Judge rules in favor of U.S. Forest Service

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If people want federal agencies to not break the law, then the FS is not breaking the law and I can’t see that the lawsuit has helped that to happen, but maybe I’m missing something.

Here’s the link, and below is an excerpt.

In a Friday ruling, District Judge Owen Panner said the Forest Service is complying with laws because it has agreed not to thin in areas that have a special designation as “restricted riparian” land.
On land labeled “restricted watershed,” the Forest Service plans to do helicopter logging, which will cause minimal impact to the soil, according to new testimony in the case from Don Boucher, the Forest Service’s project manager.
Any exposed soil will be promptly covered with slash from thinning operations, Boucher said.
Panner said those adjustments to avoid “restricted riparian” land and cover exposed soil in “restricted watershed” areas are allowed.
In 2012, U.S. Magistrate Judge Mark Clarke had ruled against Navickas and Lininger on other claims regarding the project, but had upheld their claim that the project could expose too much soil, which could lead to erosion.
On Monday, Navickas said he was disappointed that Panner did not uphold the previous decision.
Navickas said he doesn’t think that scattering branches from thinning operations on exposed soil protects the soil as much as leaving standing trees intact.
“The Ashland watershed is for water production. It’s not timber resource land,” he said.
Navickas said he and Lininger plan to appeal to the 9th U.S. Circuit Court of Appeals.
The city of Ashland and the Nature Conservancy are partners with the Forest Service on the Ashland Forest Resiliency Project.
Last week, the City Council approved passing up to $975,000 in federal economic stimulus money to Columbia Helicopters to do thinning work on Forest Service land in the watershed as part of the project.
The council also approved a contract of up to $335,000 — also funded by stimulus dollars — for Columbia Helicopters to thin the Winburn Parcel, a 160-acre, city-owned island of forested land in the middle of the watershed.

Also, I didn’t know that there was a legal concept that any treatments must protect the soil during the treatment as much as not treating. I thought you just had to describe the impacts during NEPA.

He doesn’t think that scattering branches from thinning operations on exposed soil protects the soil as much as leaving standing trees intact.

It seems fair to me that federal court and Forest Service costs be claimed from the plaintiffs. It should be easy to calculate, after all, everyone’s salary is public information. A side benefit is that we would actually learn the costs.

11 thoughts on “Judge rules in favor of U.S. Forest Service”

  1. When any and all plaintiffs lose in court, they should incur the costs incurred by the defense. Are you saying we should ignore centuries of American legal precedent and take on what is known as the “English rule?”
    Do you think any private citizen would then be willing to sue a major corporation, such as BP that has engaged in a prospective illegal act? To chance personal bankruptcy to pay the costs of $500/hour to high power corporate attorneys-can you imagine the incentive that corporation would have to drag out the case as long as possible to incur more billable hours?
    Based on the same arguement, would any citizen then be willing to sue the US, acting as a “private attorney general” for any reason?

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  2. Excellent points Craig.

    Sharon, you stated, “It seems fair to me that federal court and Forest Service costs be claimed from the plaintiffs.”

    Would it also “seem fair to you” that federal court and Social Security Administration costs, or Veterans Administration costs, be claimed from the plaintiffs in those cases? (ie veterans, or an elderly widow)?

    I mean, where would you draw the line with some of these thoughts about EAJA and court costs?

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    • My understand is that any attorney who files what a judge determines to be a “frivolous” lawsuit could be dis-barred or face other punishing actions. The term “frivolous” lawsuit is often tossed out rather carelessly on this blog from time to time. Does anyone have any documentation of specific examples of where an attorney representing an enviro group has actually been found, by a court of law, to have filed a “frivolous” lawsuit? If not, why use the term and confuse things?

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  4. Sharon: You say

    “Also, I didn’t know that there was a legal concept that any treatments must protect the soil during the treatment as much as not treating. I thought you just had to describe the impacts during NEPA.”

    A quick review of the Court’s order indicate that the Forest Plan contained requirements concerning erosion and soils in restricted watersheds that the plaintiffs were attempting to enforce. So it looks like the claim at issue was a substantive NFMA claim – did the FS action comply with plan standards – as opposed to a procedural NEPA claim (which would evaluate only whether damaging impacts were disclosed).

    Since the first round of plans in the 1980s, the Forest Service has moved from plans with more enforceable, numerical standards to plans with fewer and fewer standards in order to allow itself greater management discretion. Still, some plans contain standards, and citizens will attempt to hold the agency accountable when they believe the agency is violating its plans. The hallmark of a healthy democracy is one where citizens have the right to hold their government accountable to the law.

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