Friends River v. Probert

• Decision Date: 06 December 2019
• Docket Number: Case No. 3:18-cv-00465-DCN
• Citation: 427 F.Supp.3d 1239
• Parties: FRIENDS OF the RAPID RIVER, et al., Plaintiffs, v. Cheryl PROBERT, et al., Defendants.
• Court: U.S. District Court — District of Idaho

427 F.Supp.3d 1239

FRIENDS OF the RAPID RIVER, et al., Plaintiffs,

v.Cheryl PROBERT, et al., Defendants.

Case No. 3:18-cv-00465-DCN

United States District Court, D. Idaho.

Signed December 6, 2019

Thomas J. Woodbury, Pro Hac Vice, Missoula, MT, Katheryn Anne Bilodeau, Moscow, ID, for Plaintiffs.

John P. Tustin, Krystal-Rose Perez, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER

David C. Nye, Chief U.S. District Court Judge

I. INTRODUCTION

Pending before the Court is Plaintiffs Friends of the Rapid River and Friends of the Clearwater's (collectively "Plaintiffs") Motion for Summary Judgment (Dkt. 16), as well as Defendants Cheryl Probert and Victoria Christiansen's (collectively "Defendants" or the "Forest Service") Motion for Summary Judgment (Dkt. 18). Plaintiffs have also filed a Motion to Supplement Extra-Record Evidence. Dkt. 20.

The Court held oral argument on July 9, 2019, and took the motions under advisement. For the reasons outlined below, the Court finds good cause to GRANT Defendants' Motion for Summary Judgment, DENY Plaintiffs' Motion for Summary Judgment, and DENY Plaintiffs' Motion to Supplement Extra-Record Evidence.

II. BACKGROUND

A. Factual Background

The United States Forest Service ("Forest Service") is an agency under the United States Department of Agriculture and is responsible for managing the 4 million-acre Nez Perce-Clearwater National Forests located in north-central Idaho.¹ One of the Forest Service's objectives is to sustain the health, diversity, and productivity of the forests it manages. This can take many forms, but one form, pertinent to the present case, is the Forest Service's authority to implement projects designed to reduce the risk of insect or disease infestation and increase the resilience of forest land to future catastrophic wildfires.

On February 7, 2014, President Barack Obama signed The Agricultural Act of 2014 (the "2014 Farm Bill"), an amendment to the Healthy Forests Restoration Act ("HFRA") of 2003. Most projects under HFRA must comply with the review requirements of the National Environmental Policy Act ("NEPA") in that the Forest Service must prepare certain reports and assessments, allow a period of public comment, and investigate reasonable alternatives to the proposed projects. 16 U.S.C. § 6514(b).

That said, the purpose of HFRA is to prioritize projects intended to address the threats to forest health posed by catastrophic wildfire, disease, and insect infestation. See, e.g. , H.R. REP. No. 108-96, pt. 1, at 3 (2003). Recognizing the "extraordinarily lengthy procedural and documentation requirements that federal land managers face" as an obstacle to completing urgent forest health work, Congress included in HFRA numerous procedures designed to reduce the burden of NEPA analyses. Id. These include expedited NEPA procedures for specified hazardous fuel reduction projects, 16 U.S.C. § 6514, and a categorical exclusion from NEPA for specified silvicultural treatments, id. § 6554(d). In short, there are limited and specific exceptions to the general requirements that HFRA projects comply with the review requirements of NEPA.

For context, a brief history of NEPA is helpful. Congress enacted NEPA, 42 U.S.C. §§ 4321 - 4370m-12, to establish a process for federal agencies to consider the environmental impacts of major federal actions. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council , 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). NEPA imposes procedural, rather than substantive requirements, and it is "well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ; see also Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1051 (9th Cir. 2012). Regulations promulgated by the Council on Environmental Quality ("CEQ"), 40 C.F.R. §§ 1500-1508, provide guidance for implementation of NEPA and are entitled to substantial deference. Robertson , 490 U.S. at 355, 109 S.Ct. 1835.

Forest Service actions that directly affect the physical environment are generally subject to NEPA and—pursuant to regulations promulgated by the Forest Service and CEQ—are analyzed in either an environmental impact statement ("EIS"), an environmental assessment ("EA"), unless it falls under a categorical exclusion ("CE"). See 40 C.F.R. §§ 1500.1 - 1508.28 ; 36 C.F.R. § 220.6. CEs are classes of actions that "do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency...." 40 C.F.R. § 1508.4.

Under NEPA, federal agencies must prepare an EIS for "major Federal actions significantly affecting the quality of the human environment...." 42 U.S.C. § 4332(2)(C). To determine whether an action requires an EIS, the agency may prepare an EA, which is a "concise" analysis that may result in a finding of no significant impact ("FONSI"). 40 C.F.R. § 1501.4(b). "If the agency concludes there is no significant effect associated with the proposed project, it may issue a FONSI in lieu of preparing an EIS." Envtl. Prot. Info. Ctr. v. U.S. Forest Serv. , 451 F.3d 1005, 1009 (9th Cir. 2006).

Notably, NEPA does not apply to federal actions that Congress has explicitly exempted from the statute's requirements. See, e.g. , 36 C.F.R. § 220.4(a)(4) (indicating that proposed actions are not subject to NEPA when they are "statutorily exempt"). For example, Section 602 of the 2014 Farm Bill provides that state governors may designate certain treatment areas for immediate consideration in order to address insect or disease threats.

This 2014 Farm Bill CE for forest resilience projects specifically legislates an exemption from the environmental analysis and public involvement requirements of NEPA for insect or disease infestation reduction projects up to 3,000 acres in size in designated areas. In other words, if the projects falls within specified parameters, the Forest Service is not required to produce a detailed environmental impact statement under NEPA. 16 U.S.C. § 6591b.

The 2014 Farm Bill CE authorizes the Forest Service to first designate landscape-scale treatment areas where there is declining forest health from insect or disease infestation, and then it conditionally permits the Forest Service to undertake treatment projects of up to 3,000 acres in size in these designated areas. To qualify for the legislative exemption, such projects must "maximize[ ] the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees promote stands² that are resilient to insects and disease" and, "consider[ ] the best available scientific information to maintain or restore the ecological integrity, including maintaining or restoring structure, function, composition, and connectivity." 16 U.S.C. § 6591b(b)(1)(A)–(B).

In 2014, the Governor of Idaho wrote a letter asking the Secretary of Agriculture to designate certain landscape-scale treatment areas within the National Forest System lands in Idaho that were at high risk of insect and disease mortality. The Governor identified more than 1.8 million acres for priority treatment, and observed that multiple agencies, organizations, and citizens contributed to this collaborative effort to propose treatment areas. As a result, the Chief of the Forest Service designated these areas as "landscape-scale insect and disease areas" prioritized for treatments under HFRA. Portions of the Nez Perce-Clearwater National Forest, such as the Windy-Shingle Project area, were included in these designations.

The Forest Service identified the need to reduce the risk of insect and disease infestation as well as reduce the threat of wildfire to the local communities and surrounding federal land in the Windy-Shingle Project (the "Project") area. Consequently, the Forest Service initiated the Project in September 2016, to address forest health and hazardous fuel concerns. According to the Forest Service, the authorized treatments projects it plans to undertake in the 2,709 acres of the 24,000-acre Project area will move the area toward desired plant/tree stand conditions and help create a healthier and more resilient landscape.

In an October 2017 Decision Memorandum (the "Decision") approving the Project, the Forest Service authorized timber harvest on 2,510 acres, all of which are located in areas designated by the Forest Service as areas suitable for timber management. The authorized timber harvest consists of 1,304 acres of intermediate harvest and 1,206 acres of regeneration harvest. Intermediate harvest, or thinning, will remove smaller trees that are diseased or dead and focus on areas where the growth of western larch or ponderosa pine can be enhanced or maintained. Regeneration harvest will create a new age class of preferred and more resilient species, with the exception of single or patches of trees left as shelterwood or seed trees in certain treatment areas.

In addition to timber harvest, the Project authorizes fuel treatments to reduce hazardous fuel loads. The Forest Service's Windy-Shingle Project Decision (the "Decision Memorandum") authorizes a fuel break of approximately twenty-nine acres adjacent to private land. This fuel break is intended to slow advancing fires and provide firefighters with improved access and safety in the event of a wildfire. The Decision Memorandum also authorizes prescribed burning on approximately 126 acres to consume surface fuels and ladder fuels (firefighting terms for live or dead vegetation that allows a fire to "climb" up from the forest floor to the canopy) without impacting the canopy. Finally, the Forest Service will apply rehabilitation treatments to one forty-four-acre unit consisting of non-commercial-sized Grand fir and Douglas fir pole timber infested with mistletoe. These stands will be...