Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 1 of 26
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`Brian A. Ertz (ISB# 9960)
`ERTZ LAW, PLLC
`Post Office Box 665
`Boise, ID 83701
`Telephone:
`(208) 918-1663
`Facsimile:
`(208) 545-9770
`Email: brian@ertzlaw.org
`
`Stephen Harris (CO State Bar #24178)
`ALPERN MYERS STUART LLC
`14 N. Sierra Madre Street, Suite A
`Colorado Springs, CO 80903
`Telephone:
`(719) 471-7958
`Facsimile:
`(719) 471-7958
`Email: Steve@ColoradoLawyers.net
`Pro hac vice application pending
`
`Jessica Christy
`CHRISTY LAW LLC
`2055 S. Oneida St., Ste. 394
`Denver, CO 80224
`Telephone:
`(720) 729-7016
`Email: jessica@christylaw.legal
`Pro hac vice application pending
`
`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT FOR
`THE DISTRICT OF IDAHO
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`WILDLANDS DEFENSE, ALLIANCE
`FOR THE WILD ROCKIES, NATIVE
`ECOSYSTEMS COUNCIL, YELLOWSTONE
`TO UINTAS CONNECTION
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`Plaintiffs,
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`TAWNYA BRUMMETT, in her official capacity as
`Boise National Forest Supervisor; RANDY MOORE,
`in his official capacity as Chief of the United States
`Forest Service; and UNITED STATES FOREST
`SERVICE
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`Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`1
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`Case No. 1:21-cv-425
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`(5 U.S.C. §§ 701-706; 42 U.S.C. §
`4321 et seq.)
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`

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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 2 of 26
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`INTRODUCTION
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`This action challenges the Sage Hen Integrated Restoration Project Decision
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`1.
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`Notice (the “Decision”) signed by Boise National Forest Supervisor Tawnya Brummett on April
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`14, 2021; the associated Environmental Assessment (“EA”) and Finding of No Significant
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`Impact (“FONSI”) published by the U.S. Forest Service (“Forest Service”) in November 2020;
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`the Forest Service’s Biological Assessment (“BA”) for Canada lynx, northern Idaho ground
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`squirrel, whitebark pine, and bull trout and bull trout critical habitat dated November 4, 2020;
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`and the U.S, Fish and Wildlife Service’s (“FWS”) Biological Opinion and Concurrence (“BOC”)
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`dated January 6, 2021. Plaintiffs bring this case under the National Environmental Policy Act of
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`1969 (“NEPA”), 42 U.S.C. § 4332 and the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
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`2.
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`The Sage Hen Integrated Restoration Project (“Sage Hen Project” or the
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`“Project”) area in the Boise National Forest spans nearly 67,800 acres, EA at 3, and almost every
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`acre in the Project area will be affected by some level of disturbance during the course of the
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`Project. According to the Decision, the Proposed Action may include up to 19,900 acres of
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`commercial timber harvest spread among 13 to 18 separate logging projects, Decision at 4; up to
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`83.1 miles of temporary roads, id.; between 35,000 and 45,000 acres that could be treated with
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`prescribed fire, EA at 28; and 11,200 acres that could receive hazardous fuels reduction and non-
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`commercial thinning, id. at 55. Further, the project area contains occupied critical habitat for bull
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`trout, a species listed as threatened under the ESA since 1999. EA at 21; Endangered and
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`Threatened Wildlife and Plants; Determination of Threatened Status for Bull Trout in the
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`Coterminous United States, 64 Fed. Reg. 58,910 (Nov. 1, 1999) (critical habitat designated on
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`October 18, 2010). The project area is shown in Figure 1.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`2
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 3 of 26
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`Figure 1. Map of the Sage Hen Integrated Restoration Project
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`3
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 4 of 26
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`3.
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`The Sage Hen Project is a massive undertaking, but the Forest Service does not
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`have a clear plan for the Project. An examination of the logging and prescribed burn project
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`maps indicate that the Forest Service is attempting to authorize any and all of these activities
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`throughout nearly the entire Project area, with no real decisions made about what treatments to
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`apply where until the project is already underway and can no longer be challenged by the public.
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`Figures 2, 3. Indeed, the prescribed burn map covers the entire project area, including the
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`Snowbank Roadless Area. The Decision seems to anticipate this result: “This decision approves
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`all project activities as described in the environmental assessment and proposed action changes
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`outlined above; however, I am phasing project implementation to ensure the Boise National
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`Forest is following through on the condition-based management requirements and to allow for
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`additional public engagement during pauses between phases.” Decision at 4. Once a final
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`decision is made, the public has a limited amount of time to challenge the outcome, so the
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`promise of further “public engagement” is meaningless in a legal sense. This action essentially
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`takes a knife to the heart of NEPA’s protections regarding public participation in agency action.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`4
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 5 of 26
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`Figure 2. Final Modified Timber Sale Area.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`5
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 6 of 26
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`Figure 3. Sage Hen Prescribed Burn Areas.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`6
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 7 of 26
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`4.
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`The Decision and supporting documents violate NEPA because the Forest Service
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`failed to prepare an Environmental Impact Statement to evaluate the consequences of this
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`massive Project to native animal species and other communities that inhabit the forested areas of
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`the Project area. The Forest Service’s conclusion that the Sage Hen Project is not a “major
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`federal action significantly affecting the quality of the human environment” defies all logic when
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`the full extent of its reach is considered. Significant impacts will clearly result from a project
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`such as Sage Hen which involves dozens of separate not-yet-planned actions that will take place
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`on tens of thousands of acres of public land over a 20-year implementation period.
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`5.
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`The Decision authorizes these activities on the basis of a “condition-based
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`management” scheme, an approach that does not meet the minimum requirements of NEPA as
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`enacted by the United States Congress and has been soundly rejected by the courts. Condition-
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`based management means the Forest Service authorized the Project before identifying specific
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`locations for logging, road construction, prescribed burns, and other fuel reduction activities.
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`Decision at 4.1
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`6.
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`The Decision and supporting documents are deficient because they fail to
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`sufficiently (a) identify the specific actions that will be taken by the Forest Service as part of the
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`Project, (b) inventory the vegetation and wildlife resources that will be affected by the Proposed
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`Action, (c) disclose the impacts that will be caused by the proposed landscape-scale vegetation
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`treatments, or (d) detail and evaluate planned mitigation measures. The Forest Service conducted
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`virtually no surveys for any sensitive or indicator species that will be affected by the Project.
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`1 Indeed, the Forest Service agrees it is delaying taking the hard look required under NEPA,
`stating it will make decisions “during future pre-implementation planning and survey work
`required as part of the condition-based management approach.” Decision at 4.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`7
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 8 of 26
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`Deferring such surveys to the future as individual actions are implemented violates both the letter
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`and spirit of NEPA. In the absence of detailed information about the proposed actions and where
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`they will occur, the public is deprived of any meaningful opportunity to comment on the Project.
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`As a result, the NEPA analysis does not adequately describe the direct, indirect, or cumulative
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`impacts of the Project on the human environment as required by NEPA.
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`7.
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`To the extent that the Forest Service is taking a “phased approach” to the Project
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`and deferring all site-specific analysis into the future, the public is deprived of its primary
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`opportunity to understand, comment on, and influence the Project. For a project of this scale,
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`following an abbreviated review process that lasted from scoping in April 2020 to close of the
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`objection period in December 2020 was clearly inadequate. Future opportunities for meaningful
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`public participation at the site-specific project level will be limited at best and the Forest Service
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`is not legally required to consider or address post-final decision issues raised in subsequent
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`public engagement.
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`8.
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`The Forest Service further violated NEPA by failing to provide the public with an
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`opportunity to provide comments on a draft version of the EA and by its failure to specifically
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`respond to the scoping comments and Decision objections that were submitted by the public. The
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`Forest Service simply issued a final EA and FONSI without giving the public an opportunity to
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`provide input on these documents. The agency’s response to comments as part of the NEPA
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`process is a critical piece of public involvement because it enables the public to see how
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`comments were addressed, if in fact public comments are considered at all in the proposed
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`8
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 9 of 26
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`project.2 This is particularly disturbing as it appears that the Boise Forest Coalition, a non-
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`governmental third party, was granted special access to provide extensive input into the Project
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`outside of the normal public process.3
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`9.
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`The Project area includes complex vegetative and biological communities that
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`will be harmed by the logging, forest thinning, and burning activities authorized by the Decision.
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`Native species will suffer extreme habitat loss due to the Project, and the prescribed burns across
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`most of the Snowbank Inventoried Roadless Area will cause irreversible impacts to the wildlife
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`that depend upon it, particularly neotropical migratory songbirds, lynx, and wolverine.
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`10.
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`By failing to specify where logging would occur or where new roads would be
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`built, and by failing to evaluate the impacts of these location-specific activities, the Decision,
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`EA, and related documents do not provide sufficient information for informed decision-making
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`or informed public participation.
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`JURISDICTION, RIGHT OF ACTION AND VENUE
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`11.
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`Jurisdiction is proper in this Court under 28 U.S.C. § 1346 because the United
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`States is a defendant and 28 U.S.C. § 1331 (federal question jurisdiction) because this action
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`2 Although the Forest Service did provide a cursory response to “the major issues that were
`raised” in the Objection Period, the agency noted that “Forest Service regulations do not require .
`. . a point-by-point response to objection issues” as is the case with comments on a draft EA or
`EIS. April 9, 2021 Letter to Objectors at 1. Further, although the Forest Service claims that
`“[c]omments and how they were considered are included in the project record,” Decision at 9,
`however, it is entirely unclear where in the project record these considerations are included.
`3 Independent of whether the Boise Forest Coalition was granted special access to this project,
`they are the only non-governmental group without a financial stake in the Project outcome listed
`in the persons consulted section (other non-governmental entities include “Grazing permittees”
`and “Campground concessionaire”). EA at 59. Notably, it appears the Boise Forest Coalition
`disagrees with the Forest Service’s characterization of the limited outreach the agency did,
`stating: “This description does not fit our own experiences.” Letter from Boise Forest Coalition
`to Tawnya Brummett et al., May 13, 2021.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`9
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 10 of 26
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`arises under the laws of the United States, including the National Environmental Policy Act, 42
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`U.S.C. § 4321 et seq.; the National Forest Management Act, 16 U.S.C. § 1601 et seq.; the
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`Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”); the Declaratory Judgment Act,
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`28 U.S.C. § 2201 et seq.; and the Equal Access to Justice Act, 28 U.S.C. § 2412 et seq.
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`Jurisdiction is also proper under 28 U.S.C. § 1361 (actions to compel an officer of the United
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`States to perform his or her duty).
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`12.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because this is a
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`civil action in which officers or employees of the United States or an agency thereof are acting in
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`their official capacity or under color of legal authority, all or a substantial part of the events or
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`omissions giving rise to the claims herein occurred within this judicial district, and the affected
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`public lands and resources are located in this judicial district.
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`13.
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`An actual, justiciable controversy now exists between Plaintiffs and Defendants
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`within the meaning of 28 U.S.C. § 2201 and Plaintiffs are entitled to the relief sought herein to
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`redress the harm Plaintiffs would otherwise suffer. Although the Decision was issued in April
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`2021 upon information and belief few components of the Sage Hen Project have been
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`implemented to date. The requested relief is therefore proper under 28 U.S.C. §§ 2201-2202 and
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`5 U.S.C. §§ 701-06.
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`14.
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`Plaintiffs have exhausted all required administrative remedies prior to bringing
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`this action, by submitting comments during the Scoping Period and filing formal objections to
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`the EA and FONSI within the required timeframe pursuant to 36 C.F.R. Part 218.
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`15.
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`16.
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`Plaintiffs have no adequate remedy at law.
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`The federal government has waived sovereign immunity in this action pursuant to
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`5 U.S.C. § 702.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`10
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 11 of 26
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`PARTIES
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`17.
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`Plaintiff WILDLANDS DEFENSE (“WLD”) is a regional, membership, nonprofit
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`organization headquartered in Hailey, Idaho dedicated to protecting and improving the ecological
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`and aesthetic qualities of the wildland and wildlife communities of the western United States for
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`present and future generations. WLD advances its mission by means of landscape and wildlife
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`monitoring and scientific research, by supporting and empowering active public engagement, by
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`publishing and working in support of media outlets, and with legal and administrative advocacy.
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`WLD is headquartered in Hailey, Idaho, has members in several western states, including
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`members and staff that regularly work in and focus on public land and wildlife management in
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`Idaho, and on the Boise National Forest in particular. Members and staff of WLD live, work,
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`and/or recreate throughout central Idaho, and surrounding region, and have worked and recreated
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`on the Boise National Forest generally, and within the Idaho City, Lowman, and Emmett Ranger
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`Districts specifically, on a regular and continuing basis, and intend to do so frequently in the
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`immediate future. WLD brings this action on its own behalf and on behalf of its adversely
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`affected members.
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`18.
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`Plaintiff ALLIANCE FOR THE WILD ROCKIES (“AWR”) is a tax-exempt,
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`nonprofit public interest organization dedicated to the protection and preservation of the native
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`biodiversity of the Northern Rockies Bioregion, its native plant, fish, and animal life, and its
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`naturally functioning ecosystems. Its registered office is located in Missoula, Montana. AWR has
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`over 2,000 individual members, many of whom are located in Idaho in close proximity to the
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`Boise National Forest. Members of AWR observe, enjoy, and appreciate Idaho’s native wildlife,
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`water quality, and terrestrial habitat quality, and expect to continue to do so in the future,
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`including in the Sage Hen Project area. AWR’s members’ professional and recreational activities
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`11
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 12 of 26
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`are directly affected by Defendants’ failure to perform their lawful duty to protect and conserve
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`these ecosystems as set forth below. AWR brings this action on its own behalf and on behalf of
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`its adversely affected members.
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`19.
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`Plaintiff NATIVE ECOSYSTEMS COUNCIL (“NEC”) is a non-profit
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`corporation. NEC is dedicated to the conservation of natural resources on public lands in the
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`Northern Rockies. Its members use and will continue to use the Boise National Forest for work
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`and for outdoor recreation of all kinds, including fishing, hunting, hiking, horseback riding, and
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`cross-country skiing. The Forest Service's unlawful actions adversely affect NEC’s
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`organizational interests, as well as its members’ use and enjoyment of the Boise National Forest,
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`including the Sage Hen Project area. NEC brings this action on its own behalf and on behalf of
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`its adversely affected members.
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`20.
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`Plaintiff YELLOWSTONE TO UINTAS CONNECTION (“Y2U”) is a non-profit
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`public interest organization dedicated to protecting the integrity of habitat for native fish and
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`wildlife in the wildlife corridor that connects the Greater Yellowstone Ecosystem and Northern
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`Rockies to the Uinta Wilderness and Southern Rockies. Members of Y2U work to restore fish
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`and wildlife habitat in the Yellowstone to Uintas Corridor through the application of science,
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`education, and advocacy. Y2U’s members’ professional and recreational activities are directly
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`affected by Defendants’ failure to perform their lawful duty to protect and conserve these
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`ecosystems by approving the challenged Project. Y2U brings this action on its own behalf and on
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`behalf of its adversely affected members.
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`21. Members of the Plaintiff organizations reside near, visit, or otherwise use and
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`enjoy the Sage Hen Project area. Members of the Plaintiff organizations use lands throughout the
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`project area for recreation, wildlife viewing, photography, education, and aesthetic and spiritual
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`12
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 13 of 26
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`enjoyment. The Plaintiffs and their members derive scientific, recreational, aesthetic, and
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`conservation benefits and enjoyment from their use of the area. The commercial logging,
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`roadbuilding, and fire treatments will directly and irreparably injure these interests.
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`22.
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`The Plaintiff organizations monitor the use of the forest ecosystems and
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`compliance with the laws respecting these ecosystems, educate their members and the public
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`concerning management of these ecosystems, and advocate policies and practices that conserve
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`the natural value of these ecosystems. Plaintiffs cannot achieve these organizational purposes
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`fully without adequate information and public participation in the processes required by law. The
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`interests and organizational purposes of the plaintiffs are directly and irreparably injured by
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`Defendants’ violations of law as described in this Complaint.
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`23.
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`Plaintiffs have participated in every step of the administrative process for the Sage
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`Hen Project. Plaintiffs submitted comments during pre-scoping (WLD, AWR, & NEC signed
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`comments dated March 13, 2020), scoping (WLD, AWE, and NEC signed one set of comments
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`dated April 16, 2020 and all Plaintiffs signed a second set dated April 20, 2020), and project
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`phases (WLD, AWR, and NEC signed one set of comments dated December 27, 2020 and all
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`Plaintiffs signed a second set dated December 28, 2020). Once the Project was finalized,
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`Plaintiffs timely filed an objection, dated December 28, 2020. The Forest Service, in its general
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`response document, dismissed all objections raised.
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`24.
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`The full name of Defendant UNITED STATES FOREST SERVICE is United
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`States Department of Agriculture, Forest Service. The Forest Service is an agency of the
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`Department of Agriculture (“USDA”) entrusted with the administration of the national forests,
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`including the Boise National Forest. The Forest Service prepared the EIS and issued the Record
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`of Decision that form the basis for this lawsuit.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`13
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 14 of 26
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`25.
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`Defendant TAWNYA BRUMMETT is the Forest Supervisor for the Boise
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`National Forest and signed the Record of Decision for the Sage Hen Project on April 14, 2021.
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`Defendant Brummett is being sued in her official capacity.
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`26.
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`Defendant RANDY MOORE is the USDA Forest Service chief and is being sued
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`in his professional capacity. Defendant Moore has the responsibility to ensure that the Forest
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`Service’s actions conform to the requirements of our nation’s environmental laws, including
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`NEPA and NFMA. If ordered by the Court, Chief Moore has the authority and ability to remedy
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`the harm inflicted by Defendants’ actions.
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`STATUTORY FRAMEWORK
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`27.
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`Plaintiffs incorporate by reference paragraphs 1 - 26 as if fully set forth herein.
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`The National Environmental Policy Act
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`28.
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`NEPA is “our basic national charter for protection of the environment.” 40 C.F.R.
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`§ 1500.1(a).
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`29.
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`NEPA’s goals are to (1) “prevent or eliminate damage to the environment and
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`biosphere,” (2) “stimulate the health and welfare of” all people, and (3) “encourage productive
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`and enjoyable harmony” between human kind and the environment. 42 U.S.C. § 4321. NEPA
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`recognizes that “each person should enjoy a healthful environment” and ensures that the federal
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`government uses all practicable means to “fulfill the responsibilities of each generation as trustee
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`of the environment for succeeding generations” and “assure for all Americans safe, healthful,
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`productive, and esthetically and culturally pleasing surroundings.” Id. at § 4331(b)-(c).
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`30.
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`To fulfill these purposes, NEPA requires that: (1) agencies take a “hard look” at
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`the environmental impacts of their actions before the actions occur, thereby ensuring “that the
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`agency, in reaching its decision, will have available, and will carefully consider, detailed
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 15 of 26
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`information concerning significant environmental impacts,” and (2) “the relevant information
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`will be made available to the larger audience that may also play a role in both the
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`decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley
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`Citizens Council, 490 U.S. 332, 349 (1989).
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`31.
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`NEPA requires federal agencies to prepare an EIS for “major Federal actions
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`significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). To
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`determine whether the nature and extent of a proposed action’s environmental effects requires
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`preparing an EIS, federal agencies prepare an EA. 40 C.F.R. § 1501.4(b)-(c). If, on the basis of
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`the EA, the agency finds that the proposed action will produce “no significant impact” on the
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`environment, then an EIS need not be prepared. Id. at § 1501.4(e). An agency’s finding of “no
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`significant impact” and consequent decision not to prepare an EIS can be overturned if the
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`decision was arbitrary, capricious, or an abuse of discretion. See, e.g., Am. Rivers v. Fed. Energy
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`Regulatory Comm’n, 895 F.3d 32, 49-52 (D.C. Cir. 2018).
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`32.
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`In making the determination of significance, the agency must consider various
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`factors pursuant to 40 C.F.R. § 1508.27(b), including whether the effects on the quality of the
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`human environment are likely to be highly controversial, id. at § 1508.27(b)(4); are highly
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`uncertain or involve unique or unknown risks, id. at § 1508.27(b)(5); or may adversely affect an
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`endangered or threatened species or its critical habitat, id. at § 1508.27(b)(9); and the extent of
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`cumulative impacts from unrelated projects in close proximity to the Project area. A significant
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`environmental effect may exist even if the federal agency believes that on balance the
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`environmental effects of a proposal will be beneficial. Id. at § 1508.27(b)(1).
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`33.
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`Additionally, in making the significance determination, the agency must “utilize a
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`systemic, interdisciplinary approach . . . and utilize ecological information in the planning and
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 16 of 26
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`development of resource-oriented projects,” while “recogniz[ing] the worldwide and long-range
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`character of environmental problems.” 42 U.S.C. § 4332.
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`34.
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`A finding of “no significant impact” will be overturned when an agency commits
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`to an action that will significantly affect the environment without evaluating the impacts of the
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`decision. NEPA requires an agency to evaluate the environmental effects of its action at the
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`point of commitment. This “critical agency decision” is made when the decision results in
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`“irreversible and irretrievable commitments of resources” to an action that will affect the
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`environment. Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983).
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`35.
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`Among other things, the agency’s NEPA analysis must assess the cumulative
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`impacts of the action “result[ing] from the incremental impact of the action when added to other
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`past, present, and reasonably foreseeable future actions.” 40 C.F.R. §§ 1508.7, 1508.27(b)(7).
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`This analysis must include more than “conclusory remarks, statements that do not equip a
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`decisionmaker to make an informed decision about alternative courses of action.” Nat. Res. Def.
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`Council, Inc. v. Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988). An agency must prepare an EIS if it
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`is reasonable to anticipate a cumulatively significant impact on the environment. Grand Canyon
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`Tr. v. Fed. Aviation Admin., 290 F.3d 339, 346 (D.C. Cir. 2002).
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`36.
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`NEPA is designed to ensure that federal agencies thoroughly evaluate potential
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`environmental impacts of and reasonable alternatives to proposed actions before making a
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`commitment of federal resources. The NEPA review must “serve as the means of assessing the
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`environmental impact of proposed agency actions, rather than justifying decisions already
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`made.” Id. at § 1502.2(g); see also id. at § 1502.5; 32 C.F.R. pt. 651, app. E, § (a)(4).
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`37.
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`In evaluating reasonably foreseeable effects, an agency must disclose incomplete,
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`unavailable, or lacking information and either procure the information or include a statement
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`detailing (1) that such information is incomplete or unavailable, (2) a statement of the
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`information’s relevance, (3) a summary of existing alternative credible scientific evidence, and
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`(4) the agency’s evaluation of impacts. 40 C.F.R. § 1502.22.
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`38.
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`NEPA requires federal agencies to consider alternatives to their proposed actions.
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`42 U.S.C. § 102(2)(c)(iii). The alternatives section “is the heart of the environmental impact
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`statement.” 40 C.F.R. § 1502.14. In this section, agencies must “[r]igorously explore and
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`objectively evaluate all reasonable alternatives,” devoting “substantial treatment to each
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`alternative considered in detail . . . so that reviewers may evaluate their comparative merits.” Id.
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`at § 1502.14 (a), (b). The core purpose of the alternatives analysis is to “sharply defin[e] the
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`issues and provid[e] a clear basis for choice among options by the decisionmaker and the
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`public.” Id. at § 1502.14.
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`The Administrative Procedure Act
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`39.
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`The APA provides a right to judicial review for any “person suffering legal wrong
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`because of agency action.” 5 U.S.C. § 702. Final agency actions “for which there is no other
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`adequate remedy in a court” are reviewable under the APA. Id. at § 704.
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`40.
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`Under the APA, a reviewing court shall “hold unlawful and set aside agency
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`action . . . found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
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`accordance with law.” Id. at § 706(2)(A). Agency actions may also be set aside if the action is
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`“without observance of procedure required by law.” Id. at § 706(2)(D). Courts will also set aside
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`agency action that contradicts an agency’s prior position, “when, for example, its new policy
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`rests upon factual findings that contradict those which underlay its prior policy” and the agency
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`has given no reasoned justification for the change. Fed. Commc’ns Comm’n v. Fox Television
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`Stations, Inc., 556 U.S. 502, 515 (2009).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`17
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`STATEMENT OF FACTS
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`41.
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`42.
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`Plaintiffs incorporate by reference paragraphs 1 - 40 as if fully set forth herein.
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`The Boise National Forest (“BNF” or the “Forest”), created in 1908, sits on 2.5
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`million acres of forest and grassland northeast of Boise, Idaho. Natural resource management
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`activities on BNF lands are guided by the 2010 Amended Boise National Forest Land and
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`Resource Management Plan (the “Forest Plan” or the “Plan”). The Forest Plan notes that the
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`Forest Service “adopted ecosystem management as an operating philosophy.” Forest Plan at I-2.
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`43.
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`Ponderosa pine and Douglas-fir forests at lower elevations in the Project area
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`provide habitat for white-headed woodpecker and flammulated owl, and winter range for deer
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`and elk. Higher elevation forests provide habitat for Region 4 sensitive species such as goshawk,
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`boreal owls, and three-toed woodpeckers, and summer range for deer, elk, black bear, mountain
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`lions and wolves. The Project area also provides nesting and forage for migratory birds.
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`44.
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`The Project area is known to include habitat and individuals of several species
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`listed as threatened under the Endangered Species Act, 16 U.S.C. § 1531 et seq., including bull
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`trout, Canada lynx, and northern Idaho ground squirrel. The Project area is also home to the
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`whitebark pine, which was recently proposed for listing as a threatened species on December 2,
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`2020. The Project area includes designated critical habitat for the bull trout.
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`45.
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`The Project area is subject to heavy recreational use by the public which already
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`impairs wildlife and watershed health. The Project area and adjacent public and private lands
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`have also been subject to extensive livestock grazing which has resulted in harm to water
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`resources and wildlife habitat.
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`46.
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`The Sage Hen project landscape and watersheds provide a great diversity of
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`essential wildlife habitats because of the broad range of native vegetation communities found
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`WildLands Defense et al. v. Brummett et al.
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`Case 1:21-cv-00425-REP Document 1 Filed 11/01/21 Page 19 of 26
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`here. This habitat diversity is reflected in the many sensitive species, migratory bird species and
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`other wildlife inhabiting Sage Hen. There is also a threatened bull trout population, and a large
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`roadless wild land area. Because they are close to Idaho’s population center in the Treasure
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`Valley, Sage Hen forests receive very heavy public recreational use (camping, hiking, wildlife
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`observation, hunting and both motorized and non-motorized use). Much of the surrounding area
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`has been heavily altered, by logging, treatments and roading or encompasses private land. This
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`all serves to make protection of the remaining mature and older forests of Sage Hen critical for
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`biodiversity conservation an