Alliance for the Wild Rockies v. Higgins

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 actions will not significantly affect the environment, it may categorically exempt such actions from NEPA review. See 42 U.S.C. §§ 4336(a)(2), 4336c. As relevant here, HFRA specifies the procedures to be used for exempted projects. Among other purposes, HFRA was enacted to address the impact of insect and disease infestations and to reduce the risk of wildfires in national forests. See 16 U.S.C. § 6501; see also id. § 6551(a)(1)(A) (recognizing the link between insect infestation or disease and increased wildfire risk). To those ends, Congress directed the Forest Service to “implement authorized hazardous fuel reduction projects” either on “[f]ederal land in wildland-urban interface areas” or federal land that suffers from “an epidemic of disease or insects.” Id. § 6512(a)(1), (4); see also id. § 6511(16) (defining “wildland-urban interface”). Such projects generally must comply with NEPA. Id. § 6514(a)–(d). “Collaborative restoration project[s],” however, are  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 7 categorically excluded from NEPA’s requirements. Id. § 6591b(a)(1). As the name suggests, collaborative restoration projects are forest-restoration projects that are “developed and implemented through a collaborative process” that “includes multiple interested persons representing diverse interests.” Id. § 6591b(b)(1)(C). These projects are limited by size, location, and purpose, and must comply with specified procedural requirements. See id. §§ 6591a(b), (d), 6591b(a)– (c). The purpose of a collaborative restoration project must be to either “reduce the risk or extent of, or increase the resilience to, insect or disease infestation,” or to “reduce hazardous fuels.” Id. § 6591a(d). They must be located “in the wildland-urban interface” or specified areas outside of it. Id. § 6591b(c)(2). And particularly relevant here, to initiate a collaborative restoration project, the Forest Service must “conduct public notice and scoping.” Id. § 6591b(f). B. The Hanna Flats Project Beginning in 2016, the Forest Service began developing the Hanna Flats Project through a collaborative process involving state actors, local landowners, and conservation groups. This Project sought to, among other things, “reduce the risk or extent of, or increase resilience to, insect or disease infestation” in the Idaho Panhandle National Forests and to decrease “hazardous forest fuels to reduce the current and future wildfire risk to people, private lands, and resource values.” Following HFRA’s procedures, the Forest Service published a Scoping Notice outlining the Project’s objectives and components and soliciting feedback from the public. The Scoping Notice stated that the Project “area lies entirely within the wildland-urban interface defined by 8 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS Bonner County.” It also suggested that the Project was “being planned with the goal that it would meet all the required conditions” for the HFRA categorical exclusion from NEPA review under 16 U.S.C. § 6591b(a). Consistent with that plan, the Notice asserted that the Project was located entirely within the wildland-urban interface. It did not specify, however, that the wildland-urban interface definition the Forest Service was relying on in reaching this conclusion was Bonner County’s definition rather than HFRA’s definition. The Scoping Notice was sent to numerous individuals and groups, including Alliance. The cover letter sent to Alliance “request[ed] feedback on” the Hanna Flats Project “to identify potential issues” that were not already “identified during the collaborative process.” The letter advised that “there is a potential to use [NEPA] categorical exclusions” for the Project and that “some aspects of the proposed action are likely to change” before the final decision is issued. The letter also advised that comments could be submitted by letter or email. Alliance submitted numerous comments on the Scoping Notice. Ultimately, the Forest Service issued a Decision Memo outlining the Project and invoking a categorical exclusion from NEPA review under § 6591b(a). The Forest Service concluded that the Project was designed to treat insect infestation and disease within “the wildland-urban interface,” and that it met all other procedural requirements. C. Alliance’s Lawsuits Alliance sued to enjoin the Project, asserting that it did not fall within the “wildland-urban interface,” as that term is defined by HFRA, and therefore is not exempt from NEPA review. From that point, the litigation over the Hanna Flats  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 9 Project has traversed through a procedural wilderness. Magistrate Judge Bush initially agreed with Alliance and held that the Forest Service failed to demonstrate that the Project fell within the wildland-urban interface under HFRA and remanded the issue to the agency without vacating the Project. See All. for the Wild Rockies v. Higgins (Hanna Flats I), 535 F. Supp. 3d 957, 974–81 (D. Idaho 2021). Thereafter, the Forest Service issued a Supplemental Decision Memo further elaborating on the issue. See All. for the Wild Rockies v. Pierson (Hanna Flats II), 550 F. Supp. 3d 894, 897 (D. Idaho 2021). After the Forest Service issued its Supplemental Decision Memo, Alliance filed a second lawsuit “alleging that the Project is unlawful” under both the initial Decision Memo and the Supplemental Decision Memo. Id. at 898. District Judge Winmill was assigned the second case and preliminarily enjoined the Project. See id. at 907. The Forest Service appealed the decisions in both cases. In the Hanna Flats I appeal, we held that Alliance’s comments following issuance of the initial Decision Memo failed to alert the Forest Service that the Project fell outside the wildland-urban interface. All. for the Wild Rockies v. Petrick, 68 F.4th 475, 489–90 (9th Cir. 2023). But we did not resolve whether this failure resulted in forfeiture of Alliance’s claim. Rather, we remanded “for the district court to consider in the first instance whether any such comments were necessary to challenge a project exempted from NEPA analysis” under § 6591b(a)’s categorical exclusion. Id. at 490. 1 1 For this reason, the Forest Service’s suggestion that our decision in the Hanna Flats I appeal resolved whether Alliance forfeited its claim is 10 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS In our decision in the Hanna Flats II appeal, in part because the Forest Service failed to argue that Alliance forfeited its wildland-urban-interface claim, we treated the Forest Service’s forfeiture argument itself as forfeited and addressed the merits of that appeal. Id. at 490–98 & 490 n.5. We held that whether the Project fell within Bonner County’s definition of “wildland-urban interface” was immaterial because HFRA defines this term and the statutory definition governs. Id. at 494. Nonetheless, we held that the district court erred by rejecting the idea that new information provided in the Supplemental Decision Memo could justify the HFRA categorical exclusion. Id. at 495–96. We, therefore, vacated the preliminary injunction and remanded that case as well. See id. at 495–98. Following our remand, the Forest Service withdrew its Supplemental Decision Memo and reinstated its initial Decision Memo. All. for the Wild Rockies v. Higgins, 690 F. Supp. 3d 1177, 1184 (D. Idaho 2023). A third judge—Chief Magistrate Judge Patricco—oversaw the proceedings on remand in both Hanna Flats I and II, but the two cases were not consolidated. See id. at 1185. Judge Patricco concluded in Hanna Flats I that Alliance was required to raise its wildland-urban interface objection during the scoping process. All. for the Wild Rockies v. Higgins, No. 2:19-cv- 00332, 2024 WL 113552, at *5–10 (D. Idaho Jan. 10, 2024). Accordingly, this challenge was deemed forfeited and incorrect. Our decision in Hanna Flats I specifically remanded for the district court to determine whether administrative waiver applied to scoping under § 6591b(f). See 68 F.4th at 483 (“We remand to the district court to consider Alliance’s unaddressed argument that there is no administrative-objection requirement in this context.”).  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 11 summary judgment was granted for the Forest Service. Before us now is Alliance’s appeal from that decision. 2 DISCUSSION Litigants challenging agency action generally must exhaust their administrative remedies before seeking judicial review. Woodford v. Ngo, 548 U.S. 81, 88–89 (2006). Exhaustion of administrative remedies “means using all steps that the agency holds out [for review], and doing so properly.” Id. at 90 (quotation omitted). Requiring administrative exhaustion “protects ‘administrative agency authority’” by giving the agency the opportunity to “correct its own mistakes.” Id. at 89 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992), superseded by statute, Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (1996), as recognized in Woodford, 548 U.S. 81). It also “promotes efficiency” because administrative proceedings are usually less cumbersome and lengthy than federal litigation and create a useful record for judicial review. Id. Failure to exhaust administrative remedies when required may foreclose judicial review. See Petrick, 68 F.4th at 488. Issue exhaustion, also called administrative waiver, SSA Terminals v. Carrion, 821 F.3d 1168, 1174 (9th Cir. 2016), is a related but separate principle, see Carr v. Saul, 593 U.S. 2 While the second Hanna Flats I appeal was pending, Judge Patricco granted partial summary judgment to Alliance in Hanna Flats II and again remanded the Project to the Forest Service without vacatur. All. for the Wild Rockies v. U.S. Forest Serv., 774 F. Supp. 3d 1253, 1278–79 (D. Idaho 2025). An appeal of that decision is also pending in this court. We invited the parties’ views on whether these appeals should be consolidated. Neither party addressed the potential impact the decision in this case might have on the second appeal in Hanna Flats II, and Alliance opposed consolidation. Thus, we declined to consolidate the appeals sua sponte. 12 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 83, 88 n.2 (2021) (“Issue exhaustion should not be confused with exhaustion of administrative remedies.”). Issue exhaustion “require[s] parties to give the agency an opportunity to address a[ specific] issue before seeking judicial review of that question.” Id. at 88. Thus, when applicable, a court must determine whether a party first raised its challenge to the agency before seeking Article III review. See Petrick, 68 F.4th at 488. Issue exhaustion may be mandated by statute or regulation. Carr, 593 U.S. at 88. But when both are silent, the judiciary may impose an issue-exhaustion requirement in some circumstances. See id.; Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1080 (9th Cir. 2013). Judicially imposed issue exhaustion, like a judicial requirement to exhaust administrative remedies, turns on “both the nature of the claim presented and the characteristics of the particular administrative procedure provided.” McCarthy, 503 U.S. at 146 (holding exhaustion of administrative remedies was not required for prisoner’s constitutional claim); see also Alaska Survival, 705 F.3d at 1080 (quoting Sims v. Apfel, 530 U.S. 103, 113 (2000) (O’Connor, J., concurring in part and in judgment)) (applying the same framework to issue exhaustion). In this case, the governing statute and regulations do not impose issue exhaustion. Congress directed the Secretary of Agriculture to create an administrative-review process for most projects arising under HFRA. 16 U.S.C. § 6515(a), (c); see also 36 C.F.R. §§ 218.1–218.32. It also required issue exhaustion for most HFRA projects. 16 U.S.C. § 6515(c)(2). But Congress specifically exempted “collaborative restoration projects” from the administrative-review process, which in turn exempted such projects from the issue-exhaustion requirement. Id. § 6591b(a)(2). The Forest  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 13 Service concedes that no other statute or regulation requires issue exhaustion here. 3 Therefore, for issue exhaustion to apply, it must be judicially imposed. 4 In deciding whether we should impose issue exhaustion to § 6591b(f) scoping, we must answer two questions. First, whether scoping is the type of administrative proceeding that warrants requiring issue exhaustion. 5 And second, whether 3 We do not “trample” on Congress’s design by not imposing issue exhaustion, as the dissent suggests, when Congress is silent on this issue. See Dissent at 45. Congress clearly knows how to mandate issue exhaustion when it wants to—it has not done so here. 4 Because we ultimately conclude that a judicially imposed issue- exhaustion requirement is inappropriate, we need not resolve whether the negative implication of § 6591b(a)(2) would categorically forbid us from imposing such a requirement. See Island Creek Coal Co. v. Bryan, 937 F.3d 738, 747–49 (6th Cir. 2019) (discussing the judiciary’s uncertain source of authority for imposing issue exhaustion). 5 The Forest Service and the dissent argue that Alliance waived reliance on this framework by failing to raise Sims or Carr to the district court or in its initial briefing on appeal. We disagree. “When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). Both below and in its opening brief on appeal, Alliance argued that issue exhaustion was not required. It is not determinative, as a matter of party presentation, that Alliance neglected relevant legal authority directly bearing on that issue; we must apply the correct law to decide the issue raised on appeal. See id.; see also Ctr. for Investigative Reporting v. Dep’t of Just., 14 F.4th 916, 943–44 (9th Cir. 2021) (Bumatay, J., dissenting) (“[A]s judges, our duty is to get the law right.”). Moreover, concerns with deciding questions not subjected to adversarial testing were addressed by our separate orders that the parties address the applicability of Carr at oral argument and, post-argument, that the parties file supplemental briefing addressing four questions, including their positions on the application of Carr and whether this issue was 14 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS Alliance’s wildland-urban-interface challenge is the type of claim that warrants requiring issue exhaustion, regardless of the nature of the administrative proceeding. A. Type of Proceeding In the context of agency adjudications, the Supreme Court has held that “courts decide whether to require issue exhaustion based on ‘an analogy to the rule that appellate courts will not consider arguments not raised before trial courts,’” which requires consideration of whether an administrative proceeding was “adversarial” or “inquisitorial.” Carr, 593 U.S. at 88–89 (quoting Sims, 530 U.S. at 108–09). The Forest Service argues that the adversarialness of the underlying administrative proceeding is only relevant in assessing whether the court should require issue exhaustion when the underlying proceeding was an agency adjudication. This is incorrect. Under our precedent, we must consider adversarialness when evaluating issue exhaustion stemming from both agency adjudications and non-notice-and-comment rulemaking proceedings. We begin with the Supreme Court’s decisions laying out the adversarialness analysis. In Sims, the Court held that a Social Security claimant seeking judicial review did not forfeit issues that were not raised to the Social Security Appeals Council. 530 U.S. at 105. No statute or regulation imposed an issue-exhaustion requirement, id. at 108, and the Court explained that “[t]he basis for a judicially imposed issue-exhaustion requirement is an analogy to the rule that appellate courts will not consider arguments not raised forfeited. See, e.g., United Ass'n Local 38 Pension Tr. Fund v. Aetna Cas. & Sur. Co., 790 F.2d 1428, 1432 n.3 (9th Cir. 1986) (Norris, J., concurring in part),  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 15 before trial courts.” Id. at 108–09. “Where the parties are expected to develop the issues in an adversarial administrative proceeding, . . . the rationale for requiring issue exhaustion is at its greatest.” Id. at 110. The Court concluded that the litigation analogy did not hold in Sims because, in proceedings before the Social Security Appeals Council, the agency is required to “investigate the facts and develop the arguments both for and against granting benefits,” and the Appeals Council must review the entire record sua sponte, see id. at 110–12 (plurality). 6 A few years later, again in the context of Social Security adjudication, the Supreme Court held that Social Security claimants did not forfeit their Appointments Clause challenges to the authority of the agency’s administrative law judges (ALJs) even though this challenge was not raised to the ALJs themselves. Carr, 593 U.S. at 85. The Court reiterated its rule from Sims—that “the desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding,” id. at 88 (quoting Sims, 530 U.S. at 109) (citation modified)—but did not conclusively decide whether proceedings before Social Security ALJs are adversarial or not, see id. at 92; see also id. at 92 n.5. Instead, the Court held that both the nature of a structural constitutional challenge to ALJ authority and the futility of raising that issue to the very actors who allegedly lacked power “tip[ped] the scales . . . against imposing an issue-exhaustion requirement.” Id. at 92–95. Only three 6 Justice O’Connor concurred in part, reasoning that “the agency’s failure to notify claimants of an issue exhaustion requirement” was “a sufficient basis for” the Court’s decision that the requirement did not apply. Id. at 113 (O’Connor, J., concurring in part and concurring in the judgment). 16 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS Justices would have squarely held that proceedings before Social Security Administration ALJs are non-adversarial. See id. at 96–97 (Thomas, J., concurring). Following Sims, our cases have distinguished between administrative adjudications and rulemaking challenges as they relate to adversarialness. Compare, e.g., Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 630–33 (9th Cir. 2008) (applying Sims’s framework to adjudications under the Employment Retirement Income Security Act) with Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1020 (9th Cir. 2004) (“[Sims] turned on the unique nature of Social Security benefit proceedings and offers no relevant guidance to rulemaking.”). And most of our decisions, as well as our sister circuits’ decisions, applying Sims and Carr arise from administrative adjudications. E.g., Obrien v. Bisignano, 142 F.4th 687, 694–701 (9th Cir. 2025); United Refin. Co. v. EPA, 64 F.4th 448, 457 (3d Cir. 2023). But we crossed this dividing line and addressed the Sims framework in the rulemaking context in Alaska Survival, holding that Sims is categorically inapplicable only to notice- and-comment rulemaking, not to all rulemaking. 705 F.3d at 1080–81. At issue in Alaska Survival was a challenge raised by environmental organizations to the Surface Transportation Board’s exemption of a railroad from the full licensing provisions of the Interstate Commerce Commission Termination Act (ICCTA). See id. at 1076. The agency “did not request comment[s]” during the EIS process nor did it “provide[] direct notice of or request[] public comment on the exemption.” Id. at 1077, 1081. Nonetheless, the environmental organizations submitted numerous comments on both the draft and final EIS, although they did  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 17 not argue that the ICCTA exemption was improper. See id. at 1077, 1081. In holding that the environmental organizations had not forfeited their ability to raise their exemption challenge in the subsequent litigation, we relied on Sims in concluding that issue exhaustion was not required. See id. at 1080–81. We recognized our prior precedent holding that “Sims ‘offers no guidance’ in the notice-and-comment rulemaking context.” Id. at 1080 (quoting Universal Health Servs., Inc., 363 F.3d at 1020). But we distinguished that precedent because Alaska Survival did not involve formal notice-and- comment rulemaking. Id. Instead, we found “instructive” the principle developed in our adjudication-context precedent that “when an agency engages in a non-adversarial, informal proceeding and does not provide notice of issue exhaustion requirements, then judicially created issue exhaustion is likely inappropriate.” Id. And we held in Alaska Survival that issue exhaustion was not required because the rulemaking procedure at issue was “informal and provided no notice to interested parties that to later challenge the [Board’s] decision one must submit comments during the exemption process.” Id. This was true even though the agency received comments in response to both its draft and final EIS and responded to those comments. Id. at 1076–77. We explained that “[b]ecause this administration process lacks an adversarial component, ‘the reasons for [us] to require issue exhaustion are much weaker.’” Id. at 1081 (quoting Sims, 530 U.S. at 110) (alteration in original). We see no material distinction between Alaska Survival and the circumstances presented here. Therefore, consistent with our decision in that case, here we must determine whether HFRA’s non-adjudicative scoping process is analogous to notice-and-comment rulemaking. If it is not, 18 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS then we must consider whether scoping under HFRA is adversarial. But before reaching these issues, we first describe HFRA’s scoping process. 1. HFRA refers to “scoping” in several sections, see 16 U.S.C. §§ 6512(e)(4)(C), 6514(c)(1)(C), 6515(a)(3), 6591a(d)(2), 6591b(f), but it does not define this term. “Scoping” first appeared in the 1978 NEPA regulations, see 43 Fed. Reg. 55978, 55982, 55993–94 (Nov. 29, 1978), which were in effect both when HFRA was initially enacted and when it was later amended. 7 Because Congress used several terms of art from the 1978 regulations in HFRA— including “categorical exclu[sion]” and “scoping”—we rely on the regulations to understand Congress’s original meaning. See George v. McDonough, 596 U.S. 740, 746 (2022) (“Where Congress employs a term of art obviously transplanted from another legal source, it brings the old soil with it.” (citation modified) (citation omitted)). Under the 1978 NEPA regulations, scoping was an “early and open process” employed after an agency decided “to prepare an [EIS].” 40 C.F.R. § 1501.7 (2003) amended by 85 Fed. Reg. 43357, 43359; see also id. at § 1501.4; 43 7 HFRA was originally enacted in 2003, see Pub. L. No. 108-148, 117 Stat. 1887 (2003), and subsequently amended in 2014, see Pub. L. No. 113-79, §§ 8204–05, 128 Stat. 649, 915–21 (2014). The 1978 NEPA regulations remained in effect with minimal amendment until 2020. See generally 85 Fed. Reg. 43304 (July 16, 2020). Ultimately, due to suggestions from courts that the Center for Environmental Quality (CEQ) lacked authority to promulgate the NEPA regulations, see Marin Audubon Soc’y v. FAA, 121 F.4th 902, 908–09, 912–15 (D.C. Cir. 2024), the regulations were repealed, 90 Fed. Reg. 10610, 10610–16 (Feb. 25, 2025). But these regulations still guide the interpretation of “scoping” in HFRA.  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 19 Fed. Reg. at 55982. This process helped determine “the scope of issues to be addressed and” to identify “the significant issues related to a proposed action.” 40 C.F.R. § 1501.7 (2003). It required agencies to “[i]nvite the participation” of interested parties, which could take the form of public meetings. Id. at § 1501.7(a)(1), (b)(4). And in consultation with interested parties, the agency would determine which issues to analyze in the EIS and would “eliminate from detailed study the issues which are not significant.” Id. § 1501.7(a)(2), (3). 8 Of course, because HFRA mandates scoping for projects categorically excluded from NEPA review, see 16 U.S.C. § 6591b(a)(1), (f), the ultimate goals of scoping under HFRA necessarily differ from those outlined in the 1978 NEPA regulations. Rather than conducting scoping to identify the issues to be addressed in a further NEPA review, we understand scoping under § 6591b(f) to require an open process under which the agency solicits feedback from the public on the scope and components of a project and iterates the project based on the feedback that it receives. This interpretation aligns with the other provisions in § 6591b— namely, that a collaborative restoration project must be “developed and implemented through a collaborative process that” “includes multiple interested persons representing diverse interests” and that is “transparent and 8 We observe that there are slight differences between the Forest Service’s 2008 NEPA regulations and 1978 CEQ NEPA regulations. See 73 Fed. Reg. 43084, 43094, 43096 (July 24, 2008). Namely, scoping under the Forest Service’s regulations was a process used before preparation of an EA. See 36 C.F.R. §§ 220.4(e), 200.6(c) (2008). These distinctions do not affect our analysis in this case, and we do not resolve which version of scoping, if either, Congress codified in HFRA or its 2014 amendments. 20 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS nonexclusive” or otherwise complies with other methods of public participation. Id. § 6591b(b)(1)(C). 2. With that background, we turn to whether scoping under HRFA is analogous to formal notice-and-comment rulemaking or to the non-notice-and-comment EIS process at issue in Alaska Survival. This question is easily answered. Scoping as a general matter is an informal process that often precedes formal NEPA review, which requires notice-and- comment rulemaking. 40 C.F.R. §§ 1501.7; 1503.1 (1978). Scoping does not require publication in the Federal Register or compliance with specified procedural guardrails. See 36 C.F.R. § 220.4(e); 40 C.F.R § 1501.7 (2008). Nor does it require that interested parties comment or that the agency consider the views raised in any comments. See 16 U.S.C. § 6591b(f); 36 C.F.R. § 220.4(e) (2008). And like Alaska Survival, nothing in HFRA or the Forest Service’s Scoping Notice issued in this case told Alliance that it was required to comment during the scoping process to preserve the ability to challenge the Forest Service’s final decision. The statutory context also indicates that HFRA scoping is not analogous to formal notice-and-comment rulemaking. As stated, NEPA review requires full notice-and-comment rulemaking. 40 C.F.R. § 1503.1 (1978). Section § 6591b permits scoping for projects that are categorically excluded from NEPA’s requirements. 16 U.S.C. § 6591b(a)(1), (f). It would be illogical to conclude that scoping is as formal as the process that § 6591b expressly avoids. The dissent tries to sidestep Alaska Survival by drawing immaterial factual distinctions and artificially narrowing its holding. First, the dissent contends that the rulemaking proceeding in Alaska Survival was more informal than the  ALLIANCE FOR THE WILD ROCKIES V. HIGGINS 21 process here because the agency there did not provide notice of the claimed exemption or solicit public comment on it and because the agency’s applicable regulations provided that public comments generally were not sought on exemption petitions. Dissent at 50–53. The dissent misreads the notice that Alaska Survival found material. Alaska Survival relied not on the failure to provide notice about the public-comment process generally but on the agency’s failure to provide “notice to interested parties that to later challenge the [agency’s] decision one must submit comments during the [agency’s] process.” 705 F.3d at 1080. Such notice was also lacking here. The Forest Service’s Scoping Notice did not inform interested parties that they had to raise an issue during the scoping process to preserve the ability to later challenge the agency’s final decision. And the dissent’s suggestion that the Forest Service responding to the comments that it received is a meaningful difference also fails because the agency in Alaska Survival also received and responded to comments from interested parties, and yet we determined that judicially imposed issue exhaustion was not required. Id. at 1076–77. Second, the dissent mischaracterizes the holding in Alaska Survival by suggesting that it is “best read” as simply identifying “exceptional circumstances sufficient to excuse waiver.” Dissent at 53. The dissent further asserts that this prior decision does not counsel against applying judicially imposed issue exhaustion here because “[n]othing in Alaska Survival suggests that a process that provides notice and generates comments considered by the agency is too informal to apply the administrative waiver doctrine.” Id. at 19. This is plainly wrong. As already discussed, the relevant notice concerning the necessity of public comment was lacking in both cases. And in both cases the agency received 22 ALLIANCE FOR THE WILD ROCKIES V. HIGGINS and addressed public comments during its decision-making process (even though the agency in Alaska Survival did not invite comments). Alaska Survival, 705 F.3d at 1076–77. In sum, the rulemaking process here was not as different in character from the process in Alaska Survival as the dissent suggests. Rather, the dissent seemingly disagrees with Alaska Survival’s application of Sims’ reasoning concerning adversarialness of the proceeding to informal rulemaking. But as a three-judge panel, we are bound to follow Alaska Survival. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). For these reasons, we conclude that scoping under HFRA is analogous to the informal non-notice-and- comment rulemaking at issue in Alaska Survival. We next consider whether it is adversarial. 3. We explained in Alaska Survival that where an “administrative process lacks an adversarial component, ‘the reasons for [us] to require issue exhaustion are much weaker.’” Id. at 1081 (quoting Sims, 530 U.S. at 110). “The critical feature that distinguishes adversarial proceedings,” which require issue exhaustion, “from inquisitorial ones,” which do not, is whether the parties “bear the responsibility to develop issues” before the agency. Carr, 593 U.S. at 89. Several factors may influence this inquiry, including (1) whether the agency classifies the proceeding as adversarial, Sims, 530 U.S. at 111 (plurality); Carr, 593 U.S. at 91; (2) whether the parties are required to file briefs, Sims, 530 U.S. at 111 (plurality); and (3) whether the parties were notified that issue exhaustion was required, id. at 113 (O’Connor, J., concurring in part and concurring in the judgment); Carr, 593 U.S. at 91. In conducting this inquiry,  ALLIANCE FOR THE WILD ROC