Court slams Forest Service wilderness decision

The federal district court in Idaho has ruled against the state’s use of helicopters to collar elk in the Frank Church-River of No Return Wilderness. In Wilderness Watch v. Vilsack it held that the Forest Service failed to consider the cumulative impacts of a one-year proposal when it knew the state intended this to be part of at least a ten-year program. It found that the decision to not prepare an EIS violated NEPA.

The court also found that the Forest Service violated the Wilderness Act. In 2010, the court had approved use of helicopters to collar wolves because its purpose of “understanding the wolf” furthered wilderness values. However, the judge warned that, because of cumulative impacts (and probably because of some skepticism about the state’s motives), “the next project will be extraordinary difficult to justify,” and that the Forest Service would need to give sufficient notice to allow opponents to “fully litigate” such projects.

The Forest Service issued a special use permit in January 2016, and within two days the elk collaring was completed, along with four wolves not authorized by the permit. The court rejected state arguments that it didn’t need permission, and held that the Forest Service failed to make a proper determination that the helicopters and collaring were necessary for wilderness management because it considered only “a one-year portion of a much larger long-term plan.”

The relief granted by the court is noteworthy:

  • Injunction preventing the Forest Service from considering any of the data gathered from the elk and wolves as a result of this project
  • Injunction preventing the Forest Service from approving any future helicopter projects without delaying implementation for 90-days to allow affected groups to file challenges to the projects
  • Inunction preventing the state from using any of this data in further proposals seeking approval from the Forest Service
  • Mandatory injunction ordering the state to destroy the data received on the elk and wolves collared in this project

How do you suppose the Forest Service rewards this kind of decision-making?

34 Comments

  1. By definition wilderness is unmanaged. If you want a true example of natural, then let Mother Nature be undisturbed.
    The only problem is that the “natural” collide with managed in catastrophic and expensive results, fire quickly comes to mind.

  2. Thanks for posting this Jon. Here’s the press release from Wilderness Watch, Friends of the Clearwater, Western Watersheds Project and Earthjustice.

    Court Rules That Forest Service Illegally Authorized Helicopter Intrusions in Premiere Wilderness Area
    Idaho Must Destroy Data Obtained From Illegal Elk and Wolf Collaring

    POCATELLO, Idaho – A federal judge today ruled that the U.S. Forest Service illegally authorized the Idaho Department of Fish and Game (IDFG) to conduct approximately 120 helicopter landings to place radio collars on elk in the Frank Church-River of No Return Wilderness last winter in an operation during which IDFG also unlawfully collared four wolves.

    As a result, the court ruled, the Forest Service and IDFG are prohibited from using any data obtained from the illegally installed elk and wolf collars in future project proposals, IDFG must destroy the data received from the illegal collars, and the Forest Service must delay implementation of any future helicopter projects in the wilderness for 90 days to allow time for legal challenges.

    “Today’s decision vindicates the basic principle that a wilderness is supposed to be a wild area where, as Congress said, ‘the earth and its community of life are untrammeled by man,’ not a helicopter landing zone,” said Earthjustice attorney Tim Preso.

    The ruling by U.S. District Court Judge B. Lynn Winmill concludes that the Forest Service violated the Wilderness Act and conducted insufficient environmental review in allowing IDFG to land helicopters in the River of No Return in January 2016 to capture and place radio telemetry collars on wild elk. IDFG also captured and radio-collared four wolves during these operations—an unauthorized action that was not permitted by the Forest Service, but that threatened to advance IDFG’s plans to undertake widespread wolf-killing in the wilderness by providing locational information on the collared wolves. The federal Wilderness Act prohibits the use of motorized vehicles including helicopters and requires preservation of natural conditions in wilderness areas.

    The judge found that these circumstances present “the rare or extreme case” where an injunction requiring destruction of the illegally obtained radio-collar data is required, stating: “The IDFG has collected data in violation of federal law and intends to use that data to seek approvals in the future for more helicopter landings in the Wilderness Area. … The only remedy that will directly address the ongoing harm is an order requiring destruction of the data.”

    The helicopter operations that were illegally permitted by the Forest Service are part of IDFG’s broader program to inflate elk numbers above natural levels within the wilderness by eliminating wolf packs that prey on the elk. IDFG’s existing elk and predator management plans call for exterminating 60 percent of the wolf population in the heart of the River of No Return to provide more elk for hunters and commercial outfitters in an area that receives some of the lightest hunting use in the state.

    Earthjustice represented Wilderness Watch, Friends of the Clearwater, and Western Watersheds Project in challenging the Forest Service’s decision.

    “This action by the Forest Service and IDFG violated everything that makes Wilderness unique,” said Wilderness Watch conservation director Kevin Proescholdt. “It was an unprecedented intrusion with helicopters for the sole purpose to make wildlife populations in Wilderness conform to the desires of managers rather than accept and learn from the ebb and flow of nature.”

    Gary Macfarlane of Friends of the Clearwater added, “Wilderness, by law, is in contrast to areas that are heavily manipulated. Capturing elk with net guns from helicopters is heavy-handed manipulation and denigrates the Frank Church-River of No Return Wilderness.”

    “This motorized intrusion on one of our premiere wild areas was made all the worse by the fact that the Forest Service allowed the state to turn natural wolf predation on elk into a reason to degrade the wilderness with helicopter landings,” said Ken Cole, Western Watersheds Project’s Idaho director. “We hope the court’s ruling will compel the Forest Service to prioritize compliance with the Wilderness Act in future decisions.”

    At 2.4 million acres, the River of No Return is the largest contiguous unit of the National Wilderness Preservation System in the Lower 48. It hosts abundant wildlife including elk, mountain goats, bighorn sheep, wolves, cougars, and wolverines. It is one of the few public-land wilderness areas of sufficient size to allow natural wildlife interactions to play out without human interference, and for this reason was one of the original wolf reintroduction sites in the Northern Rockies.

  3. “At 2.4 million acres, the River of No Return is the largest contiguous unit of the National Wilderness Preservation System in the Lower 48.”
    – So sad that there was no room for a couple hundred helicopter landings spread over all of those acres for research when the helos couldn’t do any real damage. Absolutely terrible that a couple of visitors might have had to listen to chopper blades for a short time, yet over flying planes or helos would be OK. Yeah! It was really worth making a federal case over it. NOT! – To quote our president “SAD” 🙁 – An EIS for random helo landings & for research collars for wildlife. PREPOSTEROUS – I guess ignorance & speculation is more useful than science to some litigious enviros.

    With such ridiculous priorities & actions, the taxpayer won’t have any trouble going along with Trump’s reductions in environmental funding & regulations.

    Enviros may have won a battle but they will learn that taxpayers have limits to what they will pay & the taxpayer voted & won. As another president said “elections have consequences”. Why are wolves sacrosanct yet evolution & barred owls aren’t? Any bets on whether the NSO or barred owl has a better chance of surviving global warming & increased fire in overly dense forests especially when the NSO habitat is being replaced by undesirable hemlock undergrowth? There isn’t enough money in the world to satisfy some environmentalist’s desire to micromanage the environment to the level of minutia indicated by this “legislative victory”.

    • The problem is that wilderness and activities in wilderness are defined, just as they are in the rest of a forest. They could land helicopters, but they need to justify it and be transparent and allow public comment (NEPA) on the changed use, that’s all. If they can do it without public notice and analysis of impacts, then, can I, rich guy, land my helicopter in the wilderness? It’s a slippery slope, so you need to be clear what and how much and allow public input. That’s all. If you’d backpacked10 miles in with the expectation of tranquility and a helicopter blew your tent away, you’d be pissed. If you’re cattle are grazing there and all panicked and ran off a cliff, you’d also be pissed.

      I wonder why they couldn’t have collared them outside the wilderness?

      • Roy

        We are talking about state employees working in conjunction with and with the permission and common goals of Federal goals on federal lands with the wildlife being the responsibility of the state. I just can’t see your concerns about needing to notify the public and have public input – The use of the Wilderness is not being changed by allowing a short term minimally invasive research study. The wilderness act allows for such exceptions.
        – See sections “b” & “d7” – 16 U.S. Code § 1133 – Use of wilderness areas:
        https://www.law.cornell.edu/uscode/text/16/1133
        – “b” – “Except as otherwise provided in this chapter, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.”
        – “d7” – “State jurisdiction of wildlife and fish in national forests – Nothing in this chapter shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish in the national forests.”

        No a rich guy can not land his helo in the wilderness because he won’t be given permission and would thereby be in violation of the law.

        As for blowing someone’s tent away – With 120 flights what are the odds of any tent within 2.4 million acres being close to a prospective tagged animal at the same time that a helicopter is flying over that spot? What are the odds that said gov’t employees wouldn’t see the tent out in their prospective landing zone (LZ) before netting the target animal and postpone the netting until the target approached another LZ? We aren’t talking large helos. Anyone who didn’t have his tent sufficiently anchored to take the little gust from the little helo would have had the tent blown down in the middle of the night. The campers should be thankful for the favor of having their inexperience pointed out to them.

        Finally, any cattle in the wilderness are there illegally – If they were my cattle, too bad, my illegal actions alone would have been responsible for their loss.

        – So what else are you going to make up to try to justify your invented rules and associated nit picking?

        You make my case for some enviro’s being Extremely Unreasonable.

  4. It is exactly issues like this that change laws. Things build up and then there is a monopoly on power in a couple branches of govt and then some law gets changed. The state of Idaho, manages wildlife in the state in in that Wilderness Area in particular, part of the language establishing the Wilderness, might be time to write laws such that they can do the job we told them they could do.

  5. Other than skimming the court brief, I would admit to not knowing all the background on Wilderness Watch v. Vilsack . However it seems a shame to destroy scientific data just to “punish” the Forest Service and Idaho Fish and Game for procedural errors. Both the environmental coalition’s argument and the judge’s decision seem somewhat naïve about the unique Frank Church River of No Return Wilderness (“Frank”). In the AP article on the decision (January 19 Idaho Statesman) the Earthjustice attorney claimed that helicopter flights for wildlife research in the Frank involves the “sanctity of the concept of wilderness.” Enabling legislation for this 2.4 million acre wilderness involved compromise by the late Sen. Frank Church including 18 airstrips, in-holdings, and jetboats on the Salmon Main Fork. Backcountry lodges that predated wilderness include cabins, lawns, hay fields, generators, roads, tractors and trucks.

    I know the Frank pretty well, both from professional and recent experience. Last year a resupply/ layover break at a fly-in ranch in the wilderness (part of a month-long hiking trek across central Idaho), I heard concerns about diminishing elk herds and the local belief that wolves were the culprit. The AP article said Idaho officials sent a contract hunter to kill 9 wolves in 2014. It seems odd to litigate efforts to understand elk-wolf dynamics. The court order to destroy research data seems wasteful and capricious. Should state officials just keep killing wolves? In a conservative state like Idaho, this court action may play well to out-of-state donors and foundations but fuels local hostility against conservation.

    I have grown increasingly cynical about the motives of Non-Government-Organizations (NGOs) like Wilderness Watch and the lead litigant, Earthjustice. The Earthjustice website shows about 260 staff; lots of attorneys, communication and media people but little or no ecological or scientific staff. This NGO seems more set up to litigate and get publicity than do any kind of scientific oversight. A 2016 annual report shows about $55 million total revenue (65% from individuals, 26% from foundations and 9% from estate gifts). Maybe a federal/state faux pas over “helicopters in the wilderness” offered fairly easy win in court—flashy media coverage, a story for the Earthjustice 2017 portfolio and more donor appeals to keep funds flowing to “save the wolves” and “save the wilderness.”

    To brand attempts to understand/manage wildlife populations as illegal “manipulation” seems to negate any respect for state responsibility for wildlife. If the litigants really cared about elk and wolves, they could do complementary winter research via snowshoes and cross country skis. Given the vastness and inaccessibility of the Frank Church, this would indicate a true commitment to this area and its wilderness values. Instead of destroying data and wasting the thousands of dollars of public funds spent to obtain it, I would like to see support for understanding the wilderness and our relationship to it. If nothing else, release the data to an objective university for analysis; do not destroy it!

    P.S.We (spouse David and I) wrote similar opinion to the Idaho Statesman so Idahoans may see some of this as a reader “commentary” in near future.

    Cindy Chojnacky, Hailey, ID

      • Hi Cindy, Perhaps if you admit to not knowing all the background and details you should hold your fire somewhat, eh?

        Did you know that in the past the IDFG had used the ‘scientific data’ from captured/collared wolves to track down and kill wolves in the River of No Return Wilderness? Yep.

        Did you know that the ‘scientific data’ from the unauthorized, illegal helicopter flights in Wilderness (including the totally illegal and according to IDFG “mistake” of capturing and collaring 4 wolves in the Wilderness via helicopter) was going to be used in the future to kill more wolves?

        I can assure that the litigants do care about elk and wolves. They just don’t believe they need to be captured and collared in a Wilderness area to be ‘cared’ for. Thanks.

        • Matthew
          You really take the cake on this one:

          1) “Hi Cindy, Perhaps if you admit to not knowing all the background and details you should hold your fire somewhat, eh?”
          – Why? It has never stopped you from commenting on the science of forestry when you have no degree or liscence to practice in science or forestry and have admitted on this site that you weren’t any good in either science or math.
          – Cindy is pretty obviously more knowledgeable than you on the science, the law, jurisdiction and the Frank Church.

          2) “Did you know that in the past the IDFG had used the ‘scientific data’ from captured/collared wolves to track down and kill wolves in the River of No Return Wilderness? Yep.”
          – Again science doesn’t matter to you. What’s wrong with killing wolves if the scientists say it is needed to balance out the ecosystem? Why is shooting barred owls ok but shooting wolves isn’t? You shoot elk and I’d rather you didn’t but at least I recognize the scientifically based role that your hunting plays in balancing the population to disease and relevant resource availability.
          – ‘not knowing all the IDFG scientific background and details you should hold your fire somewhat, eh?’ Matthew, it sounds to me that you have a bit of a problem with evenly determining and applying standards, law & science.

          3) “Did you know that the ‘scientific data’ from the unauthorized, illegal helicopter flights in Wilderness (including the totally illegal and according to IDFG “mistake” of capturing and collaring 4 wolves in the Wilderness via helicopter) was going to be used in the future to kill more wolves?”
          – Why do you ignore the law quoted in one of my prior comments here and insist on dictating what is acceptable? The helo flights were permitted by the USFS and the IDFG had jurisdiction over the wildlife in the wilderness and the use of helos is permitted per US Code 16-1133 as I mentioned earlier:
          – “b” – “Except as otherwise provided in this chapter, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.”
          – “d7” – “State jurisdiction of wildlife and fish in national forests – Nothing in this chapter shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish in the national forests.
          – So what if more wolves need to be killed to maintain a population appropriate to the resources or a proper predator to prey ratio as determined by science? Oh, Yea, I forgot, you don’t like science – silly me.

          4) “I can assure that the litigants do care about elk and wolves. They just don’t believe they need to be captured and collared in a Wilderness area to be ‘cared’ for. Thanks.”
          – That about sums it up – you and many of your enviro litigious kind “believe” that your opinions should overrule the law and the expert opinion of scientists. Yup, ‘belief’ trumps science any day.

          • Wow, Gil. Interesting comment as always. You really take the cake.

            I’m not even sure how to respond to some things you say, such as this: “Why do you ignore the law quoted in one of my prior comments here and insist on dictating what is acceptable? The helo flights were permitted by the USFS…”

            Um, Gil. You are aware that a federal court judge found that the U.S. Forest Service violated both NEPA and the Wilderness Act, right? The Federal Court ruled that the Forest Service illegally authorized all these helicopter intrusions. So what law that you quoted in one of your prior comments am I ignoring? It’s really tough to follow you when you twist and turn everything on its head Gil. Perhaps if I had a degree in science like you it would be more clear.

            • Matthew

              Nice shot at deflecting by obfuscation.

              However, you conveniently ignored my quote and pretended that I haven’t been specific. Let’s keep it simple – Please answer these two questions:

              1) For the third time in this discussion thread, please explain what part of the Wilderness Law (US Code 16-1133) overrides section “d-7″ as quoted as follows: ”Nothing in this chapter shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish in the national forests.” For the second time here is the link to US Code 16-1133: https://www.law.cornell.edu/uscode/text/16/1133
              I would genuinely like to be educated – Please tell me what part of the wilderness law was used by the litigants and agreed to by the judge to override “Nothing in this chapter shall be construed as affecting the jurisdiction or responsibilities of the several States”

              2) Not being a NEPA expert, I would, again, genuinely like to be educated – Please tell me what part of NEPA was used by the litigants and agreed to by the judge to override “Nothing in this chapter shall be construed as affecting the jurisdiction or responsibilities of the several States”

              In both cases I would appreciate a link to the chapter(s) and section(s) that caused this judge to rule as he did.

    • Something else occurred to me this morning and I’m hoping that Cindy will read the comment and offer her response.

      For starters, I’m wondering why Cindy chose to dig up some information about the attorney in this case, rather than dig up and share with the group some information about Wilderness Watch, the lead plaintiff in this case?

      Her attempts to paint Earthjustice as a greedy group with lots of money simply don’t apply to Wilderness Watch, a group that gets 90% of funding from individuals according to their website, so maybe that’s why Cindy focuses on Earthjustice. I think Cindy should pay particular attention to Wilderness Watch’s board of directors. If you looks closely she will see WW’s board is made up of a retired wildlife biologist, a retired USFS employee with 20 seasons as a wilderness ranger, including within the Frank Church River of No Return Wilderness, more former USFS employees with master degrees in science, and a former biologist with the U.S. Fish and Wildlife Service.

      Here’s something else that by focusing on Earthjustice, Cindy ignores about Wilderness Watch, the lead plaintiff. Wilderness Watch was founded in 1989 by Bill Worf. Who is Bill Worf?

      Well, according to Wilderness Watch, Bill dedicated his life to making certain the ideals expressed in the Wilderness Act would live on in the National Wilderness Preservation System. No one alive, then or now, worked as hard or with such great principle toward that goal.

      Before Bill had a 32 year career with the U.S. Forest Service, he was a 17 year old Marine who found himself in the thick of combat in the invasion of Iwo Jima.

      In 1961, Bill Worf was appointed forest supervisor overseeing the Bridger Wilderness in the Wind River Range in Wyoming. He initiated the first wilderness management program and hired the first wilderness rangers. Bill became an outspoken proponent for the wilderness bill at a time when the Forest Service was lukewarm to the legislation. His advocacy for wilderness led the Chief of the Forest Service to select Bill as one of a small group to write the regulations and policies for implementing the Wilderness Act of 1964 shortly after it passed. Bill was then asked to lead the agency’s wilderness program in the Washington Office, which he did for many years before getting his feet back on the ground in the regional office in Missoula, Montana.

      In 1989, Bill Worf and two colleagues founded Wilderness Watch, the only national citizens’ organization dedicated solely to protecting designated wildernesses and wild rivers. As a measure of Bill’s tremendous credibility, it wasn’t long before former Secretary of Interior, Stewart Udall, and former Secretary of Agriculture, Orville Freeman, accepted Bill’s invitation to join the Wilderness Watch Board of Directors. Bill remained active with Wilderness Watch and wilderness issues until his death in 2011. “I shall not perish from this earth without doing everything within my realm to save its most precious non-human resource,” he wrote.

      How different would Cindy’s oped, and her criticism of this lawsuit be, if instead of spending her research time digging up information about the attorney in this case, she actually spent her research time digging up information about Wilderness Watch, the lead plaintiff in the case?

    • One item you may have missed is that when the plaintiff wins the case against the government, many times the government is ordered to pay fair and reasonable attorney costs. So, much of the agency budget goes to defending their decisions, which is what the preservationists want, to bleed the agencies dry and increasing the cost of doing business. They in turn point to high cost of doing business as a reason to stop “managing the public land”.

  6. Cindy, I agree that courts just don’t seem like the best way to mediate these conflicts, for a variety of reasons. The question is always “what is the best thing to do for people and the environment given our current laws?”. At the end of the day, it seems like the agency ends up spending many bucks analyzing (sometimes silly unnecessary things), and if anything is wrong (as decided by the judge, in ways that may seem random to people involved) the plaintiffs and high level Washington folks. People naturally get frustrated because it can feel like an unelected cabal is running the country, or at least their piece of it. So their representatives dream up impossible things like giving federal land to the states. I wish we could somehow break out of this stalemate, because there are many ideas out there that could be implemented incrementally and tested.

  7. All this reminds me of the time I led a youth group through the 3-Sisters Wilderness. On exiting the wilderness, we encountered a crew clearing the trail with hand saws. Asked why, being a quarter mile outside the wilderness, they were not using chain saws, the answer was that chain saws might be heard in the wilderness. Similarly, from across the canyon, I once heard some hikers with a bell on one of their llamas! That goofy kind of logic says the wilderness ought to be buffered from ALL human sights and sounds and, carried a bit further, I suppose that should probably include commercial aircraft flying high overhead with their sounds trailing a minute or two behind. These have a minor and very short duration “impact” on the wilderness. A brief stop by a helicopter, especially a stop with a sound, rational purpose, would be negligible.

    Things have gone a bit nuts as all sanity and reason seem to have gone out the window!!!

  8. Dick

    It is pretty silly. What possible short or long term impact could two skids and a very small prop wash have on the wilderness? Since Matthew’s last comments, I’ve read a little on NEPA and can see nothing in there that would deny a CE for the helos carrying out their responsibility under the state’s jurisdiction. So, unless Matt can show me otherwise, I think that this judge was legislating.

  9. The judge applied NEPA and found that at several of the criteria for an EIS had been met. Mostly the NEPA issue had to do with trying to sneak one collaring effort through under the NEPA radar, when everyone knew that it was the beginning of something much larger. In such cases, NEPA requires a look at the entire helicopter armada, which in a wilderness area would require an EIS.

    The judge addressed the idea that the state has the right to do what it wants for wildlife, which was argued by Idaho. Referring to the savings clause language you cited from the Wilderness Act: “While this language preserves a State’s right to manage wildlife in the Wilderness Area, Congress did not mean ‘to eviscerate the primacy of federal authority’ over the Wilderness Area… Congress made preservation of wilderness values ‘the primary duty of the Forest Service, and it must guide all decisions as the first and foremost standard of review for any proposed action’ (quoting a prior case). In other words, the IDFG must obtain approval from the Forest Service before undertaking a project in the Wilderness Area.”

    In relation to that approval, the Wilderness Act has another requirement that the landing of aircraft, among other activities, is banned “except as necessary to meet minimum requirements for the administration of the area” as wilderness. While the court didn’t have to rule on this point in this case, the purpose of Idaho’s management is to create unnaturally high concentrations of elk (through artificially low populations of wolves), which would be contrary to the administration of the area as wilderness. It is unlikely that the Forest Service could show that helicopter flights for this purpose are necessary to protect the wilderness values.

    • Verdict: Judge Not Guilty – NEPA Guilty of Unreasonable Underpinnings

      Jon

      Thank you for your synopsis. I just finished reading the ruling at the link given by Matthew http://forestpolicypub.com/wp-content/uploads/2017/01/17-01-19-Doc.-52-ORDER1.pdf Your link in the opening post appears to be an earlier un-paginated version.

      I apologize to others for some of my assumptions and the doggedness with which I stated them. I do not apologize for my statements as to some things being unreasonable. In this my first such endeavor, I have learned a lot about evaluating judicial environmental rulings and about what makes NEPA and The Wilderness Act so unreasonable.

      –> Jon: Please correct my analysis from here to the end of this comment as appropriate:

      Most importantly I have learned why everything is so unreasonable and why everything is so open to litigation. The villain (root cause) is found in the underpinnings of these environmental laws. The underpinnings are 10 factors defining “intensity” (the severity of the impact). Each of the ten factors (see pages 13-14 at the above link) must be considered in order to decide if the “intensity/impact” of any plan/action/project is significant. For example Factor #4 states that we must consider: “The degree to which the effects on the quality of the human environment are likely to be highly controversial.” So a significant impact doesn’t have to have anything to do with the health of the ecosystem. “Environment” within these environmental laws includes anything that humans might be exposed to including seeing elk with collars on (see page 8 at link above). Any group of individuals who can find something subjective that they don’t like can use it to litigate anything. It doesn’t matter if it is insignificant to the health of the ecosystem or if it is established science beneficial to the health of the ecosystem. That is why we see so many articles quoted in this group that are contrary to well validated science based on statistically sound research. If anyone can be found to introduce speculation of a potential negative impact (using words like “could”, “might”, “may”, “possibly” and etc. based on a pet theory unsupported by statistically sound research) and then get a bunch of misinformed enviros involved, they have made the subject “highly controversial” and have the keys to the kingdom and can override sound science or insignificance. So making mountains out of molehills even if it destroys the environment it is a right instead of a crime. No wonder our federal forests are a powder keg of overly dense and unhealthy forests magnifying the effects of global warming. Enviro’s rule.

      –> Jon: Are the 10 factors defining “intensity” actually part of the NEPA law or are they an administrative interpretation/regulation that could be changed by a new administration?

      As I now see it, the judge did what he had to do considering:

      (I know that some of this is a rehash of some comments by others – this is simply my own validation process working directly from the link given above. By putting it in my own words and allowing others to correct me, I will eventually get it correct.)

      1) In a similar helo case in 2010 (see page 4 of the link above), the court let a 20 helo incident slide but specifically instructed the USFS not to try and get by with the same action again. The court in 2010 specifically instructed the USFS that, in the future, they would have to publish any such future intent in time to allow time for litigation to be completed by anyone objecting before implementing their plan/project. In this case the USFS did a required Environmental Assesment (EA) but did not publish it in a time frame that was deemed sufficient for litigants to respond to and for courts to act on prior to implementation in direct violation of the 2010 warning/edict.

      2) As Jon mentioned in the opening post: “the Forest Service failed to consider the cumulative impacts of a one-year proposal when it knew the state intended this to be part of at least a ten-year program. It found that the decision to not prepare an EIS violated NEPA”. So, restating and amplifying, the USFS’s EA pertinent to this case admitted to ‘highly significant impacts if the project went over 5 years’ and knew that highly significant impacts in and of themselves dictate an EIS. So, imho there was no “failure to consider”, they deliberately colluded with the IDFG by issuing the exception.

      3) As to The Wilderness Act – The state’s responsibility for and jurisdiction over wildlife on federal land is only impinged when they use motorized vehicles or land helos on federal land without an exemption from the feds which they had but, as stated above, it was issued by the USFS in violation of the law. Does this mean that IDFG can make all of the aerial surveys and accompanying noise they want just as long as they don’t land and don’t buzz any enviros out of meanness? Too bad that previous aerial surveys showed a declining Elk herd and hence the state’s desire to carry out their responsibilities to ensure the proper balance between wilderness elk and wolves. Too bad those wolves that the enviros want to protect won’t be there for an extended period when they decimate the elk herd, deer and anything else that they can get a hold on. Too bad that taxpayers will probably end up paying to restock the unnecessarily devastated wildlife when the enviros protest that the wilderness isn’t wilderness without the missing animals. It seems to be similar to what is going on now with fires decimating overly dense stands of timber more than if the stand density had been managed according to established science. Mother nature’s way is always right according to some even if man can provide more sustainable consistency by reducing risk of catastrophic loss instead of trusting only to nature’s erratic swings.

      So when all was said and done the USFS just didn’t have a leg to stand on in court. I don’t see why they even bothered to defend themselves and waste our taxpayer dollars. Restating and expanding on Jon’s comments, the IDFG was guilty of partitioning a 10 year plan into 10 one year plans to be submitted one year at a time so the IDFG got their hands slapped and had to destroy all of the data as the only punitive action taken towards them. In addition, the IDFG collard 4 wolves during the project when the IDFG had expressly stated that they would not collar any wolves as part of their contract with the USFS.

      So again, the judge did what was necessary and, contrary to an earlier comment by me, he was not legislating from the bench.

      Note: Items not relevant to the judicial decision but illustrative of the silliness and unreasonable reasons cited as cause for long term significant impact include: Collars on Elk visible to an occasional visitor, Helo Landings even though they would only be active a few days in the winter and Beneficial Effects. Yes, Factor #1 states: “Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.” So, it doesn’t matter that the established science tells us that controlling wolves would improve the wilderness experience if the need was verified by surveys – Too bad, it was a possible outcome which would constitute a change and therefore it required an EIS and a waste of our tax dollars just so that a very few people wouldn’t have to look at elk collars! Sound, sustainable management is impossible under these rules. But that is exactly how enviros want it and they’ll fight fair or foul no matter what it takes to keep it that way.

      Just for Grins: to put all of this in a farcical perspective: If I was head of the USFS, I’d put every employee not working on uncontested NEPA approved activities on duty catching illegal activities carried out by visitors to wilderness areas or committing actions not in accordance with the 10 NEPA underpinnings/factors. Seems like what’s good for the goose ought to be good for the gander. Such items would include the highly significant impacts (according to NEPA) of making noise such as hollering, making echos, or listening to music, sports or other recorded or live activities; drinking alcoholic beverages; not carrying everything out of the forest that they brought in including their body wastes; unattended fires; leaving children unattended; carving initials in trees; carrying weapons/utensils longer than a three inch knife and etc. All these things have the potential for just as highly significant impact, or more, as helos landing a couple of days in the winter or the rare sighting of an elk with a radio collar on. A major, inexpensive first step would be to simply photograph all of their belongings at the check in/out ranger station and compare the before and after shots (including all wastes/refuse). If they failed to check in or out, or committed any of the above violations and others of “significant impact” as defined by NEPA they would be fined a $1,000 per day per person which they would have had to put up as a deposit before entering the wilderness. Forfeited deposits and a visitor usage fee, also paid up front, of an additional $1,000 per day per visitor would go to offsetting USFS forest recreation administration and maintenance costs in order to reduce the cost paid by non-user taxpayers (i.e. the vast majority of taxpayers) who currently have to foot the bill for the users (an extreme minority of taxpayers (we aren’t talking visitor days here – every individual visitor only counts once per year no matter how many days or different wilderness areas they visit)). Violations would be on a group basis so that there would be no need to waste taxpayer funds trying to determine who committed the violation. Not having proof of having checked in on any person would subject that person to a $100,000 fine or 30 days jail time or if they were on financial aid they could serve their time under home confinement with a monitoring collar. Sounds about as logical as the current NEPA underpinnings to me. I think that I’ll forward this to my congressman who is on the house agriculture committee and to Interior Secretary Zinke, future Agriculture Secretary Perdue and my two senators. Trump will have an executive order out by the end of February thanks to a former president’s precedents. 🙂

      • Not bad for a first effort, Gil.

        NEPA applies only to federal agency actions. It doesn’t apply to what individuals do on public lands. (There is an argument that forest plans authorize public recreation, and therefore the NEPA process for forest plans should account for the environmental impacts, and this has come up as an issue related to travel planning for motorized recreation.)

        The list of factors to consider in deciding to prepare an EIS is in the Council on Environmental Quality regulations (50 CFR 1508.27). The “controversy” factor has been litigated a lot, and it’s now settled that it is limited to scientific disagreement about the environmental impacts, not the degree to which people disagree with a decision. It’s not subjective. I have never seen an EIS prepared where the only effects are beneficial. That language is to prevent agencies from ignoring adverse effects because the agencies think the overall net effects are positive.

        The Wilderness Act is pretty uncompromising for those areas that have been designated by Congress as wilderness. Helicopters landing there is a big problem. I think there are some regulations on how low they can fly over wilderness areas.

        Your Republican friends already have a strategy for getting rid of the NEPA requirements for public lands – getting rid of the public lands.

  10. Thanks folks, really interesting discussion triggered by all this. Appreciate particularly Gil and Sharon’s comments. I only focused on Earthjustice because their attorney was quoted in the article I read about “sanctity of wilderness” in the Frank Church and that struck me as a bit sanctimonious since the Frank has so many unique exemptions built into its enabling legislation. Sorry I didn’t weigh in earlier but I blog very rarely and only just now checked for comments on the wilderness court suit issue. I’m well aware of Wilderness Watch and Bill Worf; I worked on lots of WW appeals& my first pack trip in the Frank many years ago was prompted by a WW appeal about outfitter caches. There is a whole conversation on wilderness purity that I could get into (as a long time wilderness user) and annoy everyone but that’s for some other time. There’s another one on NGOs and their priorities; I used to be a big fan but have become more cynical over time. Carry on…

    • Again, I have to wonder why the Chojnacky’s focus on the lawyers, and not the actual lead plaintiff in the group. It’s pretty easy to ‘pile on’ and say disparaging things about lawyers given the number of lawyer jokes in the world.

      Speaking of comments, Bob McCoy of Southern Illinois University Edwardsville, has a good one over at the Idaho Statesman’s website where the oped piece ran. McCoy writes:

      This opinion-piece wreaks of decades of professional work denying the greater public a say in affairs for which the public has a trust holding. The authors humbly state “We don’t fully understand particulars of the complex court case focused on National Environmental Policy Act compliance,” before arrogantly opining “[m]aybe a federal/state faux pas over “helicopters in the wilderness” offered low hanging fruit for a quick win in court.” Perhaps, there was a factual violation of law that needed remediation?…Perhaps, the “poorly researched judicial work” in this case is not with NGOs, but with agencies acting with impunity outside of their permitted activities, and with the employees who have so accustomed themselves to ad hoc operations, they can no longer see their offenses against our public trust.

      I’d also like to point out that my comment at the Idaho Statemen’s on the piece from the Chojnacky’s was ‘liked’ by none other than Carter Niemeyer, who retired in 2006 from the U.S. Fish and Wildlife Service where he was the wolf recovery coordinator for Idaho. As an expert government trapper, Niemeyer was a key member of the federal wolf reintroduction team in Canada in the mid-1990s.

      • Hi Matt.
        Nice eulogy on Bill Worf. Sounds a bit like Aldo Leopold, early proponent for wilderness within the lukewarm to resistant Forest Service. So many directions we could take this discussion but all of them might lead off topic. For example, “American hero” sounds too much like John Wayne and raises images of “settling” the West, killing off the livestock, rounding up the existing inhabitants. I tend to see “America” (e.g. U.S.A.) as a schizophrenic blend of colonial economic greed, “trust” in a pro-America deity and a sugar coating of Democratic values that wore thin in recent Presidential election. I probably lack the stamina and zeal you and Gil have to argue fine points of court cases and wilderness legislation. So just a few sound bites:
        • Worf— No doubt was a tireless advocate and not in it for the money. Although Forest Service undoubtedly lukewarm on wilderness, sounds like he was able to pursue wilderness advocacy on work time and later could finance his citizen advocacy for wilderness on federal retirement. Since 2011, I imagine that Wilderness Watch has had to do a bit of fund-raising to support itself and I suspect a few high-profile court cases needed to keep public interest.
        • Advocacy—I always thought Wilderness Watch a bit odd pushing too hard for “purity” in the Frank Church (for example in my experience, haggling the Forest Service on fine points of exemptions such as outfitter caches that had been grandfathered into this particular wilderness by enabling legislation). BTW Wilderness Watch’s website really gives little information to evaluate its funding/ use of funds. No annual report. 5-person staff includes law, communication, conservation & development. Executive director George Nickas has BS from Utah State University, not sure what field.
        • NGOs—I used to be a strong NGO proponent but increasingly disillusioned by finding so many environmental NGOs just following a business model to get donor support. That is a very long story and not totally germane to this dialogue but comes from several years of trying to do international work with the large ones and their supporting Foundations.
        • Wilderness purity—Maybe like me, you do a lot hiking in wilderness. We visited or revisited 40 the last 5 years for some book projects we had planned; and were saddened at declining trails/information from the distracted/underfunded Forest Service and indifferent Park Service. On the positive, volunteers are keeping the trails open in some places; a welcome trend but this cannot keep up the legacy infrastructure federal agencies inherited from Indians, miners, cattlemen and CCC. So I’m sad to see my tax dollars tied up in lawsuits and federal agencies exerting energy to “NEPA-proof” analysis documents when less and less work is done in the field. We’re in an era when the validity of public lands is again under challenge but I am not sure harassing agencies will really help that. (Fed/state agencies have major institutional problems but can’t solve that here)…
        • My overall view is that “wilderness does not need people but I think people need wilderness” and if we want a future constituency to support battles for public lands, wildlife, wilderness, etc, we need some resources expended on ensuring there is information and access so people can experience wilderness. Therefore, I am not sure the old NGO business model of continuing to litigate federal agencies over the fine points of the Wilderness Act is a good use of resources and time; I think something new is needed for 21st century advocacy. I do agree with Wilderness Watch that National Wilderness Preservation System should be overseen by an agency that has wilderness protection as its core mission—wilderness has just been add on for Forest Service and NPS and has never been comfortable fit.

        • Hi Cindy, Looks like “federal retirement” is treating you well. Enjoy.

          P.S. Bill Worf was selected by the Chief of the Forest Service to write the regulations and policies for implementing the Wilderness Act of 1964 shortly after it passed. Bill Worf was then asked to lead the Forest Service’s wilderness program in the Washington Office, which Worf did for many years. You’re passive aggressive pot shots at Bill Worf (such as “he was able to pursue wilderness advocacy on work time and later could finance his citizen advocacy for wilderness on federal retirement”) are totally unwarranted and entirely lack class.

          • Hi Matthew
            Nope, didn’t retire. Got “removed” by the Forest Service a few years ago for not accepting ‘direct reassignment’. Long story, definitely off topic.

            No passive pot shots; knew Worf only indirectly and good for him re. Wilderness Act & wilderness leadership.

            If I sound cynical about federal retirement, no slam meant at Worf. I think the federal retirement system is way too generous for higher grades–unless you get on wrong side of it. That’s one of many issues that we could look at as to disincentives for Forest Service and other agencies really standing up to the system and/or for the land… Not a barb at people who retired at good income; that’s how the system is at present… But again way off this topic.

            We all care about public lands; I just see the issues a little more complex and like to rattle chains a bit when I see energy going to the same old battles.

            That said, I’ll leave rest of this debate to you professional debaters.

  11. From yesterday’s Idaho Statesman:

    “David and Cindy Chojnacky’s Jan. 30 guest opinion (“Wildlife protectors should augment positions with on-the-ground research”) overlooked key facts in criticizing a judge’s ruling ordering the Idaho Department of Fish and Game (IDFG) to destroy data from radio collars illegally installed on 60 elk and four wolves in the Frank Church-River of No Return Wilderness. The judge determined this was the “rare or extreme case” where such an order was required to remedy unlawful conduct and protect the wilderness. The facts of this extraordinary case support that conclusion.”

    The full oped can be found here: http://www.idahostatesman.com/opinion/readers-opinion/article131167419.html#storylink=cpy

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