Colt Summit: Judge dings Forest Service for failure to “prepare a supplemental environmental assessment”

The Colt Summit project area is located in the upper-center portion by the "83" and bend in the road.  The surrounding area (including the portions of the Lolo National Forest, State DNRC lands and private lands) have been heavily logged and roaded, significantly compromising critical habitat for lynx, grizzly bears, bull trout and other critters.
The Colt Summit project area is located in the upper-center portion by the “83” and bend in the road. The surrounding area (including the portions of the Lolo National Forest, State DNRC lands and private lands) have been heavily logged and roaded, significantly compromising critical habitat for lynx, grizzly bears, bull trout and other critters.

The Colt Summit timber sale – and subsequent lawsuit – on the Lolo National Forest in Montana has been the source of much previous debate on this site, even though this is the first timber sale lawsuit on the Lolo NF in over 6 years.  Well, just today the next step in the legal process occurred, as US Federal District Court Judge denied the Forest Service’s motion to dissolve the injunction because the Forest Service failed to “prepare a supplemental environmental assessment,” as the court required.  Read the judge’s ruling here, or see the snips below.

The United States Forest Service moves to dissolve the injunction in light of actions that it has taken following remand. The motion is denied. The Court previously granted summary judgment in favor of the Forest Service on a host of issues, all but one. (See doc. 50.) The only fault with the Service’s analysis of the Colt Summit Project was the inadequate cumulative effects analysis for lynx. (Id.) Because of this deficiency, the Court remanded the matter to the Forest Service “so that it may prepare a supplemental environmental assessment consistent with this order and the law.” (Id. at 46.)

The summary judgment order plainly requires the Forest Service to prepare a supplemental environmental assessment (“supplemental EA”). The Service didn’t do so. Instead, it prepared what it called a “supplement to the environmental assessment.” The document is a stand alone document that is, by the Service’s own admission, not a supplemental EA within the meaning of NEPA or the NEPA regulations. See 40 C.F.R. §§ 1502.9, 1508.9–1508.10. Nor, contrary to the Service’s argument, is the “supplement to the environmental assessment” any other type of NEPA document. See 40 C.F.R. § 1508.10. Courts have previously allowed agencies to prepare non-NEPA, supplemental documents on remand, but those circumstances do not apply here….

Instead, where, as here, the Service “present[s] information and analysis that it was required, but according to the finding of the district court, failed to include in its original NEPA documents,” it must prepare a supplemental NEPA document….

Using documents not sanctioned by NEPA to “correct this type of lapse” is “inconsistent with NEPA”:

[I]f the Forest Service were permitted to correct deficiencies in an EA or an EIS by means of an SIR or another non-NEPA procedure, the regulations governing the supplementation of NEPA documents promulgated by the CEQ, as well as the Forest Service’s own rules on the issue, would be superfluous.

The Forest Service’s document does not comply with the Court’s summary judgment order or Ninth Circuit precedent.

The Service makes two arguments in response. First, it argues that the Court has previously allowed the Service to prepare a non-NEPA supplement on remand. See Native Ecosystems Council v. Kimbell, 9:5–cv–110. Be that as it may, the Court in Native Ecosystems Council expressly ordered the Service to “to supplement the EIS.” That isn’t the case here. Here, the summary judgment order expressly requires the Service to prepare a “supplemental environmental assessment.” These are two distinct requirements.

Second, the Forest Service argues that it solicited public comment for the supplement to the EA, so the document should be sufficient. Not so. Providing public comment and following some of NEPA’s other procedures doesn’t make a document a required NEPA document.

The Service’s task on remand was clear: “prepare a supplemental environmental assessment . . . .” (Doc. 50 at 46.) The Service didn’t do that. This decision has nothing to do with the quality or the adequacy of the Service’s lynx analysis. The Service might very well have produced a substantively useful cumulative effects analysis. But, regardless of the quality of the analysis, the Service has to follow the procedures required by law and this  Court’s previous order. Until the Service does so, the Court will not consider a motion to dissolve the injunction.

IT IS ORDERED that the U.S. Forest Service’s motion to dissolve the injunction (doc. 60) is DENIED. The Court will not consider a motion to dissolve the injunction until the Forest Service complies with the Court’s previous order requiring the Service to prepare a supplemental environmental assessment and comply with all the requisite procedures. (See doc. 50.)

Dated this 27th day of March 2013.

6 thoughts on “Colt Summit: Judge dings Forest Service for failure to “prepare a supplemental environmental assessment””

  1. “Second, the Forest Service argues that it solicited public comment for the supplement to the EA, so the document should be sufficient. Not so. Providing public comment and following some of NEPA’s other procedures doesn’t make a document a required NEPA document.”

    Does anyone else find this just rediculous?

    JUDGE: Go back and make more words
    FS: Here ya go, we made more words
    JUDGE: Yes, your words might be fine, but you put them on the wrong paper. Go back and put them on the correct paper.

    So the FS will go back, make the right words, on the right paper and “follow the law”. The project will then go forward. Lawyer fees will get awarded (if they haven’t already), AWR will likely receive a large charitable donation from the lawyer (hey, it’s tax deductible).

    The end result is the project ,that we’ve been so entertained by for the past year, goes through litigation without any changes (on the ground). The only thing that gets changed by the process is that AWR and a judge spend a year ensuring the FS “follows the law”, by putting the correct sequence of words on the correct paper.

    Someone could easiy argue that if only the FS put the correct words on the correct paper the first time, none of this would be necessary, but I don’t buy that arguement. I’m pretty darn sure the FS tried to do it right. And if someone is philosophically oppsed to something, their only recourse is to challenge the process and find fault with the sequence of words and the paper they’re on.

    This case will make a fascintating case study. I wonder how many more projects have gone through litigation with no real change on the ground.

    Reply
  2. Wow. This is completely incomprehensible to me. Unfortunately, this copy I received of the FS side of the story is in a format where I can’t get out sections.
    But I think Smith and Moreno have compelling arguments and “knocked it out of the park.”
    See pages 2-6 in this FSreplybrief.

    Now another thing that seems bad about courts is that people tell me they couldn’t just ask the judge (we plan to do x, y and z, is that OK?); otherwise it seems like a “bring me a rock” exercise. Really, they couldn’t ask? That’s not the way things work? Say it ain’t so, Joe.

    Hmm. I am coming up with baseball analogies this morning.. could it be Spring?
    Please if someone from the legal community could weigh in here, it would be helpful.

    Reply
  3. I’m not too certain we need much help from the legal community here to understand what’s happening, Sharon.

    A US District Court Judge placed on injunction on the logging portion of the Colt Summit timber sale last summer because the Forest Service’s cumulative impacts analysis for Canada lynx (a threatened species under the ESA) was inadequate.

    At that time, the Judge clearly ordered the Forest Service to prepare a supplemental environmental assessment, which the Forest Service has failed to do. Therefore the Forest Service’s request to lift the injunction on the logging portion of the project was denied.

    The bona-fide watershed restoration work that’s part of this project continues to move forward because the conservation groups never challenged that aspect of the project.

    Also, it’s my understanding that the judge stated in his original ruling that he might require the Forest Service to do a full EIS, depending on what the supplemental EA finds RE: cumulative impacts to lynx.

    I can only guess that right now the employees of the Montana Wilderness Association, Bozeman office of The Wilderness Society and their fellow collaborators are working behind the scenes to fire up their letter to the editor/guest column machine. Of course, they’ll have to find the right “non-traditional” alley to put front and center. Heck, maybe we’ll even see another full page Ad in the newspaper. How they pin this latest lapse on the part of the Forest Service on the “extremists” at the local group Friends of the Wild Swan will certainly be interesting to witness.

    Hopefully they will at least acknowledge that the bona-fide restoration work is on-going and not impacted by the lawsuit. In the past they’ve intentionally blurred the issue. Also, hopefully they MWA, TWS and whoever they pick to put out there will at least be more honest with the fact that Friends of the Wild Swan and AWR fully participated in the entire NEPA process, including attending field trips to the project area and meeting with the Forest Service face-to-face.

    Thanks.

    Reply
    • But Matthew, there is not really such a thing as a “Supplemental environmental assessment” in CEQ regs.Here’s the definition of an environmental assessment.

      “Environmental assessment”:

      (a) Means a concise public document for which a Federal agency is responsible that serves to:

      Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.

      Aid an agency’s compliance with the Act when no environmental impact statement is necessary.

      Facilitate preparation of a statement when one is necessary.

      (b) Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.

      “Supplemental” would mean with more info on lynx cumulative effects.

      My criticism here is that if he wanted to be specific, he should have been…OR there should be a step where people ask, before they do it, if this process is OK. But here’s the odd part, I was told that it’s not kosher, in Legal World to ask if the judge’s direction is unclear. That’s what seems odd (inefficient) to me.

      That’s the part I wanted legal expert’s input on..

      Reply
  4. Matt,

    (sarcasm font OFF)

    While I’d disagree with the Judge’s nuanced points, I think you bring up some valid concerns. Bad press begets more bad press, and to what end?

    It’s unfortunate that the watershed restoration portions of the project would go uncelebrated/unnoticed at the expense of the harvest aspect. There is certainly A LOT of money being funnelled into those projects (contracts) which translates into jobs and reduced sediment and all the other happiness being counted towards restoration accomplishments.

    It would be great if the Agency, the “collaborators” AND the enviro’s would unify (publicly) around the fact that watershed restoration projects can actually facilitate timber harvest, if planned and timed (implemented) properly. Sediment reduction from roads is good, and even better if the funding of those activities isn’t linked to a timber sale.

    None of that will help with the lynx “issues”, of course.

    The worst part of the above linked decision from Malloy is that it’s nothing but a paperwork exercise. All the required steps have been followed, but perhaps out of order. Does that really make a difference?

    (sarcasm font back ON)

    The project is likely to go thru to implementation and timber harvested as designed with no loss of acres. I seriously doubt if 80% of people (Garrity, 2011), would be able to detect any change from start to finish in the NEPA/non-NEPA documents as a result of this drawn out process. It’s been nothing but a generator of ill-will in the press, which is unfortunate.

    Garrity, 2011: “There’s no provision in there that says if 80 percent of the people sign off on it, they don’t have to follow the law,” responded Michael Garrity of Alliance for the Wild Rockies. “They have to show it’s benefiting wildlife.”

    http://missoulian.com/news/local/lawsuit-over-seeley-timber-sale-reveals-split-among-environmental-groups/article_0dc9c85a-e33b-11e0-b7d3-001cc4c03286.html

    Reply

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