NFS Litigation Weekly–August 11, 2014

Court Decisions

1. Phase II Amendment ǀ Region 2
Circuit Court Finds in Favor of Forest Service on All Claims in Challenge of the Phase II Amendment and Related Projects on the Black Hills National Forest in Biodiversity Conservation Alliance v. Jiron. On August 5, 2014, the United States Court of Appeals for the Tenth Circuit ruled in favor for the Forest Service on all claims raised by Appellants, Biodiversity Conservation Alliance and Brian Brademeyer, in their consolidated appeal of unfavorable decisions from the United States District Courts for the Districts of Wyoming and Colorado regarding challenges of the Phase II Amendment and nine specific projects on the Black Hills National Forest. In its 103-page opinion, the Tenth Circuit repeatedly deferred to Forest Service interpretation of rules/regulations (namely the viability mandate of the 1982 Planning Rule and modifications to the 1982 Rule by the 2005 Planning Rule) and to the Agency’s technical and scientific expertise. On Appellant’s NFMA claims (stemming from the District of Wyoming case) the Court found that the Forest Service’s interpretation of the species viability mandate in §219.19 of the 1982 Rule and §219.14(f) of the 2005 Rule was entitled to deference and that the Forest Service complied with its interpretation of the viability mandate in regards to specific claims made by Plaintiffs regarding northern goshawk, snag-dependent species, and sensitive plants. On NEPA claims (stemming from the District of Wyoming Case) the Court found that the Forest Service had considered a reasonable range of alternatives (i.e. that consideration of a no-grazing alternative was not required as it would not meet the purpose and need for the Phase II Amendment) and that the Forest Service took the requisite hard look at both sedimentation in waterways’ effects on sensitive plants/aquatic fauna and at historical grazing practices before re-authorizing use on four specific projects (further, the Court found that even though the record indicates that the Forest Service did consider historical grazing practices, it was not required to do so under NEPA’s hard look requirement). Finally, the Court found that the District of Colorado did not abuse its discretion in denying Appellant’s motion claiming a breach of the 2000 settlement agreement (requiring the Forest Service to remedy deficiencies in the 1997 Black Hills Forest Plan) based on laches. (13-1352, 10th Cir.)

2. Wildlife ǀ Region 1
District Court Denies Plaintiffs’ Motion for Preliminary Injunction Pending Appeal of the Cabin Gulch Project on the Helena National Forest in Alliance for the Wild Rockies v. Kruger. On August 6, 2014, the United States District Court for the District of Montana denied Plaintiffs, Alliance for the Wild Rockies and Native Ecosystems Council’s motion for a Preliminary Injunction Pending Appeal of the Cabin Gulch Project on the Helena National Forest. Plaintiffs’ motion focused on their ESA claims regarding elk and grizzly bear while making no mention of NEPA or NFMA claims initially raised in the case. The Court, in denying Plaintiffs’ motion, expounded on the standard of review for injunctions based on ESA claims and determined that, under this standard: (1) Plaintiffs fail to demonstrate likelihood of irreparable harm to grizzly bears by failing to contend that the Project will irreparably harm any endangered or threatened species (only that their own interests in observing grizzly bears will be harmed); (2) Plaintiffs argument that they have presented a serious question as to whether grizzly bears may be resent in the project area fails to articulate serious questions on the merits; and (3)Plaintiffs conflate their interests with that of the species (i.e. that an injunction is not in grizzly bears’, and therefore the public’s, best interest because an injunction would delay various Project components designed to enhance the environment for grizzly bears). Additionally, the Court found that all Plaintiffs’ claims related to elk fail. (12-00150, D. Mont.)

Litigation Update

1. Recreation ǀ Notice of Appeal ǀ Region 5
Plaintiffs Appeal District Court Decision in Wiechers v. Moore. On August 1, 2014, Plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the Ninth Circuit concerning an Eastern District of California decision that the Forest Service is not required under the Recreation Enhancement Act to provide free parking for visitors who do not intend to use recreation site amenities. (13-223, E.D. Cal.)

Sharon’s note: Before I retired, I was involved with early phases of the Black Hills litigation. Notice that the plaintiffs are still dealing with the 1997 plan..17 glorious years of litigation, on what was supposed to be a 20 year plan. It seems to me that the original plan got caught up in political issues. And I personally don’t see that converting political issues to “legal issues” is very helpful to anyone. I guess this is evidence that the FS can spend a lot of time dealing with this even when they are “following the law” ;). And I am hopeful that with the new planning rule this (17 years of litigation on a 20 year plan won’t happen 🙂



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