Jon Haber

Lawsuit against water diversions on the Sawtooth

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Nearly two dozen water diversion projects in central Idaho’s Sawtooth Valley are harming federally protected salmon, steelhead and bull trout, according to the Idaho Conservation League (and this article).

Specifically, the lawsuit says the Forest Service in 2001 prepared environmental documents called Biological Assessments and found most of the 23 diversions are “likely to adversely affect” one or more of the protected species.

Those assessments were sent to Fish and Wildlife and NOAA Fisheries. But in June 2001, NOAA Fisheries notified the Forest Service, according to the lawsuit, that the additional information was needed to begin the consultation. The lawsuit says the Forest Service never followed up with that additional information.

“More than 16 years later, the Forest Service continues to authorize these 23 diversions to be used, operated, and maintained without ESA consultation, even though sockeye salmon, Chinook salmon, steelhead, bull trout, and their habitat have been, are being, and will continue to be harmed by the diversions,” the lawsuit says.

Once an agency decides that a proposed action is likely to adversely affect a listed species it has to formally consult with the appropriate agency (in this case, Fish and Wildlife Service for bull trout and NOAA Fisheries for salmon and steelhead).  If they haven’t done it, it’s kind of an open-and-shut case – one that would be a good candidate for settlement.  Under ESA, there should have been a 60-day notice of intent to sue, which should have led to discussions that might have avoided a lawsuit.  Not sure what happened here.  (If there have been more recent reauthorizations with a finding of “no effect,” that would complicate things.)

Forest planning heats up on the Custer-Gallatin

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It looks like the Forest has at least two alternatives now for wilderness recommendations, with competing proposals from a local wilderness group and a “partnership” that includes a state wilderness group.  (What should count more, local or collaborative?).  An interesting comment from the local group:

“I recently met with the Custer/Gallatin National Forest supervisor regarding the forest plan revision available for public comment. She cautioned me to limit my comments to science-based concerns rather than value-based.  I have a problem with that.”

That disagreement sounds like one we have discussed before.

Then you’ve got bison (and protesters).  It’s a pretty unique situation, but triggers the standard requirement for the Forest to determine if there is substantial concern about their persistence in the plan area, which would require them to be formally treated as a species of conservation concern and maintain habitat for a viable population.  They can’t just say they’ll do whatever the state wants, or whatever the Park Service wants, or assume that those other parties would ensure that the species persists on the Forest.

New mountain top radio tower causes static

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The Humboldt-Toiyabe National Forest has gone a century (or however long it’s been since they invented radios) without radio service on some of its lands, but has decided that it needs it now, and that it requires the use of a mountain top with no development on it yet, and that there is no impact on the environment of doing that.  They say it technically fits a categorical exclusion because it involves less than 5 acres of land, and there are no extraordinary circumstances.  But it’s on the top of a pristine scenic mountain, and there is apparently an alternative location that is already developed?  And it sounds like it might require a forest plan amendment (meaning they told the public they intended to keep the mountain top pristine).  No wonder people are complaining.  It sounds like the kind of tone-deaf action that makes the agency look bad.  Do the EA; consider alternatives.

Litigation weekly January 19, 2018

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Litigation Weekly Jan 19

The 9th Circuit Court of Appeals refused to enjoin the Tower and Grizzly fire salvage and restoration projects on the Idaho Panhandle National Forest.  (9th Cir.)

(Update)  The Forest Service was added to a case against the BLM involving approval of a plan for construction of oil and gas wells on the Grand Mesa, Uncompahgre and Gunnison National Forests.  (D. Colo.)

(New case)  A recreational gold miner in Georgia challenged the authority of the Forest Service to monitor or regulate noncommercial activities associated with recreational mining.  (S.D. Ga.)

Litigation Weekly – January 12, 2018

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Litigation Weekly Jan 12

A Freedom of Information Act case.  Documents created by contractors in conjunction with their preparation of an EIS for the Wolf Creek Land Exchange on the Rio Grande National Forest, but never provided to the Forest Service, were not “agency records” subject to release under FOIA.  (10th Cir.)

(New case.)  Reauthorization of livestock grazing would allegedly “impair the viability and recovery” of the federally threatened Spalding’s catchfly in the Hells Canyon National Recreation Area on the Wallowa-Whitman National Forest.  (D. Or.)

(Notice of intent to sue under the Endangered Species Act.)  Earthen berms used to close roads in the Pilgrim Project on the Kootenai National Forest fail to effectively prevent motorized access to protect grizzly bears as required by the forest plan’s access requirements, which results in unauthorized take of a listed species.

The Migratory Bird Treaty Act allows the U. S. Fish and Wildlife Service to kill barred owls (protected as migratory birds) to determine whether that practice would benefit spotted owls listed under ESA.  (9th Cir.)

Plaintiffs did not have standing to sue USDA Wildlife Services for killing wolves in Idaho because a court decision would not stop the State from using other means to kill the wolves.

 

Study blames pot farms for poisoning spotted owls

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“Researchers from the University of California, Davis, and the California Academy of Sciences tested 10 northern spotted owls found dead in the region. Seven of the owls tested positive for rat poison, used by pot farmers to keep rodents away from their irrigation systems and crops.”

“California officials argue that legalization will allow them to increase oversight and regulation of cannabis farms in fragile forests.”  Is there an opportunity here for California to work with Attorney General Sessions on federal lands since they have a shared interest?  Could the revived “war on drugs” lead to more money for the Forest Service?  (This is slightly tongue-in-cheek, but …)

(Another opportunity … for those cut-over private timberlands to improve their cashflow?  Not that this would be any better for the spotted owls, though rat poison would also work on barred owls attracted to the clearcuts.)

Chetco Bar Fire salvage – agreement?

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“The U.S. Forest Service is planning on salvage logging later this year in about 8 percent of its acres burned in last year’s 191,197-acre Chetco Bar fire in Curry County, a move timber advocates welcomed and one conservation group called “something we can live with.””

George Sexton, conservation director for the Ashland-based Klamath-Siskiyou Wildlands Center, said a sound plan to get sellable timber from the fire would be to continue focusing on commercial logging of hazard trees as well as previously logged plantations within the study area.

The forest also should add fuels-reduction timber sales immediately around communities to ensure public safety in these areas eyed for salvage, Sexton said.

“I could see that as a project that sails through pretty quickly and gets out a decent amount of volume,” Sexton said. “That’s about the best they can do and I think it will produce a fair amount of volume.

The Southern Oregon Timber Industries Association said:  “Getting some rather than not getting any out,” “That is what we’re hoping for.”

Loggers lose attempt to remove coho salmon from California’s endangered list

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On remand from the California Supreme Court, the Central Coast Forest Association and Big Creek Lumber Company lost again in the state appeals court.  They have been arguing that coho salmon did not occur naturally in rivers south of San Francisco, and that hatchery coho were harming native steelhead.  The state Fish and Game Commission had found otherwise.

From the judge:  “Petitioners have not offered sufficient evidence that the current inhabitants of the streams south of San Francisco are directly the result of out-of-state hatchery stock,” he wrote. “Moreover, the Commission relied on recent genetic data, the results of which rule out the claim that hatchery fish replaced the native stock south of San Francisco.”

From an environmental intervenor attorney:   “The petitioners/plaintiffs are timber companies, not advocates for steelhead,” he said, noting that the appellate court’s ruling blames timber harvesting in part for the decline in coho populations.  “It seems pretty transparent that their interests lie in reducing restrictions on timber operations, not protecting salmon or steelhead,” Evans added. “Protections for waterways that contain coho salmon would also benefit steelhead trout in those same rivers. So, in essence, greater protections against sediment, erosion, roads, and increases in water temperature due to timber harvest would benefit both salmon and steelhead, which have similar ecological needs.”

From the plaintiffs’ attorney:  “It’s sad to see the deepening corruption of science in California. It’s just another layer of regulation and stupidity,” he said. “This decision is sinking California into a pit of idiocy from which it will never return.”

It sounds to me like it’s just typical judicial deference to a professional agency’s interpretation of science.  And for lumber companies to say they are only concerned about the fish – that sounds a little “stupid” (but whatever it takes to try to win the case, right?).

 

Litigation weekly – December 22 and 29, 2017

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Litigation Weekly Dec 22

The Allegheny National Forest was not liable for trespass when it delayed the extraction of oil and gas by the subsurface rights owner.  (W.D. Pa.)

The 10th Circuit held that the BLM could not adequately represent the interest of environmental groups when defending an energy industry challenge to its Mineral Leasing Act policies.

(New case.)   Plaintiffs challenge the expansion of the West Elk Mine on the Grand Mesa, Uncompahgre and Gunnison National Forest into a designated roadless area, based on NEPA.  (D. Colo.)  (The request for a temporary restraining order was subsequently denied.)

(Notice of intent.)  Alleged violation of Clean Water Act discharge permits for mines on the Tahoe National Forest.

Litigation Weekly Dec 29

The Ouachita National Forest properly denied a special use permit to construct a road to private property surrounded by a wilderness area.  (E.D. Okla.)

(Update.)  Plaintiffs requested dismissal of their case against the denial of mineral leases by the Superior National Forest.  (D. Minn.)

(New case.)  This is a dispute about the process for contracting with an entity to operate a shuttle service on the Coronado National Forest for which the plaintiff is the previous contractor.  (D. D.C.)

Prescribed fire in wilderness

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The Ten Cent Community Wildfire Protection Plan led to a fuel treatment proposal on the Umatilla and Wallowa-Whitman National Forests that included prescribed burning in the North Fork John Day Wilderness Area.  Objections included alleged violations of the Wilderness Act.  The objection decision included the following description of the process and requirements to conduct prescribed burning in wilderness.

The first two conditions that must be met are that “use of prescribed fire or other fuel treatment
measures outside of wilderness is not sufficient to achieve fire management objectives within
wilderness”. FSM 2324.22. A Minimum Requirements Decision Guide (MRDG) was prepared that determined that use of prescribed fire or other fuel treatment measures outside wilderness would not be sufficient. FEIS at 404. The second condition that must be met is that “an interdisciplinary team of resource specialists has evaluated and recommended the proposed use of prescribed fire”. FSM 2324.22. The proposal was developed by a team of interdisciplinary specialists. FEIS at 3. The third condition that must be met is that “the interested public has been involved appropriately in the decision”. FSM 2324.22. The public was provided opportunity to comment on the proposed action and draft EIS. Draft ROD at 8-9. The final condition that must be met is that “Lightning-caused fires cannot be allowed to burn because they will pose serious threats to life and/or property within wilderness or to life, property, or natural resources outside of wilderness”. FSM 2324.22. The MRDG documents the current situation in which natural ignitions in wilderness are suppressed to protect life, property, or natural resources outside of wilderness, including adjacent private residences and communities. FEIS at 403. The final condition to be met is that there must be objectives, standards, and guidelines for the use of prescribed fire specific to the wilderness area in a forest plan, interim wilderness management plan, or fire management area plan. FSM 2324.22. The North Fork John Day Wilderness Action Plan specifies that vegetative changes resulting from prescribed fire would not be considered unacceptable changes in forest cover or visual/scenic quality. LRMP at B-2, FEIS at 215.

Finally, policy specifies that manager-ignited fire should not be used where lightning-caused fire can achieve wilderness fire management objectives. FSM 2324.22. The history of fire suppression in the North Fork John Day Wilderness and resulting fuel loading have led to the current situation in which lightning-caused fires are not likely to achieve the second wilderness fire management objective (“Reduce, to an acceptable level, the risks and consequences of wildfire within wilderness or escaping from wilderness.” FSM 2324.21). FEIS at 403. Currently, these risks and consequences within wilderness include the likelihood that “when a fire does occur, it will be of high severity consuming most vegetation and soil cover” and “could potentially remove cover for big game, produce an influx of sediment into anadromous fish spawning habitat, and increase water temperatures due to loss of shade” as well as limit opportunities for primitive recreation. FEIS at 215, 403, 406 and 436.

The decision was then modified to eliminate the wilderness burning, and the rationale was “once areas outside the wilderness are treated, agency administrators may select to manage natural ignitions differently (e.g. confine and contain strategy) inside the North Fork John Day Wilderness to further meet the project purpose and need and improving the naturalness component of wilderness character.”  The bottom line is that a “minimum requirements” analysis could allow intentional burning of a wilderness area without violating the Wilderness Act, but the objection process overruled those findings in this case and found that it was not necessary.  Given that suppression is allowed in wilderness areas, I don’t automatically see a problem with using prescribed fire to offset that (so I guess I’m not a wilderness purist).  (And someone might even say that logging could be good for wilderness.)