Forest Service wins A to Z

The Ninth Circuit affirmed the district court denial of a preliminary injunction for the North Fork Mill Creek A to Z Project on the Colville National Forest, which has been discussed here. Of note, the question of contractor-NEPA was not addressed, although the court said that the Forest Service “reviewed and approved” the EA, and “The Forest Service subsequently retracted and revised the EA to address concerns raised by the public.”

That’s right, an EA on a 13,000 acre logging project with some at-risk species. How could that be? The short answer is essentially full mitigation of effects. For pine marten and fisher, the plaintiffs agreed that goals in the forest plan would protect the habitat, and that the project was consistent with those goals by correctly identifying the habitat and leaving it alone. The legal arguments they made were more technical and weaker. So, while there are some differences here from the Colorado Tennessee project in lynx habitat, it appears that the Colville forest-wide conservation strategy for these species also simplified the project NEPA process. Full mitigation basically also occurred for sediment and open road density (It also probably didn’t hurt that, “The project was the result of a multi-year collaboration among elected officials, environmental organizations, Native American tribes, the timber industry, and community organizations.”  And maybe that had something to do with why the FS agreed to this degree of mitigation.)

The opinion includes an interpretation of the 2012 Planning Rule’s requirement for the use of the “best available scientific information in the forest planning process” (despite the fact that the new Planning Rule does not apply to either the existing plan or to any projects). Quoting a Ninth Circuit case: A party challenging the Forest Service’s scientific analysis cannot simply “cite studies that support a conclusion different from the one the Forest Service reached” and must instead provide “scientific studies that indicate the Forest Service’s analysis is outdated or flawed.”

One Comment

  1. In case the FS is wondering how to win a lawsuit on NFMA’s viability requirement (and to get the Alliance for the Wild Rockies to “concede”) …

    https://www.jdsupra.com/legalnews/forest-service-properly-analyzed-15864/
    I don’t often see Forest Service cases covered by legal blogs, but this 9th Circuit opinion seems to be viewed as important. Their summary also highlights a point that I didn’t include in my summary (I guess because it was just reiterating prior case law):

    “The use of a species’ habitat as a proxy for its viability is known as the “habitat-as-proxy” approach. The use of the species as an indicator of the population of other similar species is known as the “proxy-on-proxy” approach. In the EA, the Forest Service relied on the habitat-as-proxy approach to determine the project would not adversely impact the pine marten, and the proxy-on-proxy approach to determine the project would not adversely impact the fisher.”

    “Proxy approaches are allowed where both the Forest Service’s knowledge of what quality and quantity of habitat is necessary to support the species and the Forest Service’s method for measuring the existing amount of habitat are reasonably reliable. The Alliance conceded that the Forest Service had reasonably accurate knowledge of both the quantity and quality of pine marten habitat to support the species and that the Forest Service’s method of measuring the existing amount of habitat was reasonably reliable.”

    The 2012 Planning Rule adopts a proxy approach. The planning record needs to describe the ecological conditions (quantity and quality) necessary for a species to persist in the plan area.

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