Data source
Date of text
15 Sep 2010
Original language


Type of text
National - higher court
Reference number
No. 09-35896
Court name
United States Court of Appeal for the Ninth Circuit

The issue in Hapner v. Tidwell was a challenge to the Environmental Assessment (“EA”) for the proposed Smith Creek project in the Gallatin National Forest of Montana. The purpose of the project stated by the U.S. Forest Service (“Service”) was to reduce the risk of severe wildfires, and insect infestation and disease through logging and prescribed burning.
Plaintiffs Sharon Hapner, Native Ecosystems Council, and Alliance for Wild Rockies challenged the EA claiming violations of the National Environmental Policy Act (“NEPA”), the National Forest Management Act (“NFMA”) and the Administrative Procedures Act (“APA”). The plaintiffs appealed, and the 9th Circuit agreed with one of their claims: that the project would remove too much cover that migrating elk use to hide from predators and feel secure.
For the purposes of the EA, the Service relied on two separate measurements of elk cover. However, the EA did not measure elk cover according to the definition set out in the Gallatin Forest Plan. The Gallatin Forest Plan requires two-thirds of elk cover be maintained "over time". According to the court, the Service’s interpretation in this instance would allow actions to "whittle elk cover down to nearly nothing so long as each individual action removed only 33% of then-existing cover". While the court stated that the agency is normally entitled to deference to interpret their own regulations, in this instance the court determined that the interpretation of the elk cover requirement was plainly erroneous and therefore a violation of NFMA. The court remanded to the Service to remedy this error in the EA.