Tennessee Creek Project in Colorado- Successful EA for Large Project

Management areas within the project area

This case is from the July 28, 2017 Litigation Weekly but maybe deserves separate discussion. Previously folks have said you shouldn’t do EA’s but should do EIS’s, seemingly based on case law more than the NEPA regulations themselves (or as it has been characterized “DOJ won’t defend EA’s”). So we had been watching to see what EAs made it through litigation. This one has 13,580 treated acres and an endangered species (Canada lynx). I wonder if there’s something these folks did that others don’t do, or whether it’s just a “crapshoot” to go to court as my former colleague once said… It can’t be a lack of litigants, as these are folks who litigate frequently and are presumably good at it.

Here’s a list of hypotheses:
1. High quality NEPA work and consultation from the Leadville Ranger District (always one of my favorite hypotheses :))
2. Something about lynx is easier to accomplish than other ESA requirements..
3. Judges have different points of view
4. Judges in different circuits tend to have different points of view.
5. DOJ defense was above average.
6. Plaintiffs work was below average.
Other hypotheses?

Here’s a link to the project documents, the final EA (and draft) are under the “analysis” tab. It’s in the neighborhood of 150 pages, and it’s very readable. There is a draft and final EA, and the project went through the objection process.

Here’s what FS Litigation Weekly said about the case:

3. Wildlife I Region 2
The District of Colorado ruled favorable for the Forest Service on a National Environmental Policy Act (NEPA) suit challenging the Tennessee Creek Project on the San Isabel National Forest in WildEarth Guardians v. Conner. Plaintiffs challenges to the project focused namely on the Forest Service’s Canada lynx analysis under the Southern Rockies Lynx Amendment (SRLA) and to the use of an Environmental Assessment (EA) rather than an Environmental Impact Statement (EIS).
Plaintiffs claimed the EA failed “to disclose, analyze, and otherwise take a hard look at the environmental effects on lynx and specific types of lynx habitat.” They argue the EA: 1) should have included site-specific analysis and details as to treatment locations; 2) should have taken a harder look at lynx denning habitat; and 3) should have disclosed the location of existing lynx winter habitat within the project area. The court rejected these assertions.
Site-specific analysis is only required, as per the court, if environmental impacts are reasonably foreseeable. As the plaintiffs did not claim any such foreseeable impacts, the court concluded site specific analysis and treatment location details were unnecessary.
For denning habitat, the court found “the SRLA sets forth the appropriate framework for evaluating the effects of a project on lynx.” As the Forest Service complied with the SRLA through mapping lynx habitat, generally excluding spruce-fir habitat and habitat with dense horizontal cover, and attempting to promote foraging habitat, the court found the Forest Service’s analysis of lynx habitat in compliance with NEPA.
For lynx winter habitat the court found the Forest Service “focused on maintaining high-quality winter snowshoe hare habitat, per the SRLA guidance… The Service thus designed the project to exclude high-quality snowshoe hare habitat from treatment based on the best available science.” Accordingly, the court concluded the Forest Service satisfied its duty to take a hard look at the project’s impact on lynx winter habitat.
Plaintiffs next contended that the Forest Service was required to prepare an EIS due to the unique characteristics of the project area and the project’s impacts on it. The court, however, found the project activities insignificant when compared to the area in which they will be undertaken and that the agency did consider the characteristics of the project area, demonstrated by the constraints imposed on the project to protect high quality lynx habitat.

Here’s what the project does:
• Regenerate lodgepole pine through clear cutting on 2,370 acres.
• Thin 6,765 acres of mature lodgepole pine stands. Pre-commercial thin 345 acres of advanced regeneration of lodgepole pine.
• Improve aspen stands through prescribed fire and/or harvesting on 115 acres.
• Utilize prescribed fire on 6,040 acres with an average of 150 -300 acres of prescribed fire treatment per year.
• Remove encroaching conifers in meadows and sagebrush (1,345 acres) and use prescribed fire treatments in meadows throughout the project area (1,330 acres).
• Create small openings (less than 5 acres) in mixed conifer stands adjacent to spruce-fir by harvesting lodgepole pine to promote regeneration (375 acres).
• Remove spruce infested with or killed by insects (up to 1,395 acres).
• Maintain vegetation cover and increase age class and structure diversity over the long-term within the Ski Cooper Ski Area permit boundary (1,052 acres) utilizing mechanical and prescribed fire treatments in lodgepole and spruce-fir.
• Treatments adjacent to the Continental Divide National Scenic Trail (CONST) will be modified in accordance with Design Criteria #45 -47 (see the appendix to this decision).
• In order to conserve Canada lynx, the proposed action is specifically designed to comply with all objectives, standards, and guidelines in the Southern Rockies Lynx Amendment. To further protect quality lynx habitat, all areas in mapped lynx habitat with greater than 35 percent dense horizontal cover will not be treated.
• Mechanical treatments (thinning / clearcuts) will average 300 – 500 acres per year.
• Improve aquatic organism passage through the removal or replacement of 5 – 7 non-functioning culverts on National Forest System roads.
• Construct 2 – 4 nesting platforms at Turquoise Lake.
• Improve erosion and compaction issues by ripping, contouring, mulching, seeding, and/or installing erosion control netting in four developed sites (campgrounds and picnic areas).
• Improve aquatic habitat, reconstruct channel geometry, reduce erosion, and normalize sediment transport in 2.3 miles of Halfmoon Creek.
• Improve and maintain approximately 14 miles of Forest System roads including widening a portion of Forest System Road 109.
• Create approximately 20 miles of temporary roads and open approximately 1.5 miles of closed roads over the life of the project; roads will be closed and rehabilitated after treatments are complete.

6 Comments

  1. Looking only at what you’ve provided here, I’ll offer a theory (somewhat self-serving, since I had a lot to do with the FS approach to lynx). The project issues were related to lynx, and the reason there were no foreseeable impacts on lynx that might be significant and trigger an EIS was probably this:

    “In order to conserve Canada lynx, the proposed action is specifically designed to comply with all objectives, standards, and guidelines in the Southern Rockies Lynx Amendment. To further protect quality lynx habitat, all areas in mapped lynx habitat with greater than 35 percent dense horizontal cover will not be treated.” The lynx conservation strategies were designed to minimize adverse impacts on lynx, so a project that follows them would most likely not trigger the NEPA EIS threshold of “effects that may be significant.”

    Possible lesson: having a scientifically sound conservation strategy for at-risk species in the forest plan makes projects easier to defend.

  2. So Jon, are you saying that a) other projects do EISs because they don’t comply with the relevant amendments for other species?
    b) other species amendments aren’t as good (don’t minimize adverse impacts?)
    c) other species don’t have amendments?
    Or some combination of the above?
    I think as usual, you are on a way higher plane of understanding of ESA than I :).

  3. Lynx is a listed species, but this is not an ESA problem; it’s a forest planning problem. Any forest plan could be designed to prevent projects from adversely affecting a particular species. If this is done in the plan, and a project is consistent with the plan, then effects of the project on that species are unlikely to be significant and trigger an EIS.

    I don’t think this benefit of good forest planning has gotten a lot of attention. Minimizing adverse effects is more demanding than the NFMA requirement of providing a viable population in most cases, and forests want the “flexibility” to adversely affect species. This philosophy would result in weak forest plan conservation measures that make it more likely a project would require an EIS.

  4. I just read the opinion and it supports my theory. The court actually overstates it a bit in my opinion: “Respondents have adequately addressed the potential impacts by implementing the direction provided by the SRLA, undisputed herein as the best science available regarding lynx.” The SRLA also supplied a “rational basis” for the “methodology” used to analyze project effects. The court also characterized the SRLA as providing the “relevant factors” that must be considered under the APA to ensure the NEPA analysis is not arbitrary or capricious. That’s actually a benefit of forest planning that I hadn’t thought about.

    I would add that having the lynx conservation strategy in the plan, and already consulted on by the Fish and Wildlife Service, helped the FWS concur that the project was not likely to adversely affect lynx. The court also relied on this FWS determination to support its holding that adverse effects on lynx would not be significant. This is, by the way, a reason the Forest Service should not be supporting the idea of doing away with forest plan level consultation (as a result of the Cottonwood litigation). It helps with projects.

    One other thing that helped convince the court is that the FS made “conservative assumptions” in its EA, including that all areas would be treated when that was not actually going to be the case. This sort of “worst case” thinking is not easy for agencies to disclose in their NEPA documents, but it buys a margin for error in the courts.

    The weak point in the court decision is in the discussion of the range of alternatives. There are two action alternatives, both of which include treatments in lynx habitat. The court concluded that alternatives proposed by plaintiffs that would not treat lynx habitat would not meet the purpose and need for “improvement or maintenance of habitat for endangered species, including lynx.” That seems to embrace an idea that habitat for lynx must be actively managed, which is not discussed further and was probably not briefed. But the court also pointed out that, “The Service has a lower duty to consider alternatives in preparing an EA than an EIS” (another fringe benefit of a conservative approach of mitigating effects to the point of non-significance).

    • Ok, so there is a Southern Rockies Lynx Amendment to forest plans, but not one in the Northern Rockies, just the Direction that is supported by an EIS but not formal consultation, so each project in the Northern Rockies has to be consulted on?

      • Close, but no. There’s a NRLA, too, and it works the same way. But the northern Rockies also have critical habitat, which has not been properly consulted on at the plan/NRLA level yet. So projects can’t rely on how the NRLA deals with critical habitat – which is what they did on Stonewall.

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