Forest Service Litigation Weeklies April 28 and May 5, 2017

Complete listings are in pdfs attached below.
April 28
1. Range & Wildlife I Region 5
Sierra Forest Legacy and Central Sierra Environmental Resource Center submitted a Notice of Intent to Sue (N01) for claimed violations of the Endangered Species Act (ESA) in the Stanislaus National Forest. The NOl claims that the authorization of livestock grazing in the habitat for the Sierra Nevada yellow-legged frog and Yosemite toad are agency actions that are illegal under the ESA.

On June 16, 2014, the Forest Service requested formal consultation as to the effects of its actions on the Sierra Nevada yellow-legged frog and the Yosemite toad. On December 19, 2014, the U.S. Fish and Wildlife Service (FWS) issued a Programmatic Biological Opinion (Prgm. BiOp) which found that the species were threatened by livestock grazing. As a result, the Prgm. BiOp stated that the Forest Service must establish a monitoring program to determine if and how well certain conservation measures minimize effects to the listed species and their habitats.
According to the NOI, for the 2014 and 2015 grazing seasons, Sierra Forest Legacy, Central Sierra Environmental Resource Center, and others “have provided evidence to the Forest Service and FWS demonstrating lack of monitoring, overgrazed meadows, degraded special aquatic features, and degraded stability along stream reaches where the natural streambank and streambed stability have been pocked, chiseled, sloughed, and otherwise damaged by livestock.” Additionally, the NOI claims that the effects of climate change and the spread of Chytridiomycosis constitutes new information that was not previously considered. This evidence and new information, according to the NOI, demonstrates that the Forest Service must reinitiate of consultation.

May 5

1. Timber I Region 1 If a Tree Might Fall in the Woods
The District Court of Idaho rejected a motion for preliminary injunction against the Tower and Grizzly Fires Salvage Projects, both of which relied on the Chief’s authority to invoke an Emergency Situation Determination (ESD), on the Idaho Panhandle National Forest in Alliance for the Wild Rockies v. Farnsworth. Wildfires in 2015 burned 47,500 acres, resulting in two proposed timber salvage sales that were expedited using an ESD, which would allow for projects to bypass the 90-day objection period and implement the projects immediately. Time was of the essence because the burned trees would depreciate in value quickly. The Chief issued Emergency Situation Determinations, followed by the forest issuing a Decision Notice with the Environmental Assessment. Alliance for the Wild Rockies brought five NEPA-based claims.
Using the “sliding scale standard” of the four-factor Winter test for a preliminary injunction, under which a party may have a lesser showing of likelihood of success on the merits when it shows a stronger likelihood of suffering irreparable harm absent preliminary relief, the court denied the plaintiff’s motion for a preliminary injection. It found that the plaintiffs failed to raise serious questions as to three of their five claims.
The Chief may issue an Emergency Situation Determination under 36 C.F.R. §218.21(b) for:
• Relief from hazards threatening human health and safety;
• mitigation of threats to natural resources on NFS or adjacent lands; or
• avoiding a loss of commodity value sufficient to jeopardize the agency’s ability to accomplish project objectives directly related to resource protection or restoration
In finding that the first and third triggers were properly invoked, the court noted that these projects posed a threat to human safety where there were burned trees along snowmobile trails, and there was nearly $3 million in value at risk. The court rejected plaintiff’s argument that the projects were not necessary because hazardous dead trees would be removed even without the sales, because the no-action alternative provided removal of the dead trees. The court noted that this argument merely confirmed that a hazard is present, which is one of the three triggers for allowing and ESD. The court also rejected the plaintiff’s challenge to valuation estimates, noting that the real risk was finding a bidder at all.

Wildlife I Region 4 If a goat is in the forest, does it require NEPA?
Plaintiffs appealed to the United States Court of Appeals for the Tenth Circuit a District of Utah decision favorable to the Forest Service in Utah Native Plant Society et al v. United States Forest Service et al.
Reported in the Litigation Weekly on March 10, 2017, the District Court ruled favorably for the Forest Service on National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA) claims against the presence of mountain goats in the Mount Peal Research Natural Area in the Manti-La Sal National Forest. Plaintiffs claimed the Forest Service violated NFMA and NEPA by refusing to take action to manage the goats’ occupation of the forest, neglecting to require the State to obtain a special-use permit for introducing the goats to land adjacent to the National Forest, and failing to conduct an environmental analysis. The court, however, found that the Forest Service did not engage in any agency action so was not required to undergo any NEPA analysis and that to require the State to obtain a special-use permit “would disregard the Forest Service’s duty to work cooperatively with the State to manage wildlife.” (16-056, D. Utah)

Land Use & Wildlife I Region 1 Don’t want no CE’s round here...
Native Ecosystems Council and Alliance for the Wild Rockies (Plaintiffs) filed a complaint in the District of Montana against the Smith Creek Vegetation Management Project on the Custer Gallatin National Forest, a portion of the Clean-Up Amendment for the Forest Plan, the Northern Rockies Lynx Management Direction (Lynx Amendment), and the May 20, 2014 landscape-scale insect and disease designation for Montana under the Healthy Forest Restoration Act in Native Ecosystems Council et al v. Erickson et al. The complaint alleges violations of the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Healthy Forest Restoration Act (HFRA), and the Endangered Species Act (ESA).

2. Resources & Land Use I Region 9 Two agencies fer one lawsuit
Plaintiffs filed suit in the District Court for the Southern District of Ohio against the Forest Service and the Bureau of Land Management (BLM) claiming the agencies failed to comply with NEPA when authorizing oil and gas leasing in the Wayne National Forest’s Marietta Unit in Center for Biological Diversity et al. v. U.S. Forest Service et al.

Litigation Weekly 4_28_2017 (1)

Notice of Intent Stanislaus Forest

Litigation Weekly 5_06_2017

CBD v FS

Utah Native Plant Society v FS

Alliance Wild Rockies v Farnsworth

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