The Ninth Circuit Court of Appeals has upheld a U.S. Forest Service (USFS) plan to repair a Nevada national forest road damaged by flooding in 1995. Great Old Broads for Wilderness v. Kimbell, No. 11-16183 (9th Cir. 3/4/13). At issue was a plan to rebuild South Canyon Road, which had provided the only vehicle access to the Snowslide Gulch Wilderness Portal in the Jarbidge Wilderness until flood damage made it unusable.
The repair effort underwent a lengthy process that included challenges to USFS’s initial plan, issued in 1997. That plan was challenged, in part, on the ground that repairing the road would render the bull trout population in the Jarbidge River a threatened species. A unilateral county effort to repair the road caused sedimentation that damaged the fish’s habitat and caused the U.S. Fish and Wildlife Service to list the Jarbidge River bull trout as a threatened species. In 2005, USFS issued a new plan, calling for repair of only a portion of the road. Plaintiffs sued, asserting that the project violated the Inland Native Fish Strategy; Executive Order 11988, relating to construction in flood plains; and the National Environmental Policy Act (NEPA).
The district court granted USFS summary judgment, holding that the plaintiffs had not exhausted their administrative remedies and, alternatively, that the claims failed on the merits.
The Ninth Circuit dispensed with USFS’s argument that the plaintiffs had not properly exhausted their administrative remedies and thus addressed the claims’ merits. The court agreed with USFS that the plan complied with the Inland Native Fish Strategy because, while it covered the bull trout in the Jarbidge River, it did not directly constrict road projects. The court also found that USFS appropriately complied with the executive order and properly considered alternatives in its NEPA analysis. It approved USFS’s decision to implement an approach that used elements of three different alternatives proposed in the NEPA analysis, finding that each of those elements had been properly analyzed in the context of the original alternatives.