Double Landscape Trouble : Injunction of Two Landscape Level Projects on the Nez-Perce/Clearwater

While Jon is our litigation expert, a TSW reader submitted the below litigation post. This case reminds me of the old strategizing we did about packaging decisions in a Queen Mary of analysis versus a flotilla of small decisional boats. If we accept that there are people who don’t want projects and use litigation to stop them,  the Queen Marys will become larger targets, whereas some in the flotilla of small boats might successfully evade fire.

In this case, two landscape level projects were enjoined at the same time. Another point of interest is that the Court held the Forest to using definitions in the Forest Plan rather than perhaps more current definitions.  Which suggests perhaps that the old growth EO new definitions might take a national amendment of all forest plans?

Still, this was useful in the sense that if the Forest fixes these things as the judge requires, then they both should be good to go.  Or the additional work will open up more opportunities for litigation. Or using the latest science, or not, if it conflicts with the Forest Plan. And so it goes.

Other thoughts? Here’s the post.

..the court decided to remand (send back) both projects to the Forest and enjoined until their identified errors are fixed……………………..the court decided that EOTW needs to be an EIS rather than an EA to address old growth.

The 3 identified issues:

  • NIOG (Green et al. definitions) cannot be counted towards Old Growth to meet Nez Perce Forest Plan Appendix N. They must use the Appendix N definition.
  • MA20 needs to be verified as to which stands are Forest Plan Old Growth and which meet Replacement. We can’t assume all MA20 is Forest Plan OG
  • Cumulative effects of old growth between the EOTW and Hungry Ridge projects were not discussed.

Here are the main points….

“While the Forest Service may have developed regional definitions of old growth depending upon forest type, the Forest Plan cannot reasonably be read to include NIOG as meeting the criteria for an old growth stand. The purpose of the Forest Plan was to establish a floor of old growth forest wide, and in each OGAA. Logging predominantly favored large sized trees such as Douglas and Grand Fir. When these factors are considered together, the Court finds the Forest Service’s interpretation that NIOG meets the criteria used to identify old growth in Appendix N is clearly erroneous.” Pg. 18

“Here, while the Forest Service’s NEPA documents indicate it used aerial photos, stand exam information, previous land uses, and personal knowledge to verify stand conditions in MA20, the Court cannot find any evidence in the record demonstrating that it did so other than its bare assurances. The Forest Service did not direct the Court to any documentation in the record of its activities verifying the makeup of MA20 stands. Further, Appendix N requires actual verification of individual stand conditions by specific methods – aerial photos and field reconnaissance. This was apparently done prior to adoption of the Forest Plan to verify the amount of sawtimber throughout the forest. Utilization of “previous land uses and personal knowledge” do not appear on the list of approved verification methods. “ “The Court therefore finds the Forest Service acted arbitrarily and capriciously when it took liberties outside of a reasonable interpretation of the Forest Plan to meet the minimum old growth requirements, and it failed to accurately identify the composition of areas of MA20. ” Pg. 20, 21

“But the Court was unable to locate any discussion or analyses of the cumulative and synergistic impact of the two projects on old growth. This is problematic because the Forest Plan requires the Forest Service to maintain a minimum of 10% of the total forested acres as old growth. It is difficult to reconcile the Forest Service’s justification that old growth need only be looked at in the context of each project’s boundaries when the Forest Plan requires the Forest Service to view the forest as a whole. In this respect, the Court finds the Forest Service’s analyses of cumulative effects to old growth failed to consider an important aspect of the problem, and is therefore arbitrary and capricious.” Pg. 53

The resulting order….

5) The Decision Notice and Finding of No Significant Impact for End of the World are hereby reversed and remanded to the United States Forest Service for preparation of an environmental impact statement under NEPA consistent with this decision.

6) The Record of Decision and the Final Environmental Impact Statement for Hungry Ridge are hereby remanded to the United States Forest Service for further evaluation under the NFMA and NEPA consistent with this decision.

7) The End of the World Project and the Hungry Ridge Project are hereby enjoined.

Here is the text of the decision.

5 thoughts on “Double Landscape Trouble : Injunction of Two Landscape Level Projects on the Nez-Perce/Clearwater”

  1. Source:

    For Immediate Release: Tuesday, June 28, 2022

    Jeff Juel, Friends of the Clearwater, (509) 688-5956
    Bryan Hurlbutt, Staff Attorney, Advocates for the West, (208) 342-7024 x 206

    Court Stops Massive Logging Projects in Idaho Over Old Growth Concerns

    With logging slated to begin as early as July 5, a federal district court issued a ruling on Friday halting the “End of the World” and “Hungry Ridge” projects on the Salmon-Clearwater Divide in Idaho. The court faulted the U.S. Forest Service for failing to protect old growth forest.

    The Salmon-Clearwater Divide is the mountainous, forested ridge rising between the Salmon River and the South Fork Clearwater River between Grangeville, Idaho, and the Gospel Hump Wilderness.

    End of the World and Hungry Ridge are each significantly larger than other logging projects approved in Idaho in decades. Together, the projects would have resulted in logging over 40 square miles on the Salmon-Clearwater Divide to generate more than 317 million board feet of timber over the next 10 years. Of that, over 11 square miles would have been logged by clearcutting and similar techniques, riddling this part of the Nez Perce National Forest with numerous large, unnatural open areas.

    Both projects included logging in “old growth” forest, which consists of large trees, standing dead trees, layered canopies and coarse woody debris on the forest floor. Naturally resilient and biologically diverse, old growth forests are crucial to wildlife in the northern Rockies. After clearcutting, it takes at least 150 years for old growth wildlife habitat to reestablish, making them effectively nonrenewable resources from a human timeframe.

    The Forest Service approved End of the World and Hungry Ridge in early 2021. Friends of Clearwater, a conservation group dedicated to defending wildlands and wildlife in the Clearwater Basin, filed suit in federal court in April 2021. Friends of the Clearwater is represented by the Boise-based public interest environmental law firm Advocates for the West.

    In the June 24 decision, the U.S. District Court for the District of Idaho agreed with Friends of the Clearwater that the Forest Service failed to ensure required minimum amounts of old growth will be protected from logging. The court enjoined End of the World and Hungry Ridge and ordered the Forest Service to accurately identify old growth stands and to comply with all old growth protections.

    “Logging has left the extent of old-growth habitat in national forests in the lower 48 states much depleted and highly fragmented,” stated Jeff Juel of Friends of the Clearwater, author of a 2021 report on the management of old growth in the U.S. northern Rocky Mountains. “Here, the Forest Service used flawed definitions to overestimate the amount of old growth that would remain after clearcutting and to claim old growth protections would be met.”

    “This is another example of the Forest Service’s skewed priorities placing industrial timber production above widely shared public values associated with old-growth ecosystems, such as biological diversity, wildlife habitat, recreation, aesthetics, soil productivity, water quality and fisheries habitat,” Juel added.

    “This is a big win for fisher, marten, goshawk and other wildlife that depend on old growth forest,” said Bryan Hurlbutt, Staff Attorney at Advocates for the West. “Stopping these misguided projects is also a big win for other at-risk species that would have been harmed by a decade of intensive logging across all types of forest, including salmon, steelhead, lynx and grizzly bear, which have been documented on the Salmon-Clearwater Divide in recent years.”

    Science also recognizes how forests of mature and old trees continue to store disproportionally massive amounts of carbon, helping to moderate the effects of climate change. One study in Eastern Oregon found that the largest 3% of trees account for 42% of carbon storage in forests.

    “Not only would the Forest Service clearcut our mature and old-growth forests, it would also clearcut our future by reducing the forest’s ability to sequester carbon,” stated Paul Busch of Friends of the Clearwater.

    “President Biden’s Executive Order on forests this April recognized the diverse benefits these ecosystems provide when they are allowed to function as they have for time immemorial,” Busch added. “Simply put, to our climate, waterways and wildlife, big, old trees are worth more standing.”

  2. My M.S. thesis speculated that launching a “queen mary” adjacent to a University town is never a good strategy for the USFS. For those that don’t know, the Nez/Clear forests are sandwiched between Missoula MT and Moscow ID — backyards for U Idaho and U Montana and their attendant law schools.

    For NEPA nerds who like to compare DN_FONSI and EA’s to the Court’s opinion, here’s the link to the End of the World documents:

    And Hungry Ridge:

    Let the wading begin.

  3. Someone must have known I was on vacation. Thanks for keeping TSW up to date. (And I make no claim to be the exclusive purveyor of litigation news.) From these excerpts, I would just make a couple of comments.

    The forest plan is what the Forest Service told the public it was going to do. If it later decides to do something different, it has to amend the forest plan. That includes definitions that the public may have relied on for its understanding of the plan when it was adopted. This requirement is not news. (I’ll pass on the question of whether a definition change based on an executive order might be different because it could depend on the specific wording of the definition and its purpose.)

    “… the Court cannot find any evidence in the record demonstrating that it did so other than its bare assurances.” It is such a fundamental tenet of NEPA work to “show your work” that it continues to amaze me that the Forest Service can’t seem to embrace this idea. Their NEPA documents still often read, “we’re the experts, so trust us.” It’s a dangerous way for them to cut corners.

    One other side-note, the forest supervisor who adopted the “Queen Mary” strategy by signing these decisions with some pretty basic flaws – she got a temporary promotion to deputy regional forester in R1.


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