Litigation Weekly Nov. 3

Litigation Weekly Nov 3

Annual operating instructions for four grazing allotments on the Salmon-Challis NF complied with the INFISH aquatic strategy in the forest plan.  (D. Idaho)

New case

The NOI questions compliance by the Sawtooth NF with conditions from previous ESA consultation on livestock grazing in the Williams Creek allotment regarding effects on listed fish species.

One Comment

  1. The Forest Service summary of the Salmon-Challis grazing lawsuit addresses findings related to the interpretation of INFISH. Here’s the key statement from the court:

    “Implicit within this language is a requirement that the Forest Service consider the question of causation… there must be a demonstrated relationship between grazing and poor stream quality before the Forest Service becomes obligated to act. The evidence is not persuasive here that such a relationship exists.”

    The court recognized that on other facts there could be an obligation for the Forest Service to modify grazing practices. The court’s opinion includes two other important holdings related to planning. It concluded that, contrary to Forest Service arguments, INFISH applies to grazing initiated prior to the adoption of INFISH once a term grazing permit is reissued for a particular allotment. The court also applied the new consistency provisions of the 2012 Planning Rule to annual operating instructions, and concluded: “the Court does not interpret either 36 C.F.R. § 219.15(d), ONDA, or NFMA to require an agency already overburdened with work to perform a ‘consistency analysis’ in each and every AOI, where nothing otherwise indicates that such an exercise would be worthwhile. This is despite NFMA’s requirement that all “instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.”

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