Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 1 of 12
`
` John Meyer, MT Bar # 11206
`Cottonwood Environmental Law Center
`P.O. Box 412 Bozeman, MT 59771
`(406) 546-0149 | Phone
`John@cottonwoodlaw.org
`
`Counsel for Plaintiff
`
` IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BUTTE DIVISION
`
`CV-20-31-BU-BMM-JTJ
` Civil Action No. _________
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`COTTONWOOD
`ENVIRONMENTAL LAW
`CENTER,
`
`Plaintiff,
`
`vs.
`
`LEANNE MARTEN, in her
`official capacity as Regional
`Forester of Region One of the
`U.S. Forest Service; MARY
`ERICKSON, in her official
`capacity as Forest Supervisor of
`the Custer Gallatin National
`Forest; UNITED STATES
`FOREST SERVICE, an agency
`of the U.S. Department of
`Agriculture
`
`Defendants.
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`1
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`
` John Meyer, MT Bar # 11206
`Cottonwood Environmental Law Center
`P.O. Box 412 Bozeman, MT 59771
`(406) 546-0149 | Phone
`John@cottonwoodlaw.org
`
`Counsel for Plaintiff
`
` IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BUTTE DIVISION
`
`CV-20-31-BU-BMM-JTJ
` Civil Action No. _________
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`COTTONWOOD
`ENVIRONMENTAL LAW
`CENTER,
`
`Plaintiff,
`
`vs.
`
`LEANNE MARTEN, in her
`official capacity as Regional
`Forester of Region One of the
`U.S. Forest Service; MARY
`ERICKSON, in her official
`capacity as Forest Supervisor of
`the Custer Gallatin National
`Forest; UNITED STATES
`FOREST SERVICE, an agency
`of the U.S. Department of
`Agriculture
`
`Defendants.
`
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`1
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 2 of 12
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`INTRODUCTION
`1. Climate change is the most existential threat facing humanity.
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`2. This case challenges the Forest Service’s failure to supplement its National
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`Environmental Policy Act (“NEPA”) analysis for the 1987 Custer Gallatin
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`National Forest Plan in light of new information and changed circumstances
`
`regarding climate change and forest management in the Wildland Urban
`
`Interface (“WUI”).
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`3. Plaintiff Cottonwood Environmental Law Center (“Cottonwood”) also
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`challenges the approval of the Bozeman Municipal Watershed and North
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`Bridger Forest Health Projects under the 1987 Forest Plan without first
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`supplementing the NEPA analysis.
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`4. The 1987 Forest Plan is in the process of being revised to address climate
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`change.
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`5. According to the Purpose and Need for the Revised 1987 Forest Plan,
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`“[d]irection guided by new information and science is needed to address
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`impacts reasonably expected to occur as a result of climate change.” FEIS Ch.
`
`1 p. 5.
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`6. In 2017, researchers from universities across the western United States,
`
`including Montana State University, determined that “roughly 1% of US Forest
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`Service treatments experience wildfire each year, on average . . . suggesting that
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`most treatments have little influence on wildfire.” Tania Schoennagel, Adapt to
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`2
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 3 of 12
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`More Wildfire in Western North American Forests as Climate Changes, PROCEEDINGS
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`OF NATIONAL ACADEMY OF SCIENCES, April 17, 2017, 114 (18) 4582, 4586.
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`7. The Forest Service cited the 2017 National Acadedy of Sciences (“NAS”)
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`article in the Final EIS for the Revised 1987 Forest Plan, stating, “[policies that
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`foster adaptive resilience in the wildland-urban interface are needed.
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`(Schoennagel et al. 2017).” FEIS Ch. 1 p. 295.
`
`8. According to the 2017 NAS article, “[h]ome loss to wildfire is a local event,
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`dependent on structural fuels (e.g., building material) and nearby vegetative
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`fuels.” Schoennagel, Adapt to More Wildfire in Western North American Forests as
`
`Climate Changes, 4582 at 4587.
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`9. To support this statement, the article cites to a scientific paper published in the
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`Journal of Forestry by Jack Cohen, a scientist for the U.S. Forest Service’s Rocky
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`Mountain Research Station in Missoula, Montana. Cohen JD (2000) Preventing
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`disaster: Home ignitability in the wildland-urban interface, J FOR 98(3):15–21.
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`10. According to the Forest Service study, “[t]he key to reducing W-UI fire losses
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`is to reduce home ignitability. . . The home and its surrounding 40 meters
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`determine home ignitability. . .” Cohen JD (2000) Preventing disaster: Home
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`ignitability in the wildland-urban interface, J FOR 98(3):15, 20.
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`11. The Forest Service did not consider or analyze these concepts when it prepared
`
`the 1987 Forest Plan, but it did discuss them in the Final Environmental
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`3
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 4 of 12
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`Impact Statement for the Revised 1987 Forest Plan, which has still not been
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`finalized with a Record of Decision.
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`12. The Forest Service’s failure to determine whether the 2017 NAS article is
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`significant new information that triggered the need to prepare supplemental
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`NEPA for the 1987 Forest Plan is a violation of NEPA.
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`13. The Forest Service’s failure to prepare supplemental NEPA is arbitrary and
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`capricious in light of the fact that the agency stated the 1987 Forest Plan was
`
`being revised to include management direction that considers climate change
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`and the Environmental Impact Statement for the revised Forest Plan cites the
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`2017 NAS study.
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`14. The Forest Service’s approval of the BMW and North Bridger Forest Health
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`Projects under the 1987 Forest Plan without first supplementing the NEPA
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`analysis is a violation of NEPA.
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`15. Even if a site-specific EIS is completed, “[e]ffects may occur and/or continue
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`without appropriate management direction at broad scales.”” Salix v. U.S. Forest
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`Serv., 944 F. Supp. 2d 984, 991 (D. Mont. 2013) (aff’d by Cottonwood Envt’l Law
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`Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015).
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`16. On June 9, 2020, Cottonwood sent Defendant Forest Supervisor Mary
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`Erickson a letter asking the Forest Service to supplement the NEPA analysis
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`for the BMW project because of new information and changed circumstances.
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`4
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 5 of 12
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`17. Defendant Forest Supervisor Mary Erickson states in the BMW Record of
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`Decision that her “decision to implement Alternative 6 represents a balance
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`between the purpose of the project, an evaluation of short term and long term
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`risks, and resources to be protected.” ROD p. 23.
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`18. According to the EIS, “[t]he issue is the long term tradeoff of risking severe
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`wildfire and associated high sediment increase risk compared to the activities of
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`this proposal.” Ch. 3-31 (emphasis added).
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`19. The Record of Decision states, “[t]he Bozeman Municipal Watershed project is
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`designed to strategically modify vegetative fuel conditions using thinning and
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`prescribed fire to lower the risk of severe, extensive wildfires in the Bozeman
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`Municipal Watershed, thereby reducing the risk of excess sediment and ash
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`reaching the municipal water treatment plant.” (5).
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`20. Cottonwood secured an internal email from the Forest Service’s hydrologist via
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`a Freedom of Information Act request that states the analysis in the EIS is
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`“probably an over estimation of potential sediment reduction since the
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`wildfires would burn outside of BMW treatment boundaries and not all areas
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`within treatment areas would be subjected to wildfire.”
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`21. The Forest Service’s internal email states the “[b]ottom line is that the BMW
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`project, if fully implemented, could result in a modest reduction in sediment
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`yields. . .”
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`5
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 6 of 12
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`22. Cottonwood sent a letter to Supervisor Erickson asking the Forest Service to
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`supplement the BMW analysis to account for the fact that the analysis
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`overestimated the amount of sediment that would be reduced by logging in the
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`area.
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`23. Cottonwood also asked the Forest Service to supplement the NEPA analysis
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`for the BMW project to account for a changed circumstance—the City of
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`Bozeman specifically upgraded its water treatment plant to address large fires
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`and sediment. “The plant was designed with a forest fire in mind and the
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`potential constituents of the runoff.” (Miller Email).
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`24. The EIS never discloses how much sediment the upgraded water treatment
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`plant can handle.
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`25. The EIS for the BMW project does not analyze whether the upgraded
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`treatment plant can handle the “modest” sediment increase that could enter the
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`watershed if the area is not logged.
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`26. The public had no way to meaningfully comment on whether the BMW
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`project, which overestimated sediment reductions, was necessary to protect the
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`city’s water supply, given the City of Bozeman has upgraded its water and
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`sewer treatment plant.
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`27. The Forest Service violated NEPA by failing to prepare supplemental NEPA
`
`analysis.
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`6
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 7 of 12
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`28. The Bozeman Municipal Watershed project, which was approved under the
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`1987 Custer Gallatin Forest Plan, should be enjoined until the Forest Service
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`completes supplemental NEPA analysis.
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`JURISDICTION
`
`29. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
`
`(federal question), 28 U.S.C. §2201 (Declaratory Judgment Act), 28 U.S.C.
`
`§361(mandamus), 5 U.S.C. §§ 701-706, et. seq (Administrative Procedure Act),
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`and the National Environmental Policy Act (NEPA) 42 U.S.C. § 4321 et seq.
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`30. The federal government has waived sovereign immunity and the court has
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`jurisdiction to hear this action pursuant to 5 U.S.C. § 701-706.
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`31. An actual controversy exists between Plaintiffs and Defendants. Plaintiffs'
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`members use and enjoy the Gallatin National Forest, including the Project
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`areas, for hiking, fishing, hunting, camping, photography, horseback riding and
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`engaging in other vocational, scientific, spiritual, and recreational activities.
`
`32. Plaintiffs' members, including Glenn Monahan, Nancy Schultz, Christina
`
`Deweese, Nancy Ostlie, Phil Knight, Clint Nagel, George Wuerthner, Peter
`
`Harned, Joanna Vollrath, and Steve Catir intend to continue to use and enjoy
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`the Project areas frequently and on an ongoing basis in the future.
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`33. Logging the BMW and North Bridger Forest Health Projects will cause
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`irreparable harm to Cottonwood members’ aesthetic, recreational, scientific,
`
`spiritual, conservation, and educational interests. These are actual and concrete
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 8 of 12
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`injuries caused by Defendants' failure to comply with mandatory duties under
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`NEPA and the APA. The requested relief would redress these injuries and this
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`Court has the authority to grant Plaintiffs' requested relief.
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`VENUE
`
`34. Venue is proper in the United States District Court for the District of Montana
`
`pursuant to 28 U.S.C. § 1391(e). Plaintiffs are located in Bozeman and within
`
`the Butte Division of the United States District Court for the District of
`
`Montana. Defendant Erickson is the Forest Supervisor of the Custer Gallatin
`
`National Forest. Her office is located within the Butte Division of the United
`
`States District Court for the District of Montana. Venue is also proper under
`
`Rule 3.2 of the Local Rules of Procedure of the United States District Court for
`
`the District of Montana.
`
`PARTIES
`35. Plaintiff Cottonwood Environmental Law Center is a conservation
`
`organization and group of free-thinking rabble-rousers dedicated to protecting
`
`the people, forests, water and wildlife in the West. Cottonwood is based in
`
`Bozeman, Montana. Cottonwood members have visited the Project areas for
`
`years and have aesthetic, recreational, spiritual, scientific, and conservation
`
`interests in the Custer Gallatin National Forest, including the Bozeman
`
`Municipal Watershed Project area and North Bridger Forest Health Project
`
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`8
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 9 of 12
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`area. Cottonwood members have suffered and will continue to experience
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`concrete injuries to their aesthetic, conservation, scientific, spiritual, and
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`recreational values because the Defendants have not supplemented the NEPA
`
`analysis for the Custer Gallatin National Forest Plan, Bozeman Municipal
`
`Watershed Project, and North Bridger Forest Health Project or determined
`
`whether supplemental NEPA analysis is necessary in light of significant new
`
`information or circumstances.
`
`36. Defendant Leanne Marten is the Regional Forester of Region One of the U.S.
`
`Forest Service. Defendant Marten is being sued in her official capacity.
`
`37. Defendant Mary Erickson is the Forest Supervisor of the Custer Gallatin
`
`National Forest. Defendant Erickson is being sued in her official capacity.
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`38. Defendant United States Forest Service (“Forest Service”) is an administrative
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`agency within the United States Department of Agriculture, entrusted with the
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`management of our National Forests.
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`STATUTORY BACKGROUND
`39. NEPA is the “basic national charter for the protection of the environment.”
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`40 C.F.R. §1500.1(a).
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`40. NEPA procedures must ensure that environmental information is available to
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`public officials and citizens before decisions are made and before actions are
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`taken. 40 C.F.R. §1500.1(b).
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 10 of 12
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`41. NEPA requires agencies to supplement “either draft or final environmental
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`impact statements if [t]here are significant new circumstances or information
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`relevant to environmental concerns and bearing on the proposed action or its
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`impacts.” 40 C.F.R. § 1502.9.
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`PROCEDURAL BACKGROUND
`42. The Record of Decision for the Gallatin National Forest Plan was signed by
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`Northern Region Regional Forester James C. Overbay on September 23, 1987.
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`Leanne Marten is the current Northern Region Regional Forester.
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`43. The Forest Service issued a ROD for the Custer Gallatin Forest Plan on
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`September 23, 1987, issued a ROD for the BMW Project on November 29,
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`2011, and issued a Decision Memo for the North Bridger Forest Health Project
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`on August 27, 2018.
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`44. The BMW Project implemented a “site specific Forest Plan Amendment for
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`visual quality.” (ROD page 7).
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`45. Forest Supervisor Mary Erickson approved the BMW Project on November
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`29, 2011.
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`46. Forest Supervisor Mary Erickson approved the North Bridger Forest Health
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`Project on August 27, 2018.
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 11 of 12
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`47. This court enjoined the BMW Project on June 25, 2013 and the injunction was
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`lifted on April 20, 2020. All. for Wild Rockies & Native Ecosystems Council v.
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`Marten, CV 12-55-DLC, 2020 WL 1915128 (D. Mont. Apr. 20, 2020).
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`48. Alliance for the Wild Rockies challenged the North Bridger timber sale on June
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`3, 2019. The District Court for the District of Montana denied Alliance’s
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`motion to enjoin the North Bridger Forest Health Project on June 3, 2020. All.
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`for the Wild Rockies v. Marten, CV 19-102-M-DWM, 2020 WL 2949866 (D. Mont.
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`June 3, 2020).
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`49. Cottonwood sent a letter to the Forest Service on June 9, 2020, requesting that
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`the agency supplement its NEPA analysis for the BMW Project. On June 17,
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`2020, the Forest Service responded that it would not supplement NEPA
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`analysis for the BMW Project.
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`CLAIM FOR RELIEF
`The Forest Service violated NEPA by failing to prepare supplemental
`NEPA analysis for the 1987 Forest Plan, the BMW project, and North
`Bridger Forest Health project.
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`50. Plaintiff incorporates all prior paragraphs.
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`51. The Forest Service violated NEPA by failing to prepare supplemental NEPA
`
`analysis for the 1987 Custer Gallatin National Forest Plan in light of new science
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`regarding climate change and the Wildland Urban Interface.
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`11
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`Case 2:20-cv-00031-BMM-JTJ Document 1 Filed 07/21/20 Page 12 of 12
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`52. The Forest Service violated NEPA by approving the North Bridger Forest
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`Health and Bozeman Municipal Watershed Projects under the 1987 Forest
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`Plan, which does not address new information or changed circumstances,
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`including climate change and the Wildland Urban Interface.
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`53. The Forest Service violated NEPA by failing to supplement the analysis for the
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`BMW project in light of new information and changed circumstances, which
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`would have disclosed to the public the amount of sediment the new treatment
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`plant can handle, and allowed the public to comment on whether the timber
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`sale is necessary given the original analysis overestimated the amount of
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`sediment that would be reduced with the project.
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`REQUESTS FOR RELIEF
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`For all the above-stated reasons, Plaintiff respectfully requests that this Court:
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`A. Declare that the Forest Service violated the law;
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`B. Enjoin implementation of the Projects;
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`C. Order the Forest Service to prepare supplemental NEPA for the 1987 Forest Plan,
`BMW and North Bridger Forest Health projects.
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`C. Award Plaintiffs their costs, expenses, expert witness fees, and reasonable attorney
`fees under the EAJA; and
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`D. Grant Plaintiff such further relief as may be just, proper, and equitable.
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`Respectfully submitted this 21st Day of July, 2020.
`
`/s/ John Meyer
`JOHN MEYER
`
`Attorney for Plaintiff
`
`
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`12
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