West Fork 2 Fire, Lolo National Forest

Official image from the federal government's InciWeb site showing the landscape burning as part of the West Fork 2 fire on the Lolo National Forest. The flame on the bottom portion of the image shows the general location of the start of the fire.
Official image from the federal government’s InciWeb site showing the landscape burning as part of the West Fork 2 fire on the Lolo National Forest. The flame on the bottom portion of the image shows the general location of the start of the fire.

Consider this post sort of a companion piece to Larry’s “American Fire, Tahoe National Forest” post below. The West Fork 2 wildfire started via a lightning strike early Sunday morning. Yesterday, was yet another 90+ day in Missoula (adding to the record total number of days over 90 this year). By mid-day humidity bottomed out at 16% and the winds gusted from the west at 40 mph.

As a result the West Fork 2 fire – burning through a heavily fragmented, clearcut, logged, roaded, weeded landscape just west of Lolo, Montana – ripped pretty good, burning some houses and dumping smoke, ash and charred bark into the Missoula Valley.

Here’s another image of the general location of the fire from a wider angle, showing more of the heavily fragmented landscape.

WestFork2_Wide Pan

P.S. And thank goodness the Tar Sands megaloads came through – and blocked all traffic – on US Highway 12 a few days ago…and not during the course of this wildfire incident. One has to wonder how the evacuation of homes, people, pets and belongings and the response of firefighters, sheriffs and emergency personal would have been impacted a few days earlier with the Tar Sands megaloads blocking the highway.

Colt Summit: Judge dings Forest Service for failure to “prepare a supplemental environmental assessment”

The Colt Summit project area is located in the upper-center portion by the "83" and bend in the road.  The surrounding area (including the portions of the Lolo National Forest, State DNRC lands and private lands) have been heavily logged and roaded, significantly compromising critical habitat for lynx, grizzly bears, bull trout and other critters.
The Colt Summit project area is located in the upper-center portion by the “83” and bend in the road. The surrounding area (including the portions of the Lolo National Forest, State DNRC lands and private lands) have been heavily logged and roaded, significantly compromising critical habitat for lynx, grizzly bears, bull trout and other critters.

The Colt Summit timber sale – and subsequent lawsuit – on the Lolo National Forest in Montana has been the source of much previous debate on this site, even though this is the first timber sale lawsuit on the Lolo NF in over 6 years.  Well, just today the next step in the legal process occurred, as US Federal District Court Judge denied the Forest Service’s motion to dissolve the injunction because the Forest Service failed to “prepare a supplemental environmental assessment,” as the court required.  Read the judge’s ruling here, or see the snips below.

The United States Forest Service moves to dissolve the injunction in light of actions that it has taken following remand. The motion is denied. The Court previously granted summary judgment in favor of the Forest Service on a host of issues, all but one. (See doc. 50.) The only fault with the Service’s analysis of the Colt Summit Project was the inadequate cumulative effects analysis for lynx. (Id.) Because of this deficiency, the Court remanded the matter to the Forest Service “so that it may prepare a supplemental environmental assessment consistent with this order and the law.” (Id. at 46.)

The summary judgment order plainly requires the Forest Service to prepare a supplemental environmental assessment (“supplemental EA”). The Service didn’t do so. Instead, it prepared what it called a “supplement to the environmental assessment.” The document is a stand alone document that is, by the Service’s own admission, not a supplemental EA within the meaning of NEPA or the NEPA regulations. See 40 C.F.R. §§ 1502.9, 1508.9–1508.10. Nor, contrary to the Service’s argument, is the “supplement to the environmental assessment” any other type of NEPA document. See 40 C.F.R. § 1508.10. Courts have previously allowed agencies to prepare non-NEPA, supplemental documents on remand, but those circumstances do not apply here….

Instead, where, as here, the Service “present[s] information and analysis that it was required, but according to the finding of the district court, failed to include in its original NEPA documents,” it must prepare a supplemental NEPA document….

Using documents not sanctioned by NEPA to “correct this type of lapse” is “inconsistent with NEPA”:

[I]f the Forest Service were permitted to correct deficiencies in an EA or an EIS by means of an SIR or another non-NEPA procedure, the regulations governing the supplementation of NEPA documents promulgated by the CEQ, as well as the Forest Service’s own rules on the issue, would be superfluous.

The Forest Service’s document does not comply with the Court’s summary judgment order or Ninth Circuit precedent.

The Service makes two arguments in response. First, it argues that the Court has previously allowed the Service to prepare a non-NEPA supplement on remand. See Native Ecosystems Council v. Kimbell, 9:5–cv–110. Be that as it may, the Court in Native Ecosystems Council expressly ordered the Service to “to supplement the EIS.” That isn’t the case here. Here, the summary judgment order expressly requires the Service to prepare a “supplemental environmental assessment.” These are two distinct requirements.

Second, the Forest Service argues that it solicited public comment for the supplement to the EA, so the document should be sufficient. Not so. Providing public comment and following some of NEPA’s other procedures doesn’t make a document a required NEPA document.

The Service’s task on remand was clear: “prepare a supplemental environmental assessment . . . .” (Doc. 50 at 46.) The Service didn’t do that. This decision has nothing to do with the quality or the adequacy of the Service’s lynx analysis. The Service might very well have produced a substantively useful cumulative effects analysis. But, regardless of the quality of the analysis, the Service has to follow the procedures required by law and this  Court’s previous order. Until the Service does so, the Court will not consider a motion to dissolve the injunction.

IT IS ORDERED that the U.S. Forest Service’s motion to dissolve the injunction (doc. 60) is DENIED. The Court will not consider a motion to dissolve the injunction until the Forest Service complies with the Court’s previous order requiring the Service to prepare a supplemental environmental assessment and comply with all the requisite procedures. (See doc. 50.)

Dated this 27th day of March 2013.