A New Day is Dawning in Public Lands Environmental Law

By Scott Horngren, a Portland attorney with Haglund Kelley Horngren Jones & Wilder, American Forest Resource Council’s attorney, represented Boundary County, ID and other intervenors in the case has authored this overview of the court’s decision.

The Ninth Circuit in a landmark en banc unanimous decision of 11 judges in The Lands Council v. McNair, No. 07-35000, has given hope to those who want to end the judicial gridlock over implementation of forest health and fuel reduction projects on western National Forests.

The court reverses several of its earlier opinions that second guessed the Forest Service and imposed project-specific research requirements and data collection burdens not found in any law or regulation.  The court also makes clear that an injunction is not automatic in an environmental case.  The court holds that the economic impact to intervenor Boundary County and the family logging businesses along with the long term benefits of reducing the risks of wildfire should be considered by a court in balancing the harm and considering the public interest in evaluating whether to grant an injunction

Highlights and a brief analysis of the opinion are set forth below.

**  The court emphasizes that the standard of review of Forest service decisions under NFMA and NEPA is narrow and is governed by the APA deferential arbitrary and capricious standard.

**  The court held that judges should not act as a panel of scientists that choose among scientific studies and order the Forest Service to explain every possible scientific uncertainty.  This will help defend against the lawsuits that attack every facet of a decision as involving scientific uncertainty.  The court recognizes that there is always uncertainty and just because the Forest Service does not discuss every uncertainty under the rainbow does not mean the decision is legally deficient.

**  The court emphasizes that the National Forests are to be managed for multiple uses, not just for wildlife and are not to be “set aside for non-use.”

**  The court does not directly address our argument that NFMA imposes no wildlife viability mandate despite the fact that the issue was discussed at the hearing .  Under the general “diversity” provision of the NFMA statute, it is clear the statute does not contain a viability mandate.  But the court decision is actually more helpful by addressing what the Forest Service must do assuming that there is a wildlife viability mandate.  This is helpful because the regulations can be changed again to impose a wildlife viability mandate and many forest plans essentially adopt wildlife viability as a standard (which in this case the court found in the specific language of the Idaho Panhandle Forest Plan).  The court concludes the Forest Service has flexibility in providing for wildlife viability and it is not the court’s role to second guess how the Forest Service chooses to provide for wildlife viability.  The court concluded   “Thus, as non-scientists, we decline to impose bright-line rules on the Forest Service regarding particular means that it must take in every case to show us that it has met the NFMA’s requirements.”

**  The court endorses the use of a habitat analysis to assess wildlife viability and does not require a population based analysis.  The Forest Service should not have to analyze the exact amount of habitat needed to maintain viability as the 3 judge panel demanded.  So long as the analysis uses the best available information and confirms the type of habitat a critter uses, a discussion of habitat changes should suffice to meet the viability requirement as it did in the favorable Inland Empire Public Lands Council v. Forest Service case from 1996 which the court breathes new life into.

**  The court overrules the Ecology Center v. Austin case which had required on-the-ground research to prove timber harvest would benefit wildlife before any tree could be cut.  The court also overrules another bad opinion, Idaho Sporting Congress v. Thomas, to the extent the opinion precluded the Forest Service from using change in wildlife habitat as a proxy for change in wildlife populations where there is appreciable habitat disturbance.  The en banc panel said even if there is appreciable habitat disturbance, reliance on changes in habitat rather than using population surveys is OK.  The bad Land Council I case is also limited to its facts.

**  The court upholds the Forest Service technical conclusion that the Idaho Panhandle National Forest has more than 10% old growth as required by the Forest Plan.

**  The court in a major helpful ruling holds that the Forest Service does not have to address every uncertainty to comply with NEPA.  The court held: “to require the Forest Service to affirmatively present every uncertainty in its EIS would be an onerous requirement, given that experts in every scientific field routinely disagree; such a requirement might inadvertently prevent the Forest Service from acting due to the burden it would impose.”

**  The court holds that the Forest Service adequately addressed scientific uncertainty regarding whether the Mission Brush project will maintain wildlife viability.

**  Significantly, the court holds that Judge Lodge properly considered the loss to intervenors of jobs and harm to the local economy AND the risks from no action including catastrophic fire, insect infestation, and disease.  The court clearly states that an injunction is not “automatic” in an environmental case which is the bad direction the law was headed as recent decisions continued to ignore the Supreme Court Amoco decision which required equitable balancing of harms even in environmental cases.

Overall – this is a great precedential opinion that overrules some bad cases and clearly sets forth the law in a way that defers to the professional resource managers. Boundary County is to be congratulated for being instrumental in setting judges on a new course that will hopefully make it easier for the Forest Service to implement forest health and fuel reduction projects to benefit watersheds, wildlife, and the economy.  Intervenors were Boundary County, City of Moyie Springs, City of Bonners Ferry, Everhart Logging and Regehr Logging.

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