Nick Smith has a link in his Healthy Forests, Healthy Communities news roundup about a lawsuit filed against the Sage Hen Integrated Restoration Project on the Boise National Forest in Idaho. The project would include timber harvests on up to 19,900 acres and 11,200 acres of fuels reduction and non-commercial thinning in a 67,800-acre project area over 20 years.
The plaintiff’s petition is here. The forest’s planning docs are here. A Dec. 2020 Letter of Objection from the Boise Forest Coalition is here.
This project involves a topic we’re discussed here on Smokey Wire: Whether an EA is adequate or if an EIS is needed. In this case, the Boise Forest Coalition says an EIS is needed.
9 thoughts on “Sage Hen Integrated Restoration Project”
If an EIS is not needed for a USFS project on federal public lands that “would include timber harvests on up to 19,900 acres and 11,200 acres of fuels reduction and non-commercial thinning in a 67,800-acre project area over 20 years”….
Then where exactly is the EIS bar set?
IMHO.. the plaintiffs are not correct in stating that CBM “has been soundly rejected by the courts.” As we’ve discussed before, results have been uneven. Several CBM projects have not been litigated. I see that there are two separable issues here: 1) using CBM and 2) doing an EIS.
That being said, when I read the BFC letter, I thought about my previous comment about decentralization. Stakeholders look around and see other forests doing more, and it’s natural for them to think, doesn’t our forest deserve the same level of attention? They even seem to be supporting CEs for the urgent projects and an EIS for the long term. So it seems to me that within reason, it makes sense for groups of forests in the same area to consider doing things the same way, if only to reduce these issues as areas of controversy.
All that being said, I wonder what the Forest’s side of the story is.
The two separable issues approach makes considerable sense.
EIS stuff first. One, because the line that a “project is large, therefore EIS” doesn’t really have a straightforward logic to it, unless you assume that effects are significant on size of project area alone. These are notoriously slippery concepts but it isn’t exactly what context has been construed to mean. If significance on site-specific is largely tied to the effects on the local area, and it’s not an action that has been determined by policy to require an EIS, then it’s entirely in keeping with the point of NEPA implementing regulations to go through the EA process. Of course the underlying assumption here is that timber cutting is involved = I don’t like it, therefore significant.
The second, related point is that the call to do an EIS is almost universally made in bad faith. I don’t know enough about BFC to assume that’s the case here, but I think it’s safe to say that “more analysis” is not the goal in many if not most of those calls. Rather it is increased legal hooks and project delays as part of a long standing strategy opposed to multiple use on principle and intended to bind up limited agency capacity in procedural wrangling. At least that comment is directed at national-level groups.
Next is the question of using CBM. I think it is disingenuous to say “soundly rejected by the courts” though that has been the copy-pasted line since the prince of wales island project got injuncted. Case law on CBM specifically is rather thin. I’d conjecture that the predominant point in opposing CBM is retaining as many objection and litigation opportunities as possible. If you’re opposed to multiple use on principle then you’re somewhat logically obligated to be opposed to tools designed to increase efficiency of implementation.
Ultimately, any snark aside, I do always wonder the following: what does an EIS add to the process? what is so difficult about the logic of CBM?
In the case of national-level ENGOs, I wonder if its the failure to have their policy agenda adopted whole-cloth at the national level in any real sense that informs the need to oppose process reforms that could impair their standing strategy of oppose – object – litigate.
This is always odd though, to get on a tangent. If a group claims to care about the capacity of the FS or BLM or other land management agencies to manage federal lands as federal lands, then the opposition to CBM seems misplaced. It’s a tool, and a value neutral one at that.
and yes, I’m aware of the refrains that “that’s what the law requires” and “NEPA is the magna carta of environmental law” which ” would be undermined by CBM because site specificity” and other liturgical phrases, as if
a) the requirements of NEPA are so terribly black and white, or as if
b) the claimed status of NEPA in the pantheon of environmental laws can be squared with the other claims like “agencies get too much deference under NEPA and the arbitrary and capricious standard of review is lenient”. which one is it, is it the bedrock of environmental law or a lenient procedural hoop? Seems to be whichever one the argument at hand requires, or as if
c) condition-based review of an area doesn’t result in site-specific understanding of effects prior to action. it does, by definition, because of the review of the area in question to determine what action from the suite of actions is appropriate.
1)Take some area X, and potential actions Y and Z, or no action.
2)For that area, either no action, Y or Z will apply depending on condition C.
3)Action Y would have one set of effects. Action Z would have another set of effects. No action would continue existing condition on a certain trajetory. The potential effects are bounded from the start by this framework.
4)In order to determine which action to apply, the agency determines condition C.
5)Based on that determination, Action Z is implemented and has the effects disclosed in 3)
6)If that action had not been implemented based on a different condition C, a different action, Y or no action, would have been implemented.
7) Since these were included in the range of potential effects in 3), as was the effect of Z, then the range of potential outcomes was analyzed and disclosed.
What needs to be added? Do you really need to know how many leave trees there will be on every acre?
Anonymous.. I agree that the FS should use the regulations and interpret them. However, as I’m sure you know, there are the regulations, there is case law, there is OGC advice, and there are expectations that arise from different forests interpreting all of the above.
One tiny example- an appeal was late. We wanted to throw it out based on the regulations. OGC said we should overlook it as a point of honoring “the public.” Or not making them more irritated. But does that work since the whole point is adversarial? Probably not.
My point was simply to point out that in the rich stew of opinions, team NEPA person, line officer, OGC, and so on, that “what your neighboring units do” has to be a consideration because inconsistency can be seized upon to the strict units detriment. I also agree that if everyone did this it would be a race to the 1000 page EIS for every 100 acre project…so.. I don’t know.
And I agree that “doing an EIS” is often not done in good faith. That’s probably a separate topic. Another practice is to do an EA and see if it’s challenged and go back and then do an EIS if you have to. I’ve known folks who have done this. If the FS were going to implement this approach, it would be great to have 1) a check on whether that’s standard for these kinds of projects.. say look at a bunch of similar ones and 2) have a helpful EA/EIS conversion team who can streamline the extra chores. Someone mentioned a project with the minimum 30 day comment period, and so on.
Speaking of consistency, when I was working on administrative appeals in both R6 and R1, the regulatory timelines were considered very non-discretionary. Late appeals could not be accepted (and I thought that was the national position).
An “Anonymous” was involved in this prior extensive discussion of condition-based management (which even has a reference to a Sagehen Project), including the relevant court cases (in the linked earlier post):
I think I have said in prior discussions that I thought a decision could theoretically be made based on an “if you find X, then do Y” structure, as long as every possible outcome is addressed, and the “worst case” effects are used to determine if they are significant and require an EIS. I think it is risky for the Forest Service to create such a big target. I also think the long-term benefits are likely to be illusory, as conditions change, new information is found, and changes are made in the decision that are outside the scope of what was analyzed, and additional documentation and probably public input would be warranted. I agree that this approach would make it harder for the public to know what’s going on, making it harder for them to sue later. I’ll look forward to seeing how the the courts view this particular version of “CBM” ( – which is actually a better-known acronym for coal bed methane).
Jon, when you say that it’s risky to create such a big target, do you mean large landscapes, or large landscapes with CBM? Because it seems to me that if changes are outside the scope of what was analyzed, that could happen with any EIS for many acres of treatments over time. And folks who have used it have not necessarily experienced the benefits as “illusory.” I’m thinking here of the bug project on the Black Hills and Tennessee Creek
. So far LAVA is being implemented and hasn’t been litigated..
I was thinking of a big target in the sense of losing this case could take out a lot of their program. I think the unforeseen will increase over time, and the projects you mentioned aren’t very old (and I’ve explained why Tennessee Creek is lower risk). Along with the possibility that the benefits are real because they made it harder for the public to know what they are doing so they are less likely to be litigated.