Court holds up mining project after fire affects sensitive plant

On July 11, the Idaho federal district court reversed a Forest Service decision to approve a mining exploration project on the Boise National Forest. The legal issues arose when the Grimes Fire burned habitat for the Sacajawea bitterroot (abbreviated “LESA”), in an area supporting the largest population of a plant designated as a sensitive species by the Forest Service. The court found that the analysis of changed conditions was inadequate, leading to violations of both NEPA and NFMA (Idaho Conservation League v. U. S. Forest Service):

“The Forest Service recognizes the baseline data needs to be re-established following the 2014 Grimes Fire but instead of compiling and analyzing that data up front, the Forest Service has incorporated those NEPA steps into the Project itself. The selected Alternative B anticipates conducting a new baseline study during the Project and then monitoring and mitigating to protect the LESA species. (CU080344-51.) This approach puts the cart before the horse by prematurely asking for approval of the Project before the necessary baseline data and analysis are conducted. NEPA demands that the Forest Service analyze a project’s impacts before it is approved; not as part of the Project itself.

“The Defendants’ reliance on the Project’s design features, monitoring, and mitigation measures does not cure the failure to re-evaluate and analyze the Project’s impact on LESA following the Grimes Fire.  Without accurate baseline data before the Project begins, it is impossible to know whether and to what extent the Project’s activities will impact LESA even with the proposed design features, monitoring, and mitigation features. As thorough as these features of the Project appear to be, the Forest Service’s failure to re-evaluate LESA’s current baseline leaves too much unknown for the Forest Service to have concluded that the Project will not have a significant impact on the LESA population.

“Additionally, the Complaint alleges the Forest Service violated NFMA by failing to follow Guideline BTGU01 which requires it to conduct up-to-date surveys of Sacajawea’s bitterroot habitat and plant presence. (Dkt. 1 at ¶ 77.)  Consistent with its ruling on the NEPA claim, however, the Court finds the Forest Service failed to re-evaluate the baseline data for LESA following the Grimes Fire prior to approving the Project. Without an accurate baseline, the Project’s monitoring and mitigation measures will not be effective or accurate. Failing to obtain the necessary baseline is contrary to Guideline BTGU01 because the Forest Service did not determine the existing suitable habitat for and presence of LESA within or near the project area. (CU053833.) For these reasons, the Court finds the Forest Service was arbitrary and capricious and in violation of NFMA.”

Another way that fires make life hard for the Forest Service, and another example of how short-cutting the NEPA process makes it harder.  A “trust us” approach doesn’t sell well under NEPA or NFMA.

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