Jon Haber

Fall forest planning news

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Source: Glacier-Two Medicine Alliance

Not even a pandemic can stop forest planning.

Forest plan revisions for the Blue Mountains of eastern Oregon and Washington stalled again in March, 2019, when the Forest Service Washington Office responded to objections on the Umatilla, Malheur and Wallowa-Whitman revised forest plans by instructing the regional forester to withdraw the draft record of decision for “additional information.”  One of the reason given was, “The Revised Plans also did not fully account for the unique social and economic needs of local communities in the area.”  While not specifically citing these instructions, the Forest Service and the Eastern Oregon Counties Association have funded a research project that will help understand the impacts of forest management across the Blue Mountain region, including the potential impacts of new forest plans.  The Forest Service has always done social and economic analysis as part of forest planning, but according to Nils Christoffersen, director of Wallowa Resources …

“The desire was to create a system to get more localized analysis of what would be the impact of increasing or decreasing timber harvest on national forest land, (or) increasing or decreasing the grazing activities,” he said. “(It’s) trying to understand the relative economic importance of the national forest system land and their management to the economics of the Eastern Oregon counties.”

Blue Mountains revision page

 

The Manti-La Sal National Forest released a “draft forest plan” in October as part of its plan revision process.  The Forest cautions that they are not even to formal the scoping stage, which would initiate the EIS process, but they are looking for public comments on what I would characterize as a detailed proposed action.  They have scheduled several “virtual workshops” that address different plan revision topics.  (After today, one remains on “Watershed,” December 3.)  A coalition of conservation groups has already submitted a “conservation alternative” that, “emphasizes scientific data and recommends adapting forest use to climate change and population growth as well as prioritizing conservation of water, native species and ecosystems over commercial use, and pushing for greater inclusion of Indigenous groups in policy-making.”

Manti-La Sal revision page

 

In fiscal year 2020, the Nez Perce-Clearwater National Forest sold 84.5 million board feet of timber, the most since 1991.  An annual volume of 125-150 million board feet is included in the current draft of the revised forest plan.

Environmental groups are split over the uptick. Some, like Gary Macfarlane of the Moscow-based Friends of the Clearwater, say it is damaging water quality and habitat for salmon and steelhead. While others, like Brad Smith of the Idaho Conservation League, say current logging levels appear sustainable as long as the work is done with proper environmental review and robust public participation. The latter has participated in the Clearwater Collaborative, while the former hasn’t.

“If they maintain the current riparian buffers, if they don’t harvest old growth and they provide adequate wildlife habitat security, I think 125 million board feet (per year) is sustainable,” Smith said.

The Forest Service proudly proclaims,

“The more volume we produce, the more miles of roads we maintain, the more sediment we reduce and the more fish passage culverts we install — and the more wildlife habitat gets improved.”

A county commissioner has reservations about this, since the programs allowing the agency to reinvest proceeds of timber harvest into restoration cut the county out of its share.  (I have my own reservations about logging to raise money, especially if it is independent of ecological needs established in the forest plan, and how that is used in the NEPA process as discussed here.)

McFarlane doesn’t buy the agency’s contention that logging leads to improved environmental conditions.

“To conflate logging with restoration is one of the biggest hoaxes perpetrated on the American public,” he said. “There is no science that supports that — none.”

“They are always predicting an upward trend (in water quality) for all of the road decommissioning they are doing, but when they go back into the watershed (to monitor water quality) they are still not meeting forest plan objectives. That is why they want a new plan that removes those objectives.”

Nez Perce-Clearwater revision page

 

The Custer-Gallatin National Forest held its meeting with those who have objected to its final revised forest plan.  The issues revolve mostly around wilderness designations.  According to this article, most objectors argued the land designations proposed for these areas don’t sufficiently safeguard wildlife habitat from recreation-related fragmentation.  The objectors include the Gallatin Forest Partnership, which submitted its own set of recommendations for the plan to the Forest Service.  One of those recommendations for wilderness is supported by the Southwest Montana Mountain Bike Association.

Custer-Gallatin revision page

 

NFS Litigation Weekly November 6, 2020

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The Forest Service summaries are here:  Litigation Weekly November 6 2020 FINAL

The Forest Service email indicated “no updates for November 13.”

COURT DECISIONS

Environmental Protection Information Center v. Carlson (9th Cir.).  On October 27, 2020, the 9th Circuit Court of appeals denied the Forest Service’s petition for panel rehearing and denied the intervenor’s (Sierra Pacific Industries) petition for en banc rehearing, concerning the improper use of the road maintenance categorical exclusion for Ranch Fire Tree Project on the Mendocino National Forest.

Bitterroot Ridge Runners Club v. Forest Service (9th Cir.).  On October 27, 2020, the 9th Circuit Court of Appeals upheld the Bitterroot National Forest’s 2005 Travel Management Plan’s closures to motorized and mechanized use.

High Country Conservation Advocates v. United States Forest Service (10th Cir.).  On October 29, 2020, the 10th Circuit Court of Appeals granted the plaintiffs’ Emergency Motion for Injunction Pending Appeal  concerning the West Elk Mine and the Colorado Roadless Rule’s  North Fork Coal Mining Area exception on the Grand Mesa, Uncompahgre, and Gunnison National Forests. The 10th Circuit’s order prohibits West Elk Mine’s use of new roads in the roadless area constructed in June 2020.  This article updates this complicated story.

NEW CASES

Alliance for the Wild Rockies, v. Marten (D. Mont.).  On October 23, 2020, Alliance for the Wild Rockies filed a complaint in the District Court of Montana against the Forest Service and the U.S. Fish and Wildlife Service, concerning the Environmental Assessment, and Decision Notice for the Soldier-Butler logging project on the Lolo National Forest

Flathead-Lolo-Bitterroot Task Force v. U.S. Fish and Wildlife Service (D. Mont.).  On October 26, 2020, Flathead-Lolo-Bitterroot Task Force did the same.

This article on the lawsuit focuses on the designation of the area by the forest plan to be managed for connectivity between grizzly bear populations.

EarthJustice has filed a Notice of Intent to Sue the Secretary of Energy, Bonneville Power Administration, U.S. Corps of Engineers, U.S. Department of Interior, U.S. Fish and Wildlife Service,Bureau of Reclamation, Secretary of Commerce, and NOAA regarding the effects on listed salmon of their coordinated operation and maintenance of federal dams, reservoirs, and related facilities, power marketing and other actions in the Columbia River basin as reflected in their Joint Record of Decision for Columbia River System Operations dated September 28, 2020.  That was discussed further here.

 

BLOGGER’S BONUS

On November 2, the U. S. Supreme Court held its hearing in Fish and Wildlife Service v. Sierra Club regarding an attempt to obtain draft biological opinions from the Fish and Wildlife Service for EPA regulations.  Its holding on how “Exemption 5,” which allows withholding predecisional and deliberative records, could affect how all federal agencies administer the Freedom of Information Act.

On October 31, the Federal District Court for Colorado denied a government motion to alter its judgment against the government in its efforts to delist the species where the Fish and Wildlife Service failed to explain why it changed it methodology for assessing the species.  The court held, “Because the Court is limited to assessing the explanation publicly provided by the FWS in its decision, not explanations proffered for the first time in litigation, the fact that the FWS has now tendered such an explanation now insufficient.”

The 4th Circuit Court of Appeals has granted another stay, this time holding up permits related to stream crossings that could result in effects on listed aquatic species.  Here is some interesting background on the role of the Forest Service in this controversial decision:

The Forest Service “was not in the driver’s seat” when it came to making a final decision, Peter Gaulke wrote in an email to colleagues. FERC was.

“It is fair to say there were pains of adjustment as we tried to merge our USFS way of business with the FERC way of business,” Gaulke wrote in a Nov. 28, 2017, review of the process.

“This was not easy and still has a level of discomfort for the Forest and the Regional Office,” the email stated.

Gaulke’s email, provided to The Roanoke Times in response to a Freedom of Information Act request, is “shocking and eye-opening,” said Rupert Cutler of Roanoke, who oversaw the Forest Service as assistant secretary of agriculture from 1977 to 1980.

“It proves that the Forest Service felt emasculated and victimized by the FERC-dominated MVP decision-making process,” Cutler said.

A part-time Colorado resident who documents his disrespect for public lands on social media was banned from entering millions of acres of U.S. Forest Service lands because he posted a picture on Instagram of himself defecating in Maroon Lake.

NFS Litigation Weekly October 30, 2020

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The Forest Service summaries are here:  Litigation Weekly October 30 2020 Email

NEW CASE

Friends of the Florida Trail, Inc. v. Thomas (D. N. Florida).  The plaintiff claims the Forest Service violated NEPA and the National Scenic Trails Act when it approved the 90-mile Big Bend Reroute of the Florida National Scenic Trail using a categorical exclusion.

NOTICE OF INTENT

After the Southern Sierra Nevada DPS of the Pacific fisher was listed as endangered on May 15, 2020, the Forest Service and Fish and Wildlife completed a programmatic consultation on 40 proposed projects involving the logging and removal of trees and other vegetation across the Sierra, Sequoia, and Stanislaus National Forests.  On September 3, Unite the Parks, Sequoia ForestKeeper, and the John Muir Project notified the agencies of their intent to sue for failure to adequately analyze the effects on the fisher.

 

BLOGGER’S BONUS

(Update.)  After the government filed a notice of appeal of the Alaska district court’s reversal of the Prince of Wales Landscape Level Analysis Project for the Tongass National Forest (discussed here), they changed their minds.  They are now proceeding with a more traditional timber sale project involving 3,000 acres of old-growth forest.

(Update – EPIC v. Carlson.)  The 9th Circuit Court of Appeals has denied requests by the Forest Service and intervenors to rehear this case involving an unreasonable interpretation of the road repair and maintenance categorical exclusion for the Ranch Fire Roadside Hazard Tree Project on the Mendocino National Forest (discussed here).  (When I worked with this forest supervisor earlier in her career she didn’t like my advice either.)

NFS Litigation Weekly October 23, 2020

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The Forest Service summaries are here:  Litigation Weekly October 23 2020 EMAIL

NEW CASES

Historic Wolf Creek Boatworks v. United States of America (D. Alaska).  The plaintiff claims the Forest Service violated 36 C.F.R. 251.54 in relation to non-renewal of a conditional use permit for operation of buildings on the Tongass National forest.

NOTICE OF INTENT

The Center for Biological Diversity and Western Watersheds Project have notified the Forest Service, BLM and Fish and Wildlife Service that they will challenge the failure to reinitiate ESA consultation on the Gunnison sage-grouse (as previously discussed here).

OTHER CASES

Bullock v. U.S. Bureau of Land Management (D. Mont.).  The district court declared that the Lewistown Resource Management Plan (RMP), Missoula RMP, and Miles City RMP amendment are unlawful because the Acting BLM Director approved them in violation of the Appointments Clause of the U.S. Constitution, the Federal Vacancies Reform Act of 1998, and the Administrative Procedure Act (which we discussed most recently here.)

 

BLOGGER’S BONUS

The replacement of Ruth Bader Ginsburg on the U. S. Supreme Court with a conservative justice has potentially stunning implications for many aspects of American life, including federal agencies.  In particular, E&E News singled out her Congressional testimony (or lack thereof) on climate change

Sen. Richard Blumenthal (D-Conn.) asked Barrett yesterday if she believed “human beings cause global warming.”  “I don’t think I am competent to opine on what causes global warming or not,” Barrett answered.  When pressed on the question, she added, “I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge.”

In an exchange with Sen. John Kennedy (R-La.) on Tuesday, Barrett dodged a climate question by saying she’s “not a scientist,” a talking point that is often used by Republican lawmakers who reject the underlying tenets of climate science (Climatewire, Oct. 14).

When grilled yesterday by Sen. Kamala Harris (D-Calif.), Barrett again declined to recognize that human-caused greenhouse gases have caused global temperatures to rise by about 2 degrees Fahrenheit over the last century…  Barrett countered by saying Harris, a vice presidential candidate, was leading her to reveal an opinion about a “very contentious matter.”  “I will not express a view on a matter of public policy especially one that is politically controversial because that’s inconsistent with the judicial role as I have explained,” Barrett said.

Barrett has been tight-lipped on a gamut of issues over the course of the hearing, from health care to voting rights. But experts said her reluctance to acknowledge the scientific basis for climate change is notable.  “Her response suggests that she either is a climate change denier or someone who is afraid of offending the President and his supporters in the fossil fuel industry,” Bob Percival, director of the environmental law program at the University of Maryland, said in an email.  On Tuesday, “she was willing at least to acknowledge that there is racism in society. Climate change has now also become an obvious fact that intelligent people should not be afraid to acknowledge,” he added.

Others countered:

“Given the various deference doctrines, whether an appellate judge has firm views on climate science is not particularly important and should not have a significant influence on their opinions,” said Jonathan Adler, director of the environmental law center at Case Western Reserve University.

This has been my answer to questions Sharon always has about the role of judges.  However, this very concept of judicial deference to administrative agencies could itself be remade under a conservative court.  Business conservatives have wanted to get rid of “Chevron deference” to agencies regarding their regulations.  This is most often discussed in relation to the more obviously regulatory laws like the Clean Water Act and Clean Air Act, but it could also lead to less judicial respect for decisions made by agencies under the Endangered Species Act or public land management laws.  In theory this seems like it should cut both ways because agencies get sued by both ends of the political spectrum, but here is another possibility:

But, by repealing Chevron, the Supreme Court would essentially invite judicial policymaking, as activist judges would have freer rein to exploit unavoidable statutory ambiguities in order to substitute their own policy preferences. Or worse, it could halt agency action until Congress could pass legislative changes to resolve all ambiguity.

The end of the “deep state?”

Conibear trap

 

NFS Litigation Weekly October 16, 2020

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The Forest Service summaries are here:  Litigation Weekly October 16 2020 Email

Links for individual cases are to related documents.

COURT DECISION

North Dakota v. United States of America (D. N.D.).   The court agreed with McKenzie County that several roads were established as county roads by 20 years of public use under R.S. 2477 and N.D.C.C. § 24-07-01 prior to the federal government reacquiring the underlying lands in the later 1930s.

NOTICES OF INTENT

Three conservation groups have asserted that the Rim Fire Project on the Stanislaus National Forest requires reinitiation of consultation under ESA to address impacts on the Pacific fisher, which was federally listed on May 15, 2020.

WildEarth Guardians and Conservation Northwest are threatening to sue the Forest Service and Fish and Wildlife Service for failure to formally consult on the modification to the vehicle class use designations and the motor vehicle use maps for the Colville National Forest because it authorizes increased vehicle traffic, which would affect listed species.

 

BLOGGER’S BONUS

  • Snake River dams

In late September, federal agencies operating dams on the Columbia River issued a decision on operations that did not include removing the dams.  They had made similar decisions in 2003, 2005, 2009, 2011 and 2016, and they were sued and lost each time.  While another lawsuit is possible, there are signs that governors of Northwest states, particularly Democrats in Oregon and Washington, are looking for a negotiated solution.  In the broader arena of renewable energy, there is a new agreement among some conservationists and hydropower producers to work together on planning for the role of hydropower in mitigating climate change.  Leaving more dams in place in salmon habitat affects national forest management because it puts more of a burden on addressing other threats to salmon, such as roads and logging in spawning habitat.  In fact, part of the broader agreement is to “Advance Effective River Restoration through Improved Off-Site Mitigation Strategies.”

PacifiCorp, one of the Northwest’s biggest private utilities, faces a class action lawsuit for allegedly failing to maintain power lines that caused a significant portion of the catastrophic Labor Day wildfires in Oregon.  An attorney for plaintiffs said the weather and fire conditions across the state amounted to the perfect storm, but PacifiCorp had plenty of time to safely shut off power to prevent sparking more wildfires.  Presumably the federal government will take a similar approach for damages and costs to national forests.

Mark Allen James, 23, of Twin Falls, Idaho, repeatedly harvested timber from the Deadline Ridge Summer Home area of the Sawtooth National Forest without a lawfully obtained permit to do so. James would sell the illegally obtained timber online. He confessed to harvesting twelve cords of firewood and selling it for $140 per cord.  James was sentenced in U.S. District Court to three years of probation for theft of government property, and was required to pay $1,680 in restitution.

Public Employees for Environmental Responsibility has filed a Freedom of Information Act lawsuit against the Forest Service for failing to release its audit of Tongass National Forest timber sales, which was requested last year.

  • Wildlife Services

WildEarth Guardians has sued USDA Wildlife Services for failing to prepare an EIS for its activities in New Mexico, which include almost one million acres of national forest lands, and for relying on outdated EAs.  The Forest Service has an MOU with Wildlife Services that discusses NEPA compliance for wildlife damage, invasive species, and wildlife disease management activities.

ESA update

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National Audubon Society Field Guide

There’s a lot of news recently, mostly about litigation, all with implications for public land management.

(Notice of Intent.)  The Forest Service litigation weeklies seemed to have missed this one involving the Forest Service.  On September 23, the Center for Biological Diversity and the Western Watersheds Project notified the Forest Service, BLM and Fish and Wildlife Service of their intent to sue over the effects of livestock grazing on the Gunnison sage-grouse.  They allege, “failure to reinitiate consultation in light of the species’ decline and the best available science, their failure to implement the BiOp’s (biological opinion) conservation measures, and the likely exceedance of the BiOp’ incidental take statement…”

Note:  The decision challenged appears to be a “Candidate Conservation Agreement” made when the species was proposed for listing, and the “conference” on that for the proposed species which was adopted as the biological opinion after it was listed.  In it the Forest Service and BLM agree to adopt “conservation measures” for the Gunnison sage-grouse.  The CCA says that, “The GUSG CCA is not a decision document …,” but, “The GUSG CCA is consistent with the 1992 BLM Gunnison Field Office Resource Management Plan; USFS Land and Resource Management Plan for the Grand Mesa, Uncompahgre and Gunnison National Forests …”

The reason why there was consultation under ESA on this “non-decision” (rather than the forest plan and/or project-level grazing authorizations) is because it would provide a “programmatic” consultation and opinion on types of federal actions that may be taken in the future that “are likely to have insignificant or discountable effects to the species or habitat,” such as fences and small-scale water developments for grazing (and other activities related to recreation and other developments).  The CCA should have no force or effect except between the action agencies and the FWS, and I understand the primary benefit of consulting on it is to streamline subsequent consultation on individual future actions that it covers.  It would be interesting to see what a court would do with this without an actual “decision” by the action agencies.

That was probably more than anyone else was interested in, but here’s some more straightforward ESA actions that may affect public management.

(Settlement of Center for Biological Diversity v. Bernhardt, Eastern District of North Carolina.)  The Fish and Wildlife Service has agreed to complete a revision of the recovery plan for the red wolf by February 28, 2023.  The few remaining wild individuals are found near the Outer Banks of North Carolina, but CBD has provided a report on potential reintroduction areas that include the two national forests in Florida, four national forests in Virginia and West Virginia, three national forests in Arkansas and Missouri, five national forests in North Carolina, Tennessee and Georgia, and the Talladega National Forest in Alabama

(New lawsuit, Fish and Wildlife Service.)  On September 29, three conservation groups filed a complaint in the federal district court for the Northern District of California against the decision to not list the bi-state sage-grouse under the Endangered Species Act.  The challenge focuses on the failure of “voluntary” mechanisms to stem the decline of the species.  The complaint does not mention the Forest Service, though the species occurs on the Humboldt-Toiyabe National Forest, which amended its forest plan in 2015 to adopt conservation measures.  (AP article here.)

(New lawsuit, Fish and Wildlife Service and BLM.)  On September 29, the Center for Biological Diversity alleged in the Nevada federal district court that the Fish and Wildlife Service “unreasonably delayed” a decision on a petition to make an emergency listing decision for the species, and that the BLM failed “to protect the wildflower in accordance with FLMPA and BLM policies, as the Center’s petition requested.”  The species is found only in an area coveted by mining companies seeking lithium and boron (previous litigation was discussed here).  The emergency circumstances arose from the recent mysterious physical removal of 40% of the remaining individuals, discussed in this article.

(New lawsuit, Fish and Wildlife Service.)  On September 30, several organizations and individuals challenged the removal of the Louisiana black bear from the list of threatened and endangered species in 2016.  The suit says that the FWS is attempting to pass off non-native bears (introduced from Minnesota in the 1960s) or hybridized black bears as true Louisiana black bears to claim that recovery goals have been met.  The species is found on the Kisatchee National Forest.

(Notice of Intent to Sue the Fish and Wildlife Service.)  Following prior litigation requiring it to reconsider its decision to not list the wolverine, on October 13 the FWS withdrew its current proposed rule to list the species as threatened.  On the same day, Earthjustice submitted its NOI to the agency.  The FWS states that the wolverine is expanding its range and would be less affected by climate change than previously thought (discussed in this article.)

  • New species listings

On September 29, the Fish and Wildlife proposed to list the Wright’s marsh thistle as threatened under the Endangered Species Act.  Two of the eight known locations are on the Lincoln National Forest, but involve less than an acre.  They are mostly threatened by the effects of climate change on water availability since these areas are not being grazed.  (Here is a local article.)

On September 29, the Fish and Wildlife Service also proposed to list two species of eastern mussels as threatened, and designated critical habitat on the Allegheny and Daniel Boone National Forests. Habitat for both the longsolid and round hickorynut mussels is threatened by timber operations (among many other things), is widely distributed, and is likely found on other national forests.  (Here is a local article.)

NFS Litigation Weekly October 9, 2020

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Forest Service case summaries are here:  Litigation Weekly October 9 2020 EMAIL

Links below are to court documents related to each case.

COURT DECISIONS

On October 2, 2020 the District Court of Colorado issued an order allowing a mining company to continue its operations using new roads constructed into a designated roadless area to the West Elk Mine on the Grand Mesa, Uncompahgre and Gunnison National Forests.  Road construction in the Sunset Roadless Area was allowed under a lease pursuant to an exception to the Colorado roadless rule, but that exception was subsequently reversed by the 10th Circuit Court of Appeals.  On remand, the district court did not vacate the lease.

(BLOGGER’S UPDATE:  On October 9, the 10th Circuit Court of Appeals temporarily barred further surface disturbance by the West Elk Mine so it can consider the legality of that activity. The complicated history of the exception and this case is included in the Forest Service summary.)

On September 29, 2020 the District Court of Montana issued a decision allowing the Darby Lumber Lands Phase II Project on the Bitterroot National Forest to proceed.  The court also upheld a project-specific forest plan amendment to “suspend” an elk habitat effectiveness standard.  While the court invalidated the Forest’s reference to a minimum road system under the Travel Management Rule because the forest-wide Travel Management Plan did not properly establish that, the court did not find that to be a reason to vacate the Project decision.

  • Van McGibney, et al., v. Missouri Department of Natural Resources

On September 24, 2020 the Circuit Court of Oregon County Missouri determined that lands acquired by the state can’t be used as a park because of restrictions in the federal Wild and Scenic Rivers easement, so the state must divest its ownership.  The lands are located near the Mark Twain National Forest.  Plaintiffs also owned land subject to the easement.  (Local reporting here and a viewpoint here:  “… the Judge reasoned that without unfettered public use of the land, it could not be a park. This defies both common conservation practices and common sense.”)

NFS Litigation Weekly October 2, 2020

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It’s been pretty quiet, so not very “weekly.  Here is the latest Forest Service summary:  Litigation Weekly October 2 2020_FINAL

NEW CASES

Center for Biological Diversity  v. U.S. Forest Service (D. Ariz.). On September 17, the plaintiffs filed a complaint based on recent monitoring by plaintiffs that alleges that livestock grazing on the Prescott, Coconino, and Tonto National Forests has impacted 14 threatened and endangered species dependent on aquatic and riparian habitat, and the Forest Service and Fish and Wildlife Service have failed to reinitiate and complete ESA Section 7 consultation to ensure ongoing livestock grazing does not jeopardize listed species or destroy or adversely modify critical habitat.  (This article provides a local perspective.)

 

BLOGGER’S BONUS

(Court decision in Swomley v. Schroyer.)  On September 3, the district court of Colorado rejected an attempt by 21 residents and landowners to halt the Upper Frying Pan logging project on the White River National Forest, holding that an EA for the project was sufficient.  (The article includes a link to the opinion.)

(Update.)  The Colorado Division of Reclamation, Mining and Safety, which had ordered Arch Resources to cease road-building and other surface-disturbing activity in the Sunset roadless area on the Grand Mesa, Uncompahgre, and Gunnison National Forest because it hadn’t shown it had maintained its legal right of entry, partly lifted that order after the Forest Service and BLM indicated Arch Coal is legally allowed to continue such work as it pertains to a road that environmental plaintiffs claim is illegal.  Plaintiffs are renewing their court efforts.  (The High Country Conservation Advocates Case was most recently discussed here.)

(New case.)  Three conservation groups filed a lawsuit against the Forest Service for allowing “excessive” cattle grazing on the Colville National Forest through their 2019 decision to adopt a revised forest plan.

(Court decision, BLM.)  The district court in Colorado upheld a 2009 decision by the BLM, also affecting the White River National Forest, to cancel undeveloped drilling leases in the Thompson Divide area.  (Ex-acting BLM Director Pendley’s Mountain States Legal Foundation represented the lessee.)

(Update, BLM case.)  After the district court issued a preliminary injunction on this project to reduce conifer encroachment into sagebrush habitat, the BLM has withdrawn that part of the decision for lands that had not yet been treated, mooting the case.

(New case, U. S. Fish and Wildlife Service.)  On August 18, three conservation groups sued the U. S. Fish and Wildlife Service for deciding to not list the California spotted owl as endangered in November, 2019.  According the complaint (linked in the article), “Since the early 1990s, the volume of commercial logging of mature trees on public land in the Sierra Nevada has declined, but “fuel reduction” in the form of mechanical thinning and salvage logging continue, both of which continue to degrade the owls’ habitat.”  The complaint also says:

“The Species Status Assessment also concluded the California spotted owl may be extirpated from the Lassen and El Dorado regions of the Sierra Nevada in the foreseeable future. See Species Status Assessment 95, fig. 22 (California Spotted Owl Regional Future Scenario 2 Condition). It further concluded that the Plumas, Tahoe, Stanislaus, Humboldt-Toiyabe, Inyo, Sierra, and Sequoia National Forest regions will deteriorate in condition to low or low-moderate condition, id., which means that they will “have low resiliency and may not be able to withstand stochastic events because of significant declines in occupancy, survival, fecundity, or habitat quality.” Id. at 69.”

(New case, BLM.)  On August 19, several conservation groups sued the BLM for its decision on the Uncompahgre Field Office Resource Management Plan for central and southern Colorado, released in April.  They alleged that expanded drilling would hasten climate change and affect endangered species, including the razorback sucker, greenback cutthroat trout and, Gunnison sage grouse.

(New case against a private timber owner.)  On September 15, the Center for Biological Diversity and a local conservation group sued the Gualala Redwood Timber Company in federal district court to protect a private redwood forest near Northern California’s Gualala River.  They allege that an incidental take permit from the regulatory agencies is needed for the threatened and endangered species that would be harmed:  Northern California steelhead, Central California Coast coho salmon, California red-legged frogs, and northern spotted owls.  (This CBD press release includes a link to the complaint.)

(New case and Notice of Intent to Sue CEQ.) On August 28, 2020, a coalition of 23 state attorneys general filed a lawsuit against the Administration’s Final Rule on NEPA procedures.  On September 22, plaintiffs notified the CEQ that they would add a claim that the Final Rule violated the Endangered Species Act by failing to consider the impact on endangered and threatened species or consult with the federal wildlife agencies.

Litigation Summary – end of August, 2020

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Since it’s been over three weeks since I’ve seen a Forest Service summary, here’s some news that’s getting old.

FOREST SERVICE CASES

The Center for Biological Diversity filed a Notice of Intent to Sue the Forest Service and U. S. Fish and Wildlife Service to block the Lee Canyon ski resort expansion on the Humboldt-Toiyabe National Forest that would affect the federally endangered Mt. Charleston blue butterfly.  This would be the second lawsuit, following new consultation on the project after the first lawsuit (discussed here).

The government has appealed the district court’s adverse decision on this landscape-scale, condition-based “project” on the Tongass National Forest to the Ninth Circuit Court of Appeals.  (Southeast Alaska Council v. Forest Service, discussed here most recently.)

On August 27, the Center for Biological Diversity sued the Forest Service over violations by grazing permit holders for the Sacramento and Aqua Chiquita allotments in the Lincoln National Forest.  The Forest Service has documented that the permit holders have improperly allowed their cows to enter protected streamside meadows, habitat for the federally endangered New Mexico meadow jumping mouse.  (A similar case is pending involving the Apache-Sitgreaves National Forest, summarized here.)

On August 28, the Bitterroot National Forest withdrew its decision on the Gold Butterfly vegetation management project, conceding that it used a different definition of old growth than was in its forest plan, and that it did not comply with road density requirements in the forest plan for elk. (Friends of the Bitterroot v. Anderson, summarized here.  This article includes a map.)

On August 25, the district court for the District of Idaho upheld the decision by the Caribou-Targhee National Forest regarding the Rowley Canyon Wildlife Enhancement Project, which authorizes the thinning of juniper trees and prescribed burning to “eliminate the threat of future catastrophic fire” (in the court’s words) within the Elkhorn Mountain Inventoried Roadless Area.  (Wildlands Defense v. Bolling, summarized previously here, including plaintiff’s perspective).

Note:  This was a case involving the categorical exclusion for “timber stand and/or wildlife habitat improvement activities” and alleged “extraordinary circumstances.”  I thought the court took a rather extreme position on the criteria for deference to the agency; I have never understood that ANY analysis would be sufficient to comply with NEPA (my emphases).

Plaintiffs take issue with the depth and scope of the Forest Service’s analyses, claiming that neither was adequate to support the Forest Service’s finding that the proposed project will not lead to any significant impacts or extraordinary circumstances. But that is not the same as saying the Forest Service failed to conduct any analysis whatsoever. Within the administrative record, there are extensive analyses of the Project’s effects upon all users, including animals and avian species who depend upon the habitat proposed to be treated. The Court must defer to the agency on matters within the agency’s expertise unless the agency completely failed to address a factor that was essential to making an informed decision.

After receiving a Notice of Intent to Sue over its effects on grizzly bears, the Lolo National Forest has delayed implementing its decision on the Soldier-Butler forest management project in order to reinitiate consultation with the Fish and Wildlife Service.  The project would involve building new roads in an area recently designated in the forest plan as a Demographic Connectivity Area for grizzly bears.

OTHER CASES

On June 26, 2020 the Ninth Circuit Court of Appeals, on a 2-1 vote, held that the Administration illegally transferred Department of Defense funds for the purpose of building a border wall on the Mexican border.   (Sierra Club v. Trump.  A related lawsuit was discussed here.)

A coalition of environmental groups sued the Interior Department Aug. 24 urging a federal judge to halt implementation of the BLM’s plan to expand oil and gas opportunities in Northwest Alaska, challenging the EIS prepared by the BLM.

After litigation for delaying a decision (discussed here), the U. S. Fish and Wildlife Service has listed the Humboldt marten of southern Oregon and northern California as threatened under the Endangered Species Act.  However, apparently using new provisions enacted by the Trump Administration, the listing includes “an array of broad and vague exemptions for forest management activities.”

Forest plans and legislation – Blackfoot-Clearwater wilderness proposal

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Blackfoot-Clearwater Stewardship Project map, Feb. 2018.

Wilderness designation has always been controversial in Montana.  No new wilderness areas have been established by Congress since I believe 1977, and unlike most states there has never been statewide wilderness legislation.  The Blackfoot-Clearwater proposal to designate 90,000 acres on the Lolo National Forest was locally developed and has been pending in Congress for several years.  Its development included addressing issues related to motorized and mechanized recreation that we have been discussing here, and designates areas for both.  This article provides some background, and includes a link to the written statement from the Forest Service regarding the proposed legislation.

The statement relates to forest planning in a couple of ways.  First, the Forest Service uses the Lolo National Forest forest plan as the foundation for its position on the legislation.

We also have concerns about implementing section 202, which establishes the Spread Mountain Recreation Area for the apparent purpose of enhancing mountain biking opportunities. The Lolo’s current land and resource management plan identifies this area as recommended wilderness. This area is characterized generally by steep topography, sensitive soils, and contains sensitive fish and wildlife habitat. Trail 166 is the main access into this area. This trail is not maintained, not passable by riders on horseback, and becomes difficult to locate after the first mile. While we acknowledge the interest in expanding opportunities for mountain biking on the Lolo, we are concerned that the site designated for the Spread Mountain Recreation Area is not well-suited for this use, and that this designation could create conflicts with wildlife and other recreation uses.

Two of the three wilderness designations in Title III are consistent with the recommendations made in the existing Lolo National Forest land and resource management plan. The third designation (West Fork Clearwater) was not recommended in the management plan to be Wilderness, it was allocated to be managed to optimize recovery of the Grizzly Bear.

One might argue that the 1986 forest plan is outdated, and recent local efforts should be given greater consideration.  However, those efforts have not been through any formal public process, so I commend the Forest Service for using its forest plan.  I’m not sure whether NFMA’s consistency requirement applies to taking positions on legislation, but it is probably the right place to start.  The proposal is also interesting in its legislative designation of two “recreation areas,” taking these decisions out of the forest planning process.

The Lolo is scheduled to begin its forest plan revision process in 2023, and the Forest Service is also concerned about the interaction between the revision process and this legislation.  It sounds like mostly a budgetary concern:

Our primary concerns pertain to Title II. Section 203 which would require the Forest Service to prepare a National Environmental Policy Act analysis for any collaboratively developed proposal to improve motorized and non-motorized recreational trail opportunities within the Ranger District within three years of receipt of the proposal… If passed in its current form, this bill could require recreation use allocation planning for site-specific portions of the Seeley Lake Ranger District ahead of the broader plan revision process, which would forestall the Lolo’s ability to broadly inform land use allocations across the forest through the plan revision process… If enacted, the explicit timeframes currently contained in the bill could result in prioritizing the analysis of a collaboratively developed proposal to expand the trail system over other emergent work.

But they might also be suggesting that the site-specific recreation planning would benefit from waiting until the forest plan is revised.  (Or maybe they just don’t like deadlines.)