Jon Haber

NFS Litigation Weekly August 3, 2018

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Litigation Weekly Aug 3

The district court upheld the Beaver Creek Landscape Restoration Project on the Flathead National Forest in Montana against NEPA, NFMA consistency and ESA (Canada lynx) claims.  (D. Mont.)

The Fourth Circuit upheld a decision by the Nantahala National Forest in North Carolina to authorize development of a 3-5 acre shooting range against landowners’ claims of NEPA and state law violations.  (4th Cir.)

The Fourth Circuit found that the Forest Service violated NEPA and NFMA when it amended its forest plan and approved construction of the Mountain Valley Pipeline on the Jefferson National Forest in West Virginia and Virginia.  The BLM also violated the Mineral Leasing Act.  (4th Cir.)  (The NFMA issues were discussed here.)

The Ninth Circuit reversed a district court decision, and held that the Kootenai National Forest in Montana violated NFMA for the East Reservoir Project by failing to properly determine compliance with motorized access standards in the forest plan.  (The summary incorrectly refers to this part of the forest plan as the Lynx Amendment; it was originally developed for grizzly bears.)  (9th Cir.)  (This case was also discussed here.)

(Update.)  The Supreme Court denied a request by the government to stay proceedings in this case, which is the constitutional climate change lawsuit filed by 21 youths.  (D. Or.)  (The history of this case is provided here.)

(New case.)  This complaint alleges that the Forest Service has violated the Freedom of Information Act for failing to meet legal deadlines for providing records associated with the Four Forest Restoration Initiative in Arizona, including the Rim County EIS Project.  (D. Az.)

The district upheld the Army Corps of Engineers and Bureau of Reclamation decision to construct a dam and bypass channel on the Lower Yellowstone River in Montana as the preferred means of providing passage for endangered pallid sturgeons.  (D. Mont.)

Forest Service: We need more fires

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An article in the Missoulian yesterday discussed “Toward Shared Stewardship Across Landscapes: An Outcome-based Investment Strategy,” a new Forest Service initiative that “rethinks the agency’s approach to wildfire, invasive species, drought and disease.”  It seeks a more coordinated and broader-scale approach with the states.  It seems to focus mostly on “systems that evolved with frequent fire.”

“Pre-settlement, 20 percent of California was on fire every year,” Phipps said. “That’s the scale of the problem. Lots of communities are doing wildfire protection planning, but they’ve been looking at, on average, 50 times less than the large landscapes we need to be concerned about.

“This is not about pruning trees,” Phipps continued. “Today, on average we’re treating about 1 to 2 percent of the area we need. We need to create conditions where 30 to 40 percent of that area can be treated with low-intensity ground fire before we get a significant reduction of risk.”

Rawlings also acknowledged that prescribed burning was a more inexpensive way of treating the forest than harvesting. And according to Forest Service research, more burning must happen for even productive timber land to stay healthy. Examinations of last year’s Rice Ridge and Lolo Peak fires near Missoula showed that even heavily logged timber stands had little effect on the big fires’ progress. But past burn scars and prescribed burn areas did slow or redirect the fires.

“We know in these fire-adapted systems, there’s no substitute for fire,” Phipps said. “Even in areas where there’s commercial value, if we want to reduce the fuel density of forests, we still have to bring fire back.”

That raises several challenges. The first is how to reshape public opinion about the need for fire. That means getting people used to having smoky air in the spring and fall, when prescribed burns can take place under safer conditions and release up to 10 times less toxic pollutants than mid-summer megafires.

“Prior planning opens up possibilities for us,” Phipps said. “In a year like this year, it’s not a good strategy to take risks and allow fire to roam on initial attack. But two or three years out of 10, we can allow fire to roam.”

“We need to mutually agree where the best places for investment are,” French said. “The way to get ahead of this is mutual, collaborative, cooperative work across the communities affected. We can’t do it alone.”

It looks like they missed an opportunity to promote the relevance of forest planning to making the strategic decisions about where we consider to be “fire-adapted systems” (or other areas) where active fuels management would be appropriate.

You say “logging,” we say “thinning,” “mechanical treatment” or “stand improvement”

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And Trump says “tree clear.”  This article got my attention for a number of reasons.  It’s a follow-up to the story about the Trump tweet regarding forest fires.  It is another case of “upping the cut” under the Trump administration (doubling in this case on the Los Padres).  And it looks like the Forest is trying to disguise what it is actually doing with this project.  And using a questionable categorical exclusion to boot.

Critics contend the proposed logging in the Los Padres is a signal that the balance of power in national forests is shifting under the Trump administration. Such projects could open the door to commercial logging in other public forests currently managed as watersheds rather than timberlands, such as the Angeles, San Bernardino and Cleveland national forests.

Agriculture Secretary Sonny Perdue raised annual timber production targets for the Los Padres National Forest from 200,000 cubic feet of wood in 2017 to 400,000 cubic feet this year.

“We are witnessing a historical change unfolding in the national forests in our own backyard,” said Richard Halsey, founder of the nonprofit Chaparral Institute in Escondido, Calif. “Timber was never part of the equation, until now.”

Here’s the way the article introduced the project:

The federal government is moving to allow commercial logging of healthy green pine trees for the first time in decades in the Los Padres National Forest north of Los Angeles, a tactic the U.S. Forest Services says will reduce fire risk.

The scoping letter described the project as a “shaded fuelbreak.”

Treatments would include a combination of mechanical thinning, mastication of brush/smaller trees, and hand treatments such as hand thinning, brush cutting, pruning and piling of material.

That sounds fairly benign, but the proposed action sheds a little more light on it:

Mixed conifer and pinyon juniper stands would be thinned to a range of 40 to 60 square feet basal area per acre…  Trees would be removed throughout all diameter classes and would include the removal of commercial trees. Residual trees would be selected for vigor; however, larger Jeffrey pine would be retained per Forest Plan direction unless they pose a hazard or are infected with dwarf mistletoe. All black oak would be left unless they pose a hazard.

But the scoping letter states an intent to use this categorical exclusion:

(6) Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction. Examples include, but are not limited to:

(i) Girdling trees to create snags;

(ii) Thinning or brush control to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand;

(iii) Prescribed burning to control understory hardwoods in stands of southern pine; and

(iv) Prescribed burning to reduce natural fuel build-up and improve plant vigor.

And then there’s this:

Ashley McConnell, a spokeswoman for the U.S. Fish and Wildlife Service, said her agency plans to work with the Forest Service to help protect active California condor nest sites or roosting areas. Logging, she said, could “benefit California condor habitat because the larger and older trees where condors typically roost are preserved.”

That’s what “thinning” means, right?

So has it been so long since the Los Padres has had a timber sale that they don’t know what to call it?  Or is this an attempt at sneaking by the NEPA requirements that go along with it?  Maybe you can technically call it “thinning” if you leave any residual trees, but that is clearly not what this CE was intended to cover.  There is another CE for hazardous fuel reduction, but it’s limited to 1000 acres of “mechanical treatments.”  And another for “harvest of live trees” (limited to 70 acres).  Is this the kind of misleading corner cutting the Forest Service is going to go back to when it is under pressure to “get the cut out?”

Some August FS court cases

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The Forest Service recently won two lawsuits involving timber projects in Montana.

  • In Native Ecosystem Council v. Marten, the district court upheld the Telegraph Vegetation Project on the Helena Lewis and Clark National Forest.
  • In Native Ecosystem Council v. Erickson, it upheld the Smith Shields Forest Health Project on the Custer Gallatin National Forest.  One of the issues involved an amendment to the forest plan that modified standards applicable to elk habitat and old growth. In both cases, the court found that Forest was not arbitrary in concluding that the effects of the amendments were not significant and did not require an EIS.

In Sierra Club v. USFS, the 4th Circuit Court of Appeals ruled against the Jefferson National Forest for improperly amending its forest plan to create an exception to forest plan standards to allow the construction of the Mountain Valley Pipeline.  This was the first direct judicial test of the 2012 Planning Rule, but it was actually a test of a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments.

That addition to the Planning Rule said:  Forest Service “shall . . . [d]etermine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to the plan direction being added, modified, or removed by the amendment,” and then “apply such requirement(s) within the scope and scale of the amendment,” and an agency’s “determination must be based on the purpose for the amendment and the effects (beneficial or adverse) of the amendment,” 36 C.F.R. § 219.13(b)(5).  The Preamble to the 2016 changes said, “When a specific substantive requirement is associated with either the purpose for the amendment or the effects (beneficial or adverse) of the amendment, the responsible official must apply that requirement to the amendment.”

The Forest Service said that because the pipeline project would mitigate effects on soil and riparian resources they would not be “substantial,” and therefore the Forest did not apply the requirements of the 2012 Planning Rule related to soil and water resources, including “the ecological integrity of riparian areas” (36 C.F.R. § 219.8(a)(3)(i)).  The court held that, “the clear purpose of the amendment is to lessen requirements protecting soil and riparian resources, so the amendment was directly related to these requirements, and the Forest must apply the applicable Planning Rule requirements. It also held that the Forest had not adequately analyzed the effects of the pipeline on soil and riparian areas. The court remanded the amendment to the Forest “for proper application of the Planning Rule soil and riparian requirements to the Forest Plan amendment.”

NFS Litigation Weekly July 20, 2018

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Litigation Weekly July 20

Plaintiffs’ claim that the Forest Service violated the Fifth Amendment by taking its property when it restricted access to inholdings after flooding was not ripe for review because there has not been a final agency decision on possible reconstruction of the roads.  (Fed. Cir.)

The USGS decision to not mark a cable 40 feet above a wild and scenic river on the Prescott National Forest, which led to the death of occupants of a helicopter that struck it, was considered a “discretionary function,” and the government could properly claim sovereign immunity from tort claims.  (9th Cir.)

(New case.)  Plaintiffs are seeking records related to the establishment of a Federal Advisory Committee that is addressing issues they view as contributing to privatization of national parks, and the Park Service has failed to respond within the statutorily mandated 20 days.  (D. D.C.)

 

BLOGGER’S BONUS:  Friends of the Wild Swan v. Kehr (D. Mont.)

The Beaver Creek Landscape Restoration Project on the Flathead National Forest was upheld by the Montana District Court on July 16.

  • Adjacent projects were not “cumulative actions,” potentially triggering a single EIS instead of separate EAs, because they were initiated in different years and there was no evidence of the Forest trying to segment a single project to avoid triggering an EIS.
  • The cumulative effects analysis of the two projects was adequate because it met the “bare minimum” of explaining “why the combined impact would not be significant.”
  • The project complied with forest plan requirements for road density in grizzly bear habitat by meeting standards for no net loss of habitat security and providing a “net gain” towards meeting security objectives by closing roads.
  • The Forest properly considered roads committed to “intermittent storage” to be closed for the purpose of the forest plan standard because they would be reclaimed so they no longer function as roads (though they could be reopened in the future).
  • The EA provided sufficient information to conclude that the project complied with an elk standard for road density.
  • Acquisition of private lands in the project area subsequent to consultation on the forest plan road density standards did not require reinitiation of consultation under ESA because the prior consultation had already contemplated improvements of road density in these areas (even though the forest plan did not apply to them at the time).

 

NFS Litigation Weekly July 13, 2018

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Litigation Weekly July 13

The court upheld the Sequoia National Forest’s use of a road maintenance categorical exclusion for a commercial timber sale to remove hazard trees in the Cedar Fire burn area.  (This decision followed an earlier denial of a preliminary injunction, discussed here).  (E.D. Cal.)

(New case.)  Public Employees for Environmental Responsibility challenges the decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the ESA list of threatened species.  (D. D.C.)

In a 2-1 decision, the Fifth Circuit Court of Appeals upheld compliance with NEPA and the Clean Water Act by the U. S. Army Corps of Engineers when it granted a permit to construct the Bayou Bridge Pipeline in Louisiana.  (5th Cir.)

Public meetings to draft a stewardship project proposal

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I probably should pay more attention to how Forest Service projects are developed, and I had to do a double-take on this:

The U.S. Forest Service has announced it will host local public meetings to identify project restoration activities that improve water quality, soil productivity, watershed health and wildlife and fish habitat and meet local and rural community needs.

The Clinch Ranger District is developing a “stewardship project” proposal, according to a press release. Stewardship projects allow the forest service “to work with a partner or contractor to remove timber and use the proceeds from the timber sale to fund restoration projects,” it states. “Stewardship projects can provide local jobs and economic benefits from the timber sale and from implementing restoration projects.”

“I am excited to hear ideas from local community members that could be included in future projects,” stated District Ranger Michelle Davalos. “By starting with a clear understanding of community interests, we can focus future projects on activities that will meet both the goals laid out in the Jefferson National Forest Plan and the needs of local communities.”

I like the sound of this; is this how stewardship projects usually work?  I assume this includes asking where to log.  Do/could they do the same thing on projects that aren’t “logging funded?”  This is the kind of early involvement that would go a long ways towards avoiding disputes down the road.

Travel planning vs RS-2477

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In 1866, the Mining Act included this provision (now known as RS-2477):  “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”  What this means and how it is applied has become an issue with local governments in recent years where federal land managers have wanted to reduce roads or limit access.  It generally means that if a road predates the establishment of a National Forest, the Forest Service can not interfere with valid uses.  The process requires a quiet title action in federal claims court.

Here is a recent battle brewing in Colorado, where one county is actively seeking jurisdiction over 17 roads and trails in three counties, one of the trails being targeted for closure to motorized uses through the San Juan National Forest Travel Plan.  Another county wants nothing to do with it.  Montezuma County believes it has maps that prove its case, but the Forest Service disagrees. Here is their response:

If the information relying on maps is the only county proof that the roads and trails qualify for RS2477 status, then “the basis for the resolution is insufficient,” Padilla wrote.

He said the Forest Service is not against evaluating RS2477 assertions, but that the county bears the burden of proof.

“I know the county believes the converse is true, but that is not supported by current law, policy or regulation,” Padilla stated.

The national forest sees the county’s RS2477 resolution as nonbinding.

Routes currently designated as nonmotorized or are closed for public use will continue to be managed that way until the county validates their assertions through a legally recognized process, Padilla said.

“This means that violators would continue to receive citations,” he said.

Padilla added that there are current cases to support this position, including one in San Juan County, Utah, that involved county commissioner Phil Lyman, who received a ticket for driving an ATV on a nonmotorized route during a protest ride.

Where Dolores County disagrees is whether the Forest Service will “fight it,” which affects the cost side of the ledger for the counties.  I’m not aware that DOJ has ever conceded a RS-2477 case where the land management agency disputed the existence of the right-of-way.  But under this Administration, maybe Dolores County is wrong in thinking they should not “deceive ourselves that routes will just be given to us.”

NFS Litigation Weeklies June 29, July 6, 2018

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Litigation Weekly June 29

New case – involving a decision by the BLM, based on an EA, to eliminate wild horses from eight of nine horse management areas on public lands in the vicinity of Caliente, Nevada. (D. D.C.)

New case – involving a determination by the BLM that it was obligated to renew or reinstate two leases for a copper-nickel sulfide ore mine in the Boundary Waters Canoe Area Wilderness on the Superior National Forest.  (D. D.C.)  (Additional information was provided here.)

 

Litigation Weekly July 6

The court of appeals determined that the Forest Service had established a prescriptive easement over an adjacent ranch for the Indian Creek Trail, which provides public access to the Lee Metcalf Wilderness on the Beaverhead-Deerlodge National Forest.  (9th Cir.)

The court upheld restrictions on motorized use in Wilderness Study Areas in the Bitterroot National Forest Travel Plan, but remanded the bicycle portion of the plan for the Forest Service to provide an opportunity for administrative objections to closures of trails to bicycle use.  (D. Mont.)  (Also see this article.)

(Update.)  The appellate court remanded a case involving Federal Lands Recreation and Enhancement Act fees to the district court to determine what type of fee the plaintiff (a recreational boat user) paid, in order to determine the Forest Service obligations for the site on the Daniel Boone National Forest.  (6th Cir.)

 

 

 

Why we need coordinated planning for habitat connectivity

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The Bridger-Teton National Forest amended its forest plan in 2008 to designate the portion of the “Path of the Pronghorn” migration corridor in Wyoming for special management to protect this historic 90-mile route with a northern terminus in Grand Teton National Park used for summer range.  It’s probably the most significant action taken by the Forest Service to plan for wildlife connectivity.

The BLM chose to not play along at the southern end where major oil and gas fields are found in the species’ winter range, and the migration route lacks recognition, and protection, through BLM lands along its southern reaches.  Now they have issued an EIS for oil and gas development there.  Ideally, the EIS will disclose the effects on pronghorn migration and on the national park (using the best available science), which could include exterminating this migration and its pronghorn herd.  But I wanted to comment on the planning aspect of this problem.  BLM blames the State of Wyoming:

“It would help us out if the [Wyoming] Game and Fish were to formally designate something in there,” said Caleb Hiner, who manages the BLM’s Pinedale Field Office.

The Forest Service didn’t wait for state action to protect national forest lands.  As an environmental activist said, “The BLM has all the authority it needs to protect what it wants to protect in a site-specific document,… The BLM could decide tomorrow that it doesn’t want to lease or develop any of the NPL.”

The 220-square-mile project has major economic potential, and could generate 950 jobs and produce somewhere in the range of 3 trillion cubic feet to 5 trillion cubic feet of natural gas, Hiner said. It would add up to 350 wells to the landscape annually for the next 10 years, a level of development that equals the number of wells permitted for drilling in the BLM’s entire Pinedale Field Office during 2017.

The argument by the proponent seems to be that they can figure out mitigation well-by-well, but at that point there is little opportunity to develop an effective strategy for pronghorn to navigate the system of wells, especially with no plan-level requirement to do so.

It is important for federal land managers be leaders in coordinating connectivity conservation planning, if for no other reason that that may be what is necessary to provide for viable populations of migrating species to continue to use federal lands.  The absence of a plan based on an overarching strategy for the full extent of the herd’s range could now be fatal to a ecological phenomenon that has been occurring, in part on national forest lands, for thousands of years.