Some August FS court cases

The Forest Service recently won two lawsuits involving timber projects in Montana.

• In Native Ecosystem Council v. Marten, the district court upheld the Telegraph Vegetation Project on the Helena Lewis and Clark National Forest.
• In Native Ecosystem Council v. Erickson, it upheld the Smith Shields Forest Health Project on the Custer Gallatin National Forest.  One of the issues involved an amendment to the forest plan that modified standards applicable to elk habitat and old growth. In both cases, the court found that Forest was not arbitrary in concluding that the effects of the amendments were not significant and did not require an EIS.

In Sierra Club v. USFS, the 4^th Circuit Court of Appeals ruled against the Jefferson National Forest for improperly amending its forest plan to create an exception to forest plan standards to allow the construction of the Mountain Valley Pipeline.  This was the first direct judicial test of the 2012 Planning Rule, but it was actually a test of a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments.

That addition to the Planning Rule said:  Forest Service “shall . . . [d]etermine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to the plan direction being added, modified, or removed by the amendment,” and then “apply such requirement(s) within the scope and scale of the amendment,” and an agency’s “determination must be based on the purpose for the amendment and the effects (beneficial or adverse) of the amendment,” 36 C.F.R. § 219.13(b)(5).  The Preamble to the 2016 changes said, “When a specific substantive requirement is associated with either the purpose for the amendment or the effects (beneficial or adverse) of the amendment, the responsible official must apply that requirement to the amendment.”

The Forest Service said that because the pipeline project would mitigate effects on soil and riparian resources they would not be “substantial,” and therefore the Forest did not apply the requirements of the 2012 Planning Rule related to soil and water resources, including “the ecological integrity of riparian areas” (36 C.F.R. § 219.8(a)(3)(i)).  The court held that, “the clear purpose of the amendment is to lessen requirements protecting soil and riparian resources, so the amendment was directly related to these requirements, and the Forest must apply the applicable Planning Rule requirements. It also held that the Forest had not adequately analyzed the effects of the pipeline on soil and riparian areas. The court remanded the amendment to the Forest “for proper application of the Planning Rule soil and riparian requirements to the Forest Plan amendment.”