Litigation Weekly Nov. 10-17

Here are a couple of cases:

1. Wild and Scenic Rivers ǀ Region 8.

Circuit Court Upholds District Court Decision in American Whitewater v. Tidwell. On November 4, 2014, the United States Court of Appeals for the Fourth Circuit upheld the United States District Court for the District of South Carolina’s ruling that the Forest Service’s decision to allow limited floating activities on the headwaters of the Chattooga River was not arbitrary and capricious in violation of the APA and was not in violation of the Wild and Scenic Rivers Act. The Court concluded that the Forest Service made a reasoned decision in limiting headwaters floating opportunities to specific portions of the river during the months of December to April and, accordingly, deferred to the Agency’s expertise. On American Whitewater’s Wild and Scenic Rivers Act claims, the Court found (1) that the Forest Service was not required by the Wild and Scenic Rivers Act to manage the river with “floating” as an ORV and (2) that the Forest Service correctly determined that floating could interfere with other recreational uses and therefore, restrictions on headwaters floating are consistent with the Act. The Court also upheld the District Court’s rulings on intervenors, the Rust Family and Georgia ForestWatch’s claims. (13-1960, 4th Cir.)

1. Herbicide Application ǀ Wildlife ǀ Region 6.

Circuit Court Affirms in Part, Reverses in Part, and Remands in Challenge to the Forest Service’s Approval of Herbicide Application on the Wallowa-Whitman National Forest in LOWD v. USFS. On October 30, 2014, the United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded the District Court’s ruling in Plaintiff, League of Wilderness Defenders/Blue Mountains Biodiversity Project’s challenge to a Project to apply herbicides in the Wallowa-Whitman National Forest. The Circuit affirmed the District Court’s ruling on Plaintiff’s NFMA claim finding that the Forest Service did not violate NFMA by failing to discuss in the EIS that the Project would be consistent with INFISH and PACFISH. However, the Circuit reversed the District Court’s ruling on Plaintiff’s NEPA claim finding that the Forest Service was required by NEPA to include an explicit INFISH/PACFISH consistency analysis in the EIS. (13-35054, 9th Cir.)

5 Comments

  1. The opportunity for litigation is endless. It’s not just timber cutting anymore, as evidenced by these suits. The bloodletting (how many federal dollars were diverted from needed for productive management) will continue and increase until the playing field is leveled by requiring either losing party to pay the damages (legal costs and resource losses caused by the suit) to the prevailing party.

    • It hasn’t been “just timber cutting” on national forests at least since MUSYA in 1960, more than half a century ago. Times change.

      Pitting the resources of the federal government against those of private citizens is hardly “leveling the playing field.” Maybe in Russia.

  2. The LOWD case is a bit of a head-scratcher (it’s about a 1-page opinion). It appears to me to say that while there is enough information in the EIS to support a finding that the decision is consistent with the forest plan (as amended by PaInfish) as required by NFMA, the EIS does not meet NEPA requirements for adequate environmental analysis. “Because PACFISH/INFISH provides the approved strategy for managing riparian habitats and the criteria for assessing whether such habitats are adequately maintained, the Forest Service was required, under NEPA, to include an explicit PACFISH/INFISH analysis in its EIS.”

    This appears to be a result of the Forest Service insisting that it had “no duty to perform a ‘consistency analysis’ of the PACFISH/INFISH standards.” In fact, once the district court made a final decision that they had done such an analysis in the EIS (and that was not appealed), they argued on appeal that they had not. Huh?

    The FS has made this argument over the years that there is no obligation to do a “consistency analysis” to show that it is meeting NFMA’s consistency requirement. At the same time they know that the administrative record has to contain information that supports that finding (which the court said it did in the EIS in this case). I think their solution is worse than whatever they think the problem is.

    • It’s confusing to me, too. A ROD will usually contain a section on findings require by other laws, and the FS usually includes a ‘finding of consistency’ there. What they don’t do is make it easy to find the analysis and rationale that they based that finding on. My impression was always that the FS did not want to acknowledge any kind of requirement to produce a ‘consistency document,’ or require that an EIS include consistency analysis (but I wasn’t that involved with project documentation).

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