Cascade Forest Conservancy v. United States Forest Serv.
| Decision Date | 22 December 2021 |
| Docket Number | 3:21-cv-5202-RJB |
| Court | U.S. District Court — Western District of Washington |
| Parties | CASCADE FOREST CONSERVANCY, GREAT OLD BROADS FOR WILDERNESS, WASHINGTON NATIVE PLANT SOCIETY, SIERRA CLUB, DR. JOHN BISHOP, DR. JAMES E. GAWEL, and SUSAN SAUL, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant. |
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on Plaintiffs' Motion for Summary Judgment (Dkt. 18) and Defendant's Cross-Motion for Summary Judgment (Dkt. 30). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein. The Parties' request oral argument, but it is unnecessary to fairly decide the motions.[1] Plaintiffs bring this lawsuit challenging a planned action by the United States Forest Service under the Administrative Procedure Act. The challenged action intends to address the threat posed by a potential catastrophic breach of Spirit Lake near Mount St Helens in Washington State. It involves building a temporary access road to reach Spirit Lake, and then using crews and machinery to do geotechnical drilling and maintenance work. For the reasons set forth in this Order, the Forest Service complied with the Administrative Procedure Act when crafting its plan, and Plaintiffs' claims should be dismissed.
The eruption of Mount St. Helens in 1980 was a “transformative event.” AR 02980.
Debris from the blast and subsequent volcanic flows destroyed forested landscape, river channels, bridges, roads, and other infrastructure for hundreds of kilometers. Id. It killed at least 57 people, caused over $1 billion in damage, and completely transformed the surrounding landscape. Id.; AR 02982. This incredible event and its unique geological setting prompted Congress to make it a national monument in 1982. AR 00695. The Mount St. Helens National Volcanic Monument (Monument) exists “to protect distinctive features and processes for public education, interpretation and recreation, and for research.” AR 00448.
Spirit Lake sits within the Monument - just north of Mount St. Helens and well within the zone that experienced “a massive debris avalanche.” Id. Avalanche debris both filled the bottom of Spirit Lake, raising the lake level by about two-hundred feet, and created a dam blocking its natural outlet. Id.; AR 03380. By August 1982, the lake level reached alarming levels and was predicted to breach the top of the debris blockage in or before December 1985.
AR 03082. Current estimates are that, among other things, AR 05547. Such an event would again transform the area and would likely lead to loss of life and enormous economic damages. AR 03029.
To prevent such a breach, the United States Army Corps of Engineers “implemented an emergency pumping operation in November 1982, ” consisting of “barge-mounted pumps to pump lake water through a conduit buried across the debris blockage.” AR 03028. For a more permanent solution, the Corps then bored “a 2600-m (8, 500-ft) long tunnel extending from the west side of Spirit Lake through Harry's Ridge and into the valley of South Coldwater Creek.” Id. “Despite the overall success of the existing tunnel, major repairs in 1995, 1996, and 2016 required extended closures of the tunnel gate and outlet flow, which allowed the lake to rise to the maximum safe operating level.” AR 05543.
Due to deterioration of the tunnel infrastructure over the decades, the Forest Service decided it must act “to ensure the protection of public safety, health, property, and the environment from a catastrophic breach of the Spirit Lake natural debris blockage caused by the 1980 debris avalanche.” AR 05544. In took the first step in 2018, by providing motorized utility-terrain vehicle access to the lake shore (2018 UTV Project) for tunnel operations and maintenance. AR 05543; see AR 03873-889. The second step involves geotechnical investigation and core sampling, something the Forest Service believes is important to “better understand the geologic structure of the debris blockage and what might happen if the blockage began to breach and/or its potential suitability as a location for an alternative outflow for Spirit Lake.” AR 04043. Forest Service leadership, however, decided it needed to do more analysis about potential impacts, and it did that throughout 2019. Id. Informed by the 2018 UTV Project, the Forest Service also learned that the tunnel inlet structure needed repairs. AR 05544. The project at issue incorporates both geotechnical investigation and intake structure repairs. AR 05536-618.
In April 2020, the Forest Service issued an Environmental Assessment (EA) for the Spirit Lake Tunnel Intake Gate Replacement and Geotechnical Drilling Project (the Project). AR 05536-618. The EA explores different possible actions, but the alternative ultimately selected proposes building a temporary access road primarily along the route used by the U.S. Corps of Engineers during construction in the 1980s. See AR 05562 (discussing the selected proposal as “Alternative B”); AR 06283-324 (Decision Notice). This route is currently a hiking path known as the Truman Trail. AR 05585. The Truman Trail, and by extension the temporary access road, runs through an area called the Pumice Plain. The Pumice Plain is the “[s]ingle [m]ost important site on the [M]onument.” AR 04502. It was completely destroyed by the 1980 eruption, and its development has helped researchers “document how biological communities assemble from scratch.” See id.
To assess potential impact on the Pumice Plain by the temporary access road, the Forest Service calculated a disturbance corridor and considered probable effects. AR 05556, 06296. Researchers considered a ground disturbance corridor of 33 to 100 feet from the proposed centerline. Id. Considering that the road will be about sixteen-feet wide, single-lane with periodic turnouts and turnarounds, the disturbance corridor will be 66 to 200 feet for the length of the approximately 3.4-mile road. Id. The road will include culverts or bridges to separate flowing water from the road surface and geosynthetic material to avoid contamination and minimize disturbance to streambeds. Id. It will also “where possible” avoid and protect key research areas. AR 06303. Nonetheless, effects from building and use of the road will include removal of minor amounts of vegetation, increased sediment delivery at stream crossings, and potential increased erosion or stream widening. AR 6114. The road will be removed at the end of the Project and the area rehabilitated by removing non-native material, restoring natural ground contours and drainage patterns affected by Project work, and revegetating the area. See AR 06297, 05561.
To do geotechnical investigation and core sampling, the Forest Service will construct a barge loading facility on the shoreline of Spirit Lake and a staging area upland, with the temporary access road connecting the two. AR 06296. About three to five drilling vehicles and 30 onsite personnel will be used to do core sampling. AR 06297. Drilling will occur at about 30 locations within the footprint of drilling that occurred in 1982-83. Id. Some mud and water will be disturbed and disposed of by drilling operations. Id. The Forest Service will also do rehabilitation work in these areas after the Project is complete. Id.
As previously noted, Spirit Lake and the Pumice Plain fall within the Mount St. Helens National Volcanic Monument. The Forest Service manages the Monument “as a separate unit within the boundary of the Gifford Pinchot National Forest in accordance with the appropriate laws pertaining to the national forest system....” AR 00079. To administer the Monument, the Forest Service adopted its Comprehensive Management Plan in 1985. AR 00436-43.
The Monument Plan, which is incorporated into the Land and Resources Management Plan for the larger Gifford Pinchot National Forest, AR 00941, designates the Pumice Plain as a Class 1 Research Area. AR 06290. The Monument Plan, the Forest Plan, and the designation as a Class 1 Research Area all set standards and guidelines for activities within the Pumice Plain. See AR 06287-89. In addition, the Pumice Plain falls within the habitat range of the Northern Spotted Owl, which means activities in it must comply with the Northwest Forest Plan. See AR 06289.
The Forest Service assessed whether the Project would comply with these regulations and found that it would except for a provision requiring visual quality retention within the Monument. See AR 06294, 06283-324 (Decision Notice). The Forest Service issued a Projectspecific amendment to the Monument Plan to allow deviation from the visual quality objective in the area and for the duration of the Project. AR 06294.
Plaintiffs bring this lawsuit seeking a declaration that the Spirit Lake Project Environmental Assessment, AR 05536-618, Decision Notice, AR 06283-324, and Finding of No Significant Impact AR 06326-34, violate the National Forest Management Act, the National Environmental Policy Act, and the Administrative Procedure Act. Both Parties move for summary judgment on...
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