under NEPA, as enforced through the Administrative Procedure Act, a CE is valid if the record supports the agency’s determination that it describes a class of actions that do not significantly affect the human environment. Heartwood, Inc. v. U.S. Forest Service, 73 F.Supp.2d 962, 975 (S.D.Ill.1999) (Gilbert, J.) (evaluating the record to determine if the Forest Service made its decision to adopt a CE based on adequate evidence and consideration of the relevant factors). If the agency decision is not supported by the record, then the plaintiffs no-set-of-circumstances burden is met because the invalidity of all applications of the CE flows from the agency’s NEPA violation in having unjustifiably adopted it. Again, there would be little point in waiting to see whether the CE would be validly applied when it was not validly adopted in the first place. Thus, just as plaintiffs who mount a facial challenge to a regulation on grounds that no EIS was prepared need not demonstrate that the regulation would still be invalid had an EIS in fact been issued, plaintiffs who mount a facial challenge to a CE on grounds that it is unsupported by the record need not demonstrate that all actions falling into the CE significantly affect the human environment. To insist otherwise overstates, and misinterprets, the significance of Reno v. Flores. Consequently, the no-set-of-circumstances rule is significant in this case primarily in regard to Wildlaw’s claims that certain provisions of the Appeal Rule violate the ARA. There, in addition to applying Chevron deference, the court must consider whether the challenged portions of that regulation could be validly applied. If there are circumstances under which a challenged provision, when applied, would not violate the ARA, then that regulation must be upheld. As it turns out, see infra Subsection III.A.2.b., there is ultimately no need to apply the no-set-of-circumstances test to the Appeal Rule in this case, as the court’s consideration of the merits of the Appeal Rule challenge is foreclosed by its ripeness analysis. III. DISCUSSION A. Justiciability Before turning to the merits of Wild-law’s claims, the court must resolve two justiciability issues raised by the Forest Service: standing and ripeness. The court cannot adjudicate this case on the merits if it finds either that Wildlaw lacks standing to bring this suit or that its claims are not ripe for adjudication. 1. Standing The court has an obligation, at the outset of a case, to assure itself that the plaintiff has standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1169 (11th Cir.2006). The constitutional standing doctrine is a product of the case- or-controversy requirement of Article III. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); Sierra Club v. Johnson, 436 F.3d 1269, 1275 (11th Cir.2006). A plaintiff must demonstrate Article III standing in order to invoke the jurisdiction of a federal court. DaimlerChrysler Corp. v. Cuno, — U.S.-,-& n. 3, 126 S.Ct. 1854, 1861 & n. 3, 164 L.Ed.2d 589 (2006). There are three fundamental elements of standing under Article III: “First, the plaintiff must have suffered an ‘injury in fact’-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, ellipses, brackets, and footnote omitted); see also Ouachita Watch League, 463 F.3d at 1170. These three requirements are commonly labeled injury, causation, and re-dressability. In an environmental suit, by far the most significant standing requirement is the “injury in fact” element. Ouachita Watch League, 463 F.3d at 1170. The relevant injury is not injury to the environment, but injury to the plaintiff. Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693. “[Ejnvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Id. at 183, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). But environmental plaintiffs must show that the environmental damage they complain of directly affects their recreational, aesthetic, or economic interests; mere general averments and conclusory allegations are inadequate under Article III. Friends of the Earth, 528 U.S. at 183-84, 120 S.Ct. 693 (citing Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Furthermore, plaintiffs may demonstrate “injury in fact” by claiming a “procedural injury”-that they were injured by the defendant’s violation of a procedural rule. In order to succeed under the ‘procedural injury’ doctrine, a plaintiff must demonstrate that “the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing,” Defenders of Wildlife, 504 U.S. at 573 n. 8, 112 S.Ct. 2130, and that it is “reasonably probable” that the procedural violation will in fact threaten that interest, Ouachita Watch League, 463 F.3d at 1170. For example, if an agency fails to prepare an EIS prior to taking an action that concretely affects the plaintiffs interests, the plaintiff has standing “even though he cannot establish with any certainty” that the EIS, had it been issued, would have prevented the action from occurring. Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. See Johnson, 436 F.3d at 1277; Ouachita Watch League, 463 F.3d at 1171 (“It is well settled that, in a NEPA suit, a cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared when the plaintiff also alleges a ‘concrete’ interest — such as an aesthetic or recreational interest — that is threatened by the proposed actions.” (internal quotation marks and ellipses omitted)). Based on the foregoing principles, the court concludes that the Wildlaw plaintiffs have constitutional standing to bring this lawsuit. First, the “injury in fact” requirement of Article III standing is satisfied. Wildlaw’s complaint, coupled with declarations it submitted with its brief, demonstrate that the plaintiff organizations’ members have aesthetic and recreational interests in the wellbeing of our Nation’s forests. They frequently visit lands regulated by the Forest Service, and they have specific, concrete plans to continue doing so in the immediate future. Cf. Defenders of Wildlife, 504 U.S. at 564, 112 S.Ct. 2130 (finding that “ ‘some day’ intentions ... do not support a finding of ... ‘actual or imminent’ injury”). They fear that the challenged regulations, if not invalidated, will directly impact their ability to use and enjoy their favorite sites. The plaintiff organizations even participate in the public comment and administrative appeal processes for Forest Service actions. Thus, Wildlaw meets the “procedural injury” standard: it alleges that the Forest Service failed to comply with NEPA and that this noncompliance will harm the forests and lands in which its members take direct and personal interest. Wildlaw also meets the “procedural injury” standard for its ARA claims, because it alleges that the challenged Appeal Rule will reduce public participation in the Forest Service’s administrative decisionmak-ing and review processes, which will in turn harm the forests and lands in which its members take an interest. The Forest Service’s arguments to the contrary are unavailing. The Forest Service states that Wildlaw asserts only “generalized grievances” and cannot point to any concrete, particularized injury it suffered as a result of the CEs and Appeal Rule. Def. Br. at 3-5; Def. Reply Br. at 2-4. Specifically, the Forest Service refers the court to Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800 (11th Cir.1993), in which the Eleventh Circuit Court of Appeals held that a trade association did not have standing under the “procedural injury” doctrine merely because the Forest Service’s alleged procedural violations injured the plaintiffs rights to “information, participation, and informed decision making.” 993 F.2d at 810. But in Region 8, unlike in this case, the plaintiffs failed to identify an injury to a “separate concrete interest” as required by Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. Region 8, 993 F.2d at 810-11. In Region 8, it was not the case that “the failure to follow a mandated procedure caused a distinct injury.” Id. at 810 n. 16. In contrast to the appellate court in Region 8, this court is satisfied that the procedural violations do threaten a separate concrete interest: Wildlaw’s members’ aesthetic and recreational interests in the very forests and lands that stand to be affected by the challenged regulations. It is not necessary that Wildlaw point to a particular instance of environmental degradation. The procedural requirements of NEPA and the ARA are designed to protect Wildlaw’s concrete interests; it is reasonably probable that agency action by the Forest Service in violation of those requirements will injure said concrete interests. The injury-in-fact element of standing is therefore established. See Earth Island Institute v. Ruthenbeck, 459 F.3d 954, 960-61 (9th Cir.2006) (concluding that environmental plaintiffs have standing for their ARA challenge); Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 951-52 (7th Cir.2000) (same, where plaintiffs challenged CEs under NEPA). The causation and redressability elements are met as well. “Once ... a plaintiff has established injury in fact under NEPA, the causation and redressability requirements are generally more relaxed.” Ouachita Watch League, 463 F.3d at 1172. If the Forest Service violated NEPA and the ARA, then it is clear that the Forest Service caused Wildlaw’s alleged injury. And if the court finds for Wildlaw, it is empowered to order injunctive relief — the injury, then, is redressable. See id. at 1173. In sum, Wildlaw has standing to bring this suit. 2. Ripeness In addition to challenging Wildlaw’s standing to bring this suit, the Forest Service contends that Wildlaw’s claims are not ripe for adjudication. As the Eleventh Circuit has noted, ripeness and standing are often conflated, as both doctrines require that the injury complained of be imminent. Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11th Cir.1996). The difference is that the standing inquiry focuses on whether the plaintiff is a proper party to bring suit, whereas the ripeness inquiry focuses on “whether this is the correct time for the complainant to bring the action.” Id. Accordingly, the court will now assess whether the timing of the instant litigation “causes justiciability problems.” Id. The ripeness doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). As the Supreme Court has stated many times, the purpose of the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), quoted in, e.g., Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003), and Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998); see also Ouachita Watch League, 463 F.3d at 1174. “To decide whether an issue is ripe for judicial review, courts will examine both the fitness of the issue for judicial decision and the hardship on the parties if a court withholds consideration.” Ouachita Watch League, 463 F.3d at 1174 (citing Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507); see also Ohio Forestry Ass’n, 523 U.S. at 733, 118 S.Ct. 1665. a. NEPA Claims (Counts 1-6) Are Ripe for Adjudication With respect to Wildlaw’s NEPA claims, the court concludes that those counts are ripe for adjudication. In Ohio Forestry Association, the Supreme Court observed that because NEPA “guarantees a particular procedure, not a particular result[,] ... a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.” 523 U.S. at 737, 118 S.Ct. 1665; see also Ouachita Watch League, 463 F.3d at 1174. Once a NEPA violation takes places, there is nothing that can make the issue more “fit” for judicial review. The Forest Service suggests that the Ohio Forestry Association dicta be limited to Wildlaw’s first set of NEPA claims, those that allege the Forest Service violated NEPA by not preparing an EA or EIS before adopting the new CEs and promulgating the Appeal Rule. Def. Reply Br. at 5-7. The Forest Service contends that Wildlaw’s second set of NEPA claims— those alleging that the CEs violate NEPA because they describe actions that significantly affect the human environment — are substantive, not procedural. Therefore, the Forest Service argues, the court should wait until these CEs are actually applied — at which point they either will or will not significantly affect the human environment — before deciding whether they violate NEPA. Id. at 7. The flaw in this argument is that the Forest Service mischaracterizes the second set of NEPA claims as “substantive” rather than procedural. As previously explained, supra Section II.C., the relevant NEPA inquiry under the Administrative Procedure Act is whether its action was supported by the record before it at the time the decision was made, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and whether the agency, in making its decision, considered all the relevant factors, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The court need not wait until the Forest Service applies the CEs to specific projects, because whether particular projects actually have a significant affect on the human environment is not the proper inquiry. Thus, even Wildlaw’s second set of NEPA challenges are properly deemed procedural, not substantive, because the question is whether the Forest Service followed the correct procedures — that is, considered the relevant factors, and drew conclusions supported by the administrative record then before it — before it adopted the new CEs. These claims, like the first set of NEPA claims, are ripe for adjudication: they “can never get riper.” Ohio Forestry Ass’n, 523 U.S. at 737, 118 S.Ct. 1665. The Eleventh Circuit has considered a similar question and rejected the defendants’ ripeness challenge. In Ouachita Watch League, the district court had distinguished between two types of NEPA challenges much the same way as the Forest Service has here. The district court had found that a claim alleging an agency’s failure to prepare an EIS or EA was a procedural violation instantly ripe for adjudication, whereas a claim alleging an agency’s failure to take a “hard look” at the environmental consequences of its action was a substantive claim and therefore not instantly ripe. Ouachita Watch League, 463 F.3d at 1174 (citing Chattooga Conservancy v. Jacobs, 373 F.Supp.2d 1353, 1370-71 (N.D.Ga.2005) (Evans, J.)). The Court of Appeals, however, rejected that distinction. Id. at 1174-75. “The courts have been very clear that NEPA imposes a procedural duty upon the agencies to take a hard look at the environmental consequences of their actions.” Id. at 1174. Here, the situation is no different. The Administrative Procedure Act requires that the court scrutinize the agency’s deci-sionmaking process, not the decision itself. See 33 Wright & Koch, Federal Practice & Procedure § 8335, at 175 (2006). NEPA requires that agencies take a “hard look” at the relevant factors before adopting a CE. Therefore, Wildlaw’s claims that the Forest Service did not do so are ripe for adjudication. b. ARA Claims (Counts 7-11) Are Not Ripe for Adjudication With respect to Wildlaw’s ARA claims, however, the court reaches the opposite conclusion. Wildlaw’s challenge to the Appeal Rule is a facial challenge to regulations the Forest Service promulgated pursuant to the ARA, regulations that set forth procedures for notice, comment, and appeal of Forest Service plans and projects, but do not actually implement the plans and projects themselves. In Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), the Supreme Court held that a challenge to a Forest Service plan, as opposed to a specific project implementing a plan, was not ripe for adjudication. And in National Park Hospitality Association v. Department of the Interior, 538 U.S. 803, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003), the Supreme Court considered a facial challenge to an administrative regulation of the Department of Interior and held that it was not ripe for adjudication. This court concludes that Wildlaw’s ARA claims are sufficiently like the plaintiffs’ forest-plan challenge in Ohio Forestry Association and facial challenge in National Park Hospitality Association to warrant dismissal on ripeness grounds. See also Catholic Soc. Servs., 509 U.S. at 57, 113 S.Ct. 2485 (holding that INS regulations implementing alien legalization legislation are not ripe for review until applied); Nat'l Wildlife Fed’n, 497 U.S. at 891, 110 S.Ct. 3177 (“[A] regulation is not ordinarily considered the type of agency action ‘ripe’ for judicial review under the [Administrative Procedure Act] until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him.”). In Ohio Forestry Association, the Supreme Court first examined the hardship on the parties if a court withholds consideration. 523 U.S. at 733, 118 S.Ct. 1665. Noting that the challenged forest plan does not “command anyone to do anything or to refrain from doing anything,” id. at 733, 118 S.Ct. 1665, and that additional administrative action must take place before the complained-of injury could occur, id. at 734, 118 S.Ct. 1665, the Court found that the plaintiffs would have “ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain,” id. The Court next considered whether immediate judicial review would hinder the agency’s ability to refíne its policies, and found that the administrative notice, comment, and appeal procedures that would accompany project-level decisions allowed for the possibility that the agency could correct any statutory violations before injury occurred. Id. at 735-36, 118 S.Ct, 1665. Lastly, the Court considered whether it would benefit from further factual development. The Court concluded that “the focus that a particular logging proposal could provide,” id. at 736, 118 S.Ct. 1665, would “ ‘significantly advance our ability to deal with the legal issues presented,’” id. at 737, 118 S.Ct. 1665 (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 82, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)). The Supreme Court made similar observations, and drew similar conclusions, in National Park Hospitality Association. The Court noted that the administrative regulations under review were little more than a general statement of policy, 538 U.S. at 809, 123 S.Ct. 2026, publicly announcing the position the agency would take in future disputes, id. at 810, 123 S.Ct. 2026. The regulations did not affect the plaintiffs primary conduct, id., leading the Court to conclude that “ ‘no irremediably adverse consequences flowed from requiring a later challenge,’ ” id. (quoting Toilet Goods Ass’n, Inc., v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) (brackets omitted)). The Court additionally stated that, although the challenged regulations were “final agency action” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704, “judicial resolution of the question presented here should await a concrete dispute” concerning a particular application of the rule. 538 U.S. at 812, 123 S.Ct. 2026. Ohio Forestry Association and National Park Hospitality Association strongly suggest that Wildlaw’s ARA claims are not ripe for adjudication. The Appeal Rule establishes procedures for future rulemaking: it purports to govern the notice, comment, and appeal process for future agency actions. The Appeal Rule, although “final agency action” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704, is not itself an action that “command[s] anyone to do anything or to refrain from doing anything,” Ohio Forestry Ass’n, 523 U.S. at 733, 118 S.Ct. 1665; the Forest Service must take additional action' — -the designation of a specific project governed by the Appeal Rule— before the alleged injury can occur, see id. at 734, 118 S.Ct. 1665. Admittedly, the Appeal Rule itself cuts down on the amount of administrative process that must occur in order for allegedly injurious action to take place. But Wildlaw will still have an opportunity to challenge such actions when they occur. For example, although there will be no automatic stay under § 322(e) of the ARA for actions the Forest Service designates as emergencies under its new, broader definition of that term, 36 C.F.R. § 215.2, Wildlaw can instead seek a temporary restraining order or preliminary injunction in federal court based on its allegation that the term “emergency,” as applied, is an impermissible construction of the ARA. The same is true for other provisions of the Appeal Rule challenged here. In other words, the Appeal Rule does not make it impossible, or even all that difficult, to litigate an as-applied challenge; requiring the Forest Service to do so will create little hardship. See Toilet Goods Ass’n, 387 U.S. at 164, 87 S.Ct. 1520 (“no irremediably adverse consequences flow from requiring a later challenge”). In addition, further factual development, in the context of a specific-project action by the Forest Service where Wildlaw is excluded from the comment or appeal process, would help the court assess the lawfulness of the Appeal Rule. See Duke Power Co., 438 U.S. at 82, 98 S.Ct. 2620. For example, the Appeal Rule’s requirement that comments be “substantive” is a limitation that is difficult to review outside the context of a concrete dispute. Other provisions of the Appeal Rule are less abstract, of course, but the court would nonetheless benefit from the opportunity to place these challenges in an as-applied, fact-based context. The Ninth Circuit Court of Appeals recently considered a facial challenge to the Forest Rule’s ARA regulations and reached the same conclusion. In Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9th Cir.2006), the plaintiffs challenged one provision of the Appeal Rule as applied to a specific project and eight other provisions in a facial challenge. The court held that only the as-applied challenge was ripe for adjudication. 459 F.3d at 963. Relying primarily on Toilet Goods Association, 387 U.S. at 163-64, 87 S.Ct. 1520, the court found that the regulation’s effects were speculative, the record was incomplete, and the plaintiffs’ primary conduct was not affected such that immediate review was warranted. Earth Island Institute, 459 F.3d at 963. “There is not a sufficient ‘case or controversy’ for us to review regulations not applied in the context of the record before this court.” Id. This court finds the Ninth Circuit’s decision persuasive and also concludes that Ohio Forestry Association and National Park Hospitality Association apply here. Accordingly, because Wildlaw’s challenge to the Appeal Rule is not based on its application to any particular project or action; because nothing about the Appeal Rule requires judicial intervention at this time; and because further development of a factual record in the context of an as-applied challenge would be helpful, the court finds the Appeal Rule challenge not ripe for adjudication and will dismiss those counts, 7 through 11, of the amended complaint. B. Merits Now that the Forests Service’s justicia-bility defenses have been addressed, the court at long last turns to the merits of the claims that remain. Wildlaw’s remaining claims can be generally classified as follows. First, Wildlaw claims that the Forest Service violated NEPA’s documentation requirements by issuing the Fire CEs, the Timber CEs, and the Appeal Rule without preparing either an EA to determine whether the issuance of those regulations would significantly affect the human environment or an EIS to report such effects. In connection with those claims, Wildlaw also alleges that the Forest Service did not properly seek public input on the proposed regulations’ environmental effects, and that the Forest Service did not properly consider the cumulative environmental effects of the challenged regulations together with other broad policy changes. These claims comprise counts 1 through 4 of Wildlaw’s amended complaint. Second, Wildlaw claims that the Forest Service violated NEPA in adopting the Fire CEs and the Timber CEs because the actions falling into those CEs significantly affect the human environment. The question here is not whether the adoption of CEs are among those actions that require NEPA documentation, but whether the Forest Service was warranted in adopting these CEs at all. These claims comprise counts 5 and 6 of the complaint. 1. NEPA Claims: Lack of Analysis and Documentation The court begins with the first set of NEPA claims. As previously discussed, NEPA requires that the government prepare an EIS before it undertakes any major federal action significantly affecting the human environment. 42 U.S.C. § 4332(2)(C). One way to avoid preparing an EIS is for an agency to be satisfied, in one of two ways, that the proposed action will not significantly affect the human environment. See 40 C.F.R. § 1501.4. First, the agency can prepare an EA and, based on the EA, issue a “finding of no significant impact.” Id. §§ 1508.9, 1508.13. Second, the agency can determine that the proposed action is described by a CE, which was previously adopted to identify actions that normally do not have individual or cumulative significant effects on the human environment. Id. § 1508.4. When an agency determines that a proposed action falls within a CE, it must also assess whether there are any extraordinary circumstances that render the proposed action likely to have a significant impact on the human environment despite fitting into a CE. Id. a. Count 1 Count 1 of Wildlaw’s amended complaint alleges that the Forest Service violated NEPA by promulgating the Fire CEs, the Timber CEs, and the Appeal Rule without preparing an EA or EIS. This claim effectively presents the court with two separate questions. First, is the adoption of a CE itself an action that is excluded or exempt from NEPA documentation? Second, is the promulgation of a new rule governing the agency’s notice, comment, and appeal procedures categorically excluded as well? The court will first analyze this claim with respect to the CEs, and next with respect to the Appeal Rule. i. Adopting the New CEs Without an EA The parties acknowledge that the question of whether the Forest Service may adopt a CE without preparing an EA or an EIS has been addressed by the Seventh Circuit Court of Appeals in Heartwood v. U.S. Forest Service, 230 F.3d 947 (7th Cir.2000). In Heartwood, the plaintiffs alleged that, in adopting a set of CEs, the Forest Service violated NEPA by not preparing an EA or EIS to assess the CEs’ environmental impact. The appellate court held that NEPA documentation was unnecessary and that no NEPA violation had taken place. The primary reason for the court’s holding is that NEPA requires documentation for only “major Federal actions,” 42 U.S.C. § 4332(2)(C), and the court reasoned that the adoption of a CE is not an “action” within the meaning of the statute. “The CEs are not proposed actions, they are categories of actions for which an EA or EIS has been deemed unnecessary.” Heartwood, 230 F.3d at 954. Therefore, the court held, the adoption of a CE was not subject to NEPA documentation. Here, Wildlaw argues that Heartwood is not binding on this court; was wrongly decided; and is in any case distinguishable. The Forest Service, of course, defends the Heartwood decision and urges this court to follow it. This court, having reviewed the applicable law and considered the parties’ arguments, accepts Heartwood’s general conclusion that the Forest Service can adopt a CE without preparing an EA or EIS. In doing so, however, the court believes it prudent to clarify exactly what it thinks the Heartwood opinion means, and why it should control this case as well. The Heartwood court reasons that the adoption of a CE is not an “action” within the meaning of NEPA, an interpretation which, at first, is difficult to accept. According to the Council on Environmental Quality regulations implementing NEPA, “Actions include ... new or revised agency rules, regulations, plans, policies, or procedures .40 C.F.R. § 1508.18 (emphasis added). The Council’s regulations also state: “Agency procedures ... shall include ... [s]pecific criteria for and identification of those typical classes of action ... [w]hich normally do not require either an environmental impact statement or an environmental assessment (categorical exclusions (§ 1508.4)).” Id. § 1507.3(b). In other words, the adoption of a CE is an agency procedure, an agency procedure is a type of agency “action,” and actions are subject to NEPA analysis. It stands to reason, based on this syllogism, that the adoption of a CE is subject to some form of NEPA analysis — either an EIS, an EA and finding of no significant impact, or identification of a preexisting CE that covers the adoption of CEs. The Heartwood court appears to acknowledge the above definitions of “major Federal action,” “procedures,” and CEs, but does not conclude that they mandate treating the adoption of CEs as actions subject to NEPA analysis. 230 F.3d at 954. This court finds it difficult to believe that this is merely an oversight by the appellate court. Rather, the Seventh Circuit must have reasoned, though admittedly not explicitly, that where 40 C.F.R. § 1508.18 states that “[ajctions include ... procedures,” this does not necessarily mean that all procedures are actions. Rather, some procedures are actions within the meaning of NEPA, whereas others might not be. There are several reasons why the adoption of CEs is not the kind of procedure covered by § 1508.18. First, the Council on Environmental Quality regulations setting forth agency procedures do not expressly state that the agency must follow the same procedures in adopting a CE as it would in taking any other action. See 40 C.F.R. § 1507.3. The absence of any express statement in § 1507.3, which is otherwise quite detailed, could be taken to imply that the adoption of new CEs is not a procedure to which NEPA analysis applies. Second, it would often be impractical to prepare an EA for the adoption of a CE, since the adoption of a CE does not itself authorize any particular actions that could impact the environment. The adoption of a CE merely classifies future actions as ones that will not require an EA or EIS, barring extraordinary circumstances. Because the Forest Service does not know when, where, how often, and under what particular circumstances the CE will be invoked for specific actions, it may not be possible to describe, with any meaningful level of specificity or reliability, how the CE will impact the human environment. In fact, since the adoption of the CE does not authorize any concrete activity, its direct impact on the human environment is likely to be nonexistent — making the preparation of an EA a bureaucratic exercise of make-work. Therefore, given the impracticalities involved, it is easy to understand why the adoption of a CE would not be a procedure that is also a “major Federal action” within the meaning of 42 U.S.C. § 4332(2)(Q. Third, because the Council on Environmental Quality must review and approve CEs before the Forest Service adopts them, the fact that the Council has not required the Forest Service to prepare an EA before adopting CEs can be viewed as an interpretation by the Council of its own regulations that no NEPA analysis is required. Admittedly, the court is not aware of any evidence in the record to suggest that the Council has formally interpreted its regulations in this way. However, the Council did approve the Forest Service’s publication of the challenged CEs, which included its statement that “the Council on Environmental Quality does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the [Council’s] regulations for implementing NEPA.” Fire CEs, 68 Fed.Reg. 33,814, 33,823 (June 5, 2003); Timber CEs, 68 Fed.Reg. 44,598, 44,606 (July 29, 2003). Through its silence, then, the Council has effectively adopted that interpretation of NEPA. The Council is entitled to “substantial deference” in its interpretation of NEPA’s terms and of its own NEPA regulations. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). Based on the Council’s conduct in approving the Forest Service’s adoption of the challenged CEs, the court views the Council’s implicit interpretation of 42 U.S.C. § 4332(2)(C) and 40 C.F.R. §§ 1507.3(b) & 1508.18 to be that the adoption of a CE is not a major federal action requiring NEPA analysis or documentation. In sum, this court concurs with Heartwood. The adoption of a CE is a procedure, but it is not among the procedures that constitute a “major Federal action,” 42 U.S.C. § 4332(2)(C). The Forest Service’s adoption of CEs is not subject to NEPA analysis or documentation. Accordingly, with respect to the Fire CEs and the Timber CEs, the court finds for the Forest Service on Count 1. ii. Promulgating the Appeal Rule Without an EA Wildlaw also claims that the Forest Service was required to prepare an EA or EIS before promulgating the Appeal Rule. This is an easier issue to resolve because at the time the Appeal Rule was issued the Forest Service expressly stated that it fell within a preexisting CE. Appeal Rule, 68 Fed.Reg. 33,582, 33,595 (June 4, 2003). As previously discussed, once an agency determines that an action is covered by a CE and that there are no extraordinary circumstances, additional NEPA documentation is not required. Thus, the scope of this court’s review on this claim is limited to whether the Forest Service’s determination that the promulgation of the Appeal Rule fell within a CE, and that there were no extraordinary circumstances, was arbitrary and capricious. “Once an agency establishes categorical exclusions, its decision to classify a proposed action as falling within a particular categorical exclusion will be set aside only if a court determines that the decision was arbitrary and capricious.” Citizens’ Comm. to Save Our Canyons v. U.S. Forest Service, 297 F.3d 1012, 1023 (10th Cir.2002); see also W. Houston Air Comm. v. FAA, 784 F.2d 702, 705 (5th Cir.1986) (“Courts should defer to the agency’s interpretation of its own categorical exclusion regulations.” (internal quotation marks and brackets omitted)); City of Alexandria v. Fed. Highway Admin., 756 F.2d 1014, 1019-20 (4th Cir.1985). Here, the Forest Service decided to classify the Appeal Rule as falling within Category 2 of § 31.12, which excludes from NEPA documentation “[r]ules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” Forest Service Handbook 1909.15, ch. 30, § 31.12(2). See 68 Fed.Reg. at 33,-595. The Forest Service also determined that no extraordinary circumstances existed that would requir