Litigation Weekly – January 12, 2018

Litigation Weekly Jan 12

A Freedom of Information Act case.  Documents created by contractors in conjunction with their preparation of an EIS for the Wolf Creek Land Exchange on the Rio Grande National Forest, but never provided to the Forest Service, were not “agency records” subject to release under FOIA.  (10th Cir.)

(New case.)  Reauthorization of livestock grazing would allegedly “impair the viability and recovery” of the federally threatened Spalding’s catchfly in the Hells Canyon National Recreation Area on the Wallowa-Whitman National Forest.  (D. Or.)

(Notice of intent to sue under the Endangered Species Act.)  Earthen berms used to close roads in the Pilgrim Project on the Kootenai National Forest fail to effectively prevent motorized access to protect grizzly bears as required by the forest plan’s access requirements, which results in unauthorized take of a listed species.

The Migratory Bird Treaty Act allows the U. S. Fish and Wildlife Service to kill barred owls (protected as migratory birds) to determine whether that practice would benefit spotted owls listed under ESA.  (9th Cir.)

Plaintiffs did not have standing to sue USDA Wildlife Services for killing wolves in Idaho because a court decision would not stop the State from using other means to kill the wolves.


10 thoughts on “Litigation Weekly – January 12, 2018”

  1. I thought the Wolf Creek one was kind of philosophical. If a tree falls in the woods.. does it make a sound? If a document is not seen by the government, is it a government document?

    • It was relied on by the government, in some form, so I don’t know why they wouldn’t require the contractor to provide everything it produced under the contract. Without reading the opinion, maybe it’s an ok literal reading of the law, but I think it kind of skates around the intent of open government. (And don’t you wonder what the government hadn’t seen that they felt was important enough to fight over?)

      • No I don’t think it was relied on. (Note: I was involved in earlier aspects of Wolf Creek and earlier NEPA contracts related to it). It seems to me that it is the responsibility of the government to check the contractor’s work, email the contractor about questions, in such a way that the government assures that the work product meets the requirements.
        If work actually went toward the decision, it would be communicated to the FS and all that information would be FOIA-ble. But how can info go toward the FS decision if it’s not communicated to the FS?
        Contractor has internal discussion and communicates to FS- “we have analyzed lynx and found that they ….”
        FS goes back and says “we don’t understand how you got … can you explain?”
        Contractor has internal discussion and communicates to FS – “this is our explanation”. FS either accepts it or doesn’t and writes it up.
        Again, how could the internal discussion of the contractor be relevant to the decision when it was never communicated?
        If I were a government attorney, I would suspect that it was a fishing expedition to find more interesting items (like Redskin tickets or whatever) not particularly relevant to the decision.

  2. Re: FOA v FWS

    The current research effort to shoot Barred Owls to see if that improves the NSO population trend is a senseless waste of money since the research results can not be used to justify the continued killing of BO’s regardless of the research findings. So the current “takings” are senseless no matter what the research results are.

    What am I missing?

    • I don’t see this court objecting under the MBTA to the continued government killing of barred owls (beyond the “experiment” stage) as long as it doesn’t start to threaten that species. But I agree that if that is true, why was the experimental nature even an issue in the case? (Maybe the opinion addresses that, but I haven’t read it. Maybe it wasn’t really an issue, but just a way of describing the government action.)

  3. Here’s an article on the Hell’s Canyon case:

    “Darilyn Brown, executive director of the Greater Hells Canyon Council, said delisting Spalding’s catchfly is the ultimate goal. “The area in dispute is really just a small fraction of the Wallowa-Whitman National Forest,” Brown said. “However, it could have a big impact on the recovery of Spalding’s catchfly.””

    I think it’s worth a look at the comment on the article from a former contributor to this blog: “Not about saving a species, but about eliminating economic activity.” If I didn’t know this was a real person, I’d suspect the Russians of promoting divisiveness by ignoring the facts of the situation to question someone’s motivations. Not helpful.

    • Well.. I took a look at their website and there is a great deal of criticism of “industrial logging” in the Lostine Project. They say that some logging for certain purposes is OK but not “industrial”kind of logging. I don’t know what “industrial” is.. but it sounds bad and it probably related to economic activity. And I haven’t been talking to Russians..

  4. So you seem to also be accusing this group of of having a motive of “eliminating economic activity” rather than protecting at-risk species. I think I would want more facts before I accuse someone of lying.
    Here’s another statement from the group: “Greater Hells Canyon Council (formally Hells Canyon Preservation Council) did not oppose the Sparta project. In fact, we are actively working with industry, local communities and other interests in our local forest collaboratives and elsewhere to help design projects that improve forest health and support local communities.”

  5. “A federal judge has ruled that grazing should be allowed to continue on four allotments in the Hells Canyon National Recreation Area. Magistrate Judge Patricia Sullivan on March 22 released her findings on a lawsuit brought by the Greater Hells Canyon Council of La Grande claiming cattle grazing on the Hells Canyon allotments were imperiling the Spalding’s catchfly, a rare wildflower found only in the inland Northwest.”


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