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April 07, 2006

Courts not amused by NEPA avoidance
Forrest Fleischman

This story began back in 2001, when the Six Rivers National Forest, in coastal Northern California, completed its fire plan. The Environmental Protection Information Center (EPIC) sued because the Six Rivers had not done NEPA for the fire plan. The judge agreed with EPIC that the fire plan constituted a major federal action, so the Forest Service tried to rewrite its forest plan so that it would no longer be construed as an action. This involved removing direction for protecting Port Orford Cedar from root-rot (the direction was included in a separate EA), banning wildland fire use, and removing other direction regarding fire fighting and fuel reduction projects. Yesterday, the judge, who did not seem amused, once again ordered the Forest Service to write an EIS for the fire plan.

This is the second time that the court has rejected the agency’s argument that the fire plan is not a major federal action. As the agency tries to remove more of the planning process from NEPA review, it seems to be running into increasing problems.

The judge argued that even if the new fire management plan had not made any decisions, it still was replacing a management plan that contained clear standards with one that did not have those standards, and this alone would have triggered NEPA. In addition, banning wildland fire use (by eliminating all guidance about where it could be applied), was akin to a decision to suppress all wildfires, and therefore, required NEPA analysis. Finally, the judge wrote:

The new FMP, like the old one, is a programmatic document containing new fire management direction and therefore requires NEPA process. The Court notes that although it has identified the WFU ban as an example of new fire management direction in the 2005 FMP, the Forest Service cannot achieve compliance by subjecting only that direction to NEPA. NEPA requires “coherent and comprehensive up-front environmental analysis.” Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001); see also Atchison, Topeka and Santa Fe v. Callaway, 382 F. Supp. 610, 620 (D.C. Dist. Ct., 1974) (holding that NEPA requires that agencies “consider the impact of an overall program and not just isolated aspects” of it, that is, “an agency may not engage in segmentation, i.e., an appraisal of each tree to one of the forest”). Therefore, the entire 2005 FMP must undergo NEPA process.

This raises clear hurdles for the new generation of forest plans. For example, new forest plans eliminate management direction contained in existing forest plans, much as the 2005 fire plan eliminated direction contained in the 2001 fire plan. It also raises question about why the agency is committed to going out of its way to break the law. Why not do NEPA on a fire plan? As an activist quoted on EPIC’s press release states,

“This is a huge opportunity for both the Forest Service and the public they serve,” said Timothy Ingalsbee, executive director of Firefighters United for Safety, Ethics, and Ecology (FUSEE). “Fire management plans can only benefit from including the best available science and informed public input, especially local community knowledge. Public involvement will not only help managers craft better fire plans, but will also help gain buy-in from communities on using wildland fire to protect communities and restore forests degraded by a century of fire suppression.”

NEPA opponents frequently cite two problems with NEPA: expense and time. It seems that in this case the Forest Service would have saved money and time if it had complied with the law in the first place rather than trying to come up with obscure procedural arguments about why it didn’t have to do NEPA. As Ingalsbee points out, the Six Rivers also would have had the advantage of public input into its planning process. I wonder if the forest planning regulations will end up in a similar place? At the very least, the agency is running a very real risk that it will have a whole generation of forest plans – and several years of work – thrown out of court due to NEPA compliance issues.

Posted by Forrest Fleischman on April 7, 2006 at 02:51 PM | Permalink


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Posted by: scott g

Trainwreck. That's all the plan they have.

scott g | Apr 7, 2006 3:27:13 PM

Posted by: Jesse Abrams

This is an interesting issue. I've heard FS brass on several occasions refer to the Supreme Court decision in Ohio Forestry Assn. vs. Sierra Club as justification for their ending the tradition of preparing EISs for plan revisions. The court, they argue, found that plans do not authorize or initiate any ground-disturbing activities and therefore do not require an EIS.

But when I read the court decision (see link above), I can't say I agree with the USFS argument. What the court found is that if you want to sue a National Forest over logging, you have to wait until logging is imminent. Although a Forest Plan is one step in the process leading to a timber sale, it is only a preliminary step, and at that point suing over a timber sale is disallowed because the case is not yet ripe. The Court said nothing about whether or not an EIS is required for Forest Plans, nor do they suggest that doing an EIS at one point in the process (say, project-level) obviates the need for an EIS at a prior point.

So the argument that the Supreme Court rejected the requirement that Forest Plans undergo an EIS process is flawed. For the reasons Forrest states above and more, there are plenty of indications that revising a Forest Plan sans EIS will run into legal troubles. That said, it's clear the FS leadership and White House have a lot invested in the idea of plan revisions freed from the major legal requirements that have snagged so many previous plans. See, for example, their joke of a diversity clause (scroll to 219.10 on page 37).

Jesse Abrams | Apr 10, 2006 9:26:16 PM

Posted by: Jesse Abrams

Whoops, the hyperlinks didn't work...

The Supreme Court brief is at: http://www.law.cornell.edu/supct/html/97-16.ZO.html

The NFMA Planning Rule is at:
http://www.fs.fed.us/emc/nfma/includes/rule%20.pdf (scroll to 219.10 on page 37 for the diversity clause, under "Sustainability")

Jesse Abrams | Apr 10, 2006 9:28:41 PM

Posted by: Martin Nie

I appreciate Forrest's comments about NEPA, and Jesse’s comments about the importance of Ohio Forestry. I think the USFS’s interpretation of this case is important for other reasons as well.

First of all, Ohio Forestry Association v. Sierra Club (1998) helps explain the number and timing of lawsuits over forest management. As Jesse notes, the Court put an end to most types of “pre-implementation” challenges of forest plans by ruling them not ripe for review. This means that in most cases an interest group cannot challenge a plan, but must instead wait for a site-specific project to be initiated. But note that the case did not put a complete end to all types of forest plan challenges. I’m not a lawyer, but my understanding is that the Court left the door open for some types of legal challenges at the plan level.

The decision, and how it has been interpreted by the USFS, may also make it difficult to analyze the big picture. It also affects levels of public participation in the planning process. Why participate in such a lengthy process, after all, if plans may have no impact on the ground and may not be binding? While it certainly makes sense to use the ripeness doctrine as a way of preventing the judiciary from becoming entangled in abstract disagreements and preventing “premature adjudication” (a term I can never say with a straight face), forest plans are important guiding documents. The 1997 Tongass Plan, for example, makes this clear, stating that the plan “guides all natural resource management activities and establishes management standards and guidelines,” “sets forth in detail the direction for managing the land and resources,” and that “[a]ll future plans and administrative activities will be based on the Forest plan.”

This is hardly an abstract brainstorming exercise, rather it is a plan placing the agency on a long-term trajectory that is hard to stop once begun. Judicial review at the plan level may be necessary to counteract the effects of the “bureaucratic steamroller” that keeps lumbering ahead in the direction set forth in the plan (see Amanda C. Cohen, “Ripeness Revisited: The Implications of Ohio Forestry Association, Inc. V. Sierra Club for Environmental Litigation,” 23 Harvard Environmental Law Review 547, 555 (1999) As this commentator notes, the phenomenon is like the “tyranny of small decisions” because of its ability to travel far in misleadingly small steps. “In concert, the tyranny of small decisions and the jurisprudential limitations on judicial review of a management plan undermine the environmental planning process, because a court may be unable to review an unreasonable management plan until after the majority of the plan has already been implemented in discrete, often irreversible, steps”(p.557). In other words, the USFS could implement a forest plan by taking a number of discrete steps that may seem reasonable when viewed in isolation, but problematic when seen in context.

I’m becoming more convinced that this is where the 2005 planning regulations and the roadless rule revision could collide in a big way. What happens, for example, if the District Court or the 9th Circuit in the roadless case (Earthjustice and state of California have sued over the state-petition rule) rules that Bush’s roadless rule revision is illegal? Perhaps we go back to Clinton’s 2001 roadless rule (as plaintiffs see it), or perhaps these decisions get kicked back to the forest planning process (as envisioned by Bush’s roadless rule’s severability clause). If it is the latter, how could the agency possibly open up millions of acres of inventoried roadless areas to roadbuilding, on a project-by-project basis, while using EA’s to do it, without breaking NFMA and NEPA in the process? This is why the recent batch of NEPA-friendly 9th Circuit cases are so significant. Whatever the importance of Ohio Forestry, sooner or later the USFS has to look at the big picture, one including inventoried roadless areas, and use the EIS process to do it. That is one heck of a complicated scenario, but we should stay tuned.

Martin Nie

Martin Nie | Apr 21, 2006 10:15:38 AM

Posted by: Forrest Fleischman

Thanks for your commentaries Martin and Jesse. Two quotes from Ohio Forestry seem relevant. The first addresses Jesse's concern about EIS for Forest Plans:

Nor does the Plan, which through standards guides future use of forests, resemble an environmental impact statement prepared pursuant to NEPA. That is because in this respect NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result. Compare, 16 U.S.C. § 1604(e) (requiring that forest plans provide for multiple coordinated use of forests, including timber and wilderness) with 42 U.S.C. § 4332 (requiring that agencies prepare environmental impact statements where major agency action would significantly affect the environment). Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.

The second shows that the Supreme Court did not close the door to all up-front challenges to forest plans. Certain of the Sierra Club's grounds for standing were thrown out on purely procedural grounds:

The Sierra Club makes one further important contrary argument. It says that the Plan will hurt it in many ways that we have not yet mentioned. Specifically, the Sierra Club says that the Plan will permit “many intrusive activities, such as opening trails to motorcycles or using heavy machinery,” which activities “will go forward without any additional consideration of their impact on wilderness recreation.” Brief for Respondents 34. At the same time, in areas designated for logging, “affirmative measures to promote undisturbed backcountry recreation, such as closing roads and building additional hiking trails” will not take place. Ibid. These are harms, says the Sierra Club, that will not take place at a distant future time. Rather, they will take place now.

This argument suffers from the legally fatal problem that it makes its first appearance here in this Court in the briefs on the merits. The Complaint, fairly read, does not include such claims. Instead, it focuses on the amount and method of timber harvesting. The Sierra Club has not referred us to any other court documents in which it protests the Plan’s approval of motorcycles or machinery, the Plan’s failure to close roads or to provide for the building of trails, or other disruptions that the Plan might cause those who use the forest for hiking. As far as we can tell, prior to the argument on the merits here, the harm to which the Sierra Club objected consisted of too much, and the wrong kind of, logging.

The matter is significant because the Government concedes that if the Sierra Club had previously raised these other kinds of harm, the ripeness analysis in this case with respect to those provisions of the Plan that produce the harm would be significantly different. The Government’s brief in the Court of Appeals said

If, for example, a plan incorporated a final decision to close a specific area to off-road vehicles, the plan itself could result in imminent concrete injury to a party with an interest in the use of off-road vehicles in that area.” Brief for Federal Appellees in No. 94—3407 (CA6), p. 20.

Forrest Fleischman | Apr 25, 2006 5:09:40 PM

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