NFS Litigation Weekly May 18, 2018

Litigation Weekly May 18

(Update.)  Plaintiffs asked for an injunction pending an appeal to the Ninth Circuit of the district court’s denial of a preliminary injunction against the North and South Pioneer Project on the Boise National Forest.  (D. Or.)

(New case.)  Environmental plaintiffs challenge the North Hebgen Project, up to 5,670 acres of commercial and non-commercial logging, on the Custer-Gallatin National Forest.   They also challenge a 2015 amendment to the forest plan, Amendment 51, which they say removed or modified 56 goals and standards in the Gallatin Forest Plan.  (D. Mont.)

(New case.) A doctor seeking to treat a tree-sitter protesting the Mountain Valley Pipeline Project has sued the George Washington and Jefferson National Forest for a closure order that allegedly violates his Constitutional rights to provide medical treatment (freedom of speech, freedom to exercise religion and due process). (W.D. Va.)

(New case.) Plaintiff environmental groups seek a supplemental EIS for the Kulu Timber Sale on the Tongass National Forest.  (D. Alaska)

(New case.)  Environmental groups and landowners challenge 287 oil and gas leases of close to 150,000 acres in previously undeveloped parts of Montana that were based on four EAs.  (D. Mont.)

3 thoughts on “NFS Litigation Weekly May 18, 2018”

  1. I need to say a little more about the Amendment 51 issue in NEC v. Martin. It is a fact, according to the EA, that the amendment removes or modifies 56 goals or standards. The Forest refers to this as the “clean-up” amendment: “In general, the primary reason for this proposed amendment is to remove or correct outdated, ineffective or unnecessary direction from the Gallatin Forest Plan, given that full revision of the Plan is currently scheduled to be completed in 2019… The proposed amendment is only designed to make the needed corrections and is not an attempt to change the underlying substance of the 1987 Forest Plan.”

    The complaint in this lawsuit describes nine of the changes (starting at paragraph 128) that arguably either change the substantive effects directly or change procedural requirements that will lead to substantive effects. And they don’t mention the fact that this amendment completely replaced the existing grizzly bear management strategy. There are some serious questions about whether the public was adequately informed about the true scope of this amendment, and whether its effects were adequately analyzed and disclosed.

    It may seem like a good idea to “clean up” a plan before revising it, but the scope and consequences will still determine the process that is required, and some things are probably beyond the scope of what could be considered “clean-up” (that would not require an EIS). Especially with the 12/16 amendments to the 2012 planning rule that make it clearer that amendments “directly related” to plant and animal diversity would trigger the new requirements of the 2012 rule, meaning it would probably be better to make those changes when plans are revised.

  2. The district court has issued a temporary restraining order against the project until a preliminary injunction hearing can be held on July 20. The court focused on the amendment issue: “Plaintiffs allege that Defendants failed to conduct Endangered Species Act (“ESA”) consultation on Gallatin Forest Plan Amendment 51, the Forest Plan controlling the North Hebgen Project, despite the fact that the changes included in the Amendment “collectively reduce the quality and amount of `old growth'” forest to the detriment of lynx, a species designated as threatened under the ESA.”


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