This amicus brief was submitted to the United States Court of Appeals for the Ninth Circuit in North Cascades Conservation Council v. United States Forest Service.
Summary of the Argument
Forests are not static but complex and living ecosystems. Planning for forest restoration must be equally dynamic and flexible. In this case, however, North Cascades Conservation Council (NCCC) seeks to impose unnecessary and impractical constraints on the Forest Service’s ability to restore forests while complying with NEPA.
NCCC challenges the Twisp Restoration Project, which would restore forest and watershed health, improve wildlife habitat (including for northern spotted owl, lynx, gray wolves, and mule deer), and reduce wildfire risks. NCCC objects to the Forest Service’s use of “condition-based management” to fit the projects’ restoration activities to forest conditions during implementation.
Under condition-based management, the agency authorizes restoration activities in an area but limits their implementation based on local, on-the-ground conditions. For instance, the Forest Service may authorize mechanical thinning to reduce insect and disease threats in an area vulnerable to such threats, but only allow it to go forward within a certain distance of an outbreak. Or it may authorize thinning to address overly dense forest conditions, but limit that activity to areas meeting conditions for slope, density, etc., and, within those areas, limit the extent of thinning based on the degree to which tree density departs from desired conditions. This allows the agency to document and understand the environmental impacts of its restoration work while narrowing implementation in light of on-the-ground conditions.
Condition-based management is “a method to meet NEPA’s requirements, not to avoid or shortcut them.” NCCC, however, asserts that this approach is never permissible under NEPA. Instead, it claims the Forest Service must predict exactly “which trees will be cut, how, [and] when,” which would demand of the Service an impracticable level of foresight that is contrary to this Court’s cases.
Forest conditions vary even within a single unit of analysis and, further, may change during the years that pass between an environmental analysis and on-the-ground work. Therefore, condition-based management provides necessary but limited flexibility to meet the Forest Service’s obligations to conserve forests while also complying with NEPA. The consequences of taking away this flexibility would extend far beyond this case, undermining the Forest Service’s ability to address an 80-million-acre backlog in forest restoration and tackle the wildfire crisis. The district court’s holding that condition-based management is a lawful way for the Forest Service to comply with NEPA should be affirmed.
