Federal Judge Tosses Out Timber Industry Lawsuit Against NFMA Planning Rule

In a decision that should surprise no one who has been paying attention, a D.C. federal district court judge has tossed out the timber industry’s lawsuit challenging the 2012 NFMA planning rule. Industry alleged a potpourri of substantive claims against the planning rule, but won’t get a chance to argue them. The judge dismissed industry’s complaint on standing grounds; thus, she did not rule on the merits of industry’s claims.

As to standing, her decision is simplicity itself and flows directly from the Supreme Court’s Ohio Forestry ruling, which found the Sierra Club could not challenge a forest plan’s timber management regime because the plan doesn’t decide to cut any particular trees. Actual tree cutting decisions are made in subsequent site-specific project decisions.

Similarly, the 2012 planning rule doesn’t decide to log or to protect from logging any particular national forest acre. The tree cutting and forest protecting decisions are made in subsequent forest plans and projects. Whether more or fewer trees will be cut under the 2012 planning rule is pure conjecture, says the judge, and thus cannot be the cause of the various injuries the timber industry claims. Industry had claimed that the 2012 planning rule will mean fewer trees cut, injuring it economically. And that less logging would mean more fires, injuring the recreational interests of off-road vehicle users. The judge wasn’t buying it.

4 Comments

  1. Good question, Sharon. The difference in the cases is that Citizens for Better Forestry, regarding the 2005 rule, only challenged the process the FS used to adopt the rule; not the substance of the rule itself. The FS wrote neither EA nor EIS for the 2005 rule, believing it could categorically exempt the rule from NEPA. Not so, said the court.

    The FS wrote an EIS for the 2012 rule. The timber industry does not challenge the adequacy of the EIS. Its lawsuit focuses on the substance of the 2012 rule, not the procedure that led to its adoption.

    • I thought the FS then went back and wrote an EIS after the court said so.

      You said (my italics):
      “Similarly, the 2012 planning rule doesn’t decide to log or to protect from logging any particular national forest acre. The tree cutting and forest protecting decisions are made in subsequent forest plans and projects. Whether more or fewer trees will be cut under the 2012 planning rule is pure conjecture, says the judge, and thus cannot be the cause of the various injuries the timber industry claims” that any numbers are “pure conjecture,” why does anyone have to write or read an EIS that is full of “conjecture”?

      Doesn’t the court have to pick a lane? Either the rule has effects and then you can analyze them in an EIS, or it doesn’t and you can’t therefore analyze them in an EIS?

  2. I agree it’s not an easy question, Sharon. The CBF cases found that there were substantive effects of changing the planning regulations. In its decision on the 2005 planning rule, the 9th Circuit held that NEPA and ESA applied to those effects. The EIS that was prepared for the 2008 planning rule was found inadequate by the district court because it “does not actually discuss the environmental consequences of eliminating the specific protections that are provided in previous plan development rules.” (Note that the language you borrowed from the 2012 Planning rule about FOREST PLANS not doing anything did not mean the Rule excused them from NEPA or ESA.)

    With regard to the process required for the planning rule, I think the substance vs. procedure distinction is important, but I think a more important difference may be the nature of the substance, who the plaintiffs were and what their interests are. FFRC did actually include a procedural challenge, but it had to do with the public notice requirements of NFMA and the APA (which was rejected for lack of a substantive cause and effect relationship). They didn’t attempt a NEPA challenge, perhaps recognizing that the procedures required by that law don’t protect their substantive interests in DECREASING environmental protection.

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