Another September case

Wild Wilderness v. Allen seems to have not shown up on the Forest Service litigation reports, but here is a newspaper version.  On Sept. 8, the Ninth Circuit found that the decision to build the Kapka Sno-Park, a parking lot for snowmobile users on the Deschutes National Forest, was consistent with the forest plan and did not require an EIS.  I found a couple of points interesting.

One was the court’s treatment of forest plan “standards and guidelines” that were prefaced with language indicating discretion.  The court said, “But nothing in this provision mandates closure of any area to motorized use. It merely outlines steps that “will generally be taken” in the event of user conflicts. The Forest Plan outlines “an aspiration, not an obligation” and therefore “there is no law for us to apply in second-guessing the agency.””  It similarly dismissed language from the Recreation Opportunity Spectrum as “nonbinding guidance.” Note to the public participating in forest planning – if the plan doesn’t say “must” or “shall” the Forest Service won’t have to.  (Recreation, unlike wildlife, doesn’t have any substantive requirements that a plan must meet using mandatory language.)

On the NEPA side, the court held that the forest didn’t have to explain why it changed from an EIS to an EA, as long as it justified the EA.  It rejected the comparison “to cases in which agencies failed to provide reasoned explanations for changes in their position on matters of policy or factual findings.”  The court stated, “The Forest Service here, however, never changed its mind on any factual or policy matter but only on how it planned to comply with its own procedural requirements. There was no agency decision to reverse, as a draft EIS is not an agency decision at all.”  An EIS is not a decision, but this holding only makes sense to me if an EIS also does not represent a finding that there are significant impacts, which is would be a “factual finding.”  In fact, an EIS may be prepared by an agency even if effects are not significant, so changing from an EIS to an EA doesn’t necessarily trigger an additional burden of explanation for the agency.

7 thoughts on “Another September case”

  1. Jon, thanks for posting the Litigation Weeklies and adding other cases you find. Two thoughts:

    (1) Just because a plan does not force the FS to do something or not do something, does not mean it’s not a useful exercise. Sure you need something hardwired to satisfy ESA, but that can (and maybe should) be done in an amendment that covers forests that have that species.
    (2) An addition to your comments about the EIS to EA change…If someone goes from an EIS to an EA, usually it’s because they figure out that they can do a FONSI after reviewing the effects. The FONSI itself should explain why they didn’t need to do an EIS while describing the impacts (a Finding of No Significant Impact). So I wonder what the plaintiffs were looking for.. “we thought x y and z impacts might be significant, but after looking at a and b, we decided that they weren’t”? Don’t quite see the point of their point.

  2. I’m not sure I’ve got your first point, but I don’t think we disagree. On your second point, here is the possible point of their point:

    “Wild Wilderness suggests that the true motivation to withdraw the EIS arose out of the Forest Service’s meeting with the FHWA. The record does not establish whether this is true, but more importantly, it is not clear what improper motive either agency could have had to issue an EA in place of an EIS following the meeting. Wild Wilderness suggests that as a result of the switch from the EIS to the EA, the FHWA would not have had to sign the record of decision, but in internal emails FHWA staff wrote, “it would be great to jointly sign” a record of decision.”

    • I guess I still don’t get what relevance the “rationale for the switch” was as long as the EA is seen to be satisfying NEPA requirements. Maybe that’s what the judge thought also.

  3. Any thoughts on the 9th Circuit Court’s dismissal of ROS concerns? The opinion states, “…this non-binding guidance for recreation planning and guidance does not appear to create any obligation that the Forest Service could have disregarded.”

    This seems to be out of alignment with previous cases related to ROS such as Meister v. USDA 2010, where the 6th Circuit Court seems to interpret ROS as more than non-binding guidance.

    I’d be interested to hear others’ thoughts on this and if there are any other relevant recent cases that can shed more light on this area.

  4. Brian – I’ll look at the whole Ten Lakes opinion, but it does say this: “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and
    mechanized vehicles.”

    Mike – The Meisner case gave weight to ROS as a reason why the Forest should have considered a forest plan alternative that provided a visitor experience consistent with a ROS classification (eliminating gun hunting to provide a quiet recreation experience). It did not address the issue of whether particular ROS language would be binding on the Forest or not. Based on what the the 9th Circuit said here in the Wild Wilderness case, the forest plan could say “must follow ROS requirements,” but if those ROS “requirements” are only for something to “normally” occur, that preserves the FS discretion to not do so.


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