Forest Service Litigation Weekly 10-15-2015

Just returned from my blogging break, extended due to unforeseen circumstances. I learned many things from my experience in religious media,and discovered that people are not appreciably nicer in their online communications when they are involved in religious kinds of discussions (so I’m an optimist!). Anyway, we haven’t seen a litigation report in a while, so here goes…check out the R-5 salvage/hazard tree ruling.

1. Affirmative Litigation│ Region 3

District Court Finds in Favor of Forest Service in Affirmative Challenge to a 2001 Statute Enacted by the State of New Mexico and a 2011 Resolution enacted by the Otero County Board of County Commissioners in USA v. Board of County Commissioners of the County of Otero and the State of New Mexico. On September 30, 2015, the United States District Court for the District of New Mexico found in favor of the United States of America in a challenge to a 2001 statute enacted by the State of New Mexico and a 2011 resolution enacted pursuant to the statute by the Otero County Board of County Commissioners. The statute in question, Section 4-36-11, authorizes counties in New Mexico to “take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees
within the area of the disaster.” The United States government alleged that Statute 4-36-11 is in conflict with and interferes with federal law, that Section 4-36-11 violates the Supremacy Clause of the United States Constitution, that Section 4-36-11 is therefore preempted by federal law and is unconstitutional, and that the Otero County Resolution violates the Supremacy Clause and is, therefore, preempted by federal law and is unconstitutional. The court found that the Property Clause of the United States Constitution grants Congress plenary power (and the Tenth Amendment therefore does not reserve for New Mexico any sovereign police power) over federal lands, that the New Mexico statute and Otero County Resolution Conflict with federal law, that the statutory language of the New Mexico statute and its intent prevent the court from interpreting the statute in a manner consistent with federal law, and that the statute and resolution therefore violate the Supremacy Clause of the United States Constitution, are preempted by federal law, and are invalid. (12-00120, D. N.M.)

2. Salvage│ Region 5

District Court Finds in Favor of Forest Service on Plaintiffs’ Motion for Preliminary Injunction in
Challenge to the Bald Fire Salvage Restoration Project on the Lassen National Forest in Center for
Biological Diversity et al. v. Hays. On October 8, 2015, the United States District Court for the Eastern
District of California denied plaintiffs, Center for Biological Diversity et al.’s motion for preliminary
injunction of the Bald Fire Salvage Restoration Project on the Lassen National Forest. The court found that plaintiffs were not likely to succeed on the merits (cumulative effects analysis is adequate, an EIS is not required, effects of the project are not highly uncertain or unique, and both beneficial and adverse impacts of the Project are considered), that the Project would not cause irreparable harm, that the balance of equities does not weigh in favor of granting injunctive relief due to the safety risk posed by hazard trees, and that a preliminary injunction is not in the public interest (salvage of timber will provide jobs in the community, increase safety for employees and the recreating public, and serve management goals as directed by Congress). (15-1627, E.D. Cal.)

Litigation Update

1. None to Report.

New Cases

1. Minerals │ Region 2

Plaintiff Challenges Operation of Keystone Mine Water Treatment Plant in High Country Conservation Advocates v. U.S. Forest Service. On October 5, 2015, plaintiff, High Country Conservation Advocates, filed suit in the United States District Court for the District of Colorado alleging that the actions/inactions of the Forest Service in allowing the continued operation of an active mine water treatment plant, water management facilities, and mine waste dumps associated with the Keystone Mine on U.S. Forest Service lands without an approved Plan of Operation, the required financial assurance or bond, and without any review of the environmental impacts associated with these operations constitute violations of the Forest Service Organic Act of 1897, NEPA, the 1970 Mineral Policy Act, the APA, and implementing regulations (36 CFR 228).

In October of 2012, following a protracted dispute between the Forest Service and Keystone Mine Owner, U.S. Energy regarding whether U.S. Energy was required to submit a Plan of Operation for occupancy of Forest Service lands associated with operation of the water treatment plant, the Forest Service issued an Administrative Appeal Decision rejecting U.S. Energy’s contention that the 1979 Plan of Operation for construction of the plant was sufficient, but that ultimately found that the appeal was moot and that no approved Plan of Operation authorizing operation of the plant or requirement for a bond or financial warranty was necessary because U.S. Energy had, two weeks earlier, submitted a proposed “preliminary Plan of Operation” for mining-related activities that would rely on the water treatment plant. Plaintiff alleges that the proposed Plan of Operations does not contain the information required by 36 CFR 228 to adequately cover the operation of the treatment plant and the surface water management facilities associated with the plant, including the required bond amount (D. Colo.)

20151005ComplaintHighCountryConservationAdvocates_v_USFS_KeystoneMineWaterTreatment
20150930OrderUSA_v_OteroCounty_Statute4-36-11
20151008OrderPI_CBD_v_Hays_BaldFireSalvage

3 Comments

  1. It would be interesting to see why litigants favor the preservation of hazard trees along roads. Roads, like streams, creeks and rivers, need buffers to protect them. It looks to me like the litigation loopholes on salvage projects are being closed. We’ll see if they go to Appeals Court, where they have lost several recent similar court cases. I’d also like to see losing litigants paying court costs, especially on roadside hazard tree projects. Have Judges come to their senses about hazard trees? ….. We can only hope!

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