NFS Litigation Weekly July 20, 2018

Litigation Weekly July 20

Plaintiffs’ claim that the Forest Service violated the Fifth Amendment by taking its property when it restricted access to inholdings after flooding was not ripe for review because there has not been a final agency decision on possible reconstruction of the roads.  (Fed. Cir.)

The USGS decision to not mark a cable 40 feet above a wild and scenic river on the Prescott National Forest, which led to the death of occupants of a helicopter that struck it, was considered a “discretionary function,” and the government could properly claim sovereign immunity from tort claims.  (9th Cir.)

(New case.)  Plaintiffs are seeking records related to the establishment of a Federal Advisory Committee that is addressing issues they view as contributing to privatization of national parks, and the Park Service has failed to respond within the statutorily mandated 20 days.  (D. D.C.)


BLOGGER’S BONUS:  Friends of the Wild Swan v. Kehr (D. Mont.)

The Beaver Creek Landscape Restoration Project on the Flathead National Forest was upheld by the Montana District Court on July 16.

  • Adjacent projects were not “cumulative actions,” potentially triggering a single EIS instead of separate EAs, because they were initiated in different years and there was no evidence of the Forest trying to segment a single project to avoid triggering an EIS.
  • The cumulative effects analysis of the two projects was adequate because it met the “bare minimum” of explaining “why the combined impact would not be significant.”
  • The project complied with forest plan requirements for road density in grizzly bear habitat by meeting standards for no net loss of habitat security and providing a “net gain” towards meeting security objectives by closing roads.
  • The Forest properly considered roads committed to “intermittent storage” to be closed for the purpose of the forest plan standard because they would be reclaimed so they no longer function as roads (though they could be reopened in the future).
  • The EA provided sufficient information to conclude that the project complied with an elk standard for road density.
  • Acquisition of private lands in the project area subsequent to consultation on the forest plan road density standards did not require reinitiation of consultation under ESA because the prior consultation had already contemplated improvements of road density in these areas (even though the forest plan did not apply to them at the time).


2 thoughts on “NFS Litigation Weekly July 20, 2018”

  1. The “Court of Law” is obviously not in favor of looking at THE FOREST, instead of the trees the extraction industry profits from. Ignoring cumulative effects, even at the “bare minimum” WILL make a significant impact in the long term. Such a short sighted vision of forest management signals the worst possible outcomes for the forests and the planet as a whole.. Roads are built on USFS PUBLIC land to facilitate logging. Their detriment to a watersheds and fisheries is unqualified and should be regulated under the Clean Water Act. Besides which – where, oh where, is the monitoring data required by law from every National Forest System? Severely lacking. If you don’t know where you are, how to you figure out where to go?

    • That’s quite a ‘broad brush’ you got there. Be careful, because paint splatters, when you try to get too much coverage, too fast. If they do meet the law, as judged by the courts, there is nothing else to do but accept it, instead of pointing fingers and namecalling.


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