All. for Wild Rockies v. Higgins

690 F.Supp.3d 1177

ALLIANCE FOR the WILD ROCKIES, Plaintiff, v. HIGGINS, et al., Defendants.

Case Nos.: 2:21-cv-00244-REP

United States District Court, D. Idaho

Signed September 6, 2023

Rebecca Kay Smith, Public Interest Defense Center, P.C., Missoula, MT, for Plaintiff.

Emma L. Hamilton, DOJ-Enrd, Environment and Natural Resources Division, Denver, CO, John P. Tustin, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

Raymond E. Patricco, Chief United States Magistrate Judge

Pending before the Court is Plaintiff's Renewed Motion for Preliminary Injunction and/or Temporary Restraining Order (Dkt. 29). As set forth below, the Court issues a temporary restraining order to preserve the status quo pending the completion of proceedings pursuant to a preliminary injunction.

I. BACKGROUND

On October 11, 2018, Defendant United States Forest Service ("USFS") issued a Decision Memo (the "Initial Decision Memo") authorizing the Hanna Flats Project (the "Project"). The Project is located in Bonner County on the Priest Lake Ranger District of the Idaho Panhandle National Forest. It was designed to reduce the risk or extent of insect or disease infestation and reduce the current and future risk of catastrophic wildfire to people, public and private lands, and infrastructure. The 6,814-acre Project area is dominated by dense, mixed-conifer forest stands with large amounts of surface, ladder, or canopy fuels. It authorizes various treatments on 2,352 acres, including timber harvest, prescribed fire, and reforestation. The Project also authorizes temporary road construction, excavated skid trail construction, and road maintenance.

Relevant here, the USFS issued the Initial Decision Memo under Section 603 of the Healthy Forest Restoration Act ("HFRA"), which exempts qualifying insect and disease projects in wildland-urban interfaces from the requirements of the National Environmental Policy Act ("NEPA"). As a result, no Environmental Assessment ("EA") or Environmental Impact Statement ("EIS") was ever prepared for the Project.

A. Hanna Flats I and the Initial Decision Memo

Plaintiff Alliance for the Wild Rockies ("Alliance") challenged the Initial Decision Memo in an earlier action before U.S. Magistrate Judge Ronald E. Bush - Hanna Flats I. There, Alliance argued that, in approving the Project via the Initial Decision Memo, the USFS (i) violated the Access Amendments¹ (First, Second, Third, and Sixth Claims for Relief); and (ii) failed to establish that the Project meets the statutory definition of wildland-urban interface (Fourth and Fifth Claims for Relief). On the parties' cross-motions for summary judgment, Judge Bush preliminarily concluded that Alliance's Access Amendments-related claims could not be resolved as a matter of law, owing to the constantly-evolving record relating to the USFS's and USFWS's reinitiation/conclusion of Endangered Species Act ("ESA") Section 7 consultations. All. for the Wild Rockies v. Higgins (Hanna Flats I), 535 F. Supp. 3d 957, 963 n.5 (D. Idaho 2021). He in turn denied both motions for summary judgment, without prejudice, as to Alliance's First, Second, Third, and Sixth Claims for Relief. Id. at 963-64, 81.²

Thus, Hanna Flats I substantively addressed only Alliance's wildland-urban interface-related claims. Defendants took the position that, because the Project area had been designated as a wildland-urban interface in the Bonner County Wildfire Protection Plans, the Project met the definition of a wildland-urban interface under HFRA and the Project was therefore categorically exempt from the NEPA process. Alliance disagreed, claiming that, while there is a categorical exclusion for wildland-urban interfaces, the USFS did not sufficiently prove that as to the Project.

After Judge Bush concluded that Alliance had standing and sufficiently exhausted its administrative remedies (other procedural arguments made by the USFS), Judge Bush agreed with Alliance and rejected Defendants' position. He found that the USFS violated HFRA because it failed to use HFRA's statutory definition of wildland-urban interface. Therefore, the USFS could not claim that the Project was categorically excluded from NEPA compliance:

It is not enough to simply declare that the Project is within a wildland-urban interface, especially when the intended purpose of doing so - as in this case - is to avoid the requirement of preparing an EA (or EIS) as would otherwise be required under NEPA. There must be something else that connects the dots and thereby would support Defendants' position that the categorical exclusion under HFRA applies to the Project. Perhaps the foundation for claiming the categorical exclusion could have been constructed, but it was not. The Scoping Notice and the [Initial] Decision Memo - the two documents that expressly align the Project's incorporation within the wildland-urban interface with a categorical exclusion - do not define the wildland-urban interface or identify its contours so as to prove its existence atop the Project. The same criticism can be levelled against the Bonner County Wildfire Plans (from which the Scoping Notice and the [Initial] Decision Memo presumably draw upon to assert that the Project is within the wildland-urban interface), in that neither of the Wildfire Plans' wildland-urban interface demarcations is capable of verification in any meaningful way - regardless of which Wildfire Plan the USFS used for the Project. In short, simply saying that the Project is within the wildland-urban interface, without more, does not make it so.

Even if one could reverse-engineer from these materials the definition used by the USFS to conclude that the Project is within the wildland-urban interface, it would still fail HFRA's definition for the same. That is, whatever definition (uncertain or lacking entirely) of wildland-urban interface the USFS applied to the Project, it did not clearly take into account at-risk communities as required by HFRA . . . . To state - as Defendants do - that a community wildfire protection plan (like either Bonner County's 2012 or 2016 Wildfire Plans) by itself suffices to establish a wildland-urban interface for the purpose of invoking a categorical exclusion, ignores these realities . . . . The Court must give meaning to all the words used in defining wildland-urban interface and thus cannot read out HFRA's explicit incorporation of at-risk communities in the definition of wildland-urban interface, or ignore HFRA's simultaneous definition of at-risk communities themselves.

To be clear, this is not to say that community wildfire protection plans are not important and cannot be relied upon when assessing wildland-urban interfaces - just the opposite; after all, they too are specifically integrated into the definition of a wildland-urban interface. But a wildfire protection plan's utility presumes its synergy with HFRA such that, where it does not coincide with HFRA (e.g., when it defines wildland-urban interface differently than HFRA does), it cannot then operate as justification for a categorical exclusion under HFRA. Otherwise, a local county could designate their entire county as wildland-urban interface in a community wildfire protection plan, and then use that designation as the basis to categorically exclude logging projects throughout the county without the protections of NEPA. Recognizing the importance of the public's participation in federal actions that affect the environment, this is a problem. The sideboards provided within HFRA, if followed, harmonize these and other relevant considerations.

In sum, it is unclear how the wildland-urban interface was defined here so that it could be confirmed that the Project sits within such an area and therefore qualifies for a categorical exclusion. At the very least, the statutory definition of wildland-urban interface was not used; as a result, the USFS violated HFRA, rendering its use of the categorical exclusion unlawful. Alliance's Motion for Summary Judgment (as to the Fourth Claim for Relief) is granted in this respect.

Id. at 977-79 (internal citations omitted).³

Judge Bush remanded the action to the USFS to revisit its claim that the entire Project is within a wildland-urban interface. Id. at 980. He required the USFS to issue a Supplemental Decision Memo that "clearly: (i) states how the wildland-urban interface is defined; (ii) applies the wildland-urban interface (using the supplied definition) to a map that concurrently and definitively depicts the Project area; and (iii) explains how the Project area falls within the wildland-urban interface under HFRA." Id. at 980-81 ("The point of this exercise is to allow whatever conclusion is reached to be replicated, tested, and confirmed."). In the meantime, Judge Bush suspended the Project. Id.

B. Hanna Flats II and the Supplemental Decision Memo

On May 28, 2021, the USFS issued a Supplemental Decision Memo. On June 1, 2021, the USFS informed Alliance that it had complied with Judge Bush's remand order in Hanna Flats I and that it may begin logging under the Project as soon as July 2, 2021.

Alliance challenged the Supplemental Decision Memo in a subsequent action before U.S. District Judge B. Lynn Winmill - Hanna Flats II. There, Alliance argued that the Project remained unlawful under both the Initial Decision Memo and the Supplemental Decision Memo. It alleged that (i) the USFS still failed to demonstrate compliance with the Access Amendments (First Claim for Relief); and (ii) the Supplemental Decision Memo did not comply with Judge Bush's remand order in Hanna Flats I and still failed to meet the statutory definition of wildland-urban interface (Second Claim for Relief) regardless. The next day, Alliance moved for a preliminary injunction and/or temporary restraining order, seeking to maintain the status quo until Judge Winmill could issue a final decision on the merits of the case.

Judge Winmill granted Alliance's motion. Applying the Winter fact...