Of Grizzly Bears and Camels

Today, in Alliance for Wild Rockies v. Savage, the 9th Circuit ruled the Forest Service violated Kootenai national forest plan standards that regulate road densities to protect grizzly bears.

A Venn diagram would help explain the court’s reasoning, but since I don’t know how to draw one on-line, here’s a silly analogy.

Imagine a two-humped camel that has spent her long life carrying straws. Now old, weak and feeble, the vet advises, “No more straws should be put on your camel or she will collapse and die.” Chastened, the owner counts the straws — 1,000.

To simplify future straw management, the owner decides that from now on he will add and remove straws only from the camel’s small front hump, which carries 20 straws; the other 980 straws being on the large hump.

The owner dutifully keeps a running tally of the straws he adds and removes from the front hump. But, unbeknownst to him, his wife has been surreptitiously adding straws to the camel’s rear. In fact, some of the original 1,000 straws were probably hers, but no one knows for sure because the old straw records are missing.

The next day, the owner puts 6 new straws on his camel and, in an abundance of caution, removes 8, figuring that having only 18 straws on the small hump will provide a safety margin for his aging camel.

A day later, the camel dies. The vet is called. “Why did my camel die?” the owner asks mournfully. “I was careful to never have more than 20 straws on the front hump.”

“There were 1,452 straws on this camel!” exclaims the vet. “I told you your camel could tolerate no more than 1,000.”

“It was a smelly camel, anyway” his wife mutters, as she sweeps up the straws.

2 thoughts on “Of Grizzly Bears and Camels”

  1. More to the point, the record does not include the intimate conversations between the husband and wife regarding what was included in the original 1000 straws, so we’re not sure what killed the camel, and the court asked the Forest Service to do an autopsy (to protect the remaining camels from similar abuse).

    “The Forest Service concluded that its construction of 2.2 miles of new road would be more than off-set by decommissioning 0.65 miles of National Forest road and 1.84 miles of “undetermined” road, and
    that the assignment of road numbers to 2.6 miles of “undetermined” road would have no effect
    because those roads were already existing.”

    The problem was that the Forest Service record did not demonstrate that “undetermined” roads were existing. If some of them were not (for example, because they were user-created recently), then they could not have been used as offsets and adding them to the road system would in fact add roads. That would lead to road densities above the baseline, which would violate the forest plan. The court held, “the Forest Service and the FWS acted arbitrarily and capriciously by failing to determine whether the East Reservoir Project will result in road mileage within the Tobacco BORZ polygon that exceeds the baseline cap provided by the Access Amendments.”

  2. The Forest Service tried to object that plaintiffs failed to raise this issue in the agency administrative proceedings. That argument also failed because of record management problems:

    “Alliance’s failure to object at an earlier time resulted from the Forest Service’s failure to disclose this
    aspect of the Project in the Draft Environmental Impact Statement.” In a footnote the court added:
    “Although there was a map containing the relevant information in the agency record (made available to the public at the Libby, Montana ranger station at the time of publishing the Draft Environmental Impact Statement), there was nothing in the Draft Environmental Impact Statement that would have alerted a reader to the existence of the map. Furthermore, it would have been erroneous to incorporate that map by reference; at a minimum, the map should have been included in the Draft Environmental Impact Statement appendix. See 40 C.F.R. § 1502.18(a)–(b); 46 Fed. Reg. 18026-01, 18034 (Mar. 23, 1981). To the extent Defendants argue that some obscure combination of maps and tables in the Draft Environmental Impact Statement and its appendix would have put Alliance on notice, we have reviewed those materials, find them lacking, and reject the argument. In short, it is a futile task to attempt to
    divine, from those documents, the aspect of the Project to which Alliance objects.”


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