Slash and (Don’t) Burn: When Fuels Are Left For Dead

A motion to dismiss can be many things. Its denial at least means the suit persists.

We first brought the litigation over a hazardous fuel reduction project in Tahoe National Forest to light last August.  As our story pointed out, the Forest Service had undertaken a series of mechanical gather-and-burn actions in a sensitive part of the Forest.  A life-long user of that forest and conservation biologist, Dennis Murphy, sued challenging (among other things) the Forest Service’s NEPA documents.

The Forest Service defended claiming that the suit was “moot”: that by the time it came to court, the agency had decided to abandon its project and had no further plans of carrying out fuel reduction projects of the kind in that area of the Forest.

Well, hot off the presses—courtesy of Murphy’s very able counsel, Paul Weiland—is the judgment denying the Service’s motion to dismiss.  And it didn’t go quite as well for the government as they probably expected. Murphy Order (E.D. Cal.2016)

NEPA Relief: There When You (Really) Need It?USFS Badge Logo

Too often, as we’ve noted here at the Lab before, NEPA violations go unremedied (for a variety of reasons).  Mootness of a lawsuit by the time it comes before a court is just one of the ways in which agencies avoid any real reckoning for their NEPA misdeeds.

But in this case, the court wasn’t convinced that nothing could come of Murphy’s suit, especially since many of the slash piles that the Service created in the Upper Echo Lakes region are still sitting there, doing their damage and arguably increasing the risk of fires under the right conditions.  (As their fuels dry, they become that much more likely to ignite.)  Because the court probably lacked jurisdiction to order the Service to go out and physically remove the slash piles the agency had built, this motion to dismiss could only be denied if some other relief might rectify the harm of which plaintiffs complain.  What might that relief be?

A judgment requiring the Service to complete a NEPA review, even if it’s only the more summary “environmental assessment” and “finding of no significant impact” (EA/FONSI) could possibly help plaintiff, at least according to U.S. District Judge Troy Nunley, would be such relief.

[I]f withdrawal of a partially completed project rendered a case moot, an agency “could merely ignore the requirements of NEPA, [withdraw a project divided into two phases after completing the first phase] before a case gets to court, and then hide behind the mootness doctrine.” [citations omitted] Moreover, effective relief is still available to remedy ongoing harm to Plaintiff’s interests and includes remanding for additional environmental review. “Remand [to the agency to act in compliance with its statutory obligations] is usually the appropriate remedy ….. If the Forest Service is required to undertake additional environmental review, it could consider ways to mitigate damage incurred on the Northeast side of Echo Lake during Phase One.

Murphy v. U.S. Forest Serv., No. 2:13-cv-02315-TLN-AC (E.D. Cal. 2016), Order Denying Defendants’ Motion to Dismiss at 4-5.

The court also denied plaintiff’s motion to amend the complaint, but this denial of the government’s motion to dismiss is a potentially fascinating turn in the matter.

If the theory is—as it seems to be—that ordering the agency to remediate a prior, substandard NEPA document even after the underlying action(s) have been abandoned because that retrospective study might then redound to the plaintiff’s benefit in the form of changed future decisions, then that is a robust theory of NEPA indeed.  Readers will want to keep an eye on this suit as it either settles or progresses still further.

{Image: Slash piles being assembled by the National Park Service at Fort Barry}

 

 

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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