Jon Haber

This week in forest planning

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There just seemed to be a lot of forest planning news …

The Rio Grande National Forest plan revision objection period ends soon (article).

Some of the major changes that will be implemented once the 60-day objection period is complete will include going from 17 management areas to nine, larger management areas. The purpose of the decrease in management areas is so that the Forest Service can manage areas in a more organized manner. The plan also altered the Southern Rockies Lynx Amendment to include the dead tree habitat. The original amendment only included green and healthy forest. This change would now include the dead and beetle kill tree habitat in the Rio Grande National Forest. The plan also includes two wildfire management areas, a smaller portion of new recommended wilderness areas near the Sangre De Cristo Mountains and tree harvesting plans that will be spread out over several years to help utilize the beetle kill in the area.

The Inyo National Forest is releasing their final revised land management plan and environmental impact statement for review and possible objections (press release).

The plan recognizes that fire is integral to forest health, while still taking proactive measures to protect communities and mitigate smoke impacts, which affects residents, visitors, and tourism. The plan also strikes a balance of treating fuels, protecting our communities from wildfire, and allowing fire to provide ecological benefits, including fuel reduction, when safe to do so.

The Sierra and Sequoia National Forests are in the last week of public comments on their second draft revised plan and EIS (announcement).

Earlier versions of these draft documents were released in 2016. We have since revised the draft documents to address changed conditions across the landscape, including extensive tree mortality, and other concerns brought up through public participation.

The Carson National Forest is taking comments on its draft plan and EIS (commentary from New Mexico Wild).

The protection and restoration of watersheds, wetlands and riparian areas will ensure that our forests continue to provide cold, clean water. It will benefit our fish and wildlife and maintain habitat connections across the landscape. This is one place where the draft forest plan falls short – protections for wetlands and riparian areas are too few and fail to fully recognize the benefits of intermittent and ephemeral waters and their intimate connection to water that flows on the surface.

The Salmon-Challis National Forest is going to prepare separate revised forest plans (article).  NFMA requires a forest plan for “each unit of the National Forest System,” so there may be a reason the forest supervisor “can’t think of another forest that’s gone this route.”  I think NFMA might also answer his question about “whether a full-on revision of both plans needs to occur or whether revisions can be made by amending the plans” (the former).

Mark said he has learned that some people on the Challis end of the forest feel that “they were left behind,” when the forests were combined and there was no longer a forest supervisor based in Challis. The supervisor is based in Salmon, with two district rangers based in Challis. Some people have said they feel the emphasis on the forest and its management is focused on the Salmon side because of where personnel are based.

The Custer Gallatin National Forest plan revision is implicated in a private land development (article).

While the public has little recourse to protest what happens on private land in the high Crazies, Cleveland said, the Forest Service could incorporate protections for public lands in the range into the revised Custer Gallatin Forest plan…  It would be a lot less likely for them to build a road if the public sections get recommended wilderness designation.

The National Forests and Grasslands in Texas are proposing to amend their forest plan to identify areas available for oil and gas leasing (press release).  This will be done in accordance with the amendments to the 2012 Planning Rule that will likely require them to address ecological integrity and species viability.

The USDA Forest Service, National Forest and Grasslands in Texas (NFGT), is beginning the preparation of an environmental impact statement (EIS) to analyze and disclose the effects of identifying NFGT lands administratively available for oil and gas leasing. The proposed action will identify lands available for leasing, leasing stipulations, and necessary amendments to the 1996 NFGT Forest Plan.

Forest planning for wildlife corridors

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The 2012 Planning Rule requires that forest plan revisions address wildlife habitat connectivity. In fact it is one of the “dominant ecological characteristics” that must occur with the “natural range of variation” in order to meet the substantive regulatory requirement for “ecological integrity” and the NFMA statutory requirement for “plant and animal diversity.” The Rio Grande National Forest doesn’t seem to want to take this seriously in its revised forest plan, as recounted here:

“At the federal level, New Mexico Sen. Tom Udall and others have proposed a Wildlife Corridors Conservation Act to create more tools for protecting migration routes. Our neighbors in New Mexico passed a state wildlife corridors act earlier this year. Colorado Parks and Wildlife has emphasized the need to ratchet up awareness and protection of corridors. And even former Interior Secretary Ryan Zinke issued an order to conserve big-game migration corridors and winter range.

“Hence, with all of this activity agitating for increased concern and elevated action to protect wildlife corridors, the new management plan just announced by the Rio Grande National Forest is astonishingly tone deaf. Our national forest neighbors to the east finalized their long-awaited 20-year vision and ignored widespread calls for action to elevate wildlife corridors.

“It’s a disappointing example of compartmentalization taken to the extreme. Immediately adjacent across the state line in New Mexico, the Carson National Forest unveiled its draft plan and highlighted extraordinary wildlife values there around San Antonio Mountain with a dedicated Wildlife Management Area.  But it’s as though an administrative wall exists at the state line.”

“Having the Interior Department and state wildlife agencies and elected officials and some national forests all calling for action to protect wildlife corridors isn’t enough if one critical player, like the Rio Grande National Forest, is missing in action.”

It only takes one bad actor to ruin a wildlife corridor. That is a reason why connectivity was given such a high profile in national forest planning for diversity (I was there). The Rio Grand is currently taking objections to its final revised plan, which will be reviewed by someone at the regional level to determine if the Forest is meeting its connectivity/diversity obligations.  However, this is a cross-regional problem (Region 2 and Region 3), which is why the national office of the Forest Service needs to look at why forests in two regions can’t get their acts together on what conditions are needed for connectivity.

Maybe they should also take a look at a recent example in Region 4. This is a case where a state-recognized wildlife corridor led to changes in a trail project on the Bridger-Teton National Forest.

“The now-scrapped trail could have interfered specifically with the Red Desert-to-Hoback mule deer migration corridor, which was the first route designated by the state of Wyoming. An estimated 4,000 to 5,000 deer pass through the narrow bottleneck at the Fremont Lake outflow, according to a 2016 assessment of the migration path.”

‘The “desired future conditions” — a U.S. Forest Service equivalent for zoning — for where the trail would have gone are “developed and administrative sites” and “special use/recreation.” Those classifications would have allowed for new trails, and the Bridger-Teton’s forest plan easily predates the discovery of the migration route, which wasn’t until 2013. Outside of those processes, the forest sought input before proceeding with the plans.”

It’s great that the project decision is considering this new information and the new state designation.  I hope the Forest also recognizes the implications for any future projects in this area where it looks like they have decided that the desired condition is now something else.  The discovery of the migration route should have led to another look at the forest plan desired condition, and a plan amendment if they are deciding that it is no longer appropriate based on this new information.

 

 

 

 

NFS Litigation Weekly August 28, September 11, 2019

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As last time, I am just copying the cover email summaries provided by the Forest Service and providing the links to the supporting documents.  However, August 28 there were no supporting documents (including the more detailed summary document) they usually provide.  Also, apparently there was no weekly summary at all for September 4.

AUGUST 28

Forest Service Summaries:  None

Court Decisions:  Nothing to report

Litigation Update:  Nothing to report

New Cases:

Forest Management | Region 1

WildEarth Guardians and Western Watersheds Project v. Chip Weber et al. (19-0056, D. Mont.) Region 1— On August 8, 2019, plaintiffs filed an amended complaint in the District Court of Montana against the Forest Service concerning the Forest Service’s decision finalizing the 2018 revision to the Flathead National Forest Land Management Plan (revised Forest Plan) on the Flathead National Forest (FNF). The plaintiffs’ amended complaint incorporates the Endangered Species Act (ESA) – 16 USC 1536 and Administrative Procedure Act (APA) 5 USC 706(2)(A) – regarding section 7 consultation with US Fish and Wildlife Service (FWS), including consultation regarding winter motorized use designations.

BLOGGER’S NOTE:  The amended complaint was actually attached to the previous weekly summary and may be found here:  WildEarthGuardians_v_Weber_19-56_amended_19-056_8-8-2019

Forest Management | Region 1

Alliance for the Wild Rockies and Native Ecosystems Council v. Leanne Marten, et al. (19-00102, D. Mont.) Region 1— On August 26, 2019, the plaintiffs filed an amended complaint in the District Court of Montana regarding the Decision Memorandum (DM) and 2014 Farm Bill Healthy Forest Restoration Act (HFRA)Categorical Exclusion (CE) for the Willow Creek Vegetation Management Project (Project) on the Helena-Lewis and Clark National Forest (HLCNF). Plaintiffs allege the decision violates the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA).

 Recreation | Region 1

Yaak Valley Forest Council v. Sonny Perdue et al. (19-143, D. Montana) – Region 1.  On August 23, 2019, Plaintiff filed suit in the District Court of Montana against the Forest Service (FS) regarding use of the Pacific Northwest Trail (PNT) through the Yaak Valley within the Kootenai National Forest (KNF). Plaintiff alleges the FS violated the National Trails System Act (NTSA), Administrative Procedures Act (APA), National Forest Management Act (NFMA), and the Endangered Species Act (ESA).

(An article on this lawsuit may be found here.)

Notice of Intent:

Transportation | Region 1

NOI (dated August 9, 2019 and received August 13, 2019) by Alliance for the Wild Rockies (AWR) alleging the Forest Service and U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) requirements pertaining to the Hanna Flats Project on the Idaho Panhandle National Forest (IPNF) — Region 1. The AWR alleges the Forest Service failed to demonstrate compliance with the IPNF Forest Plan’s 2015 Access Amendment’s baseline total and open road miles requirements.

Natural Resource Management Decisions Involving Other Agencies:  Nothing to report

 

SEPTEMBER 11

Forest Service summaries:  2019_09_11_Litigation Weekly_Email

Court Decisions:  Nothing to report

Litigation Update:  Nothing to report

New Cases:

Forest Management | Region 1

00001_Alliance for the Wild Rockies v Jeannie Higgins_Region 1

Alliance for the Wild Rockies v. Jeannie Higgins et al. (19-0332, D. Idaho) Region 1— On August 29, 2019 the plaintiff filed a complaint in the District Court of Idaho against the Forest Service regarding the Hanna Flats Good Neighbor Project on the Idaho Panhandle National Forest (IPNF). The plaintiff claims the Forest Service failed to demonstrate compliance with the IPNF Forest Plan 2015 Access Amendment (baseline total and open road miles requirements) in violation of the Forest Plan, National Forest Management Act, National Environmental Policy Act (NEPA), 2014 Farm Bill—Healthy Forest Restoration Act (HFRA), and the Administrative Procedures Act.

Notice of Intent: 

Forest Management | Region 1

00003_NOI_Alliance for the Wild Rockies_Willow Creek Veg_Region 1

NOI (dated August 26, 2019) by Alliance of the Wild Rockies and Native Ecosystem Council (AWR and NEC) alleging the U.S. Fish and Wildlife Service (FWS) and the Forest Service violated the Endangered Species Act (ESA) pertaining to the Willow Creek Vegetation Management Project (project) on the Helena – Lewis and Clark National Forest (HLCNF) Region 1— The project was approved through use of the 2014 Farm Bill Healthy Forest Restoration Act (HFRA) Categorical Exclusion (CE), and concerns the HLCNF Forest Plan’s Amendment 19 road closure requirements.

This NOI is the Second NOI notice filed by AWR and NEC under the ESA. The initial filing was dated June 14, 2019 and concerned Wolverine ESA claims.

BLOGGER’S NOTE:  The reference to the HLCNF Forest Plan’s Amendment 19 is incorrect.  This is actually a challenge to the 2018 Amendment of the forest plan for grizzly bears that occurred in conjunction with the Flathead Forest Plan revision.

Forest Management | Region 1

00002_NOI_Alliance for the Wild Rockies_North Bridger Project_Region 1

NOI, dated August 30, 2019, by Alliance for the Wild Rockies and Native Ecosystems Council (AWR and NEC) alleging the U.S. Fish and Wildlife Service (FWS) and the Forest service violated the Endangered Species Act (ESA), concerning the North Bridger Project on the Custer Gallatin National Forest, as it pertains to the Canada lynx and its critical habitat (Region 1).

This NOI is the Second NOI notice filed by AWR and NEC under the ESA.  The initial filing was dated June 5, 2019 and concerned Wolverine ESA claims.

Natural Resource Management Decisions Involving Other Agencies:  Nothing to report

 

BLOGGER’S NOTE

AWR v. Higgins

The complaint raises NEPA claims regarding the designation of “wildland urban interface” and the development of a community wildfire protection plan.  Specifically, the designation of WUI allows the Forest Service to use the HFRA categorical exclusion.  The complaint argues that this constitutes Forest Service “adoption” of the community plan and that it did not adequately consider the effects of doing so under NEPA.  In fact, the adoption of a plan that determines how national forest lands would be managed must follow the forest planning process in accordance with NFMA.  It has always seemed to me that WUI designation changes how national forest lands are managed, and any reference to WUI in a forest plan would require public participation in how that area was identified, and plans for national forest lands can not be viewed as directing national forest management independent of their inclusion in a forest plan.  Maybe these issues will come up here.

BLOGGER’S BONUS

Siskiyou Mountain Salamander

The U. S. Fish and Wildlife Service determined that listing of this species, was not warranted despite the loss of BLM regulatory mechanisms discussed previously here.  It’s interesting that the FWS stated (as quoted here), “The Yreka Fish and Wildlife Office is working with the Klamath National Forest to develop a conservation strategy for the Siskiyou Mountains salamander, and in Oregon the Roseburg FWO is currently working with the Rogue River-Siskiyou National Forest and the Medford District Bureau of Land Management to implement a conservation agreement and strategy for this salamander. Together, these actions will help conserve the Siskiyou Mountains salamander on all federal lands across the range of the species.”  The ESA caselaw is clear that strategies that do not yet exist can’t be considered “existing regulatory mechanisms” for the purpose of listing decisions, and it’s also been clear that “existing” for national forest lands means included as forest plan components.

 

Forest Plan Revision Update

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Since planning is where this blog started, and is arguably where most of the things discussed here should be addressed and resolved at a national forest level, and is what I did in the Forest Service, I would be remiss if I didn’t provide an occasional status update, especially because three national forest are at key points in their plan revisions (below).  Here is the the summary provided by the Forest Service in March.

Most of the interest going forward is in how the 2012 Planning Rule would be implemented, and there are three national forests that have completed their revisions under that regulation:  Francis Marion, Flathead and El Yunque.  The Flathead has two pending lawsuits.

The Inyo has completed is objection process and the Forest is completing the assignments from the reviewing officer.  Here is the reviewing officer response to the objections.  The wildlife section illustrates what I think is a problem with the objection process – where the reviewing officer identifies a problem there is no follow-up to determine if what a forest says or does actually fixes the problem; even though the record is inadequate, the regional forester basically trusts the forest supervisor.  Examples:

Finding: The ROD states that the plan components meet the diversity requirement, but it does
not appear to meet the planning rule requirement to provide an explanation of how the plan
meets the diversity requirements of 36 CFR § 219.9.

Instruction: Include a summary in the ROD that provides an explanation of how the plan
components meet the diversity requirements.

What if the explanation reveals that the plan doesn’t actually meet the diversity requirements?

Finding: The record lacks scientific rationale for why 3 years of surveys are sufficient to determine that PACs are no longer occupied (SPEC-CSO-GDL 02).

Instruction: Clarify the record related to removing PACs.

Finding: Much of the management direction from the lengthy Humboldt-Toiyabe National Forest Land Management Plan Amendment related to sage grouse are reflected in the Revised Inyo Plan, but several standards and guidelines were not brought forward into the Revised Plan. While the record states that the revised plan is consistent with the Humboldt-Toiyabe Amendment regarding sage grouse, some Humboldt-Toiyabe Amendment plan components were not included, and there is a lack of rationale for which plan components were and were not included.

Instruction: Clarify in the record how the sage grouse related plan components from the Humboldt-Toiyabe Amendment were incorporated, or were not incorporated, and why.

What if the rationale is arbitrary, and the plan components are wrong?

Sometimes the Forest could actually change a decision, with apparently no recourse for the public but to sue:

Finding: It is not clear in the project record why the Destination Recreation Area is exempt from the California Spotted Owl plan components.

Instruction: Unless a clear rationale can be provided, remove the Destination Recreation Area exemption language.

And what if a “clear rationale” is not provided in the other examples where the instructions were to “clarify the record?”

And then there’s this “suggestion for the responsible official.”  “Consider including the list of species of conservation concern in the plan.”  Since the monitoring plan program must be explicitly tied to SCC (36 CFR §219.12(a)(5)(iv)), how could the plan not mention the relevant species?

The next forest expected to complete its revision is the Rio Grande.  It has released its final EIS and draft ROD and is in its 60-day objection period.  Here’s some more about that.

The plan also altered the Southern Rockies Lynx Amendment to include the dead tree habitat. “The original amendment only included green, healthy forest habitat, so we modified it to include our dead tree habitat which allowed for better management strategies,” said Perez.

The “original amendment” was also based on the best available scientific information about lynx and their habitat.

The Sierra and Sequoia national forests have issued a revised draft EIS and its public comment period closes September 26.  Maybe they have addressed the “burning” issues we’ve discussed on this blog?

 

Mountain bikes – off the beaten path

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Nobody bit on my late comment on the Tenmile South litigation (Helena-Lewis and Clark National Forest):

One piece of this decision is new to me: “My decision also includes restricting bicycle travel to system roads and trails.” Prohibiting bikes off-trail seems obvious, but it was criticized, and I wondered if this is commonly being addressed in travel planning.

I know there’s some readers with opinions on this, so I’ll try again.  Here’s the same decision on the Arapahoe-Roosevelt National Forest, captured in this headline “New rule in Arapaho National Forest limits bikes to designated trails:”

On Monday, the Forest Service announced that bicycles will no longer be allowed off designated trails and roads in the Sulphur Ranger District, which covers the Arapaho National Forest. The restriction applies to all kinds of bikes in both the summer and winter.

“A key aspect of this project is to balance all these trail improvements with the conservation of wildlife habitat, watersheds and other natural resources we value,” Ranger Jon Morrissey said. “Part of finding that balance is curbing the proliferation of user-created routes and keeping the impacts to the trails system so that wildlife and other resources can thrive.”

Off-trail use is how user-created trails are created, right?   (And I’ll argue it takes a lot fewer bike users – like maybe one – to create a trail than foot users.)  And the impacts of user-created trails seem like they would be not wanted on public lands just about everywhere.  Yet there is no specific requirement for the Forest Service to address this problem like there are regulations for motorized use that require travel planning and designation of routes.  So while there are designated system trails, there is apparently no requirement for bikes to stay on them.  Should there be a national prohibition?  Should forest plans identify areas where off-trail use is a desired condition?

NFS Litigation Weekly August 21, 2019

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The Forest Service is now providing these short overviews in their cover email, which serve the same purpose as the summaries I have been providing here, so I’m just going to copy them and add the links to the relevant documents.

Forest Service Summaries:  2019_08_21_Litigation Weekly_Email

Court Decisions:

Timber & Minerals | Region 6

Animal Legal Defense Fund v USA et al Region 6

Animal Legal Defense Fund, et al. v USA, et al. (18-1860, D.OR.) Region 6—On July 31, 2019 the District Court of Oregon issued an opinion and order in favor of the United States in which the Department of Agriculture is a party concerning commercial logging and mineral extraction contribution to climate change. This is the second climate change case that was filed after the Juliana v. United States (15-1517, D. OR., 18-36082, 9th Cir.). The Federal Government urged the district court to restrain “from dictating environmental policy by creating a “right to wilderness” and argued that the plaintiffs lacked standing to bring such a broad claim.”

Litigation Update:

Nothing to report

New Cases:

Recreation | Region 4

Sawtooth Mountain Ranch v USFS_Region 4

Sawtooth Mountain Ranch LLC et al. v. United States Forest Service et al. (19-00118, D. Idaho) Region 4— On August 8, 2019, plaintiffs filed an amended complaint in the District Court of Idaho against the Forest Service concerning plans to construct the Redfish to Stanley Trail (Trail) on the Sawtooth National Recreation Area (Sawtooth National Forest).

Notice of Intent:

Wildlife | Region 1

NOI Neighbors Against Bison Slaughter_Region 1

NOI (dated August 16, 2019 and received August 20, 2019) by Neighbors Against Bison Slaughter (NABS) alleging the Forest Service and National Park Service (NPS) violated the Yellowstone National Park Act (YNPA), National Forest Management Act (NFMA), Multiple-Use Sustained Yield Act (MUSYA), National Environmental Policy Act (NEPA), and Interagency Bison Management Plan (IBMP) by not imposing reasonable restrictions on the migrating and hunting of wild bison in Beattie Gulch on the Custer-Gallatin National Forest (CGNF) — Region 1.

Natural Resource Management Decisions Involving Other Agencies:

Pipeline | Region 8 & 9

Wild Virginia et al v USDOI Region 8_9

Wild Virginia, et al. v. U.S. Department of Interior, et al. (19-1866, 4th Cir.)-Region 8 and 9—On August 12, 2019 the petitioners filed a request for appeal with the 4th Circuit Court of Appeals concerning the Mountain Valley Pipeline on the Monongahela, George Washington and Jefferson National Forests. The petitioners are appealing pursuant to the Administrative Procedures Act, 5 U.S.C. 702, Section 19(d)(1) of the Natural gas Act to review the U.S Fish and Wildlife Service’s Biological Opinion (BO) and Incidental Take Statement (ITS) dated November 21, 2017 for the Mountain Valley Pipeline.

Mining | Region 1

Nez Perce Tribe v Midas Gold Corp Region 1

Nez Perce Tribe v. Midas Gold Corp, et al (19-307, D. Idaho)-Region 1— On August 8, 2019 the plaintiff filed a complaint in the District Court of Idaho against the defendants (Midas Gold Corp., Midas Gold Idaho, Inc., Idaho Gold Resources Company, LLC, and Stibnite Gold Company) concerning the Stibnite Gold Project on the Payette National Forest. Plaintiff’s complaint alleges violations under the citizen enforcement provision of the Federal Water Pollution Control Act (Clean Water Act-CWA). An initial Notice of Intent was sent to the defendants on June 5, 2019

BLOGGER’S NOTE

WildEarthGuardians_v_Weber_19-56_amended_19-056_8-8-2019

An additional document was included with this summary, but was not summarized.  It is an amended complaint filed on August 7 in WildEarth Guardians v. Weber, which is one of two lawsuits filed against the revised Flathead National Forest Plan.  They have dropped their claims of violations of NFMA and the Planning Rule and added claims related to the Endangered Species Act.

BLOGGER’S BONUS

Colville cows

The Maryland-based Center for a Humane Economy filed a suit in King County Superior Court, to prevent the state of Washington from killing more wolves from a pack that is preying on cattle. The Lands Council, a Spokane-based conservation group, said it may be time to move the cattle off of the Colville National Forest.  (However, the Forest Service is not a defendant in the lawsuit.) 

NFS Litigation Weekly August 7th & 14th, 2019

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Forest Service summaries:  August 7 and 14, 2019 Litigation Weekl

COURT DECISIONS

The District Court of Montana denied the plaintiffs’ motion for preliminary injunction to enjoin the Agency from constructing the Porcupine Ibex Trail on the Custer Gallatin National Forest.  Background here, and discussed here.

The Court for the Eastern District of California ruled favorably for the Forest Service on all claims associated with cattle grazing in three livestock allotments on the Stanislaus National Forest.

The District Court of Arizona vacated the Forest Service’s Final Environmental Impact Statement and Record of Decision for the Rosemont large scale copper pit-mining operation within the boundary of the Coronado National Forest.  (According to this article, Federal District Judge James Soto said in his decision Wednesday that the U.S. Forest Service “abdicated its duty to protect the Coronado National Forest” when it failed to consider whether the mining company held valid unpatented mining claims.)

The 9th Circuit Court of Appeals denied the appellants’ motion for injunction pending appeal of the Moose Creek Project on the Helena-Lewis and Clark National Forests under the Healthy Forest Restoration Act (2014 Farm Bill) Categorical Exclusion.

COMING SOON

The Central District Court of California will hear a case against the Cuddy Valley Forest Health/Fuels Reduction Project on the Los Padres National Forest (LPNF), which was analyzed and authorized under a 36 C.F.R. § 220.6(e)(6) categorical exclusion (CE) for timber stand and/or wildlife habitat improvement activities.  More on this lawsuit here.  This is the second project discussed here that is now under litigation.

Western Watersheds sent an NOI claiming the Forest Service is violating the ESA by failing to reinitiate consultation regarding impacts of its grazing management on listed fish (shortnose sucker and the Lost River sucker) and their designated critical habitat on the Modoc National Forest.

 

BLOGGER’S BONUS

In other mining news, state courts in Minnesota have approved the state rules that would allow the PolyMet copper-nickel mine planned within the watershed of the Boundary Waters Wilderness in the Superior National Forest, but blocked the mine itself until it addresses “procedural irregularities.”  In Colorado, the Colorado Court of Appeals ruled companies must reclaim uranium mines that sit idle for more than 10 years.

NFS Litigation Weekly July 31, 2019

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Forest Service Summary: 2019_07_31_Litigation Weekly

COURT DECISIONS – OTHER AGENCIES

The 4th Circuit of Appeals ruled against the U.S. Fish and Wildlife Service’s September 2018 Biological Opinion (BO) for the Atlantic Coast Pipeline  certificate of public convenience issued by the Federal Energy Regulatory Commission under the National Gas Act (again).  A portion of the pipeline project transverses the Monongahela and George Washington National Forests.  Forest Service decisions allowing the pipeline have also been invalidated and were discussed here.  The Appalachian Trail crossing issue has been appealed to the U. S. Supreme Court (discussed here).

 

BLOGGER’S BONUS

The New Hampshire Supreme Court upheld the rejection by the state Site Evaluation Committee last year of a large power corridor cutting through the White Mountain National Forest  .

The 9th Circuit Court of Appeals has vacated the sentence of a man convicted of federal charges he polluted waters of the United States by digging ponds on his property and the Beaverhead-Deerlodge National Forest (because he died).

A Montana State District Court held that Montana illegally re-issued a water pollution discharge permit in 2004 for the proposed Montanore copper and silver mine under the Cabinet Mountains on the Kootenai National Forest.  This is in addition to legal violations by the Forest Service discussed here.

NFS Litigation Weekly July 24, 2019

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Forest Service summary:  2019_07_24_Litigation Weekly

NOTICE OF INTENT

The Center for Biological Diversity claims that the Forest Service has not excluded cattle from allotments in the Gila National Forest and the Apache-Sitgreaves National Forest that were part of a 1998 settlement between the CBD and Forest Service, and therefore it must reinitiate consultation under the Endangered Species Act for several affected species.

 

BLOGGER’S COMMENT

While litigation about vegetation management is usually about what the Forest Service says it is going to do, grazing litigation is frequently about what the Forest Service actually did.  The July 10 Litigation Weekly included the denial of a preliminary injunction in Concerned Friends of the Winema v. McKay, a long-running dispute over the Antelope Allotment and effects on the Oregon spotted frog.  The plaintiffs pointed out problems with the way the allotment had been managed in the past, and Forest Service promised to do better.  That was good enough for the court at the preliminary injunction stage:

The Court takes Plaintiffs’ concerns about the history of cattle trespass on the Antelope Allotment and the threat to the Jack Creek OSF seriously. Nevertheless, the Court concludes that the Forest Service has imposed sufficient limitations and safeguards to render the risk to the Jack Creek OSF population speculative, rather than imminent, for the 2019 grazing season.

In making this ruling, the Court is cognizant of the long history of litigation concerning grazing on the Antelope Allotment and the significance of the Forest Service’s new model for managing the Allotment’s resources. In response to Plaintiffs’ motion, the Government and the permittee agreed to substantially reduce the grazing planned for the 2019 season, both in terms of the number of cattle and the areas to be grazed.

It’s harder for plaintiffs to bring post-decisional implementation cases than to stop a decision from being implemented in the first place.  In both of these cases, plaintiffs had monitor the allotments.  At some point though, the Forest Service track record of what it did is going keep it from doing what it wants to do.

 

BLOGGER’S BONUS (non-Forest Service cases)

In a new BLM case, the Center for Biological Diversity, the Sierra Club and WildEarth Guardians claim the agency failed to consider new drilling technologies or environmental science, including predicted effects of climate change from proposed drilling near Petrified Forest National Park in Arizona. They also claim the oil and gas leases are a thin veil for the extraction of helium, which has other regulatory limitations.

The Oregon federal district court has ordered the Oregon Department of Environmental Quality to do more to protect salmon streams harmed by logging operations. Northwest Environmental Advocates argues that state regulations governing logging on private lands are much weaker than federal regulations governing logging on federal land, so this doesn’t appear likely to affects federal lands even though the state DEQ may have Clean Water Act jurisdiction on federal lands.

NFS Litigation Weekly July 17, 2019

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Forest Service summaries:  2019_07_17_Draftv1 for distribution

COURT DECISIONS

The District Court of Oregon issued an order adopting all of the magistrate’s March 22, 2019 Findings and Recommendations in favor of the Forest Service concerning the Lower Imnaha Rangeland Analysis Project within the Hells Canyon National Recreation Area on the Wallowa-Whitman National Forest.  Those findings were previously discussed here.

UPDATES

On December 10, 2018 the Montana district court granted the Forest Service’s motion for summary judgement and upheld the Johnny Crow Wildlife Habitat Improvement Project on the Helena-Lewis and Clark National Forest.

NEW CASES

The plaintiffs filed a complaint in the Central District Court of California concerning the Tecuya Project on the Los Padres National Forest, approved using the Category 6 Wildlife Habitat Enhancement Categorical Exclusion.  Further background is provided by this article.

The plaintiffs filed a complaint in the Eastern District Court of California against the Three Creeks Forest Health and Restoration Project on the Inyo National Forest.

NOTICES OF INTENT

The Center for Biological Diversity alleges that the U.S. Fish and Wildlife Service and the Forest Service violated the Endangered Species Act pertaining to consultation on the 2015 revised Land Management Plan for the Apache-Sitgreaves National Forest and effects on the New Mexico meadow jumping mouse.

The Center for Biological Diversity may add to the complaint (above) against the Tecuya Project on the Los Padres National Forest based on violations of ESA in relation to the California condor.

 

BLOGGER’S BONUS

A lawsuit filed by the Conservation Congress in 2013 was dismissed after the Forest Service reinitiated and completed ESA consultation.

The Forest’s proposal for the Pacheco Canyon area near the city of Santa Fe is being appealed by plaintiffs to the 10th Circuit Court of Appeals.

The 9th Circuit Court of appeals affirmed the district court opinion in favor of the Forest’s management of four grazing allotments for aquatic species.  The district court opinion was discussed here as the Western Watersheds case.

Conservation groups have sued the U. S. Fish and Wildlife Service for failing to designate critical habitat, including national forest lands on the Idaho Panhandle National Forest, after the species went extinct within the U. S.

The Southwest Regional Forester has revoked the grazing permit of a rancher who trapped and bludgeoned to death an endangered Mexican wolf.