The Ninth Circuit Court Appeals Affirms the Denial of a Preliminary Injunction Seeking to Stop an Ecosystem Restoration Project in the Colville National Forest

Spokane– Joseph H. Harrington, Acting United States Attorney for the Eastern District of Washington, announced that, on August 1, 2017, the Ninth Circuit Court of Appeals affirmed United States District Judge Rosanna Malouf Peterson’s order denying a preliminary injunction in the Alliance of the Wild Rockies’ (AWR) challenge to the Colville National Forest’s North Fork Mill Creek A to Z Project.

According to information disclosed during court proceedings, AWR filed a lawsuit in August of 2016 challenging the Colville National Forest’s decision to approve the North Fork Mill Creek A to Z Project. That project was carefully designed through a multi-entity cooperation between the Forest Service, the timber industry and a variety of environmental organizations that formed the Northeast Washington Forestry Coalition (NWFC). The project is designed to provide ecosystem restoration through the rebuilding of roads, fish habitat improvements, thinning of overstocked tree stands, pre-commercial thinning of congested young trees, and some aspen restoration in the North Mill Creek drainage of the Three Rivers Ranger District in the Colville National Forest. Forest Supervisor Rodney Smoldon approved the project in June of 2016.

AWR sued the Forest Service in 2016 claiming that the Forest Service violated the National Forest Management Act (NFMA) by allowing local Colville lumber operators, Vaagen Brothers Lumber Company, to arrange for a private contractor to conduct the environmental analysis and the writing of an environmental assessment (EA) for the proposed project. AWR also claimed that the project violated the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) because the EA allegedly did not properly: address the cumulative effects of the North Fork Project in connection with other projects planned in adjacent watersheds; failed to protect habitat for fisher and pine marten animals (two small forest furbearers) under the NFMA; failed to protect snow-intercept cover used by deer and elk on the winter range; and increased sediment production that allegedly could injure local fish species.

AWR sought a preliminary injunction from the district court, arguing its lawsuit would likely succeed on the merits and that serious questions existed going to the merits of the Forest Service’s NFMA and NEPA compliance. AWR also argued that allowing the first phase of the three-phase project to continue forward would cause irreparable harm and damage in the Mill Creek area, which did not serve the public’s interest. Judge Peterson rejected AWR’s position and denied the request for a preliminary injunction.

The case was appealed to the Ninth Circuit Court of Appeals. Following briefing, Rudy J. Verschoor, an Assistant United States Attorney for the Eastern District of Washington, argued the case on June 13, 2017. Both the reforestation project and AWR’s challenge to the project have drawn significant local interest. The Ninth Circuit argument was attended by Pend Oreille County Commissioner Karen Skoog, Brian Todd of The Nature Conservancy, Russ Vaagen and Josh Anderson of Vaagen Brothers and others.

Writing for a unanimous panel, Judge Milan D. Smith, Jr., found that AWR “had not demonstrated serious questions, much less a likelihood of success, with respect to the merits of any of its NFMA and NEPA claims.” The panel found that the Alliance had not shown a likelihood of success on the issues related to fisher and pine marten, wildlife cover in winter range, road density in winter range, or sediment projection in streams as a result of the proposed activities.

The case will now continue in the District Court for further proceedings before Judge Peterson, where AWR and the Forest Service will brief the remaining claims in the case. A schedule for that briefing has not yet been announced.

This case is being defended by Rudy J. Verschoor and Vanessa R. Waldref, Assistant United States Attorneys in the Civil Division of the United States Attorney’s Office for the Eastern District of Washington.