Jon Haber

NFS Litigation Weekly April 6, 2018

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Litigation Weekly April 6

(New case.)  Plaintiffs challenged the Dinkey timber sale on the Nantahala-Pisgah National Forest because of erosion and water quality risks.  (E.D. Tenn.)  (This case was also discussed here.)

The court invalidated the regulation issued by the Fish and Wildlife Service governing management of the reintroduced  Mexican wolf because it did not sufficiently further the conservation of the species, and the court required a new determination of whether the population was “nonessential” under ESA.  The Mexican wolf is found primarily on national forest lands in eastern Arizona and western New Mexico, where there are persistent conflicts with livestock grazing.  (D. Ariz.)

 

Blogger’s bonus – new case

The Alliance for the Wild Rockies “says the U.S. Forest Service and U.S. Fish and Wildlife Service are ignoring their own science by not including roads behind earthen berms in total road mileage counts” in grizzly bear habitat on the Kootenai National Forest.  (It’s not clear what decision is being challenged.)

Coastal pine marten trending toward extinction on national forests

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The coastal marten is at a high risk for extinction in Oregon and northern California in the next 30 years due to threats from human activities, according to a new study.

“The study, published today in the online journal PeerJ, will be available to federal and state wildlife agencies for their consideration to determine whether distinct geographic population segments of the coastal marten warrant state or federal listing as threatened or endangered, said Katie Moriarty, a certified wildlife biologist and lead co-author on the study.

Their population assessment revealed that the central Oregon population of coastal martens is likely fewer than 87 adults divided into two subpopulations separated by the Umpqua River. Using a population viability analysis, they concluded that the extinction risk for a subpopulation of 30 martens ranged from 32 percent to 99 percent.

In the short term, limiting human-caused deaths of the coastal martens would have the greatest impact on the animal’s survival, said Moriarty, who has studied the animals for several years. In the long term, the species requires more habitat, which perhaps could be accomplished by making the adjacent federal land in Siuslaw National Forest suitable for martens.”

So this isn’t just new information for use in the ESA listing process, but it also raises new questions about whether existing forest plans would provide conditions needed for viable populations.  I look forward to seeing how the Forest Service answers this question.  (And yes, the Forest Service does have the authority to limit trapping.)

NFS Litigation Weekly March 30, 2018

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Litigation Weekly March 30

Plaintiff alleges violations of the Wild and Scenic Rivers Act for failure to prepare river management plans for eight river segments on the Los Padres, Inyo and San Bernardino national forests, as well as BLM lands.  (C.D. Cal.)  (Discussed earlier here.)

The court reversed decisions on BLM resource management plans by two adjacent field offices for failure to consider alternatives with fewer areas open to oil, gas and coal leasing, failure to consider the impacts of the foreseeable combustion of resources that would be sold, and failure to respond to concerns about using outdated science for methane pollution (while dismissing other NEPA challenges).  (D. Mont.)

Federal lands, “Utah-style”

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Three Republicans running for election this year discussed weakening the Antiquities Act and Endangered Species Act, dropping the filibuster rule in the U.S. Senate and rewriting federal public lands policy to require state approval of new regulations.

“It’s not that lawmakers in the East — and for me that’s everything east of Denver — it’s not that they’re evil, they’re just stupid,” he (Bishop) said, drawing chuckles from some in the audience. “When we talk about public lands to Easterners, they just don’t have the same concept. They think everything is Yellowstone.”

I would say they might think everything “should be” Yellowstone, and who’s to say they are wrong.  It’s their land too.  Maybe Bishop is the one who is stupid.

“”It’s going to take an educational effort, not just a political effort” to push back against what he called radical environmental groups, he (Romney) added, referencing decisions such as Trump’s national monuments order, which has been challenged in court by Native American groups, environmental groups and others.  “There are some in the environmental lawsuit industry that may not care very much about the underlying facts,” he (Romney) said. “They’re just going to file lawsuit after lawsuit after lawsuit because that’s how they get paid.”

The underlying facts are what the lawsuits are based on.  And apparently “radical” means “willing to go to court.”

Wild and scenic river plan lawsuit

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The Wild and Scenic Rivers Act requires a comprehensive river management plan for eight rivers and creeks in southern California that Congress designated under the Act in 2009.  The law requires completion of river plans within three years of designation.  The rivers flow through national forest and BLM lands.  A complaint was filed March 27.

The North Fork of the San Jacinto River, for example, runs through lands managed by the San Bernardino National Forest and provides habitat for the critically endangered mountain yellow-legged frog, as well as other animals including California spotted owls and rubber boas.

Animals that live along Palm Canyon Creek include the southwestern willow flycatcher and Peninsular bighorn sheep.  “We’re concerned that by not having a comprehensive management plan for this wild creek that the resources could degrade over time,” she said.

The complaint asks  for “a permanent injunction, to prepare a Management Plan … by a date certain.”  Seems like a good candidate for a settlement, no?

Forest planning opportunities: Nantahala-Pisgah, Gila, Wayne

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The Nantahala-Pisgah is expected to release its draft EIS and draft revised plan this summer.  “MountainTrue and the Nantahala-Pisgah Forest Partnership will host expert panels on the future of the Nantahala and Pisgah national forests” at four locations this month “to keep folks engaged and up to speed on the plan’s progress.”  “The Nantahala-Pisgah Forest Partnership was formed to bring all interest groups to the same table, including timber, water, wildlife, recreation, wilderness and more.”  There is no mention of the Forest Service participating (nor is it evident on the forest plan revision website).

The Gila has offered a “preliminary draft of a revised land and resource management plan” for public comments through April 23.  “Feedback received on this preliminary draft forest plan will be used as Gila staff revise the forest plan and analyze alternatives under the National Environmental Policy Act process.  Changes, sometimes significant ones, will occur throughout the document prior to being released as the official Draft Plan later in the year.”  This is an additional opportunity to participate beyond the usual NEPA review periods.

The Wayne is hosting meetings to discuss the forest plan revision process it has just begun.  “The format of these meetings will be an open house in which staff from the Wayne National Forest will be available to explain the revision process and answer questions the public may have,” said Forest Supervisor Tony Scardina.  “It is also important for the public to understand that these initial meetings and webinars are not intended to discuss or address specific topics. That will come at a later time in the process and we look forward to hearing at these meetings how people would like to be engaged over the next several years.” (At least they are not downplaying the timeline.)  For those who can’t attend meetings in person, there will be web-based meetings in April!!

NFS Litigation Weekly – March 16, 2018

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Litigation Weekly March 16

(Update.)  Plaintiffs filed a petition with the U. S. Supreme Court regarding the Ninth Circuit’s opinion that the Federal Land Management and Policy Act authorized the Secretary of the Interior to withdraw national park and Kaibab National Forest lands near the Grand Canyon from new uranium mining claims for 20 years.

(New case.)  This is a challenge to the Fish and Wildlife Service reversing its 2011 determination that the Pacific walrus warranted listing under ESA as a result of climate change.  (D. Alaska)

Cherokee National Forest objects to objection

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Plaintiff environmental groups expressed concerns from the beginning of the Dinkey Project about the effects on water quality because of erosion caused by previous nearby timber projects in similar terrain.  After the Forest released the draft EA on the Project it also released a monitoring and evaluation report that revealed the erosion problems caused by the earlier projects and included recommended mitigation measures.  The EA and Decision Notice for the Dinkey Project failed to acknowledge this information and relied on mitigation measures that had failed in the earlier projects.  The complaint alleges violations of NEPA and also NFMA because the Project would be inconsistent with the forest plan requirements for soil protection and would cause irreversible resource damage.

The plaintiffs also filed an administrative objection to the Dinkey Project raising these concerns.  The Forest Service dismissed the objection, citing failure to comply with the requirements for objections as follows:

“Based on the information provided in your objection, the issues raised do not demonstrate connection to prior comments with specific violations of law, regulation, or policy. In addition, no specific proposed remedies are stated for consideration by the Reviewing Officer for resolving the objection. Therefore, the objection does not comply with 36 CFR 218.8(d)(5) and (6).”

Here are those requirements:

(5) A description of those aspects of the proposed project addressed by the objection, including specific issues related to the proposed project; if applicable, how the objector believes the environmental analysis or draft decision specifically violates law, regulation, or policy; suggested remedies that would resolve the objection; supporting reasons for the reviewing officer to consider; and

(6) A statement that demonstrates the connection between prior specific written comments on the particular proposed project or activity and the content of the objection, unless the objection concerns an issue that arose after the designated opportunity(ies) for comment (see paragraph (c) of this section).

The complaint describes how plaintiffs have met these requirements.  In my experience, it is unusual for the Forest Service to nitpick an objection like this, especially in a case where the parties have consistently described what their concerns are and what they would like the agency to do.  It’s certainly not consistent with the idea that pre-decisional objections are more collaborative than post-decisional appeals.  Is this a unique situation or is it a manifestation of Trump Administration policies to get rid of barriers to “getting the cut out” (again, “GTCOA”)?

National monument planning on a fast track

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The BLM will hold four scoping meetings the week of March 26  to identify key issues and planning criteria for two environmental impact statements (EIS) for the Bears Ears and Grand Staircase-Escalante national monuments, “but monument supporters say the BLM should holster its planning process until the courts resolve lawsuits seeking the monuments’ restoration…  Culver and other critics fear Interior is rushing to get lands holding fossil-fuel deposits back under lease to private industry quickly, before the courts have a chance to revoke Trump’s action and put the minerals off limits again…  Those deposits were reopened to mineral entry beginning Feb. 2, but BLM officials say they cannot be leased for development until a new management plan is in place for the 862,000 acres removed from the monument.”

So there is a planning process for lands removed from the GSE monument that were discussed here.  A new plan might authorize the chaining project that would be prohibited by the current plan, but it seems premature for the BLM to be developing that project assuming the plan would be changed to allow it.

Forest Service “takes” ranchers’ water rights

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The Court of Federal Claims (which reviews monetary claims against the U. S. government) decided a case in November that got a lot of attention in legal circles, but apparently not from the Forest Service.  It held, in Sacramento Grazing Association v. U.S., that the Forest Service violated the Fifth Amendment to the U. S. Constitution by “taking” (without compensation) water rights owned by ranchers using the Sacramento Allotment on the Lincoln National Forest in New Mexico. They did this by constructing exclosures to keep cattle from trampling two federally listed plant species in wet areas, and amending the allotment management plan to prohibit cattle from entering the exclosures.

After determining that historic grazing had established water rights for the ranchers under state law, the court held that the Forest Service physically took the water rights because it denied the ranchers all access to their property interest. The court seemed to base its decision on prior cases that involved entirely fencing off a lake or totally denying access to minerals. The court did not directly address arguments raised by the Forest Service that water rights do not entitle a user to a particular source of the water, and that the permitted number of cows had been able to find sufficient water without using the sources having exclosures.

The court ordered further discussion between the parties of locating alternative water sources, which had been unsuccessfully attempted earlier. If that is not possible, the Forest Service would be faced with continuing to pay the ranchers, or removing the exclosures, potentially leading to violations of the ESA. Or maybe they could not renew the permit or terminate the allotment. In earlier stages of the case, the court had held that the grazing permits are not a property right, and in this case, the number of cattle permitted to be grazed had also been reduced. However, the court’s reasoning in this recent decision would appear to also produce a “taking” if the historic number of cows were not allowed to graze the allotment because fewer cows could not use the historic volume of water ranchers are entitled to.

The case seems to be viewed as an aberration among “takings” scholars, this blog post noting that this outcome should be barred by a precedent set by the Federal Circuit in another recent case.  It is therefore a good candidate for appeal, but who knows what the current Administration might think about that, and it should have happened by now.  Here is a take from the ranchers’ perspective (which takes off from the court’s invoking of the Malheur National Wildlife Refuge occupation as a similar situation with different results).