FS Litigation Weekly March 17, 2017

The Forest Service used to send these out with a word and a pdf version. Currently they only send a pdf version. So apologies for bad things that happen as a result of conversion to word so I can post them. I am trying different free conversion programs and am sure this will settle out. Thank you for your patience!

I am a little curious about the FACA case at the end..why would the FS not follow the rules about the FACA committe re:meetings and documents? Is there more to the story?

1. Wildlife | Region 6
The Forest Service received a favorable ruling in the District of Oregon concerning livestock grazing in the Fremont-Winema National Forest in Oregon Wi/d et a/. v. Cummins et a/. The plaintiffs alleged the Forest Service violated the Endangered Species Act (ESA), the National Forest Management Act, (NFMA), and the National Environmental Policy Act (NEPA) by issuing grazing permits authorizing livestock use on federal lands. Plaintiffs believed the grazing activities threatened the Lost River sucker and the shortnose sucker.

In their first claim, Plaintiff’ s challenged the 2014 re-consultation’ s conclusion that grazing is not likely to adversely affect suckers’ critical habitat in violation of the ESA. The court found plaintiff’ s ESA claim moot since the Forest Service has to complete a new ESA consultation prior to any livestock grazing in 2017.

Plaintiff’ s NFMA claim centered on the contention that the Forest Service “ignored widespread evidence of riparian problems.” The court disregarded this claim because the court found that the Forest Service reasonably gathered and evaluated data and issued the challenged permits on that basis.

Regarding Plaintiff’ s first NEPA claim that the Forest Service violated NEPA in issuing its 2009 EA, the court found that the plaintiffs failed to exhaust their administrative remedies and thus could not bring this claim in the first place.

Lastly, Plaintiffs alleged that the Forest Service had a duty under NEPA to supplement their analysis due to newly designated habitat and changing conditions. The court found nothing in the analysis attached to the newly designated habitat or the changing conditions identified grazing as a significant threat to suckers. Thus, the court concluded, the Forest Service did not need to supplement its NEPA analysis.

2. Wiidiife & Recreation | Region 3
The District Court for the District of Arizona ruled in favor of the Forest Service in a case on the Kaibab National Forest in Centerfor Biolgical Diversity et a/. v. United States Forest Service. Plaintiffs had filed a Resource Conservation and Recovery Act claim against the Forest Service seeking “judicial review, as well as declaratory and/or injunctive relief” to stop the disposal of lead ammunition on public lands and “to protect wildlife species threatened by exposure to spent lead ammunitions in the foraging range within [Forest Service} land in Arizona.”

The Forest Service, along with several intervenors, filed a motion to dismiss this claim for failure to state a claim upon which relief could be granted. The court ended up dismissing this case, however, on justiciability grounds.

Article III, Section 2 of the United States Constitution limits the federal judicial power to questions capable of resolution through the judicial process and that do not intrude into areas committed to other branches of government. The court here believed that the “prohibition of lead ammunition in national forests is a matter over which the USFS has control” and “is a matter on which the USFS has knowledge and expertise. The court, therefore, concluded that it was not in in any position “to supplant the USFS’s authority, knowledge, and expertise
on this matter” and dismissed the case.

1. Wildlife | Region 5
The District Court for the District of Columbia granted in part and denied in part the Forest Service’s motion to dismiss Federal Advisory Committee Act (FACA) and Administrative Procedures Act (APA) claims brought by the Center for Biological Diversity challenging an advisory committee established to create a conservation strategy for the California spotted owl for the Sierra Nevada Region in Center for Bio/ogica/ Diversity v. Tldwe// et a/.

The plaintiff stated two claims for relief under FACA:

1. The Forest Service violated FACA by failing to have a committee that was fairly balanced in terms of points of view, failing to open the committee’ s meetings to the public, and not making the committee’ s documents available to the public; and

2. The Forest Service has engaged “in a pattern and practice of violating FACA.” Due to the court finding that the committee no longer existed and that there was no evidence that wrongful conduct was likely to reoccur, however, the court dismissed the plaintiff s FACA claims as moot.

Although the court dismissed the FACA claims, the plaintiff’ s APA claims survived to the extent they seek relief for the Forest Service’ s failure to comply with FACA’s document disclosure provision. Under FACA, the government is required to make certain materials available to the public as a matter of course, unless certain exceptions apply. Documents that were made available to or prepared for or by each advisory committee are required to be disclosed. The plaintiff, the court concluded, made a viable claim under the APA that the committee was regulated by FACA before it ceased to exist and that the Forest Service failed to disclose materials prepared for and by the committee.

CBDvFSDistrictCourtDismissalCBD v TidwellOregon Wild v CumminsLitigation Weekly 03172017

8 Comments

  1. These recurring lawsuits by the CBD and others impose substantial costs in both human and dollar resources on the defendant agency. Beyond the immediate legal costs are the unrecognized social and environmental costs: jobs lost, needed silvicultural treatments unmade , dead timber unsalvaged, and forests increasingly vulnerable to fire, insects, disease. When the litigant wins the agency pays litigant’s costs. When the agency prevails there is no reimbursement of costs or damages. Isn’t it time to balance the scales of justice and adopt the English rule of loser (whether litigant or defendant) pays cost of and damages to the winner? Legislation proposing this (HR 2647) in 114th congress passed the house but died in the senate.

    Look for a reintroduction of this bill in the 115th congress.

    • Mac- I think if we wanted to get some bipartisan problem solving the first step would be to get both parties to acknowledge that there is a problem. I think the first step would be collecting cost info on how much these lawsuits cost the government including the agency, DOJ and whomever else might be involved. Maybe this could be on a task list for the new administration?

      • Some people insist there are no problems in our National Forests, and that the increased mortality we are seeing, especially in nesting habitats, is welcome and ‘natural’. The real goal here seems to be resisting plans to salvage trees killed by the bark beetles, here in California. Some people still insist that ‘doing nothing’ is the most ‘natural and beneficial’ thing to do, in the face of massive mortality.

    • An examination of the ” English rule” and the implications for the USFS and interested parties would be a great topic for the book I mentioned in another post, 193 Million Acres: Toward a more healthy and resilient U.S. Forest Service. Call for contributions:

      tinyurl.com/j26nuv8

  2. I always understood that the paperwork and related headaches (like “balanced points of view”) associated with formal FACA designation meant that the WO would never approve them (except for high profile things like the Planning Rule). Instead they gave advice on how to use committees without triggering FACA requirements. “Disband the committee” if questions were raised was probably part of that strategy, but there are limits before that becomes a “pattern and practice” likely to recur so that mootness won’t be a defense. And it looks like it may not avoid the paperwork issue.

    With regard to “balancing the scales of justice,” here’s what one court had to say about the Equal Access to Justice Act: by “discourag[ing] the federal government from using its superior
    litigating resources unreasonably,” the EAJA is “an ‘anti-bully’ law.”

    • I worked with at least three FACA committees (Colorado Roadless, FRAC and Advisory Committee on Biotechnology) and was the agency rep for the Forest Research Advisory Committee. Getting the Department to approve people and then to recharter regularly was a bureaucratic pain in the neck. Still the Black Hills managed to do it so…http://forestpolicypub.com/2010/04/25/forest-advisory-boards-history-and-future/

      I think that FACA committees work better for national issues than for forests in general.. just because of the bureaucratic paper pushing to actual work ratio.
      Here’s something I wrote awhile back about why they are good http://forestpolicypub.com/2010/02/18/faca-frolics-or-when-a-ac-has-your-back/

      • USDA is not accepting new charter or nomination packages at this time. It doesn’t feel like it’s just the administration change, seems like they may think this is the time to really try to reduce the number of committees.

        That may not be a bad idea but the committee for which I’m the DFO is legislatively required, so here we are in a more bureaucratic process than usual.

        Last time we nominated candidates it took five months from submission to WO to Secretarial approval. No idea how long it’s going to be this time other than knowing it will be more than five months.

        • I think most new administrations look at the list and say “whoa, are these really necessary?” (after the relevant politicals are in place). Then some underling will make a table that shows which ones are legally required and which not and who cares if they exist. Then they will lose interest in the midst of bigger alligators biting their rears. Meanwhile getting members approved will be like pushing a boulder uphill using only your pinkie.
          But I could be wrong.. thanks for your observation, George!

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