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Friends of Clearwater v. Probert

United States District Court, D. Idaho

May 31, 2017

FRIENDS OF THE CLEARWATER, Plaintiff,
v.
CHERYL F. PROBERT, in her official capacity as Nez Perce-Clearwater Forest Supervisor; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendants, and IDAHO ASSOCIATION OF COUNTIES, an Idaho Non-Profit Corporation; and IDAHO GOVERNOR C.L. “BUTCH” OTTER; Defendants-Intervenors.

          MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOCKET NO. 26)

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge.

         Now pending before the Court is Plaintiff's Motion for Preliminary Injunction (Docket No. 26). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the undersigned enters the following Memorandum Decision and Order:[1]

         SUMMARY OF DECISION

         The purpose of the Orogrande Protection Project is to enhance public safety and to protect private homes and structures from wildfire in the Orogrande community, located in a remote region of Idaho County. In this lawsuit, the Plaintiff Friends of the Clearwater seeks to enjoin those activities of the Orogrande Project intended to occur within the West Fork Crooked River Inventoried Roadless Area (“IRA”). The issue became time-sensitive when the Forest Service gave notice that project-related activities might begin as early as June 1, 2017, upon which the Friends of the Clearwater moved for a preliminary injunction seeking to stop such work upon any portion of the IRA because such activities allegedly “will cause irreparable harm to potential wilderness values by developing the area with an irregular shelterwood cut and a road.”

         After consideration of the respective arguments of the parties, the Court will not issue the requested preliminary injunction. While the nature of the Orogrande Project's fuel-reduction activities will impact the existing natural landscape of a small portion of the West Fork Crooked River IRA, those particular activities are critical to the Orogrande community and to the safety of persons living adjacent to and using the national forest in that region. Further, the Court is not persuaded on this record that Plaintiff has a likelihood of success on the merits of their claims, a showing which is required (along with other factors further described in this Decision), before an injunction can issue. Here, there is evidence that the Forest Service's decision to approve the Project complied with applicable environmental laws and regulations. Therefore, on the current record, measured against the applicable legal standards, the Court will not issue a preliminary injunction. Although this decision does reflect that the Court is not persuaded on the present record that the Plaintiff has a likelihood of success on the merits, this is not a final decision on the merits of the case.

         BACKGROUND

         A. The Orogrande Project

         The Orogrande Community Protection Project (“Orogrande Project”) sits in Idaho County, Idaho, in the Crooked River Watershed of the Red River Ranger District of the Nez Perce-Clearwater National Forest. See (AR 14224). The 45, 278-acre project area is contained within rural wildland interface areas mapped by the 2009 Idaho County Community Wildfire Protection Plan (“CWPP”). See id. The CWPP identifies both the urban and rural interface areas, with the vast majority of the Orogrande Project falling with the rural interface. See id.

         In 2001, Orogrande was formally identified as a community at risk for wildfire - a “wildland interface community within the vicinity of federal lands that are at high risk from wildfire.” See id. Such a designation represents a conclusion that conditions in much of Orogrande's surrounding forest (high forest density and fuel loading) present an increased risk of high-intensity, stand-replacing wildfire. See id. The Orogrande Project is designed to address the needs set forth in the CWPP and reduce fuel continuity near the Orogrande community, near other private lands, and along Forest Road 233 (the “Crooked River Road”). See id at (AR 14224-25). The Project is also intended to reduce the risk of high intensity wildfires and to improve forest health, vigor, and resilience within forest stands. See id.

         The Project was considered in the ordinary NEPA course, leading to a “Decision Notice and Finding of No Significant Impact” formally approving the Orogrande Project on January 29, 2016, issued by the Forest Supervisor, Cheryl Probert. See (AR 14250). The selected alternative (Alternative 2) authorized five different treatments across 3, 415 acres to reduce fuels and modify stand conditions to improve forest health, including: (1) thinning from below, followed by prescribed fire to reduce ladder fuels and increase spacing between canopy crowns to 10-20 feet on 154 acres (Treatment A); (2) thinning from below, followed by prescribed fire in riparian habitat conservation areas to remove ladder fuels on 432 acres (Treatment B); (3) irregular shelterwood cut, followed by prescribed fire to treat ladder fuels and reduce canopy density in mixed-conifer units on 280 acres (Treatment C); (4) precommercial thinning on 75 acres to reduce the density of sapling-pole-sized lodgepole pine stands and promote vegetative diversity while maintaining stand growth and yield (Treatment E); and (5) prescribed fire on 2, 474 acres of inaccessible unites where mechanized treatment is infeasible and fuel loads are sufficient to carry fire, but still light enough so burns can be kept within prescription (Treatment F). See (AR 14224, 14226-28).[2]

         Of significance in this case, portions of two inventoried roadless areas (“IRA”) are located within the Orogrande Project boundary: the West Fork Crooked River IRA and the Dixie Summit-Nut Hill IRA. See (AR 14143). Work called for by Orogrande Project includes activities within the West Fork Crooked River IRA, but not the Dixie Summit-Nut Hill IRA. See id. Specifically, the Orogrande Project calls for construction of 4.5 miles of temporary road, including 2.4 miles in the West Fork Crooked River IRA. Of that total mileage, approximately .5 miles of proposed temporary road will be located or reconstructed on existing or decommissioned roads (cleared disturbed areas). See (AR 14228).

         B. The Idaho Roadless Rule[3] and the West Fork Crooked River IRA

         In the 1970s, the Forest Service began to develop an inventory of roadless areas within National Forests. The Forest Service designated roadless areas of more than 5, 000 acres as inventoried roadless areas - IRAs. As of 2011, there were over 58.5 million acres contained in IRAs throughout the National Forest system.

         In 2001, concerned about encroaching development, the Forest Service promulgated the Roadless Area Conservation Rule to “prohibit road construction, reconstruction, and timber harvest in [IRAs] because they have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics.” (The “2001 Roadless Rule.”) 66 Fed. Reg. 3244 (Jan. 12, 2001).

         The 2001 Roadless Rule was nation-wide in scope and did not contain variations tailored for each State. As a result, some states and communities felt disenfranchised by the process. In 2005, the Forest Service opted for a new approach, inviting States to submit petitions to adjust the management requirements for the IRAs within their borders. In conjunction with this new approach, the Department of Agriculture (“USDA”) created the Roadless Area Conservation National Advisory Committee (“RACNAC”), an advisory committee composed of 14 members to review State petitions and provide advice to the Department. The RACNAC included representatives from state and local governments, industry trade associations like the National Cattleman's Beef Association and National Mining Association, and conservation-oriented groups, including Trout Unlimited, Montana Wilderness Association, Nature Conservancy, and the Center for Biological Diversity.

         In 2005, Idaho's Governor began a collaborative process to draft a state petition governing the 9.3 million acres of IRAs within Idaho. The Idaho petition was submitted to the RACNAC in 2006 and then-Governor James Risch and his staff met with RACNAC in Washington D.C. to discuss the petition and clarify the intent.

         The RACNAC then held four meetings to take comments on Idaho's petition. Many industry and conservation-oriented groups that were not directly represented on the RACNAC itself participated in these meetings. In addition to the RACNAC meetings, the USDA held 16 public meetings in Idaho, and obtained additional input in the written comment period. In this process, Idaho's petition was modified and refined and ultimately, the RACNAC - in a unanimous vote - recommended to the USDA that the petition be approved. The USDA did so on December 22, 2006.

         The result - known as the Idaho Roadless Rule - creates different categories of lands within Idaho's 9.3 million IRA acres based on the specific attributes of those lands, and then applies different management “themes” to each category. For example:

• The Wild Land Recreation (“WLR”) theme covers about 1.5 million acres. All road construction in the WLR is banned except for roads required by “statute, treaty, reserved or outstanding rights, or other legal duty of the United States.” 36 C.F.R. § 294.23(a). Similarly, all timber cutting on WLR lands is banned, except where incidental to some other management activity permitted by the Idaho Roadless Rule (such as constructing a road described above).
• The Primitive theme covers 1.7 million acres. For Primitive areas, road construction is prohibited, subject to a single exception.
• The Special Areas of Historic or Tribal Significance (“SAHTS”) theme covers 50, 000 acres and are treated similarly to Primitive areas.[4]
• The Backcountry/Restoration (“BCR”) theme covers 5.3 million acres. Protections are reduced here because temporary roads and logging are allowed to reduce the threat of wildfire. The Idaho Roadless Rule allows temporary road construction and logging within 442, 000 acres of community protection zones (“CPZs”) within BCR lands. Outside of CPZs, roads and logging are only allowed if there is a significant wildfire risk to a community or water supply, and ...

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