FS’s Winning Month

I don’t purport to track such things empirically, but last month seemed a particularly good one for the Forest Service in court. As blogged previously here, the Ninth Circuit sustained some post-fire logging near Lake Tahoe. The FS also won a 9th circuit decision up-holding some small tree thinning in Montana. Add two victories in travel management plan cases — one up-holding road closures in a suit brought by miners and the other refusing to compel the FS to expand its roads analysis beyond the FS’s primary goal of regulating off-road travel.

Is this the harbinger of a new trend?

6 thoughts on “FS’s Winning Month”

  1. Andy, this is pretty far out of my area of expertise, but just reading, it appears that some think that the 9th Circuit has had a tendency to make environmentally protective choices.

    A brief hunt on the internet found this piece by a law professor. (Gee. law professors disagree just like scientists, only their language seems to be more colorful).

    That might explain the travel management decisions.

    The two logging projects could be simply due to co-evolution of plaintiffs and FS NEPA-writers, or it could be the judges are equally tired of being involved (and having to be on appeal panels) of projects of 1100 acres here or 832 acres there.

    From page 4 of the Ettien Ridge Fuels Reduction decision

    Following an administrative appeal by Native Ecosystems
    Council , the Project was reduced in size so that the total area
    of treatment was decreased from 1,655 acres to 832 acres.
    Thinning was reduced from 632 acres to 243 acres. All treatment
    in unroaded lands was eliminated. Temporary roads
    were decreased by about 70% so that only one half mile of..

    Judges, like scientists, are human and they might be wondering why they are really there, when it appears the FS listens, changes the project and people still litigate AND then appeal the lower court decision. Surely there are more important justice issues somewhere they could be spending time on.

    Or maybe they’re getting tired of getting embroiled in technical questions like these:

    Native Ecosystems Council’s challenge fails to prove that
    the Forest Service acted arbitrarily and capriciously in selecting
    the PI Type methodology to analyze elk hiding cover. The
    Forest Service based its selection of the PI Type methodology
    upon a rigorous and scientific 1982 elk logging study involving
    the use of a life-sized, two dimensional cutout of an elk
    in various types of forest stands.5 The Forest Service noted the
    characteristics of each stand in the various areas in which hiding
    covered was measured. The stand characteristics were
    then classified into different PI Types. Based upon those
    descriptions, a “Montana Rule” was developed to calculate an
    average percentage hiding cover by type. For any given area,
    the percentage of effective cover was then determined by
    multiplying the acres of each PI Type by the Montana Rule
    percentages, totaling the acres providing hiding cover, and
    then dividing by total acres.

    This decision is well worth a read for those of you who want to get a flavor for the kinds of claims made in lawsuits on fuels projects. It seems like when the plaintiffs disagreed with the Forest Service conclusions, they made the claim that the FS violated NEPA and NFMA. Thanks to the FS carefully documenting their logic and conclusions, the decision was affirmed.

    This decision was also an appeal of a lower court decision.

    • Sharon,

      That is my case you are quoting.

      Last week you and I discussed why it is inappropriate to compare the size of a timber sale to the litigation costs/general worth. We challenged the forest plan on a number of grounds in this litigation.

      The area in question contains inventoried old growth that is adjacent to a wilderness study area. It contains important hiding cover for elk and nesting habitat for the northern goshawk. The project area is bisected by a road. The southern portion of the project area is roadless. The plaintiffs offered to drop the litigation if the forest service offered to drop the cutting in the unroaded portions.

      The reason the Project was reduced in size is because it would have resulted in numerous forest plan violations. The Forest Service wasn’t doing it out of the goodness of their hearts; it was just framed that way. Notwithstanding the reduction in size, the project still violates the Forest Plan, thus the lawsuit.

      In terms of the actual substance of the arguments, I believe that the court mischaracterized the claims/arguments made. We are discussing the possibility of an en banc petition.

      I would love to discuss the nuts and bolts of the arguments if you or anyone else is game for it.

  2. I would be interested in exploring the nuts and bolts of the arguments (I may live to regret this, but I think it might be illuminating to people who stand and observe these disputes from the sidelines), but it seems to me that I would be at a serious disadvantage.

    First, the people that know most about the FS point of view, couldn’t talk to me due to the litigation “cone of silence.” This is a big problem as I would have to reverse engineer what their arguments might have been.

    Second, I wouldn’t have access to the administrative record.

    Third, I have never been to the site. To me it would be important to visit the site and get the lay of the land. Perhaps in the company of both you and the FS folks.

    What I am thinking is that this could work if you decide not to do a petition. Then the FS folks can talk to me. Don’t know about a member of the public getting a copy of the administrative record?

    I do like your idea, though, John! Let’s think about how we might overcome these obstacles.

  3. We can stick to the arguments made in the briefing and discuss them.

    I can send you the briefing and administrative record.

    We can visit the site.

    I’ll let you know on the petition in the next few weeks.


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