Three post-litigation updates: the rest of the story

Here’s some news on three cases that we have followed recently:

  • Tahoe e-bikes: Backcountry Horsemen of America v. U. S. Forest Service (E.D. Cal.)

This is the case where the Tahoe National Forest attempted to allow e-bikes on trails designated as open only to non-motorized uses (see the litigation summary here).  In response to the lawsuit, the Forest rescinded the decision.  They have now completed a new decision, the East Zone Connectivity Project, with the result that (according to this article in “Singletracks”) “35-miles of existing non-motorized trail will be open to class 1 e-bikes.”  The Forest website reiterates that, “E-bike use is currently not allowed on NFS roads and trails unless they are designated for motor vehicle use.”  (The only administrative objections to the new decision were later withdrawn.)

This was the case where the Ninth Circuit previously held that under no reasonable interpretation of the language of 36 C.F.R. § 220.6(d)(4) did the Ranch Fire Roadside Hazard Tree Project on the Mendocino National Forest come within the categorical exclusion for “repair and maintenance” of roads.  After receiving a preliminary injunction (see the litigation summary here), the Forest Service agreed to abandon six commercial timber sales, but the settlement would allow them to remove hazard trees in the project area “for non-sawtimber primarily non-commercial purposes,” following specific hazard tree guidelines.  (The article includes a link to the settlement agreement.)  The Forest Service also agreed to pay $191,000 in attorney fees.

This is the case where the Ninth Circuit previously held that “condition-based NEPA,” which didn’t identify site-specific locations or effects, was invalid for the Prince Wales timber sale on the Tongass National Forest.  (See our prior  discussion of the case here.)  This settlement dealt solely with attorney fees; the Forest Service agreed to pay $210,000 of the $301,000 in fees allegedly incurred by the plaintiffs.

(Blogger’s note:  I see a pattern here.  I wonder if it might make a difference, when an official is about to make a legally suspect decision, if their risk analysis would be different if this money came out their operating budget instead of a separate fund.)

9 thoughts on “Three post-litigation updates: the rest of the story”

  1. Typically, attorneys fee awards under the Equal Access to Justice Fund *do* come out of the agency’s operating funds. Fee awards under other fee shifting statutes – like the ESA – come out of the Judgment Fund, a separate fund that pays out awards against the government (often in things like contract disputes).

  2. Jon – a couple of other follow-ups on the Prince of Wales project.

    The litigation did not challenge non-logging restoration and recreation elements of the project, and the Tongass NF is now taking public input on implementing those aspects.

    And the Tongass is also attempting to pursue a portion of the POW logging via a new, site-specific NEPA analysis of the Twin Mountain II project. Scoping closed some months ago; a draft EIS could be issued any day.

  3. Hi Jon,

    As far as I know in both the EPIC and SEACC cases, the money to pay attorney fees does come out of the Forest Service’s budget for either the Region or the Forest. If that’s changed, can someone chime it?

  4. Thanks for the feedback. I don’t know whether this is a change from 20 years ago when I was involved in this or I just got the wrong idea back then that there was no financial accountability incentive. (Even with such an incentive, the length of court cases and the mobility of line officers works against accountability.)

  5. Jon, our attorneys used to say.. “we lose some we should have won, and win some we should have lost.”

    I don’t think it’s accountability when forces are outside the line officer’s control, e.g. random DOJ attorneys and random judges. In my experience, OGC weighed in and our RF always listened to them, before a decision is made when NGO litigation sabers are rattling.

    I’m confused when condition-based NEPA is OK and when it isn’t. Like I’ve said, I was on the phone when CEQ folks at the time said it was OK for the bug project on the Black Hills. (and told the EPA folks to stand down with their concerns, Obama administration for those politically inclined.)

    And there’s the Tennessee Creek project.

    Maybe someone of our legally-inclined folks could write a post and put the pieces together of how to interpret this seemingly contradictory case law?

  6. CEQ isn’t the final word like the courts are. I expounded at length on why the Tennessee Creek case is different in that post (and a prior post I refer to there).

    • But if courts are the final word, aren’t government attorneys the experts on dealing with them? Who else should non-attorneys listen to about the law?

      • I think we’ve discussed that we’ve had different experiences regarding the availability of attorneys to advise the Forest Service prior to decisions, and the willingness of the Forest Service to listen to their attorneys. I can’t believe that a good attorney said that the Ranch Fire project was “repair and maintenance” of roads, or that you don’t have to worry about site-specific impacts under NEPA, or that you can open trails to motorized use with out NEPA. This sounds like the Forest Service decision-makers wanting to push the envelope to meet performance targets – which they are more likely to do if it costs them little when they lose the bet. (And it wouldn’t surprise me if not meeting performance targets will be a bigger deal at performance evaluation time than attorney fees.)

        • Well, the Trump Administration was very fond of pushing forward with dubious proposals, saying, “We’ll see what happens”. The James Watt style of environmental side-stepping hasn’t worked for decades, now. Trump always underestimates his opposition.


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