Court Enjoins "Salvage Harvest" Project in Area Scorched by the Mill Fire
Posted in Consultation

In 2012, the Mill Fire burned almost 30,000 acres in California, destroying large areas of forest, including threatened Northern spotted owl (Strix occidentalis caurina) habitat.  Even after the Mill Fire was finally snuffed out, it continued to have a lasting impact on the environment, as the fire created hazardous conditions along roads and trails used by the public and the National Park Service.  

After preparing an Environmental Assessment and Biological Assessment, on April 23, 2013, the U.S. Forest Service (Forest Service) approved the Mill Fire Salvage and Hazard Tree Removal Project (Project), authorizing "salvage harvest" activities in areas that overlapped with Northern spotted owl habitat.  According to the Forest Service's statement of purpose, the Project was intended to address, among other things, the hazardous conditions created by the Mill Fire.  In addition to approving the Project, the Forest Service made an "emergency situation determination."  As a result of this determination, the Forest Service was authorized to implement the Project immediately after publication of its notice of decision, and the right to administrative appeal was eliminated.  

On April 26, 2013, a plaintiff environmental group served the Forest Service with a "60-day notice to sue" under the Endangered Species Act (ESA).  Three days later, on April 29, 2013, the plaintiff filed suit in federal court.  The complaint alleged that the Forest Service violated the National Forest Management Act and the National Environmental Policy Act (NEPA).  Although the plaintiff did not allege a separate ESA claim, it did "nest" an ESA claim within the alleged NEPA violation.  Specifically, the plaintiff alleged that, because the Forest Service violated the consultation requirement in the ESA, the Forest Service was required to prepare an Environmental Impact Statement (EIS) for the Project.    

On September 6, 2013, the United States District Court for the Eastern District of California found that the Forest Service had violated NEPA and failed to consult as required under the ESA.  Conservation Congress v. U.S. Forest Service, No. Civ. S-13-0832 (Sept. 6, 2013) (pdf).  The district court enjoined the Forest Service from conducting any "salvage harvest" activities within the Project area.  

With respect to the NEPA claim, the court stated that "if the Forest Service's proposed action threatens to violate federal environmental law - including the Endangered Species Act - an EIS is required."  After noting that consultation is required under the ESA whenever a project may affect a listed species (whether beneficially or negatively), and citing to numerous documents in the record wherein the Forest Service asserted that the Project would beneficially affect the Northern spotted owl, the court concluded that consultation with the U.S. Fish and Wildlife Service (Wildlife Service) was required under the ESA.  

Because consultation was required, the court next analyzed the communications between the Forest Service and Wildlife Service regarding the Project to determine if such consultation occurred.  The Forest Service admitted that it did not "formally consult" with the Wildlife Service, but alleged that it had complied with the ESA's consultation requirement by informally consulting with the Wildlife Service.  As part of its analysis, the court examined whether the Wildlife Service had issued a letter confirming that it concurred with the Forest Service's determination.   

The court found that the Forest Service had failed to informally consult with the Wildlife Service, since instead of requesting informal consultation and a concurrence from the Wildlife Service, the Forest Service merely requested "technical assistance regarding the scientific soundness of its analysis."  Additionally, the court found that the Forest Service had failed to comply with the ESA's consultation requirement because, even if an informal consultation had taken place, "it did not result in the required concurrence of [the Wildlife Service]."  

Accordingly, the court held that the Forest Service violated the ESA, and thereby violated NEPA.  In reaching this conclusion, the court rejected the Forest Service's argument that the ESA challenge was barred because of the plaintiff's failure to comply with the ESA's 60-day notice requirement.  The court explained that in this case, because the Forest Service had issued an emergency situation determination, if the plaintiff complied with the 60-day notice requirement the Project "could be over and done with by the time it could file the ESA claim."  Therefore, under the specifics of this case, the Court found the failure to comply with the 60-day notice requirement was not fatal.  

  • Benjamin Z. Rubin

    Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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