Jon Haber

Earth Island Institute v. Elliott (E. D. California)

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This case was decided on November 16, but has not yet been included in a Forest Service litigation summary. At issue is the Bull Run project, a fire salvage restoration project to treat a strip of land along an area of roadways affected by the Cedar Fire on the Sequoia National Forest. The court denied the motion for a preliminary injunction. The Forest determined that the project could be categorically excluded from an EIS, and that there were no extraordinary circumstances that would prevent the use of a CE.

The court determined that the main issue involving the use of a CE was “whether it is reasonable to interpret a project that “salvages” hazard trees on a large scale as “routine road maintenance.”  Here is the CE:

(4) Repair and maintenance of roads, trails, and landline boundaries. Examples include but are not limited to:

(i) Authorizing a user to grade, resurface, and clean the culverts of an established NFS road;

(ii) Grading a road and clearing the roadside of brush without the use of herbicides;

(iii) Resurfacing a road to its original condition;

(iv) Pruning vegetation and cleaning culverts along a trail and grooming the surface of the trail; and

(v) Surveying, painting, and posting landline boundaries.

After reviewing several similar cases, the court concluded, “the Court cannot determine with certainty at this stage of the case to what extent the Bull Run project is a true commercial “salvage” operation or whether it is, in practice, more like the Nez Perce project (which denied it was a salvage project), or whether, possibly, this is a distinction without a difference.” The court held: “For purposes of this motion for a preliminary injunction, the Court need not definitively determine the issue on the merits; it is enough to conclude that success on the merits as to the CE issue is unclear.” Thus plaintiffs had not made their case for likelihood of prevailing. (I think the FS got away with one here, especially because there is another CE for salvage projects, but for limited acreage; maybe it will become more “clear” at trial.)

The court found no extraordinary circumstances with regard to the federally endangered mountain yellow-legged frog and the Pacific fisher and California spotted owl (both designated as sensitive species by the Forest Service). For the spotted owl, the court determined that the Forest had adequately considered information about their use of post-fire areas (including submissions from the John Muir Project and Chad Hanson). Lack of quality fisher habitat swayed the court to accept the FS explanation regarding fisher connectivity. The project included 30 “site-specific measures” designed to minimize the risks to the frog, and the court cited the FWS conclusion that the resulting risk to individuals was low. (These measures would be good candidates for forest plan components when the Sequoia revises its forest plan.)

Western Watersheds v. USFS (D. Idaho)

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This case involves the decision by the Targhee National Forest to issue new Annual Operating Instructions to the Agricultural Research Service in 2017 to allow the U. S. Sheep Experiment station to continue grazing sheep on two allotments. This case was summarized in today’s Litigation Weekly, but since it found two violations of the forest plan these are worth some further discussion. Note that the case was decided on a motion for a preliminary injunction, and the perceived risk to bighorn sheep viability was key factor in granting the PI to prevent irreparable harm. (There is also a NEPA claim that the court did not decide as part of the PI opinion.)

In order to “provide an opportunity to minimize conflicts between domestic and bighorn sheep,” the Targhee Forest Plan required these allotments to be “phased out on an opportunity basis.”   “Opportunity” was defined to include “resource protection.” The court found that new telemetry data showing proximity of the bighorn sheep to the domestic sheep and other new information “reasonably could have been identified as an opportunity” to close the allotments based on the objective of resource protection instead of issuing a new AOI.

The forest plan required the Forest to maintain “at least viable populations of all native and desired nonnative wildlife . . . in habitats distributed throughout their geographic range on National Forest System lands.” The court summarized the Forest Service argument as follows: “the Forest Service asks the court to the measure the Forest Plan’s maintenance requirement not herd-by-herd, but by considering the sum of all of the individual bighorn populations Forest-wide.” The court used a dictionary definition of “maintain” to find that allowing this small herd of bighorn sheep to be extirpated “potentially will diminish the overall population of bighorn sheep throughout the Forest.” “Thus, in no way do the common definitions and understandings support neglect or deterioration of a population of animals (taken as a whole, or in part) that the Forest Service is mandated to maintain.” The court also cited agency requirements for ensuring that sensitive species do not become threatened or endangered (bighorns are classified as sensitive species on the Targhee).

Litigation Weekly December 1

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Litigation Weekly Dec 1

The court issued a preliminary injunction against grazing domestic sheep on two allotments on the Targhee NF that are used for the U. S. Sheep Experiment Station because the forest plan appears to require removal of the sheep to prevent disease transmission to bighorn sheep to maintain a viable population.  (D. Idaho)

In a case involving a permit issued by the Bridger-Teton NF to the Wyoming Game and Fish Commission for supplemental elk feeding, the District of Columbia District Court granted the Forest Service request to transfer the case to the District of Wyoming.

This is the second lawsuit brought against the Rosemont Copper Mine project on the Coronado NF and involves alleged violations of the Clean Water Act, NEPA and other legal requirements.  Other links are provided here.  (D. Ariz.)

Alleged violations of ESA for failing to monitor road culverts as required by prior consultation on bull trout, and failure of consultation to address the impacts of climate change.

The non-profit owner of conservation lands is challenging FERC’s process for condemnation of those lands for a natural gas pipeline.

Plan revision on the Rio Grande

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They are a little ahead of the Helena-Lewis & Clark discussed on Nov. 29.  They are taking comments on their draft plan and EIS.  I haven’t read either, but this article provides an overview.  Here’s the big picture:

“The purpose and need for revising the forest plan is the changed economic, social, and ecological conditions in the plan area that have occurred since the current forest plan was approved in 1996,” Dallas stated this fall when the draft was released for public review. “These changes include the spruce beetle infestation, closure of mills and timber-related infrastructure in southwest Colorado, changes in communications technology, increased development along the Forest boundary, and the need to shift fire management direction focused on suppression to the use of fire for resource benefit.”

Unlike what we saw on the HLC, this seems to reflect some of the issues that preoccupy this blog (especially the last item recently).  Similar to the HLC, there are only two action alternatives, but they are the more traditional left and right of the proposed action (more or less active management).

Alternative B, the draft plan that the Forest is proposing, provides for a balance of multiple uses; Alternative C would increase acreage available for multiple uses and reduce the amount of management areas; and Alternative D would propose less active management of resources and increase semi-primitive, non-motorized opportunities.

I think the planning process can work with a small number of alternatives if they are well-designed to address the relevant issues and impacts and if, as the Rio Grande says here, the parts can be mixed and matched to produce a final preferred alternative that is within the range of what was in the DEIS.  Here’s the Forest’s explanation of what their plan does:

Blakeman said the draft plan is broken down into: overarching goals that provide “big picture” guidance such as protecting water resources and terrestrial ecosystems and contributing to economic sustainability; desired conditions representing the vision of what the Forest should look like in the future; concise, measurable objectives, which guide the process and timeline to attain the desired conditions; and standards, guidelines and management approaches that provide constraints and/or site-specific direction. Blakeman said standards and guidelines are harder to change once in place but management approaches can be changed to adapt to changing conditions on the ground.

“Management approaches” are a possible red flag.  I’ve seen them used where the standards and guidelines are needed.  If the Forest can change or ignore management approaches, this has to be recognized in the effects analysis.  And they shouldn’t count towards meeting requirements for plan components (like diversity) because they are not plan components.

One other pet peeve.  Why can’t they use map colors that mean something, like mirroring the active/passive management scheme?

What people want from the Helena-Lewis and Clark National Forest plan

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There’s a summary of the scoping comments available on the Forest’s planning website.  “The number of comments for or against forest uses or management were not tabulated as ‘votes,'” but here’s the top 3:

“The most common topic was the concept of recommended wilderness or designated
wilderness. Roughly 46% of the comments offered input related to these designations,
including desires for more, less, specific area or boundary suggestions, and input as to
what uses should be allowed in such areas.”

“Many comments included input related to motorized uses, nonmotorized uses, trails,
roads, access, and other travel planning issues on the Forest. Comments related to these
topics represent about 28% of all comments received…”

“Comments about wildlife and habitat frequently overlapped with comments about motorized use, recommended wilderness, and other resource management issues. Comments that included input on these topics represented roughly 21% of the total comments received.”

Other categories of likely interest: Water – 10%, and fire/fuels, climate change and vegetation management each at – 7%.  (The %s add to more than 100, so these must represent the % of comment letters that addressed each topic.)

Despite not counting votes, it looks like they aren’t considering any alternatives related to wildlife, vegetation or fire except as a timber harvest and production problem.  I’m not seeing anything ecological here, making me think they just want to meet the legal minimum for diversity.  It reminds me of the current Helena plan I helped write 35 years ago (but I don’t think that’s a good thing).  Hopefully there’s more here than it appears.

Speaking of European forestry …

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Take a little break from the Forest Service …. sort of (actually sounds kind of familiar).

Poland says compliant with EU court order against ancient forest logging

The Luxembourg-based European Court of Justice on Monday warned Poland’s right-wing government to “immediately” stop logging in the Bialowieza Forest or face fines of up to 100,000 euros ($118,000) a day.

Bialowieza includes one of the largest surviving parts of the primeval forest that covered the European plain 10 thousand years ago.

Activists, scientists and other critics allege Poland is engaged in commercial logging but the government insists it is only felling trees for public safety reasons in accordance with the EU injunction.

The EU court did allow for exceptions, saying: “Poland must immediately cease its active forest management operations in the Bialowieza Forest, except in exceptional cases where they are strictly necessary to ensure public safety.”

The problem lies in the word “necessary,” which Poland has interpreted more broadly than the EU court.

On Tuesday a Greenpeace Poland activist, Kasia Jagiello, said that the group was calling for the creation of a commission that would include representatives of the environment ministry, as well as independent scientists and NGO representatives.

Local plans for federal lands – the latest

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This is a continuation of the “sagebrush rebellion” in the form of local government plans that purport to exert local control over federal land management.  They are being peddled to rural counties by Karen Budd-Falen, an attorney with a history of promoting private property rights (who some expect to be the new director of the BLM).  Since she certainly knows what she is talking about, she must also know that there is no legal basis for some of the expectations she is generating.  It’s just another way of stirring up local sentiment against federal land management.

A new local plan was just adopted in Oregon:

Earlier this month, Crook County leaders passed a plan designed to give county residents more say in how local public lands are managed by the federal government. However, discussions over how the plan will be implemented and what it will mean for the county’s oft-contentious relationship with its local public land managers are just getting started.

In addition to articulating county priorities for how federal land should be managed with regard to mining, agriculture and recreation, the plan states that the county expects state and federal agencies to meet with county officials on an ongoing basis.

Still, Michael Blumm, professor of law at Lewis & Clark College in Portland, said federal agencies don’t have any obligation to follow the county priorities set out in the plan, which range from mandating no reduction to grazing allotments on federal land, to ensuring that roads providing access to public lands stay open year-round.  “It’s a political move,” he said. “It’s not legally enforceable.”

And another is being discussed in Montana:

A controversial land-use attorney drew more than 100 protesters and as many supporters to Hamilton Middle School Saturday, but the topic of her talk with county residents was interpreted differently by people attending the event.

Budd-Falen’s talk centered around having a more detailed county land-use plan that would be used to strengthen its own management desires carried out by federal agencies, including the Forest Service. She said that federal policymakers in Washington, D.C., were out of touch, and local governments could help guide more micro-level policies.

While Budd-Falen never spoke about public land transfer, state Sen. Jennifer Fielder, R-Thompson Falls, gave a presentation about her efforts to support federal land transfer to states. 

Actually Ravalli County has already has a “natural resource use plan” it developed in 2012, and Commissioners changed their minds about asking Budd-Fallon to speak about adding “teeth” to it (she was invited instead by a local state representative).  Maybe their experience with that plan has helped them understand that its greatest value is probably in helping them articulate their interests rather than as something to beat up the Forest Service with.

Litigation Weekly November 17

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Litigation Weekly Nov 17

Temporary restraining order denied for the North and South Pioneer projects on the Boise N. F. approved under an emergency situation determination, and involving bull trout, Canada lynx and forest plan soil condition standards.  (D. Idaho)  (previous summary 10/6 here)

The lawsuit involves publication of over-snow vehicle use maps on the Bridger-Teton N. F., and an amended complaint adds claims regarding failure to consult under ESA.  (D. Idaho) (previous summaries here and 9/1 and 9/15 here)

Environmental plaintiffs claim a violation of section 7(a)(1) of ESA, which requires that agencies carry out programs to conserve listed species, as applied to the Rosemont Copper Project on the Coronado N. F. (previous summaries on this project 9/29 here and 8/11 here and discussion here)

Who gets to be “in the room”

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Discussion about the unfair access of litigants to decision-makers ignores the privileged position of local governments and economic interests during the planning process.  That is illustrated by this account of a meeting between the Forest Service, ESA regulatory agencies and northeast Oregon ranchers and county commissioners concerning revision of the Blue Mountains forest plans and changes in grazing requirements.  It sounded good up through the point where a forest supervisor said, “It was a productive meeting.  People said we need to do this more often — get around the table and share our thoughts in a respectful way.”

But here’s what the local public is taking home from the meeting (I’ve added the italics):

One of the major bones of contention with the plan among ranchers was something referred to as Watershed Condition Framework, which would require ranchers to leave taller grass stubble after grazing.  “We got buy-in from the Forest Service that Watershed Condition Framework is out the door,” Nash said.  (WCF is actually a national requirement.)

Matt McElligott of North Powder was asked to attend the meeting as a representative of the cattle industry. He said the county commissioners and the ranchers asked that the Forest Service use grazing guidelines and not standards. The commissioners also asked that those guidelines be assessed allotment by allotment rather than across the more than 5 million acres on the three forests.  “When we left the meeting the other day, we got close to all the points the commissioners wanted,” McElligott said.

Those in attendance methodically went over each point step by step, hashed out the terminology and agreed to the items proposed for inclusion in the Pacific Northwest Regional Forester’s Record of Decision due early next year, McElligott said.

This seems to me to create a lose-lose situation.  Either the attendees get what they want and the Forest Service and regulatory agencies look like they are making backroom deals, or they don’t and they feel betrayed (and might sue).  A reason why such “collaboration” is not a substitute for public involvement and NEPA – or for litigation.