Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 1 of 10
`
`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
`
`Case No. CV-22-05-BU-BMM-JTJ
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`COTTONWOOD
`ENVIRONMENTAL LAW CENTER,
`
`Plaintiff,
`
`vs.
`
`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
`
`Case No. CV-22-05-BU-BMM-JTJ
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`COTTONWOOD
`ENVIRONMENTAL LAW CENTER,
`
`Plaintiff,
`
`vs.
`
`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 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 2 of 10
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`INTRODUCTION
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`1. Climate change is the most existential threat facing humanity.
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`2. This case challenges the Custer Gallatin National Forest’s failure to protect the
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`public from climate change.
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`3. More carbon is stored in forests than in anywhere else but the oceans, and the
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`United States has the world’s fourth largest forest estate, behind only Russia, Brazil,
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`and Canada.
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`4. The importance of carbon storage capacity of the earth’s forests is tied to their
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`role in removing atmospheric carbon that is contributing to ongoing global warming.
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`5. The top three anthropogenic (human-caused) contributors to greenhouse gas
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`emissions (from 1970-2004) are: fossil fuel combustion, deforestation, and agriculture.
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`Land use change, primarily the conversion of forests to other land uses (deforestation)
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`is the second leading source of human-caused greenhouse gas emissions globally.
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`6. The Forest Service previously determined that it needed to revise its 1987
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`Custer Gallatin Forest Plan because “[d]irection guided by new information and
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`science is needed to address impacts reasonably expected to occur as a result of
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`climate change.” FEIS Ch. 1 p. 5.
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`7. “A key assumption” in the Environmental Impact Statement (“EIS”) for the
`
`2022 Custer Gallatin Forest Plan “is that the forestland will not be converted to
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`a non-forest condition after harvesting and will remain productive.” FEIS Vol. IV at
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`20.
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`2
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 3 of 10
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`8.(cid:1) On June 9, 2020, Cottonwood provided Defendant Erickson with a 2017
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`article from the National Academy of Sciences that states “when thinning is combined
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`with the expected warming, unintended consequences may ensue, whereby
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`regeneration is compromised and forested areas convert to nonforest.” Tania
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`Schoennagel, Adapt to More Wildfire in Western North American Forests as Climate Changes,
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`PROCEEDINGS OF NATIONAL ACADEMY OF SCIENCES, April 17, 2017, 114 (18) 4586.
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`9.(cid:1) The Forest Service violated the National Environmental Policy Act (“NEPA”)
`
`by failing to disclose and analyze the contradictory science found in the NATIONAL
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`ACADEMY OF SCIENCES article in its NEPA analysis for the 2022 Revised Custer
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`Gallatin Forest Plan. See FEIS Vol. IV at 214; FEIS Vol. III at 434 (References cited).
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`10.(cid:1)The Custer Gallatin started logging three old growth timber sales—the
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`Bozeman Municipal Watershed project, North Bridger project, and North Hebgen
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`project—before the Forest Plan revision was complete.
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`11.(cid:1)According to the Record of Decision for the BMW project:
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`This proposal does not fall within any of these primary contributors of global
`greenhouse gas emissions nor is it similar to the primary human activities
`exerting negative pressure on the carbon sink that currently exists in U.S.
`forests. The affected forests will remain forests, not converted to other land
`uses, and long-term forest services and benefits will be maintained.
`
`
`ROD at 44-45.
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`12.(cid:1)Defendants violated NEPA by failing to take a hard look at the impacts of
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`logging when combined with climate change in the revised Custer Gallatin National
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`Forest Plan and associated analysis.
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 4 of 10
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`13.(cid:1) The Forest Service’s implementation of the Revised Forest Plan through three
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`site-specific old growth timber sales is a violation of NEPA.
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`JURISDICTION
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`14.(cid:1) This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
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`(federal question), 28 U.S.C. §2201 (Declaratory Judgment Act), 5 U.S.C. §§ 701-706,
`
`et. seq. (Administrative Procedure Act), and the National Environmental Policy Act
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`(NEPA) 42 U.S.C. § 4321 et seq.
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`15.(cid:1)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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`16.(cid:1)An actual controversy exists between Plaintiff and Defendants. Plaintiff’s
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`members use the Gallatin National Forest for survival in the form of carbon
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`sequestration. Plaintiff’s members also use Project areas that are being loggeed for
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`hiking, fishing, hunting, camping, photography, horseback riding and engaging in
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`other vocational, scientific, spiritual, and recreational activities.
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`17.(cid:1)Plaintiffs' members intend to continue to use and enjoy the Custer Gallaitn
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`National Forest and Project areas frequently and on an ongoing basis in the future.
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`18.(cid:1)Implementation of the 2022 Revised Custer Gallatin Forest Plan through the
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`Bozeman Municipal Watershed, North Hebgen, and North Bridger Forest Health
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`Projects will cause irreparable harm to Cottonwood members’ interest in self-
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`preservation as well as their aesthetic, recreational, scientific, spiritual, conservation,
`
`and educational interests. These are actual and concrete injuries caused by
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 5 of 10
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`Defendants' failure to comply with mandatory duties under NEPA and the APA. The
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`requested relief would redress these injuries and this Court has the authority to grant
`
`Plaintiffs' requested relief.
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`VENUE
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`19.(cid:1)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
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`within the Butte Division of the United States District Court for the District of
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`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
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`District Court for the District of Montana. Venue is also proper under Rule 3.2 of the
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`Local Rules of Procedure of the United States District Court for the District of
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`Montana.
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`PARTIES
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`20.(cid:1)Plaintiff Cottonwood Environmental Law Center is a conservation
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`organization dedicated to protecting the people, forests, water and wildlife in the
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`West. Cottonwood is based in Bozeman, Montana. Cottonwood members have
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`visited the Project areas for years and have aesthetic, recreational, spiritual, scientific,
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`and conservation interests in the Custer Gallatin National Forest, including the
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`Bozeman Municipal Watershed Project area, North Bridger Forest Health, and North
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`Hebgen Project areas. Cottonwood members have suffered and will continue to
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`experience concrete injuries to their self-preservation as well as their aesthetic,
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 6 of 10
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`conservation, scientific, spiritual, and recreational values because the Defendants have
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`failed to take a hard look at the NEPA analysis for the Custer Gallatin National
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`Forest Plan and its implementation via the Bozeman Municipal Watershed Project,
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`North Bridger Forest Health, and North Hebgen Project areas.
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`21.(cid:1)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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`22.(cid:1)Defendant United States Forest Service (“Forest Service”) is an
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`administrative agency within the United States Department of Agriculture, entrusted
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`with the management of our National Forests.
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`STATUTORY BACKGROUND
`23.(cid:1) “NEPA declares a broad national commitment to protecting and promoting
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`environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348
`
`(1989).
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`24.(cid:1)NEPA “prohibits uninformed-rather than unwise-agency action.” Robertson,
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`490 U.S. at 351.
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`25.(cid:1)“The procedures prescribed both in NEPA and the implementing regulations
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`are to be strictly interpreted to the fullest extent possible in accord with the policies
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`embodied in the Act.” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166
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`(9th Cir. 2003) (citations and internal quotations omitted).
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`26.(cid:1)To fulfill their obligations to protect the environment, Federal agencies must
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 7 of 10
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`take a “hard look” at the environmental consequences of their actions. Marsh v, Oregon
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`Natural Resources Council, 490 U.S. 360, 374 (1989).
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`27.(cid:1)An agency fails to take a “hard look” when it has offered an explanation that
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`runs counter to the evidence before it. Friends of Clearwater v. McAllister, 214 F. Supp.
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`2d 1083, 1087 (D. Mont. 2002) (internal citation omitted).
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`PROCEDURAL BACKGROUND
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`28. The Record of Decision for the revised Gallatin National Forest Plan was
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`signed by Forest Supervisor Mary Erickson on January 28, 2022.
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`29.(cid:1)The Forest Service issued a ROD for the BMW Project on November 29,
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`2011, issued a Decision Memo for the North Bridger Forest Health Project on August
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`27, 2018, and issued a Decision Notice and Finding of No Significant Impact for the
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`North Hebgen project on June 29, 2017.
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`30.(cid:1)The BMW Project implemented a “site specific Forest Plan Amendment for
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`visual quality.” (ROD page 7).
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`31.(cid:1)This District Court for the District of Montana enjoined the BMW Project on
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`June 25, 2013 and lifted the injunction on April 20, 2020. All. for Wild Rockies & Native
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`Ecosystems Council v. Marten, CV 12-55-DLC, 2020 WL 1915128 (D. Mont. Apr. 20,
`
`2020).
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`32.(cid:1)The District Court for the District of Montana denied Alliance’s motion to
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`enjoin the North Bridger Forest Health Project on June 3, 2020. All. for the Wild
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`Rockies v. Marten, CV 19-102-M-DWM, 2020 WL 2949866 (D. Mont. June 3, 2020).
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 8 of 10
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`33.(cid:1) The Forest Service issued a Decision Notice and Finding of No Significant
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`Impact for the North Hebgen project in June 2017.
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`34.(cid:1)The District Court for the District of Montana enjoined the North Hebgen
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`timber sale on June 27, 2018. Native Ecosystems Council v. Marten, 2018 WL 3178145
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`(June 27, 2018, D. Mont.)
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`35.(cid:1) The District Court lifted the injunction on June 9, 2020. Native Ecosystems
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`Council v. Marten, 2020 WL 3064496 (June 9, 2020, D. Mont.)
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`CLAIM FOR RELIEF
`
`I.(cid:1)
`
`The Forest Service violated NEPA by failing to take a hard look at
`the impacts of the Revised 2022 Custer Gallatin Forest Plan and its
`implementation.
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`36.(cid:1)Plaintiff incorporates all prior paragraphs.
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`37.(cid:1)The Environmental Impact Statement for the 2022 Custer Gallatin Forest Plan
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`states “[a] key assumption” of the Forest Service’s carbon and climate change analysis
`
`“is that the forestland will not be converted to a non-forest condition after harvesting
`
`and will remain productive.” FEIS Vol. IV at 20.
`
`38.(cid:1)The NEPA analysis for the Revised Forest Plan did not consider the 2017
`
`National Academy of Sciences Article that states “when thinning is combined with
`
`the expected warming, unintended consequences may ensue, whereby regeneration is
`
`compromised and forested areas convert to nonforest.” Tania Schoennagel, Adapt to
`
`
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`8
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 9 of 10
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`More Wildfire in Western North American Forests as Climate Changes, PROCEEDINGS OF
`
`NATIONAL ACADEMY OF SCIENCES, April 17, 2017, 114 (18) 4586.
`
`39.(cid:1)The NEPA analysis for the Bozeman Municipal Watershed Project, the North
`
`Bridger Project, and the North Hebgen Project did not consider the 2017 National
`
`Academy of Sciences Article that states “when thinning is combined with the
`
`expected warming, unintended consequences may ensue, whereby regeneration is
`
`compromised and forested areas convert to nonforest.” Tania Schoennagel, Adapt to
`
`More Wildfire in Western North American Forests as Climate Changes, PROCEEDINGS OF
`
`NATIONAL ACADEMY OF SCIENCES, April 17, 2017, 114 (18) 4586.
`
`40.(cid:1) The Forest Service violated NEPA by failing to take a “hard look” at the
`
`impacts of the Forest Plan.
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`41.(cid:1)The Forest Service violated NEPA by failing to take a hard look at the impacts
`
`of implementing the Forest Plan through the BMW, North Bridgers, and North
`
`Hebgen timber sales.
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`REQUESTS FOR RELIEF
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`For all the above-stated reasons, Plaintiff respectfully requests that this Court:
`A.(cid:1)Declare that the Forest Service violated the law;
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`B.(cid:1) Partially vacate the portions of the 2022 Revised Forest Plan and associated
`NEPA analysis that are arbitrary;
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`C.(cid:1) Vacate and Enjoin the three old growth timber sales that rely on the
`arbitrary 2022 Revised Forest Plan and associated NEPA analysis;
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`Case 2:22-cv-00005-BMM-JTJ Document 1 Filed 02/04/22 Page 10 of 10
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`D. Award Plaintiffs their costs, expenses, expert witness fees, and reasonable
`attorney fees under the EAJA; and
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`E. Grant Plaintiff such further relief as may be just, proper, and equitable.
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`Respectfully submitted this 4th day of February, 2022.
`
`/s/ John Meyer
`JOHN MEYER
`
`Attorney for Plaintiff
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