Idaho Conservation League v. Thomas

Citation91 F.3d 1345
Decision Date06 August 1996
Docket NumberNo. 95-36293,95-36293
Parties26 Envtl. L. Rep. 21,650, 96 Cal. Daily Op. Serv. 5822, 96 Daily Journal D.A.R. 9501 IDAHO CONSERVATION LEAGUE; and The Wilderness Society, Plaintiffs-Appellants, v. Jack Ward THOMAS, in his official capacity as Chief of the United States Forest Service; Dan Glickman, in his official capacity as Secretary of the U.S. Department of Agriculture; and United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants-Appellees, and Intermountain Forest Industry Association, Intervenor-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Kristen L. Boyles, Sierra Club Legal Defense Fund, Seattle, Washington, for the plaintiffs-appellants.

Monica P. Medina, Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Bruce M. Smith, Rosholt, Robertson & Tucker, Boise, Idaho, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. CV-95-00425-EJL.

Before: LAY, * FERGUSON, and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

OVERVIEW

The Idaho Conservation League and The Wilderness Society (ICL) appeal from the district court's summary judgment in favor of Jack Ward Thomas, Chief of the United States Forest Service, in its action seeking a permanent injunction preventing the Forest Service from proceeding with the Thunderbolt timber salvage sale. We affirm the judgment of the district court.

FACTS AND PRIOR PROCEEDINGS

The Thunderbolt timber salvage sale is located in the South Fork Salmon River (SFSR) drainage in the Boise and Payette National Forests in central Idaho. Historically, the river was the single largest producer of spring/summer chinook in the Columbia River Basin. However, since the 1950s, the drainage has suffered severe erosion and stream sedimentation caused by mining, grazing, logging, and associated road building. This degradation has been exacerbated by the geological formation underlying the drainage, the Idaho Batholith, which is characterized by steep, highly dissected topography and shallow soils. As a consequence, the spring/summer chinook population has suffered a drastic decline.

State and federal agencies took action to correct the problems in the SFSR. In the late 1980s, the Forest Service convened a group of scientists, timber industry officials, federal and state agencies, Indian tribes, and environmental organizations to develop a management plan for the SFSR. The group developed a set of management guidelines (South Fork Guidelines) which the Forest Service incorporated into the Payette and Boise National Forest Land Resource Management Plans (LRMPs) in 1988 and 1990, respectively.

The South Fork Guidelines established an interim fine sediment objective with a goal of fishable populations by 1997 and set forth an aggressive restoration and monitoring program. Under the guidelines, any new major land-disturbing actions are prohibited until restoration actions have improved in-river conditions. The guidelines also considered the effects of fire and the appropriate response:

Impacts from a fire, or other natural events may be unavoidable and stabilizing the source of natural disturbance is not always biologically desirable for aquatic ecosystems. More important is maintaining natural stream dynamics.

The SFSR was identified as a Stream Segment of Concern by the Idaho Division of Environmental Quality. This designation occurred because the beneficial uses of salmonid spawning and cold water biota were impaired by poor water quality. In a related action, the SFSR was designated as Water Quality Limited under § 303(d) of the Clean Water Act because it failed to meet water quality standards. In 1992 the Environmental Protection Agency (EPA) set Total Maximum Daily Loads (TMDLs), which limit sediment discharges into the South Fork Salmon River. The purpose of the TMDL is to improve spawning and rearing habitat by reducing sediment load caused by human activities. The TMDL sets a goal of 25% reduction in the sediment load attributable to human activities.

The Snake River spring/summer chinook salmon was listed under the Endangered Species Act as a threatened species in 1992, and subsequently listed to endangered in 1994. The South Fork Salmon River provides critical habitat, as designated by the National Marine Fisheries Service (NMFS), for the Snake River spring/summer chinook.

In 1994 wildfires burned over 150,000 acres in the SFSR drainage. In particular, the Thunderbolt wildfire burned 18,827 acres. According to the Forest Service, the magnitude and extent of the wildfires experienced in the summer of 1994 were significantly greater than what they had anticipated.

The Forest Service initiated an assessment of effects of the fires and possible responses, and proposed the Thunderbolt Wildfire Recovery Project, which includes the Thunderbolt timber salvage sale. The purpose of the Thunderbolt sale is:

to improve the long term fish habitat, rehabilitate existing sediment sources, improve hydrologic conditions of affected watershed, protect long term soil productivity, promote revegetation of trees on burned acres, and recover the economic value of dead and imminently dead trees as a means of financing the ecosystem restoration and sediment reduction projects.

In March of 1995, the Forest Service issued its Draft Environmental Impact Statement (DEIS) and biological assessment for endangered species of fish and wildlife, as The Project's proposed alternative, particularly the component that proposed the Salvage Sale to finance recovery actions, drew harsh and substantial criticism from the other federal agencies having jurisdiction over the resource: the Environmental Protection Agency (EPA), the National Marine Fisheries Service (NMFS), and the U.S. Fish and Wildlife Service (USFWS) and the Idaho Department of Fish and Game. In the unanimous opinion of these agencies, the environmental risks posed by using salvage logging to finance restoration projects were too great to render the Project acceptable.

required by 1 Section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2). The response of other state and federal agencies to the proposed salvage was almost uniformly negative. As stated by the district court in its thorough memorandum decision and order:

The EPA recommended against the Project, noting that the proposed action was inconsistent with collective agency decisions and resource protection goals for the South Fork Salmon River watershed. The EPA concluded that the logging sale would further aggravate the already critically degraded habitat for threatened salmon. NMFS also strongly opposed the Project, concluding that the Recovery Project, and the logging activity in particular, will likely jeopardize the continued existence of the endangered salmon and will likely result in the destruction or adverse modification of their critical habitat. The USFWS similarly opposed the salvage sale on the ground that it would likely result in adverse impacts to fish and wildlife. The USFWS opined that the proposed salvage actions would generate additional sediment in the already-impacted watershed, negating or delaying the benefits from the restoration actions. The Idaho Department of Fish and Game also criticized the proposal to use logging to fund restoration projects.

Idaho Conservation League v. Thomas, 917 F.Supp. 1458, 1461-62 (D.Idaho 1995).

The Forest Service considered and responded to the concerns expressed by these agencies, particularly EPA and NMFS. In addition, the Forest Service convened a panel 2 of its own experts to "review the scientific merit of the material presented on sediment yield, sediment routing, and fisheries habitat" in the DEIS. While the panel concluded that the Forest Service used "the best analytical methods available for estimating erosion and sediment delivery," the panel was "unable to conclude that the analysis performed could support the conclusion of long term improvement in the spawning and rearing habitat of anadromous fish," and made recommendations for improving the analysis.

The Forest Service responded to the panel's recommendations and revised its DEIS (as reflected in the FEIS) to incorporate the additional data and analysis suggested. The panel reviewed the changes and, on September 1, 1995, concluded in a memorandum that the revisions in the FEIS responded to its major recommendations.

On September 12, 1995, the Forest Service released its FEIS. On October 5, 1995, the Forest Service issued its record of decision (ROD), stating that it planned to proceed with the Thunderbolt sale under a modified version of the...

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