DU Law Students and Handkerchief Mesa

Matthew Koehler sent this one in, and I can’t say anything about this project due to the litigation cone of silence. Suffice it to say that there are two sides. I wish more law students would volunteer for proactive (I think the legal term is affirmative) litigation for the government, say trespass cases, water rights, etc. IMHO it would be a better deal for the taxpayer.

Students at the University of Denver’s Sturm College of Law representing two regional environmental nonprofits successfully blocked a federal timber permit that would have allowed logging in the Rio Grande National Forest near Alamosa in southern Colorado.

U.S. Judge William Martinez in U.S. District Court for Colorado ruled Thursday that the U.S. Forest Service did not meet obligations spelled out in the National Forest Management Act and that an Environmental Assessment was inadequate.

“The court finds fault with the Forest Service’s failure to lay out a more detailed plan regarding … soil compaction. The court finds even greater fault with simply identifying the fact that mitigation measures exist, without even mentioning what those mitigation measures are, not to mention how and when they might be used,” Martinez said in his ruling regarding soil and regeneration issues.

The ruling overturns issued timber permits for more than 3,436 acres in the Handkerchief Mesa area of the Rio Grande National Forest. Permits would have also allowed for the construction of 11 miles of roads.

The suit against the Forest Service and its parent agency, the U.S. Department of Agriculture, was prepared in June 2009 by DU student Jacob Schlesinger and Environmental Law Clinic fellow Ashley Wilmes under the direction of DU Environmental Law Clinic director Michael Harris.

It was filed in federal court in Denver on behalf of environmental groups Rocky Mountain Wild based in Denver and Durango, and WildEarth Guardians, based in Santa Fe.

DU student lawyers Mason Brown and Justine Shepherd argued the case in federal court in December 2011 under a provision that allows students to practice in federal court while supervised by a licensed attorney.

The case argued timber cutting would affect lands stressed by previous clear-cutting and an ongoing spruce budworm infestation.

Allowed to proceed, the proposal could lead to continued soil damage, including erosion and compaction, impacting the flow of water to the Rio Grande and thousands of communities downstream, according to a DU press release.

Runoff from the area feeds the headwaters of the Rio Grande river, which is a major source of drinking water for millions of people in Colorado, New Mexico and Texas, and provides water for agriculture in both the United States and Mexico.

Harris said stopping a permitted timber project in Colorado is “extremely rare.” The ruling, he says, sends a message to the Forest Service that its permitting process must take into account changing conditions, ongoing insect infestations and other ecological conditions.

“The court has told the Forest Service, the game has changed, and you need to change with them if you are going to continue to permit these projects,” Harris said in the press release.

Martinez ordered the Forest Service to “analyze anew, on remand, whether the project will significantly affect the quality of the human environment.”

7 thoughts on “DU Law Students and Handkerchief Mesa”

  1. Again…kinda hard to feel sorry for the Forest Service. The issue of soil copmpaction and erosion from this timber harvest is pretty straight forward, rather easy to analyze for, and easy to fully disclose potential impacts. All it takes is a moderately good analysis. I’d be curious to review the soils analysis in the EA. I’m sure it’s quite poor.

    On the other hand…

    “Allowed to proceed, the proposal could lead to continued soil damage, including erosion and compaction, impacting the flow of water to the Rio Grande and thousands of communities downstream, according to a DU press release”

    Seriously? I would like these two law students to show in an analysis on how implementing this project would be measureable or detectable in downstream waters….particularly at the scale of the “Rio Grande” and “thousands of communities downstream”. Sensational at best. Timber harvest from roughly four sections detectable with a 182,200 square mile watershed? Time for some folks to take undergrad forest hydrology…

    • Smokey, there is more to this than meets the eye. If the lawyers decide to do more, there will be a document that describes the other point of view.

      I will try to post those documents from Colt Summit and this case as they go forward (if they do).

      Students and other groups get to make assertions knowing that, most of the time, they won’t be questioned by those who know more on a topic. The problem with that is that humans can get carried away with their own rhetoric if no one calls them on it. Everyone needs a little open QA/QC.

  2. Smokey’s points are well taken and spot on. There’s no doubt, plenty more to both sides of the story.

    Sharon states,”… most of the time, they won’t be questioned by those who know more on a topic.”

    If this is suggesting the courtroom representation of agency rationales are under represented, who’s to fault the plaintiffs for that?

    “Everyone needs a little open QA/QC.”

    Seems to me, that’s exactly what the USFS gets when found in violation of the specifics of the laws– QA/QC. Clearly, the courtroom is about the only way QA/QC for the agency gets effected, and sometimes that doesn’t even work.

  3. Sharon – your desire to see more law students do affirmative litigation for the FS is an interesting one. My experience is that law students join law school clinics to get an opportunity to do exciting legal work – including standing up in court and arguing a case – that they won’t otherwise get until many years into their legal careers. (Much of law school is reading dreary books and checking other people’s footnotes – actually practicing law can seem pretty fun.) My sense is that the Department of Justice doesn’t have a program for letting law students argue on behalf of the Forest Service in court, and that even seasoned OGC lawyers inside USDA rarely get that opportunity. So, these clinical opportunities on behalf of conservation groups may look attractive in comparison.

    That said, it would be great if you could post any info from our friends at OGC about summer or school-year internships for students who might want experience working for the agency.

    • Thanks, Ted. I will check this out with OGC and also DOJ and see what I can find.

      Also, note that the FS has hosted law students as interns to work on the client’s side of legal work, but they can’t get law school credit unless supervised by OGC. Some have been willing to forego the credit to get the experience… The FS has directly hired people with law degrees who have become successful litigation coordinators, NEPA professionals, etc.

    • After some preliminary investigation, it turns out that there is something called a “Student Practice Act” that applies to law school interns, under which they can appear in court.
      But the feds do not have an equivalent opportunity, perhaps by the very nature of fed-ness. (protecting the interests of the USG). I think it bears some more thought and perhaps creativity.

      It seems like a good idea for future litigators to gain experience, but I just wonder if there are ways to do this that would be cheaper for, or even beneficial to, the US taxpayer.


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