Federal Court stops 85,000 acre Forest Service logging and burning project

Here’s the press release from Alliance for the Wild Rockies…. – mk

“The Ninth Circuit Court of Appeals today ruled for the Alliance for the Wild Rockies, Idaho Sporting Congress, and Native Ecosystems Council to stop the Lost Creek-Boulder Creek Timber sale in the Payette National Forest in western Idaho,” announced Mike Garrity, Executive Director of the Alliance for the Wild Rockies. “We are very pleased that the decision halts the Forest Service’s plan to log approximately 40,000 acres and burn 45,000 more acres in the New Meadows Ranger District.”

“We won today because the Forest Service tried to change existing Forest Plan standards so it could proceed with a massive logging project,” Garrity said. “It’s especially important because Boulder Creek is a tributary to the Little Salmon River and the headwaters of the West Fork of the Weiser River and the area is designated Critical Habitat for bull trout recovery.”

Reversing the district court, the Ninth Circuit Court held that the Forest Service’s decision to approve the Lost Creek-Boulder Creek Project was “arbitrary and capricious” and “constituted a violation of the National Forest Management Act.” Specifically, the Court held that the Forest Service had proposed to manage the forest in a manner that was clearly inconsistent with the Payette Forest Plan and that the agency had improperly adopted a new definition of “old forest habitat” for the Lost Creek Project area. The panel instructed the district court to vacate the Forest Service’s September 2014 Record of Decision and send the proposal back to the Forest Service to comply with the law and Forest Plan.

A Big Win for Taxpayers, Clean Water and Bull Trout

“We also challenged the Forest Service’s failure to reinitiate consultation with the U.S. Fish and Wildlife Service for the endangered bull trout” Garrity explained. “But while the lawsuit was pending before the Ninth Circuit, the Forest Service decided to reinitiate consultation for the bull trout over its entire range, including the Payette National Forest. Since that’s precisely what we wanted them to do in accordance with the Endangered Species Act when we took the case to district court, the issue was ruled moot by the Ninth Circuit decision but was definitely a win for bull trout.”

“Additionally, the Forest Service estimated that the project would have cost taxpayers a whopping $12,429,619,” Garrity said. “In essence, the Forest Service decided it was more important to subsidize the timber industry with this huge money-losing timber sale in federally-designated bull trout Critical Habitat than it is to recover bull trout as legally-required by the Endangered Species Act.”

“The principal reason bull trout habitat is trashed on the west side of the Payette Forest is Forest Service mismanagement through logging, road-building and overgrazing,” said Ron Mitchell of Idaho Sporting Congress. “This project continues the Forest Service tradition of irresponsible habitat destruction in spite of the fact that the agency’s former fisheries biologist, Dave Burns, wrote in the first Forest Plan that trout habitat on the west side is 50 percent below habitat capacity. The new roads and clearcutting would have reduced remaining habitat even further.”

“Much of the ‘mitigation’ promised by the Forest Service in the form of road-closures after the logging,” Mitchell said. “But the Payette has no record of successful road closures and no reliable monitoring system. We checked their top ten road closures and eight of them were wide open while the other two were easily driven around.”

“We’re glad the Ninth Circuit agreed with us on this project,” Garrity concluded. “It’s always tough to take the federal government to court. But this project would have cost taxpayers millions of dollars, would have resulted in more sedimentation of vital spawning streams, and resulted in fewer bull trout, salmon, and steelhead for present and future generations.”

Find a copy of the Ninth Circuit Court of Appeals Opinion here.

20 thoughts on “Federal Court stops 85,000 acre Forest Service logging and burning project”

  1. Looks like the case boils down to this:

    Reversing the district court, the panel held that the final 2014 Record of Decision for the Lost Creek Project, which eliminated MPC 5.2 (commodity production) in its entirety and replaced it with MPC 5.1 (restoration), was arbitrary and capricious because the standards, guidelines, and desired conditions that determined the forest conditions for MPC 5.1 were different from those for MPC 5.2. Specifically, the panel held that: the switch from MPC 5.2 to MPC 5.1 improperly resulted in the loss of binding Fire Standard 0312 under the existing Forest Plan; the elimination of the existing Fire Guideline 0313 was contrary to the Forest Plan; and the switch resulted in the imposition of new desired vegetative conditions with the potential to alter the landscape and was inconsistent with the Forest Plan. The panel concluded that the switch from MPC 5.2 to MPC 5.1 constituted a violation of the National Forest Management Act.

    Reversing the district court, the panel held that the Forest Service’s decision to adopt a new definition of “old forest habitat” for the Lost Creek Project area was arbitrary and capricious, and a violation of the National Forest Management Act.

    • FYI, from the FEIS:

      5.1-Restoration and Maintenance Emphasis within Forested Landscapes: Emphasis is on restoring or maintaining vegetation within desired conditions in order to provide a diversity of habitats, reduced risk from disturbance events, and sustainable resources for human use.

      • 5.2-Commodity Production Emphasis within Forested Landscapes: The draft Wildlife Conservation Strategy (see section 1.6.2 below), proposes all acres of MPC 5.2 to be converted to MPC 5.1 based on the need to conserve habitat for the species of greatest concern. In order to aid in conserving wildlife habitat, this project will use desired conditions for MPC 5.1 in place of desired conditions for MPC 5.2 (Forest Plan p. A-3 to A-9).

      What is the objection to this change?

  2. Sounds like the enviros are shooting themselves in the foot since they don’t generally want commodity production.

    The lack of consistency in their thought process is tough to understand. But, then, it is obvious that many are consistent in not wanting any human intervention in the form of sustainable forest management especially any that involves harvesting.

  3. Is it not odd that the litigants are opposing a change from 5.2-Commodity Production Emphasis to 5.1-Restoration and Maintenance Emphasis?

  4. The NFMA error analyzed by the court is simple: the forest did not explain how the change in MPC standards, guidelines, and desired conditions would fit within the overall framework of the plan. The “did not explain” component is key to the court’s remand.

    • Tony, my potentially outdated understanding was that forests could amend their plans either on a project- specific or a more general basis, and they needed to disclose what the changes would be and evaluate the impacts. Is this different under the 2012 Rule? I don’t exactly understand what the criteria is you mention for “fitting within the overall plan”. Thanks!

      • The forest apparently did not describe how changing management prescription categories would continue to provide the protections to the resources as the Plan originally described. For the fire standard the court analyzed, the unit did not describe how removing that standard to use a guideline provided the “binding limitations” for that particular standard. In the 2012 rule, these amendments cannot be done in a vacuum, meaning further discussion was needed to explain how the amendments fit in the greater context (ie, forest-wide direction) of the plan, not just the management prescriptions.

        Bottom line: not enough discussion that explains the amendments.

  5. I think the (big) problem here is that the forest plan was never amended to include this new “direction” that the project followed. (It was part of a proposed plan amendment that was never completed.)

    As to why this was viewed by plaintiffs as a “bad” project – “According to the Alliance, the WCS amendments, including the switch from MPC 5.2 to MPC 5.1 and the new definition of “Old Forest Habitat,” were controversial policies that paved the way for logging more trees.

    • Jon and Tony, your perspectives seem to be different.. Tony if I understand you correctly, the problem was that there was a site specific plan amendment not analyzed the way the courts would have preferred. Jon, you are saying that there was no site-specific plan amendment in the documentation only a reference to a non-completed forest plan amendment. The latter seems unlikely to pass muster with OGC and DOJ in my experience. Is there anyone associated with this project out there who could weigh in with their perspective?

      • My rant aside, I have the same question. I could not find any reference to a project specific plan amendment in the EIS, but like Jon, I did find a 2011 DEIS for a forest plan amendment, but no FEIS or decision. Agree that some clarification from the Forest would be helpful – hard to tell what is going on.

  6. An unfortunate loss for the Forest Service. Currently, the Payette has one fire (Mesa) on the sit report – 34,700 acres, at a cost of $13.5 M at 80% containment. Compare that to the $12.5M the Alliance for the Wild Rockies claims this project would have cost the public. I wonder what the true cost of this fire will be, after rehab and reforestation? Was bull trout habitat impacted? What would be the cost if the proposed project area burned, this year, or in the future? Fuels reduction was a major part of this project, after all.

    I don’t remember which former Chief of the Forest Service said this, (maybe Jack Ward Thomas?) but around the turn of this century I read an article in which the Chief advised environmental groups to put down their swords and leave the battlefield because they had already won. Think about it. Rachel Carson started the environmental movement in 1963 with her book Silent Spring, and most of us in the Forest Service, including most people currently in leadership positions, grew up with that movement, and many of us joined the Forest Service in support of that movement – to become stewards of the nation’s lands.

    This appears to have been a well-intentioned project, with an EIS that cost a lot of public money to produce. While I truly think that groups such as Alliance for the Wild Rockies serve an important role in terms of checks and balances, and keeping the Forest Service honest, I do not see this case as an example of that. End of soapbox – thanks for listening.

  7. Ah.. JWT definitely had a way with words. Here’s the quote I think you’re thinking of:
    “Fierce in battle, many of the eco-warriors have been unable to come to grips with the consequences of victory and are now reduced to wandering about the old battlefields ‘bayoneting the wounded.’ Their counterparts from the resource extraction community, likewise, cannot come to terms with defeat and hold ‘ghost dances’ to bring back the good old days when they were the undisputed Kings of the West.”

    Most hard core “environmentalists” demonstrated little concern with the social/economic consequences of their victories. Some, figuratively, continued to wander the old battlefields “bayoneting the wounded” via challenges to even minor forest management activities. Victories have consequences. To the victors belong the spoils – and some responsibility to ameliorate consequences of their victories – “you break it – you own it” (Thomas 2001a and 2001b). There was applicable wisdom in President Lincoln’s admonition to General Grant near the end of the Civil War – “Let ‘em up easy.””

    Here is an old post from 2012 that includes those quotes: https://forestpolicypub.com/2012/11/26/the-future-of-the-national-forests-who-will-answer-an-uncertain-trumpet-by-jack-ward-thomas/

    And one about his views on settlements: https://forestpolicypub.com/2011/01/17/jack-ward-thomas-on-the-role-of-doj-and-settlements/

    • “Fierce in battle, many of the world’s largest resource extraction corporations have been unable to come to grips with the consequences of ‘victory’ and are now reduced to wandering the globe ‘bayoneting the wounded’ as they invade other countries in search of even more coal, oil and gas, gold, copper and lumber.”

  8. After reading the opinion, a longer reply …

    I see where Tony is coming from because the court does say several times that the Forest Service did not “explain” how it met NFMA planning requirements. Sometimes courts say this when there is no possibility that the agency could provide a rational explanation, and I think that is the case here.

    It is a confusing case because it does not present the typical situation of a project being inconsistent with a forest plan, usually by violation of a standard. Here the project analysis did not try to determine consistency with the current plan components. It essentially denied their existence, and more importantly effectively replaced them (with some from the previously aborted plan amendment). They could not explain how the project would be consistent with plan components that they no longer recognize; consequently the court said, “Here, the agency’s explanation is, in effect, no explanation at all.”

    This is also often a gray area where the FS has flexibility to do things in a project that are not prohibited by the plan, but only up to the point where it looks like they are actually changing how the plan would apply to future projects. That is really what happened here. They admit they are deleting and changing what the plan says. So while the court keeps using the term “consistency,” it also concludes, “the elimination of the existing guideline was contrary to the 2003 Plan,” and, “Because standards are binding limitations on Forest Service’s activity, the elimination of this fire standard on the Project’s newly-designated MPC 5.1 land constitutes a clear violation of the NFMA.” A more accurate holding is found where this court quotes another case: “If the Forest Service thinks any provision of the (plan) is no longer relevant, the agency should propose amendments to the (plan) altering its standards, in a process complying with NEPA and NFMA…”).

    Unfortunately, the court’s attempt to structure its opinion around the “consistency” requirement makes it ambiguous as a precedent for future cases about improper plan changes. (Regarding old growth, the court says both that the project changes a standard and deviates from it.) The court later indicated that it was responding to the issues plaintiffs had raised, and, “To the extent the Alliance challenges the adoption of WCS standards in lieu of the Payette Forest Plan’s standards, this might give rise to a separate NFMA claim …” (separate from “consistency”). (The lead case I am aware of on this kind of claim is a 1990s Oregon District Court opinion, Prairie Wood Products, that held that the Region 6 Eastside Screens were being improperly applied to projects without actually being amended into forest plans.)

    It is also noteworthy that the court got into the weeds regarding the nature of plan components, as they are defined in the 2012 Planning Rule (even though this is plan was not written in accordance with this Rule). It notes this important distinction, “In any event, a guideline does not impose a mandatory constraint on project planning and activity in the way a standard does.”

    There is an interesting discussion of consistency with desired conditions. The court concluded that “the Plan does not permit the Forest Service to abandon desired conditions in favor of different conditions entirely, without consideration of effects in the long term” (which is what an amendment process would do). This was because the new desired conditions “had the potential to alter the landscape.”

    This could also be the legal outcome where a forest plan includes vague desired conditions that are basically blanks to be filled in later (seemingly a common practice in plan revisions under a misperception that this is a way to do adaptive management). When a specific desired condition is later determined for all future projects in an area, the long-term effects of that change must be considered through an amendment process.

  9. OK, but how is “Emphasis is on restoring or maintaining vegetation within desired conditions in order to provide a diversity of habitats, reduced risk from disturbance events, and sustainable resources for human use” inconsistent with the forest plan? Would the actual effects of the project be inconsistent with the forest plan?

  10. Nobody knows if the project would be consistent with the actual plan because the Forest Service didn’t try to answer that question, and the court wasn’t interested in letting their lawyers come up with post-hoc rationalization. If you do try to look at the details, it’s pretty confusing. The language you quoted replaced management for timber production, and if that former desired condition was a regulated plantation, maybe this project wouldn’t lead to that outcome. That’s of course not what the plaintiffs wanted to argue, which is explained in footnote 1: “The switch to a restoration emphasis under MPC 5.1 reflected the Forest Service’s desire to improve habitat conditions for certain species, including the white-headed woodpecker, but, according to the Alliance, did not necessarily benefit other ESA-listed species. The switch to MPC 5.1 also resulted in increased land authorized for commercial and non-commericial logging.” If this project produced those outcomes, that might not be consistent with the plan.

    I don’t think the court is really thinking about consistency of this project with the plan so much as the process for determining consistency. Here’s another quote that I think captures their point, which is that it is not legally sufficient to determine consistency with a plan that is “different” from the plan as written: “The Alliance argues that the final ROD for the Lost Creek Project is arbitrary and capricious because the standards, guidelines, and desired conditions that determine the forest conditions for MPC 5.1 are different from those for MPC 5.2. We agree.”

    • Here is a rebuttal to Alliance for the Wild Rockies by Rick Tholen, a member of the Idaho Forest Restoration Partnership and the Payette Forest Coalition. From the Idaho State Journal:

      In their opinion dated Aug. 19 the Alliance for the Wild Rockies attempts to deceive the reader by misrepresenting the Payette National Forest’s Lost Creek Boulder Creek project as a “timber sale” and a “massive logging project.” In fact, the project was carefully designed with the close involvement of a diverse group of forest stakeholders, including environmental groups, to restore the forest’s natural resilience to wildfire and improve watershed health by better managing roads and trails.

      The Alliance made the claim that the project would “bulldoze 25 miles of new road,” when in fact, the project will decommission 158 miles of existing road and constructs only 1.5 miles of new road to reroute from an existing, poorly designed road that would then be obliterated.

      While it’s true that commercial removal of trees is part of this restoration project, the value of the trees, which are being removed to provide the proper spacing that would have occurred naturally if fire had not been removed from the ecosystem over 100 years ago, are being plowed back into the project area to remove non-commercial trees and brush, install fish-passable culverts in existing roads, eliminate roads that bleed sediment into streams and are no longer needed to manage these forests.

      The Alliance also takes issue with the cost of the project, which is estimated to be around $277 per acre. However, a 2004 study showed the cost of suppressing wildfires in the Intermountain Region was $897 per acre.

      A 2012 wildfire in this area cost $987 per acre to suppress. But studies have shown the true overall cost of wildfire to be 2 to 30 times the suppression cost alone. Being proactive in managing the vegetation on our public lands makes sense and is cost effective in the long run.

      Rick Tholen,
      Eagle, Idaho


      • Ok, I’ll bite. So, according to SAF’s Rick Tholen the USFS’s plan to commercially log 22,000 acres (34+ square miles of public land) isn’t a “timber sale.”

        The U.S. Forest Service itself says this “timber sale” will result in a “best estimate” of 53 MMBF of trees cut down commercially, but also may result in up to 82 MMBF of trees cut down.

        Apparently a public lands “timber sale” requiring up between 10,600 and 16,400 log truck loads to haul out all the cut down trees isn’t really a “timber sale.”

        Got it, dude.

        Rick likes to toss around a lot of numbers about the cost of the project to U.S. taxpayers. The Alliance for the Wild Rockies, in the Oped that got Rick so hot stated, “the Forest Service estimated that the project would have cost taxpayers a whopping $12,429,619.”

        Is that $12.4 million acre figure not true?

        The EIS for this project clearly says the U.S. Forest Service will allow the construction of 25 miles of new temporary roads. The USFS itself ID’s these roads as “New temporary road construction.”

        Question: How “temporary” is the new construction of a “temporary road?” At what point in time are there zero impacts from the new construction of this temporary road? One week? A year? 5 years? 25 years? Longer?

        According to the USFS this “timber sale” includes 6,100 acres of commercial logging within Riparian Conservation Areas. Is that not true?

        Finally, Rick says: The project “in fact, the project will decommission 158 miles of existing road.”

        That’s not really true. While the project may authorize the decommissioning of 158 miles of existing roads, how much funding is available to do this? In other words, how many miles of roads will ACTUALLY be physically decommissioned, versus how many miles of roads will still be out there because the USFS lacks funding and Congress doesn’t like to fund bona-fide restoration activities. In other words, it’s really not truthful for Rick to say the project will decommission 158 miles of roads when Rick 100% knows full well that in 1 year, 5 years, or 10 years it’s very likely a very small percentage of that 158 miles of roads will actually be decommissioned. If you don’t believe me, look at pretty much any of these large “timber sales” that have been conducted over the past decade.

        • Most of the sales are stewardships so the value of the timber is put back into the woods. This is where the money comes from to decommission roads, do non commercial thinning, improve road conditions, replace culverts etc…

  11. FYI, here is what the American Forest Resource Council says about the 9th’s decision (from AFRC’s August newsletter, http://amforest.org/afrc-news-august-2018/). Note that “AFRC attorneys represented both the PFC and Adams County in the litigation.”

    Ninth Circuit Undercuts Collaborative Landscape Management

    A Ninth Circuit ruling on August 13 strikes an unfortunate blow against collaborative landscape management. The court rejected the Lost Creek-Boulder Creek collaborative project, which is part of the Collaborative Forest Landscape Restoration Program (CFLRP). Most strikingly, the court’s analysis contains a fundamental misunderstanding of forest planning. It wrongly assumes that the project’s design is binding on future projects in the same area, though the project did not amend the governing forest plan. The irony is that the project focuses on restoration rather than timber production, and the court accepted the environmental groups’ challenge on that basis. The court’s decision is so flawed that the government has already taken the unusual step of filing a petition for rehearing.

    In the Payette National Forest, fire suppression has led to accumulations of small and medium-sized trees, making wildfires harder to control and more damaging to the land and adjacent communities. A diverse group of private and not-for-profit interests came together and formed the Payette Forest Coalition (PFC). Despite different backgrounds, the group found a shared interest in reducing uncharacteristic wildfires, improving wildlife habitat, water quality and watershed health, enhancing recreational access, and supporting the economies of local communities. The PFC worked closely with the Forest Service to design the Lost Creek-Boulder Creek project, which aims to restore approximately 80,000 acres.

    The project reflects a common understanding that doing nothing is not an option. Without prescribed burns and noncommercial thinning, at least 40,000 acres remain at risk of mortality from insect, disease and fire, 25 culverts will not be replaced (to the detriment of bull trout), and 55 MMBF of logs will not be manufactured into wood products while maintaining the approximately 1,100 associated jobs.

    Environmental plaintiffs alleged that the Forest Service improperly failed to consult on bull trout critical habitat at the Forest Plan Level, improperly relied on a draft wildlife conservation strategy, improperly changed the desired condition for forested lands within the project area and failed to follow the proper procedures regarding the minimum road system in the project area. AFRC attorneys represented both the PFC and Adams County in the litigation.

    The district court rejected all these challenges. In denying a request for injunctive relief, it found “the collaborative efforts of all Defendants in developing the Project is in the public’s interest,” and that “the public has an interest in supporting the collaborative process that was used in this case to develop the Project.”

    The Ninth Circuit ignored all these factors, and its opinion does not mention the collaborative process at all. Instead, it assumes that the restoration emphasis of the project is a binding forest plan amendment and compares that to the existing forest plan, rather than analyzing whether the project is consistent with the forest plan. This upside-down ruling shows that litigation reform is a necessary element to any meaningful change on our forests.

    The PFC has reiterated its commitment to restoration work despite the court setback. AFRC will continue to work with the PFC in its efforts to bring meaningful forest restoration to the Payette and appreciates the work of our partners on the Forest. /Lawson Fite


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