NFS Litigation Weekly June 5, 2019


Forest Service summaries:  2019_06_05_


Klamath-Siskiyou Wildlands v. Grantham (E. D. Cal.):  The district court essentially reversed itself on enjoining the Seiad-Horse Risk Reduction Project on the Klamath National Forest, staying that injunction while the project is appealed to the circuit court.  The court’s reasoning:

“While Plaintiffs raised substantial questions regarding at least one of their claims, the Court must defer to the Forest Service’s determination that without a stay the harm will become truly irreparable. The crux of this Court’s first order was the fact that only Plaintiffs were in jeopardy of irreparable harm. In light of Federal Defendant’s arguments in their newest motion, it is clear that Federal Defendants will face irreparable harm that — most critically in the Court’s analysis — will threaten the public safety should the injunction remain in place.”

The District of Montana dismissed a complaint filed in 2015, concerning the allotment management plans on 7 domestic sheep allotments on the Beaverhead Deerlodge National Forest, and the revised forest plan (D. Mont.)

Center for Biological Diversity v. USFS (9th Cir.):  The circuit court held that the district court has jurisdiction to hear an action brought under the citizen suit provision of Resource Conservation Recovery Act (RCRA) seeking to require the Forest Service to ban the use of lead shot that poses a threat to endangered California condors in the Kaibab National Forest.

Duhring Resource Company v. USA (3rd Cir.):  The circuit court remanded the case to the Western District of Pennsylvania district court to consider costs incurred due to delay of oil and gas operations on the Allegheny National Forest.  Another facet of this case was discussed here.

Wild Watershed v. Hurlocker (D. N.M.):  The District Court upheld the Hyde Park Wildland Urban Interface Project and the Pacheco Canyon Forest Resiliency Project on the Santa Fe National Forest.  It found that NEPA was not required prior to designation of areas under the 2014 Farm Bill HFRA amendment as insect and disease treatment areas, and the applicable statutory categorical exclusion does not require consideration of extraordinary circumstances or consideration of environmental impacts as would administrative CEs subject to NEPA requirements.  The projects met the HFRA requirements for protecting old growth, for use of best available science (for northern goshawk and Albert’s squirrel and for air pollution from burning) and for consistency with the forest plan.  Forest plan direction applicable to old growth did not apply because the treated stands did not meet the definition of old growth.


Sawtooth Mountain Ranch v. USFS (D. Idaho):  (No FS summary provided.)  Private landowners oppose the proposed Redfish to Stanley Trail on the Sawtooth National Forest (discussed here).


Idaho State Snowmobile Association v. USFS (D. Idaho):  The Sawtooth National Forest prohibited snowmobile use on 85,266 acres of public land in the Fairfield Ranger District.

Friends of Animals v. Perdue (D. Colo.):  (No FS summary provided.)  Plaintiffs allege violation of Freedom of Information Act requirements to provide documents related to management of wild horses on the Tonto National Forest.


BLOGGER’S NOTE on the Klamath case

We discussed it extensively on this blog here, mostly regarding snags.  We didn’t discuss another issue in the case about compliance with the Northwest Forest Plan Aquatic Strategy. Here’s this court’s description of what is required:

In demonstrating ACS compliance, the Forest Service “must manage the riparian-dependent resources to maintain the existing condition or implement actions to restore conditions. The baseline from which to assess maintaining or restoring the condition is developed through a watershed analysis. Improvement relates to restoring biological and physical processes within their ranges of natural variability.” (SHAR_E_2158.) “In order to make the finding that a project or management action ‘meets’ or ‘does not prevent attainment’ of the Aquatic Conservation Strategy objectives, the analysis must include a description of the existing condition, a description of the range of natural variability of the important physical and biological components of a given watershed, and how the proposed project or management action maintains the existing condition or moves it within the range of natural variability.”

In the days of the Northwest Forest Plan development, ranges of natural variability were to be determined between the plan and project level, in the case of watershed conditions via a requirement for “watershed analysis.”  Under the 2012 Planning Rule, NRV is a plan-level requirement.  What makes the Flathead forest plan revision litigation so interesting is that the revised plan both omits NRV from its aquatic ecosystem plan components and removes the requirement for any analysis to identify it later (instead merely suggesting that monitoring would be used).  It may be a good way of avoiding problems with project compliance, but it raises serious questions about how well the plan meets its obligation to protect aquatic species.

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