Jon Haber

September litigation monthy

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This gets us up-to-date with the weeklies I’ve received.  Sit back, have a cup of coffee ….

Litigation Weekly Sept 1

  • Cent Or Landwatch v Connaughton  – The Deschutes decision to authorize a water supply intake was consistent with the forest plan riparian management objectives (RMOs) and complied with NEPA.  (9th Circuit)
  • Beaver Creek NOI  –  Alleged violations of ESA on the Flathead for failing to consult on the forest plan for grizzly bears in newly acquired lands, and for proceeding with a project in lynx critical habitat prior to completion of forest plan consultation.
  • Boise NOI,  Payette NOI,  BridgerTeton NOI  –  Alleged violations of ESA consultation/conference requirements for publication of over snow vehicle use maps.

Litigation Weekly Sept 8

  • Friends Wild Swan v. Kehr  –  (New case.)  The Beaver Creek Project on the Flathead is being challenged for failure to consider the cumulative effects of another project on the same ranger district, and for being inconsistent with forest plan road density standards for grizzly bears and elk.  (See also Beaver Creek NOI above.)  (D. Montana)
  • Oregon Hunters Association v USFS  –  (New case.)  Plaintiffs argue that the Ochoco Summit Trail System Project on the Ochoco failed to consider effects on elk and violates the forest plan direction for elk.  (D. Oregon)

Litigation Weekly Sept 15

  • CCRMC_v_USFS  –  Collection of data related to possible construction of a mine tailings pond on the Tonto had nominal effects on the environment, and approval did not require consideration of the impacts of the proposed copper mine it would service.  (D. Arizona)
  • WinterWildlandsAlliance_v_USFS  –  (New case.)  This case involves over snow vehicle use maps on the Boise, Payette and Bridger-Teton prepared in 1988 and 1990.  They are alleged to based on out of date information, violate forest plan requirements for at-risk species, and were not eligible to be “grandfathered in” under the Travel Management Rule.  There is also a claim under the Wyoming Wilderness Act.  (See also ESA NOIs above.)  (D. Idaho)
  • WesternWatersheds_v_Michael  –  A Wyoming state statute that criminalized collecting data on public lands after trespassing on private lands infringed on the First Amendment’s right of free speech. (10th Circuit)

Litigation Weekly Sept 22

  • Rocky Mtn Wild v Dallas  –  In a case that voided the Rio Grande’s approval of land exchange related to the Wolf Creek Ski Area, the court denied a motion by the proponent to reconsider its decision.  (D. Colorado)  Discussed in more detail here.
  • Sequoia Forestkeeper v Price  –  The Frog Timber Sale Project on the Sequoia complied with NEPA and forest plan requirements with regard to fisher.  (E. D. California)
  • FSEEE v USFS  –  (New case.)  The complaint alleges that the decision to grant a special use permit to the Navy to conduct electronic warfare training did not to comply with the Olympic forest plan.  W.D. Washington)
  • CBD v BLM  –  (New case.)  The Battle Mountain District of the BLM (Nevada) leased 195,732 acres for oil and gas development using an EA, and was challenged regarding its NEPA compliance.  (D. Nevada)
  • DOW v Duke  –  (New case.)  This case involves the decision by the Department of Homeland Security to waive federal laws under the Illegal Immigration Reform and Immigrant Responsibility Act to construct a prototype Mexican border wall, due to its environmental impacts.  (S.D. California)
  • WildEarth Guard v BLM  –   The BLM failed to adequately consider the greenhouse gas emissions of four coal leases in Wyoming because its assumption that coal would be produced elsewhere if the no-action alternative were selected was not supported by the record (though mining was allowed to continue on remand).  (10th Circuit)

Litigation Weekly Sept 29

  • WildEarthGuardians v. Provencio  –  The Kaibab’s use of the motorized big game retrieval exception under the Travel Management Rule complied with the Rule and the National Historic Preservation Act, and the EA complied with NEPA.  (D. Arizona)
  • USA v. Carpenter  –  Elko County did not prove ownership of a road on the Humboldt-Toiyabe, and the Forest could not convey rights to the road in a settlement agreement.  (D. Nevada)
  • Alaska v. USDA     The 2001 Roadless Area Conservation Rule was again upheld, including consideration of its application to the Tongass.  (D. D.C., scanned file size exceeds site capacity)
  • CBD v. FWS  –  (New case.)  Plaintiffs challenge the biological opinion by the Fish and Wildlife Service, and reliance on it by the Coronado when it approved the operating plan for the Rosemont Copper Mine.  (D. Arizona)  Discussed further here.
  • Wyoming v. Zinke  –  The BLM has proposed to rescind its 2015 Fracking Regulation, and therefore a case involving its validity was not ripe for judicial review.  (10th Circuit)

R.I.P. Saw Brigade

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In another old case …

The Supreme Court has left in place a lower court ruling that prevents New Mexico from greenlighting tree clearing on federal land in the state in the name of fire prevention.

The Supreme Court declined Monday to hear a dispute between New Mexico and the federal government.

The issue dates back to 2001 when New Mexico passed a law saying the U.S. Forest Service had failed to reduce the threat of forest fires by not clearing undergrowth and removing trees on Forest Service land. The law then gave counties in the state permission to do the work.

When Otero County moved to cut trees on land in the Lincoln National Forest without federal approval in 2011, the United States government sued. Lower courts sided with the federal government.

https://www.abqjournal.com/1072087/supreme-court-declines-to-hear-nm-tree-clearing-dispute.html

R.I.P. Shovel Brigade?

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The Jarbridge Road in Nevada is back under the control of the Forest Service.

A federal judge in Reno ruled against rural Elko County this week — again — and closed the 18-year-old case stemming from a sometimes volatile feud over the road in remote wilderness near the Idaho line.

It began in 1999 when the Clinton administration filed suit against then-Nevada Assemblyman John Carpenter, one of the leaders of a “Shovel Brigade.” They had vowed to rebuild a washed out road near threatened fish habitat along the Jarbidge River in defiance of the government. Carpenter and one of his lawyers, Grant Gerber, have since died.

The county claimed it owned the road under a Civil War-era law that granted state and local governments’ rights of way to existing roads in places where national forests and parks later were established.

The so-called “R.S. 2477 roads” — named after the statute number — became a lightning rod for property rights advocates and anti-federal forces in the 1990s, with similar court battles in Utah, Idaho, Colorado, Oregon and New Mexico.

Like other cases, the federal government denied Elko County’s claim it owned the road before the Humboldt National Forest was established in 1909.

But the Nevada case is unique because, despite the government’s position, the Forest Service signed an agreement with the county in 2001 that said it wouldn’t challenge the county’s alleged right of way.

It looks like the court held that 1) the county did not prove that it owned the road prior to the establishment of the national forest, and 2) the Forest Service could not violate the law by giving away federal land rights though a settlement agreement.  (Of course the county could again appeal this ruling to the 9th Circuit.)

New lawsuit – winter motorized recreation in Idaho

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A sneak preview of the September litigation monthly:

A lawsuit filed by the Winter Wildlands Alliance and WildEarth Guardians contends that the Bridger-Teton, Boise and Payette national forests improperly used a “grandfather provision” to avoid preparing a new winter travel plan.

The U.S. Forest Service historically allowed its forests to forgo winter travel plans, but in 2015 changed direction and required them to delineate where snowmobiles can and cannot go. A provision allows forests to skip the planning process if winter routes were designated through a public process, and they haven’t been changed since.

Groups suing contend the Bridger-Teton, Boise and Payette ignored the requirement to plan.

Apparently because they have “been changed since.”

August litigation monthly

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I’ll try to keep up weekly, but will deal with the backlog in a couple of chunks.  I plan to just summarize the Forest Service summaries here (to minimize space and work and chance for misrepresenting them).  If you want the original summary or the supporting documents, click on the links.  If I have an opinion, I’ll keep it separate.  Jon

Litigation Weekly Aug 4

Litigation Weekly Aug 11 

  • AWHPC v Perdue  The Modoc failed to explain a change in acreage in its plan for the Devil’s Garden Wild Horse Territory. (D. C. Circuit)
  • Rosemont CWA NOI  Alleged Clean Water Act violation by the Coronado for its plan for the Rosemont copper project.  More here.

Litigation Weekly Aug 18

  • CBD v Eli Ilano  Designation of lands as at-risk under the Farm Bill did not require NEPA.  The use of the Farm Bill’s categorical exclusion was upheld on the Sunny South Insect Treatment Project on the Tahoe with respect to spotted owls.  (E.D. California)
  • CNSP v. USFS  New case.  A permitee challenged denial of proposed electronic site construction on the Santa Fe.
  • ESA NOI  Alleged ESA violations involving grizzly bears and lynx by the Helena-Lewis & Clark for the Moose Creek vegetation project.

Litigation Weekly Aug 25

  • Sierra Club v DOE  The Department of Energy properly granted a liquid natural gas export permit without considering indirect effects of gas production that were not reasonably foreseeable. (D. C. Circuit)
  • Mont Env Info Ctr v OSM The Office of Surface Mining failed to adequately consider the effects of coal transportation and combustion and greenhouse gas emissions when it approved an application to expand coal mining.  (D. Montana)
  • Sierra Club v. FERC_ 2017 U.S. App. LEXIS 15911  The Federal Energy Regulatory Commission EIS for the Southeast Market Pipeline project did not contain enough information about the greenhouse gas emissions that would result from burning the gas.  (D. C. Circuit)  (Requires Lexis subscription)

 

New lawsuit on Arizona copper mine and jaguars

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The Coronado National Forest has been sued by the Center for Biological Diversity for approving the Rosemont copper mine.  The U. S. Fish and Wildlife Service is also a defendant because the issues involve ESA consultation on the mine.

The Rosemont Mine would “significantly impact a number of endangered species and their remaining habitat, including one of the three known wild jaguars in the United States,” said the center.

The mine’s footprint lies “squarely in jaguar critical habitat” important for the survival and recovery of jaguars in the United States, the Center said, cutting through the home territory of “El Jefe,” one of three jaguars spotted in Arizona’s mountain, the center said.

In the lawsuit, the center said that the mine would affect 5,431 acres of land in the Coronado National Forest, including hundreds of acres used as a “dumping site” for more than a billion tons of waste rock and tailings facilities. Approved by the Forest Service, the Rosemont Mine would also include hundreds of acres of fencing that would present a “permanent barrier to wildlife movement.”

“The Rosemont Mine would turn thousands of acres of the Coronado National Forest into a wasteland,” wrote Marc Fink, an attorney for the group. “Even though the agencies found it would permanently damage endangered species and precious groundwater resources, they’re letting the mine proceed,” he said.

The decision to permit the mine required a forest plan amendment.  The Forest Service provided this rationale:

“I have decided to amend the 1986 Coronado forest plan by creating a new MA that provides for
mining of privately held mineral resources while allowing other forest uses to the degree that they are safe, practical, and appropriate for an active mining or postmine environment. Standards and
guidelines have been developed specifically for this new MA (MA 16). See the FEIS, pp. 117–120,
for details. In so doing, this project meets the requirements of 36 CFR 219.

I have determined that this programmatic amendment of the 1986 forest plan is not significant
because it would not significantly alter the multiple-use goals and objectives for long-term land and resource management for the forest as a whole.”

The requirements of “36 CFR 219” it allegedly satisfied were those from the 1982 planning regulations.  The amendment was allowed to proceed under the old regulations because it was initiated prior to the 2012 Planning Rule.   However, both sets of regulations require that forest plans provide for recovery of listed species.  There could be an NFMA violation as well.

Good Neighbor Authority

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This isn’t something that has been discussed here, but in the last couple of days I’ve seen two stories that make it sound like the greatest thing since tab tops.

The Chequamegon-Nicolet National Forest may sell 123 million board feet of timber by the end of fiscal 2017, WJFW-TV reported. That would mark the fifth annual increase in a row for the forest, which is nearing its maximum yield.  Forest Supervisor Paul Strong said this year’s expected yield is “absolutely great news.” The forest’s management plan aims to sell 131 million board feet annually. Strong said the timber program has grown thanks to the National Forest Services’ increased authority under the 2014 U.S. Farm Bill and policies allowing organizations to remove small trees and keep the timber.  He also cited the federal Good Neighbor Authority policy, which has allowed the Wisconsin Department of Natural Resources to manage the sale of about 25 million board feet of timber in the national forest annually.

Idaho has been seeing success with using the “Good Neighbor Authority” it was granted under the 2014 federal Farm Bill to partner with the U.S. Forest Service and increase active management and timber harvests on national forests in the state – and it’s poised to ramp the program up.  Under GNA, the state Department of Lands can offer its expertise and help to the Forest Service where the service’s staffing is short, for everything from administering contracts for timber sales to jointly designing projects that are backed by local collaboratives.   Because Idaho had numerous forest collaboratives already in place – which bring together sportsmen, conservationists, industry, local government and more to help design projects to improve forests in their area – it was able to spring into action.  Schultz said the piece Idaho’s been able to include that earlier states didn’t is actual timber sales – which add the jobs and economic impact piece, along with fund the program itself.  Jonathan Oppenheimer, government relations director for the Idaho Conservation League, attended the Land Board meeting. “We’ve been involved in a lot of these collaboratives,” he said afterward. “We are cautiously supportive of the program. We see it as a good way to get work done.” He called GNA “a good tool, but one that we’re certainly watching closely.”

Here’s what the Forest Service says about it:

The Good Neighbor Authority allows the Forest Service to enter into cooperative agreements or contracts with States and Puerto Rico to allow the States to perform watershed restoration and forest management services on National Forest System (NFS) lands. Congress passed two laws expanding Good Neighbor Authority (GNA): the FY 2014 Appropriations Act and the 2014 Farm Bill. Each law contains slightly different versions.

  • The Farm Bill permanently authorizes the Good Neighbor Authority for both the Forest Service and the Bureau of Land Management (BLM) extending it to all 50 States and Puerto Rico. It excludes construction, reconstruction, repair, or restoration of paved or permanent roads or parking areas and construction, alteration, repair, or replacement of public buildings or works; as well as projects in wilderness areas, wilderness study areas, and lands where removal of vegetation is prohibited or restricted.

  • The Fiscal Year (FY) 2014 Appropriations Act included a five-year authorization for the use of GNA in all states with NFS lands to perform watershed restoration and protection services on NFS and BLM lands when similar and complementary services are performed by the state on adjacent state or private lands. Other than the adjacency requirement, there were no exclusions as to type or location of work.

Is there more here than meets the eye (good or bad)?  It does help with the financing.  Focusing on national forest lands that are “adjacent” to state or private lands seems like it would minimize controversy.  No mention of a collaboration requirement, but that seems to figure into it somehow.  If this is working so well, does the FS need more legislation?

Forest planning for hunting

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“A number of environmental groups, including the Endangered Species Coalition, want to keep hunters who use packs of dogs out of public lands in Wisconsin, including the state’s national forests.  The groups say the hunters and their dogs have made the public lands inhospitable, and they want the federal government to launch an investigation into the practice.  Robert Williams is a Madison resident who frequently camps on public lands in northern Wisconsin. He says the packs of hunting dogs wreak havoc on the native wildlife.”

This brings to mind a similar situation in Louisiana. In 2012 the Forest Service amended the Kisatchie National Forest plan to prohibit the “age-old tradition” in Louisiana of hunting deer with dogs because of user conflicts.  In Louisiana Sportsmen Alliance v. Vilsack, a federal district court upheld the forest plan amendment. It stated: “We are conscious of the fact that KNF is a National Forest, owned by the United States and to be utilized in the best interests of all. The law empowers the agency to make precisely the kinds of decisions made here.”  (The Fifth Circuit then held that plaintiffs had not established standing to sue and dismissed the case.)  If the agency has the authority to regulate recreation that impacts species listed under ESA, then its failure to do so in Wisconsin might violate the law.  (However, under the 2012 Planning Rule, forest plans do not directly regulate users by themselves, and a separate closure order would be required.)

“Hunting group sues to stop Ochoco off-road trails”

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This is about the Ochoco Summit Trail System Project:

The project proposes to designate a trail system in the Ochocos specifically for off-highway vehicles. The trail would be open seasonally and it would be built using mostly existing roads and trails tied together by some currently open roads. It would be a system where motorcycles, quads, side-by- sides, and Jeeps could ride trails designed specifically for enjoyment and recreation. The trail  system would be accessed at designated staging areas, parking areas, or trailheads.

The current Final Supplemental EIS has five alternatives for the trail system that range in distance from 124 miles (Alt 2) to 158 miles (Alt 4), and the No Action alternative (Alt 1).

The idea for this system originated in 2009 when the Ochoco National Forest conducted travel management planning. The 2005 Travel Management Rule required the forest to designate a system of roads, trails, and areas for motorized use and to prohibit cross-country travel. Under the motorized travel system adopted in 2011, recreational OHV users lost a lot of opportunity. More than 80 percent of the forest was made off-limits to OHV use and most of the roads still open to OHV driving lack connectivity and must be shared with cars and trucks. Through an engineering analysis, some system roads were also deemed unsafe for mixing non-street legal OHVs with
passenger vehicles and commercial traffic.

The lawsuit:

The Oregon Hunters Association, the state’s largest, pro-hunting organization made up of more than 10,000 members, filed the lawsuit in the Pendleton Division of the United States District Court on Aug. 31, arguing the decision to approve the trails is not supported by scientific wildlife research the Forest Service completed on the Starkey Experimental Forest in Northeast Oregon.

The hunters association argues the addition of trails and roads would increase use, which Forest Service scientists have shown adversely affects elk habitat, according to a news release from the hunters association Research on the Starkey Experimental Forest found the animals avoid areas within 1.1 miles of roads or motorized trails.

This idea of designating a motorized trail “system” as a distinct “project” seems kind of unusual to me (it’s not just a “travel plan”).  The conflicts with wildlife are not, however.  There’s also a claimed violation of NFMA.  This lawsuit (“environmental extremists” abusing the legal system?) might get at some interesting questions about motorized recreation use on public lands.

“Managers accomplish much with fire”

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)

Amongst all the whining and ranting about how the Forest Service coulda/shoulda stopped all of this summer’s fires, there is this letter to the Missoulian (Missoulian’s title above), which I’ll reprint in total:

Activity on the controlled burn of the Bitterroot Range is continuing to be successful. The reports show where they are building the containment lines on the southeast edge of the control burn area. They have burned the area past Florence and into the Sweeney Creek and down to Bass Creek with extended blackened lines planned almost all the way to Kootenai Creek.

The incident management spokesman said they want to put the “hook” just on the edge of the old Kootenai Creek burn so they can stop the southernmost end of the fire there. In other words, they have got the area that they want to burn up surrounded by controlled burned areas almost all the way around this end of the Bitterroot Range.

 You can see by the map that the fire is going just almost as planned in that it has completely burned off all the forest up to Highway 12 and now it is heading south past Florence and just has to burn up the center section from the bottom foothills to the top of the Bitterroot Range.

Great work, incident managers. You have accomplished a great deal with this “lightning-initiated” fire.

Do you think this is serious or serious sarcasm?  (I don’t know anything about the author.)  It is pretty much the way the incident reps have described what they are doing to manage a wilderness fire on the edge of subdivisions.  They are not sending troops in to flail at the fire, but fire-proofing the boundary and letting it burn itself out in the interior.  Shouldn’t property values go up all along the forest boundary knowing the fire risk has now been hugely reduced?  (No NEPA!)