Litigation Weekly March 24, 2017

Court Decisions
1. No new decisions.

Litigation Update

1 . Timber I Region 6
Magistrate Judge in the District Court for the District of Oregon issued a Findings and Recommendation on Cascadia Wildlands et al. v. Carlton et al., stating that the Forest Service cannot move forward with a commercial thinning project without first conducting an environmental impact statement (EIS). The project, the Loafer timber sale, calls for the commercial thinning of approximately 1,400 acres and the prescribed burning of 821 additional acres in critical habitat to the Northern Spotted Owl (NSO). Plaintiffs challenged the Forest Service’s use of an environmental assessment (EA) for this project instead of an EIS, believing that the project’s adverse effects on NSO were to such a degree as to merit analysis beyond an EA. The Magistrate Judge agreed. Finding that “a considerable portion of designated critical habitat” would be effected by the project, the Judge determined that an EIS was warranted. (16-01095, D. Or.)
New Cases
1. Land Management I Region 6
Pacific Northwest fishermen sued under the Wild and Scenic Rivers Act for improved management of nine rivers in Mount Hood National Forest designated as part of the Wild and Scenic Rivers system in 2009 in Pacific Coast Federation of Fishermen’s Associations, Inc. et al. v. Northrop et al. Several of these rivers contain critical habitat for Coho, Steelhead, and Chinook salmon.
The Wild and Scenic Rivers Act was adopted in 1968 to protect public use and enjoyment of the rivers that possess outstandingly remarkable values in their natural condition. 16 U.S.C. §1271. It mandates that boundaries be established within one year of the designation, and that a comprehensive management plan be created for the protection, facility development, and other management practices within three fiscal years.
Plaintiffs are a coalition of fishermen’s organizations in California, Oregon, and Washington whose livelihood
depends on Pacific salmon, which require cold and unpolluted fresh waters. Plaintiffs claim that instead of establishing the river corridor boundaries and comprehensive management plans for the nine rivers, the Forest Service approved activities in proximity to rivers that threaten the rivers’ value. For example, plaintiffs approved projects with tree removal, dam improvement, and other watershed distributing activities. These activities are feared to disturb vegetative cover and soils as well as cause discharge sediment.
The complaint claims that the Forest Service:
1. Failed to establish detailed river corridor boundaries by the 2010 deadline, and continues to fail to do so; and
2. Failed to prepare comprehensive management plans by 2012 and continue to fail to do so. (16-17-0416, D. Or.)
Notices of Intent
1. Wildlife I Region 4
On behalf of the Idaho Conservation League, Advocates for the West submitted a Notice of Intent to Sue (N01) the Forest Service for authorizing water diversions in the Sawtooth National Forest. The NOI claims that 23 diversions near streams in the Sawtooth Valley which were issued special use permits by the Forest Service threaten Chinook salmon, sockeye salmon, steelhead, and bull trout in violation of the Endangered Species Act (ESA). Specifically, the NOI alleges the Forest Service violated the ESA in the following ways:
1. Failing to consult with the National Marine Fisheries Service or the Fish and Wildlife Service;
2. Failing to insure against jeopardy of sockeye salmon, Chinook salmon, steelhead, and bull trout;
3. Failing to insure against the destruction or adverse modification of each species’ designated critical habitat;
4. Irreversibly and irretrievably committing resources to the extent that the Forest Service has initiated consultation for any of the 23 water diversions; and
5. Causing the unauthorized take of ESA-listed species “by authorizing diversions that impair or block fish passage, reduce stream flows, entrain fish, increase stream temperatures, and harm fish by other means.”
Natural Resource Management Decisions Involving Other Agencies
1. Wildlife I National Park Service
Several environmental groups have filed a Motion for Summary Judgement on National Environmental Policy Act (NEPA), Administrative Procedure Act (APA), and Endangered Species Act (ESA) claims against the National Park Service’s (NPS) approval of Burnett Oil Company’s Plan of Operation (Plan) to conduct seismic geophysical exploration through wetland habitats in the Big Cypress National Preserve in Natural Resources Defense Council et al. v. National Park Service et al. Eleven federally-listed species occur in the area effected by the plan including Florida panther, Florida bonneted bat, red-cockaded woodpecker, and wood stork.
Plaintiffs state that the NPS’s and FWS’s analysis of the plan was insufficient and failed to use the best scientific data available. According to the plaintiffs, the Agencies analyzed the plan “too narrowly by ignoring areas affected by the use of” an off-site staging area for the exploration and “omitting a necessary buffer to account for Florida panther movements.” Additionally, the plaintiffs assert that the NPS ignored the impacts helicopter and truck activity within the survey area and off-site staging area would have on birds like the wood stork and on panther dens.
Citing two reasons, plaintiffs also contend that the NPS and FWS must reinitiate consultation on the exploration plan. The first reason cited by the plaintiffs is that the Burnett’s final plan changed the off-site staging area after the agencies approval in a way the agencies did not consider. Because this change, the plaintiffs state, has “the potential for different effects on species” the Agencies must reinitiate consultation. Citing Cottonwood Envtl. Law Ctr. V. U.S. Forest Serv., the plaintiffs’ second argument states that the Agencies have to reinitiate consultation because a new species was listed since the revision of the Preserve Management Plans, upon which Burnett’s Plan is based, last went through consultation. Specifically, plaintiffs claim the Florida bonneted bat was listed as endangered by the FWS in 2013, but that the Agencies have not yet reinitiated consultation on the affected
Preserve Management Plans and so Burnett Oil Company cannot begin exploration until this new consultation is completed.
2. Agency Deference I Bureau of Safety and Environmental Enforcement
The Supreme Court this week decided to not take a case challenging the legal doctrine with which courts give deference to agency interpretations of rules. At issue in the case was an order issued by the Interior Department’s Bureau of Safety and Environmental Enforcement forcing a company to permanently plug and abandon a well off the coast of central California. Even though the contract under which the well was operated had not been breached, Interior decided that its regulations still applied and called for the closing of the well.
The U.S. Court of Appeals for the District of Columbia upheld Interior’s order last year and the plaintiff challenged the decision. The plaintiff argued that the court improperly gave the agency deference in this case and asked the court to eliminate agency deference in cases where agencies interpret their own rules and regulation. The Supreme Court, however, passed on the plaintiff’s petition.

The NFS Litigation Weekly Newsletter is provided to Forest Service employees for internal, informational purposes and is not intended to provide a legal/policy opinion or interpretation of its subject matter. Information presented in the Litigation Weekly is publicly available via official court records. Official court records should be consulted for the most complete and accurate discussion of each case.

Files: NRDC v NPS Sawtooth NF Diversion NOIS Pac Coast Fedn Fishermens Assn v Northrop Cascadia Wildlands v Carlton

3 Comments

  1. While providing information on the play by play account of legal proceedings it would perhaps serve the public best interest to reveal the long record of agency abuses forcing litigation in the first place. Once the ROD gets signed and the sale executed, in almost all cases, there is little legal recourse for prosecuting the agency white collar crime that ensues.

    Then again, it should come as no surprise that retired agency careerists use the blinders of confirmation bias while desperately avoiding evidence of in-your-face agency misfeasance.

    Among the more striking examples arrived in the news today from Public Employees for Environmental Responsibility (PEER) with the disclosure of the WO’s year old review of two large Tongass timber sales, the Tonka and Big Thorne timber sales.

    https://www.peer.org/assets/docs/fs/4_3_17_Post_Harvest_Monitoring.pdf

    The Contracting Officers and the multiple examples of disregard for agency rules for proper sale administration unfortunately are not shocking at all, because this is the familiar culture of disregard one should expect from a captured agency.

    Historic examples of timber theft on the Tongass are well documented:

    https://www.peer.org/assets/docs/whitepapers/1996_stealing_tongass.pdf

    and will continue as long as there exists no meaningful enforcement, no personal or professional accountability of line officers and no meaningful media coverage as to the full extent of dysfunction and taxpayer ripoff the agency routinely allows.

    FOREST SERVICE SCALPED ON TONGASS TIMBER SALES
    Bad Sales Cost Taxpayers & Alaska Schools Big Money and Hurt the Forest

    Washington, DC — Recent timber sales from Alaska’s vast Tongass National Forest have been financial as well as ecological debacles, according to internal reports released today by Public Employees for Environmental Responsibility (PEER). In violation of its own policies, the U.S. Forest Service let timber operators benefit by cherry-picking more valuable trees and leaving intended salvage trees standing.

    A June 20, 2016 Forest Service “Washington Office Activity Review” examined two large Tongass timber sales and found –

    Staggering monetary losses in each, “close to 2 million” in one sale, an amount “more than double the original stumpage” according to a post-harvest Monitoring Report. In the other sale, Forest Service maladministration led to “a reduction in sale value exceeding $1,700,000”;
    Despite being stewardship sales to improve forest health, the agency allowed companies to ignore prescriptions by “favoring removal in the larger diameter, more valuable species groups, such as western red cedar and spruce” while significantly undercutting far less valuable hemlock; and
    Required law enforcement timber theft prevention inspections appear to have been bypassed. Nor could the forest produce a written contract or other “pertinent documentation” for this high-volume sale. That sale also allowed “purchaser selection of trees without prior marking” and the forest’s only follow-on monitoring was completely “reliant on the purchaser’s own data.”
    “This national forest runs major commercial timber sales like a cookie jar without a lid,” stated PEER Executive Director Jeff Ruch, noting that the review’s call for “an independent review [to] inform solutions and prevent similar issues in future timber and stewardship contracts” has run into a stone wall. “These reports read as if some Forest Service staff are coconspirators in wholescale timber fraud.”

    Under the Secure Rural Schools program, a portion of all Tongass timber sale proceeds go to local communities and schools. Depressed sale values therefore cost both the U.S. taxpayers and Alaskan schoolkids. PEER is asking the Inspector General for the U.S. Forest Service’s parent agency to perform a “forensic audit” of recent sale proceeds to calculate total losses, as well as recommend steps to ensure that these sales yield the fair market value they are supposed to produce.

    These were also stewardship sales using harvests to reach prescribed tree species cut criteria but they lacked any “defined process for independently confirming whether the criteria are being met. This obfuscates the acceptability of the end result.” Another issue the review identified was temporary timber roads improperly left open “for several years following commercial activity.”

    “As a businessman, President Trump would presumably not write a sales contract so open-ended that it is tantamount to a license to steal,” added Ruch, pointing out that during the campaign, candidate Trump promised to increase timber jobs, presumably by directing more and larger timber sales from national forests. “We are asking the Senate to extract pledges from the upcoming nominees for the Chief of the Forest Service and the Agriculture Undersecretary for Natural Resources & Environment to ensure that all future timber sales protect both the forest resources and the taxpayer’s pocketbook.

  2. Pingback: U.S. Forest Service Scalped on Tongass Timber Sales – A New Century of Forest Planning

  3. I have visited the Loafer timber sale area several times. The Forest Service has been working on it for years. Once again this sale is really about restoration. This injunction is another example of how Oregon Wild and Cascadian Wildlands work to make forest management impossible. Of course their real goal is to create more hands off “wilderness”. We have these two groups to thank for promoting the sale of the Elliott State Forest and costing the Oregon and U.S. taxpayers millions of dollars, while actually doing very little for the environment.

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