Update on Californians for Alternatives to Toxics (CATs) v. Dombeck, et. al. June 28, 2001

On June 12, 2001, Judge Lawrence K. Karlton, of the U.S. District Court for the Eastern District of California, ruled that the Forest Service violated the National Environmental Policy Act (NEPA) and the Herger-Feinstein Quincy Library Group Forest Recovery Act (HFQLG Act) by failing to analyze the need for and environmental effects of fuel-break maintenance. Ongoing pilot project activities are allowed to continue provided a draft supplemental environmental impact statement (EIS) is released for public comment within 120 days.

Background: In October 1998, the HFQLG Act became law, requiring the Forest Service to conduct a 5-year pilot project to implement certain resource protection measures and management activities in the Lassen, Plumas, and Tahoe National Forests. Based on the direction in the HFQLG Act, the Forest Service prepared an Environmental Impact Statement (EIS) evaluating the impacts of, among other things, the creation of fuel-breaks (Defensible Fuel Profile Zones (DFPZs)).

In August 1999, the Lassen, Plumas, and Tahoe National Forest Supervisors issued the Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for the pilot project. Of the fifteen appeals received in March 2000, the CATs appeal was initially dismissed as untimely and the group filed a lawsuit. Shortly thereafter, the Regional Forester agreed to accept and respond to their appeal and the lawsuit was temporarily stayed. Following the denial of their appeal in June 2000, CATS resumed its litigation by filing an amended Complaint.

The core of the lawsuit focused on the inadequacy of the FEIS as it failed to discuss future fuel-break maintenance. According to the plaintiff (CATs), construction of fuel-breaks would lead to the rapid growth of understory vegetation (within 2-5 years), thereby necessitating prompt maintenance, potentially including herbicide, in order to retain fuel-break effectiveness. The Forest Service argued that, within the 5-year scope of the pilot project, a sufficient analysis of the need for fuel-break maintenance was analyzed in the FEIS. The Forest Service argued that maintenance might take place in 10-15 years, if it was necessary at all. Also, maintenance could involve any number of different treatment methods with prescribed burning being the most likely.

In resolving the case, while the court dismissed several of the plaintiff's claims, it did uphold the claim that the Forest Service failed to consider the environmental effects of maintaining fuel-breaks in the future. The court concluded that fuel-break maintenance was an essential element of the congressionally mandated pilot project, and therefore needed to be examined as such within the FEIS. The court focused on plaintiff's NEPA claims and held that in relation to fuel-break construction, fuel-break maintenance was both a connected action and a cumulative action, and therefore had to be analyzed within the FEIS.

The court ordered that the Forest Service draft a supplemental EIS on the issue of fuel-break maintenance and release it for public comment within 120 days of the ruling. Consequently, unless the Government decides to appeal, the Forest Service has until October 10, 2001 to release a draft supplemental EIS for public comment.

Current Suituation: Forest Service officials have assembled an inter-disciplinary team (IDT), including a land management planner who is serving as the IDT leader, a NEPA writer editor, a fuels management specialist, and a forest vegetation management specialist.

The Federal Register notice regarding the intent to prepare a supplemental EIS analyzing the need for and environmental effects of fuel-break maintenance is scheduled for publishing in mid-July. A draft supplementary EIS will be published by October 10, in compliance with the Judge's order.

The Forest Supervisors anticipate meeting all of the requirements of the Judge's order and thereby avoiding any delay in completion of ongoing and future HFQLG projects.

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