Home » Case Summaries » 2008 » WildWest Institute v. Bull


WildWest Institute v. Bull



WildWest Institute and Friends of the Bitterroot, Inc. (collectively WildWest) filed suit against the United States Forest Service (USFS), alleging the agency’s hazardous fuel reduction project for Montana and Idaho’s Bitterroot National Forest violated the National Environmental Policy Act (NEPA),[1] the National Forest Management Act (NFMA),[2] and the Healthy Forests Restoration Act (HFRA).[3] Following a Ninth Circuit opinion affirming denial of WildWest’s request for a preliminary injunction[4] and subsequent grant of summary judgment in favor of USFS by the United States District Court for the District of Montana, WildWest appealed to the Ninth Circuit. The Ninth Circuit affirmed the district court’s grant of summary judgment against WildWest, holding that USFS did not commit procedural or substantive violations in its record of decision (ROD) and accompanying final environmental impact statement (FEIS).

After Montana’s Middle East Fork area of the Bitterroot National Forest suffered severe damage as a result of wildfires in the summer of 2000, USFS, pursuant to its management role over national forests, developed the Middle East Fork Hazardous Fuel Reduction Project (Project). The Project’s purpose was to reduce fire threats in the region, restore fire-adapted ecosystems, and restore stands affected by a Douglas fir bark beetle epidemic by treating infested and at-risk forest lands. In compliance with HFRA, USFS studied, developed, and described the proposed agency action, a no-action alternative, and an additional action alternative proposed by WildWest.[5]

Following at least twelve public meetings, a forty-five day public comment period, and analyses of alternative plans, USFS announced the FEIS at a press conference. Several vocal opponents of the Project were excluded from the press conference. In the FEIS, USFS adopted a modified version of the agency’s alternative, which called for treatment of 4938 acres in the Middle East Fork area, including approximately 2983 acres of commercial treatments. In response to WildWest’s objections during the comment process, USFS made a number of changes to its proposed alternative before publication of its ROD, which resulted in 1534 acres from being dropped from treatment. Specifically, USFS decided not to treat old growth habitat or units with “greater than 15% detrimental soil reliance or units . . . projected to have greater than 15% disturbance after the treatments,” not to perform summer ground-based tractor harvest operations, and not treat stands where further field review was needed to corroborate determinations of the agency’s soil scientist.[6]

On appeal, WildWest argued USFS violated NEPA in three ways: 1) by irretrievably committing resources in favor of its preferred alternative before making its final decision, 2) by failing to engage in adequate public collaboration, and 3) by failing to discuss competing views of the agency’s own soil scientist in the FEIS. Wildwest also challenged USFS’s substantive decision, alleging the Project’s impact on soil productivity, old growth habitat, species viability, and watershed sedimentation violated NFMA and HFRA. The Ninth Circuit began by examining WildWest’s argument that USFS committed procedural violations. NEPA prohibits USFS from taking action that would limit its consideration of alternatives identified in the decision-making process, including “committing resources which would prejudice the selection of alternative plans.”[7] WildWest argued that USFS violated this requirement by prematurely marking trees in preparation for logging before issuance of the ROD and FEIS. The Ninth Circuit rejected this argument, holding that USFS’s pre-marking of trees did not irretrievably commit the agency to a particular course of action because the monetary expenditure involved was not so substantial that it limited such choice. Conceding that “a financial commitment can, in some instances, constitute an irretrievable commitment” of resources, the Ninth Circuit cautioned that Ninth Circuit “cases have focused on the commitment of natural resources, not necessarily the agency’s financial resources.”[8] In the instant case, the Ninth Circuit explained that USFS’s spending of $208,000 to pre-mark trees was not such a substantial financial commitment as to limit the choice of reasonable alternatives, as demonstrated by the fact that the ROD ultimately excluded 410 acres of pre-marked timber from treatment.

Second, the Ninth Circuit rejected the allegation that USFS had violated NEPA by failure to engage in adequate public collaboration. Under NEPA, USFS is required to involve the public in its decision-making process,[9] including the specific requirement that the agency must provide notice of public meetings.[10] The Ninth Circuit court rejected WildWest’s arguments that USFS acted improperly when it removed conservation proponents from a notice mailing list, failed to announce that a HFRA project would be discussed at the meeting, failed to indicate in the FEIS that it had received more than 11,000 public comments in opposition to the Project, and failed to give notice of when the FEIS would be announced. Explaining that NEPA does not specify a particular form of notice, the Court noted that USFS had, prior to holding two public meetings, taken several steps that provided notice, including publishing an announcement in a public newspaper, issuing a news release, and sending individual notices to interested members of the public, including WildWest. Further, the Ninth Circuit explained there is no NEPA requirement that USFS identify the number of public comments received, and that USFS did properly summarize the nature of the comments and specific substantive responses in the FEIS. Finally, the court rejected the assertion that USFS violated NEPA by holding a closed press conference to announce adoption of the FEIS, explaining that NEPA contains no requirement that agencies give notice of announcements of final decisions nor requires agencies to make those announcements a public event.

Third, the Ninth Circuit rejected WildWest’s assertion that USFS violated NEPA by disregarding the data and opinions of its own soils expert. NEPA requires that, in the FEIS, USFS discuss opposing views and indicate the agency’s response to the issues raised.[11] The court held that USFS did not disregard the soil expert’s findings, pointing to an acknowledgement and explanation of USFS’s disagreement with the expert’s conclusions in the FEIS.

Next, the Ninth Circuit addressed WildWest’s substantive NFMA and HFRA claims.[12] Under NFMA, USFS may harvest timber from national forests only where soil, slope, or watershed conditions will not be irreversibly damaged.[13] Additionally, NFMA directs USFS to perform continuous monitoring and assessment in the field to evaluate the effects its management plans have on the productivity of the land.[14] Because the Bitterroot National Forest Plan does not provide specific numeric soil standards, USFS applied its Region One Soil Quality Standards (R1-SQS), which provide that the cumulative detrimental impact of activities should be no more than fifteen percent of the activity area. WildWest asserted this technique violated NFMA’s substantive soil productivity requirements because the R1-SQSs are facially unreliable, and USFS failed to properly consider cumulative impacts in determining whether the project satisfied such a standard. The Ninth Circuit rejected the first assertion on grounds that WildWest failed to raise the challenge in the district court, and declined to exercise its discretion to consider the newly raised issue.[15] The Ninth Circuit similarly rejected WildWest’s second argument because the record showed USFS considered the cumulative impacts from past timber harvests and had concluded these activities did not reduce soil or site productivity in violation of soil quality standards.

The court also rejected WildWest’s various challenges to the Project’s management of old growth habitat. HFRA requires that USFS maintain or help restore old growth stands when undertaking fuel reduction projects.[16] Accordingly, the ROD accompanying the FEIS indicated that the Project would not treat old growth habitat. WildWest challenged the assertion, arguing that USFS’s classification was flawed because it was based on an analysis of “imminently dead” trees. The Ninth Circuit rejected this argument because the “imminently dead” standard applied to tree marking, not classification of old growth status; and USFS properly applied its selected methodology. The Ninth Circuit also rejected WildWest’s argument that the Project violated substantive old growth standards, in light of USFS’s conclusion that the Project does not treat old growth. Finally, the Ninth Circuit rejected WildWest’s argument that USFS is required to designate replacement habitat. Noting WildWest’s argument relied on a nonbinding district court case,[17] the Ninth Circuit concluded that, even assuming USFS is required to designate replacement habitat, USFS had satisfied that requirement by demonstrating the Project retains “the largest, healthiest and dominant residual trees” that may someday become old growth.[18]

Finally, the Ninth Circuit examined WildWest’s argument that USFS failed to consider the Project’s impact on population trends of management indicator species (MIS) such as the pileated woodpecker, northern goshawk, and black-backed woodpecker. Under NFMA, USFS is required to provide for diversity of plant and animal communities when managing national forests.[19] WildWest argued that the FEIS did not acknowledge the pileated woodpecker’s nesting preferences. The court disagreed, pointing out that the FEIS not only considered the pileated woodpecker’s habitat needs but also explained that prior forest management activities did not appear to have affected species viability. WildWest also asserted that USFS inadequately analyzed the Project’s impact on the northern goshawk by failing to conduct surveys to identify nest stands. The court also rejected this argument, concluding that USFS properly considered the goshawk’s habitat needs because the FEIS indicated USFS conducted surveys and took steps to avoid treatment within thirty acres of existing and potential goshawk nesting areas. Next, WildWest argued that USFS did not properly consider the Project’s impact on the black-backed woodpecker. The Ninth Circuit similarly rejected this argument, explaining that the record supported USFS’s conclusion that the Project would have no impact on black-backed woodpeckers or their habitat because the FEIS noted that other areas of the Bitterroot Forest contain ample habitat for black-backed woodpeckers while the Project area contained only minimal black-backed woodpecker habitat

In summary, the Ninth Circuit affirmed the decision of the district court, concluding the district court properly granted summary judgment in favor of USFS on all of the NEPA, NFMA, and HFRA claims asserted by WildWest.

[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

[2] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2006)(amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)).

[3] Healthy Forest Restoration Act of 2003, 16 U.S.C. §§ 6501-6591 (2006).

[4] WildWest Inst. v. Bull (WildWest I), 472 F.3d 587 (9th Cir. 2006).

[5] 16 U.S.C. § 1614(c)(1) (2006) (requiring that USFS “study, develop, and describe the proposed agency action; the alternative of no action; and an additional action alternative . . . proposed during scoping or the collaborative process” when that final alternative “meets the purpose and needs of the project”).

[6] WildWest Inst. v. Bull (WildWest II), 547 F.3d 1162, 1167 (9th Cir. 2008).

[7] Id. at 1168 (internal citations omitted); see also 40 C.F.R. §§ 1502.2(f), 1506.1(a)(2)(2008).

[8] WildWest II, 547 F.3d at 1168; see also Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1064 (9th Cir. 1998) (holding no NEPA violation occurredwhen USFS had not, by virtue of developing tentative harvest schedule, irreversibly committed the “resources of Ushk Bay to logging”); Conner v. Burford, 848 F.2d 1441, 1449 (9th Cir. 1988) (affirming the district court’s finding of a NEPA violation when government sold oil and gas leases within a national forest without reserving the right to prevent surface-disturbing activity).

[9] 40 C.F.R. § 1500.2(d) (2008) (dictating that federal agencies “shall to the fullest extent possible . . . [e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment”).

[10] Id. § 1506.6(b).

[11] Id. § 1502.9(b).

[12] The Ninth Circuit explained that its analysis of WildWest’s substantive claims was guided by the court’s recent decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc), noting that, under the Lands Council standard, the Ninth Circuit does not act as a reviewing body of scientists, but rather only reviews whether the agency “support[s] its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency in its expertise deems reliable.” Id. at 994.

[13] National Forest Management Act, 16 U.S.C. §1604(g)(3)(E)(i) (2006).

[14] Id. § 1604(g)(3)(C).

[15] See Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004) (explaining that, while an issue raised for the first time on appeal is generally deemed waived, the appellate court has discretion to consider the raised issue when 1) review is necessary to prevent a miscarriage of justice, 2) the issue arises on appeal because of a change in the underlying law, or 3) the issue is purely legal and does not require a further developed factual record).

[16] Healthy Forest Restoration Act of 2003, 16 U.S.C. § 6512(e)(2) (2006).

[17] Lands Council v. Vaught, 198 F. Supp. 2d 1211, 1224 (E.D. Wash. 2002) (holding that to comply with the NFMA, USFS must demonstrate either that adequate old growth acreage exists in the forest to satisfy USFS’s old growth standards or that the timber slated to be harvested under the Project is not needed to fulfill old growth standards).The Ninth Circuit declined to review the merits of this district court decision.

[18] WildWest II, 547 F.3d 1162, 1174 (9th Cir. 2008).

[19] 16 U.S.C. § 1604(g)(3)(B) (2006).

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