On May 6, the Ninth Circuit Court of Appeals upheld the Montana district court’s opinion in Alliance for the Wild Rockies v. Weber. The Flathead National Forest Precommercial Thinning Project would thin about 500 acres a year in bull trout grizzly bear and arguably lynx habitat, and the decision was based on a categorical exclusion. This looks like one of those cases where the judges tried to make the law match what they saw as the facts – The Ninth Circuit took three days to decide and quoted the district judge: “[t]his Project is the most innocuous logging project to be challenged in this court to date.” The district judge also said, “Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.”
I think the judge played a little loose with the law (NFMA and NEPA) failed to appreciate the importance of one “procedural misstep.” Specific locations of the thinning activities were not identified. With regard to treatments in riparian areas (and bull trout habitat), decisions are said to be left to the future judgment of a “fisheries biologist.” With regard to meeting a forest plan requirement for maximum distance to cover, the decision document is apparently silent, but the court accepts an ambiguous statement in the biological assessment as assuring compliance with the forest plan. Where environmental effects or compliance with plan direction may be different depending upon project layout, then that layout should be part of the decision reviewed by the public and signed by the decision maker.
The judge also incorrectly stated that the forest plan’s 300-foot riparian buffer standard did not apply. He should have said that it did, but that the requirements applicable to it were met.