Colt Summit: Judge dings Forest Service for failure to “prepare a supplemental environmental assessment”
The Colt Summit timber sale – and subsequent lawsuit – on the Lolo National Forest in Montana has been the source of much previous debate on this site, even though this is the first timber sale lawsuit on the Lolo NF in over 6 years. Well, just today the next step in the legal process occurred, as US Federal District Court Judge denied the Forest Service’s motion to dissolve the injunction because the Forest Service failed to “prepare a supplemental environmental assessment,” as the court required. Read the judge’s ruling here, or see the snips below.
The United States Forest Service moves to dissolve the injunction in light of actions that it has taken following remand. The motion is denied. The Court previously granted summary judgment in favor of the Forest Service on a host of issues, all but one. (See doc. 50.) The only fault with the Service’s analysis of the Colt Summit Project was the inadequate cumulative effects analysis for lynx. (Id.) Because of this deficiency, the Court remanded the matter to the Forest Service “so that it may prepare a supplemental environmental assessment consistent with this order and the law.” (Id. at 46.)
The summary judgment order plainly requires the Forest Service to prepare a supplemental environmental assessment (“supplemental EA”). The Service didn’t do so. Instead, it prepared what it called a “supplement to the environmental assessment.” The document is a stand alone document that is, by the Service’s own admission, not a supplemental EA within the meaning of NEPA or the NEPA regulations. See 40 C.F.R. §§ 1502.9, 1508.9–1508.10. Nor, contrary to the Service’s argument, is the “supplement to the environmental assessment” any other type of NEPA document. See 40 C.F.R. § 1508.10. Courts have previously allowed agencies to prepare non-NEPA, supplemental documents on remand, but those circumstances do not apply here….
Instead, where, as here, the Service “present[s] information and analysis that it was required, but according to the finding of the district court, failed to include in its original NEPA documents,” it must prepare a supplemental NEPA document….
Using documents not sanctioned by NEPA to “correct this type of lapse” is “inconsistent with NEPA”:
[I]f the Forest Service were permitted to correct deficiencies in an EA or an EIS by means of an SIR or another non-NEPA procedure, the regulations governing the supplementation of NEPA documents promulgated by the CEQ, as well as the Forest Service’s own rules on the issue, would be superfluous.
The Forest Service’s document does not comply with the Court’s summary judgment order or Ninth Circuit precedent.
The Service makes two arguments in response. First, it argues that the Court has previously allowed the Service to prepare a non-NEPA supplement on remand. See Native Ecosystems Council v. Kimbell, 9:5–cv–110. Be that as it may, the Court in Native Ecosystems Council expressly ordered the Service to “to supplement the EIS.” That isn’t the case here. Here, the summary judgment order expressly requires the Service to prepare a “supplemental environmental assessment.” These are two distinct requirements.
Second, the Forest Service argues that it solicited public comment for the supplement to the EA, so the document should be sufficient. Not so. Providing public comment and following some of NEPA’s other procedures doesn’t make a document a required NEPA document.
The Service’s task on remand was clear: “prepare a supplemental environmental assessment . . . .” (Doc. 50 at 46.) The Service didn’t do that. This decision has nothing to do with the quality or the adequacy of the Service’s lynx analysis. The Service might very well have produced a substantively useful cumulative effects analysis. But, regardless of the quality of the analysis, the Service has to follow the procedures required by law and this Court’s previous order. Until the Service does so, the Court will not consider a motion to dissolve the injunction.
IT IS ORDERED that the U.S. Forest Service’s motion to dissolve the injunction (doc. 60) is DENIED. The Court will not consider a motion to dissolve the injunction until the Forest Service complies with the Court’s previous order requiring the Service to prepare a supplemental environmental assessment and comply with all the requisite procedures. (See doc. 50.)
Dated this 27th day of March 2013.
Missoula, MT – The Canada lynx was listed as threatened with extinction under the Endangered Species Act (ESA) in March 2000, yet the U.S. Fish and Wildlife Service has yet to complete the required recovery plan to ensure the survival of the elusive cat.
Today, a coalition of wildlife advocacy groups dedicated to the long-term survival and recovery of lynx filed a lawsuit to compel the Agency to complete a recovery plan to bring the species back from the brink of extinction. Threats to the lynx include loss of habitat and connectivity from improper forest management, development, and climate change, and mortality from starvation, predation, poaching, and incidental trapping.
The goal of the ESA is to prevent the extinction of and to provide for the eventual de-listing of imperiled species. As such, the U.S. Fish and Wildlife Service is required to adopt and implement recovery plans for all listed species that describe the specific actions needed to achieve de-listing, include measurable criteria, and estimate the time and costs required to achieve recovery goals.
“Recovery plans are one of the most important tools to ensure a species does not go extinct,” said Matthew Bishop, an attorney with the Western Environmental Law Center in Helena who is representing the wildlife advocacy groups in the case. “The ESA-mandated plan provides a road map to eventual de-listing by laying out what needs to happen and how best to get there,” added Bishop.
“Lynx will never fully recover in Montana and throughout the rest of their range in the lower 48 states until state and federal agencies have coordinated, concrete conservation actions designed to promote their recovery,” said Arlene Montgomery, Program Director of Friends of the Wild Swan. “Recovery plans are vital to ensuring that lynx not only persist, but thrive. They address the threats and provide the strategy that will lead to recovering lynx that builds upon the Endangered Species Act listing and designation of critical habitat.”
“Offering the Canada lynx protection under the Endangered Species Act absent a Recovery Plan, the Service merely created a paper tiger,” explained Duane Short, Wild Species Program Director for Biodiversity Conservation Alliance. “Its legal obligation to develop and implement a Recovery Plan is intended to produce meaningful actions that will actually enhance long-term survival of the species. Listing the lynx as Threatened under the Act, absent a Recovery Plan, is a job left undone.”
“The lynx’s recovery continues to be hampered by a ‘business as usual’ mentality from the federal and state agencies,” added Bishop. “Recent data suggests the lynx population in Montana may be in decline and yet, we’re still seeing development, trapping and snaring, roads, and industrial logging projects – including clear cuts – in some of the last remaining areas still occupied by lynx, including protected critical habitat” said Bishop. “Coordination among the various entities at the federal, state, and local level is needed to address the cumulative effects of these activities on lynx and their habitat. This is exactly what a federal recovery plan can do.”
The Western Environmental Law Center is representing Friends of the Wild Swan, Rocky Mountain Wild, San Juan Citizens Alliance, and the Biodiversity Conservation Alliance.
The topic of lynx and forest management has been covered recently at this blog. Yesterday, a new twist emerged as the lynx news coming out of Montana was related to Montana Fish, Wildlife and Parks recently announced wolf-trapping season, which will run from December 15 to February 28 across much of the state – including on millions of acres of national forest lands.
Four Conservation groups – WildEarth Guardians, The Alliance for the Wild Rockies, Friends of the Wild Swan, and Native Ecosystems Council – have filed a notice of intent to sue Montana FWP, allegding that their new wolf-trapping regulations violate the Endangered Species Act, as related to the recovering of Canada lynx. Below is the press release and you can read their notice of intent to sue here.
Helena, MT – Four conservation organizations today served a notice of intent to sue upon the Montana Fish, Wildlife & Parks Commission for permitting trapping that kills and injures Canada lynx, a species protected as “threatened” under the Endangered Species Act. The state permits trapping and snaring in lynx habitat, but the Act prohibits harm to protected species. At least nine Montana lynx have been captured in traps in Montana since the species was listed in March 2000, and four are known to have died from trapping.
“Montana has failed to safeguard lynx from the cruel vicissitudes of traps and snares,” stated Wendy Keefover, Carnivore Protection Program Director for WildEarth Guardians, “and that has resulted in the death and impairment of several animals, which impedes lynx recovery.”
Canada lynx captured in body-gripping traps endure physiological and psychological trauma, dehydration, and exposure as well as injuries to bone and tissue that reduces their fitness and chances for persistence. Trapping is also a likely source of indirect mortality to lynx kits since adults harmed or killed by traps and snares cannot adequately feed and nurture their young.
“Crippled or dead lynx can’t take care of their young,” said Mike Garrity, Executive Director of The Alliance for the Wild Rockies. “If we want to get lynx off the Endangered Species list, we need species’ resuscitation, not more mortalities and mutilations.”
Montana allows regulated trapping of a number of species throughout the year. The conservation groups allege that trapping and snaring in occupied lynx habitat is illegal because Montana has not exercised “due care” to prevent harm to lynx as required by the Endangered Species Act.
“Lynx are particularly vulnerable to traps,” said Arlene Montgomery, Program Director of Friends of the Wild Swan, “and Federal law requires Montana to contribute to lynx survival and recovery, but continued trapping does the exact opposite.”
Note: This is the 1,000th post on A New Century of Forest Planning. Thank you to those who contribute, comment and read!