(The header links to the Forest Service summary, and each bullet links to an associated legal document.)
The court denied a Forest Service motion to dismiss claims that the Stanislaus N. F. violated the Clean Water Act and the forest plan in relation to its management of three grazing allotments. (E.D. Cal.)
The court denied a motion for a preliminary injunction by the current concessionnaire to stop the bidding process for a 5-year permit to run the shuttle service for the Sabino Canyon Recreation Area on the Coronado N. F. (D. D.C.)
(update) The Ouachita N. F.’s denial of a permit to construct a road in the Upper Kiamichi Wilderness has been appealed to the 10th Circuit. (E.D. Okla.)
(update) Plaintiffs have voluntarily dismissed their challenge to the Westside Fire Recovery Project on the Klamath N. F. (N.D. Cal.)
(update) The district court agreed to stay pending appeal its order to destroy wolf data illegally obtained by the State of Idaho using helicopters from the Frank Church River of No Return Wilderness on the Salmon-Challis N. F. (D. Idaho)
(new case) The Forest Service is a signatory to the 2000 Interagency Bison Management Plan, and the plaintiff alleges that a tribal notice of intent to hunt bison is significant new information requiring supplemental NEPA analysis for the plan because more bison hunters in the concentrated area established by the plan would create a safety risk to recreationists. They seek to enjoin the activities that keep bison within the concentrated area. (D. Mont.)
6 thoughts on “Litigation Weekly – February 16, 2018”
This case probably isn’t on the Forest Service radar, but I thought it had couple of things that might be relevant. It involved a 10-year water transfer program (Aqualliance v. U. S. Bureau of Reclamation, E.D. California, Feb. 15, 2018). It mostly address the California Environmental Quality Act, which is similar to NEPA.
Use of climate change science: The record “explains that snowpack and streamflow is predicted to decline.” “Nonetheless, the FEIS/R fails to address or otherwise explain how this information about the potential impacts of climate change can be reconciled with the ultimate conclusion that climate change impacts to the Project will be less than significant.” The explanation that was provided was, “Because of the short-term duration of the Proposed Action (10 years), any effects of climate change on this alternative are expected to be minimal.” The court also found that it was arbitrary to use average annual precipitation projections (showing no change in reservoir inflow) when changes in seasonal distribution may have significant effects.
Open-ended decisions: The court held that exceptions to monitoring and mitigation requirements using the language “where possible” and “unless site specific information indicates a different interval should be used” left the public “guessing what these exceptions mean and, critically, the extent to which monitoring might be lessened and under what circumstances.” Moreover, “The presence of such open-ended exceptions makes it impossible for the Court to find that the monitoring program is enforceable or will be effective at avoiding potential significant impacts.” In this case the government had invoked the use of monitoring as mitigation to reach its effects conclusions. The same logic should apply to the use of open-ended forest plan components in determining the effects of the plan under NEPA (especially standards, which are by their nature mitigation measures).
“Nonetheless, the FEIS/R fails to address or otherwise explain how this information about the potential impacts of climate change can be reconciled with the ultimate conclusion that climate change impacts to the Project will be less than significant.” The explanation that was provided was, “Because of the short-term duration of the Proposed Action (10 years), any effects of climate change on this alternative are expected to be minimal.”
10 years, not much climate change impact… that makes sense to me. So the agency explained their thinking and it sounds like the court disagreed with it. Which sounds like “not agency deference” on a technical subject. I wish we had a law student intern for the blog.. .who would develop a table of decisions, topics and circuits, and see when and where courts defer or not.
The court didn’t say it was significant; just that the agency didn’t explain it well enough. So it’s not about overruling agency expertise; it’s about documentation. That’s a pretty common fault of agencies and outcome of court cases. I agree that this might be a case where a different judge might be more lenient. I don’t think this one did a good job of explaining HIS rationale. (He didn’t directly reference this sentence about the 10-year duration.) So I’m not sure this is the best example of what you are looking for.
Since you asked, I took another look at the opinion. I think the court is saying that the government failed to connect the dots between “snowpack and streamflow is expected to decline” and why a short-term duration of that necessarily means less than significant effects. He wasn’t willing to just assume “10 years, not much climate change impact” (your paraphrasing) without something more in the record to substantiate this. He draws parallels to a prior case. I’ve provided a link to the opinion so you can get the whole story if you want it (this discussion is at the end of “(2) NEPA Analysis”).
Thanks, Jon. I really appreciate your wading through this somewhat tedious and heavily technical case.
“Snowpack and streamflow amounts are projected to decline because of less late winter precipitation falling as snow and earlier snowmelt (Melillo, Richmond, and Yohe 2014). In California, snow water equivalent (the amount of water held in a volume of snow) is projected to decrease by 16 percent by 2035, 34 percent by 2070, and 57 percent by 2099, as compared to measurements between 1971 and 2000 (Melillo, Richmond, and Yohe 2014). By the end of the century, late spring streamflow could decline by up to 30 percent (CEC 2011).
AR 25864 (emphasis added) . Plaintiffs’ comments on the DEIS/R suggested that the Lead Agencies use these figures to calculate projected loss of snowpack over the life of the project, as snowpack is a factor in surface water supply projections. AR 21832. Instead of doing so, the FEIS/R acknowledges that “changes to annual temperatures, extreme heat, precipitation, sea level rise and storm surge, and snowpack and streamflow are expected to occur in the future because of climate change,” but concludes: “Because of the short-term duration of the Proposed Action (10 years), any effects of climate change on this alternative are expected to be minimal. Impacts to the Proposed Action from climate change would be less than significant.” AR 25874. Again, this conclusion appears to be in conflict with the data disclosed in the FEIS/R itself. With snow water equivalent predicted to decline by 16 percent by 2035, one cannot escape the obvious deduction that snow water equivalent is likely to decline by some (possibly significant) fraction of 16 percent by the end of the Proposed Action in 2024.”
It looks like the agencies believed that the proportion of the 16% to occur in the next 10 years (based on when the EIS was written) was “NEPA not significant” as opposed to “English not significant” nor “statistically not significant.” So they should have made it clearer why they thought it was not NEPA significant.
Of course the original FEIS was about:
“The EIS/EIR addresses transfers of Central Valley Project (CVP) and non-CVP water supplies that require use of CVP or State Water Project (SWP) facilities to convey the transferred water. Water transfers would occur through various methods, including, but not limited to, groundwater substitution and cropland idling, and would include individual and multi-year transfers from 2015 through 2024.” It was supposed to end in 2024, 11 years before 2035. So a lot depends on whether the projected future declines are thought to be linear or not.
It is a fine line between “they didn’t explain it well enough” and “I disagree with their significance call”
More pragmatically, at the end of the day, does the significance of climate change matter? Will they just go ahead and analyze it and come back to the court? (that’s what we used to do). Because I don’t see folks losing their interest in, or stopping water transfers in California. https://www.usbr.gov/mp/cvp/about-cvp.html
“They didn’t explain it well enough for me to agree with the conclusion.” You are right that it’s a fine line, but agencies should know (from their NEPA training) that they have the burden of providing convincing rationale (not just for the decision-maker, but for the general public, and the most skeptical judge).