ESA

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).

BLM O&C plan changes may lead to ESA listing

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One of the factors considered in listing a species under ESA is the adequacy of exiting regulatory mechanisms.  One of the biggest payoffs from national forest and BLM planning may be the adoption of such mandatory mechanisms that would protect a species and reduce or eliminate the need to list it under ESA.

The Northwest Forest Plan included a requirement to survey for rare species prior to logging projects – “Survey and Manage.” BLM amended its Northwestern and Coastal Oregon Resource Management Plan in August 2016 (see prior discussion on this blog here).  One significant change in the approach to managing at-risk species was eliminating the Survey and Manage requirement.  Here is the statement regarding this change from the BLM:

“The Proposed RMP, like the action alternatives, does not include the Survey and Manage measures of the No Action alternative. The Survey and Manage measures were included in the Northwest Forest Plan to respond to a goal of ensuring viable, well-distributed populations of all species associated with late-successional and old-growth forests. This goal of the Northwest Forest Plan was founded on a U.S. Forest Service organic statute and planning regulation, which did not and do not apply to the BLM, and is not a part of the purpose for this RMP revision. As detailed in the analysis in the Proposed RMP/Final EIS, the Proposed RMP will allocate a larger Late-Successional Reserve network than the No Action alternative, will protect older and more structurally-complex forests, and will continue to provide management for many of the formerly Survey and Manage species as Bureau Sensitive species. The Proposed RMP can achieve the purpose of this RMP revision and respond the BLM’s statutory authorities and mandates without the Survey and Manage measures.”

Here is a response:

Conservation groups Monday petitioned the government to list the rare Siskiyou Mountains salamander under the federal Endangered Species Act, claiming federal land managers’ apparent reneging on old “look before you log” provisions in potential future logging sales imperil the rare forest amphibian.

Since 2007, the BLM has been required to survey for rare species like the Siskiyou Mountains salamander and manage 110 high-priority sites for the benefits of salamanders and their habitats. This survey-and-management plan, was also known as the “look before you log” approach, generally includes logging buffers should sales move forward.

Conservation groups originally filed for Endangered Species Act protection for the salamander in 2004. The 2007 conservation agreement, as well as old-growth forest protections under the Northwest Forest Plan, were cited by the Fish and Wildlife Service when it denied Endangered Species Act protection for the salamander.

The Fish and Wildlife Service will now have to consider the effect of the changes in the BLM plan, and may decide that listing this species is warranted.  That could lead to further restrictions on logging.  Of course BLM could then blame someone else – for forcing it to recognize that protecting species and ecosystems is part of its mission.

 

Sue and settle … for a study

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This lawsuit involves two predator-killing poisons.  It doesn’t directly involve the Forest Service, although the chemicals are used on national forests.  But it is a recent example of what a lot of settlements look like – more analysis.

The 10-page agreement filed Wednesday in U.S. District Court in Montana requires the U.S. Fish and Wildlife Service to complete consultations with the Environmental Protection Agency by the end of 2021 on the two poisons used by federal workers on rural Western lands to protect livestock.

The Center for Biological Diversity and the other groups in the lawsuit filed last year in Montana say Fish and Wildlife is violating the Endangered Species Act by not analyzing with the EPA how sodium cyanide and Compound 1080 could harm federally protected species including grizzly bears and Canada lynx.

“The federal government needs to ban these deadly pesticides, but until then we’re hopeful the analysis spurred by our lawsuit will lead to common-sense measures to prevent unintended deaths,” Collette Adkins with the Center for Biological Diversity said in a statement.

Evidently, in this case, the agencies can continue to use the chemicals while the study proceeds.

 

Extinction on the national forests

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Larry Harrell asked recently (with a *smirk* no doubt) if any species have gone extinct on national forests.  Here’s a report (published in 2004) from the Center for Biological Diversity that documents 108 extinctions that occurred between the passage of the Endangered Species Act in 1973 and 1995.  Two are noted on national forests.  One was a mussel on the Carson National Forest.  Here’s the other:

The San Gabriel Mountains Blue butterfly (Plebejus saepiolus aureolus) was known only from a single wet meadow within the yellow pine forest near the Big Pines Ranger Station, San Gabriel Mountains, Angeles National Forest, California [14]. Its host plant was Trifolium wormskioldii. At a minimum it was seen in 1970, 1980, and 1985. It has not been seen since 1985 [14]. It was not found in a 1995 survey which was a very wet year that would have encouraged reproduction if the taxon still existed [97]. The meadow was still wet, but had been made smaller due to the diversion of some of the water from the natural spring feeding it. The diversion of the spring by the U.S. Forest Service has been suggested as the cause of the species extinction [189].

And it’s been another 20 years since then.  Another species that seems obvious, but its extinction probably pre-dates this study is the ivory-billed woodpecker, which ranged throughout the southeastern forests, and was killed off by logging. The Ocala National Forest in Florida was established in 1908, but ivory bills had apparently disappeared from there by 1940.  The last confirmed sighting was in 1944 in Louisiana.  One of the unconfirmed sightings after that was on the DeSoto National Forest in Mississippi.

It would be good to see more like this:

One rare desert plant has been removed from the endangered species list, and another has been “down-listed,” thanks to successful recovery efforts in Death Valley National Park.

National forest planning has been a contributing factor to the delisting of grizzly bears in the Yellowstone ecosystem, and will be part of the consideration if Canada lynx are proposed for delisting.

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.”

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).

 

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 Service on the bandwagon to unprotect sage grouse

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Time is running out to comment on the notice that initiated “the scoping process to solicit public comments on greater sage-grouse land management issues that could warrant land management plan amendments” on 15 national forests and grasslands.  (Comments are due Friday.)  The majority of sage grouse habitat is found on BLM lands (I think the Forest Service has 8%) and the Forest Service is following behind the Department of Interior’s lead to “consider” rolling back restrictions, especially those that interfere with oil and gas drilling.  Those restrictions were added to Forest Service and BLM plans in amendments that were adopted in 2015 pursuant to the 1982 planning regulations for species viability, and have been credited with avoiding the need to list sage grouse as threatened or endangered.  The Forest Service concedes that amendments it would propose would be likely to be “directly related” to, and therefore subject to, the new diversity and viability requirements of the 2012 Planning Rule.  More background from the Forest Service here.

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.)