EARTH ISLAND INSTITUTE V. USFS, No. 22-16751 (9th Cir. 2023)
Annotate this CaseThe United States Court of Appeals for the Ninth Circuit affirmed the district court's summary judgment in favor of the U.S. Forest Service in a case brought by Earth Island Institute and the Center for Biological Diversity. The plaintiffs challenged the Forest Service's approval of the Three Creeks Project, which aimed to restore the Inyo National Forest to its pre-European settlement conditions by thinning excess trees, removing excess fire fuel, and using prescribed fire. The plaintiffs argued that the Forest Service failed to adequately consider alternatives to logging, failed to solicit public comments following its 2018 Environmental Assessment, and failed to supplement its National Environmental Policy Act (NEPA) analysis following a 2020 bark-beetle outbreak. The court found that the plaintiff had not shown that the Service's approval of the Three Creeks Project was arbitrary, capricious, or otherwise unlawful. The Service considered a reasonable range of alternatives, offered the public a reasonable opportunity to comment, and was not required to conduct further NEPA analysis following the bark-beetle outbreak. The court also held that the plaintiff had not properly raised its proposed alternatives during the comment period, and therefore it failed to exhaust its argument. Additionally, the court did not consider the plaintiff's claim regarding the Inyo Craters Project since it was not included in its amended complaint.
Court Description: Environmental Law The panel affirmed the district court’s summary judgment in favor of the U.S. Forest Service in an action challenging the Service’s approval of the Three Creeks Project.
Plaintiffs alleged that the Service failed to adequately consider alternatives to logging, failed to solicit public comments following its 2018 Environmental Assessment, and failed to supplement its National Environmental Policy Act (NEPA) analysis following a 2020 bark-beetle outbreak and the subsequent Inyo Craters Bark Beetle Hazard Tree Abatement Project.
The panel held that plaintiff had not shown that the Service’s approval of the Three Creeks Project was arbitrary, capricious, or otherwise unlawful. The Service considered a reasonable range of alternatives, offered the public a reasonable opportunity to comment, and was not required to conduct further NEPA analysis following the bark-beetle outbreak. The panel held that because plaintiff failed to raise its proposed alternatives during the comment period, it failed to exhaust its argument, and the panel need not reach the merits of the suggested alternatives.
Since plaintiff did not include its claim regarding the Inyo Craters Project in its amended complaint, the panel did not consider it. Because the Service acted in accordance with its own regulations, NEPA, and the Administrative Procedures Act, the panel affirmed the summary judgment in the Service’s favor.
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