FS Litigation Weekly, July 14, 2017

Here’s the Lit Weekly version of the Court decision on NEPA and the Wolverine fire we discussed previously here (27 comments).

1. Fire I Region 6

The District Court for the Eastern District of Washington ruled for the Forest Service on a National Environmental Policy Act (NEPA) case challenging the construction of a Community Protection Line (CPL) to contain the Wolverine Fire on the Chelan Ranger District of the Okanogan-Wenatchee National Forest in Forest Service Employees for Environmental Ethics v. United States Forest Service et al. The Wolverine Fire was ignited by lightening on June 29, 2015. By August 27, 2015 the fire grew to approximately 62,000 acres. After two failed attempts to contain the fire, the Forest Service began constructing the CPL, described as an approximately 20-mile long contingency line consisting of a roughly 300 foot wide thinning of vegetation. The CPL was near completion when the Forest Service halted construction after rain showers slowed the fire. Plaintiffs filed suit against the Forest Service on August 16, 2016, – “well after the construction of the CPL— complaining that the CPL was constructed without complying with NEPA.”

Plaintiff’s NEPA claims assert: 1) NEPA does not have a waiver from its procedural requirements for emergency actions and 2) even if NEPA did have a waiver, the Forest Service did not meet the requirements for claiming that waiver and wildfires do not represent emergency situations.
The court rejected both of plaintiff’s claims. The court ruled that NEPA does allow agencies to take actions in emergency situations “without complying with the ordinary, burdensome reporting requirements” because to require agencies to do so “is generally not feasible or prudent.” Under NEPA, an agency can circumvent traditional NEPA requirements if a “responsible official” determines “an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis,” and the action is “necessary to control the immediate impacts of the emergency.” The court concluded a responsible official did determine that the Wolverine Fire constituted an emergency situation and “just because wildfires are common and their general existence is foreseeable, the danger created by any specific wildfire is not so foreseeable and can create an emergency situation with little or no forewarning.” (16-293, E.D. Wash.)

Here’s a copy of the ruling..
Lit Weekly July 14

Wolverine Fire Ruling

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