Jon Haber

Litigation Weekly – February 16, 2018

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(The header links to the Forest Service summary, and each bullet links to an associated legal document.)

Litigation Weekly Feb 16

The court denied a Forest Service motion to dismiss claims that the Stanislaus N. F. violated the Clean Water Act and the forest plan in relation to its management of three grazing allotments.  (E.D. Cal.)

The court denied a motion for a preliminary injunction by the current concessionnaire to stop the bidding process for a 5-year permit to run the shuttle service for the Sabino Canyon Recreation Area on the Coronado N. F. (D. D.C.)

(update)  The Ouachita N. F.’s denial of a permit to construct a road in the Upper Kiamichi Wilderness has been appealed to the 10th Circuit.  (E.D. Okla.)

(update)  Plaintiffs have voluntarily dismissed their challenge to the Westside Fire Recovery Project on the Klamath N. F.  (N.D. Cal.)

(update)  The district court agreed to stay pending appeal its order to destroy wolf data illegally obtained by the State of Idaho using helicopters from the Frank Church River of No Return Wilderness on the Salmon-Challis N. F.  (D. Idaho)

(new case)  The Forest Service is a signatory to the 2000 Interagency Bison Management Plan, and the plaintiff alleges that a tribal notice of intent to hunt bison is significant new information requiring supplemental NEPA analysis for the plan because more bison hunters in the concentrated area established by the plan would create a safety risk to recreationists.  They seek to enjoin the activities that keep bison within the concentrated area.  (D. Mont.)

Market solution to the WUI fire problem may be coming

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It seems obvious to me that home insurance companies should be basing their rates on differences in risk of fire, and I’ve wondered why that hasn’t been happening more.  California seems to be the first place, but why should it stop there?

California’s insurance commissioner has warned that more and more insurers operating in the state are refusing to issue homeowners’ policies in areas most prone to wildfires.

Although many of the affected customers can still get coverage from other insurers, Jones noted that there has also been an increase in homeowners signing up for California’s insurer of last resort of fire; the FAIR Plan.

Jones said that the problem will only get worse as insurers label more homes as wildfire risks following the most recent series of wildfires that hit the state.

Others still disagree.  Something that doesn’t make obvious sense to me is that they seem to be looking at past fires more than the potential for future ones.

Getting rid of the lynx problem

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In case you missed this news a month ago, the Fish and Wildlife Service has decided to propose delisting Canada lynx.

The Canada lynx was listed as threatened in 2000 largely due to a lack of regulatory mechanisms on federal public lands, which is where a majority of the habitat for Canada lynx was believed to be located in the lower 48 states. Since receiving ESA protection, federal land managers throughout the lynx’s range have formally amended their management plans and implemented conservation measures to conserve the species. For example, all U.S. Forest Service land management plans in the Rocky Mountain region have been amended to include conservation measures for the Canada lynx.

The recommendation was informed by a recently completed, peer-reviewed Species Status Assessment for the lynx, which compiled and evaluated the best available scientific information on the historical, current and possible future conditions for the Canada lynx. Over a two-year process, the Service worked closely with federal, state and academic subject matter experts to evaluate relevant scientific information on snowshoe hare population dynamics, climate change, forest ecology and other issues. Although climate change remains an important factor for the conservation of the Canada lynx, neither the Service nor the experts we consulted conclude that the lynx is at risk of extinction from climate change within the foreseeable future.

That last sentence may be the most important.  The Trump Administration has been revisiting and redefining what “foreseeable future” means.  They basically seem to be saying that the main thing that has changed is that they no longer think extinction is predictable enough to worry about yet.  There is also this motivation:

Given the outcome of this analysis, the Service will not at this time be completing a recovery plan for the Canada lynx.

Which was due in January.  Here and here are some other concerns.  I wouldn’t be surprised if it took another 18 years to get this through court, but by then extinction may be close enough to count.  And much as the Forest Service would like it to, delisting doesn’t mean they could remove the regulatory mechanisms that contributed to delisting.  If delisting happens, it would be worth recognizing this as a payoff for good forest planning, and as a model for future plans involving listed or potentially listed species.

Has “energy dominance” lost a battle?

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Opponents of fracking on the Wayne National Forest filed a lawsuit last spring alleging the failure of the BLM and Forest Service to comply with NEPA and the Endangered Species Act in authorizing oil and gas leasing.  They argued that when the forest plan was revised in 2006 it didn’t address the effects of fracking.  Plaintiffs suggest that is the reason why the Forest has now decided to again revise it forest plan.   (Which would make it one of a very few forests to re-revise, so it is noteworthy that the Wayne was put in the queue ahead of many forests that have not been revised at all.)

The Forest says this:

For years, the USDA Forest Service, Ohio Department of Natural Resources (ODNR), and USDA Natural Resources Conservation Service (NRCS) have been innovating ways to collaborate in the restoration of southeast Ohio’s oak and hickory forest ecosystems. The next step to realizing that objective is having compatible long-term management plans that allow the organizations to work together more efficiently. With ODNR’s intention of revising their State Action Plan by 2020, the Wayne National Forest decided the time is right to revise its Land Management Plan, to facilitate collaborative work efforts with the State.

That’s a worthy goal, but not one I would have expected to get it to the top of the Forest Service’s priority list for plan revisions.  Let’s see if they argue in court that starting revision would moot the lawsuit.  Regardless, “The public can now demand a plan that bans fracking in the Wayne.”

California national monuments pay off, and are intact so far, but not DRECP

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Here’s some anecdotal evidence supporting the economic arguments for national monument designation.

Two years ago today, President Barack Obama created three new national monuments in the California desert: called Mojave Trails, Sand to Snow and Castle Mountains. Supporters held a community event to celebrate, noting that tourism to the area has increased significantly, as people come to see Joshua Tree National Park and then, go on to explore the new monuments.

Then there’s the Desert Renewable Energy Conservation Plan.

Under Zinke, the Bureau of Land Management recently filed a notice of intent to reopen the Desert Renewable Energy Conservation Plan, which sets aside land for conservation, recreation and energy development.  “Lands that were set aside for conservation may now be open to inappropriate uses like mining and renewable-energy development, when there was already a consensus on areas where those sorts of uses would be appropriate,”

Another example of Trumpling the interests of locals in favor of reducing the “burdens on all domestic energy development.”  Another case where the recreation industry (and others) will have to battle the resources of the energy industry (instead of working with the industry as they did in DRECP).  Who is your money on?

Flathead forest plan revision nears finish line

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I’ve been looking at the second final forest plan and EIS prepared under the 2012 Planning Rule, the Flathead. I want to commend them for some of the things they’ve done.

They have done a very good job of describing desired conditions for many vegetation characteristics based on their natural range of variation. I can tell you that this is the kind of “specific” desired conditions the drafters of the Planning Rule had in mind for providing ecological integrity. They also conducted an analysis of how vegetation conditions would change over time as a result of the plan, while factoring in expected fire regimes, and they were able to use this for some of their analysis of effects on viability of wildlife species that are closely tied to vegetation. I pretty much only looked at the wildlife parts of the EIS, but I thought the terrestrial part was well organized, and included some thoughtful discussion of what plan components actually do. One of my interests is habitat connectivity, and they have given it a more serious look than most, including actually considering and identifying specific areas to be managed for connectivity.

I was looking for problems related to at-risk species, and there are some. Regarding fire, even though they don’t call the wildland-urban interface a “management area,” it is one because a lot of plan components apply differently there.

I’ve also seen how big of a job it is to review and understand something this massive within 60 days, even with only a limited focus – and I’m someone with probably as much experience at this as anyone. It helped to have followed this process off and on from the beginning, but I have some sympathy for organizations trying to promote changes at this point in the process.   (There’s much more time to prepare for forest plan litigation.)

Next up? The Inyo is on track for “this spring.”

Litigation Weekly – February 2, 2018

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Litigation Weekly Feb 2

(New case.)  Plaintiffs claim 23 surface water diversions on the Sawtooth National Forest adversely affect listed fish species, and that the Forest Service failed to consult on them with the U. S. Fish and Wildlife Service as required by the Endangered Species Act.  (D. Idaho)  (Also discussed here.)

This Supreme Court decision favored industry plaintiffs objecting to the Obama Administration’s 2015 regulation defining the “waters of the United States” (WOTUS) subject to the Clean Water Act by holding that the case must be heard initially in a district court rather than an appeals court.  This maneuvering is likely related to the fact that the Trump Administration is in the process of changing the 2015 regulation. (U.S.) (More information may be found here.)

(New case.)  The Tribe’s claim is that federal agencies have a mandatory duty to exercise jurisdiction over permit applications for discharge from a mine into the Menominee River and adjacent wetlands, and cannot delegate that responsibility to the State of Michigan.  (E.D. Wis.)

The Fish and Wildlife Service improperly denied petitions to list bison under the Endangered Species Act in its initial (90-day) finding because competing scientific theories indicated that the species “may” be warranted for listing.  (D. D.C.)

Blogger’s note:

The Forest Service summary doesn’t really explain the importance of the disagreement about genetics.  One of the claims in the petitions is that while the existing plan to maintain the population at 3000 individuals could be an adequate regulatory mechanism to protect one genetic population (inadequate regulatory mechanisms being one of the factors for listing species), it would not be adequate to maintain two genetically distinct herds (arguably requiring 3000 in each herd, and I think one of the studies must be suggesting that the loss of one genetic population would threaten the species as a whole).

Also, it is important to recognize that the “may” be warranted standard prevents the agency from making its own determination of the best science at the 90-day stage.  That is what federal agencies normally get to do.  The second stage of the ESA listing process is the 12-month finding, and that is where the FWS must decide if listing is actually warranted, based on its weighing of the science.

These bison are also an issue in the Custer-Gallatin forest plan revision process (noted here).

 

What if forest plans were a blank check?

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There’s an interesting observation in this opinion piece about the process for amending the Allegheny forest plan to allow construction of the Atlantic Coast Pipeline. It required replacing standards in the forest plan for this “project” – here’s one of them:

“Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area with the exception of the construction of Atlantic Coast Pipeline, where the applicable mitigation measures identified in the COM (Construction Operations & Maintenance) Plan and SUP (Special Use Permit) must be implemented.”

The problem this author points out is that the COM was written by the permittee and it wasn’t written when the public NEPA process was going on. The result was the Forest essentially writing a blank check for plan components that the Forest did not evaluate the effects of and the public did not get a chance to comment on. I think there’s some (legal) problems here.

This story got my attention because I’ve been looking at a lot of plan components being proposed for forest plans being revised under the 2012 Planning Rule.  One common theme is to not make any commitments in a forest plan, often using language that says essentially, “we’ll figure it out later,” often project-by-project.  It’s kind of hard to evaluate the effects of that forest plan decision. Sometimes it’s kind of like this example – where the forest plan defers to someone else, for example the states to tell them how to manage for wildlife. But there’s an even bigger problem when there are legal requirements that a forest plan must meet, particularly those related to plant and animal diversity.  A plan component that writes a blank check for a future decision does not demonstrate legal compliance.

Maybe they should just sell this national forest land?

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Steve Sanders addressed the board on the issue of the landfill nearing capacity. Sanders stated the landfill is expected to meet capacity sometime in the summer 2018. The plan for expansion has been on the books for a number of years. The expansion will cap in 5-7 years and then will require Gila County to have a new site to continue to collect municipal solid waste to dispose of for the northern part of the county. They have already started discussions with the Forest Service to acquire land around the Buckhead Mesa Landfill as it’s on a special use permit from the Tonto National Forest.

When someone argues that the Forest Service isn’t complying with the Multiple-Use Sustained Yield Act because a particular use excludes others, show them this example.  I suppose you could camp here … or how about a shooting range?