884 A.2d 650 (2005)
David NUYEN, Appellant,
v.
Raysa LUNA, Appellee.
No. 03-CV-1373.
District of Columbia Court of Appeals.
Argued June 9, 2005.
Decided October 13, 2005.
*651 Daniel Wemhoff, for appellant.
Barbara McDowell, with whom Jennifer L. Berger, was on the brief, for appellee.
Before SCHWELB and FARRELL, Associate Judges, and BURGESS, Associate Judge, Superior Court of the District of Columbia.[*]
BURGESS, Associate Judge:
David Nuyen ("Nuyen") appeals from an order denying his motion to vacate a default judgment. He also contends that the trial court erred in entering the judgment itself. We reject his attack on the judgment, but find merit in his contention that the trial court abused its discretion in denying the motion to vacate without stating its reasons. Accordingly, we reverse and remand.

I. Procedural History

Proceeding pro se, Nuyen filed a complaint in the Landlord  Tenant Branch of the Civil Division alleging that his tenant, Raysa Luna ("Luna"), had failed to pay rent for three months. He sought possession and a money judgment for the unpaid rent. Luna filed a verified answer, counterclaim, and jury demand, alleging that Nuyen had breached the implied warranty of habitability by failing to correct housing code violations. She sought an abatement *652 of rent, a set-off or reimbursement for repairs, an injunction requiring Nuyen to repair the alleged violations, and such "further relief as the court deems just and proper." The landlord-tenant action was thereafter certified to the Civil Actions Branch pursuant to Super. Ct. Landlord and Tenant Rule 6.
Luna also commenced a separate civil action in the Civil Actions Branch seeking recovery for personal injuries that she and her daughters allegedly had suffered due to a collapsed ceiling and other conditions in the apartment. She sought compensatory and punitive damages, and an injunction requiring Nuyen to repair the allegedly unsafe conditions. Nuyen filed an answer denying the allegations in the complaint.
The judge presiding over the civil action consolidated it with the landlord-tenant action. Attorneys entered their appearance for Nuyen in the civil action. The court entered a scheduling order on February 22, 2003, which set deadlines for discovery, informed the parties that alternative dispute resolution would occur between August 22, 2002 and September 22, 2002, and stated that a pretrial conference would occur approximately sixty days thereafter.
Some three weeks after entry of the scheduling order, Nuyen was sentenced to two years imprisonment upon his plea of guilty to federal charges relating to the Department of Housing and Urban Development's investigation into Nuyen's compliance with the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4852d (2005).
When Nuyen failed to respond to Luna's interrogatories and requests for production, Luna filed a motion to compel. Nuyen's counsel responded in part that he had been unable to locate Nuyen's prison address in order to forward to him the discovery requests. The court granted the motion to compel and awarded attorney fees. Nuyen failed to provide discovery by the deadline set in the court's order, whereupon the court issued a second order on September 23, 2002, and warned Nuyen that it would impose sanctions if he did not respond.
Meanwhile, on September 12, 2002, the court issued notices scheduling the pretrial conference for November 13, 2002. It mailed the notices to Luna's lawyer, to Nuyen's lawyers in the civil action, and to Nuyen at his home address. It did not mail notice to Nuyen's prison address, as he had not notified the court of that address.
On November 10, 2002, Nuyen executed a settlement agreement, which was later signed by his counsel. Luna and her counsel executed the agreement on November 14. The terms of the agreement required Nuyen to pay Luna $16,000 in return for her releasing Nuyen from
all claims, demands, action or damages which arise out of, or in any way relate solely to, the alleged personal injury claims of [Luna] and/or her minor children, which resulted in the filing of a lawsuit by [Luna] identified as Luna v. Nuyen Civil Action No. 01CA008500.
The agreement expressly exempted from its scope the claims and defenses in the landlord-tenant action, and stated that that action would "continue unhindered, unimpeded, and without any limitation to the causes or defenses asserted therein, notwithstanding the execution of this agreement."
On November 13, three days after Nuyen executed the settlement agreement, Luna and her attorney appeared for the scheduled pretrial conference in the landlord-tenant case. Nuyen did not appear, and neither did his lawyers in the civil action. The court took no action at the *653 pretrial conference but granted Luna leave to file a motion for default judgment.
On December 24, 2002, Luna filed a motion for default judgment on her counterclaim, on the ground that Nuyen had failed to attend the pretrial conference. She asked for a rent abatement in the amount of $4,000, punitive damages in the amount of $50,000, release of all monies in the registry of the court, and injunctive relief.
Nuyen's counsel in this appeal filed a praecipe on February 26, 2003, in which he entered his appearance "in order to respond to defendant's motion for default judgment [in] this remaining case." No response, however, was filed. On June 24, 2003, the trial court granted as unopposed the motion for default judgment, granting all of the relief Luna requested.
Acting pro se, Nuyen filed a motion to vacate the default judgment on July 14, 2003. He represented that he had not received notice of the pretrial conference, had been in prison since April 22, 2002, and had not been represented by counsel since the settlement of the civil action. He asserted that Luna's counterclaim had no merit, and attached to the motion a paper entitled "Plaintiff's Response to Defendant's Motion for Default Judgment and Motion for Enlargement of Time." The attachment stated, among other things, that there were no housing code violations in Luna's apartment, and argued that Nuyen's criminal convictions in the cases relating to lead-paint violations were irrelevant to the claimed housing code violations. In his motion, Nuyen represented that he had mailed and served the attached response immediately after receiving the motion for default judgment on January 3, 2003. (Nuyen's certificate of service on the response, however, indicated service of the response on December 27, 2002.) Citing Super. Ct. Civ. R. 59, Nuyen asked the court to vacate the judgment.
On July 24, 2003, Luna filed an opposition to Nuyen's motion. The opposition noted counsel's praecipe stating an intent to file a response to the motion for default judgment, and pointed out that the promised response had never been filed. Luna's opposition argued that Nuyen provided no grounds for relief under Rule 59, or "any other civil rule." Luna argued that Nuyen had asserted no error of law, no intervening change in the law, no new, previously unavailable evidence, and no manifest injustice warranting relief.
The trial court granted Nuyen's counsel an extension of time to amend Nuyen's motion. On August 26, Nuyen's counsel filed a motion to vacate the default judgment. The motion represented that, in response to the motion for default judgment, Nuyen had filed an opposition claiming that he had received no notice of the pretrial conference. The motion then, somewhat confusingly, represented that Nuyen had had his counsel "deliver a copy of his Opposition to the court jacket and the present judge in this case." In addition to reiterating Nuyen's position that he had received no notice of the pretrial conference, Nuyen's counsel added a new argument. He contended that the doctrine of res judicata barred the default judgment because the settlement in the civil action had necessarily resolved Luna's counterclaims in the landlord-tenant action.
On October 29, 2003, the trial court denied Nuyen's motion to vacate the default judgment "for good cause shown," without further explanation. On the same date, the trial court, pursuant to the settlement, dismissed with prejudice Luna's claims in the civil action. This timely appeal followed.

*654 II. Analysis

A. Appeal from the Default Judgment

Nuyen's notice of appeal states that Nuyen appeals from the order denying the motion to vacate default judgment. Nevertheless, Nuyen makes several arguments attacking the trial court's default judgment itself. He argues, among other things, that the trial court abused its discretion in granting a default judgment as a sanction, and that the amount of punitive damages is so disproportionate to the amount of rent abatement as to deny him due process of law. Luna contends that these arguments are not available to Nuyen because he did not file a notice of appeal from the default judgment, but noted an appeal only from the order denying Nuyen's motion to vacate. We conclude, for reasons somewhat different from those Luna offers, that Luna is correct.
Our analysis begins with the proposition that
the timely filing of a [Super. Ct. Civ.] Rule 59(e) motion . . . tolls the time for filing a notice of appeal from the original judgment, so that the time for noting such an appeal begins to run again from the entry of the order disposing of the Rule 59(e) motion.
White v. Sargent, 875 A.2d 658, 662 (D.C. 2005). See D.C. Ct.App. R. 4(a)(iii).
In White, one of the appellants appealed from an order denying a motion to reconsider an order granting summary judgment. She did not, however, appeal the order granting summary judgment itself. The court nevertheless held that, since the motion to reconsider was a timely filed motion pursuant to Rule 59(e), the appeal "encompass[ed] not only the denial of the Rule 59(e) motion but the original judgment as well . . . ." Id. Likewise, Nuyen's appeal encompasses not only the order denying the motion to vacate default judgment but also the order granting the default judgment, so long as his motion was a Rule 59(e) motion and so long as it was timely filed. Luna concedes that the motion was timely filed within ten days of the entry of the default judgment, as required by Rule 59(e).[1] Accordingly, we turn to the question whether Nuyen's motion was a Rule 59(e) motion.
Nuyen explicitly premised his pro se motion on Rule 59.[2] Rule 59(e) provides that a motion "to alter or amend a judgment shall be filed no later than 10 days after entry of judgment." Super. Ct. Civ. R. 60(b), however, also would have been a basis for granting Nuyen the relief he sought. That rule allows a court, upon a motion timely filed, to "relieve a party . . . from a final judgment, order, or proceeding," and, although a Rule 60(b) motion is not required to be filed within ten days, it may be. See United States v. $23,000 in U.S. Currency, 356 F.3d 157, 164-65 & n. 9 (1st Cir.2004) (construing motion filed within ten days of final judgment as Rule 60(b) motion). The nature of a motion does not turn on its caption or label, but rather its substance.[3] We have noted that because Rules 59(e) and 60(b) "overlap *655. . ., it is not always clear whether a particular motion constitutes a Rule 59(e) motion or a Rule 60(b) motion." Id. at 805. (Citation omitted.) A motion that is "proper under either rule" will ordinarily be treated as a Rule 59(e) motion, if timely filed. Id. We conclude in this case, however, that Nuyen's pro se motion, though timely filed, was not a proper Rule 59(e) motion.
This court addressed the difference between a Rule 59(e) motion and a Rule 60(b) motion in Wallace, supra note 3. We stated that our cases
described the difference between Rule 59(e) and Rule 60(b) motions in terms of whether, for the first time, the movant is requesting consideration of additional circumstances; if so, the motion is properly considered under Rule 60(b), but if the movant is seeking relief from the adverse consequences of the original order on the basis of error of law, the motion is properly considered under Rule 59(e).
Id. at 804 (citing Coleman v. Lee Washington Hauling Co., 388 A.2d 44, 46 & n. 5 (D.C.1978) (citing 9 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 204.12[1] at 953); Cohen v. Holmes, 106 A.2d 147, 148 (D.C.1954)). Nuyen's pro se motion did not base his claim for relief on an error of law; he alleged an additional circumstance not available to the trial court when it granted the default judgment. That circumstance was Nuyen's failure to receive notice of the pretrial conference. Nuyen thus claimed, in effect, "excusable neglect" in failing to attend the conference. This is a ground for relief under Rule 60(b)(1), and his pro se motion properly should be treated as a motion under that rule. See United States v. $23,000 in U.S. Currency, supra, 356 F.3d at 164 & n. 9 ("Rule 59(e) `does not provide a vehicle for a party to undo its own procedural failures. . . .'") (quoting Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir.1997)). See also 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 60.03[4] at 60-25 (3d ed. 2005) (". . . [E]ven if filed within the time limit for a motion under FED. R. Civ. P. 59(e), a motion seeking relief on grounds of excusable neglect will be treated as a Rule 60(b)(1) motion, since Rule 59(e) does not provide a vehicle for a party to undo its own procedural failures.").
The trial court extended the time for Nuyen to amend his motion, and his counsel subsequently filed a supplemental motion, adding as an additional ground for relief the argument that res judicata barred a judgment against Nuyen. In this argument, Nuyen's counsel did claim an error of law, an error cognizable under Rule 59(e). Had Nuyen's pro se motion been a Rule 59(e) motion, we would face the question of whether the amended motion, filed under an extension granted by the trial court, could be treated as part of a timely filed Rule 59(e) motion.[4] Since we hold that Nuyen's motion was not a Rule 59(e) motion, but rather a Rule 60(b)(1) motion, we need not address this *656 question. The supplemental motion filed by Nuyen's counsel was a supplement to a Rule 60(b)(1), not a Rule 59(e), motion.[5] Nuyen may therefore appeal only from the denial of his Rule 60(b)(1) motion; he may not challenge the default judgment itself.

B. Appeal from the Denial of the Motion to Vacate

Nuyen argues that the trial court abused its discretion in denying his motion to vacate without stating its reasons. We agree.
Rule 60(b) states in relevant part:
On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; . . . .
In considering whether to set aside a default judgment pursuant to Rule 60(b), the trial court must consider
whether the movant (1) had actual notice of the proceedings; (2) acted in good faith; (3) took prompt action; and (4) presented an adequate defense. Prejudice to the non-moving party is also relevant.
Starling v. Jephunneh Lawrence & Assocs., 495 A.2d 1157, 1159-60 (D.C.1985).
We review the trial court's denial of a motion to vacate default judgment for abuse of discretion. There exists a "strong judicial policy favoring adjudication on the merits of a case." Walker v. Smith, 499 A.2d 446, 448-49 (D.C.1985). (Citations omitted.) In exercising its discretion, the trial court must weigh that policy against "[the] strong policy favoring the finality of judgments . . . ." Clay v. Deering, 618 A.2d 92, 94 (D.C.1992). Because judicial policy favors decision on the merits, however, "even a slight abuse of discretion in refusing to set aside a judgment may justify reversal." Starling, supra, 495 A.2d at 1159.
In Starling, supra, 495 A.2d at 1162, we stated:
This court has long emphasized that the trial court has a responsibility to inquire where matters are raised which might entitle the movant to relief under Rule 60(b).
We reiterated this point in Reid v. District of Columbia, 634 A.2d 423, 425 (D.C.1993), where we reversed the denial of a motion to vacate a dismissal of a complaint. In that case, the trial court denied the motion "`for the reasons stated in the defendant's opposition.'" Id. We concluded:
A review of the record indicates that in denying appellants' motion to reinstate the case, the trial court did not consider the factors enumerated in either Rule 60(b)(1) or in Starling. There was no inquiry by the trial court into whether appellants' counsel's actions constituted mistake, inadvertence, surprise or excusable neglect which would justify setting aside the order of dismissal. Moreover, there was no inquiry into whether appellants had actual notice of the proceedings, acted in good faith, and took prompt action; nor was there any inquiry as to possible prejudice to the non-moving party or a recognition by the trial court of "evidence in the record reflecting unjustified delays, or noncompliance with the court rules, attributable to the appellant . . . ."
Id. (citations omitted). See also Johnson v. Lustine Realty Co., 640 A.2d 708, 709 (D.C.1994) (holding that the trial court *657 abused its discretion by not making the necessary inquiry and in failing to address two factors that bore directly on the Rule 60(b) motion). The failure to inquire into the factors bearing on a motion to vacate "too heavily tip[s] the scales in favor of the need for finality in litigation." Walker, supra, 499 A.2d at 449.
In his motion, Nuyen asserted that he did not receive notice of the pretrial conference. He claimed that he had attempted to file an opposition to the motion for default judgment. His motion was filed on July 14, about three weeks from the date on which the judgment was entered. On this record the trial court might reasonably find that Nuyen failed to receive notice of the pretrial conference, took prompt action to remedy his failure to attend it, and acted in good faith. The trial court's order, however, provides no indication that it inquired into these factors, all of which bore on the exercise of its discretion.
Luna argues, among other things, that Nuyen himself was responsible for his failure to receive notice of the pretrial because he did not notify the court of his prison address, and argues that his imprisonment would have prevented his participation in the pretrial conference in any event. As evidence of bad faith, she points to Nuyen's failure to arrange for the prosecution of his case during his two-year imprisonment, his violation of discovery rules, and his failure to file an opposition to the motion for default judgment. She claims prejudice because Nuyen's conduct delayed her trial, thereby jeopardizing her ability to present evidence and delaying a judgment that would return to her sorely needed rental payments.
Because the trial court denied the motion to vacate without stating its reasons, we need not evaluate the strength of Nuyen's and Luna's arguments. The trial court has the responsibility, in the exercise of its discretion, to consider the facts in light of the factors pertinent to a motion to vacate a default judgment. "In exercising its discretion, the trial court must choose `what is right and equitable under the circumstances and the law' and state the reasons which support its conclusion." Firemen's Ins. Co. v. Belts, 455 A.2d 908, 909 (D.C.1983) (quoting Johnson v. United States, 398 A.2d 354, 361 (D.C.1979)).
Luna makes one argument, however, that arguably warrants our sustaining the trial court's judgment without a remand. She argues that Nuyen did not present an adequate defense. A motion under Rule 60(b) must offer a "sufficient elaboration of the facts ... to permit the trial court to conclude whether the defense, if found to be true, is adequate."[6]Tennille v. Tennille, 791 A.2d 79, 83 (D.C. 2002). More than a "bald allegation" is required to adequately state a prima facie defense under Rule 60(b), Clark v. Moler, 418 A.2d 1039, 1043 (D.C.1980), and notice pleading principles are not applicable. Brady v. Graham, 611 A.2d 534, 536 (D.C. 1992). The movant need not, however, show a likelihood of success on the merits. Clark, supra, 418 A.2d at 1043. Rather, the movant needs to "provide the [trial] court with reason to believe that vacating the judgment will not be an empty exercise or a futile gesture." Murray v. District of Columbia, 311 U.S.App. D.C. 204, 206, 52 F.3d 353, 355 (1995).
If the trial court had been presented only with Nuyen's counsel's proffer of a meritorious defense, we would have no trouble sustaining the judgment. In his supplement to his client's motion to vacate, *658 counsel argued that res judicata barred entry of the default judgment. Nuyen presses the same argument in this court. This argument could not have been sustained by the trial court.
Where there has been a final judgment on the merits of a claim, the doctrine of res judicata "precludes relitigation in a subsequent proceeding of all issues arising out of the same cause of action between the same parties or their privies, whether or not the issues were raised in the first trial." Faulkner v. Gov't Employees Ins. Co., 618 A.2d 181, 183 (D.C.1992). The doctrine applies only where the issues in the prior and subsequent action arise out of the same cause of action. Id. Nuyen, through counsel, argued below that Luna's counterclaim in the landlord-tenant action and her complaint in the civil action arose out of the same cause of action. Therefore, he argued, Luna's counterclaim in the landlord-tenant action was necessarily resolved by the settlement. Nuyen renews these arguments here.
We need not address the issue of whether Luna's counterclaim and her civil action complaint arose out of the same cause of action. Even if they did, the parties made clear in their settlement agreement that the agreement pertained only to the complaint for personal injuries and did
not limit or otherwise alter or affect any rights, claims, causes or defenses of the parties in the Landlord Tenant action.... and that said L & T action shall continue unhindered, unimpeded, and without any limitation to the causes or defenses asserted therein, notwithstanding the execution of this agreement.
A plaintiff may maintain a claim based on the same cause of action if "the parties have agreed in terms or effect that the plaintiff may split [her] claim, or the defendant has acquiesced therein." RESTATEMENT (SECOND) OF JUDGMENTS § 26(1)(a). By agreeing that Luna could pursue her landlord-tenant claim, Nuyen waived any res judicata defense. Gilles v. Ware, 615 A.2d 533, 535, 545, 549-50 (D.C.1992) (per curiam) (adopting RESTATEMENT (SECOND) JUDGMENTS § 26(1)(a)). See also Ifill v. District of Columbia, 665 A.2d 185, 193 (D.C.1995), cert. denied, 517 U.S. 1169, 116 S.Ct. 1570, 134 L.Ed. 669 (1996).
Although the trial court could not have found that Nuyen's supplemental motion, filed by his attorney, raised a meritorious defense, it could have determined that Nuyen's pro se motion did. To explain this conclusion, we briefly review the record before the trial court.
Luna's counterclaim alleged that she and her two children inhabited a one-bedroom condominium under a lease beginning October 2000. She alleged several violations of the District of Columbia Housing Code Regulations existing from the inception of her tenancy, including the absence of heat, problems with plumbing, broken windows, rodent infestation, and the absence of a fire alarm. One of the most serious of the alleged violations consisted of an allegation that a ceiling had fallen on one of her children. In the motion for default judgment she stated, in support of her position that the court should award punitive damages:
[S]hortly after moving to the property, [Luna] began to notice that the ceiling was in a state of near collapse. When she notified [Nuyen] of the dangerous state of the ceiling, [Nuyen] refused to effect repairs to the premises, despite actual and constructive notice of the danger and threat the condition posed to the health, safety and welfare of the Defendant, her minor children, and her invitees. Ultimately, the ceiling collapsed *659 upon the Defendant's minor child causing her injuries.
Luna's motion for default judgment reiterated her prayer for compensatory monetary relief, requesting an abatement of rent from the inception of the tenancy, calculated at $4,000. Luna's request for punitive damages was based on the housing code violations as well as on an allegation that Nuyen was an "archetyp[al] ... `slumlord.'" Her allegation was supported by newspaper articles and other documents, attached to the motion, reporting Nuyen's ownership of several apartments with low-income tenants, his citation for thousands of housing code violations, and his indictment in connection with the Justice Department's investigation into lead paint violations in several of his apartments.
The default judgment granted the rent abatement in the amount of $4,000 for the entire period of the tenancy, and punitive damages in the amount of $50,000. The court also granted the injunctive relief requested. The rent abatement, if entered after a trial, would necessarily be predicated on proof that there were housing code violations from the inception of the tenancy that rendered the apartment unsafe and unsanitary, about which Nuyen knew or should have known, or on proof that such violations arose after the tenancy began, were not caused by Luna's intentional acts or negligence, and were not corrected within a reasonable time. See 14 DCMR §§ 302.1 and 302.2 (2004). The punitive damages judgment, if entered after a trial, would necessarily have been grounded on a finding, by clear and convincing evidence, that Nuyen's conduct in permitting or not correcting the housing code violations was "malicious, wanton, reckless, or in willful disregard of [Luna's] rights." Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938 (D.C.1995), cert. denied, 519 U.S. 1148, 117 S.Ct. 1080, 137 L.Ed.2d 215 (1997).
Nuyen's answer to Luna's complaint in the civil action,[7] in which she alleged personal injuries arising from the collapsed ceiling, asserted that he and his managers
have never been informed of any problems of the ceiling. Plaintiff has been a tenant only recently and the unit was in good condition at the time the Plaintiff moved in. Any complaints about the condition of the unit have been fixed properly.
In his pro se motion to vacate, Nuyen asserted that "[t]here are no housing code violations in the defendant'[s] premises as claimed by defendant and as known to plaintiff." He stated that plaintiff moved with her children into an efficiency apartment, and was told that she could not live there with children. "Out of compassion," according to Nuyen, he allowed her to live there while she waited for a one-bedroom apartment. When that became available, she refused to move. "[T]o avoid headache," he "renovated her apartment to almost new."
In response to the allegations in support of the punitive damages award, Nuyen stated that the lead-paint criminal case "had nothing to do with housing code violations." He further stated:
In the District of Columbia, especially for apartment buildings with low income tenants, it is a common practice that when tenants are behind in rents, they tend to make things up and call housing *660 inspectors for housing code violations. Housing inspectors would come and write up the violations. Landlords then usually have thirty days to correct the violations. Once the violations are corrected, landlords have to call the inspectors to re-inspect the units and clear the violations. However, it is a common practice that the inspectors would not come back in response to landlords' requests. They would come back only if tenants call them again for still pending violations. The high profile case against the plaintiff has been the product of a campaign from the HUD to promote awareness in the real estate industry nationwide regarding the lead-based paint disclosure requirements. It had nothing to do with this case.
Nuyen's answer to the complaint, together with his motion, provided the trial court with sufficient factual assertions to permit it to conclude that he presented an adequate defense to a claim of rent abatement for the entire period of the tenancy. Although Nuyen did not, in his response, address each alleged housing code violation, he asserted that there were no violations "as claimed by" Luna, and that he had renovated the apartment "to almost new." He further asserted that tenants generally "tend to make things up and call housing inspectors for housing code violations." A fair inference from this pro se response is that Nuyen took the position that each of Luna's claims was false. Nuyen's answer to Luna's complaint in the civil action asserted that Luna's unit was in good condition when she moved in, and Nuyen specifically denied being informed of any problems with the ceiling, thus denying a central predicate for the rent abatement and punitive damages.[8] Further, his allegations that he had acted out of compassion toward Luna, had fixed her apartment to "almost new," and had never been informed of the problem with the ceiling, together with his assertion that his conviction in connection with the lead paint investigation was irrelevant to the assessment of punitive damages, were sufficient to permit the trial court to conclude that Nuyen had a defense to the complaint for punitive damages.[9] Beyond this, of *661 course, we do not express any opinion on the merits of Nuyen's proffered defenses.

III. Conclusion

We cannot hold as a matter of law that Nuyen's motion failed to meet any of the requirements for vacating a default judgment. Since the trial court's denial of the motion to vacate did not indicate that it inquired into the reasons Nuyen advanced in support of his motion, we must reverse the judgment and remand for proceedings consistent with this opinion.
So ordered.
NOTES
[*]  Sitting by designation pursuant to D.C.Code § 11-707(a) (2001).
[1]  The judgment was entered on June 24, and the motion was filed on July 14. Using the counting rules of Rule 6(a), as construed in Faggins v. Fischer, 853 A.2d 132 (D.C.2004), Nuyen's motion was filed within ten days of entry of judgment. Super. Ct. Civ. R. 6(a).
[2]  We note, parenthetically, that he would have been more precise if he had cited Rule 59(e).
[3]  We have said that the nature of a motion should be determined by the relief it seeks. Wallace v. Warehouse Employees Union No. 730, 482 A.2d 801, 804 (D.C.1984), citing several cases.
[4]  In Fitzgerald v. Hunter Concessions, Inc., 710 A.2d 863 (D.C.1998), the trial court granted as unopposed a motion to dismiss. The losing party filed a timely motion under Rule 59(e) on the ground that he had filed a timely opposition. The trial judge denied the motion without prejudice for "technical deficiencies," noting the movant's failure to comply with its general order governing motions. The movant then filed an amended motion satisfying the technical requirements. We held that, even though the second motion was filed outside the ten-day period prescribed by Rule 59(e), the trial court committed no error in treating the second motion as timely filed because the second motion was simply a "technical correction" of the first. Id. at 864 n. 3. We did not address the issue of whether a non-technical amendment of a timely filed Rule 59(e) motion would be timely if filed outside the ten-day limit under an extension granted by the trial court.
[5]  We point out, in addition, that since Nuyen's pro se motion was not a Rule 59(e) motion, to the extent that the trial judge intended to allow an extension of time to file a Rule 59(e) motion, she was without jurisdiction to grant it. Frain v. District of Columbia, 572 A.2d 447, 450 (D.C.1990).
[6]  A meritorious defense is not necessary where the movant proves a void judgment under Rule 60(b)(4). Alexander v. Polinger Co., 496 A.2d 267, 269 (D.C. 1985).
[7]  Nuyen did not file an answer to the counterclaim in the landlord-tenant action; the Rules of the Landlord-Tenant court did not require him to do so. See Super. Ct. L & T R. 2 (omitting Super. Ct. Civ. R. 13, pertaining to counterclaims and cross-claims, from inclusion in the Landlord-Tenant rules.)
[8]  In deciding whether to vacate a default judgment where an answer has been filed, a trial court may consider the answer in deciding whether an adequate defense has been presented. See Pfeister-Barter, Inc. v. Laois, 499 A.2d 915, 917-18 (D.C.1985); Dunn v. Profitt, 408 A.2d 991, 993 (D.C.1979).
[9]  On remand, the trial court should consider, with respect to the claim for punitive damages, a jurisdictional point that Nuyen has not raised. The landlord-tenant action was certified to the Civil Actions Branch pursuant to L & T Rule 6, which provides that upon a proper jury demand, the case must be certified to the Civil Division. L & T Rule 1 provides in relevant part that a case certified pursuant to Rule 6 "shall remain subject to these Landlord and Tenant rules, as provided for in SCR LT 13-I [allocating between the Civil and Landlord-Tenant Branches responsibility for deciding motions]." It also provides that a case certified pursuant to L & T Rule 5(c) (providing for a plea of title) shall be governed by the Superior Court Rules of Civil Procedure. L & T Rule 5(b) states that a defendant, in response to a possessory action for nonpayment of rent, may assert "an equitable defense of recoupment or set-off or a counterclaim for a money judgment based on the payment of rent or on expenditures claimed as credits against rent or for equitable relief related to the premises." It further provides: "No other counterclaims, whether based on personal injury or otherwise, may be filed in this Branch."

In Mathis v. Barrett, 544 A.2d 287, 288-89 (D.C.1988), we held that Rule 5(b) did not permit a counterclaim for, among other things, punitive damages based on housing code violations. In Barnes v. Scheve, 633 A.2d 62, 66 (D.C.1993), we held that where a landlord-tenant action combining a plea of title and a jury demand was certified to the Civil Actions Branch, and the plea of title was subsequently withdrawn, the Civil Action Branch trial court's "authority ... was limited in scope to that of the Landlord-Tenant Branch ...." Given the foregoing rules and cases, the trial court, in exercising its discretion, should consider whether it had any authority to award punitive damages.
We observe further that, even if the trial court on remand determines that a default is proper, it should not award any rent abatement without affording Nuyen a hearing. See Firestone v. Harris, 414 A.2d 526, 528 (D.C. 1980) (entry of default does not admit the amount of damages; defaulting party has a right to present evidence in mitigation of damages and cross-examine witnesses).


                               NOT FOR PUBLICATION                         FILED
                                                                            JULY 7 2014
                       UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                          No. 12-50280

                 Plaintiff - Appellee,             D.C. No. 10CR4400-MMA

     v.
                                                   MEMORANDUM*
JOSE ANGEL SERRANO, Jr.,

                 Defendant - Appellant.

                       Appeal from the United States District Court
                          for the Southern District of California
                       Michael M. Anello, District Judge, Presiding

                         Argued and Submitted February 4, 2014
                                  Pasadena, California

Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief District
Judge.**

          Jose Angel Serrano, Jr. appeals his conviction and sentence for conspiracy to

distribute and possession with intent to distribute MDMA (“ecstasy”) in violation

of 21 U.S.C. §§ 841 and 846. We affirm.
 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
       The Honorable Carol Bagley Amon, Chief District Judge for the United
States District Court for the Eastern District of New York, sitting by designation.

                                            1
     I.   Serrano contends that the district court’s rulings deprived him of his right

to present his entrapment defense to the jury. We review a district court’s non-

constitutional evidentiary rulings for abuse of discretion and “reversal is

appropriate only if the error more likely than not affected the verdict.” United

States v. Ajoku, 718 F.3d 882, 890 (9th Cir. 2013) (internal quotation marks

omitted), vacated, --- U.S. ----, 134 S. Ct. 1872, 188 L. Ed. 2d 905 (2014). If the

ruling precluded the presentation of a defense, our review of the ruling is de novo.

United States v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006) (en banc).

      We do not find the district court’s rulings regarding pretrial discovery and

access to the government informant to be erroneous. Nor do we find that the

district court abused its discretion in declining to give a missing witness instruction

as to the informant, as Serrano did not demonstrate that the informant was

“peculiarly within the power” of the government. See United States v. Noah, 475

F.2d 688, 691-92 (9th Cir. 1973).

      The exclusion of two witnesses’ testimony, which Serrano argues would

have corroborated his defense that he was coerced into committing the charged

crimes, does not constitute reversible error. The district court did not abuse its

discretion in excluding Huerta’s testimony. Although evidence that the informant

intimidated Huerta into participating in a narcotics offense may have been relevant,

the district court made a determination under Federal Rule of Evidence 403 that

                                          2
Huerta’s testimony had limited probative value.         Huerta’s relationship to the

informant was different from Serrano’s and any probative value was outweighed

by the risk of potential prejudice. Because defense counsel did not proffer what

the substance of Dino’s testimony would have been, we cannot say that the district

court’s exclusion of her testimony was reversible error. See United States v.

Morlan, 756 F.2d 1442, 1447 (9th Cir. 1985) (“Rule 103 of the Federal Rules of

Evidence prohibits this court from overturning the district court where the

substance of the evidence was not made known to the court by offer or was not

apparent from the context within which the questions were asked.”), cert. denied,

474 U.S. 837 (1985).

      We also reject Serrano’s contention that the district court improperly limited

defense counsel’s examination of witnesses at trial. The district court’s rulings

regarding the examination of Agent Swisher and Cruz-Navarro were not erroneous.

Even if the district court erred in sustaining some of the prosecutor’s hearsay

objections as to Serrano’s testimony, Serrano was nevertheless able to testify as to

the informant’s alleged inducement and so was not deprived of the opportunity to

present his defense to the jury. Nor do we find that the cumulative effect of the

district court’s rulings was to preclude Serrano from presenting his entrapment

defense.

   II.     Serrano challenges his conviction on the grounds that the evidence at trial

                                           3
established entrapment as a matter of law. We will not disturb the jury’s verdict

unless Serrano can point to “undisputed evidence making it patently clear” that he

was induced to commit the crimes with which he was charged. United States v.

Hart, 963 F.2d 1278, 1283 (9th Cir. 1992). The government introduced evidence

inconsistent with inducement, including Cruz-Navarro’s testimony that Serrano

was interested in finding other buyers, and that Serrano himself obtained the very

large quantity of ecstasy. The government also introduced evidence from which

the jury could conclude that Serrano’s testimony as to inducement was not

credible, including Cruz-Navarro’s testimony, corroborated by government

surveillance, that Serrano’s version of the last, large transaction was not true, and

Cruz-Navarro’s testimony that Serrano did not speak to Cruz-Navarro about the

informant’s purported threats until they were in jail. The jury could have

concluded that the claimed threats were merely part of a post arrest ploy to absolve

himself of liability which included bribing Cruz-Navarro to take the blame for the

drug transactions. Serrano has therefore not demonstrated that no reasonable jury

could have found in favor of the government as to inducement. See United States

v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000).

  III.   Serrano also appeals his 92-month sentence, arguing that the district

court failed to consider his arguments for a reduction based on sentencing

entrapment and that, as a result, his sentence is substantively unreasonable.

                                         4
Serrano’s contention is without merit. The record reflects that the district court in

fact considered Serrano’s arguments regarding sentencing entrapment and then

imposed a sentence significantly below the applicable guideline range.

      Further, we deny Serrano’s request for judicial notice of the transcript of the

informant’s sentencing. The representations made by the informant’s counsel at

his sentencing are not facts to which this Court may appropriately take notice. See

Harris v. Cnty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). To the extent

that Serrano requests this Court to consider the transcript for facts to which judicial

notice may properly be taken, Serrano has not demonstrated these facts to be

relevant to the issues raised on appeal.

      AFFIRMED.

                                           5


375 F.3d 884
COLD MOUNTAIN; Cold Rivers, Inc.; Buffalo Field Campaign; Ecology Center, Inc., Plaintiffs-Appellants,v.David P. GARBER, Supervisor, Gallatin National Forest; United States Forest Service; Dale Bosworth, Chief of the U.S. Forest Service; Ann Venneman, Secretary of Agriculture; Fish and Wildlife Service; Gale A. Norton, Secretary of the Department of the Interior; National Park Service, Defendants-Appellees.
No. 03-35474.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 1, 2004.
Filed July 14, 2004.
As Amended August 9, 2004.

COPYRIGHT MATERIAL OMITTED Thomas J. Woodbury (argued), Missoula, MT, for the plaintiffs-appellants.
Thomas A. Sansonetti, Assistant Attorney General; David Shilton, John Almeida, Susan Henderson, and Susan Pacholski (argued), Attorneys, Environment and Natural Resources Division, U.S. Department of Justice, Washington, DC, for the defendants-appellees.
John Bloomquist and David R. Stewart, Helena, MT, filed a brief for amicus curiae Montana Department of Livestock in support of the defendants-appellees.
Appeal from the United States District Court for the District of Montana; Charles C. Lovell, District Judge, Presiding. D.C. No. CV-01-00027-CCL.
Before O'SCANNLAIN, RYMER, and BYBEE, Circuit Judges.
O'SCANNLAIN, Circuit Judge.

1
We must decide whether the United States Forest Service's issuance of a permit to operate a bison capture facility in Montana violated the Endangered Species Act or the National Environmental Policy Act.

2
* On the precipice of extinction in the early twentieth century, the Yellowstone bison herd has been pulled back from the brink by careful management.1 Yet the annual migration of bison out of Yellowstone National Park's western boundary poses risks to the health of nearby livestock in Montana. See Fund for Animals, Inc. v. Lujan, 794 F.Supp. 1015, 1018 (D.Mont.1991). The bison may carry brucellosis, a bacterial organism that causes female bison to abort fetuses. Id. at 1019. Brucellosis causes sterility and abortions in livestock and undulant fever in humans. Id. There is no vaccine or cure for brucellosis, and more than $1 billion has been spent on eradication efforts nationwide. Id. More than 50 percent of the Yellowstone herd tested positive for brucellosis in 1988. Id.

3
After a thirty-year, $30-million effort, Montana eradicated brucellosis in 1985. Id. Because the state is brucellosis-free, it may ship livestock out of state without testing, saving $1 to $2 million per year. Id. Montana requires that all untested brucellosis-exposed bison that enter the state be destroyed if they pose a transmission risk.

4
In order to protect Montana's brucellosis-free status while maintaining a wild, free-ranging population of bison and minimizing destruction, the Montana Department of Livestock ("MDOL"), other state agencies, and the National Park Service, the United States Forest Service ("Forest Service"), and other federal agencies, together formulated an Interim Bison Management Plan (the "Bison Plan") in 1995.2 The Bison Plan provides for monitoring, brucellosis testing, removing infected and exposed bison, and the "hazing" — i.e., herding — of bison back into Yellowstone. Hazing can be done in a variety of ways: on foot, on horseback, on snowmobiles, on all-terrain vehicles, on motorcycles, in helicopters; it also sometimes involves the shooting of "cracker shells" to induce the bison to move.

5
As part of its effort to comply with the Bison Plan, the MDOL applied in 1998 for a ten-year Special Use Permit (the "Permit") from the Forest Service to operate a bison-testing facility in the Gallatin National Forest, just outside Yellowstone's western boundary, in an area north of the Madison Arm of Hebgen Lake known as the Horse Butte area. The facility, called the Horse Butte Bison Capture Facility, is a temporary structure, consisting of several holding pens and work areas. Although the primary facility measures approximately 100 by 300 feet, the entire facility occupies one to two acres of land. The Permit authorized the MDOL to operate the capture facility from November 1 to April 30.

6
Before issuing the Permit, the Forest Service prepared a Biological Assessment ("BA") in accordance with its obligations under the Endangered Species Act ("ESA"). See 16 U.S.C. § 1536(c). That document assessed what it deemed the "cumulative effects area" for the proposed capture facility: approximately 15 square miles of public and private lands "contained within the boundary north of the Madison Arm of Hebgen Lake and the Madison River, east of Hebgen Lake, south of the Grayling Arm of Hebgen Lake and Cougar Creek, and west of Y[ellowstone] N[ational] P[ark] .... generally described as the Horse Butte/Flats area."

7
Within this area are three bald eagle nests, denominated Horse Butte, Ridge, and Narrows. Bald eagles are considered "threatened" for purposes of the ESA. See 50 C.F.R. § 17.11. Under the Montana Bald Eagle Management Plan and the Greater Yellowstone Bald Eagle Management Plan, areas within a .25-mile and a .5-mile radius of active and alternative nests are known respectively as Zone I and Zone II. The eagle management plans restrict human activity in these zones.

8
Because the preferred site for the proposed capture facility was within Zone II of the Horse Butte nest, the BA particularly examined the possible effects of the facility's operation on that nest. The Forest Service ultimately concluded that the cumulative effects of existing human activities, the use of snowmobiles for recreation and hazing, and the operation of the facility necessitated a finding that the facility "may affect/likely to adversely effect" bald eagles in the Horse Butte/Flats area.

9
Acting under its obligation to consult formally with the United States Fish and Wildlife Service ("USFWS"), the Forest Service transmitted the BA to the USFWS on November 30, 1998. See 50 C.F.R. § 402.14(a). The Forest Service then issued an Environmental Assessment ("EA") of the effects of the proposed Permit on December 14, 1998. The Forest Service again concluded, in its EA, that the Horse Butte nest site might be affected by increased levels of human activity resulting from the capture facility's operation.

10
The USFWS in turn issued a Biological Opinion ("BiOp") on December 18, 1998. In the BiOp, the USFWS determined that the capture facility "was not likely to jeopardize the Pacific region bald eagle population[.]" But the USFWS agreed with the Forest Service that some eagles "may [be] adversely affect[ed.]" As part of the BiOp, therefore, the USFWS issued an Incidental Take Statement (the "Statement"). The Statement anticipated that the capture facility's operation might lead to the reproductive failure of the Horse Butte nest and thus involve a "take" of threatened bald eagles under § 9 of the ESA. See 16 U.S.C. § 1538(a)(1)(B) (making it unlawful for any person to "take any such[listed] species within the United States"). Under the ESA, a take committed pursuant to an incidental take statement is not considered a prohibited taking. See 16 U.S.C. § 1536(o)(2). As a non-discretionary term and condition of the Statement, the USFWS specifically incorporated bison hazing requirements appended to the EA and repeated earlier in the BiOp.

11
These restrictions banned helicopter hazing in Zones I and II from February 1 to August 15. Shooting was also prohibited in Zone I. During snowmobile season, hazing activities in Zone I were allowed only on designated trails, south of Forest Road 610, and by permission of the local Gallatin Forest Ranger District. Off-road and -trail hazing by snowmobile and horseback was permitted in Zone II, although it was to be kept to a minimum. ATVs, motorcycles, and shooting were permitted only along Forest Road 610 and the lookout road. Outside of Zones I and II, helicopter hazing was prohibited in the "Horse Butte area."

12
The Forest Service issued a Decision Notice and a Finding of No Significant Impact ("FONSI") on January 29, 1999, and awarded the Permit to the MDOL on March 17, 1999.

13
Convinced that the bison hazing restrictions were being violated by the MDOL, Cold Mountain, Cold Rivers, Inc., a nonprofit environmental and human rights organization based in Missoula, Montana, joined by the Buffalo Field Campaign and the Ecology Center, Inc. (collectively "Cold Mountain"), sent a Notice of Intent to Sue for violations of the ESA to state and federal officials on April 27, 2000.3 The Forest Service investigated Cold Mountain's allegations of hazing violations, but determined that they were unfounded.

14
Cold Mountain then sued the MDOL, the Forest Service, the National Park Service, and various federal officers in United States District Court for the District of Montana in May 2001. Cold Mountain's complaint alleged that the state and federal defendants had consistently violated the terms of the Permit and the Statement, resulting in a take of protected bald eagles under § 9 of the ESA. The complaint also faulted the federal defendants for not conducting adequate environmental analysis under the National Environmental Policy Act ("NEPA"), and alleged violations of the Migratory Bird Treaty Act ("MBTA"), the Administrative Procedures Act ("APA") itself, the National Forest Management Act ("NFMA"), and the Permit. Cold Mountain asked the district court (1) to declare that the relevant statutes had been violated; (2) to void the Permit; (3) to enjoin the operation of the capture facility; (4) to require the federal agencies to conduct analysis under the ESA and NEPA; or, alternatively, (5) to enforce the terms of the BiOp and to prohibit helicopter hazing in the Horse Butte area.

15
The district court granted summary judgment for the state and federal defendants on March 28, 2003. Specifically, the district court concluded that no prohibited take of bald eagles had been established. The court also agreed with the Forest Service's conclusion that the restrictions on helicopter hazing had not been violated. The court determined that the Forest Service's EA was adequate, that the Service's decision not to prepare an Environmental Impact Statement was reasonable, and that NEPA was therefore not violated. The court granted summary judgment to the MDOL on sovereign immunity grounds.4 And the court also ruled in favor of the federal defendants on the MBTA, NFMA, and APA counts.5 Cold Mountain's timely appeal followed.

II

16
* The ESA makes it illegal to "take any such [listed endangered] species within the United States." 16 U.S.C. § 1538(a)(1)(B). The statute defines "take" to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct[,]" id. § 1532(19), and includes federal agencies, officers, and employees among those defined as "persons" liable for a taking, id. § 1532(13). Implementing regulations promulgated by the Secretary of the Interior further define "harass" as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." 50 C.F.R. § 17.3.

17
Cold Mountain first contends that the Forest Service's failure to enforce the hazing restrictions in the BiOp's Incidental Take Statement amounts to a prohibited take of bald eagles in violation of the ESA. Pointing to eyewitness affidavits, videotape footage, and photographs that purport to demonstrate violations of the hazing restrictions by the MDOL, Cold Mountain alleges that these violations resulted in the reproductive failure of the Ridge nest in 2000. The Forest Service's omission in failing to hold the MDOL to the restrictions on helicopter and other methods of hazing, Cold Mountain asserts, has thus led to the "harassment" of bald eagles in the Horse Butte area.

18
The federal defendants respond by pointing out that any alleged hazing violations were committed by the MDOL, which is no longer a party to this appeal. Thus, even assuming for the sake of argument that a take has occurred (which the federal defendants strongly dispute), it should be charged to the account of the MDOL, not the Forest Service or any other federal agency. In sum, the federal defendants object to what they characterize as an unprecedented theory of liability under the ESA, in which the Forest Service is vicariously liable for the prohibited takes of its permittee, the MDOL.

19
We need not reach the novel question of the Forest Service's liability under the ESA for the actions of its permittees, however, because we are satisfied that there is no genuine issue for trial. See Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir.2001) ("An issue is `genuine' only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.") (citation omitted). See Defenders of Wildlife v. Bernal, 204 F.3d 920, 927 (9th Cir.2000); Palila v. Hawaii Dep't of Land and Natural Res., 852 F.2d 1106, 1109 (9th Cir.1988). Cold Mountain has failed to establish a causal link between any alleged hazing violations and the Ridge nest failure. See Pyramid Lake Paiute Tribe v. U.S. Dep't of the Navy, 898 F.2d 1410, 1420 (9th Cir.1990) ("The evidence does not establish that any one year's diversions of Project water has actually caused the cuiui's spawning problems.") (emphasis added); cf. Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir.1996) ("A reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section 9 of the ESA."); Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 787 (9th Cir. 1995) (discussing Pyramid Lake in the context of a preliminary injunction claim and explaining that "the defect of the plaintiff's claim lay in the lack of a causal connection between the challenged action and the alleged injury to the protected species"). Cold Mountain offers only scientific studies (primarily in the form of abstracts) that suggest that noise from helicopters causes eagles to react by turning their heads or flying from a perch. But the studies do not appear to have actually studied or measured the effects of aircraft noise on the reproductive success of bald eagles. And the record is bereft of specific evidence linking the Ridge nest failure to the alleged hazing violations.6

20
Because the record discloses no genuine issue of material fact requiring trial, we affirm the district court's grant of summary judgment on Cold Mountain's take claim.

B

21
Cold Mountain next argues that the Forest Service was required to reinitiate formal consultation with the USFWS after the Ridge nest's reproductive failure in 2000 because that failure exceeded the permissible take under the Statement. Reinitiation is also required, Cold Mountain continues, because it has provided "new information" in the form of affidavits outlining previously unconsidered effects of hazing operations on bald eagles.

22
The federal defendants respond that Cold Mountain did not raise this claim before the district court, which therefore did not rule on the issue.

23
The federal defendants' position finds support in the record, which reveals that Cold Mountain only mentioned the Forest Service's failure to reinitiate consultation as part of a broader claim that any violation of the Statement constituted a taking per se under the ESA. The reinitiation claim was thus not presented by Cold Mountain or evaluated by the district court as a freestanding request for relief. Indeed, Cold Mountain's amended complaint and other pleadings nowhere allege that the Forest Service should have reinitiated consultation with the USFWS after the Ridge nest failure. Understandably, then, the district court did not evaluate the failure to reinitiate consultation as itself a separate violation — either procedural or substantive — of the ESA.

24
In general, we do not consider an issue raised for the first time on appeal. See Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir.1998); Bolker v. Comm'r, 760 F.2d 1039, 1042 (9th Cir.1985). We may invoke our discretion to hear previously unconsidered claims under three recognized exceptions:

25
[1][I]n the "exceptional" case in which review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process,[2] when a new issue arises while appeal is pending because of a change in the law, [3] or when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.

26
Bolker, 760 F.2d at 1042 (citations omitted). Here, the first two exceptions are inapplicable, and the third exception counsels strongly against review. Because Cold Mountain did not squarely present the reinitiation claim to the district court, the factual record is undeveloped, showing only that the Forest Service appears to have begun the process of determining whether formal reinitiation was required. Given the incompleteness of the underlying record, we decline to address the hitherto unaired reinitiation claim.

C

27
Cold Mountain next argues that, because of the project's "controversial" nature and potentially detrimental environmental impacts, the Forest Service violated NEPA by failing to prepare an Environmental Impact Statement ("EIS") before issuing the Permit and FONSI for the bison capture facility. It further contends that new information regarding violations of the hazing restrictions outlined in the Permit and the failure of the Ridge nest require the Forest Service to prepare a supplemental NEPA analysis.

28
The federal defendants respond that mere opposition is insufficient to show that the bison capture project was so controversial as to require an EIS, and that the initial EA and FONSI adequately analyzed the environmental impact of the proposed capture facility. They also argue that supplemental NEPA analysis is not required here because there has been no demonstration of a significant environmental impact warranting agency reexamination. No new information or substantially changed circumstances have been established, the federal defendants continue, and Cold Mountain has particularly failed — both before the issuance of the Permit and after — to introduce scientific evidence compelling supplemental analysis. Finally, they point out that any "major Federal action" was completed upon issuance of the Permit and the FONSI, thereby eliminating the Forest Service's obligation under NEPA to prepare supplemental analyses.

29
* NEPA mandates that federal agencies prepare an EIS for major federal actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA "does not mandate particular substantive results, but instead imposes only procedural requirements." Laguna Greenbelt, Inc. v. U.S. Dep't of Transp., 42 F.3d 517, 523 (9th Cir.1994); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). An agency must therefore take a "hard look" at the environmental consequences of its actions. See Ocean Advocates v. U.S. Army Corps of Eng'rs, 361 F.3d 1108, 1124 (9th Cir. 2004). NEPA also imposes on federal agencies an ongoing duty to issue supplemental environmental analyses. See Price Rd. Neighborhood Ass'n, Inc. v. U.S. Dep't of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997). An agency's decision not to prepare an EIS or other supplemental NEPA analysis may be overturned only if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 566 n. 2 (9th Cir.2000); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998).

30
Regulations promulgated by the Council on Environmental Quality ("CEQ") outline when an agency must prepare a supplemental analysis — specifically, when the agency "makes substantial changes in the proposed action that are relevant to environmental concerns"; or when "significant new circumstances or information" arise. 40 C.F.R. § 1502.9(c)(1)(i) and (ii). The regulations further define "significantly" in NEPA § 102 as calling for an analysis of both "context" and "intensity." 40 C.F.R. § 1508.27. "Context" is "society as a whole (human, national), the affected region, the affected interests, and the locality." 40 C.F.R. § 1508.27(a). Intensity "refers to the severity of impact," and includes the following factors, among others:

31
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

32
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

33
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

34
...

35
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts.

36
...

37
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat....

38
40 C.F.R. § 1508.27(b).

2

39
Cold Mountain cites the factors listed above to argue that the environmental impact of the bison capture facility was so significant as to warrant the issuance of an EIS in the first instance. It points particularly to factors (4) and (5), contending that the bison project was both highly controversial — as shown by the opposition and criticism of Cold Mountain and other environmental groups — and highly uncertain — because the individual and cumulative impacts of hazing were not assessed.

40
We have deemed a federal action "controversial if a substantial dispute exists as to [its] size, nature, or effect." Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir.1992) (internal quotation and emphasis omitted, alteration in original). But the existence of opposition does not automatically render a project controversial. Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1122 (9th Cir.2000). And a controversy cannot be established post hoc by evidence that was not before the agency at the time of its action. Franklin, 14 F.3d at 1334.

41
Cold Mountain points to the numerous criticisms directed at the proposed facility by it and other groups and individuals prior to the release of the FONSI and the issuance of the Permit. Cold Mountain claims that these comments drew attention to the potential impact of helicopter hazing, but the record actually fails to disclose any reference to helicopter hazing — although the noise associated with the operation of the facility and snowmobile hazing was faulted by opponents of the project.7 The record reveals, moreover, that the Forest Service and USFWS accordingly evaluated the cumulative effects of human activities — including non-helicopter hazing — over the entire Horse Butte/Flats area. Indeed, the issuance of the Statement was a direct response to the agencies' conclusion that the cumulative effects of the non-helicopter hazing and other human activities associated with the capture facility had "the potential to adversely affect" the Horse Butte nest site. The Forest Service also took pains to ensure that the Permit included extant helicopter hazing restrictions that forbade helicopter hazing of bison into the capture facility and in Zones I and II around the three eagle nest sites.

42
We are satisfied that the Forest Service took the hard look required by NEPA before issuing the Permit and FONSI. The Forest Service exhaustively evaluated the proposed impact of the bison capture facility, soliciting public comments, making available all relevant documents, and formally consulting with the USFWS. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985) ("Our task [in reviewing NEPA claims] is simply to ensure that the procedure followed by the [agency] resulted in a reasoned analysis of the evidence before it, and that the [agency] made the evidence available to all concerned."). The Permit incorporated the helicopter hazing restrictions of the bison and eagle management plans — themselves products of a NEPA process. See id. at 987 (noting that the"effect of mitigation measures [is] to be considered in determining whether preparation of an [EIS] is necessary"); see also Wetlands Action Network, 222 F.3d at 1121. The Forest Service's FONSI explicitly referred to the USFWS's BiOp and accompanying take Statement, explaining that the documents provided "reasonable and prudent measures and terms and conditions designed to minimize the level of taking" and concluding that the project was "not expected to significantly affect the continued recovery of the [bald eagle] species regionally or nationally." Any allegations of extensive helicopter hazing were not brought to the attention of the Forest Service until after the issuance of the FONSI and the Permit — exactly the sort of post hoc evidence we frowned upon in Franklin. See Franklin, 14 F.3d at 1334. We therefore conclude that the Forest Service provided the "requisite convincing statement of reasons" explaining why an EIS was unnecessary. See Ocean Advocates, 361 F.3d at 1125; Blue Mountains, 161 F.3d at 1211.

3

43
In support of its contention that other supplemental NEPA analysis is now warranted by substantial changes or significant new information, see 40 C.F.R. § 1502.9(c)(1)(i) and (ii), Cold Mountain repeats its charges that the Permit's helicopter hazing restrictions have been violated, thereby causing a prohibited take in the form of the reproductive failure of the Ridge nest. We conclude, however, that there is no ongoing "major Federal action" requiring supplementation. See 42 U.S.C. § 4332(2)(C). Because the Permit has been approved and issued, the Forest Service's obligation under NEPA has been fulfilled. See Norton v. S. Utah Wilderness Alliance, 542 U.S. ___, 124 S.Ct. 2373, ___ L.Ed.2d ___ (2004); Marsh, 490 U.S. at 374, 109 S.Ct. 1851.

III

44
For the foregoing reasons, we AFFIRM the judgment of the district court.

Notes:

1
 The herd numbered less than 50 in 1902, but now consists of around 4,000 animalsSee http://www.nps.gov/yell/nature/animals/ bison/bison.html; Greater Yellowstone Coalition v. Babbitt, 952 F.Supp. 1435, 1438 (D.Mont. 1996).

2
 The Interim Bison Management Plan has since been replaced by the Interagency Bison Management Plan in 2000

3
 The ESA's citizen-suit provision requires plaintiffs to give 60-days written notice to federal agencies before commencing an actionSee 16 U.S.C. § 1540(g)(2)(A). The requirement is meant to give agencies a chance to investigate and cure alleged ESA violations. See Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir.1996).

4
 On Cold Mountain's motion, the MDOL was voluntarily dismissed from this appeal on August 20, 2003

5
 Cold Mountain does not appeal these rulings

6
 We note also the analytically sound underpinnings of the district court's decision. The court noted that the Forest Service had investigated Cold Mountain's allegations of hazing violations and deemed them unfounded. Citing the Forest Service's list of possible reasons for the failure of the Ridge nest, the court further explained that the Horse Butte and Ridge nests had a mixed reproductive history, and that many factors unrelated to bison hazing could have contributed to the reproductive failure of the Ridge nest. Given the absence of evidence in the record suggesting that the hazing restrictions were indeed violated, we agree with the district court that the Forest Service's determination was reasonable. Such determinations involving the factual expertise of agencies can be set aside only if contrary to the highly deferential standard of review embodied in the Administrative Procedures Act ("APA"): "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A);see also Ariz. Cattle Growers' Ass'n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1235-36 (9th Cir.2001) (claims under ESA governed by APA). Here, nothing in the record calls into question the Forest Service's application of its factual expertise.

7
 We note as well that the Forest Service was not presented with scientific evidence specifically evaluating the environmental effects of the proposed project or calling into question the adequacy of the Service's EACf. Blue Mountains, 161 F.3d at 1213; Sierra Club v. U.S. Forest Serv., 843 F.2d 1190, 1192-93 (9th Cir.1988)