More Colt Summit Legal Fun

Just when you thought there was no more fun to be had with Colt Summit, our colleague Eric Anderson has written a law review article that will be published this spring in the “Crit” — an alternative law review at the U of Idaho. Basically, it’s an in depth overview of the 9th circuit’s position on cumulative effects of past actions under NEPA — and why Malloy got it wrong in the Colt Summit decision. I think it shows how obscure some of this is to others outside the NEPA courtroom, and how difficult it can be to do a legally sufficient analysis.

Here it is.

Oh, in case you’re curious about Eric Anderson, here’s a bio of sorts..

Bio: I’m a native of Tropical Montana — 16 miles west of Lolo for those old enough to remember the bumper sticker— who currently resides in Bonners Ferry ID. I am in my final semester as a concurrent JD/MS candidate at the University of Idaho. I will graduate with a certificate in Natural Resource & Environmental Law; and my M.S. is in Bioregional Planning & Community Design. Over the last 8-9 summers I’ve worked as a crew boss for a U.S. Forest Service Trail Crew. I’m a bit of NEPA nerd and when I don’t have my nose in a book or typing away on my Mac, I can usually be found playing on the side of a mountain or in a river somewhere with my beautiful wife.


  1. After clawing my way though Anderson’s critical review of the 9th circuit court and NEPA, I reached the very obvious conclusion that “the law is an ass”. Further, it is apparent that management of National Forest timber resources is not possible under the existing legal ambiguities and encumbrances. It would appear that the rational solution to the Forest Service’s current non-management crisis is to remove non-reserved selected timberlands from the reach of NEPA and the courts and restore them to public service as state lands or public timber trusts. Does anyone disagree?

    • Eric critiqued a district court decision (D. Mont.), not the 9th circuit, but regardless… I think a lot of people would disagree with the suggestion of removing public lands from the reach of environmental laws and safeguards. It kind of reminds me of that ridiculous film “The Purge”, where the government decides to suspend all laws for a day so lots of folks can kill each other, as a goofy approach to solving overpopulation issues. This is basically a geographic variation on the same theme.

      • Guy, I wouldn’t want to suspend all environmental and procedural laws that apply to public lands, but I think there may be a better law or laws — for example, state forest-practice laws in Washington and Oregon. Or maybe we need a NEPA revised so that it is less difficult to do a legally sufficient analysis, to borrow a few of Sharon’s words.

    • Yes, Mr. McConnell, I would have to disagree. The NEPA, ESA, NFMA, CWA, etc. are vital. As just one example why: I’m 44 years old and spent much of my childhood fly-fishing on Lolo Creek. It used to be outstanding. Intensive logging began in the Lolo watershed in the late 70’s. By the 80’s Lolo creek was flowing like chocolate milk in the spring and trout numbers crashed. Subsequent lawsuits forced a 10 and then 20 yr moratorium on logging in certain areas on the Lolo. Why? Because the soil is unsuitable. They were logging on top of the northern portion of the Idaho batholith, which soil is decomposed granite with a very thin layer of actual soil on top. NEPA analyses brought this to light. Today, Lolo creek once again sustains healthy trout populations and relatively stable spring run-off conditions. Unchecked timber harvest is not the answer in my mind. Neither are frivolous lawsuits. Many feel that Colt Summit borders on the frivolous. There is a middle road and I feel like through collaborative projects we are closer to finding that middle road than ever before. Unfortunately, there is still a lot of residual mistrust from the past. As far as state based solutions go, all I needed to do was hike up the eastern slopes of the Selkirks and look over into Priest Lake to understand that that is a bad idea (but there are several other reasons as well). I’m not sure about the “public” timber trusts to which you refer; however, Headwaters Economics has published an excellent white paper on the utility of a federal natural resources trust here:
      No, I really don’t think the solution is to throw the baby out with the bathwater. So, respectfully, I disagree.

  2. Interesting article, thanks for posting it Sharon.

    Eric, a couple questions: in the trial stage, did federal defendants argue that their cumulative analysis could be found throughout the record, and point to examples? If they didn’t, I can see your point but would find it hard to fault the judge for not combing through an admin record that’s maybe 30,000 or so pages long, looking for text that might qualify as cumulative analysis. One might argue that had the agency intended for those pieces to add up to a valid cumulative analysis, then it should have at least clearly pointed that out in its EIS. And, if that information is dispersed in the record, to what extent was it available to the public (i.e., are there maybe some NEPA disclosure issues?) It would be interesting to know how the fed attorneys argued those points, if they did.

    Are the appellate briefs all filed by now? This is a de novo review, right? And the attorneys need to file the excerpts from the admin record that support their case (and the 9th has the option of looking at the whole record but almost certainly won’t). Do you know if this is the approach that the fed attorneys are now taking?

    • Yes, Guy, I’m pretty sure the all of the briefs have are in at this point. Mr. M. Clifford just filed last week an amicus brief for the Nature Conservancy and others in support of the project. I haven’t read the reply yet b/c I’ve been to cheap to download the files from PACER. Do you know of a free way to get a hold of those documents?

      And yes, at the trial court level, the agency did point out the cumulative effects analysis early in the brief when it was discussing the ESA. Later in the brief, when discussing NEPA, DOJ/OGC (its sometimes hard to figure out who exactly wrote the brief) referred back to the ESA section. In addition, it was an EA not an EIS, and it was only about 120 pages including the appendixes which contained all of the aggregate analysis info needed for the past cumulative effects on lynx analysis. The point is, it appears to me Judge Malloy just went in looking to the wrong precedent when it is pretty clearly spelled out in CELP how the court should approach a cumulative effect of past actions analysis.

      • In addition, since it is a De Novo review, the 9th Circuit won’t even touch the Te-Moak precedent because it isn’t on point. That’s where Judge Malloy went wrong. They’ll just go straight to CELP, apply the facts, and rule for the USFS. I could be wrong, but I don’t see the 9th Circuit going back to anything even resembling a Lands Council “detailed catalogue” standard.

  3. Here’s 2 cents more:

    I generally think there was more said in the article than needed to be. For example, I think distinguishing Te-Moak was unnecessary. While it was about future cumulative effects, it was quoting Lands Council, which was about past effects, and therefore relevant to this case.

    I don’t think a judge should have to perform an ‘exhaustive examination’ of environmental documents to find relevant information. That would indicate that well-hidden information meets the disclosure requirements of NEPA. I don’t think so.

    I don’t think Judge Molloy was using the ‘detailed catalog’ requirement. He was using the ‘quantified or detailed information’ requirement (from CELP as the author suggests) and didn’t find any. The ‘aggregate standard’ and ‘detailed information’ are not mutually exclusive; rather using the former still requires the latter. ‘Generalized statements’ are rarely sufficient under any standard.

    There is no separate cumulative effects section in the EA. Instead there is a section within the lynx effects section that is titled “cumulative effects.” The opinion cites this specific section. The language there that I think comes closest to “characteriz(ing) the cumulative effects of past actions in the aggregate” is this:

    “Detailed data is not available on former PCTC lands in regard to suitability as lynx habitat. The management practices on these lands in recent years have created a large amount of early successional habitat, some of which would qualify as unsuitable. Some PCTC stands in young age classes have been treated with pre-commercial thinning as well. Conversely, Federal lands are comprised primarily of older stands, with stands in the 0 to 45-year range being patchily distributed.”

    Some might agree there is enough “detailed information” in that section to get judicial deference (and it is strange that the opinion cites other language from this section about Plum Creek and snowmobiling, but not this about timber management). But Judge Molloy evidently regarded these as ‘generalized statements.’

    The author seems to make much of the idea that the judge didn’t look hard enough for more detailed information found ‘throughout the EA,’ and specifically didn’t find Table 9 and Appendix D. I would have asked for a ‘so what?’ statement in the cumulative effects section that referenced these other sections and connected these dots – how do things look for lynx in light of the aggregate cumulative effects combined with the direct and indirect effects of the project. NEPA documents often don’t do this, and sometimes failure to connect the dots (for the decision maker, the public and the judge) can be legally fatal. (That said, I’m not willing to bet against the Forest Service in the Ninth Circuit in this case.)

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