Feds ask Ninth Circuit to reverse block on logging project in Idaho forest

(CN) — The Department of Justice told a Ninth Circuit panel Wednesday that they should allow a wildfire prevention logging project planned in the Idaho Panhandle National Forest to move forward because it does not violate federal rules limiting road density around grizzly bear recovery zones.

Environmental group Alliance for the Wild Rockies sued the Forest Service in 2018 over Hanna Flats Good Neighbor Authority Project, a vegetation management 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 alliance argues the Forest Service’s approval of the project violated the 2011 Forest Plan Amendments for Motorized Access Management, which aimed to address the threat roads have on grizzly bear habitats by prohibiting any “net permanent road increases” of total roads in designated recovery zones above the “baseline conditions.”

The alliance further argued the government’s approval of the plan violated the National Environmental Policy Act, the National Forest Management Act, the Healthy Forest Restoration Act and the Administrative Procedure Act.

The project was twice suspended by federal judges before a panel of Ninth Circuit judges reversed the preliminary injunction in place and remanded the case back to the lower court.

This March, a third federal judge ruled against the government, sending the matter back to the Forest Service to address the plan’s deficiencies without fully eliminating the agency’s plans to help prevent wildfires in the area.

On Wednesday, the government argued the project did not violate the 2011 Access amendment, claiming it actually reduced permanent road miles by 1.2 miles.

“The sole issue in this appeal is simple. Does the Hannah Flats project violate a forest plan standard that prohibits increases in road miles when the project reduces road miles? In other words, can a project be unlawful when it doesn’t cause or contribute to the alleged violation? The answer is no, and the district court erred in concluding otherwise,” Jacob Ecker, representing the government, said.

Ecker told the panel the government only needed to factor in permanent miles when calculating total road miles under the access amendments, and not temporary roads that would be used during project construction.

He also fielded questions over a previously unknown 23.6 miles of road that were discovered after the 2011 access amendment baseline was implemented. The Forest Service added the additional miles to the 2011 baseline in 2021 via a two-page memo; however, Ecker said that a lower court ruled the change was major enough to have warranted a formal amendment to the forest plan.

“It is an extremely resource-intensive process to go in and amend a forest plan,” he said. “But the overarching point is that because it reduces permanent road miles, it doesn’t really matter whether we’re at the higher number or the lower number, because this project doesn’t contribute to it.”

However, Rebecca Smith of the Public Interest Defense Center had several concerns with the addition of the 23.6 miles, arguing that the law requires the decrease to be from the original access amendment baseline.

“Your argument is under the temporary road closure, the Forest Service has an obligation then to eliminate newly found roads that should have been in the baseline, so that everything is to the baseline, even if the project is not the cause of that overage, correct?” U.S. Circuit Judge Jennifer Sung Biden, a Joe Biden appointee, asked her.

“Yes, your honor, because that’s what the standard requires,” Smith responded, adding, “You can just create closed roads, you can just issue a closure, you can absolutely bring it back … at the completion of every project, but as long as no court is willing to enforce this provision, they’re just not going to do that, and the roads are just going to keep increasing and increasing.”

Smith further argued there was little information on the additional miles of road because the Forest Service did not go through a formal amendment process to add the miles, so there is no documentation of where the roads are or how long they’ve been used.

“For all we know, they could have been implemented in the last five years. In 2011, when the access amendment passed, that was 15 years ago. Some of those motorized trails could have been built since then, and we don’t know,” she said.

Ecker argued that if the court wants to analyze the meaning of what is included in the 2011 baseline, it would “present a bit of a quandary for the Forest Service.”

“If that language were read to mean that you have to fix every existing problem that you never touched in this project, it would make it prohibitively difficult to have projects that incrementally improve conditions in the forest, and that’s what the Hannah Flats project does,” he said.

He added that the government’s position was “you put back the things you moved, you don’t have to fix everything in existence at the time of the project.”

Smith additionally cast doubt on the government’s ability to effectively close any temporary roads, arguing that a net decrease in road miles only matters if the roads can’t be accessed.

“If the 1.2 miles isn’t gated, then that wouldn’t be a decrease, and so they can’t really make this argument that they have a 1.2-mile decrease,” she said.

However, U.S. Circuit Judge Ryan D. Nelson, a Donald Trump appointee, was wary of the alliance’s arguments as to whether the government could properly close roads.

“I’m very hesitant to take one of your alternative arguments and say, oh yeah, but there’s no gates here. I mean, that just seems like something we would remand to the district court,” he said.

The panel did not indicate when they would release a ruling.

Representatives for the parties did not immediately respond to a request for comment.

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