A Case to Protect Public Land

A Case to Protect Public Land

by: Western Lands Project: Janine Blaeloch Posted on: July 19, 2012

Photo: Clearcuts in the Green River Watershed, Del Sonneson

By Janine Blaeloch, Director, Western Lands Project

Editor’s Note: Learn about the law and its power and struggle to protect public land within the regulatory system.

The law has long been a critical tool for environmental activists. For public land advocates, the Western Lands Project’s case against the Huckleberry Land Exchange stands out as one of the most important precedent-setting victories for privatization opponents and is a fitting example of how the law can be wielded to protect the public domain.

The Huckleberry Land Exchange, a project initiated in 1996 and completed in 2001, was a proposal by the U.S. Forest Service to trade approximately 7,000 acres of mature old-growth forest in the Mt. Baker-Snoqualmie National Forest to Weyerhaeuser Timber Company for about 30,000 acres of high-elevation “rocks and ice” and clearcuts in neighboring forestlands.

As a forest activist and private citizen, I had been asked to review the project by some friends who lived near land that would be traded to Weyerhaeuser. I found the Environmental Impact Statement (EIS) to be appallingly inadequate in its analysis of the land trade’s impact. Only through great effort, including mystical interpretation of convoluted tables, graphs, and cryptic language, could one realize that:

Once traded to Weyerhaeuser, the mature and old-growth forest on Huckleberry Mountain would be harvested and replanted on a 40-year rotation. If left in Forest Service hands, the same land would be logged on a 200-year rotation, and some trees would be left standing.

A 236-mile net gain in public roads would present both an environmental and financial liability to the public, the latter to the tune of over $2 million needed to decommission failing roads.

Past land exchanges in the same watershed—the Green River—had privatized tens of thousands of acres of national forest, bringing about large-scale clearcutting, sedimentation, and slope failure that would be compounded by the Huckleberry proposal.

Habitat for the northern spotted owl and marbled murrelet, two federally-listed threatened species, would be severely affected.

I filed an appeal, and subsequently sought relief in court, as a member of and on behalf of Pilchuck Audubon Society. Western Lands Project had not yet been established. The case is captioned Muckleshoot Indian Tribe v. U.S. Forest Service, the Muckleshoot were Pilchuck’s co-plaintiffs in the case.

After losing in Federal District Court, we appealed to the Ninth Circuit Court of Appeals, which ruled in our favor. The Ninth Circuit held that the Forest Service violated the National Environmental Policy Act of 1969 (NEPA) by not considering an adequate range of alternatives to the trade or properly analyzing its cumulative impacts. NEPA is a bedrock environmental law with a dual purpose: 1) it requires that government agencies analyze and disclose the environmental impacts of projects and 2) it provides a structure for citizen participation in project decisions.

The Court also held that the Forest Service violated the National Historic Preservation Act of 1966 (NHPA) by failing to sufficiently mitigate the negative impacts of trading away a portion of the Muckleshoot Tribe’s historic Huckleberry Divide Trail.

Legally, the Muckleshoot case had an immediate impact on all of the land exchange proposals pending across the Ninth Circuit (eight western states) for both the Forest Service and Bureau of Land Management (BLM). The public land agencies took note and applied the lessons of the case across all U.S. public lands; land exchanges could no longer be treated by the agencies as “paper” actions with no impact on the ground. The real environmental impact of relinquishing public land to a timber, mining, or development company had to be analyzed, disclosed, and mitigated. The agencies had to analyze alternatives to the proposed project, giving the public the ability to weigh in on other options, such as acquiring private lands through purchase instead of trade or placing restrictions (i.e. conservation easements) on lands that would be privatized. Just as the impact to newly-privatized land had to be analyzed, so did the cumulative impact of other recent, ongoing, or foreseeable developments in the same area. All of these factors transformed the way both the agencies and the public regarded land trade proposals. Rather than mere real estate transactions with abstract effects, public land trades were treated as projects with real consequences that required (and deserved) public scrutiny.

As is usually the case with litigation under NEPA, the Muckleshoot challenge did not stop the Huckleberry Land Exchange. However, there were improvements in the final deal. The Forest Service issued a new, vastly improved analysis and made several changes in the exchange itself. This included retaining all of the old-growth forest and the culturally important Huckleberry Divide trail as public land, rather than trading it to Weyerhaeuser.

The legacy of this court case lives on. In 2004, we won our first NEPA case as an organization: Western Land Exchange Project v. BLM. The BLM’s environmental assessment for a land sale in Nevada did not look at the combined impact of the planned development and a separate proposed massive subdivision in the same county. The Muckleshoot case established that environmental assessments of land trades had to incorporate other local, separate, impacts such as nearby subdivisions. Unfortunately, the land sale still went through in spite of our win because members of Congress mandated that the sale must go forward, trumping our court victory.

Most notably, over the twelve years since Muckleshoot was decided there has been gradual, yet substantial, improvement in NEPA analysis for federal land exchanges. There is a heightened awareness among both agency staff and the public that these transactions can have real consequences on the ground.

On a recent trip to Washington, D.C., I was told that the Council on Environmental Quality, the executive agency that oversees NEPA, regularly cites the Muckleshoot case as an outstanding example of NEPA’s effectiveness and its capacity to improve policy.

Visit www.westernlands.org

2 Responses to “A Case to Protect Public Land”

Janine, I've been waiting for this article! Great to see it here. I hope it gets widely read. Joanne
by: Joanne Hedouon: Friday 20th of July 2012
Thank you for this contribution!!
by: Abe Cohenon: Friday 27th of July 2012