Lawsuit to stop federal highway on national forest lands

The Sierra Club filed the lawsuit to stop construction of the U.S. 70 Havelock bypass in North Carolina.  According to their attorneys, “The important thing here is that this part of the forest is one of the prime examples still of what used to be a very common landscape in the coastal plain, which is the longleaf pine savannas, so there are parts of the forest that would be destroyed with the proposed bypass and that have intact, 100-year-old longleaf pine savannas that have good ground cover and are in good condition and that provide habitat for species like the red-cockaded woodpecker.”  They argue that there were feasible alternatives that weren’t considered.

The defendant is apparently the Federal Highway Administration, and the Forest Service isn’t mentioned at all.  There is a different set of laws governing federal highway projects, but they don’t exempt the FHA from NFMA’s requirement that “instruments for use and occupancy of National Forest System lands shall be consistent with the land management plans.”  The Croatan forest plan (2002) actually mentions this bypass proposal as an example of “requests for permits that serve a public benefit.”

There was no reference to this project on the Croatan website, but the FHA ROD discusses six issues raised by plaintiffs regarding consistency with the forest plan, finding them all to be without merit.  It talks about Forest Service participation in the project planning process and off-site mitigation elements, neither of which directly address the question of what the forest plan requirements for this area are.  It did mention that “some portions of the easement that would be transferred to NCDOT for the bypass are designated black bear sanctuary.”  How would a four-lane expressway be consistent with that?  There is something wrong with this process if it does not require the Forest Service to directly address the NFMA consistency requirement for highway permits.

2 Comments

  1. Eastern North Carolina is up to its armpits in bears – probably some of the highest densities in North America. And thanks to soybeans, some of the biggest on Earth. Why on earth would they (bears) be a rationale to stop a much needed transportation project that could speed tourists to the beach in one direction and pulpwood in the other direction? Conversely look at how the USFS has handled the MVP and AC pipelines routes on the Monongahela NF in WV – FERC let USFS weigh in too much whereby miles are being routed off government land where there would have been some oversight in terms of environmental protections and onto highly fragile karst on private lands. The point is that USFS is rarely consistent and picks and chooses when to get involved in a very arbitrary manner. Moreover, USFS shows it does not have any ability or desire to think about the whole of the landscape, just their little corner and/or their personal careers.

  2. Yes, I noticed the difference between this approach and the recent pipeline locations (and a ski area in Montana) where a forest plan was used as a basis for rejecting developments on national forest lands. Forest planning should reduce arbitrariness, and I agree that a landscape planning approach that considers the most sensitive areas regardless of ownership would be best. However, unprotected private land may be developed even if this particular road avoids it, so unless it has some unique features private land would be a better candidate for a road.

    Unfortunately, for rights-of-way, costs are usually by far the top factor, and undeveloped land is always a cheaper target. Eminent domain laws sometimes discourage condemnation of lands that are already in public use; apparently not the case for federal highways on federal lands.

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