Litigation bi-weekly October 6 & 13

Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.

 

17 Comments

  1. Another lawsuit against a Roadside Hazard Tree Project…. *BIG EYEROLL*

    Just a delay tactic to make such projects less economical. Roads, like streams and rivers, require buffers to protect them from damage (plugged culverts, clogged ditches, bridges, gates, canal crossings, cattle guards, etc).

      • Same old stuff that has lost before, in the past.

        Of particular notice, here’s something new and amusing: “These members’ interests will be irreparably harmed by the planned logging, as they will no longer be able to scientifically study these areas in their pre-logging state, take nature photographs of the area in its pre-logging state, or enjoy the aesthetic beauty of the unlogged forest habitat and its inhabitants. ”

        Sounds just a mite bit over-melodramatic, to me. I have done many of these projects and they worked out pretty damn good.

        How does this apply to Roadside Hazard Trees, Road System Management and Public Safety? *smirk*

  2. I noticed this interesting item in the Earth Island Institute v Elliott document. The Forest Service proposed “to mitigate public safety hazards from dead or dying trees, which may fall onto the roadway, by logging up to 300 feet from each side of 74 miles of roads in the fire area.”

    An argument to this: “But rather than just felling these trees and closing non-essential roads for public safety, which would avert the falling hazard, the Forest Service has proposed to log and sell the trees in the Bull Run Project as a timber salvage sale.”

    Seems that felling is fine, but selling isn’t.

  3. I looked at the Earth Island complaint. The main issue is whether this project fits the categorical exclusion category, which to me looks like pushback against a change in policy by the Forest Service.

    “In all past roadside hazard projects, including after a fire, the Sequoia National Forest has prepared EA’s, including salvage projects of much smaller size, and has even prepared an EIS for post-fire restoration and salvage of only 350 acres. Instead, the Forest Service decided to limit its NEPA analysis by inappropriately choosing the “timber stand and/or wildlife habitat improvement activities” CE (36 C.F.R. § 220.6(e)(6)), which clearly does not fit the type of timber salvage activities proposed in the Bull Run Project.”

    The complaint also includes reasons why there are “extraordinary circumstances” based on admitted adverse effects on at-risk wildlife species, which would prevent the use of any CE. However, I agree that there is not a good distinction between the acts and effects of “felling and logging” on these species, and the requested relief is only to “Enjoin Defendants from removing felled trees and only felling imminently hazardous trees along essential public travel corridors to avert public safety concerns …” I think they should have followed through on their earlier point that this should have been one of several reasonable alternatives that were apparently ignored in the CE process.

    (The “melodrama” is sometimes what plaintiffs have to do to establish standing to sue, and there is no legal risk in overdoing it.)

  4. When the trees are felled, whether they are harvested, or not, they need to be moved with logging equipment. No matter what happens, there will be impacts on frogs.

    With the trees felled, just HOW are owls affected by harvesting them?!? There are some serious potholes in this complaint, and I really hope that the Judges get a snicker out of it.

    Apparently, you-know-who doesn’t want his name attached to this. *smirk*

  5. And what if the judge don’t snicker? * smirk *

    Happy that we can always count on Larry Harrell for a sophomoric response. *BIG EYEROLL*

    P.S. Thanks for adding some important context above Jon.

  6. Here’s the discussion of alternatives in the complaint:
    “On November 30, 2016, JMP’s Dr. Chad Hanson provided initial scoping
    comments, which included a request to consider several alternatives, including: (a) limit hazard
    tree felling to trees that are likely to fall and hit the road in question; (b) leave all or most felled
    trees on the ground as large downed log habitat for wildlife; and (c) drop the roadside logging
    proposed in the Giant Sequoia National Monument along roads 24S93, 24S94, 24S93A, and
    24S93B and instead convert these segments to Maintenance Level 1 roads (meaning a
    temporary/indefinite closure, but not necessarily a permanent closure, with a gate).”

    These all address the purpose of public safety so should be worth analyzing. One does indicate that the effects of removing the logs would be related to downed log habitat.

    The issue of breaking this into two adjacent projects does also raise questions about illegal “segmentation” to avoid having significant impacts. (Having two different jurisdictions within the Forest Service might not be a sufficient rationale.)

    • “limit hazard tree felling to trees that are likely to fall and hit the road in question”

      Every hazard tree project I worked on had that requirement. If a dead tree was leaning away from the road, I would leave it. Such projects are so visible that the risk to the project is too great, compared to about $20 worth of wood.

      “leave all or most felled trees on the ground as large downed log habitat for wildlife”

      Unacceptable, from a fuels standpoint. This is where human ignitions happen the most. Never going to happen.

      Closing roads and letting trees fall on their own is also unacceptable, from a road maintenance point of view. There is too much invested in these roads to not manage them.

      Finally, …… roadside wildlife habitat?!?!? More like woodcutter habitat!

    • “…roads 24S93, 24S94, 24S93A, and 24S93B…”

      https://www.google.com/maps/@35.8095312,-118.5948491,356m/data=!3m1!1e3?hl=en

      I guess I can see why they wouldn’t want the USFS to sell the VAST amounts of dead trees along this road system, (which includes a summer home tract).

      (Edit: Upon closer inspection, an argument could be made that the road is unimportant enough to just “put it to bed”, at least for parts of it. From the aerial view, it looks like it might not meet standards for certain road levels. However, if the public wants to keep using it, a salvage project would be appropriate. Otherwise, if the Forest Service cannot make it safe, they should issue a closure order. It’s a liability thing. That might also mean pulling up culverts.)

  7. Pingback: Litigation Weekly November 17 – A New Century of Forest Planning

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