Jon Haber

Mt. Hood (lack of) science loses in 9th Circuit

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The way courts approach scientific controversy is a common thread on this blog.  We happen to have a perfect example from the Ninth Circuit Court of Appeals (link to the opinion included) last week.  And it happens to involve the science of “variable density thinning” to reduce wildfire threats, another popular topic here.

The Project is the Crystal Clear Restoration Project on the Mt.  Hood National Forest.  The stated primary purpose of the Project is to reduce the risk of wildfires and promote safe fire-suppression activities.  It would use “variable density thinning” to address wildfire concerns, where selected trees of all sizes would be removed.  According to the plaintiffs, it  would encompass nearly 12,000 acres and include almost 3000 acres of logging of mature and old-growth forests along with plans to build or re-open 36 miles of roads.  The court held that an EIS was required because of scientific controversy about the effects of variable density thinning on what plaintiffs characterized as “mature, moist forest.”  The court also found that the Forest failed to show that cumulative effects would not be significant.

In both cases, the court found that the Forest “did not engage” with the information provided by the plaintiffs after, “The plaintiffs, especially Bark, got people out into the landscape and spent thousands of hours collecting information about what was going on in the land and gave that information to the Forest Service,” said attorney Brenna Bell, who spent four years on the case.  Failing to engage is a common reason for the Forest Service failing to win in court, especially when under pressure to meet “timber volume targets imposed by President Donald Trump’s administration.”

The EA stated that the Project would assertedly make the treated areas “more resilient to perturbations such as . . . largescale high-intensity fire occurrence because of the reductions in total stand density.”  Plaintiffs had provided “substantial expert opinion” that disputed that outcome.  As plaintiffs point out in their victory notice, here is how the court viewed it:

“Oregon Wild pointed out in its EA comments that “[f]uel treatments have a modest effect on fire behavior, and could even make fire worse instead of better.” It averred that removing mature trees is especially likely to have a net negative effect on fire suppression. Importantly, the organization pointed to expert studies and research reviews that support this assertion

Oregon Wild also pointed out in its EA comments that fuel reduction does not necessarily suppress fire. Indeed, it asserted that “[s]ome fuel can actually help reduce fire, such as deciduous hardwoods that act as heat sinks (under some conditions), and dense canopy fuels that keep the forest cool and moist and help suppress the growth of surface and ladder fuels . . . .” Oregon Wild cited more than ten expert sources supporting this view.”

Even the fuels report by the Forest Service acknowledged the possibility of increased fire severity. The court held (emphasis added):

“In its responses to these comments and in its finding of no significant impact, the USFS reiterated its conclusions about vegetation management but did not engage with the substantial body of research cited by Appellants. Failing to meaningfully consider contrary sources in the EA weighs against a finding that the agency met NEPA’s “hard look” requirement as to the decision not to prepare an EIS. This dispute is of substantial consequence because variable density thinning is planned in the entire Project area, and fire management is a crucial issue that has wide-ranging ecological impacts and affects human life.”

The opinion is short and worth reading as a good example of how not to approach NEPA effects analysis (i.e. “let’s make this fit into an EA instead of an EIS”).  The court cited 9th Circuit precedent for this requirement: “To demonstrate a substantial dispute, appellants must show that “evidence from numerous experts” undermines the agency’s conclusions.” The court is not choosing the science; only faulting the Forest Service for ignoring conflicting views that it found rose to a level of scientific controversy.  Under NEPA, evidence of scientific controversy requires an EIS to fully explore how the use of that science may be important to determining environmental impacts.

The popularity of categorical exclusions

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WildEarth Guardians noticed that the Forest Service is approving more and more vegetation management projects using categorical exclusions from NEPA procedures:  “a category of actions which do not individually or cumulatively have a significant effect on the human environment.”  They decided to do a little research, and found someone to report on it.

Rissien used Forest Service postings to tally all the logging and/or burning projects proposed for the past quarter – January through March – where forest managers had applied a “categorical exclusion” to avoid the public process normally required by law.

For just those three months, 58 national forests– that’s three-quarters of the forests in the West – proposed 175 projects that would affect around 4 million acres.

Rissien found, during the past quarter, USFS Region 4 – which covers southern Idaho, Nevada and Utah – proposed four projects that exceeded 100,000 acres each. One was 900,000 acres alone.

USFS Region 1, which includes Montana, northern Idaho and North Dakota, proposed 30 projects with CE’s last quarter, totaling more than 215,000 acres.

Logging projects intended to reduce insect or disease infestation or reduce hazardous fuels can be as large as 3,000 acres with some limitations. One CE created by the Forest Service for “timber stand and/or wildlife habitat improvement” has no acreage limit. Rissien found the Forest Service uses that for a majority of projects, and doesn’t even give a reason for others.

(There is also the “road maintenance” CE that has been the subject of litigation, including EPIC v. Carlson, here.)

There are some things to question in the article, but the slant of the article is not so much that what the Forest Service is doing is illegal, but that it is being done without much public information or awareness.  The article also points out that the Forest Service just seems to be following its marching orders from the president.  Tracking through the links gets you to this letter from the acting deputy chief, which says:

Consistent with this direction, Regional Foresters are to ensure that the Agency meet minimum statutory timeframes for completion of National Environmental Policy Act documentation and consultation with regulatory agencies. Categorical exclusions to complete this work should be the first choice and used whenever possible. I encourage you to explore creative methods and set clear expectations to realize this priority effort.

There’s a few points to make here.  I’m not aware of any “minimum statutory timeframes” for NEPA or consultation (the consulting agencies do have a deadline for providing a biological opinion).  I would translate “explore creative methods” into “take legal risks.”  Artificial deadlines aren’t creative, but they also result in legal risks.  Last is the implication that the use of categorical exclusions somehow avoids the need for an administrative record that shows that the use of the categorical exclusion isn’t arbitrary – that it fits the requirements of the category and does not have any extraordinary circumstances that could result in significant effects.  The lack of public review or an administrative objection process may save time, and it forces an opponent to sue, but it increases the risk of losing the case on an issue that could have been resolved before the decision.  (But if it gets points on the board during the game, does it matter what happens after?)  WEG said, “But we have to take their word for it since there is no supporting analysis we can review.”  If that’s what is really happening, it would eventually be a problem for the Forest Service in court.

NFS Litigation Weekly March 27, 2020

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The Forest Service summaries are here:  Litigation Weekly March 27_2020_For Email

This week there are no documents included with the summaries.  Where I’ve got something I’ve added a link.

COURT DECISIONS

The district court held that the Forest Service and the Bureau of Land Management violated NEPA in conjunction with the authorization of oil and gas leases and fracking on the Wayne National Forest.  (The CBD announcement link above includes a link to the opinion.  For an alternative view that uses this as an example of a need for NEPA reform, see this.)

The district court denied plaintiff’s motion for reconsideration of the court’s decision to lift the injunction against the Miller West Fisher Project on the Kootenai National Forest because the project has been halted while the access management direction in the forest plan is being reconsidered, as discussed here in conjunction with the Pilgrim II Project.

The district court dismissed this case concerning the Rocky Mountain Regional Forester’s authorization permitting the use of chainsaws to clear trails in designated wilderness on the San Juan and Rio Grande National Forests because the Forest Service formally withdrew the authorization.  (We previously discussed this issue here and here.)

The circuit court upheld the use of a HFRA categorical exclusion for the Smith Shields Forest Health Project on the Custer-Gallatin National Forest and the “Clean-up Amendment” to the Gallatin Forest Plan as it related to identification of old growth forest and elk hiding cover.

The district court found violations of NEPA, NFMA and ANILCA for the Prince of Wales Landscape Level Analysis Project and the Twin Mountain Timber Sale on the Tongass National Forest as discussed here.  (Earlier discussion of the invalidated “condition-based” management is found here.)

  • WildEarth Guardians v. Weber (D. Mont.)

The district court denied a motion to dismiss the claims against the Flathead revised forest plan related to areas designated as suitable for snowmobile use.

  • Thiessen v. Irwin (D. N.M.)

The district court dismissed this case because the plaintiffs incorrectly served the complaint against the Forest Service for cancelling a grazing permit.

  • Wilderness Watch v. Perdue (9th Cir.)

The circuit court affirmed the decision that there were NEPA and Wilderness Act violations from allowing helicopter operations to collect wolf data on the Salmon-Challis National Forest, but remanded to the district court to modify the injunction regarding use of the data.  (This was posted earlier here and the district court decision was discussed here.)

  • Native Ecosystem Council v. Marten (D. Mont.)

The district court held that the Custer-Gallatin National Forest violated the Endangered Species Act by failing to complete a biological assessment for the wolverine and violated the National Forest Management Act because its calculation of elk hiding cover violated the forest plan for North-Hebgen Multiple Resource Project.

UPDATE

  • Devil’s Garden Preservation Group v. U.S. Forest Service (E.D. Cal.)

The district court denied the plaintiffs’ motion to compel the Forest Service to provide documents through discovery on this case concerning the gathering of wild horses on the Modoc National Forest.

NEW CASE

The complaint (linked to above) alleges that Idaho Panhandle National Forest and U.  S. Customs and Border Protection violated the forest plan and NEPA when approving the construction and maintenance of a new road and removing seasonal restrictions on five other roads near the Canadian border.  (More in this article.)

NOTICES OF INTENT

The Center for Biological Diversity claims the Forest Service violated The Endangered Species Act by not following requirements in the U.S. Fish and Wildlife Service’s biological opinions for 20 grazing allotments in the Coconino, Prescott, and Tonto national forest, and failing to reinitiate consultation on many species affected in riparian areas.  (This article includes pictures from the plaintiff’s monitoring.)

  • Custer-Gallatin bridge and trail

Paul and Cathy Donohoe of Nye Montana claim the Forest Service violated the Endangered Species Act regarding the effects on grizzly bears of construction of a bridge over the West Fork of the Stillwater River and the creation of a connector trail between the West Fork of the Stillwater Trailhead and the Castle Creek Trailhead Project.

OTHER AGENCIES

  • Voyageur Outward Bound School v. United States (D. D.C.)

To resolve several consolidated cases involving the proposed Twin Metals Mine on the Superior National Forest, the district court upheld BLM’s reinstatement of 2004 leases.  (This proposal has been discussed here and here. According to this article, which summarizes the complicated history, an appeal is planned.)

The circuit court reversed a decision by the U. S. Fish and Wildlife Service to designate critical habitat for the endangered jaguar in southwestern New Mexico and southeastern Arizona.  (Another summary is here.)

BLOGGER’S BONUS

The US Army Corps of Engineers, Bonneville Power Administration, and the Bureau of Reclamation produced a draft plan for hydrosystems operations in the Columbia River basin.  Once again it proposes to leave the Snake River dams in place.  Consultation will be required with the National Marine Fisheries Service on several listed salmon runs.  Courts have thrown out five similar plans since 2001 that were approved by NMFS.  I was involved in at least one of these because the Forest Service provides much of the spawning habitat, and has a responsibility to help mitigate the effects of these dams as long as they are in place.  (Here’s a second perspective.)

 

More research on less tree growth after fire

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(RJ Sangosti, The Denver Post)

 

 

This article summarizes some recent research on the topic:

Among Stevens-Rumann,’s work was a 2017 study of nearly 1,500 sites charred by 52 wildfires in the U.S. Rocky Mountains. Her research found that lower elevation trees had a tough time naturally regenerating in areas that burned between 2000 and 2015 compared with sites affected between 1985 and 1999, largely due to drier weather conditions.

More recently, a 2019 study written by her colleague Kerry Kemp found that both Douglas fir and Ponderosa pine seedlings in the Idaho’s Rocky Mountains — just south of B.C. — were also struggling in low-lying burned areas due to warmer temperatures, leading to lower tree densities.

Both studies attribute climate change to be the lead cause of why the trees are struggling to grow back in certain fire-scarred areas.

As a result, some ecosystems will no longer be able to support tree species. Instead they may convert to grasslands, she said.

We’ve talked about this before (for example, here).  But I would like to know how this kind of information is being incorporated into long-term planning for timber harvest levels. In accordance with the requirement for sustainability on national forests, we should be assuming forest growth consistent with the natural range of variation, which should reflect the effects of climate change on future forests.  What I would expect to be seeing based on this kind of research is reduced area suitable for timber production because it would become too dry, and reduced volume resulting from reduced density, slower growth rates and more frequent fires.  “Sustained yield” means that projections of lower future timber yields may lead to reduced near-term volume. I’ve looked at the timber volume documentation for a few forest plan revisions, and I haven’t found anything there about climate change (there’s usually an unconnected section on the effects of climate change somewhere).  (Projected timber harvest volumes are not tending to go down in revised forest plans.)  Maybe that just requires digging deeper than the public-facing documents or maybe it’s not happening.   Does anyone know more about this?

Texas congressional delegation wants federal oil & gas leasing to fire up in the state

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From the Forest Service scoping notice:

The National Forests and Grasslands in Texas (NFGT) is initiating the preparation of an environmental impact statement (EIS). The EIS will analyze and disclose the effects of identifying areas as available or unavailable for new oil and gas leasing. The proposed action identifies the following elements: What lands will be made available for future oil and gas leasing; what stipulations will be applied to lands available for future oil and gas leasing, and if there would be any plan amendments to the 1996 NFGT Revised Land and Resource Management Plan (Forest Plan).

The Forest Service withdrew its consent to lease NFGT lands from the Bureau of Land Management (BLM) for oil and gas development in 2016. The reason for the withdrawal of consent was due to stakeholder concerns, including insufficient public notification, insufficient opportunity for public involvement, and insufficient environmental analysis. There is a need to analyze the impacts of new oil and gas development technologies on surface and subsurface water and geologic resources; air resources; fish and wildlife resources; fragile and rare ecosystems; threatened and endangered species; and invasive plant management. There is also a need to examine changed conditions since the Forest Plan was published.

These leasing availability decisions are forest plan decisions that were most recently made in 1996.  The action proposed by the Forest Service would result in changes in the stipulations and would therefore require a forest plan amendment.  The changes would shift about 11,000 acres from “controlled surface use” to “no surface occupancy,” and remove timing limitations from about 35,000 acres.

A letter from five Republican members of the delegation disagrees with the premise that the 1996 analysis was inadequate, and is unhappy with the pace of the amendment process.

The published timeline anticipated a Draft EIS in the winter of 2019 with the Final EIS expected in the fall of 2020. We are concerned that this timeline is no longer achievable given current pace of progress.

We request that USFS end the informal comment period, issue a Draft EIS this spring and ultimately approve the Final EIS that reinstates BLM’s ability to offer public competitive leases of National Forest and Grasslands in Texas for oil and gas leases before the end of 2020. While USFS is required by law to respond to eligible comments received within the public comment window (CFR218.12), the Forest Supervisor also has the authority to declare the available science sound, conclude the public comment period, and proceed with the issuance of the scoping comments and alternative development workshops as the next steps ahead of a Draft EIS (CFR219.2.3, 219.3) (sic).

That last sentence got my attention as the kind of congressional attention to Forest Service decision-making that might cause them to cut a legal corner here or there (especially when there is an election coming).  I also noticed the absence of any reference to the new requirements for amendments, and maybe the delay could have something to do with this becoming evident to them as a result of scoping.  36 CFR §219.13(b)(6):

For an amendment to a plan developed or revised under a prior planning regulation, if species of conservation concern (SCC) have not been identified for the plan area and if scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether such species is a potential SCC, and if so, apply section §219.9(b) with respect to that species as if it were an SCC.

I found nothing in the EIS for the 1996 revision about effects of oil & gas development on at-risk wildlife species.  You’d think the new information since 1996 might have something to do with effects on climate change, too.

NFS Litigation Weekly March 6, 2020

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Forest Service summaries:  Litigation Weekly March 06_2020 Email

COURT DECISIONS

The 6th Circuit Court of Appeals issued an Order in favor of the Forest Service concerning amenities at the Marsh Branch Boat Launching Facility in the Daniel Boone National Forest.  This was an attempt by an individual to compel the Forest Service to repair a security light and provide picnic tables because they charged a fee under the Federal Lands Recreation Enhancement Act.

NEW CASES

Neighbors of the Mogollon Rim filed a complaint against the Forest Service and U.S. Fish and Wildlife Service regarding the allotment management plan and grazing permit for the Bar X and Heber-Reno Sheep Driveway Allotments on the Tonto National Forest involving the effects of grazing on the Mexican Spotted Owl and narrow headed garter snake.   (D. Ariz.)

Plaintiffs filed a complaint against the Forest Service regarding the Fossil Ridge II Land Exchange on the Gunnison National Forest, which would allegedly eliminate access to private property.  (D. Colo.)

OTHER AGENCIES

The District Court of Idaho has required notice and comment rulemaking for the BLM to change its public comment process for oil and gas lease sales in sage grouse habitat, and failure to do so resulted in the court cancelling $125 million in recent lease sales in Nevada, Utah and Wyoming.  (More in this article.)

 

BLOGGER’S BONUS

(Update.)  Three  environmental groups are suing the BLM over its decision to allow development of a gas field that overlaps with the state of Wyoming’s only recognized sage grouse winter concentration area and a migration path that’s used by pronghorn.  (More in this article.)  We have discussed the “path of the pronghorn,” which includes the Bridger-Teton National Forest, here.

(Update.)  As a result of a lawsuit by the Center for Biological Diversity, the U. S. Fish and Wildlife Service has designated critical habitat for the black pinesnake in the longleaf pine forests of Mississippi and Alabama, including the DeSoto National Forest, which comprises the majority of the habitat.

(New case.)  The Center for Biological Diversity has filed a new lawsuit against the Fish and Wildlife Service for failing to act on petitions to list 241 species as it had specified in a schedule it adopted in 2016.  The CBD press releases includes a link to a map that shows which species are found in each state (if you click on the state).  Many are found on national forests.  (More in this article.)

(New case.)  A Montana ranch as sued an individual for trespassing when he crossed from one piece of national forest land to another at a corner (with an 80-foot gap) where that land abuts private land.  The individual has claimed a prescriptive easement.  The Gallatin National Forest states that it has no position.

(New case.)  Surviving members of a family have sued the Forest Service for negligence, wrongful death, and negligent infliction of emotional distress because relatives were killed in a Tonto National Forest campground by a flash flood, and the Forest Service failed to provide a warning.

 

Supreme Court to look at science and politics

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In my experience, there have been lots of controversies where the issue is about what scientific information was considered by an agency but was suppressed or ignored by an administrator, often for allegedly political reasons.  It’s not unusual for the results of litigation to turn on documents that show an agency decision being arbitrary and capricious (violating the Administrative Procedure Act) because it is not supported by the record.  But do those kinds of documents have to be available to the public, and what if they weren’t?  The Supreme Court will be addressing such questions in U. S. Fish and Wildlife Service v. Sierra Club.  The case involves the Freedom of Information Act, and its requirement to make government records available subject to exceptions that may cause harm, in particular protection of an agency’s “deliberative process.”  (This exception generally lines up with requirements for what must be in an agency’s administrative record for a decision.)

The dispute stems from the Environmental Protection Agency’s 2011 proposal to change how it regulates power plants’ cooling water intake structures, which can crush or boil fish and other aquatic creatures.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service advised the agency on how the plan would affect threatened and endangered species. The services crafted draft opinions that said the EPA’s proposal was likely to harm protected species, but they later changed their conclusion and issued a “no jeopardy” finding.

When the Sierra Club used FOIA to get records related to the consultation process, the agencies withheld the draft opinions. After years of litigation, the U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records.

The Trump administration in October asked the Supreme Court to step in, arguing that the circuit court ignored FOIA Exemption 5, which protects records from an agency’s “deliberative process.” The Sierra Club countered that the documents were labeled drafts but functioned as final opinions.

While this article doesn’t talk about it, the major federal environmental statutes have requirements to use the “best science,” including the Endangered Species Act involved in this case, but also NEPA and the Forest Service Planning Regulations.  Agencies must prove they have done this by “showing their work.”  This includes disclosing contrary science, and providing the rationale for not relying on it.  It seems to me that any changes in the use of science or how it is viewed would be relevant to this requirement and must be explained to the public.  This is probably why there are comments like these on this case:

Margaret Townsend, a Center for Biological Diversity attorney who focuses on government transparency, said her group will be watching the case closely, as the Supreme Court “has a crucial opportunity to tell agencies they can’t hide science at the expense of our endangered animals and plants.”

Brett Hartl, government affairs director for the center, noted that expanded use of FOIA’s “deliberative process” exemption could allow the EPA and others to block disclosure of critical documents that explain agency decisions.

Lewis and Clark Law School professor Daniel Rohlf said a win for the government at the Supreme Court could help agency leaders overrule their own scientists and other experts.

Here’s what the government would like us to believe (according to the apparently pro-government-secrecy advocates the Pacific Legal Foundation):

“And here the agencies decided that the draft should not be finalized because further consultation was necessary, and then actually engaged in more consultation before issuing a final opinion.”

Consultation with whom, I wonder.  Since the Supreme Court agreed to review the case, the assumption is they would like to reverse in favor of the government.  The Sierra Club may decide to fold, also because FOIA has been amended since this case was filed to restrict the use of this FOIA exemption and promote greater disclosure.

NFS Litigation Weekly February 28, 2020

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The Forest Service summaries are here:  Litigation Weekly February 28_2020_Final

UPDATES

A case filed by a ranch and Idaho state officials was voluntarily dismissed because the BLM and Forest Service subsequently submitted the 2015 sage grouse plan amendment decisions to Congress in accordance with the Congressional Review Act.

(Blogger’s note:  The Forest Service summary refers to the plan amendments once as the “Sage Grouse Rules.”  These court document do not use this term, and I don’t believe a court has ever determined that forest plans are “rules” requiring submission to Congress under the CRA.)

NEW CASES

The plaintiffs are challenging the Darby Lumber Lands Phase II Project on the Bitterroot National Forest, which involves “restoration” of lands formerly owned and logged by the Darby Lumber Co., and changing forest plan management direction for elk.  (D. Mont.)  (More of the context is provided here.)

The plaintiffs bring various claims under ESA and NFMA related to the effects of management of the Apache-Sitgreaves National Forest riparian areas on the endangered New Mexico meadow jumping mouse and its critical habitat.  (D. Ariz.)  (More of the context, including a Forest Service response, is included here.)

 

BLOGGER’S BONUS

  • More on sage grouse

(Update)  In response to a court ruling against the 2019 amendments to the 2015 amendments to sage grouse management in BLM land management plans in seven states, the BLM is publishing six draft supplemental environmental impact statements.  They are not proposing to change the 2019 decision.  (They are currently operating under the 2015 amendments in accordance with the court ruling.)  An article from Colorado is here.

  • Waters of the US (WOTUS)

(Notice of Intent)  More than a dozen conservation groups notified the Trump administration that it will challenge its compliance with the Endangered Species Act when it changed a federal rule aimed at protecting rivers and streams across the United States.  EPA’s new rule, announced January 23 and expected to go into effect in mid-March, would exclude ephemeral waters, such as washes, that do not flow year-round, plus “millions of acres of rivers, streams, lakes, wetlands, impoundments, and other waterbodies,” the groups wrote.  (This article includes a link to the notice through the CBD press release.)  We previously discussed this here.

(Court opinion)  The District of Columbia Circuit Court of Appeals has upheld a decision by the BLM to remove wild horses from the Caliente Complex in Nevada.  The court found that a challenge to the land management plan decision to not manage the area for horse was beyond the 6-year statute of limitations for litigating agency decisions.  It also found that the project “gathering” decision complied with the Wild Free-Roaming Horses and Burros Act and NEPA.

(Fallout) “Although Benson does not explain the decision to cancel the objection period in his written notice, and in a statement to the Beacon merely said it had been placed on hold and will be reinstated at a later date, Mike Garrity, executive director of the Alliance for the Wild Rockies, explained that a 2019 federal court decision surrounding his group’s lawsuit over a separate but adjacent timber project found that road closures were ineffective to protect the declining population of grizzly bears.”  That court decision on the Pilgrim project was provided in this Litigation Weekly.

(Update)   After the Supreme Court hearing, both sides seem to agree that the Court would allow the pipeline to be built on national forest land under the Appalachian Trail.  That’s assuming the other flaws in the process can be corrected (as discussed here).

A man in Colorado was cited for using a snowmobile in a designated wilderness on fragile bare ground.  The prosecution was partly the result of social media.

(New case)  The Federal Energy Regulatory Commission was sued by the Center for Biological Diversity for approving a permit for building reservoirs and associated infrastructure to generate electricity from pumped water.  It would affect lands on the Gila and Apache-Sitgreaves National Forests, and the San Francisco River is being considered for recommended protection under the Wild and Scenic Rivers Act in the Gila forest plan revision.

NFS Litigation “Weekly” February 14, 2020

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Just for the record, the Smokey Wire received two “weeklies” in November, one in December and one in January, so if you saw these you haven’t missed any weeks.  I’ve supplemented that with some other litigation news in between (including some of these cases).

Here I’ve again provided a short summary of each case, and a longer summary is provided in this document:  Litigation Weekly February 14_2020_Final for email.  The bulleted links below are usually to court documents associated with the case and provided by the Forest Service.  

COURT DECISIONS

The 9th Circuit Court of Appeals has overruled the district court and blocked the “Kids’ Climate Case” from proceeding due to lack of standing for judicial review.

The Northern District of California and the 9th Circuit court of appeals both denied motions for a preliminary injunction against the Ranch Fire projects on the Mendocino National Forest and a portion of the Berryessa-Snow Mountain National Monument.  (This case was included here.)

The 9th Circuit Court of Appeals panel upheld the District Court of Colorado’s decision on a case applying the Recreation Enhancement Act to recreation user fees for parking on the White River National Forest.  (We’ve also discussed this here.)

The Arizona District Court upheld the determination that the site of the proposed Rosemont Mine on the Coronado National Forest is critical jaguar habitat, and then invalidated the U. S. Fish and Wildlife Service’s biological opinion regarding the effects of the mine on several listed species.  (Additional information may be found in this article.)

NEW CASES

Plaintiff has challenged continued livestock grazing of 30 allotments on the Apache-Sitgreaves and Gila National Forests without reinitiating consultation with the Fish and Wildlife Service regarding the effects on eight listed species in riparian habitats.  (D. Ariz.)

NOTICES OF INTENT

Five different environmental groups are challenging the Fish and Wildlife Service’s Biological Opinion for the effects on grizzly bears of the Upper Green River Area Rangeland Project that authorizes livestock grazing on the Bridger-Teton National Forest (including allowing the incidental take of 72 bears).

The Alliance for the Wild Rockies and Native Ecosystems Council claim a violation of the Endangered Species Act regarding the effects on grizzly bears from the Elk Smith Project on the Helena-Lewis & Clark National Forest, as well as failure to consider wolverines (a species currently proposed for listing).

The Alliance for the Wild Rockies, and the Yellowstone to Uintas Connection claim the decision by the Caribou-Targhee National Forest to authorize the Crow Creek Pipeline Project violates ESA by improperly analyzing Canada lynx and failing to consider three other listed species.  (This NOI described here.)

OTHER CASES

(No Forest Service summary.)  A case filed by a ranch and Idaho state officials was voluntarily dismissed because the BLM and Forest Service subsequently submitted the 2015 sage grouse plan amendment decisions to Congress in accordance with the Congressional Review Act.

The Idaho District Court denied a motion by the defendant mining company to stay this litigation while it negotiated with the EPA concerning water pollution.  This involves the Stibnite Gold Mine Project on the Payette National Forest.

The District Court for the District of Columbia remanded the U.S. Fish and Wildlife Service’s decision to list the northern long-eared bat as threatened back to the FWS to reconsider whether it should be listed as endangered.  (Also discussed here.)

 

BLOGGER’S BONUS

The Alaska District Court recently heard arguments regarding these sales on Prince of Wales Island. A timber harvest, “might be right next door to you or they might be a hundred miles away,” an attorney for the plaintiffs said.

Four environmental groups dropped a lawsuit filed last summer when the BLM suspended two oil and gas leases after the lawsuit was filed.  The Center for Biological Diversity, one of the plaintiffs, said that the leased lands straddle the Little Colorado River and Silver Creek, home to two federally protected threatened species: the Little Colorado spinedace and the yellow-billed cuckoo, and are upstream from the largest remaining population of humpback chub in the Grand Canyon, and adjacent to the Petrified Forest National Park.

 

BLM Great Basin fuel break EIS

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The BLM has released its final decision to implement 11,000 miles of fuel breaks in six states.  The figure is in miles because the fuel breaks would be constructed along roads and right-of-ways.  Given our discussion of the Forest Service trend towards large landscape “condition based” management decisions, this language from an article quoting the BLM piqued my curiosity (my emphasis added):

According to Jennifer Jones, a spokeswoman for the BLM, the program will help streamline the implementation process by reducing or eliminating the need for environmental analysis. Once the plan is finalized and funding available, said Jones, “offices will be able to use it immediately and for many years to come.”

The timeline for implementation and the location of fuel breaks will depend on what offices develop plans and apply for funding.

The BLM’s notice of availability added:

… these potential treatment areas cover approximately 38 million acres within the project area boundary.

The goal of these Programmatic EISs is to significantly minimize the subsequent National Environmental Policy Act (NEPA) work required to approve on-the-ground projects.

(A second EIS will address “fuel reduction and restoration” over the same area.)

These statements sound like the more conventional approach to programmatic NEPA analysis (such as has been done for the use of herbicides).  They are intended to provide context for subsequent site-specific analysis that will produce overall savings in planning efficiency.  They make no pretense that this large scale analysis would necessarily be a substitute for site-specific analysis as some Forest Service proposals have stated. This kind of “merely programmatic” analysis has sometimes been given more leeway by the courts because a subsequent site-specific analysis would follow that would address site-specific issues and effects that have not been addressed.

The BLM decided also to do an EIS, unlike some of the Forest Service efforts that used an EA.  This analysis of effects of fuel breaks is also probably more site-specific than area-wide, “condition-based” Forest Service proposals because they know where the candidate corridors are, and they know the area of BLM lands where no action would be taken (away from these corridors).   (The scientific validity of fuel breaks is also discussed.)