By Michael Howell
A couple of objectors to the Bitterroot National Forest’s proposed Westside Collaborative Vegetation Management Project (Westside Project) have filed suit in federal district court in Missoula to stop the project. Fred Rohrbach and Bitterroot LLC are alleging that the process utilized by the Forest Service and the Westside Project’s final decision does not comply with specific requirements of the Healthy Forests Restoration Act (HFRA). They also allege that the decisions and conclusions in the Decision Notice and Finding of No Significant Impact (FONSI) are arbitrary and capricious, constitute an abuse of discretion, and are otherwise not in compliance with the law. They are seeking declaratory relief that the Forest Service failed to comply with the requirements of HFRA, NEPA [the National Environmental Policy Act, although it’s referred to as the National Environmental “Protection” Act throughout the complaint documents], and its own policies and procedures in making its decision to approve the Westside Project. They are asking the Court to render that decision null and void.
The plaintiffs, represented by attorneys David Markette and Del Post, are also seeking an injunction prohibiting the Forest Service from proceeding with the Westside Project, or alternatively constructing a bridge over Camas Creek, new permanent roads north of Camas Creek, advertising and accepting bids for timber harvest, entering into contracts for extraction of timber in Units 2a and 2b, and from engaging in activities or any action that will permanently damage the lands in Units 2a and 2b until the Forest Service complies with the law.
They are asking for an award of costs of suit, including attorney and expert witness fees pursuant to the Equal Access to Justice Act.
The Westside Project proposes to treat approximately 2,327 acres on the west side of the Bitterroot Valley from Roaring Lion Creek to Lost Horse Creek. The Final Decision authorizing the Westside Project was signed by Bitterroot National Forest Supervisor Julie King on July 5, 2016. The project encompasses approximately 5700 acres. Camas Creek traverses through the middle of the project. Approximately one third of the project area is located north of Camas Creek and includes a major portion of the Coyote Coulee trail system, a popular trail system for hiking, horseback and bicycling recreationists, and an area designated as Inventoried Roadless Area (IRA) by the Forest Service.
The project proposes a new permanent bridge over Camas Creek and 3.8 miles of new permanent road. The bridge and majority of the new permanent roads will only provide access to Units 2a and 2b. Plaintiffs claim that Units 2a and 2b only comprise a small percentage of the overall treatment area, and have a disproportionate share of the new major environmental impacts concentrated in this area. They also claim that under HFRA the Forest Service is prohibited from putting in any permanent new roads under this expedited process.
Plaintiffs claim that the Forest Service dropped the ball completely on the requirement to “collaborate” with landowners in the area. They claim that the Forest Service’s representation on April 1, 2015 that it did not have maps or a firm proposal regarding the Westside project was false and misleading. They claim maps outlining the project were produced as early as March 2014. They claim the first public open house about the project, held on July 22, was noticed only four business days in advance. They claim there was no presentation by the Forest Service at the meeting “and certainly no collaboration with the public” at the meeting. Public comments on the project were due only six days later, on July 28.
“The public had no meaningful opportunity to collaborate regarding the preparation of the project, only to comment on a project that, unbeknownst to the public, had already been planned years before by the Forest Service,” they claim in the suit. They claim the Forest Service did not issue a scoping letter and map until August 26, 2015 providing the public with its purpose and necessity for the Westside Project for the first time. They called it “an opaque and nontransparent process, with a pre-determined outcome that was long favored by the highest ranking local Forest Service officials.”
The plaintiffs offer a long list of acts and/or omissions that they believe exhibit the lack of collaboration:
- failing to conduct a public meeting during the preparation stages of the Westside Project;
- failing to provide adequate notice to the public of a public meeting;
- preparing the Westside Project without collaborating with the public;
- withholding and failing to timely provide information to the public about preparations the Forest Service had already made on the Westside Project;
- providing false and misleading information to the public, specifically Plaintiffs, about the Westside Project;
- failing to adequately and truthfully respond to information requests about the Westside Project;
- failing to engage and collaborate with adjacent landowners, and specifically Plaintiffs, whose lands will be affected by the Westside Project;
- informing the public that the Forest Service had requested private access easements from private landowners when, in fact, it had not;
- failing to comply with the Forest Service’s own guidelines and policies to collaborate “early and often”;
- failing to comply with the Forest Service’s own guidelines and policies to be transparent during the decision making process of the Westside Project;
- entering into an agreement with Ravalli County regarding the maintenance and improvement of public roadways without engaging, collaborating with, or even informing, the public until after such agreements were made;
- entering into contracts with third parties and expending public resources in furtherance of the Westside Project before the project was finally approved and before the Forest Service’s “collaboration” efforts were concluded;
- summarily rejecting the public’s concerns and comments, characterizing many concerns as “NIMBY” (not in my back yard), without honestly assessing the substance of the concerns;
- otherwise failing to adhere to the Forest Service’s own guidelines and policies; and
- attempting to shift the burden of developing alternatives, obtaining access, and collaboration to Plaintiffs and others similarly situated.
The Forest Service’s final approval of the Westside Project violates the APA insofar as the Forest Service failed to consider alternatives to constructing a new bridge and new permanent road system, shifted the burden to the public to find viable alternatives to certain aspects of the Westside Project, failed to consider an alternative road location proposed by Plaintiffs, relied on the false premise that adjacent landowners refused to grant access easements as an alternative to constructing the bridge and road system, incorrectly concluding that the Westside Project will have no significant impact under NEPA, and otherwise failed to comply with applicable law.
The Forest Service failed to comply with HFRA and NEPA by failing to conduct an environmental assessment which addressed the environmental and human impacts of a new bridge and permanent road system, failing to provide an EA that satisfies the Forest Service’s own Healthy Forests Initiative guidelines, artificially altering the need and purpose of the Westside Project in an attempt to justify a new bridge and road system, failing to adequately analyze alternatives to a new bridge and road system, and failing to adequately assess other viable alternative treatment methods
Plaintiffs also allege that the Forest Service violated NEPA’s prohibition against the pre-approval commitment of resources by entering into agreements with contractors; entering into an agreement with and paying approximately $33,000 to an engineering firm to provide final design and specifications for the construction of a bridge across Camas Creek before the objection period was even through; marking trees with spray paint; entering into agreements with Ravalli County regarding the maintenance and improvements of county roads necessary for access to the project and for extraction of timber from the project area.
“The Forest Service’s conduct prior to its final approval of the Westside Project demonstrates that it predetermined the outcome of its review process, and that its ‘collaboration’ efforts were merely window dressing for the project, as opposed to any sincere attempt to meaningfully seek input of the public,” the lawsuit states.
They claim despite the Forest Service’s assessment and conclusion to the contrary, portions of the Westside Project will have significant adverse environmental impacts and will affect public health and historical and cultural sites in the project boundary and a full Environmental Impact Statement (EIS) should have been conducted.
Plaintiffs are asking the Court to declare the Forest Service’s decision null and void because it failed to collaborate with the public as required under HFRA, NEPA, and its own guidelines and policies; that the Final Decision authorizing the Westside Project is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law; and that the process used by the Forest Service and the Final Decision authorizing the Westside Project is in violation of statutory jurisdiction, authority, or limitations embodied in the law.
In the alternative they ask the court to vacate the final decision with instructions to start over initiating a new project consistent with all applicable laws. They ask the court to enjoin the Forest Service from soliciting bids, procuring materials and services, and from commencing or taking action in furtherance of the Westside Project until the Forest Service complies with the law. They also seek costs and reasonable attorney fees for their action.