(CN) — A Ninth Circuit panel on Tuesday reversed a lower court’s ruling that had blocked the Hanna Flats logging project in the Idaho Panhandle National Forest, which includes several thousand acres of grizzly bear territory.
The ruling will allow the U.S. Forest Service to resume its designation of parts of the national forest for commercial logging — a treatment aimed at reducing the risk of wildfires and disease.
Environmental group Alliance for the Wild Rockies sued the Forest Service in 2019 after the authorization of the Hanna Flats logging project, which permitted extensive commercial logging and prescribed burning, temporary road construction and maintenance and excavated skid trail construction next to a recovery zone for the protected Selkirk grizzly bear.
The logging project also lies within the Priest Bears Outside Recovery Zone, a habitat the alliance says is already degraded by roads.
Nearly two years later, Chief U.S. Magistrate Judge Ronald E. Bush found the Forest 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 service skipped an environmental assessment, citing an exclusion exempting high-risk forest areas that are near urban development and adjacent to federal property.
The exemption also allows the Forest Service to address insect infestation and fire risks quickly. But since its 2017 scoping notice said the project lies within the wildland-urban interface defined by Bonner County’s Community Wildfire Protection Plan, it didn’t necessarily comply with the statutory definition. This led Bush to remand the project’s approval, and the Forest Service subsequently issued a supplemental decision memo reapproving the project in May 2021.
The alliance then sued the service again, prompting U.S. District Court Judge Barry Winmill to block the project in July 2021, deciding that the service could not invoke categorical exclusion.
The Biden administration filed two appeals — both heard in October 2022 — 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.
On Tuesday, a Ninth Circuit panel agreed with this argument regarding the first case, ruling that the district court erred in deciding the alliance’s public comments put the service on notice of its eventual claim.
“Here, alliance’s vague and generalized statement that the district court cites, contained within more than a hundred pages of comments, did not provide sufficient notice to the government of alliance’s current concerns,” U.S. Circuit Judge Ryan D. Nelson, a Donald Trump appointee, wrote in the panel's opinion.
Nelson added that the alliance’s comment did not address any violation of the Healthy Forests Restoration Act, nor did it allege that the logging project fell outside of the wildland-urban interface.
“Even more, the wildland-urban interface definition complained about (found in the glossary of terms attached to the Idaho Panhandle National Forests Land Management Plan) is identical to HFRA’s definition of wildland-urban interface,” Nelson wrote. “This comment could not have reasonably alerted the Forest Service to Alliance’s eventual claim that the Project violated HFRA’s definition of wildland-urban interface, when the comment complained of the very definition used by HFRA.”
As for the second appeal, however, the panel agreed with the district court’s ruling that the Forest Service’s reliance on Bonner County’s Community Wildfire Protection Plan was insufficient to apply categorical exhaustion. Yet, because judges found the district court’s conclusion based on an “erroneous interpretation of the HFRA,” it ultimately remanded the court’s decision and vacated its preliminary injunction.
“The district court erred in its interpretation,” Nelson wrote. “In fairness, HFRA is not a model of clarity and contains several interrelated provisions. But a careful reading of the unambiguous text shows that a project is subject to the categorical exclusion when it is ‘in the wildland-urban interface.’ An ‘area’ qualifies as ‘wildland-urban interface’ if it is ‘within or adjacent to an at-risk community.’ And a community is ‘at risk’ if it is ‘within or adjacent to Federal land.’”
Nelson explained that under the district court’s interpretation, “even if a project falls within a properly defined wildland-urban interface, the project is not valid unless it also directly borders or abuts an at-risk community. Yet nothing in the statutory language supports this limitation.”
On appeal, the alliance argued that even if the district court erred in issuing the preliminary injunction, the Ninth Circuit should leave it in place while the lower court works out the questions on remand. The panel disagreed. Nelson wrote that it is counterintuitive to maintain a preliminary injunction when the district court abused its discretion in issuing it.
Nelson also wrote that the alliance made no argument that irreparable harm or mootness would arise before it could renew its request for a preliminary injunction.
“Ultimately, whether to issue a preliminary injunction — or, in this case, retain one — 'is an exercise of discretion and judgment,’” Nelson wrote. “And here, there is no reason to conclude that we should exercise our equitable discretion to leave an injunction in place that was wrongly granted, and where no likelihood of success on another claim is clear.”
U.S. Circuit Judges Danielle J. Forrest — also a Trump appointee — and Jennifer Sung, a Joe Biden appointee, rounded out the panel.
Attorneys for the alliance did not immediately respond to requests for comment.
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