FS Litigation Weekly August 4 2014

Court Decisions

1. Travel Management ǀ Region 3

District Court Finds Forest Service Did Not Violate NEPA in Approving the Santa Fe National Forest Travel Management Plan in New Mexico Off-Highway Alliance v. United States Forest Service. On July 25, 2014, the United States Court for the District of New Mexico found that, contrary to Plaintiff, New Mexico Off-Highway Alliance’s claims, the Forest Service was not in violation of NEPA for approving the Santa Fe National Forest Travel Management Plan. Specifically, the Court found that the Forest Service: (1) reasonably used the estimated amount of trails actually being utilized by the public as the baseline for the no-action alternative, (2) sufficiently analyzed a reasonable range of alternatives, and (3) provided scientifically-sound reasoning for the decision. On Plaintiff’s claim related to the no-action alternative the Court expressed some concern finding that the correct measure of a no-action alternative would have been to consider the effect of leaving all the routes that were currently open under the Santa Fe plan as opposed to the Agency’s estimated use definition of the no-action alternative. However, the Court determined that the estimated use definition of the no-action alternative was not arbitrary and capricious because it was based on a thorough examination of which roads were currently being used, supported by CEQ guidance, and that the Forest Service actually analyzed the status quo (reasoning that unused roads would not have a significant impact on the environment and thus, would not have been part of the impact of the status quo). On this claim, the Court concluded Plaintiff’s argument was one of semantics which did not warrant reversal. (12-01272, D. N.M.)

Litigation Update

1. Salvage ǀ Forest Management ǀ Region 5

Plaintiffs File Amended Complaint and Motion for a Temporary Restraining Order of the Aspen Project on the Sierra National Forest in Earth Island Institute v. Gould. On July 29, 2014, Plaintiffs, Earth Island Institute and Center for Biological Diversity, filed an amended complaint and motion for a Temporary Restraining Order of the Aspen Project on the Sierra National Forest (work is scheduled to begin on August 1, 2014). (14-1140, E.D. Cal.)

2. Salvage ǀ Forest Management ǀ Region 5

District Court Denies Plaintiffs’ Motion for Preliminary Injunction of the Big Hope Project on the Tahoe National Forest in Earth Island Institute v. Quinn. On July 31, 2014, the United States District Court for the Eastern District of California denied Plaintiffs, Earth Island Institute and Center for Biological Diversity’s motion for a Preliminary Injunction of the Big Hope Project on the Tahoe National Forest finding that Plaintiffs failed to show that the balance of equities tips in their favor or that Preliminary Injunction of the Project is in the public interest. (14-1723, E.D. Cal.)

Note: Originally, Plaintiffs, Earth Island Institute and Center for Biological Diversity had challenged the Aspen and Big Hope Projects in a single complaint which was subsequently split into two separate cases.

New Cases

1. Range ǀ Region 4

Plaintiff Challenges Issuance of a Special Use Permit for Winter Elk Feeding Operations on the Bridger-Teton National Forest in Western Watersheds Project v. USFS. On July 14, 2014, Plaintiff, Western Watersheds Project, filed suit in the United States District Court for the District of Wyoming alleging that the Forest Service’s decision to grant a twenty-year Special Use Permit to the Wyoming Game and Fish Department to use National Forest System lands for winter elk feeding operations is in violation of the Wyoming Wilderness Act of 1984, NFMA, NEPA, and the APA. (14-00140, D. Wyo.)

Here is the 20140729AmendedComplaintEarthIslandInstitute_v_Gould_AspenSalvage

Here is 20140725OpinionNewMexicoOHVAlliance_v_USFS_SantaFeTrvlMgmt

Here is 20140714ComplaintWesternWatershedsProject_USFS_GrazingPermitElkFeeding

Here is 20140731OpinionPI_EarthIslandInstitute_v_Quinn_BigHopeSalvage

Note from Sharon: We’ve had discussions about the Center for Biological Diversity before but I had not heard much about Earth Island Institute. When I read their story about innovative work they had done on climate change, marine mammals, etc. here it seemed to me like a couple of Region 5 salvage sales are relatively small potatoes in terms of impact. I wonder what it is about these two salvage projects that drew their attention?

20 Comments

  1. Remember, Earth Island Institute is merely Chad Hanson and his eco-lawyer wife. He fights every salvage sale, using the blackbacked woodpeckers as his “poster child”. Remember, he doesn’t have a degree in wildlife but his practice is to say that impacts to the BBW haven’t been properly analyzed. I’m sure he will be playing that same song when the Rim Fire comes up. Also remember that his stated ultimate goal is to eliminate ALL timber sales, everywhere. He intends to use the BBW to achieve that goal.

    • “Remember, Earth Island Institute is merely Chad Hanson and his eco-lawyer wife.”

      Not quite correct. Earth Island Institute has a large number of projects under their umbrella, the John Muir Project is only one of them. Hanson is neither on the staff nor the board of directors of Earth Island Institute.

      It’s easy enough to find the facts, though perhaps inconvenient and less fun than making things up.

      http://www.earthisland.org/index.php/projects/projectDirectory/

      • That still doesn’t address the fact that his wife is their lawyer. It’s very clear to me that Hanson is the driving force behind EII’s lawsuits against salvage logging. I’m sure that there is a reason why they try to disassociate Hanson from the EII. Diversification is a good “business move” for the litigation industry.

        Edit: Thinking about it further, I’m going to guess that Hanson is trying to boost his level of scientific objectivity. *smirk*

        • indeed, not to mention that Hanson’s spouse, Rachel Fazio, happens to also represent the probably left-leaning “American Wild Horse Preservation Campaign” (they advocate for burros too, a not-so-subtle endorsement of a well known symbol for a certain political party), and furthermore not coincidentally a spokesperson for the AWHPC just happens to be the well-known “eco-actor” Robert Redford, founder of the Sundance Preserve for “protecting the environment” (find this all hard to believe? Just google “Robert Redford eco-freak” and see for yourself)… it’s hard to fathom but the web just keeps spreading out from there… any conspiracy theorist worth his/her salt can see where it all leads, and it ain’t pretty…

          • My point, (which I grant you was not Larry’s point) was that I didn’t think what Earth Island said it specialized in… startups and new ideas, did not fit to me with “another salvage lawsuit” in Region 5. People and groups usually do things for a reason. In organizations I’ve observed, when my intuition tells me something is not lining up, there is usually a relational or small or large “p” political reason of some kind. Unfortunately, I don’t know anyone there and I did look on the website to find out this information. I did see that the John Muir project is part of Earth Island. But I still wonder how it fits with their stated mission.

            For example this is from Earth Island’s 2012 report:

            • Project Coyote and Big Wildlife worked with California lawmakers to bass a bill prohibiting hunters from using hounds to hunt bears and bobcats.
            • Borneo Project now in its 21st year, continued working with communities in the Malaysian province of Sarawak to fight 12 proposed mega-dams in the region that threaten their ancestral lands.
            • Women’s Earth Alliance celebrated the 100th graduate of its Global Women’s Water Initiative. Thanks to this grassroots initiative to bring sustainable water solutions to local communities, tens of thousands of people now have access to clean water and sanitation.
            • IMMP and its Save Japan Dolphins initiative once again fielded a team of observers at the infamous Taiji Cove to monitor dolphin capture and killing. Thanks to the exposure we have brought, the practice is waning.
            And we continue to grow! In 2012 we welcomed:
            • Alter Terra, working on transborder environmental restoration projects in the Tijuana River estuary.
            • FoodShift, seeking to eliminate food waste in the Bay Area.
            • The Resilience Fund, helping coffee farmers adapt to the dislocations caused by global climate change.
            • Hempstead Project H.E.A.R.T., working to legalize industrial hemp.
            • All One Ocean, creating mechanisms for beach cleanups to keep trash out of the ocean.
            • Urban Streams Alliance, advocating for the protection, restoration, and stewardship of urban streams.
            • CoCo San Sustainable Farm, working to increase food security and decrease nutritional poverty. The farm produces food for underserved communities with effective use of reclaimed water and bio-intensive farming practices.

            Now, here are links to the Aspen Project
            http://data.ecosystem-management.org/nepaweb/nepa_project_exp.php?project=43107

            http://data.ecosystem-management.org/nepaweb/nepa_project_exp.php?project=42946

            Note that they are both EAs with ESD’s (Emergency Situation Determination).

            • Variations on the ESD theme are becoming more and more pervasive. We need to be exempted from any environmental review or public input, because we need to sell this timber right away in order to help fund other vaguely defined environmental “improvements” in the future, which we wouldn’t have been able to fund otherwise without this serendipitous wildfire/beetle infestation. Just trust us, we’re professionals and we know what’s best…

              • Here is how I see it. We are in a cycle and I have been in the gears of it more than once.

                1) Folks like Chad Hanson appear to have the reins over projects using litigation, more than the agency charged with management, and more than officials who have been elected by local residents.

                2) People don’t think this is right (it feels like the King’s Forest) so they and their elected leaders engage in saber rattling about this politically.

                3) CEQ wants to claim “everything is fine” and points to things like ESD.

                4) NGOs then claim that writing an EA, having objections, etc. is equivalent to “exempting from environmental review or public input”.

                5) But no one who follows this believes this hype, because they can simply review the response to comment and EA and the other related documents that I have in the links above.

                And so it goes…

                • Sharon, if you truly have been “in the gears of it”, I would think you would know better than to write:

                  “4) NGOs then claim that writing an EA, having objections, etc. is equivalent to “exempting from environmental review or public input”.
                  5) But no one who follows this believes this hype…”

                  Do you consider the CFR to be “hype”? Because it quite clearly states the following:

                  http://cfr.regstoday.com/36cfr218.aspx#36_CFR_218p21

                  TITLE 36 — PARKS, FORESTS, AND PUBLIC PROPERTY [ 36 CFR ]
                  PART 218 — PROJECT-LEVEL PREDECISIONAL ADMINISTRATIVE REVIEW PROCESS [36 CFR 218 ]
                  §218.21 Emergency situations.
                  (a) Authority. The Chief and the Associate Chief of the Forest Service are authorized to make the determination that an emergency situation exists as defined in this section.
                  (b) Emergency situation definition. A situation on National Forest System (NFS) lands for which immediate implementation of a decision is necessary to achieve one or more of the following: Relief from hazards threatening human health and safety; mitigation of threats to natural resources on NFS or adjacent lands; avoiding a loss of commodity value sufficient to jeopardize the agency’s ability to accomplish project objectives directly related to resource protection or restoration.
                  (c) Determination. The determination that an emergency situation exists shall be based on an examination of the relevant information. During the consideration by the Chief or Associate Chief, additional information may be requested from the responsible official. The determination that an emergency situation does or does not exist is not subject to administrative review under this part.
                  (d) Implementation. When it is determined that an emergency situation exists with respect to all or part of the proposed project or activity, the proposed action shall not be subject to the predecisional objection process and implementation may proceed as follows:
                  (1) Immediately after notification (see 36 CFR 220.7(d)) when the decision is documented in a Decision Notice (DN).
                  (2) Immediately after complying with the timeframes and publication requirements described in 40 CFR 1506.10(b)(2) when the decision is documented in a Record of Decision (ROD).

                  When a “proposed action shall not be subject to the predecisional objection process and implementation may proceed…”, I don’t think it is either hype or hyperbole to say that it has been exempted from public analysis and environmental review (realizing that full and adequate “environmental review” includes public disclosure, oversight, commentary, and interaction, something that the agency continues to fight aggressively.)

                  • I haven’t paid a lot of attention to NEPA emergency procedures, but the language Guy pointed out in (b) has always seemed questionable to me. In the CEQ regulations interpreting NEPA, 40 CFR 1506.11 applies to emergencies and requires that emergency actions be limited to “actions necessary to control the immediate impacts of the emergency.” The FS justification appears to include more general and unrelated categories of “resource protection or restoration.” How does that comply with CEQ?

                    • I don’t read CFRs anymore (as a volunteer), so maybe someone more current than I can explain where ESD policy for the FS is set. We can be certain, however, that these have been reviewed and OKed by CEQ and DOJ.

                      The easiest way to find the rationale would be for someone who understands it to email me and I will post. I promise I won’t share your name.

                  • I disagree.
                    First of all, I did not count the pages, but all the documents including the EA and background info ARE environmental review. In plain English “exempted” suggests “there is none”. I see these documents as evidence that there is “some.”

                    Now as to the second, indeed the CFR you quote sounds like there is no chance for the public to comment. Yet, they posted this interesting document on the website.

                    As far as I know, Mr. Artley (whose comments I have read many times 🙂 as have many others reading this blog) is in fact a member of “the public.” And the Forest Service went to the effort of writing a document just to respond to his comments, suggesting that in fact, he was able to make comments ( I think it sets a bad precedent to have a response to comments for one individual, but I’m sure that there’s a story there).

                    I’m willing to consider different explanations of how this document came about. Here is the link.
                    And this document mentions a 30 day comment period. so I am confused as to how this means “exempted from public analysis.”

                    Now the difference between you and me might be that I am talking about two specific projects, and you might be talking about “what might be possible under the CFR.” But as to these two projects, it is not clear to me how your statement and the physical (er…electronic) evidence are compatible. That is, the existence of an EA and supporting documents, and a response to comments.

              • Roadside hazard work isn’t “vaguely defined”, Guy. Fuels reduction and re-burn mitigation isn’t vague, at least to me, a lowly out of work Forestry Technician. Breaking up hydrophobic soils and getting logging slash on the ground (erosion mitigation) might be a little more esoteric for the general public but, it does have a basis in scientific fact. Yes, I have seen the tiniest of sticks holding back impressive amounts of soil. Standing snags are sources of rill erosion, concentrating runoff and adding erosive power. It’s easy enough to explain the benefits of salvage logging and the mitigation of the terrible firestorm impacts.

                Of course, the eco-solution is to do nothing and let whatever happens, happen. Yes, of course they want to replant the Rim Fire but, do not understand the details of how and if. Clearly, some people just aren’t progressive enough to take a “hard look” at the realities of wildfires and how fuels reduction, through some careful harvesting is needed.

                I’m still not convinced that the Appeals Court will have an open mind about salvage sales, in general, and ESD’s, in particular. However, I AM convinced that it is Chad Hanson who has forced this gameplan by winning anti-hazard tree decisions.

                • It seems to me we have done enough salvage logging and “let it be” projects on our forests that the evidence is on the ground.
                  I have gone back many times over the years and surveyed areas we have salvaged logged. I have yet to fine any harm that was done by salvage logging. To me the benefits of post fire timber salvage are numerous and obvious .
                  Chad Hanson was quoted in recent article in the Eugene Register Guard. Like what makes him such an expert on post fire ecology.
                  Has anyone in the 9th circuit court ever even been out in the woods?

                  • “Chad Hanson was quoted in recent article in the Eugene Register Guard. Like what makes him such an expert on post fire ecology.”

                    It’s the mainstream media that touts him as an expert.

                    In my experience, I have seen him make huge sampling “mistakes” in looking for live cambium on burned trees. Even guys like me know that you have to sample for live cambium at the base of the tree, and not at dbh. Also, his quest for scientific “objectivity” is doomed to failure when he spreads misinformation about owls, goshawks and woodpeckers, as wildlife is not his forte. He’s quite willing to trade healthy old growth stands for unsalvaged high intensity burns.

                    In my experience, BBW’s are more like grazers, roaming the landscapes and living off snags within green forests. Sure, they prefer to set up shop in burned forests but, every BBW has to move on, at some time in their lives. There is no lack of snag habitat, throughout the Sierra Nevada, and all Forest Service salvage projects set aside huge expanses of snags, which, somehow, Hanson finds a way of ignoring.

  2. This quote from the travel planning case is interesting:

    “As the Court noted at the hearing, it was disappointed that Federal Defendants were not
    prepared and thus took no position on whether NMOHVA has standing lawsuit (sic) bring this suit.
    While the Federal Defendants may have unlimited resources to expend litigating a case such as
    the one at bar when there is potentially no subject matter jurisdiction, the Court does not have
    such resources.”

    Interesting because the Forest Service has actively been challenging the standing of environmental plaintiffs to sue in other cases. More interesting because none of the parties nor the judge ask what environmental impacts these trail closures have on these plaintiffs (the “zone of interests” test of standing as it applies to NEPA). In other cases, motorized users have had to assert that they are concerned about effects on the environment of concentrating motorized use in fewer places.

    (Thanks for sharing, Sharon. As we’ve noted, there’s usually something interesting going on.)

  3. Regarding the American Fire, here are some stats:

    “The Big Hope Project Area boundary includes approximately 23,000 acres of NFS lands and approximately 5,000 acres of privately owned land. (Id.) The Big Hope Project’s
    proposed treatment activities include:

    salvage harvest of fire-killed trees with ground based equipment (approximately 3,010
    acres)

    salvage harvest of fire-killed trees with aerial (cable or helicopter) logging systems
    (approximately 435 acres)”

    I’m thinking that the nearly 20,000 unsalvaged burned acres should suffice for the needs of the blackbacked woodpecker.

    I also see the the Chief got involved, granting an “Emergency Service Determination”, which is new to me, and allows a streamlined process to get worked started ASAP.

    “The Forest Service requested an Emergency Service Determination (“ESD”) for the Big Hope Project “based on threats to human health and safety . . . and the loss of commodity value
    that would jeopardize critical restoration and resource protection activities if the project is delayed.” (AR 4675.) The Chief of the Forest Service found that the Big Hope Project qualifies as an “emergency situation” under 36 C.F.R. § 218.21 and granted the ESD on June 13, 2014. (AR 4676.) ”

    It will be interesting to see how this flies in Appeals Court, where this will certainly be going.

    I also see that only roads designed and maintained for passenger car use are the only roads that are worth being made safe for the public, from hazard trees, according to a previous court decision involving Hanson. So, if you are out driving in the woods, on the “wrong road” and a dead tree falls on you, it is your fault. If a tree falls behind you and you are trapped, so be it, eh?

    Isn’t this FUN??!!??

Leave a Reply

Your email address will not be published. Required fields are marked *