Valley County v. United States Department of Agriculture et al

Filing 124

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider (docket no. 111 ) is GRANTED, and the Court finds that the 2010 EA and associated FONSI violate NEPA. IT IS FURTHER ORDERED, that the motion to interven e (docket no. 119 ) is GRANTED IN PART AND DENIED IN PART. It is granted to the extent it seeks permissive intervention for Adams County and Idaho County, with the restrictions set forth in the Memorandum Decision. It is denied to the extent it seeks intervention for Washington County. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

VALLEY COUNTY, IDAHO
Civil Action No. 1:11-cv-233-BLW
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE, an agency of the United
States; TOM VILSACK, in his capacity as
Secretary of Agriculture of the United States;
UNITED STATES FOREST SERVICE, an
agency within the Unites States Forest
Department of Agriculture; TOM TIDWELL,
in his capacity as Chief of the United States
Forest Service; HARVEY FORSGREN, in his
capacity as Regional Forester for the
Intermountain Region of the United States
Forest Service; BRENT L. LARSON, in his
capacity as Forest Supervisor of the CaribouTarghee National Forest; and KEITH
LANNOM, in his capacity as Forest
Supervisor for the Payette National Forest,

MEMORANDUM DECISION AND
ORDER

Defendants.
IDAHO RECREATION COUNCIL, an Idaho
non-profit corporation; CHRIS and LOIS
SCHWARZHOFF, husband and wife;
Plaintiffs,
v.
UNITED STATES FOREST SERVICE, a
federal agency within the Department of
Agriculture; SUZANNE C. RAINVILLE,
Forest Supervisor, Payette National Forest;
and BRANT PETERSEN, District Ranger,
Krassel Ranger District, Payette National
Forest,
Defendants.

Memorandum Decision & Order – page 1

Consolidated Case: 1:09-cv-275-BLW

INTRODUCTION
The Court has before it a motion to reconsider filed by Valley County, and
motions to intervene filed by Adams County, Idaho County, and Washington County.
For the reasons explained below, the Court will (1) grant the motion to reconsider; (2)
grant the motions to intervene filed by Adams County and Idaho County; and (3) deny
the motion to intervene filed by Washington County.
LITIGATION BACKGROUND
The Payette National Forest (PNF) issued a Final Environmental Impact Statement
(2007 FEIS) and Record of Decision (2008 ROD) that purported to evaluate the
environmental conditions of unauthorized roads without actually examining the roads
themselves. These decisions affected all thirteen of the Management Areas within the
PNF.
After receiving public criticism for this failure, the PNF conducted a focused
Environmental Assessment (EA) of two of the thirteen Management Areas in 2010. In
that 2010 EA – a study that was tiered to the 2007 FEIS – the PNF conducted the specific
environmental evaluation of unauthorized roads that was missing from the 2007 FEIS.
In addressing a challenge to all of these agency actions, the Court held that the
2007 FEIS violated NEPA because it used an undisclosed proxy method to substitute for
examining the roads themselves. See Memorandum Decision (Dkt. No. 107). The 2010
EA, however, satisfied NEPA because it abandoned the proxy method and actually
examined the roads at issue, at least in the two Management Areas it studied. Id.

Memorandum Decision & Order – page 2

The Court’s decision required the PNF to conduct a new study on all but two of
the thirteen Management Areas – the two areas that had been properly evaluated by the
2010 EA were Management Areas 12 and 13. The Court’s decision did not resolve the
remedy issue, but urged the parties to reach some resolution. If the parties were unable to
agree, the Court would resolve the remedy issue after receiving further briefing. But
before the remedy issue can be resolved, the Court must first resolve the pending
motions.
ANALYSIS
Motion to Reconsider
Valley County asks the Court to reconsider its earlier decision and hold that the
2010 EA violates NEPA. The effect of such a reconsideration would be to require that
Management Areas 12 and 13 be reevaluated by the PNF along with the other eleven
Management Areas.
In an argument not made in the prior briefing, Valley County cites Kern v. BLM,
284 F.3d 1062 (9th Cir.2002) for the proposition that an EA violates NEPA if it is tiered
to a flawed EIS, even if the EA corrects the flaw in the EIS. In Kern, the Circuit
reviewed an EIS and EA evaluating a timber sale in Oregon. The EIS failed to evaluate
the possibility that new timber-hauling roads could allow a deadly root fungus to spread
and kill Cedar trees. Id. at 1067-68. A subsequent EA did evaluate this threat, but only
focused on part of the area that would be logged. The EA was tiered to the EIS, and both
studies were tiered to Guidelines that discussed the fungus threat on a broad-scale basis
but without NEPA review.
Memorandum Decision & Order – page 3

The Circuit held that the EIS violated NEPA because (1) it failed to discuss the
fungus threat, and (2) it was tiered to the Guidelines that had never been subjected to
NEPA review. Id. at 1073. Turning next to the EA, the Circuit held that because it was
tiered to both the EIS and the Guidelines, the EA would be struck down unless “standing
alone” it satisfied NEPA. Id. at 1075. The Circuit held that the EA could not stand alone
because it evaluated the fungus threat on only a portion of the area logged, and NEPA
requires a stand-alone EA to conduct a cumulative impacts analysis: “If, as is the case
here, there is no analysis in the EIS, the scope of the required analysis in the EA is
correspondingly increased.” Id. at 1078. That “increased scope” required a cumulative
impact analysis taking into account the impacts in the EA’s study area combined with
planned logging in adjacent areas. Id. The EA did not conduct such a broad ranging
analysis and hence could not “stand alone.”
Kern applies here and requires reconsideration of the Court’s earlier decision.
Under Kern, the 2010 EA – tiered to the 2007 FEIS that violates NEPA – survives only if
“standing alone” it satisfies NEPA. Kern requires that to stand alone, the 2010 EA must
conduct a cumulative impacts analysis that evaluates impacts beyond Management Areas
12 and 13. The 2010 EA contains no such cumulative impact analysis. Accordingly, the
2010 EA cannot pass muster under NEPA. The Court will therefore grant Valley
County’s motion to reconsider and add Management Areas 12 and 13 to the other eleven
Management Areas that the PNF must re-evaluate.

Memorandum Decision & Order – page 4

Motion to Intervene
Three counties – Adams, Idaho, and Washington – seek to intervene in this case.
Two of the counties – Adams and Idaho – have land within the area evaluated under the
2007 EIS. The Court finds that with respect to those two counties, they meet all the
qualifications for permissive intervention. Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir.
2003). As they recognize in their briefing, this allows them to comment only on the
remedies for the established NEPA violations contained in the 2007 EIS, 2008 ROD, and
2010 EA – this does not open the door for them to challenge other environmental reviews
that pertain to land within their boundaries. Moreover, the Court will not allow any
repetitive briefing from these two counties – their briefing must be strictly limited to
concerns unique to their counties and not already covered by Valley County. With those
restrictions, the Court will grant permissive intervention to Adams County and Idaho
County.
Washington County has no land within the area studied by the 2007 EIS and 2008
ROD. They allege that roads “illegally closed by the ROD may begin or terminate in
Washington County” but are not sure. See Reply Brief (Dkt. No. 123) at p. 3. Such
allegations are not sufficient for intervention and the Court will deny the motion filed by
Washington County.
ORDER
In accordance with the Memorandum Decision set forth above,

Memorandum Decision & Order – page 5

NOW THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider
(docket no. 111) is GRANTED, and the Court finds that the 2010 EA and associated
FONSI violate NEPA.
IT IS FURTHER ORDERED, that the motion to intervene (docket no. 119) is
GRANTED IN PART AND DENIED IN PART. It is granted to the extent it seeks
permissive intervention for Adams County and Idaho County, with the restrictions set
forth in the Memorandum Decision. It is denied to the extent it seeks intervention for
Washington County.

DATED: January 5, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 6