NFS Litigation Weekly October 26, 2018

Forest Service summaries:  Litigation Weekly Oct 26

A preliminary injunction was denied for the Quartz Integrated Project on the Umpqua National Forest because the Forest adequately addressed new information about red tree voles.  (D. Or.)

The Supreme Court stayed further proceedings in the “kids’ climate change” case.

(New cases.)  Both cases challenge the decision to sell wild horses from the Modoc National Forest without complying with or formally changing a policy that prohibits commercial slaughter of the horses.

(New case.)  Plaintiffs claim that authorization of activities that contribute to climate change violate the U. S. Constitution.  (D. Or.)

(New case.)  This case involves that Seiad-Horse Risk Reduction Project on the Klamath National Forest involving hazard tree removal and post-fire salvage logging and compliance with the forest plan and NEPA.  (E.D. Cal.)


Blogger’s notes:

The Cascadia case was discussed here when it was filed.  The case involves the application of “survey and manage” requirements in the Northwest Forest Plan to red tree voles. Red tree vole nesting sites are protected from logging unless the land manager determines the site is “non-high priority” (“NHP”).  Plaintiffs objected to the NHP designations for the project area.  Additional surveys occurred after the objection process and the Forest subsequently released “amendments to the EA” to “designate” additional NHP sites.  There was no public opportunity to review or object to these sites.

I am not that familiar with the workings with the Northwest Forest Plan, but I see some problems here.  “Designation” of sites for long-term management, especially if they would be suitable for timber production, is a forest plan decision, so I think what is really required here is a plan amendment process that would allow full public participation in the designation of each site.  In addition, the criteria for designating NHP (presumably from the NWFP) seem to all apply at a large scale without considering the importance of the actual site being designated, so it is hard to see any rationale for the designation (and the court opinion doesn’t provide one).  The court then finds that “plaintiffs had multiple opportunities to comment on the FS proposal to designate red tree vole sites as NHP,” but none of those occurred for the post-objection additions.  The court regards all of this as “minor changes.”  While viewing this as a NEPA problem might allow the new information to be considered not significant enough to trigger a supplemental EA, minor changes in a forest plan nevertheless require an amendment process.  Maybe someone could explain how this is supposed to work.

The public also had no opportunity to review or comment on how the Forest viewed changes in the resource management plan for adjacent BLM lands.  The changes would result in logging in 8 of the 27 red vole sites originally protected by the BLM plan, but the Forest determined (and the court agreed) that this “did not alter the number or spatial distribution of likely extant sites or records, or the amount or proportion of suitable habitat in reserves, and did not compromise the ability of other standards and guidelines or elements of the NWFP to provide a reasonable assurance of species persistence at the watershed scale.”  That feels like it dodged the question, but I could buy the BLM assertion that these sites were actually a small part of the overall watershed.

Finally, in looking at the other factors relevant to granting an injunction, the court seems to discount the irreversible environmental damage because “that fact is true in any environmental case.”  And it seems to punish plaintiffs for participating in settlement negotiations instead of filing a motion for an injunction earlier.  The court does explicitly qualify its holdings as being “at this stage” (meaning for a preliminary injunction), and a fuller airing of the facts might sway the court in the plaintiffs’ favor, but meanwhile logging is ongoing.

Here’s another case that I don’t think has been included in a FS summary.

“San Juan Trail Riders, based in Durango, along with national groups Trails Preservation Alliance and Access Preservation Association, ask the court to set aside a record of decision by the Dolores Ranger District that closed 30 miles of trails to motorcycles and implemented restrictions on others within Rico-West Dolores recreation area.”


13 thoughts on “NFS Litigation Weekly October 26, 2018”

  1. Jon, as I read this, it’s one of these “new info is coming in, how do you deal with the new info in making a decision, and after the decision is made?” That’s one of the reasons forest plans and amendments can be cumbersome. New things are always being discovered and yet projects go forward. People who don’t want a specific kind of project will say “we need to reopen” while others may say “this lies within what we looked at.”
    I don’t know how the NWFP relates to individual forest plans, maybe someone can enlighten us..?

    When I worked in R-2, having left six years ago now, I remember that the Dolores travel management came to the RO even back then, so it has been an ongoing dispute. I don’t know what makes some travel management more controversial and others less so. Perhaps a local person can enlighten us.

    • The point I wanted to make is that there is a difference between new INFORMATION (number/location of sites) – a NEPA issue, which has a defined set of rules for determining its significance and then whether further public involvement is required; and a new DECISION (designation of sites for future management) – a NFMA issue, which has a defined set of rules for public involvement. The court treats this as the former, but I think it is the latter.

      I understand that the NWFP was a multi-forest amendment that is now part of each amended forest plan.

      • I guess I’m thinking that NFMA is too cumbersome for designation of sites.. you find a new site, you do public involvement and amend the plan? It seems like overkill.

      • The Northwest Forest Plan amended all of the Forest Plans in R5 and R6 that are within the range of the Northern Spotted Owl. It added two new land management areas – Riparian Reserves and Late Successional Reserves. It also added other Standards and Guidelines (like those for the Survey and Manage Species) including those for standing and downed dead wood, green tree retention after regeneration harvest, and probably others that I am forgetting off the top of my head. Survey and Manage has been rather interesting – R6 has tried to amend that portion of the NWFP several times and has not been successful once they were sued. Survey and Manage gives protections that are greater than those for Endangered and Threatened Species under ESA to a long list of uncommon (or thought to be uncommon) species.

        • Whether S &M protections are “greater than those for Endangered and Threatened Species under ESA” is probably debatable and variable. With regard to preventing impacts, the bar under NFMA is to maintain a viable population, while under ESA it is to prevent extinction, so more protective measures might be needed to maintain more individuals. On the other hand, a species that is listed because it is close to extinction may require more drastic measures. I would interested in specifics.

  2. The Forest Service should split off the Hazard tree projects, and expedite them, not tied to the more controversial salvage project(s). I read through the complaint and didn’t really see any reasoning on why the hazard tree project is ‘bad’, other than the road goes through “habitat”. Functioning roads must have their buffers, where dead trees, ditches and culverts must be managed, and not abandoned.

    When I worked on the Biscuit Fire, we designated clumps of large diameter snags for wildlife, the loggers got the rest of the mortality. (Of course, the amount of mortality grew, after we designated the snags).

    The complaint makes a lot of assumptions about the logging and the future. Never have I worked on a salvage project which mandated clearcuts. Sure, there might be some areas that look like clearcuts, after the snags fall down. Power lines, canals and roads often require the cutting of ALL dead trees but, those aren’t clearcuts, either. A Judge should ask the Forest Service, point blank, if their projects include formal clearcuts. Then the Judge should ask the plaintiffs for evidence of impending clearcutting. Of course, there isn’t any. Remember, clearcuts include removing healthy green trees, too.

  3. I was going to agree with your point about hazard trees being less controversial, but here is the Forest Service language about this quoted from the complaint: As a result of project implementation, northern spotted owl (NSO) “habitat would be impacted in the short-term…Since roadside hazard tree removal is based upon where roads traverse the landscape, management actions cannot avoid NSO activity centers or their core use areas. Because of this, impacts from roadside hazard treatments are likely to be greater than salvage harvest management actions and may have more long-term negative results.” Maybe the issue is whether the trees used by owls are really “hazards.”

    About clearcutting, the complaint says, “the Forest Service admitted that post-fire clear-cut logging will result in degraded terrestrial and aquatic habitat conditions, increased sedimentation of water quality limited streams, and decreased landscape connectivity.” They also state that retained snags would be outside of harvest units, which makes the harvest units sound like clearcuts (and there is no mention of green tree retention). But what they are called really isn’t an issue unless the forest plan has restrictions on their use.

    • I highly doubt that those statements by the plaintiffs are, in fact, true. Again, every salvage project I have ever worked on had snag guidelines within cutting units. Whether they were clumped, inside the unit, or spread out over the unit, they specify so many snags per acre. It’s always good to ‘place’ wildlife snags in stream corridors, which are fully-contained within the unit. Stream buffers that are also unit boundaries don’t count. It’s also good to leave snags in difficult spots.

      Regarding the road, it depends if it is an old road, being re-opened, or a temporary road, or in a bad spot. Sometimes, roads are so old that there is even merchantable timber growing ON it. Is it a road that is open to the public? Is it “For Administrative Use Only”? Additionally, there is always some sort of “Limited Operating Period” in the vicinity of active nests. The LOP could be waived after a protocol confirming non-existence, during the nesting period. If it is in a burned area, then it probably is no longer used as nesting habitat. Burned nesting habitat only remains as nesting habitat on maps. Owls and goshawks use existing nests, in green forests.

      The Forest Service could freely-admit that clearcut salvage logging is bad, knowing that they don’t do that kind of logging. All the Forest Service has to do is tell the Judge, under oath, that no clearcuts exist in the projects’ plans. The marking guidelines always include snag requirements. It’s no wonder that the injunction was rejected. The areas to be site-prepped are probably in the fuelbreak or hazard tree portions, to help re-establish a healthy forest, instead of a perpetual brushfield in the WUI.

  4. Klamath Siskiyou has to show they are doing something or who needs them. They protest everything when they can. I am 100% sure there is no shortage of snags out there. I imagine if you looked at the project on the ground you would be asking yourself, why is the FS doing so little.

  5. Here’s an update on Animal Legal Defense Fund wild horse case.

    “The Forest Service may sell about 165 wild horses currently in holding at California’s Modoc National Forest without limitations on the future use of the animals — even if that means some horses could end up in slaughterhouses.

    The wild horses were part of a large group rounded up and removed from the national forest in October and November. About 250 horses were then transferred to a newly built corral — called the Double Devil Wild Horse Corral — on the Modoc site, instead of to a nearby holding facility operated by the Bureau of Land Management.

    The distinction is significant. That’s because Congress for years has added provisions to Interior Department appropriations bills that forbid BLM from using euthanasia on healthy horses and burros and limit its ability to sell animals without limitations on their future use. But the appropriations language covers only Interior, and thus BLM; the Forest Service is under the Department of Agriculture.”


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