SOS Forests

Fundamental USFS Ineptitude

by Forrest Grump

On December 5, 2007, the U.S. Ninth Circuit Court of Appeals rendered its decision in Sierra Club v. Bosworth, 05-16989. The judges hearing the case were David R. Thompson, Andrew J. Kleinfeld, and Sidney R. Thomas; Thompson wrote the opinion with a short concurrence by Kleinfeld. You can rustle up the docket yourself [here].

Put that one in your Favorites, and use it.

As usual, the Forest Service lost. As usual, the opinion cites about a gazillion cases brought by environmental groups before the Ninth Circuit that resulted in terrible, paralytic precedents. As usual, environmental lawyers are doing handsprings and cartwheels. Same old, same old, right?

Well, there’s a new, particularly unfortunate twist to Sierra v. Bosworth that I found particularly alarming.

For years, one of the first things I’ve done when a natural resources ruling comes down from the Ninth is to not only look who wrote the ruling – I especially love Stephen J. Reinhardt these days – but also to check out which president appointed them. In this instance, Thompson is a 1985 Reagan appointee, formerly a San Diego-area private attorney. Kleinfeld is a 1991 Bush I appointee, after being first appointed to the federal judiciary in Alaska by Reagan in 1986 from his practice in Fairbanks. Thomas is a 1995 Clinton appointee from Montana, formerly an adjunct law professor and private practitioner in Billings. So in this case, the majority of the panel was appointed by “conservative” presidents, something that doesn’t seem to happen in the “liberal” Ninth very often.

So I read this 32-page ruling more closely than most.

The Sierra Club challenged the Forest Service’s Categorical Exclusion (CE) of all fuels reductions projects under 1,000 acres and prescribed burns up to 4,500 acres. The judges ruled “USFS failed to assess properly the significance of the hazardous fuels reduction CE” and thus the USFS failed to demonstrate that it made a “reasoned decision” to promulgate the Fuels CE, which was accordingly found to be “arbitrary and capricious.” So the Ninth reversed and remanded the summary judgment of the district court.

Under the National Environmental Policy Act, federal undertakings have to take a “hard look” for any “significant environmental impacts.” If there are any “significant” impacts, then either an Environmental Impact Statement or Environmental Assessment must be written, reviewed, appealed, litigated, changed and so on. Projects that are determined not to have a “significant” impact on the environment can be granted a “Categorical Exclusion” from review if they are a certain type of project in a certain category of size or activity known not to have “significant” impacts.

In this case, the Forest Service wrote a CE for these fuels and prescribed burns in response to the Healthy Forests Initiative (HFI), which was announced by President Bush II as he stood on smoking ground torched by the Biscuit fire in 2002. HFI ordered “more timely decisions, greater efficiency, and better results” regarding catastrophic wildfire.

Therefore, in early September 2002, USFS put out a “data call” on 2,500 fuel and stabilization projects, and went to the Federal Register in December of that year. The proposal generated 39,000 comments (I bet most of them were post cards) and, in June of 2003, the final Fuels Categorical Exclusion was published in the Federal Register.

The rule changed “extraordinary circumstances” guidance for projects. Previously, partly in response to (you bet) court decisions, any project that involved steep slopes or highly erosive soils; threatened and endangered species or their critical habitat; flood plains, wetlands, or municipal watersheds; Congressionally designated areas, such as wilderness, wilderness study areas, or National Recreation Areas; inventoried roadless areas; Research Natural Areas; and Native American religious or cultural sites, archaeological sites, or historic properties or areas, required preparation of either an EA or EIS.

The new rule made preparation of those documents discretionary. And when the Lassen and Eldorado NF’s scheduled several projects for 2004 under the new rule, the Sierra Club sued. In a nutshell, they threw the usual stuff at the wall, and one thing stuck:

“Rather than require the Forest Service to produce an EIS or an EA/FONSI, which the CEQ regulations do not require when the Forest Service promulgates a CE, we will examine the record to determine whether the evidence supports the Forest Service’s determination that the identified category of actions in the Fuels CE do not individually or cumulatively have a significant impact on the environment.”

So they did. Citing California v. Norton, 9th 2002, they decided “the Department of the Interior and the Forest Service inappropriately decided to establish a categorical exclusion for hazardous fuels reduction before conducting the data call. In requesting the data call, the Deputy Chief of the Forest Service stated that the Forest Service ‘intend[s] to put this information to good use supporting a categorical exclusion for fuels treatment, rehab and salvage.’ Post-hoc examination of data to support a pre-determined conclusion is not permissible because ‘[t]his would frustrate the fundamental purpose of NEPA, which is to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their actions, early enough so that it can serve as an important contribution to the decision making process.’”

And no, I’m NOT gonna get into California via Norton.

Second, the judges determined “the Forest Service failed to engage in the required ’scoping process’ prior to establishment of the categorical exclusion in order to ‘determine the scope of the issues to be addressed and for identifying the significant issues related to a proposed action,’” another leftover from Alaska Center for the Environment v. USFS, 9th 1999.

The judges also hit the USFS on “cumulative impacts,” i.e., “breaking up” projects below a threshold to avoid NEPA review, and determined that in future, USFS must perform a “programmatic cumulative effects analysis.”

All of these are NEPA 101. For example, while the Clinton/Dombeck roadless initiative is a classic example of “post hoc” driving a foregone conclusion, that process went through all the dog-and-pony motions.

As for the data call itself, here’s a real howler: “The report also notes that seventy-four of the fuels projects in the data call resulted in temporary increases in erosion, localized sterilization of soil, and sedimentation of water quality. Nevertheless, the report summarily concludes, without citing hard data to support its conclusion, that there were no cumulative impacts because the effects were ‘localized, temporary, and of minor magnitude.’ Yet this is precisely the reason why a global cumulative impacts analysis must be performed — if multiple Fuels CE projects are located in close proximity, then the effects on soil and water quality could no longer be said to be localized or of minor magnitude.”

Okay, you can clean the soda off your monitor now.

If Sierra Club brought this point up, their clever hypocrisy is commendable. If it was stumbled upon by one of the judges’ clerks, they must appreciate irony. After all, the purpose of this CE is to avoid the effects of major wildfires such as erosion, sterilization and sedimentation events that encompass entire watersheds. But since a holocaust fire doesn’t require federal action and analysis under NEPA, it’s fine.

The second part of the decision hits USFS for failing to “consider the extent to which the impact” of the CE rule “was highly controversial and the risks uncertain.” The CE rule was certainly “highly controversial” to the U.S. Fish and Wildlife Service, which complained in its comments that “reconstruction of decommissioned roads or creation of temporary roads could increase road density, decrease wolf security habitat and grizzly bear core area, and contribute to increased sedimentation in streams.” Of course, FWS also states it “supports the intent of the Healthy Forests Initiative.” Your taxpayer dollars at waste, folks.

Third, the judges slapped the Forest Service on lack of specificity, such as a lack of “a maximum diameter or species of trees permitted to be logged,” no “limit on the proximity of different projects… nor any cap on the number of projects in a particular watershed, ecosystem, or endangered species habitat area.”

Of course, had USFS done so in a national directive, the directive itself would be about a gazillion pages given the gazillion watersheds and their makeup of gazillions of species, leading to an incomprehensible rule.

Lastly, citing High Sierra Hikers v. Blackwell, 9th 2004, the judges swatted the Forest Service for “failure to properly assess the significance of the Fuels CE, a broad programmatic action under which in excess of 1.2 million acres will be annually logged and burned, causes irreparable injury, as ‘[i]n the NEPA context, irreparable injury flows from the failure to evaluate the environmental impact of a major federal action.’”

Does your head hurt yet? Well, I have one last doozy for you, Judge Kleinfeld’s concurrence:

“I cannot bring myself to believe that a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious. And I cannot quite bring myself to believe that the categorical exclusion in this case, covering less than one half of one percent of federal land, will have a cumulative impact on our environment requiring years more research, analysis and report writing before we do anything to protect people from forest fires. As a matter of common sense, cutting brush and using controlled burns on parcels no larger than 1,000 acres and 4,000 acres respectively seems most likely to have the cumulative impact of reducing the catastrophic effect of forest fires on people.”

“Nevertheless, the government’s brief does not point us to anything in the record that supports my intuitive view. The best I can find in the record is some scattered bits that were written after the categorical exclusion was made, saying that the categorical exclusion is not expected to contribute to adverse cumulative impacts on sensitive wildlife species. The briefs and record control, and the government has made no serious attempt to show us why the categorical exclusion was not arbitrary and capricious or that it gave the required ‘hard look’ at the categorical exclusion before promulgating it. A judge’s duty is to decide the case based on the law and the record, not his personal policy preference. I am therefore compelled to concur.”

Me too.

Many of the hits taken by USFS in this matter are boneheaded basic, especially the data call and the scoping period. One must question the basic competence of the team tasked with writing the Fire CE rule.

Furthermore, Judge Kleinfeld’s complaint that USFS legal representatives left him absolutely nothing upon which to bang his gavel in their presentation also raises questions of basic competence. Hasn’t anyone in the Forest Service bureaucracy tracked the maze of Ninth Circuit decisions and their import?

If there is, he or she wasn’t assigned to the right desk. That alone is inexcusable neglect on the part of Forest Service leadership.

If there isn’t, then there isn’t any Forest Service leadership – at all.

Maybe the Forest Service is not fundamentally inept. Doing a cumulative-impacts analysis of the maze woven by the Ninth Circuit over the years might be too complex for any human mind to understand, especially in conjunction with the maze of federal environmental law created by Congress.

But in this case, USFS didn’t even try. And boy, does it show.