Tuesday, May 16, 2023

Alliance for the Wild Rockies v. Petrick (9th Cir. - May 16, 2023)

Usually, when you want to log and burn thousands of acres of forest, you've got to do an environmental analysis under the National Environmental Policy Act (NEPA) to make sure that you're not, you know, killing species and stuff like that. The United States Forest Service granted a timber permit for doing just that way up in the Idaho panhandle -- that strip of land way up north near Canada. But the Forest Service said that it didn't need to comply with NEPA because there's an exception in the statute for forest fire prevention efforts -- allegedly like this one -- that are set in a "wildlife-urban interface."

I was fairly surprised to learn that Bonner County, Idaho, allegedly qualifies as a "wildlife-urban interface." To my (admittedly not especially informed) mind, there's very little, if anything, about extreme northern Idaho that would qualify as remotely "urban". Wildlife? Sure. Urban? Uh, no.

But maybe I just don't know northern Idaho well enough, right?

So I look up Bonner County. It's got a population of roughly 47,000 people. Not exactly a megalopolis, to be sure. Those 47,000 people are spread out over 1,919 square miles. Which means there's a population density of 25 people per square mile. 

That's not exactly urban. By contrast, Fresno has 4,700 people per square mile; San Diego has 4,450. Even Bishop (for those of you ever passing by on the way to or from Las Vegas) has a density of over 2,000 per square mile. So 25 per square mile? That's not much.

But, hey, maybe there's a dense "urban" core somewhere up in northern Idaho that's surrounded by forest that would justify an exception under NEPA, even though Bonner County as a whole seems totally rural.

So I look up the two Idaho communities that the opinion says might be close enough to the logging area to qualify as a "wildlife-urban interface" under the statute: Nordman and Lamb Creek.

Nordman has a bustling population of . . . 138 people. That doesn't exactly sound urban. Interestingly, the median age of the population of Nordman is 60 years old, which seems rare. The number of families with children in Nordman is . . . zero. And every single person there is either married (96%) or widowed (4%).

As for Lamb Creek, I don't even know. There's not even much about it I can find online. It's not a census-designated area. Which would seem rare for an "urban" location, no?

Anyway, the district court thought that the wildlife-urban interface categorical exemption from NEPA didn't apply, so required the Forest Service to comply with the statute.

The Ninth Circuit today reverses and remands.

To me (and, I think, the district court), if Nordman and Lamb Creek in way northern Idaho can qualify as a "wildlife-urban interface," then pretty much anything can, and those words don't have anywhere near their ordinary meaning, nor any real constraint at all on the ability of local communities to grant themselves exceptions from major environmental statutes. That's somewhat worrisome. At least to me.