A Sea Change In How Federal Judges View Collaborative Forest Restoration Projects

A sea change in how federal judges view collaborative forest restoration projects is underway. It is plainly visible in rulings issued in two cases brought before the courts by the Alliance for the Wild Rockies.

First among three significant changes: federal judges are becoming more comfortable with the congressionally-blessed collaborative process that encourages diverse citizen-stakeholder groups to partner with the Forest Service in identifying, designing and monitoring forest restoration projects intended to restore natural resiliency in forests that hold too many trees for the carrying capacity of the land.

Second: their rulings reflect a welcome sensitivity to and appreciation for the demanding and difficult work these all-volunteer groups are doing, as well as a much-improved understanding of observable forest decline and, likewise, a willingness to apply case law in ways that allow collaborative forest restoration projects to proceed.

Third: the U.S. Forest Service is doing much better project planning work than it did a decade ago. It is mastering the Rubik’s Cube of environmental law and regulation that, for years, seemed to defeat its best laid plans at every turn.

Herein, we explore these rulings in two parts for what they reveal about judges’ improving understanding of ecological collapse in federally-owned forests in the western United States and, further, their grasp of citizen-led efforts to help the Forest Service develop restoration projects that directly address this collapse in ways that conform to complex and often conflicting environmental standards imposed by the National Forest Management Act [NFMA] and the National Environmental Policy Act [NEPA].

Part 1:

United States Court of Appeals for the Ninth Circuit; ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant v JIM PENA, in his official capacity at Regional Forester of Region Six UNITED STATES FOREST SERVICE, an agency of the United States; RODNEY SMOLDON, in his official capacity as Supervisor of the Colville National Forest, Defendants-Appellees, and STEVENS COUNTY; NORTHEAST WASHINGTON FORESTRY COALITION; PEND OREILLE COUNTY, Intervenor-Defendants-Appellees.

Appeal from the Unites States District Court for the Eastern District of Washington, Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted June 13, 2017, Seattle, Washington

Filed August 1, 2017

Before: DOROTHY W. NELSON, MILAND D. SMITH, JR., and MORGAN B. CHRISTEN, Circuit Judges

Opinion by Milan D. Smith, Jr.

In its 22-page ruling, the Ninth Circuit Court panel affirmed an Eastern District Court ruling denying a preliminary injunction requested by the Helena, Montana-based Alliance for the Wild Rockies. Alliance lawyers had hoped the Ninth Circuit would stop work on the collaboratively-developed North Fork Mill Creek A to Z Project on the Colville National Forest.

Writing for the three-judge panel, Judge Smith explained that, “The panel held that Alliance had not demonstrated serious questions, much less a likelihood of success, with respect to any of its National Forest Management Act [NFMA] or National Environmental Policy Act [NEPA] claims.”

More specifically, the Ninth determined that the Alliance had not successfully challenged the Forest Service’s decision to use “habitat as a proxy” for assessing the presence of pine martens and fishers. The Colville Forest Plan designated the pine marten as a management indicator species – a proxy for other species that have the same habitat needs and population characteristics. The fisher is such a species. Hence, the agency’s decision to select the pine marten.

The Ninth also held that the Alliance had not raised serious questions or demonstrated a likelihood of success on the merits of its claim that the Forest Service had violated NEPA regulations in its sediment analysis, open road density and snow-intercept cover analyses. That such documents exist and are required by NEPA will come as a great surprise to those who simply assume that loggers can cut timber whenever and wherever they choose.

The Ninth’s conclusion that Eastern District Judge, Rosanna Peterson, had not abused her power in denying the Alliance’s motion for a preliminary injunction was a huge win for the Forest Service, the collaborative Northeast Washington Forestry Coalition, Stevens and Pend Oreille counties and Vaagen Brothers Lumber Company which, while not an intervenor in the case, had paid north of $1 million for an independently-conducted Environmental Assessment [EA] prepared by Oregon-based Cramer Fish Sciences. Cramer prepared the EA using guidelines developed by a Colville National Forest planning team. Vaagen Brothers had no say in the EA’s development, and could have easily forfeited its entire investment in the project.

The North Fork Mill Creek section of the aptly named A to Z project is a 12,802- acre forest restoration project that utilizes a variety of tree thinning techniques designed to increase tree species diversity, improve stand productivity, increase available wildlife habitat, restore aspen and reduce the risk of insect and disease infestations – and inevitable wildfire – by bringing stand density closer to the carrying capacity of the land.

A to Z is the end-product of a multi-year collaboration involving the Forest Service, the Northeast Washington Forestry Coalition [NEWFC], whose members include conservationists, outdoor recreation interests and lumbermen; Indian tribes, elected officials and participating civic groups from the Colville area.

Since its founding several years ago, NWFC’s most influential members have been the Spokane-based Lands Council, led by Mike Petersen, once a leading litigator in the region, and Duane Vaagen, owner of Vaagen Brothers Lumber. The two men have become friends in the years since Vaagen first invited Petersen to tour his Colville mill, which relies exclusively on a steady diet of small-diameter logs garnered mainly from Colville National Forest thinnings.

When I asked Petersen why the Lands Council had ditched its litigation strategy, he said he had recommended they do so because “we weren’t getting our needs met.” The need is for more old growth conservation and more designated Wilderness in Northeast Washington.

Vaagen has been very supportive of the Lands Council’s goals because they don’t conflict with his daily need for a minimum 50 truckloads of small diameter logs. A to Z’s small diameter thinnings fit his mill configuration perfectly, which explains why he was willing to plunk down at least $1 million to fund the independently-prepared Environmental Assessment and the additional NEPA work the Forest Service needed to complete before moving forward.

The Ninth Circuit’s dissection and rejection of the Alliance’s A to Z claims reflects a far deeper understanding the intersection between case law, federal regulations and the Forest Service’s byzantine planning process than anything I’ve seen since I first monitored northern spotted owl litigation more than 30 years ago.

The court’s 22-page ruling reflects a growing impatience with serial litigators who continue to plumb the depths of the federal regulatory maze in hopes of finding ways to thwart forest restoration work. Despite being invited to join NEWFC, the Alliance has refused, and no doubt will continue to refuse until Congress finds the political will to exempt federal forest planning from the provisions of the Equal Access to Justice Act, a taxpayer-funded law that pays litigators to sue the government. Many see arbitration as the only reasonable path forward.

Cramer Fish Sciences’ EA was released for public comment in March of 2015. The Lands Council requested some modifications aimed at protecting old growth. The Forest Service readily complied, and a revised EA was signed by Colville National Forest Supervisor, Rodney Smoldon, in February 2016. Alliance lawyers sued in the Eastern District in August, alleging violations of NFMA and NEPA. In October 2016, Judge Peterson rejected their claims, leaving Alliance lawyers to appeal their case to the Ninth Circuit, which upheld her ruling on August 1.

Neither Judge Peterson nor the three-judge Ninth Circuit panel thought the Alliance had raised any serious questions about NFMA or NEPA violations, an acid test in federal environmental litigation. Both courts found the Alliance’s claims to be “too speculative” to demonstrate concrete evidence of harm or irreparable injury – another acid test. Nor did the legally enshrined “balance of equities” tilt in the direction of environmental harm or a rejection of public interests.

Indeed, both courts found that the environmental and economic benefits the Forest Service cited in its planning documents far outweighed any risks A to Z posed. Moreover, both courts went out of their way to note the years of collaborative engagement by NEWFC volunteers.

The Alliance had bet heavily on its claim that the Forest Service’s decision to use “habitat as proxy” for the presence of difficult to find and count pine martens and fishers. They lost because both courts thought the agency had done a good job of protecting core area habitats that both reclusive animals are known to occupy. It was an easy call for the Forest Service, which had completed an extensive study of Colville National Forest pine marten habitat in 2012. No one knows for sure how many pine martens there are on the forest because none have been seen in the A to Z project area since 1995. But the difficult-to-monitor martens have been seen elsewhere on the Colville, so the Forest Service is required to provide sufficient core area habitat.

Likewise, the reclusive fisher, which is thought to roam larger areas than pine martens. Hence, the 12,800-acre A to Z project includes 2,167 acres of pine marten and fisher habitat in which no thinning work is permitted.

The Colville Forest plan requires management activity to move toward a 50:50 cover-to-forage ration in big game winter range. Within A to Z, the cover ratio is currently 90:10, meaning tree cover is too dense to provide winter forage for deer and elk. An Alliance wildlife biologist alleged that the thinning would reduce the cover-to-forage ratio to 30:70, but could offer no convincing evidence that such was the case – not surprising given easily completed counts of trees per acre.

The court thus rejected the Alliance claim, as it did a similar complaint that Colville road density [1.9 miles per square mile] posed erosion and sediment problems. The Forest Service had, in fact, documented a 0.5 percent decrease in sediment delivery due to road improvements, road closures and other mitigation measures within the project area.

“For the foregoing reasons,” the Ninth Circuit wrote in its August 1 ruling, “we conclude that the district court did not abuse its discretion in concluding that the alliance failed to demonstrate either serious questions or the likelihood of success with respect to the merits of any of its NFMA or NEPA claims.”

It is not known whether the Alliance will now appeal the Ninth’s ruling to the U.S. Supreme Court. Meantime, thinning and restoration work are continuing in the A to Z project area.

Part 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ALLIANCE FOR THE WILD ROCKIES, Plaintiff, v MARYH FARNSWORTH, Forest Supervisor, Idaho Panhandle National Forest, LEANNE MARTEN, Regional Forester of Region One of the U.S. Forest Service, THOMAS TIDWELL, Chief, United States Forest Service, an agency of the U.S. Department of Agriculture, Defendant.

Case 2:16-cv00433-BLW Document 43. Filed 05/01/17

MEMORANDUM DECISION AND ORDER

It is undoubtedly a mistake to read too much into the musings of a federal district court judge, but in his May 1, 2017 ruling in a case brought by the Alliance for the Wild Rockies, B. Lynn Winmill, Chief Judge of the District of Idaho, U.S. District Court, appears to put environmental litigators on notice that his court reads the same daily newspapers all Idahoans read, and is thus well-aware of citizen-led collaborative efforts to pull the state’s National Forests back from the brink of ecological collapse.

In his ruling, Judge Winmill upheld two post-fire salvage and restoration projects on the Idaho Panhandle National Forest [IPNF] - the Tower Fire Salvage Project, west of Priest Lake, and the Grizzly Fire Salvage and Restoration Project, on the North Fork of the Coeur d’Alene River. Both projects rise from the Panhandle’s disastrous 2015 wildfire season in which 47,500 acres were badly burned.

The Forest Service proposed salvaging 3,154 acres of fire-damaged or killed timber lost in the 27,000-acre Tower Fire, and 14,500 acres of similar timber from the 25,000-acre Grizzly Complex. Both salvage proposals emphasized removing still merchantable danger trees along roads and trails in the burned areas.

Time was of the essence, given the fact that fire-damaged trees deteriorate quickly, especially pine, which is quickly attacked by a fungus that stains the wood a bluish color that most lumber consumers dislike.

By January of 2016, the Forest Service had gathered sufficient information to send scoping letters describing both salvage proposals to about 550 people and groups in its planning universe, including the Alliance for the Wild Rockies.

The packet included notification that Panhandle Forest planners would be asking Forest Service Chief, Tom Tidwell, to approve their application for an Emergency Situation Determination [ESD] that would permit them to start work immediately.

Despite the time-sensitive nature of the proposed salvage work, Panhandle planners managed to squeeze in two public meetings and field trips to the project areas. The Idaho Panhandle Forest Collaborative – whose membership includes the Idaho Conservation League, the Lands Council Friends of Scotchman Peaks Wilderness, area lumbermen and outdoor recreation groups – took an active role in helping the Forest Service identify old growth groves that, though dead, could provide habitat for cavity-nesting birds and small mammals.

The Kootenai Tribe of Idaho and the Kootenai Valley Resource Initiative, another northern Idaho collaborative group, also voiced their support for both the Tower and Grizzly projects, largely because of planned restoration work.

Chief Tidwell approved ESD’s for Tower and Grizzly in May and June of 2016, well within the salvage logging window the Forest Service needed – important given that about 50 percent of the revenue the sales were expected to generate was earmarked for subsequent post-fire restoration work. Decision Notices, Findings of No Significant Impact [FONSI} and Environmental Assessments were issued in June 23 and June 30.

The Alliance sued almost immediately, alleging that the Forest Service had violated NEPA and the Administrative Procedures Act by failing to allow for public comment on the Tower and Grizzly EA’s, unlawfully issuing ESD’s, refusing to prepare an Environmental Impact Statement [EIS}, failing to assess the impacts on black-backed woodpeckers and making its decision before conducting EA’s.

Judge Winmill’s rejection of Alliance claims includes the customary boilerplate concerning legal standards and the likelihood of success on the merits of their claims, but his ruling reveals that he devoted considerable time to reading the fine print in the Forest Service’s proposal.

“With regard to the hazard finding for the Tower Project, the Forest Service estimated that within the 2,373 acres that occur along the roads that are proposed for danger tree removal, there are about one million dead trees,” Winmill wrote. “The agency concluded that these trees can fall at any time and posed a significant risk to the public and those working on reforestation projects.

“Alliance responds that removal of dead trees would occur even without the Projects because the no=action alternative in the EA’s provided for removal of the dangerous trees,” Winmill continued. “But this argument does not refute the Forest Service’s finding that the burned trees pose a hazard – if anything, it merely confirms the hazard, because they must be removed no matter whether the Projects are approved or not.”

Winmill also hit on the fact that the Alliance’s case “essentially invites the Court to micromanage the Forest Service, an invitation the Ninth Circuit rejected in Klamath Siskiyou Wildlands v Grantham, 2011 WL 1097749 [9th Cir. 2011]. There, an environmental group challenged an ESD and proposed an alternative method for minimizing safety hazards. The Circuit rejected the argument, holding that under the [APA], a court is not permitted to simply substitute its judgment for that of the agency.”

Winmill also sided with the Forest Service in its estimate that Grizzly project revenue losses would increase by 47 percent if the project were delayed until June of 2017 – and 55 percent on the Tower project, enough to make replanting impossible without a special congressional appropriation, which Winmill termed “a highly unlikely scenario.”

“Even these loss figures could be overly optimistic,” Winmill continued, “because they assume someone will file a bid to salvage the burned timber, an assumption that – at the time the ESD’s were issued – was shaky at best. Based on a survey of the market, the Forest Service concluded there was a real risk that no bids might be received.”

Winmill swept aside Alliance claims that the Forest Service could not proceed without giving the public a chance to comment on the EA before deciding how to proceed. “There is no requirement in every case that a draft EA be submitted for public comment before the final EA and FONSI are issued,” he wrote. “But the agency must offer significant pre-decisional opportunities for informed public involvement in the environmental review process by releasing sufficient environmental information about the various topics that the agency must address in the EA, such as cumulative impacts, before the EA is finalized.”

Clearly, Judge Winmill thought the Forest Service had done its legally required homework. The agency had, after all, sent scoping letters, “about 20 pages each,” to more than 500 interested parties, “detailing the scope of logging, and including maps of the Projects.”

The letters, which solicited comments from all 550 recipients, detailed the potential impacts of no salvage or restoration work in 10 categories: forest vegetation, local economies, fuels that could sustain wildfires, soils, hydrology and fish habitat, wildlife and wildlife habitat, rare plants, trails and recreation, and visual and cultural resources.

Winmill also set aside the Alliance’s claim that the Forest Service had not provided sufficient information about the projects to make substantive comment possible, especially as it concerned habitat for black-backed woodpeckers or the method of determining whether a tree scorched by the fire was dying. He wryly noted that the Alliance “had enough information to flag these issues for the Forest Service.”

Also rejected was the Alliance claim that the Forest Service should have prepared a more detailed EIS, which the agency felt would lead to a project-killing delay.

“This Court,” Judge Winmill explained, “must ask whether the agency has taken a hard look at the consequences of its proposed action, based on its decision on consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project’s impacts are insignificant.”

Again, Winmill thought the Forest Service had met every legal test. “In examining the context element, it is important that the logging will take place in a relatively small area,” he observed. “The Tower Project will only log about 13 percent of the acres burned, while the Grizzly Project will only log about 12 percent of the acres burned. The logged areas represent just 0.2 percent of the IPNF.”

In his concluding remarks, Winmill, a Democrat appointed to the Idaho Court by then President Bill Clinton in 1995, added a personal note that leaves no doubt about the fact that he, among many other judges, is beginning to grasp the relevance and significance of publicly-led efforts to more meaningfully address the underlying causes of the wildfire-driven collapse of western forest ecosystems.

“In the West, fuel and climate are combining to crease intense wildfires,” he wrote. “Fuels are increasing at an alarming rate as invasive plant species spread across the landscape, while at the same time climate change is lengthening the fire season. This means burnt timber is becoming a major feature of our National Forests.

“If trees can be logged simply because they burned, we will reap massive clear-cuts. But small projects, fully vetted and properly designed to mitigate impacts, may be valuable in reducing hazards and funding reforestation efforts. The Tower and Grizzly projects fit that mold.

“Under the particular facts of this case, the Court cannot find that Alliance has raised the serious questions necessary to obtain injunctive relief. For that reason, the court will deny Alliance’s motion.”

Judge Winmill, 61, is a fourth-generation Idaho farm boy. He grew on his family’s dairy and sugar beet farm near Blackfoot. He is a 1974 Idaho State University graduate and a 1977 Harvard Law graduate.

His 1995 appointment to the Idaho Court was supported by then U.S. Senators, Larry Craig and Dirk Kempthorne, both Republicans. He was appointed Chief Judge when Edward Lodge retired in 1999.