Lawsuit now filed by Monroe County, other plaintiffs over proposed logging, burning in Hoosier National Forest

Houston South Screen Shot 2020-05-14 at 12.30.30 PM
The project area for the Houston South project is shown in dark red, with Lake Monroe watershed in heavy blue. The image is from the meeting minutes for the Feb. 12, 2019 meeting of Monroe County’s council. Image links to meeting minutes.

A lawsuit filed by Monroe County officials in federal district court on Wednesday claims that the US Forest Service violated the National Environmental Protection Act and the National Forest Management Act in its adoption of a plan to log, burn and apply herbicide to sections of the Hoosier National Forest just southeast of Monroe County.

The project activities proposed by the forest service include clear cutting about 400 acres, and some kind of tree removal from another roughly 3,000 acres. Also a part of the mix are herbicide spot treatments on about 2,000 acres. About three miles of new roads are supposed to be built along with eight miles worth of temporary roads.

As described by the forest service, the purpose of the Houston South Vegetation Management and Restoration Project is “to promote tree growth, reduce insect and disease levels and move the landscape toward desired conditions.”

The project area overlaps with part of the Lake Monroe watershed. That’s a substantial part of the objections to the project, because the lake provides drinking water to the city of Bloomington and much of the rest of Monroe County.

The plaintiffs include two other governmental entities (Monroe County’s board of commissioners and environmental commission) two nonprofits (Hoosier Environmental Council and Indiana Forest Alliance), and one individual (Paul David Simcox). In addition to the US Forest Service, the suit names as defendants forest supervisor Michael Chaveas and district ranger Michelle Paduani.

Bloomington is not a party to the lawsuit.

City of Bloomington utilities director Vic Kelson responded to a question from The Square Beacon about the city’s non-participation in the suit in by saying: “The [Monroe County] board of commissioners has never asked CBU about our understanding of the proposed project or any drinking water quality issues that might result from it. After carefully reviewing documents and maps associated with the project, CBU independently concluded that it was not in CBU’s interest to initiate a suit or intervene in the existing suit.”

Legal action had been expected. Monroe County’s environmental commission voted earlier this week to join the lawsuit. At its March 18 meeting the county’s board of commissioners authorized the retainer agreement with the law firm Eubanks and Associates, which is providing legal representation. The county council approved the initial $50,000 in funding for the lawsuit on a 5–2 vote.

The county’s Thursday morning press release quotes president of the board of commissioners, Julie Thomas, saying, “After nearly 18 months of commenting, asking for key reports, and objecting to this project and the US Forest Service’s dismissal of all the important concerns, Monroe County and the plaintiffs were left with no other recourse but to file this suit. We are taking this action to protect our forest and the sole source of drinking water for 140,000 citizens in our region.”

Executive director of the Indiana Forest Alliance, Jeff Stant is quoted in the press release saying: “The US Forest Service has seemed hell-bent on doing this project regardless of its dramatic impact on people, wildlife and the forest ecosystem in general. We’re taking a stand to show that refusing to consider alternatives is against the law.”

The failure to consider alternatives to the Houston South project is key point of the lawsuit. A variant of the word “alternative” appears 134 times in the 56-page document.

From the lawsuit:

To that end, public comments suggested highly specific alternatives and explained how various alternatives are consistent with the Forest Service’s goals and would better preserve the environment. However, the Forest Service refused to examine any of the alternatives the public proposed, and instead only considered undertaking the Project as proposed or undertaking no action at all.

The failure to consider alternatives counts as a violation of the National Environmental Protection Act (NEPA), according to the lawsuit.

In addition to the NEPA violation, the lawsuit contends that the forest service project is not consistent with a specific goal of the Land and Resource Management Plan for the Hoosier National Forest—the goal of protecting and restoring watershed health. That inconsistency counts as a violation of the National Forest Management Act, according to the lawsuit.

The lawsuit also objects to the environmental assessment (EA) done by the forest service which resulted in a “finding of no significant impact” (FONSI). The FONSI was used by the forest service to justify its decision not to prepare an environmental impact statement (EIS)—which more rigorous than an EA, and which otherwise would have been required.

Another point in the lawsuit involves the contention by the forest service that “there are no unresolved conflicts concerning alternative uses of available resources.” The forest service relied on its contention of no unresolved conflicts to justify not considering alternatives, according to the lawsuit.

The lawsuit also objects to the way the forest service baked its preferred alternative into its statement of a “need for action.” The statement of “need for action” was amended, according to the lawsuit, so that the statement claimed action was needed in the specific Houston South project area. By rephrasing the stated need for the project, the forest service had tried to undercut arguments that the NEPA requires consideration of alternatives, according to the lawsuit.

The lawsuit asks that the court to find that the US Forest Service violated the NEPA and the NFMA. The lawsuit asks the court to prohibit the forest service from implementing the Houston South plan.

The lawsuit also asks that the forest service be required to subject the plan to additional review in a way that is “consistent with its duties” under the the NEPA and the NFMA. The lawsuit does not ask the court require the forest service to reach any particular conclusion after the additional review.

At the county’s environmental commission meeting earlier this week, a timeline for the legal action was sketched out for the commission on Monday by attorney Nick Lawton, a senior associate at Eubanks & Associates.

It could follow one of two paths, Lawton said. It would depend on the county’s ability to negotiate constructively with the forest service, he said. He hoped that the forest service would be willing to talk about a reasonable schedule for the litigation, before it goes out and starts logging and burning.

If the forest services wants to go ahead with the project before the litigation is handled, he might have to seek an emergency injunction, Lawton said. That would put things on a much quicker timeline.