NFS Litigation Weekly September 28, 2018

Forest Service summaries:  Litigation Weekly sept 28

The Santa Fe National Forest must reinitiate ESA consultation on the effects of its 2012 travel management decision on the subsequently listed Jemez Mountain salamander.  (D. N.M.)

The Olympic National Forest did not explain why it was not feasible for the Navy to use private land for electronic warfare training, as required for issuance of a special use permit by its forest plan (but further briefing will be allowed).  (W.D. Wa.)

A magistrate judge agreed that the Santa Fe National Forest could deny a request to put a new telecommunications facility on Tesuque Peak.  (D. N.M.)

(New case.)  Off-road vehicle plaintiffs challenge the West Delores Roads and Trails Travel Management Project on the San Juan National Forest.  (D. Colo.)

The U. S. Fish and Wildlife Service improperly delisted the threatened Greater Yellowstone Ecosystem population of grizzly bears.  (D. Mont.)

The Lewis and Clark National Forest took too long to cancel oil and gas leases in the Badger-Two Medicine “traditional cultural district” due to NEPA deficiencies.  (D. D.C.)


Blogger’s note on the FSEEE case:  One of the other issues was whether another forest plan requirement was met that “interests and needs of the general public shall be given priority over those of the applicant.”  The Forest Service was upheld on this point because the Navy’s operating procedures require that they relocate if a camper is occupying the mobile emitter truck site, and the public user wishes.  I’m imagining myself telling the Navy to get lost.

Blogger’s bonus:

The BLM appears to have violated FLPMA and when it issued new procedures for public participation in oil and gas leasing in areas identified as greater sage-grouse special management areas in land management plans (as amended by the Greater Sage-Grouse Plan Amendments), and a preliminary injunction against their use for future leases was granted.  (D. Idaho)

The U. S. Fish and Wildlife Service must reconsider its decision to not list the species, found in California and Oregon forests, under ESA.  (N.D. Cal.)


5 thoughts on “NFS Litigation Weekly September 28, 2018”

  1. The Forest Service has prevailed in the FSEEE case. It convinced the court that it had in fact considered the feasibility of using private land prior to making its decision. The FS was able to provide records of that process that had not been included in the official administrative record. The court allowed supplementation of the record to avoid a remand that would make the FS do something it had already done. It held:

    If the Forest Service had simply explained its reasoning in the record, much work and litigation may have been avoided. However, “its failure to give full contemporaneous explanations does not amount to an abuse of discretion or otherwise invalidate its actions” (quoting another case).

    • FSEEE has appealed to the Ninth Circuit.

      To clarify, the FS didn’t “provide records” that had not been included in the official administrative record. Instead, the FS filed two post hoc affidavits of what it claims happened during the planning process. Neither affidavit included or referenced any contemporaneous documents.

  2. That could be an important distinction. It sounds to me like this is a disagreement about the facts of what occurred, which should not be resolved by summary judgment. Having a complete administrative record would have avoided this problem.

  3. Andy, what is it about this project that caused you to not want it on FS land?
    “The permit allows the Navy to park mobile emitter trucks at 11 designated sites alongside
    logging roads within the national forest. AR205579. On a typical day, three trucks will be
    present in the national forest at a time. AR205579. Once a truck is parked, Navy personnel set up
    a safety zone around the truck using warning tape and signage. AR205579. They then begin
    operations for an average of 12 hours each day, 250 days of the year. AR205579, 205586. All
    mobile emitter sites are within the Olympic Military Operations Areas, which is airspace
    designated for Department of Defense training. AR188404. “


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