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Forest Service OK of Idaho logging project hashed at Ninth Circuit

Can the U.S. Forest Service exclude itself from an environmental assessment required by the National Environmental Policy Act? A Ninth Circuit panel will decide.

(CN) — Attorneys for the Alliance for the Wild Rockies and the U.S. Forest Service peddled dueling arguments before a Ninth Circuit panel Thursday over whether a block of an Idaho logging project in grizzly bear territory should stand.

The case dates back to 2019, when the alliance sued the Forest Service over the authorization of the Hanna Flats logging project within the Idaho Panhandle National Forests. The lengthy project allows extensive commercial logging and prescribed burning, temporary road construction and maintenance and excavated skid trail construction — all of which would occur next to a recovery zone for the protected Selkirk grizzly bear.

Additionally, the project lies within the Priest Bears Outside Recovery Zone, a habitat the alliance says is already degraded by roads. The group calls the approval of the project “arbitrary and capricious,” “an abuse of discretion” and “otherwise not in accordance with law,” and cites several ways in which the Forest Service failed to consider potential risks to protected habitats.

Ultimately, a federal judge found the service violated the Healthy Forests Restoration Act by excluding the project from an environmental assessment under the National Environmental Policy Act. The Healthy Forests Restoration Act directs the service to reduce wildfire risks protect watersheds and address threats to land health. The agency had skipped the assessment citing an exclusion that exempts project areas within wildland-urban interface — aka high-risk forest areas near urban development and adjacent to federal property.

The exclusion allows the service to quickly address issues of insect infestation and fire risk. But the service's 2017 scoping notice said the project lies within the wildland-urban interface defined by Bonner County’s Community Wildfire Protection Plan, which doesn’t necessarily comply with the statutory definition and led Chief U.S. Magistrate Judge Ronald Bush to order the service to reexamine its approval of the project in April 2021.

Instead, the service issued a supplemental decision memo reapproving the project in May 2021. The alliance then sued the service again and U.S. District Court Judge Barry Winmill blocked the project in July 2021.

The Biden administration filed two appeals, arguing it has no procedural duty to analyze, approve or replicate a community plan’s identification of the wildland-urban interface — especially since the alliance’s argument was not brought up during the notice’s comment period.

“By reading such a procedural duty into HFRA, the district court violated settled law prohibiting the imposition of procedural duties not explicitly enumerated in the pertinent statute. Its judgment should be reversed," the Forest Service said in its appellate brief.

The Ninth Circuit panel was eager to hear arguments, although U.S. Circuit Court Judge Jennifer Sung, a Joe Biden appointee, quickly cut off government attorney Joan Pepin to question the merits of the appeal.

“Are you conceding that if a community plan identified a wildland urban interface that is not within or adjacent to an at-risk community, as that term is defined in the statute, then the wildland urban interface would not comply with HFRA?” Sung asked. Pepin agreed.

“And so then, my question is if a community plan had a noncompliant wildland urban interface identified in it, is your position that the service could still rely on it?” asked Sung.

“No,” said Pepin, explaining how compliance is a matter of opinion for the service and that if it deemed a community plan as noncompliant, only then would it not be required to implement projects in the wildland urban interface.

U.S. Circuit Court Judge Ryan D. Nelson, a Donald Trump appointee, remained skeptical, later questioning whether they were dealing with a factual determination or a legal determination. Pepin argued the latter, but the judges were less convinced.

U.S. Circuit Court Judge Danielle J. Forrest, another Trump appointee, asked, “We’ve got a federal statutory definition and then we’ve got a community plan that seems to define the same term and those definitions don’t exactly match and the scope seems different, and you want us to just ignore that?”

Pepin said it's the responsibility of the Alliance to prove whether the service’s definition of a wildland-urban interface was out of compliance.

“If this were a pure legal question, I’d be more inclined to go your way on this,” Nelson said, and much of Pepin’s allotted time continued in the same fashion. However, judges saved just as much skepticism for alliance attorney Rebecca Smith, who stuck to initial argument that the service’s adoption of Bonner County’s wildland-urban interface plan did not satisfy the statutory definition for exclusion.

Smith noted the notion that the categorical exclusion allows the agency to self-invoke the exclusion without any check had been rejected by the lower court. “That strips away that public ability to participate in public plans,” Smith said.

Additionally, Smith argued that should the service be found noncompliant, there is also the question of whether at-risk communities or federal lands are truly adjacent to the project and what exactly “adjacent” means. She told the panel the service essentially took two communities separated by forestland and drew a circle around it, claiming all land between was urban-wildland interface.

Judge Nelson took to Smith’s second argument but questioned whether the lower court misconstrued the definition of “adjacent” for the first lawsuit. “If that's true, then the district court just flat out got it wrong and we got to send it back,” Nelson said.

Pepin later argued the distance between at-risk communities and the project was reasonable, especially given how quickly wildfires spread. “There was a fire in this area that traveled 16 miles in nine hours. So, there’s nothing at all unreasonable about a project area three miles out where it’s infested and in declining health," Pepin said of the forest.

With that, judges moved on to the next case and with no indication on how they may lean.

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