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Alliance for Wild Rockies v. Farnsworth

United States District Court, D. Idaho

May 1, 2017

ALLIANCE FOR THE WILD ROCKIES, Plaintiff,
v.
MARY FARNSWORTH, Forest Supervisor, Idaho Panhandle National Forest, LEANNE MARTEN, Regional Forester of Region One of the U.S. Forest Service, THOMAS TIDWELL, Chief, United States Forest Service, an agency of the U.S. Department of Agriculture, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief Judge.

         INTRODUCTION

         The Court has before it a motion for injunctive relief filed by plaintiff, the Alliance for the Wild Rockies. Alliance seeks to enjoin two logging projects in northern Idaho. For the reasons discussed below, the motion is denied.

         FACTUAL BACKGROUND

         The Idaho Panhandle National Forests (IPNF) encompass almost 2.5 million acres in northern Idaho and a small portion of Washington. In 2015, wildfires burned 47, 500 acres in the IPNF. Following the fires, the Forest Service sought to restore the forest and allow logging in the burned area. Two of those restoration projects are at issue here: (1) the Tower Fire Salvage Project, comprised of 3, 154 acres of burned area located six miles west of Priest Lake, Idaho, and (2) the Grizzly Fire Salvage and Restoration Project, comprised of 14, 500 acres of burned area in Shoshone County, Idaho. Id.

         The Tower Project aims to salvage merchantable dead or dying trees to (1) protect the health and safety of the public; (2) restore areas burned by the Tower Fire; and (3) recover the remaining economic value of the timber. The project will remove “danger trees” on 52 miles of road, 8 miles of hiking trails, and 17 miles of snowmobile trails in the burned area. According to the Forest Service, the project will also reduce future fire severity by reducing the fuel in the area. The Forest Service plans to restore the forest by replanting native trees to reestablish desired forested conditions.

         The Grizzly Project will remove trees that could be a safety hazard along 27 miles of forest roads, restore burned areas with desired tree species, and allow logging in about 1, 700 acres burned area. Id. at 4. There will also be additional maintenance and reconstruction of existing roads as part of the project.

         The Forest Service began receiving public input on the projects in October 2015 when they posted information on the projects on the Forest Service website. See Scaife Declaration (Dkt. No. 14-2) at ¶ 16. In late January, 2016, the Forest Service sent two letters - identified as scoping letters - that described in detail the projects. The scoping letter describing the Grizzly Project was sent to about 330 interested parties, id. at ¶ 17, and the scoping letter describing the Tower Project was sent to about 225 interested parties. See Environmental Assessment for Tower Project (Dkt. No. 8-10) at p. 9.

         The scoping letters included a detailed description of the fires' impacts, the reasons why the Forest Service wanted to conduct salvage logging, and a notice that the Forest Service would be seeking to expedite the projects through an Emergency Situation Determination (ESD). They explained that if the ESD was granted, it would authorize immediate implementation of the projects once the agency had decided to proceed. The letters concluded by asking for public comment. Alliance received these letters and filed comments on the Projects. In addition to these letters, the Forest Service held two public meetings during the comment period and organized field trips to the project sites. Id.

         The Panhandle Forest Collaborative (PFC) was one of the groups that filed public comments on the Tower Project. The PFC includes conservation groups (Idaho Conservation League, The Lands Council, & Friends of Scotchman Peaks Wilderness), government groups (Bonner County), timber interests (Idaho Forest Group & Mike Reynolds Logging) and recreation groups (Sandpoint Winter Riders & Panhandle Riders Association). Forest Service officials met with the PFC to address their concerns. See Knight Declaration (Dkt. No. 14-1) at ¶ 9. The PFC recommended against salvaging timber from any old growth stands, and encouraged the Forest Service to reduce the amount of temporary road construction. See Brief (Dkt. No. 25) at p. 2. The Forest Service followed these recommendations, reducing the temporary road construction from 4.6 miles to 1.2 miles, and deciding not to harvest 800 acres of old growth timber. Id. Because the Forest Service made these changes, the PFC supports the Tower Project. Id.

         The Kootenai Tribe of Idaho was also monitoring the two Projects. The Tribe helped create, and actively participates in, the Kootenai Valley Resource Initiative (KVRI), a collaborative group including the City of Bonners Ferry, Boundary County, environmental groups, and representatives of business and industry. See Brief (Dkt. No. 28-1) at p. 6. Forest Service officials met with Tribal representatives and members of the KVRI to listen to their comments on the Projects. See Knight Declaration (Dkt. No. 14-1) at ¶ 9. The Tribe has previously been involved in forest restoration efforts in the IPNF, and both the Tribe and the KVRI support the Tower and Grizzly Projects largely because of the restoration work planned in both Projects. Id.

         Other public comments were critical of logging in riparian areas. See Knight Declaration (Dkt. No. 14-1) at p. 6. The Forest Service responded by excluding those areas from logging. Id.

         As mentioned, the scoping letters noted that the Forest Service was seeking an ESD on both projects. Without an ESD, logging would not begin immediately upon the Forest Service's final approval of the Projects because the agency must await a 90-day period to allow the public to make any objections to the final decision. Because of the short season for logging due to harsh winters, a delay to allow the 90-day objection period to run could push the logging into the summer of 2017. See ESD Decision Memorandum (Dkt. No. 8-15) at pp. 1-3. During this delay, the burned trees would deteriorate, making them less valuable, and reducing the revenue needed for the reforestation efforts. Id. This lost revenue was estimated to be $2.7 million for the Tower Project and $927, 911 for the Grizzly Project. See ESD Request - Tower Project (Dkt. No. 8-16) at p. 21; ESD Request - Grizzly Project (Dkt. No. 14-7) at p. 18. These would be significant losses: About 50% of the revenue from the timber sales was to be used to fund the reforestation efforts. Id. Delay would also mean that hazards like tree falls would continue, threatening the public and workers engaged in reforestation. Id. at p. 1.

         Taking all of this into account, the Chief of the Forest Service issued an ESD for the Grizzly Project on May 13, 2016, see ESD (Dkt. No. 8-14), and an ESD for the Tower Project on June 2, 1016. See ESD (Dkt. No. 8-15). The Forest Service then issued Decision Notices, Findings of No Significant Impact, and Environmental Assessments for the Tower and Grizzly Projects on June 23, 2016, and June 30, 2016, respectively. See EA (Tower Project) (Dkt. No. 8-10); EA (Grizzly Project) (Dkt. No. 8-4).

         Alliance brought this action to halt the logging. It argues the Forest Service violated NEPA, the Appeals Reform Act, and the APA by (1) failing to allow a public comment period for the Projects' EAs; (2) unlawfully issuing ESDs for the Projects; (3) refusing to prepare an Environmental Impact Statement (EIS); (4) failing to address the Projects' impacts on the black-backed woodpeckers; and (5) arriving at a decision even before conducting the EAs.

         The Court will consider these challenges after reviewing the governing legal standards.

         LEGAL ...


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