United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S
MOTION FOR PRELIMINARY INJUNCTION (DOCKET NO. 26)
Honorable Ronald E. Bush Chief U.S. Magistrate Judge.
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:
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.”
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 Orogrande Project
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.
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.
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,
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).
The Idaho Roadless Rule and the West Fork
Crooked River IRA
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.
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).
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.
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.
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.
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
• 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.
• 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 ...