NFS Litigation Weekly November 30, 2018

Forest Service summaries:  Litigation Weekly Nov 30

The district court upheld the Moose Creek Vegetation Project on the Helena-Lewis and Clark National Forest with respect to Healthy Forest Restoration Act compliance.  (D. Mont.)

  • Greenpeace v. Stewart

The Ninth Circuit Court of Appeals reversed the district court and the Forest Service on four timber sales on the Tongass National Forest because of flawed analysis of deer habitat.  (9th Cir.)

  • Quiet title claims

(New cases – no links.)  Five plaintiffs in different cases seek to quiet title regarding rights to irrigation diversion structures on the Sawtooth National Forest.  (D. Idaho)



(There was no link provided by the Forest Service above, but the article I linked includes a link to the court decision.)  This is a case that has been litigated for “over a decade.”  The 9th Circuit stated, “USFS has been given multiple opportunities to correct flaws in its project analysis and has ignored this court’s guidance.”  I wanted to emphasize the holding on species viability (these are rare deer).  The deer model was flawed because it “was too unreliable to be used in conjunction with the proxy on proxy approach of ensuring species viability.” The court cited the precedent of Lands Council v. Powell from 2005: “Crucial to [the proxy on proxy] approach . . . is that the methodology for identifying the habitat proxy be sound.”  Since the coarse filter approach sanctioned by the 2012 Planning Rule uses habitat as a proxy for species viability, this will place a premium on demonstrating that coarse filter vegetation plan components will provide the ecological conditions needed for at-risk species.  Typical forest plan revision documentation does not seem to take this requirement to demonstrate the soundness of their methodologies very seriously (despite the requirement in 36 CFR §219.9(b)(1) to make this determination).

This is the final step in resolving a case that was begun in 2009 and led to injunctions against several timber sales on the Kootenai National Forest.  The Montana district court held that the Forest had complied with the requirements of the injunction for the Miller West Fisher Project, and it was therefore dissolved.  Plaintiffs conceded all points except one involving the Endangered Species Act – the need to analyze incidental take for grizzly bears that may be harmed outside of their recovery zone.  The Forest relied on the analysis of incidental take done for a grizzly bear access amendment that is now included in its revised forest plan.  The court upheld a “tiered” consultation process, where analysis at the forest plan level is sufficient for projects unless “proposed actions would result in adverse effects to grizzly bears that were not fully analyzed in the first-tier biological opinion (emphasis by the court).  In its concurrence that the project is not likely to adversely affect grizzly bears, the Fish and Wildlife Service determined that, “the proposed action is not likely to adversely affect the threatened grizzly bear in ways other than described in the2011 consultation on the Access Amendment”(emphasis by the court), and that analysis did not need to be repeated.  (D. Mont.)



8 thoughts on “NFS Litigation Weekly November 30, 2018”

  1. I thought the Molloy decision was both worth reading and short. Here are a couple of my favorites.

    “As argued by the Forest Service, it is a unique case where a plaintiff cannot show that a single member of their respective organizations has ever actually been to a project area. However, given Ms. Johnson’s concrete plans for the future, Plaintiffs have shown use of the affected area and that its members, specifically Ms. Johnson, are persons “for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d ”

    Hmm. I guess that’s the difference between “might could” visit and “concrete plans” to visit. Also..

    “On August 1, 2018, this Court held that the Designation did not constitute final agency action and NEPA review was not required because the nature and extent of future, individual projects under the Designation was speculative. (my italics). See 10 Case 9:17-cv-00153-DWM Document 43 Filed 11/19/18 Page 10 of 21 Native Ecosystems Council v. Erickson, CV 17-53-M-DWM, (Doc. 47 at 21-24) (D. Mont. Aug. 1, 2018). P”

    I’ve always thought that about forest plans (which have never been able to foresee what kind of projects will be needed nor funded 15-30 years in advance.) However my understanding is that not only did courts say that Forest Plans needed NEPA , but Rules describing the steps of forest plans also need it. I agree with this judge that it makes sense to look at the impacts of concrete actions, not layers of “might coulds.” Except possibly WFU designations which may be the “final agency action subject to NEPA.”

    • I tend to think that litigating standing for environmental groups under environmental laws is silly. It does seem to turn on somebody saying they actually plan to use a certain area, but somebody could always make plans to do so.

      I would say that the HFRA designation was more speculative than forest plans. The Ninth Circuit has held that, “Notwithstanding the fact that [the LRMP’s] concrete effect might be seriously mitigated at the site-specific level, [it] represent[s] [an] important decision.” The litigation of the planning regulations is also relevant. In the Citizens for Better Forestry challenge to the 2005 planning rule, the district court said that a categorical exclusion could not be used. In the 2008 planning rule, the Forest Service did prepare an EIS, but continued to claim that there were no effects, and the district court reversed them for not analyzing the effects in their EIS.

      I think there remain questions about what kinds of forest plan decisions have effects that would be subject to NEPA. The latter court opinion made it clear that eliminating the species viability requirement would have adverse environmental impacts. It said, “The 2008 Rule eliminates or modifies standards that applied to all LRMPs and site-specific plans… Although the EIS discusses the differences between the various standards, it fails to acknowledge the effect of eliminating the viability requirement.” It should therefore follow that a forest plan decision that reduces or eliminates environmental protections (such as standards) would have adverse environmental effects triggering NEPA.

  2. Couple of points about the Tongass case (Greenpeace v. Stewart). The Court’s proxy-on-proxy critique is not about “rare deer.” The deer are not rare. It’s the Alexander Archipelago wolves that eat the deer that are rare. Thus, the habitat capability status of the not-rare deer is a “proxy” for the viability of the rare wolves, i.e., a “proxy-on-proxy.”

    This case has its legacy in one of the most principled Forest Service employees I’ve had the honor of knowing. Tongass wildlife biologist Glen Ith blew the whistle on these timber sales over a dozen years ago for precisely the reason the Ninth Circuit has now declared them illegal. Ith is also the only FS employee in history to sue his agency over its failure to follow environmental laws — and win. Twice. Ith was 48 years old when he passed away four days after the Forest Service eliminated his job in retaliation. His actions against bureaucratic corruption and lawlessness were in the finest traditions of Forest Service founder and whistleblower Gifford Pinchot.

  3. Thanks for the additional background on the Tongass case, Andy. I was surprised that the court didn’t mention the connection to the wolves. I agree that using the term “rare” for the deer was a bad idea. They are “rare” in a sense that there are local concerns that there are not enough of them or their habitat, but they are not formally recognized as an at-risk species.

    I think the reason that the court identified a “viability” issue for the deer is because the deer are “management indicator species” in the forest plan, which could be designated for species that are not rare but of interest, and the 1982 regulatory language for MIS triggered a need for viability analysis. So even though the court used the phrase “proxy on proxy” I’m not convinced it was the wolves that directly created this current obligation for the deer (since the court didn’t mention wolves at all). It was the forest plan (but I agree that wolves are a reason the deer became an MIS in the forest plan).

    To my main point, “Lands Council” was not a case about “proxy on proxy” (a prior case was about using one species as a proxy for another), but dealt with habitat for flammulated owls, and the 9th Circuit said this: “… when the Forest Service decides, in its expertise, that habitat is a reliable proxy for species’ viability in a particular case, the Forest Service nevertheless must both describe the quantity and quality of habitat that is necessary to sustain the viability of the species in question and explain its methodology for measuring this habitat.” So I think the reasoning here is generally applicable to use of vegetation as a proxy for species viability.

    • It’s the wolves:

      The Tongass National Forest uses a deer winter habitat capability model (“Deer Model”) to produce a relative ranking of habitat suitability for Sitka black-tailed deer and, by extension, Alexander Archipelago wolves.

      Greenpeace, Inc. v. Cole, 2010 U.S. Dist. LEXIS 41637, *3, 2010 WL 1729739

      The TLMP instructs USFS to do this by, among other things, “[p]rovid[ing] sufficient deer habitat capability to first maintain sustainable wolf populations, and then to consider meeting estimated human deer harvest demands.

      Greenpeace, Inc. v. Cole, 445 Fed. Appx. 925, 927, 2011 U.S. App. LEXIS 16062, *4, 41 ELR 20262

      In a related case, in which the Forest Service prevailed, the dissent from Judge Gould explains the proxy-on-proxy approach used on the Tongass:

      The Alexander Archipelago wolf and the Sitka black-tailed deer, as the Forest Service explained, are closely interrelated. Survival of the wolves depends on survival of the deer on which the wolves feed, which in turn depends on maintenance of the old growth forest habitat on which the deer depends. Deer populations depend on a sufficient quantity, distribution, and quality of winter old-growth habitat. It is inescapable that logging reduces this habitat. The Forest Service, aware that wolves depend on deer for their survival, and that those deer to survive depend on old growth forest habitat, has stressed that maintaining sufficient deer habitat capability, and thus greater number of deer, was “the most important factor” in sustaining wolf viability in the Tongass National Forest. In fact, the destruction of deer habitat capability is, as the agency has explained, “the most important factor limiting wolf viability.” Yet the Forest Plan does not support deer habitat capability numbers, and nothing in the record supports the Forest Service’s contention that viable wolf populations will remain relying on the other two prongs of habitat reserves and wolf mortality management.


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