This was going to be a “featured” case in a litigation summary post, but it turned out to be long enough for its own post. Besides, forest plan litigation is rare, especially Forest Service losses, and this case covers a number of NFMA and NEPA issues that are frequent topics on this blog. (And, full disclosure, I had something to do with it.)
- Court decision in Kettle Range Conservation Group v. U. S. Forest Service (E.D. Wash): Sanpoil clean
On the first day of summer, the district court vacated the decision for the Sanpoil Project on the Colville National Forest, and also vacated the relevant portions of the 2019 revised forest plan. The portions of the revised plan at issue replaced the Eastside Screens 21-inch diameter limit with a guideline to protect large trees, but included many exceptions. It also did not designate a minimum amount of old growth habitat to retain.
The court held that, “the agency failed to explain how the 2019 Forest Plan maintains the viability of old-growth-dependent species.” More specifically, “the agency erred by failing to demonstrate that its data and methodology reliably and accurately supported its conclusions about the viability of old-growth dependent species under each planning alternative, and depicted the amount and quality of habitat.” (Note that the Colville plan was revised under the 1982 planning regulations, which had somewhat different language describing wildlife viability. However, this court did not rule on substantive compliance with the NFMA requirement, but rather found a failure to demonstrate compliance due to an inadequate administrative record based on the APA.)
The Forest stated that the selected alternative, Alternative P, provided a “high” viability outcome for these species and that the no-action alternative would not improve viability outcomes. However, in the EIS, the data showed that “the No Action alternative provides more habitat than the selected alternative for three of the surrogate species,” and “creates the most late structure of any alternative.” The Forest relied instead on an appendix in an associated Wildlife Report that employed a Bayesian belief model to assign letter grades to viability, which supported the rationale for selecting Alternative P. The court explained:
Neither the EIS nor the Wildlife Report describe how the agency came to these scores for each species and action alternative. The agency did not define its methodology for assessing the letter grades, such as what factors it considered and the weight they were given. The grades assigned to each planning alternative lack explanation… the agency acted arbitrarily and capriciously when it offered explanations that ran counter to the evidence before the agency and failed to satisfy the requirements of the NFMA.
The court also found that the Forest failed to discuss the amount and quality of habitat and population trends (a requirement of the 1982 regulations).
The court also held that the forest plan EIS violated NEPA by failing to meaningfully address the original Eastside Screens Report. The Forest simply argued that it needed more flexibility to achieve the desired conditions, including avoiding numerous site-specific amendments to deviate from the diameter limit in the Eastside Screens. The Forest failed to include the original Eastside Screens Report in its administrative record, and did not adequately respond to public comments about the Eastside Screens. The court stated:
Its absence demonstrates that the agency failed consider the scientific rationale for adopting the 21-inch rule before deciding to discard it. The agency did not respond to viewpoints that directly challenged the scientific basis upon which the final EIS rests… In doing so, the agency violated the NEPA. The absence of the Eastside Screens Report also demonstrates that the agency did not consider an important aspect of the issue, as required by the APA.
… the agency did not consider negative impacts, if any, from (1) elimination of the 21-inch rule or (2) retention of the exceptions in the new guideline. The NEPA requires the agency to discuss and not improperly minimize negative effects of a proposed action… In this case, the EIS did not assess how often the new guideline’s exceptions will be invoked and how the exceptions may impact the agency’s conclusions about the environmental effects and species viability.”
The Sanpoil Project also violated NEPA. The EA simply assumed that the new forest plan guideline would protect old-growth trees. The court held:
This conclusion was contrary to the evidence. The Sanpoil Project EA did not specify the frequency of which the new guideline’s exceptions would be invoked, despite the 2019 Forest Plan’s stated objective of preserving old-growth trees. The agency is not required to catalogue specific trees that will be removed, but in this case, the agency was required to provide site-specific details at the project planning stage to provide a sufficient picture of the Sanpoil Project’s cumulative effects… Without sufficiently specific information about site impacts, the Sanpoil Project’s impact to old-growth trees and their dependent species is speculative.”
(This overlaps to some degree the issues surrounding “condition-based NEPA.” The court even cites the Forest Service Handbook: “If the Agency does not know where or when an activity will occur or if it will occur at all[,] then the effects of that action cannot be meaningfully evaluated.” It also is difficult to demonstrate consistency with the forest plan if the project documentation does not provide information about how a project is meeting forest plan requirements.)
The project also violated NEPA and NFMA by conducting “cursory analysis” of the effects of the project on gray wolves, wolverine, sensitive bat species, northern goshawk, and the western bumblebee. Finally, the court found that NEPA requires an EIS for the Sanpoil Project because it “creates uncertain risks to old-growth forests and the wildlife dependent on them, and “sets a precedent for future actions that utilize the new old-growth guideline, each of which may be individually insignificant, but create a cumulatively significant impact when applying the new guideline.” Moreover, the lack of quantified or detailed information about the Sanpoil Project’s impacts in this respect “is also highly controversial due to the same questions about its size and nature and effect of the action on old-growth dependent species.”
The court found that this “case” was ripe for judicial review “when the agency issued RODs for both agency actions” “because the Sanpoil Project is a site-specific action governed by the 2019 Forest Plan.” The plaintiff had argued that forest plan decision challenge was ripe because it dealt with a forest-wide viability requirement rather than timber sale requirements found not ripe by the Supreme Court in its Ohio Forestry decision. However, the plaintiff also argued that ripeness of forest plan issues could be based on this project decision implementing the plan. It is not completely clear which rationale the court is employing. The court also found that the plaintiff had exhausted administrative remedies by identifying large, old trees, wildlife viability and the Eastside Screens “thoroughly and consistently during the public comment process.”
Thank you for this post. I read a brief article in the popular press about this case yesterday and was not quite sure about how much this decision was about the 2019 Forest Plan Revision and how much was about the Sanpoil Project itself. Your post is very helpful in clarifying that for me.
I couldn’t possibly assess who’s right here. I have only this question. Faced with endless litigation over everything it tries to do, what’s to stop the Forest Service from throwing up its hands, not planning any thinning or clear-cutting, and letting nature take its course through catastrophic fires? In this case, would such a fire wipe out the bumblebee and the old-growth trees mentioned in the court’s decision?
As I’ve commented on before, I’d like to know the funding sources for these myriad environmentalist lawsuits. I suspect that some of them do huge damage to the environment. Sharon has been very helpful in trying to satisfy my curiosity. But I would welcome a long newspaper or magazine article on the subject.
Hi Lourenco: Most of these lawsuits are funded by taxpayers via the use of “nonprofit” organizations with six-figure salaries and a team of lawyers. That, and lawsuits in favor of these organizations that are then paid directly by taxpayers. The principal results since this method of employment was invented in 1969 has been wildfire, unemployment, and increased government modeling (also funded by taxpayers).
I agree with you about taxpayers being forced to pay to have forest management stymied by activists who may not know what they’re doing.
If I recall correctly, one version of the legislation that Sen. Mike Lee (R-Utah) introduced to restore human-powered travel to Wilderness (other than walking and canoeing, i.e., allowing bicycling and parents’ use of baby strollers) would have required anyone who filed suit against the Forest Service for allowing any bicycle riding or baby strollers to post a bond and maybe (this I don’t recall as well) pay the Forest Service’s attorney fees if the plaintiff lost.
We need more legislation like that. The environmental litigation industry is doing serious harm, as you point out.
This article gives some interesting insights on the funding of several of these environmental groups, which are mostly funded my overseas billionaires. http://www.rangemagazine.com/features/summer-21/su21-monetizing_the_scenery.pdf
That is most interesting, Patrick. Thank you.
Some of the stuff that the author accuses the Southern Utah Wilderness Alliance of doing is legitimate politics, like trying to people elected who will agree with it. I discounted the parts that were a bit overheated and focused on the allegations about the wealthy activists the author writes about. I’d like to see more reporting on who they are, what they think, any hypocrisies they may be accused of, and any damage to the environment, the economy, or traditional cultures (Indigenous, mining, ranching, grazing, etc.) they may be doing.
That’s an interesting comment because what the Forest Service needs to do is actually analyze the pros (fire management?) and cons (loss of habitat) of cutting down scarce big trees on a particular national forest and on a particular project. In the case of the Colville forest plan, they determined the new plan would provide less old growth than keeping the old plan, but just assumed without analysis that would be better for wildlife.
The FS has made statements in the other Eastside Screens case that they can’t successfully manage fuels with a forest plan that prohibits cutting down big trees. They have not provided a scientific basis for the beneficial fire effects of removing large trees, and in any case they have been able to amend forest plans where evaluation of site conditions supports their removal.
Thanks for that explanation. I suppose you’re right, but I still wonder why the Forest Service doesn’t say “forget it, let it burn” and walk away, depriving the activists of their litigation forays. Maybe it’s under a statutory mandate of some sort to address these issues. But I imagine that it could always plead lack of funding and/or slow-walk whatever it’s required to do.
I’ve always thought that every “No Action” alternative should be better analyzed, to clearly show the probabilities of bad results. I’m sure there is some science that will back up those probabilities.
“If the Agency does not know where or when an activity will occur or if it will occur at all[,] then the effects of that action cannot be meaningfully evaluated.”
Sounds like the argument for not doing EISs for forest plans (or planning rules). And we do that all the time for Roadless Rules (estimating impacts of things that might or might not occur). What am I missing?
In context, I don’t think the Forest Service intended this to apply to programmatic NEPA documents (this court applied it to the project decision). There are different criteria for those in the CEQ regulations: “Environmental impact statements may be prepared for programmatic Federal actions, such as the adoption of new agency programs. When agencies prepare such statements, they should be relevant to the program decision and timed to coincide with meaningful points in agency planning and decision making.” (40 CFR §1502.4).
The CEQ regulations specifically recognize that regulations may require NEPA, and courts have said that is true for planning rules.
People have predilections. Some people have more money than others. People with money can advance their predilections by using court cases, funding politicians and journalists and so on. I am not good at following money via transfers that are intended to be unclear, designed by people a lot smarter than I. However, now that I know that you are interested, I’ll post things I run across.
This one’s not exactly about federal lands issues, but might be of interest since some of the same groups are involved. https://robertbryce.substack.com/p/the-billionaires-behind-the-gas-bans.
Thanks, Sharon. Please do!
Pacific Northwest Research Station scientists have been providing the scientific basis for the beneficial disturbance effects of a more flexible approach to protecting large trees – one that takes into account tree age, species, and fire-tolerance. Not just size. Decades of fire exclusion has led to establishment of many shade-tolerant trees larger than 21″ that actually pose a threat to older early-seral trees by acting as ladder fuels and competing for soil moisture and nutrients. The presence of such trees may also prevent restoration of openings or a patchy heterogeneity in stand structure.
Many stands in eastside forests contain >21” young trees with species compositions and stand structures that are not representative of the native forests that we might expect to be resilient to drought stress, fire, beetle infestation, changing climate, and other ecosystem stressors. In those situations, active management that may include the harvest of some medium- and large-size trees may produce ecologically enhanced stand structure and species compositions. The key is flexibility. That’s why the original eastside screens were only intended as an 18-month interim measure back in 1994.
These papers lay it out in more detail:
“Climate and wildfire adaptation of inland Northwest US forests,” Front Ecol Environ 2021; doi:10.1002/fee.2408: https://www.fs.usda.gov/pnw/pubs/journals/pnw_2021_hessburg002.pdf
“Diameter limits impede restoration of historical conditions in dry mixed-conifer forests of eastern Oregon, USA,” Ecosphere 2021; 12(3):e03394. 10.1002/ecs2.3394: https://www.fs.usda.gov/pnw/pubs/journals/pnw_2021_johnston001.pdf
“The 1994 Eastside Screens large-tree harvest limit: review of science relevant to forest planning 25 years later.” 2020. Gen. Tech. Rep. PNW-GTR-990: https://www.fs.usda.gov/pnw/pubs/pnw_gtr990.pdf
These are all dated after the 2019 Forest Plan Revision. And from my read of Jon’s post, the issue is with the evidence in the plan revision/administrative record. I remember reviewing an early version of the Colville draft plan revision and pointing out that most of their literature that they cited was fairly old and dated. I cannot remember if that was corrected in later versions or not.
Excellent point. But they also do not address the effects on wildlife of losing more large trees, and many articles on this subject (I think some of these) often qualify their recommendations by suggesting that existing large trees be retained while restoration is undertaken.
Thanks for posting this, Jon! There are so many interesting things about this.
1. When “agency deference” is.. well.. not so much. As Rachel says above, there is plenty of research that shows that some old trees should go for fuels reasons and to get forests back to where they were (NRVish). So the Forest didn’t adequately explain this? In either the project or plan documentation? I wonder if it would be OK to hear the FS side to those observations by the Court. Perhaps someone knows..
2. If the forest plan amendment of Jan 2021 is now being litigated, but is in effect, how does that interact with the Plan and the project?
3. Is this an argument for the utility of forest planning, .. the FS does a plan, and then three years later it is being litigated…? Probably about the same stuff that people were arguing about before the plan revision. So it seems like forests who don’t want to revise, may be wise..
Regarding your last point, while I haven’t been following public lands management as long as many here, from all I’ve read about its history it sounds like there is very little in this world that’s truly new. It seems every new planning effort boils down to the same intractable controversies that people have been arguing about for decades. Just endless arguments about logging, oil and gas, roads, wilderness designations, etc., often in the same areas these questions have already been heavily analyzed and litigated before.
The only thing that changes are the people in charge, which constantly gives different groups hope that someone more sympathetic to their views is making the decision this time. Hence the constant efforts to trigger new planning processes, which present the opportunity to re-litigate questions that they lost the last time around.
I wonder if this might stem in part from the lack of any kind of democratic representation in land management processes. Public land management is a highly politically contentious issue, yet the decisions in this arena are made almost entirely by unelected bureaucrats, making the outcome of every decision ultimately come down to the personal views of whatever bureaucrat happens to hold the decision making job at the time. With no mechanism to ensure these decisions reflect the views of the majority of affected constituencies, there’s a good bit of luck of the draw involved. So the best way to maximize one’s chances of winning is for there to be as many planning processes as possible, increasing the chances that one of them will have a deciding official sympathetic to your views.
In response:
1) The Colville revised Forest Plan EIS explains in detail how the new plan would result in more vegetation types within HRV (NRV). You can find the EIS and appendices easily by googling. Several alternatives are analyzed, including the no action (i.e. the old forest plan). The chosen alternative which was used for the new Forest Plan results in more “old growth”.
2) The Colville Forest Plan wasn’t amended by the Eastside Screens amendment in 2021, so this court ruling doesn’t appear to affect that decision.
3) So much time and effort was put into the Colville Plan revision and it really does raise the question of the utility of forest planning. This litigator is stuck in the 1980s and well known in the area. It’s difficult to do forest planning, taking into account climate change, expanding urban population, and changing forest uses only to have one bad actor take down the whole effort.
The chosen alternative which was used for the forest plan does NOT result in more old growth than the No Action alternative – per the EIS. The court correctly stated that the EIS showed that “the No Action alternative provides more habitat than the selected alternative for three of the surrogate species,” and “creates the most late structure of any alternative.” This really put the onus on the Forest Service to explain why this alternative (with the Eastside Screens) was so bad for wildlife. (It’s the kind of thing that results in courts giving less deference.)
The issue is not the “beneficial disturbance effects of a more flexible approach.” It’s that they failed to show how that is more important to old growth wildlife than the amount of old growth structure (also part of the NRV picture). They also ignored the short-term habitat effects of the loss of existing large trees through the forest plan exceptions.
This should not have been hard for the Forest Service to do right since the plaintiff had told them they needed to do it, and they should have the best available science on the Colville to make their case. But maybe the risk to wildlife, and the legal obligation to continuously provide ecological conditions for viable populations, means that the plan must make retention of their existing habitat a higher priority than achieving long-term ecological aspirations a little faster. (In particular, the argument that retaining habitat means getting rid of some of it really needs to be a site-specific determination.)
The Forest Service may believe that “flexibility” is best for “ecologically enhanced stand structure,” but it has to show that the forest plan will meet legal requirements for wildlife.
As a former 501(c)(3) non-profit attorney, I need to ask, what is wrong with environmental non-profit employees making six figures? Or really, with any non-profit employee making six figures?
Timber industry attorneys make six figures, government attorneys make six figures, some forest service employees make six figures, why should someone be penalized for working to pursue the public interest (I know that is a loaded term, but at least the public interest from one person’s perspective).
There are many pro-industry NGO employees that make six figures as well. The American Forest Resource Council (AFRC), a 501(c)(3) non-profit organization that promotes USFS/BLM land logging and regularly litigates in federal court, paid its president $235k in 2021 and one of its attorneys $144k per its 2021 990 (see page 8: https://projects.propublica.org/nonprofits/organizations/930936457/202200829349301330/full).
Pacific Legal Foundation, a 501(c)(3) non-profit organization that represents conservative causes, including in environmental/natural resource litigation, pays at least some of its attorneys more than $200k per its most recent 990.
I was involved in a lawsuit about wolf hunting and a pro-hunting 501(c)(3) listed a $350k salary for their in-house attorney on their 990.
Anyways, all that is to say that it has always bugged me that people get upset about paying non-profit employees wages that match their expertise, especially when it comes to environmental NGO salaries. Especially when people are fine to have non-profits come in to support their interests that pay their employees respectable salaries. Some non-profits (and members of the public) believe that non-profit employees should essentially take a poverty vow to work for them and I strongly disagree with that (I’ll note that some of those environmental non-profits are run by individuals with trust funds non-dependent on their NGO salary to live).
In this particular case, the litigant, Kettle Range Conservation Group, pays its single employee less than $30k and the attorney took the case on for free (though if the decision is not appealed or is upheld on appeal, the attorney will get paid market rates in Spokane for their time on the case). Let’s not paint this as billionaires fighting the Colville.
One other thing that I don’t have all the details on related to this case that might be of interest is that I believe the USFS settled part of this lawsuit last year over impacts to Canada lynx.
No argument. It’s fine that the environmental groups’ lawyers earn six-figure incomes. It’s the funding of these groups, reportedly by super-rich men with fanciful ideas, and the resulting governmental paralysis that bother me.
It’s telling that Congress had to pass a statute overriding the analysis paralysis it has created since the 1970s so that the rest of a gas pipeline mostly completed from West Virginia to Virginia can be put in place. The fault lies with the government’s self-strangulation and (allegedly) the bad ideas of the billionaires, not with the idealistic and well-intentioned lawyers who, alas, regularly pursue the wrong goals.
But this has been questioned under separation of powers and the Constitution.
And so it goes..
“The constitutionality of the provision removing the 4th Circuit’s authority to review permits is what is seen as a possible legal avenue for a challenge, said David Sligh, conservation director for Wild Virginia, one of several environmental groups that have been involved in lawsuits over the pipeline.” https://www.virginiamercury.com/2023/06/09/whats-next-for-the-court-cases-challenging-mountain-valley-pipeline/
This seems like a great deal of effort for one pipeline.. perhaps more symbolic than anything. But who selects these symbols, and to what end?
Thanks for that reality check regarding “big enviros.” You are correct that the Colville withdrew the portions of the timber sale in lynx habitat after this lawsuit raised ESA issues.