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August 23, 2012

Forest Service’s EIS for Experimental Forest Thinning, Fuels Reduction, and Research Project Satisfied NEPA.

League of Wilderness Defenders – Blue Mountains Biodiversity Project v. United States Forest Service [Ninth Circuit Court of Appeals No. 11-35451, filed 7/30/12]

By Andrea A. Matarazzo

The U.S. Forest Service adopted an “Experimental Forest Thinning, Fuels Reduction, and Research Project” in the Deschutes National Forest in the eastern Cascades of central Oregon.  The project allows logging and controlled burning on roughly 2,500 acres of the Pringle Falls Experimental Forest.  The purposes of the project are to (1) reduce the risk of wildfire and beetle infestation; and (2) to conduct research on ponderosa pine forest management.

The League of Wilderness Defenders–Blue Mountains Biodiversity Project (“League”) sued the Forest Service alleging that the agency’s environmental impact statement (“EIS”) for the Project failed to comply with the National Environmental Policy Act (“NEPA”).  The district court granted summary judgment to the Forest Service, relying in part on the fact that the project involves research in an experimental forest, and the Ninth Circuit Court of Appeals affirmed.

The League first argued that the EIS stated “an unreasonably narrow purpose and need” and incorporated “rigid implementation” of the proposed Study Plan.  The League contends that, as a result of the narrowness of the stated purpose and need, only a single alternative—the Study Plan—could satisfy them.  The court noted, however, that the statement did not incorporate the specifics of the Plan’s proposed experiment.  Rather, the statement referred to the Plan because it contained an extensive discussion of the agency’s research objectives and working hypotheses.  Citing Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 812–813 (9th Cir.1999) (per curiam), the court observed that a statement of purpose and need may “appear too narrow” when read in isolation, but ultimately is reasonable because it “expressly incorporates” broader objectives.  As in Muckleshoot, some language in the EIS, when read in isolation, suggested that the statement of purpose and need contemplated implementation of the Study Plan.  When read in context, however, these and similar statements were directed to the six research questions and objectives described in the Plan, rather than to any rigid implementation of the specifics of the Plan.  Given the purpose of the underlying enabling statute, the project’s location in an experimental forest, and the “considerable discretion” afforded to agencies in this area, the appellate court found that the EIS’s statement of purpose and need was reasonable.

The League also challenged the agency’s range of alternatives in the EIS, arguing that the Service failed to consider in detail a reasonable alternative that would have retained, either throughout the project area or within certain subareas, all trees greater than 21 inches in diameter.  The EIS explained that the Service briefly considered the League’s proffered alternative, but eliminated it from detailed study because modeling indicated that retaining all trees greater than 21 inches in diameter would not achieve the targeted stand densities and thus not fulfill the project objectives.  Under prior case law, the court explained, agencies need not consider in detail proposed alternatives that fail to meet specifically identified targets or densities.  Further, the 21–inch–diameter–limit alternative would not fulfill the research purpose of the project.  The diameter-limit alternative would not yield statistically valid comparative data among the areas specified for different densities of logging.  Again, given the research purpose of the project and its location in an experimental forest, the agency need not consider in detail an alternative that would not provide the research data it sought to obtain.

The League also argued that the agency should have considered in detail an alternative that would retain all trees greater than 12 inches in diameter. The 12–inch–diameter–limit alternative was rejected, however, because it would not achieve the risk-reduction purpose of the Project.  The EIS explained that “[t]hinning only the smallest trees would not reduce stand density enough to reduce the risk of insect and disease-caused mortality.” Accordingly, the EIS did not have to consider this alternative in detail.

Next the League made three arguments under the heading of “scientific integrity”: (1) the EIS overstated the risk of beetle infestation, (2) it overstated the risk of wildfire, and (3) it failed to acknowledge that greater tree mortality would occur under the project than under the no-action alternative.  The court rejected these claims and held that the EIS did not lack scientific integrity or misrepresent scientific literature, and the agency’s use of the terms “imminent” and “catastrophic” in the EIS was not arbitrary and capricious or an abuse of discretion.  The court further found that the lack of citation in the EIS to specific scientific evidence supporting the assertion of a “high and increasing probability” that trees in the subject forest management unit would face a “large stand-replacing event” was not arbitrary and capricious or an abuse of discretion.  Likewise, the court concluded that the risk-reduction goal in the EIS that was not solely to save trees in the project area but rather to protect those trees for ongoing research was not arbitrary and capricious or an abuse of discretion.

Finally, the League argued that the EIS failed to adequately consider (1) the project’s impacts on overall tree mortality and on wildlife species that depend on standing dead trees; and (2) the project’s impacts on snag-dependent wildlife.  Snags are standing dead trees greater than 10 feet tall and 10 inches in diameter.  Several important species of woodpecker, as well as other birds and small mammals, rely on snags for nesting and other habitat.  The court rejected both of these claims and concluded that the information in the EIS was sufficient to satisfy NEPA’s requirement to take a “hard look” at impacts of the project on overall tree mortality as well as impacts on wildlife species that depend on standing dead trees.  The court summarized its analysis of the issues as follows:

The Service proposes a forest management research project in an experimental forest specifically set aside for such study. The EIS considers in detail a reasonable range of alternatives that would fulfill both of the Project’s goals by reducing the risk of wildfire and beetle infestation, and by addressing six specified research objectives. The EIS is adequately supported by scientific data and takes a hard look at the significant impacts of the Project.

As such, the EIS was adequate under NEPA and the district court’s decision was affirmed.

 

Authored by:  Andrea A. Matarazzo

Andrea’s practice focuses on land use law and related environmental issues in California and the western United States.  She assists developers, business owners, and public agencies in all aspects of project permitting and entitlements, environmental compliance, and litigation, particularly in connection with environmental review under CEQA and NEPA.  Her practice includes planning and zoning law, endangered species regulations, air quality, water supply and water quality mandates, wetlands, and other regulatory requirements.

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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