Even the 9th Circuit piles onto plaintiffs

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.

One Comment

  1. This is one of those cases that makes me pull my fast-receding hair out. What grievous environmental insult were these environmental groups trying to stop?

    Quoting from the district court opinion, “The trees that will be thinned fall far short of commercial size-most are one to five inches in diameter and only a few feet tall.” The stands from which these small trees will be cut are “1) post-fire second-growth stands in the wildland-urban interface that are dominated by three to-four-foot tall lodgepole pine trees at a density of approximately 10,000 to 100,000 stems per acre; and (2) 10 to 30–year old second growth stands dominated by mixed conifer trees growing at a density of approximately 1,000 to 5,000 stems per acre … no treatments are planned in stands with mature or old trees” and “the stands proposed for thinning do not contain trees of commercial size.”

    So this thinning is an environmental disaster . . . why? And the Forest Service is so lawless that it arbitrarily and capriciously (i.e., with no rational justification) violated no fewer than three major federal laws?

    It is a truism that “bad facts make bad law.” Bad facts also make bad press and bad politics. These are horrible facts. What were these plaintiffs thinking?

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