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.
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.