Jon Haber

Forest Service summaries:   Litigation Weekly sept 21

• WesternWatersheds v Christiansen

The Bridger-Teton National Forest violated NEPA when it amended a special use permit for the Alkali Creek elk winter feeding station.  (D. Wyo.)

• BARK v. USFS

New case:  Crystal Clear Restoration Project on the Mt. Hood National Forest.  (D. Or.)  Discussed already here.

• CrystalClearNOI

Notice of intent to sue under ESA:  The Crystal Clear Project on the Mt. Hood National Forest may affect the northern spotted owl, spotted frog, and gray wolf.

BLOGGER’S NOTE:  The NOI challenges the assumption that logging existing habitat would benefit the spotted owl, which was underlying some of our prior discussion of this project, and discussions of other projects in spotted owl habitat.

IN OTHER COURTHOUSE NEWS

• Mining law/preemption

An Oregon law restricting suction dredge mining in rivers and streams containing essential salmon habitat is not preempted by federal law and applies on federal lands.

• Santa Fe fuels project (audio)

Activist groups have filed suit against a planned tree thinning and burning plan on national forest lands near Santa Fe.

• Idaho sheep experiments

A federally-run sheep experiment station partly on national forest land in the Centennial Mountains of Idaho and Montana, and long targeted by environmental groups in lawsuits, will resume grazing sheep next year.  One lawsuit is discussed here.

• Bitterroot mountain bikes

Forest Service summary:  Litigation Weekly sept 14

• Conserv. Congress v. USFS — Complaint

(New case.)  Cove Fire Salvage Project on the Modoc National Forest.

BLOGGER’S BONUS:  Since this one was so short (and since Sharon might not be forwarding anything to me for awhile), here’s some other recent courtroom news involving national forests.

• Crystal Clear decision

“Four environmental groups are suing the U.S. Forest Service to stop a major logging project on the east shoulder of the Mount Hood National Forest near the White River in north-central Oregon… It is the largest timber sale in the Mount Hood National Forest in more than a decade, and would roughly double the annual forest-wide timber harvest.”

• Thompson Divide leases

“U.S. District Judge Robert E. Blackburn dismissed the case last week following a settlement reached earlier this summer between the Bureau of Land Management and energy company SG Interests. The BLM agreed to pay the company $1.5 million for 18 oil and gas leases it cancelled in 2016 at the request of a coalition of governments, environmentalists, ranchers and others.”  I guess this closes the “gap,” discussed here.

• Durango & Silverton fire

“Nearly a dozen residents and businesses have filed a lawsuit against the Durango & Silverton Narrow Gauge Railroad, accusing it of starting the 416 Fire earlier this summer (on the San Juan National Forest).  The lawsuit was filed before the Forest Service has completed its own official investigation into the fire’s cause.”

• Oregon legal stream temperatures illegal for another 12 years

“For over two decades, Oregon has regulated thermal pollution in rivers and streams using illegal standards. But at a hearing Tuesday, the federal and state governments said it will take another 12 years to come up with revised standards to protect threatened and endangered fish.”

Forest Service summaries:  Litigation Weekly Sept 7

• GHCC v Stein

The District court adopted the magistrate judge’s recommendations to uphold the Lostine Public Safety Project on the Wallowa-Whitman National Forest.  (D. Or.)  (We didn’t receive the June 14 LW cited, but there is a brief summary and a link to an article here.)

• WildEarth Guard v USFS

A magistrate judge has recommended that the Santa Fe National Forest be required reinitiate ESA consultation on its 2012 travel management plan to address the subsequently listed Jemez Mountain Salamander.  (D. N.M.)

• FotWS v Kehr

(Update.)  The district court denied plaintiffs’ motion for an injunction pending appeal of its decision to affirm the Beaver Creek Landscape Restoration Project on the Flathead National Forest.  (D. Mont.)

• Rock Creek 60-Day Notice.FINAL.1 (002)

(Notice of intent to sue.)  Seven plaintiffs are seeking reinitiation of ESA consultation on grizzly bears and bull trout for the Rock Creek Mine on the Kootenai National Forest.

BLOGGER’S BONUS

• 2018_08_13 North Hebgen Decision

On August 13, the Montana district court granted a preliminary injunction against the North Hebgen Project on the Custer-Gallatin National Forest.  However, it was based on the Forest Plan Amendment 51 decision that changed a forest plan standard requiring the retention of 30% of”old growth” forest to a less-stringent standard pertaining to “over-mature” forest, which would allow the initially non-compliant project to comply with the forest plan. The court found that plaintiffs had raised questions about ESA consultation on Canada lynx sufficient to enjoin the project until completion of the litigation.  (This case was previously discussed here including my comments.)

There was no consultation on the amendment.  Consultation must occur if a federal agency action “may affect” a listed species.  Here, the record included statements by the Forest that Amendment 51 could have a “potential effect on wildlife associated with old growth,” and indications that lynx are one of these species. The Forest Service seemed to be arguing that consultation that occurred on the lynx amendment was sufficient because there are no new adverse effects, but that appeared to be contradicted by its record.   The court found that Plaintiffs have established “fair ground for litigation and thus for more deliberative investigation,” regarding whether Amendment 51 “may affect” lynx-” a relatively low threshold for triggering [Section 7] consultation.”

• Arctic grayling

The Ninth Circuit rejected the U. S. Fish and Wildlife Service decision to not list this fish species as endangered in 2014.  It is found in a few lakes in southwest Montana on national forest lands, but the primary concern is the remaining river populations.  The court found the decision to be arbitrary and capricious because the FWS failed to supply evidence of increased population of the Arctic grayling in Montana rivers, and didn’t properly account for climate change effects on thermal refugia.

Original post

(Sharon – did I miss a new rule about threads being closed to new comments?  This one was started 8/13, and Steve replied 9/7, but I couldn’t today and it says “comments are closed” at the end.)

Steve posted this from AFRC:

Ninth Circuit Undercuts Collaborative Landscape Management

A Ninth Circuit ruling on August 13 strikes an unfortunate blow against collaborative landscape management. The court rejected the Lost Creek-Boulder Creek collaborative project, which is part of the Collaborative Forest Landscape Restoration Program (CFLRP). Most strikingly, the court’s analysis contains a fundamental misunderstanding of forest planning. It wrongly assumes that the project’s design is binding on future projects in the same area, though the project did not amend the governing forest plan. The irony is that the project focuses on restoration rather than timber production, and the court accepted the environmental groups’ challenge on that basis. The court’s decision is so flawed that the government has already taken the unusual step of filing a petition for rehearing.

In the Payette National Forest, fire suppression has led to accumulations of small and medium-sized trees, making wildfires harder to control and more damaging to the land and adjacent communities. A diverse group of private and not-for-profit interests came together and formed the Payette Forest Coalition (PFC). Despite different backgrounds, the group found a shared interest in reducing uncharacteristic wildfires, improving wildlife habitat, water quality and watershed health, enhancing recreational access, and supporting the economies of local communities. The PFC worked closely with the Forest Service to design the Lost Creek-Boulder Creek project, which aims to restore approximately 80,000 acres.

The project reflects a common understanding that doing nothing is not an option. Without prescribed burns and noncommercial thinning, at least 40,000 acres remain at risk of mortality from insect, disease and fire, 25 culverts will not be replaced (to the detriment of bull trout), and 55 MMBF of logs will not be manufactured into wood products while maintaining the approximately 1,100 associated jobs.

Environmental plaintiffs alleged that the Forest Service improperly failed to consult on bull trout critical habitat at the Forest Plan Level, improperly relied on a draft wildlife conservation strategy, improperly changed the desired condition for forested lands within the project area and failed to follow the proper procedures regarding the minimum road system in the project area. AFRC attorneys represented both the PFC and Adams County in the litigation.

The district court rejected all these challenges. In denying a request for injunctive relief, it found “the collaborative efforts of all Defendants in developing the Project is in the public’s interest,” and that “the public has an interest in supporting the collaborative process that was used in this case to develop the Project.”

The Ninth Circuit ignored all these factors, and its opinion does not mention the collaborative process at all. Instead, it assumes that the restoration emphasis of the project is a binding forest plan amendment and compares that to the existing forest plan, rather than analyzing whether the project is consistent with the forest plan. This upside-down ruling shows that litigation reform is a necessary element to any meaningful change on our forests.

The PFC has reiterated its commitment to restoration work despite the court setback. AFRC will continue to work with the PFC in its efforts to bring meaningful forest restoration to the Payette and appreciates the work of our partners on the Forest. /Lawson Fite

My response:

Not surprising.  The “fundamental misunderstanding of forest planning” (NFMA) lies with the Forest Service.

“It (the court) wrongly assumes that the project’s design is binding on future projects in the same area… Instead, it assumes that the restoration emphasis of the project is a binding forest plan amendment and compares that to the existing forest plan.”   The court didn’t “assume;” it took the Forest at its word that it had changed plan direction applicable to this project, and the court decided that as a matter of law, the changes that the Forest admitted it made can’t be made project-by-project. Even if the Forest hadn’t admitted it, desired conditions, by definition, apply to areas and timeframes larger than a project and require the forest planning process. The court understood that if the Forest Service could legally do what it did here, plan components wouldn’t matter, which is not what was intended by NFMA’s consistency requirement.

“its opinion does not mention the collaborative process at all.” Once the 9th Circuit decided that the agency action was illegal (unlike the district court), any “public interest” arguments became pretty much irrelevant. It’s kind of absurd to suggest that an illegal action should proceed just because there is “collaborative landscape management” (at least until the politicians make it so). See earlier discussion of this point from the district court TRO opinion here:

Litigation Weekly Aug 24

• WildEarth v Mark

The Ninth Circuit found that claims against hunting derbies on the Salmon-Challis National Forest in Idaho were moot with regard to past derbies and not yet ripe with respect to future derbies.  (9th Cir.)  (This case was previously discussed here.)

• AWR v USFS

The Ninth Circuit reversed the district court and held that the Forest Service violated NFMA for the Lost Creek Project on the Payette National Forest in Idaho by utilizing desired conditions and standards that were inconsistent with the forest plan.  (9th Cir.)  (This holding was discussed in detail here.)

• LosPadresForestwatch_v_USFS_Complaint

(New case.)  Plaintiffs allege violations of NFMA and ESA for failing to close most of the Los Padres National Forest in California to target shooting as required by the forest plan to protect threatened and endangered species, including the California condor.  (C.D. Cal.)  (This case was discussed when the Notice of Intent to Sue was filed here.)