Kettle Range Conserv. Group v. U.S. Forest Serv.
| Decision Date | 10 July 2001 |
| Docket Number | No. CS-00-0031-JLQ.,CS-00-0031-JLQ. |
| Citation | 148 F.Supp.2d 1107 |
| Parties | KETTLE RANGE CONSERVATION GROUP; Leavenworth Adopt-A-Forest, Plaintiffs, v. UNITED STATES FOREST SERVICE; Harv Forsgren; Robert Vaught, Defendants. |
| Court | U.S. District Court — District of Washington |
Tom P May, Law Offices of Tom P May, Mark Edward Wilson, University Legal Assistance, Spokane, WA, for plaintiffs.
William Herbert Beatty, U.S. Attorney's Office, Spokane, WA, for U.S. Forest Service, Harv Forsgren, Robert Vaught and Rolando Ortega.
Galen George Barry Schuler, Perkins Coie, Seattle, WA, Robert A. Maynard, Perkins Coie LLP, Boise, ID, for Vaagen Bros. Lumber, Inc., Idaho Forest Owners Association, Intermountain Forest Association, Northwest Forestry Association, and Washington Farm Forestry Association.
Before the court is Plaintiffs' Motion for Summary Judgment (Ct.Rec.59), Defendant-Intervenor Vaagen Brothers Lumber's Motion for Summary Judgment (Ct. Rec.50), the Motion for Summary Judgment filed by all other Defendants ("the Federal Defendants") (Ct.Rec.46), and various related motions. The court held a hearing on these motions on June 25, 2001. Plaintiffs were represented by Mark Wilson. The Federal Defendants were represented by William Beatty and Val Black. The Defendant-Intervenor was represented by Robert Maynard and Rocco Trepiedi.
This case is on remand from the Ninth Circuit Court of Appeals for a consideration of the merits of the pending cross-motions for summary judgment. As explained in this court's earlier orders, this case concerns what is known as the Douglas-fir Bark Beetle Project (the "Project"), a timber harvest and restoration project adopted by the Colville National Forest (the "CNF") and the Idaho Panhandle National Forest. The Project is the response of the United States Forest Service (the "USFS") to an outbreak of the Douglas-fir bark beetle in Eastern Washington and Northern Idaho forests.
The Douglas-fir bark beetle is an insect that targets and kills Douglas firs by boring into the bark of a tree. The beetle lays eggs which hatch into larvae that tunnel around the tree, eventually girding and killing it. The beetle is native to this region but the beetle population is cyclical and prone to periodic "outbreaks" in which the population soars and large numbers of trees are killed.
Eastern Washington and Northern Idaho forests have suffered from such an outbreak. The ice and snow storms that swept over the region during the 1996-1997 winter severely damaged many trees, rendering them susceptible to beetle attack. By the summer of 1998, the USFS had identified a booming beetle population and a large number of dead or dying Douglas fir. In the winter months of 1998, it began preparing a Draft Environmental Impact Statement (the "Draft EIS") to address the problem.
The Draft EIS was released for public comment in January 1999. The Draft EIS set forth five different possible courses of action: the mandatory "no-action" alternative under which nothing would be done to respond to the outbreak, and five alternatives which offered various blends of timber harvest and restoration projects. After considering and responding to the comments of more than 200 individuals and organizations, the Federal Defendants issued the Final Environmental Impact Statement (the "FEIS") in June 1999. FEIS, II-1, II-2.
The FEIS contains seven alternatives, the five in the Draft EIS and two others that were added in response to public comments: a harvest/restoration alternative that would focus on protecting private lands from beetles and wildfire, and a "restoration-only" alternative that would involve the same restoration projects as other "action" alternatives but would eliminate the proposed logging element of the Project.
The FEIS analyzes the Project as it relates to both the CNF and the Idaho Panhandle National Forest. For the Newport Ranger District of the CNF and two districts of the Idaho forest, the FEIS analyzes the potential effects of the various alternatives on vegetation, sensitive plant species, watershed, fisheries, soil, fire, air quality, wildlife, recreation, scenery, and finances. Each district is analyzed separately. This case concerns only the Newport Ranger District of the CNF.
On June 11, 1999, Robert Vaught, the then-Forest Supervisor of the CNF issued a Rule of Decision ("the ROD") in which he adopted Alternative D of the FEIS for implementation in the CNF. Alternative D identifies 47 problem areas which the USFS had determined to be infested or likely to be infested by the bark beetle. Alternative D addressed those problem areas through a number of methods, including "selective" and "regenerative" harvest of over 4,600 acres, prescribed burning of another 3,269 acres, and treatment of fire fuel on 1,493 acres by "lopping and scattering" dead or dying trees. Much of the proposed harvest and treatment, however, was contingent upon whether the beetle actually spread to all of the areas that Federal Defendants predicted it would spread to. FEIS, II-16 to -19.
Alternative D also includes a number of restorative projects. On the harvested acres, the USFS would plant tree species that are resistant to the bark beetle and were historically predominant in the CNF, such as the white pine, western larch, and ponderosa pine. The USFS would also remove 8.8 miles of road in the CNF, reconstruct another 14 miles, and improve three stream crossings in order to lessen the impact on CNF watersheds. No new roads would be built as a result of the Project. FEIS, II-19.
Plaintiff Kettle Range Conservation Group, along with other organizations, appealed the decision to implement Alternative D to the Regional Forester. The appeal was denied on September 29, 1999. (Ct.Rec. 48, Tab A.)
In the months that have passed since the publication of the FEIS and ROD, Federal Defendants have determined that the bark beetle has not spread as quickly or as far as the FEIS anticipated. Accordingly, the Project has been scaled back considerably in the CNF. Federal Defendants have also made various adjustments to harvest methods, Project maps, and other items since the publication of that FEIS and the ROD. They have not, however, made the Project changes public through another draft EIS.
Plaintiffs filed suit in this court on February 1, 2000, alleging numerous violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370, and the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600-1612. Plaintiffs ask this court to either enjoin the Project's implementation in the CNF or to order the Federal Defendants to prepare a supplemental EIS that addresses the numerous changes made to the Project since its adoption in June 1999. (Second Amended Complaint, Ct.Rec. 43.)
Plaintiffs, Federal Defendants, and Defendant-Intervenor have each filed a cross-motion for summary judgment. At the first hearing on these motions, on June 7, 2000, this court expressed concern that Plaintiffs had not established standing. The court ordered supplemental briefing on the issue and did not reach the merits of the cross-motions. As part of their supplemental materials, Plaintiffs submitted additional declarations to establish standing. This court ruled that Plaintiffs were not entitled to submit the late declarations, that the prior declaration did not establish standing, and that therefore this court did not have jurisdiction over the case. Plaintiffs appealed the rejection of the additional declarations. The Ninth Circuit reversed this court on the issue of the admissibility of the additional declarations and remanded for further hearing on the cross-motions. The court has held that hearing and now...
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Case summaries.
...Inland Native Fish Strategy, 60 Fed. Reg. 43,758 (Aug. 23, 1995). (175) Kettle Range Conservation Group v. United States Forest Serv., 148 F. Supp. 2d 1107, 1127 (E.D. Wash. (176) Lands Council, 395 F.3d at 1019, 1036 (9th Cir. 2005). (177) Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3......