Forest Service Litigation Weekly – March 2, 2015

 

Looks like Region 1 had a good month!

. Forest Management ǀ Region 1
District Court Rules in Favor of Forest Service in Challenge to the Spotted Bear Project on the Flathead National Forest in Friends of the Wild Swan v. Weber. On February 23, 2015, the United States District Court for the District of Montana adopted the recommendation of United States Magistrate Judge Lynch in its entirety, and ruled in favor of the Forest Service in Plaintiffs, Friends of the Wild Swan et al.’s challenge to the Spotted Bear Project on the Flathead National Forest. In adopting Magistrate Judge Lynch’s recommendation, the District Court upheld the Forest Service’s cumulative effects analysis (regarding the decision to exclude the Soldier Addition Project from analysis and discussion on native trout, lynx, and grizzly bear). The Court also upheld the finding that an EIS was not required, that the Forest Service correctly determined that the fisher population is viable, that the Forest Service’s methodology for determining horizontal cover was a means for addressing an existing Forest Plan standard (VEG S6), that the Forest Service sufficiently explained the ESA “action area,” and that the Court lacked the jurisdiction to hear arguments that the Forest Service violated the Salix decision. (12-00029, D. Mont.)

2. Forest Management ǀ Region 1

District Court Rules in Favor of Forest Service in Challenge to the Soldier Addition II Project on the Flathead National Forest in Friends of the Wild Swan v. Christiansen. On February 23, 2015, the United States District Court for the District of Montana adopted the recommendation of United States Magistrate Judge Lynch in its entirety, and ruled in favor of the Forest Service in Plaintiffs, Friends of the Wild Swan et al.’s challenge to the Soldier Addition II Project on the Flathead National Forest. In adopting Magistrate Judge Lynch’s recommendation, the District Court upheld the Forest Service’s cumulative effects analysis (regarding the decision to exclude the Spotted Bear Project from analysis and discussion on native trout, lynx, and grizzly bear). The Court also upheld the finding that an EIS was not required, that the Forest Service correctly determined that the fisher population is viable, that the Forest Service’s methodology for determining horizontal cover was a means for addressing an existing Forest Plan standard (VEG S6), that the Forest Service sufficiently explained the ESA “action area,” and that the Court lacked the jurisdiction to hear arguments that the Forest Service violated the Salix decision. (12-00059, D. Mont.)

3. Forest Management ǀ Region 1
Circuit Court Affirms the Grizzly Vegetation and Transportation Management Project on the Kootenai National Forest in Alliance for the Wild Rockies v. Bradford. On February 26, 2015, the United States Court of Appeals for the Ninth Circuit affirmed an August 20, 2013 decision from the United States District Court for the District of Montana upholding the Grizzly Vegetation and Transportation Management project on the Kootenai National Forest. The Circuit Court found: (1) that the Forest Service was not in violation of the ESA for concluding that the Project was not likely to adversely affect the grizzly bear population, (2) that the Forest Service complied with NFMA and the relevant standards in the Forest Plan, and (3) that the Forest Service’s cumulative effects analysis was adequate under NEPA. The Circuit Court was split on the issue of jurisdiction over Plaintiff’s ESA claim. The majority assumed the Circuit Court did have jurisdiction and resolved the issue in the Forest Service’s favor on the merits; however, Judge Bea, in a concurring opinion, opined that the Circuit Court lacked jurisdiction over the issue because Plaintiff, Alliance for the Wild Rockies, had dismissed its appeal from a 2010 District Court judgment. (13-35768, 9th Cir.)

Docs attached here.20150223OrderFriendsOfTheWildSwan_v_Christiansen_SoldierAddition

20150223OrderFriendsOfTheWildSwan_v_Weber_SpottedBear

20150226CircuitOrderAllianceForTheWildRockies_v_Bradford_GrizzlyProject

9 Comments

  1. More accurately: the U.S. Forest Service had a good month, in Region 1. It’s easy to conflate the 12 publicly owned national forests in Region 1 with the agency charged with administering them. Whether the public in general, or the fragile wildlife communities in these forests, had a good month is very much open to question. Reasonable folks may have different opinions, but one perspective is that it was a good month for an inflated bureaucracy that seems to care relatively little for its obligation to protect the imperiled species supposedly under its protection. And, it was probably a good month for those who believe the role of the courts is to provide uncritical deference to those agency decisions.

      • Actually, generally not. Decisions are made by forest supes who are career administrators typically with little or no scientific background. Technical input primarily from BS-level wildlife/soils/etc. people… the FS calls these positions “scientists” but few if any scientific research institutions would do so. The FS does have a large number of very highly qualified scientists doing research (I’ve been fortunate to work with a number of them), but that’s generally separate and distinct from the personnel doing forest plan compliance, NEPA, timber sales etc. The latter often are experienced foresters and generally good people, but it’s euphemistic to call them scientists. Not to worry, very few judges understand the distinction either.

        • In my experience, District Wildlife Biologists usually stand their ground, defending the turf that they are charged with. It is also rare that higher-ups have overruled the decisions of people with Bachelor of Science degrees in Wildlife fields. Besides, here in California, protections are built into the “system”, and cannot be overruled.

    • Guy. maybe I have spent too long around gentle people, but you could say that you disagree with me without claiming that your view is “more accurate”..
      Also, as a person who has looked at a lot of decisions I don’t go with the “care relatively little.” Most folks I know care a lot about following ESA as well as the other relevant laws. Just because you or others claim that they are in violation does not make it so.
      And what is an “inflated” bureaucracy? Sounds like something my Wyoming R friends would say about the same outfit. And what is a “wildlife community”? Whatever it is I don’t think its protected by ESA.

      It seems to me that you have to pick a lane on this.. if litigants are not interested in specific policies but only want to get the FS to “follow the law” then it seems like the way the law works, you would accept that the judges are right.

      If you are litigating to change projects to be more the way you would like them to be done, or to not have them at all, then it seems to me that is more Suckling-like honesty, but not what you usually say. So I am puzzled.

      Deferring to agencies is case law (I think). So… why would some case law be “good” and other “bad” unless we are talking about something beyond getting the FS to “follow the law.”

      • no offense intended Sharon, I spend most of my time around scientists who are not always known for being gentle people, and “inaccurate” actually is a relatively gentle expression in that community.

        I didn’t necessarily expect everyone to agree with my characterization of FS bureaucracy, which is why I prefaced it by noting that reasonable folks may have a different opinion.

        A community, ecologically speaking, is a naturally occurring group of plant, animal, and other species that interact in forests or other habitats. I know that you know this, but you did ask… By “wildlife community” I mean those community species that are wildlife. I thought that would be clear but sorry if not. Obviously not all are protected by the ESA, but so what? If we are to be forest stewards, we need to consider whole communities, not just those few species that the law makes us consider. Or at least that’s my opinion.

        The lane-picking metaphor doesn’t work for me, it’s a false dichotomy (or more gently… I disagree with that characterization). Following the letter of the law is necessary but not sufficient, and all interests (including FS, FWS) work with the law as one tool to influence policy. I don’t know what “Suckling-like honesty” is, apparently an interpretation of what somebody else’s philosophy might be, but I can’t comment on it because the term has little meaning for me.

        Judicial deference to agency science does indeed have a substantial case history, as you note, but the parameters aren’t well defined (e.g., when do simple agency assertions become “science”? Are FS personnel necessarily always “scientists”, and if not, should their work still be considered science? Should the courts defer to bad science? Some decisions would suggest so), and decisions are all over the map on that. I do think there is a trend towards abdication of science by the judiciary in natural resource management cases, but that’s a whole ‘nother long story. I’m working on a law review article on that topic, maybe will update in a few months… best, -Guy

        • When I read the opinions on the Flathead cases, I thought they were just about typical judicial deference. Then I saw the map: http://flatheadbeacon.com/2015/03/06/judge-dismisses-south-fork-logging-lawsuit/.

          Some folks like to complain about agency decisions that get reversed based on ‘legal technicalities’ that ignore the ‘real world.’ It looks like this is a case where the court allowed to the Forest Service to ignore the real world in favor of meeting technical NEPA requirements. Why wouldn’t the FS want to look at the combined effects of these two adjacent parts of a single timber sale together?

  2. Thanks Sharon,
    First, for helping elevate public awareness of the struggle around these important forest-as-habitat vs. forest-as-commodity issues, especially in the midst of the current (anthropogenic), 6th mass extinction event, aka, …”Holocene extinction,” which worldwide, “(a)ccording to the species-area theory and based on upper-bound estimating, the present rate of extinction may be up to 140,000 species per year.”(Wikipedia)

    Second, despite the enormity of the above described crisis, Sharon, these lawsuits demonstrate there still exists, a stalwart cadre of principled citizens manning the ramparts of democracy and ecological integrity. Such defense requires citizen oversight of captured agencies, especially in the midst of global warming. While oily billionaires are funding AGW deniers such as Dr Wei-Hock “Willie” Soon, and Roger Pielke Jr. , the Department of Defense is solidly on record regarding global warming as a national and international security threat, and a “threat multiplier.” There also exists of course, a 97% consensus of international climate scientists agreeing that this threat is real and that there exists a tipping point, which once exceeded, may become “irreversible and catastrophic.”

    Such a scenario is worthy of applying both precautionary, and democratic principles to address this unprecedented threat to species survival. Clearly, the agency and the court don’t regard the uncertainties and threats posed by the Holocene extinction and global warming in the same context as the DoD, Friends of the Swan, and Alliance for the Wild Rockies. Clearly, NEPA and the ESA were conceived with no capacity to adequately deal with the present threats.

    So yes, there are still citizens who believe a democratic government composed of the people; for the people; and by the people; depends upon the notion of public participation for the purposes of holding their government accountable to the laws of the land and the public trust doctrine which predates even those laws (inadequate as they are.)

    Lastly, tracking these issues like a sports score with a “good” outcome is itself, a form of denigration not commensurate with the gravity of our predicament.

    • Once you successfully implement “precautionary principle” measures against human population growth, then I will listen to your thoughts on habitat restrictions. *smirk*

      Until then, preserving forests, as “firewood” to heat up our atmosphere, isn’t a good way to go. Both the Rim and King fires, here in California, show how preservationism didn’t protect core habitats from burning to a crackly and crispy crunch.

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