Human Being Throws Shade at Oregon State Prof Johnston and Blue Mountain Forest Partners

As you know, I am a fan of Blue Mountain Forest Partners and the entire post Timber Wars peace-seeking enterprise.
So this story from Daily KOS struck me as odd.

The court case took a turn when James Johnston, an Oregon State University assistant professor, filed an amicus brief supporting the Forest Service. The amicus brief included a letter that Johnston and 14 other forest ecologists signed that contended the six conservation groups’ arguments “are designed to give the impression of scientific controversy where no meaningful controversy among scientists exists.”

Many non-industry ecologists disagree with the sentiments in Johnston’s letter. More than 100 independent scientists signed an open letter to the Forest Service in 2020 that argued, “removing protections for large trees is highly controversial from a scientific perspective.”

When Jerry Franklin signed the letter, he wasn’t a minion of timber industry but there’s a bit of an implication.  “Independent” researchers, regardless of quantity, may also know less about the forests involved.

“There is scientific controversy regarding the removal of large old trees and forests preemptively before fire burns,” says an experienced ecologist that wishes to remain anonymous. “[L]ess than 1% of thinned areas experienced fire annually.

Many acres are thinned and also experience wildfires. I’m not sure where the 1% figure comes from. It sounds relevant but may not be. I’m a little leery of scientists who “wish to remain anonymous.”

The USFS and its supporting consultant are promoting cutting of large old trees in the name of “restoration,” yet in the six eastside national forests, […] the largest 3% of trees on inventory plots account for 42% of the biomass carbon.”

“Only a very small percent – 8% – of all the plots have the large-tree co-occurrence of ponderosa pine and grand fir that is their primary reason for doing away with the protections for big trees. The fact that 92% of the forested landscape does not fit their rationale to open up the entire landscape to large tree logging is a key part of the scientific controversy,” adds the anonymous ecologist.

Johnston was the lead author of a paper that showed diameter limits on logging hindered forest restoration in eastern Oregon. The research was funded by the Forest Service and Blue Mountains Forest Partners, a forest collaborative operated by and for private timber industry interests.

(my bold)

More than half of BFMP’s Board Members, including their President, have direct ties to the timber industry.

I think Susan Jane, for example, has “direct ties”  but not the kind of ties that a reader might think- based on the way this is written. Here’s their board.

The collaborative’s Executive Director said BFMP “staked extensive political capital on the validity of an alternative approach” to the 21-inch rule in a letter to the Ochoco National Forest’s Forest Supervisor.

Johnston says that all of his papers “are robust and objective,” given that they went through peer review.

He believes that the large trees likely to be logged as a result of the 21-inch rule’s amendments “have little value to most timber operators” and that “the most highly valued trees [in eastern Oregon] are smaller ponderosa pine.” However, the owner of Rude Logging, an AFRC member, mentioned in an article that sturdy pines over 21 inches are more valuable than smaller pines when discussing the benefits of the Forest Service’s decision to eliminate the 21-inch rule.

The below is also a little weird.

Johnston also consulted for the Forest Service during the 21-inch rule amendment process.

“It’s my job to provide information to land managers, members of the general public,” says Johnston. “[The] Forest Service asked me for information about their revision, and I provided them information upon request just as I do for anyone and everyone that asks me, including conservation groups.”

A Freedom of Information Act request revealed that a Forest Service Special Project Coordinator emailed Johnston about payment for his consultation work. The Special Project Coordinator asked him to send them an invoice and said the Forest Service set aside $2,500.

Johnston says that he cannot find that email and that he has no recollection of reading it. “I never invoiced the Forest Service. I’m unaware that they set any money aside for me. They didn’t pay me any money,” adds Johnston.

*********************

Timber industry representation

Forest Service interveners AFRC noted that Johnston filing an amicus brief was peculiar. “Participation from scientists in cases like these is uncommon, which signals that the 15 forest ecologists felt strongly that the court should be provided with an accurate portrayal of the state of the science,” stated an AFRC newsletter.

Two attorneys from Northwest Resource Law PLLC, an AFRC member with a history of representing timber industry interests, represented Johnston in his amicus brief. Johnston declined to comment on his choice of legal representation, citing the ongoing court case. However, he ignored requests for comment after the case ended.

One of Johnston’s Northwest Resource Law attorneys participated in a legal presentation at AFRC’s 2021 annual meeting. The presentation explained how AFRC develops legal precedent, defends timber volume, and defends its members.

You say peculiar, I say uncommon.  Maybe it should become more common in cases in which “the science” is at issue? And was Johnston supposed to find another lawyer for free, and if no one volunteered, simply give up because AFRC is tainted- according to some?

The comments are a bit of a hoot. Most are about Trump. In response to one comment that articulated the case for thinning, the author said:

Oh look — someone decided to show and spread industry propaganda here. You’re greatly exaggerating the need for thinning and the harm of wildfires (for obvious reasons). And if you think logging is such an ecological necessity than surely you must agree that the industry should be nationalized, right?

At first I thought it might be an AI story since the claims about BMFP and Johnston seemed not to be true, but sounded plausible if you don’t have previous knowledge. Now I’m not as sure.. Jon has pointed out that outlets need content, and may not be careful as to the accuracy thereof. Perhaps that’s the case here.

Federal Lands Litigation – update through March 10, 2024

(Links are to additional background and/or court documents.)

FOREST SERVICE

In Februrary, the Environmental Law and Policy Center sent a letter to the Chequamegon-Nicolet National Forest supervisor requesting that operations in the Sunfish Timber Sale, which are part of the controversial Fourmile logging project, be stopped because they had violated terms of a government contract by conducting work when the ground was unfrozen and illegally clearcutting parts of the forest with mature and old growth trees.  This has led to an exchange between the ELPC and the Great Lakes Timber Professionals Association, but no response yet from the Forest Service.  (I’d question whether there would be standing to sue to enforce contract compliance, but this suggests NEPA issues as well.)

Partial dismissal of Alliance for the Wild Rockies v. U. S. Forest Service (D. Idaho)

On February 22, the district court dismissed four of the six claims in this case against the Buckskin Saddle Integrated Resource Project on the Idaho Panhandle National Forest because plaintiffs had failed to identify the relevant issues during the administrative objection process.  The Project authorizes approximately 13,005 acres of commercial logging and 6,469 acres of noncommercial logging and fuels reduction.  The remaining claims involve effects on old-growth habitat and whether the Project would move the forest towards the desired conditions laid out in the forest plan.

New lawsuit: Sierra Club v. U. S. Forest Service (N.D. California)

On February 22, the Sierra Club, Earth Island Institute and Sequoia Forestkeeper challenged two projects in and around the Giant Sequoia National Monument that would remove dead and live trees from about 13,000 acres following the Castle and Windy Fires in 2020 and 2021. The presidential proclamation that created the monument states that aside from some uses as firewood, trees may be removed there only “if clearly needed for ecological restoration and maintenance or public safety.” Differing views about what that means and how to go about it are the crux of the lawsuit.  Plaintiffs allege failure to comply with NEPA and the forest plan for the Monument.

New lawsuit:  Chattooga Conservancy v. U.S.D.A. (D. D.C.)

On February 26, the Chattooga Conservancy, MountainTrue, and an individual in Missouri challenged the use of timber targets in the Southern and Eastern regions of the Forest Service.  See our discussion here.

Court decision in Apache Stronghold v. U. S. A. (9th Cir.)

On March 1, a divided en banc decision of the 9th Circuit (with a 6-5 majority, and seven different written opinions) rejected Native American religious freedom claims seeking to stop a legislated land exchange that would facilitate copper mining near the Tonto National Forest.  The exchange would transfer the Oak Flat sacred site from the national forest to a mining company, and subsurface mining would collapse the site into a crater.  The court held that the First Amendment Free Exercise Clause allows federal land managers to burden religious practices, as long as there is no “tendency to coerce” them “into acting contrary to their religious beliefs.” The religious liberty law firm Becket representing plaintiffs stated, “The Supreme Court has a strong track record of protecting religious freedom for people of other faiths, and we fully expect the Court to uphold that same freedom for Native Americans who simply want to continue core religious practices at a sacred site that has belonged to them since before the United States existed.”  (If you’re keeping score, the 9th Circuit panel had 6 Trump appointees, one of whom sided with the minority along with all of those appointed by Democrats.)

Court decision in Los Padres ForestWatch v. U. S. Forest Service (9th Cir.)

On March 1, the 9th Circuit affirmed the district court opinion, and approved the Tecuya Ridge Shaded Fuelbreak Project on the Los Padres National Forest.  The remaining issue concerned the Roadless Rule’s requirement that logging in part of the area be “generally small diameter timber.”  The court found that a 21-inch diameter could reasonably be considered “small” where the predominant Jeffrey pine can grow to 60-90 inches.  The district court opinion was provided here.

USDI

Lawsuit settlement follow-up

On February 16, the BLM State Director for Oregon and Washington approved an amendment to the Southeastern Oregon Resource Management Plan.  According to the BLM, “The plan amendment was undertaken in response to adverse court rulings and a resulting settlement agreement, in which the BLM committed to evaluate specific issues.”  About 10% of the 4.6 million acres will be managed to protect wilderness characteristics, and about 40,000 acres will be available for off-road vehicle use.  The Oregon Natural Desert Association (one of the plaintiffs in the lawsuit), Pew and the Theodore Roosevelt Partnership have all made supportive comments.

ESA

Court decision in New Mexico Cattle Growers Assn’ v. U. S. Fish and Wildlife Service (D. D.C.)

On February 28, the district court upheld the decision to list the southwestern willow flycatcher as a federally endangered species.  Plaintiffs had claimed that a new research study shows it is not a valid subspecies that could be subject to listing, but the court agreed with the Fish and Wildlife Service that this “outlier reanalysis of existing data” in 2017 was not the best available science, and did not justify changing a subspecies classification that had been recognized since 1948.  The bird is found in riparian areas in the southwest where its habitat is damaged by livestock grazing.

Court decision in American Forest Resource Council v. Williams (D. D.C.)

On March 5, the circuit court affirmed the district court decision that plaintiff’s case against the Biden Administration’s delaying of the Trump Administration’s reductions in northern spotted owl critical habitat was moot.  The delays had expired and a new rule had been adopted, so invalidating the prior rules imposing the delays would provide no relief.

A series of lawsuits filed against the State of Oregon alleging violations of the Endangered Species Act has led to the State’s approval of a new 70-year Habitat Conservation Plan for protecting listed species from logging on about 700,000 acres of state forest land.  It may reduce logging by 20-30%.  It still needs to be reviewed for ESA compliance by the federal agencies.

OTHER STUFF

On December 14, the Biden Administration announced an agreement that seeks to move away from the continuing litigation over the Columbia River’s salmon.  On February 24, four tribal and two state leaders signed the agreement, which would commit federal resources to improve fish habitat and sponsor tribal clean energy projects, and would agree to adjustments in dam operations to promote fish survival.

Most notably, the federal government “would undertake or help fund studies of how the transportation, irrigation, and recreation services provided by the four Lower Snake River dams could be replaced, to help inform Congress should it consider authorizing dam breach in the future.”  “The Administration, however, is not making a judgment on whether to breach the dams, nor does it have the authority to do so; that authority resides with Congress.”  Local representatives in Congress quickly agreed to participate in such studies and the search for alternatives that would work for their constituents – of course not.  One denounced “secret negotiations” led by White House senior adviser and climate envoy John Podesta, saying he and other officials “worked behind closed doors with a select group of radical environmentalists to develop a secret package of actions and commitments” that “advance efforts to remove the four Lower Snake River dams.”

In the largest recovery obtained by the U.S. attorney’s office in Los Angeles for firefighting costs incurred by the Forest Service, Southern California Edison has agreed to pay $80 million to settle a civil lawsuit that blamed the utility’s equipment for the 282,000-acre Thomas Fire 2017.

In April 2023, a Nevada federal court dismissed a criminal indictment after finding that a provision of the Federal Land Policy and Management Act of 1976 (FLPMA) unconstitutionally delegated Congress’s legislative power to write crimes to a federal agency, the Bureau of Land Management. The government has appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit.  In this case the crime was failure to use a taillight at night while riding a dirt bike in a remote desert area.  The court objected to FLPMA granting BLM unfettered power to issue any “regulations necessary to implement the provisions of th[e] Act with respect to the management, use, and protection of the public lands” backed by criminal penalties.  This opinion is apparently bucking Supreme Court precedent, but the Federalist Society is salivating over how this might limit federal authorities.

Another possible example, a federal district court in Wyoming has sentenced a Utah man who allegedly held illegal dirt bike races within the boundaries of Grand Teton National Park to 18 months of unsupervised probation and fined almost $10,000.

Then there’s good old-fashioned horse theft (which was presumably prosecuted under federal law rather than agency regulations).  On February 26, a retired U.S. Forest Service law enforcement officer was sentenced for stealing government horses and mules, ammunition and more.  He was sentenced to two years of probation with six months of home confinement, and must pay almost $12,000 in restitution.  He had switched two of his own horses for two belonging to the government, and “did knowingly receive, conceal and retain” two government mules.”

Rio Grande National Forest Plan Revision Litigation

I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other).  Two lawsuits were filed against the Rio Grande in November 2021.  One of them (Defenders of Wildlife v. U. S. Forest Service) was decided a year ago by the district court and is on appeal to the 10th Circuit.  That case is worth some discussion, so here it is.  There has not yet been a district court hearing for the other case (San Luis Valley Ecosystem Council v. Dallas).  (The Colville revised plan litigation involved the previous 1982 planning regulations.)

On January 27, 2023, the district court upheld the Rio Grande revised forest plan’s compliance with the Endangered Species Act and NEPA for Canada lynx.  The judge framed the issue in this case as whether the Forest failed to “protect the lynx by inadequately limiting logging in the Forest under a revised forest plan in violation of the ESA, the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).”  The court found no violation of ESA in the Biological Opinion by the Fish and Wildlife Service, and it summarily dispensed with the NEPA and ESA claims against the Forest Service as being based on “substantially the same arguments.”

The case involves changing forest plan management direction for Canada lynx from that included in the Southern Rockies Lynx Amendment in response to insect-killed trees and blowdown over a large portion of the Forest.  The opinion asserts at the outset that, “Petitioner’s position is fundamentally flawed for at least three reasons.”  Two of these are troubling.

The court minimizes (or perhaps rejects) the need for ESA consultation on national forest plans because they are “programmatic,” and (citing the BiOp), “no immediate consequences occur directly to Canada lynx caused by the proposed action,” and therefore “implementation cannot be said to jeopardize the lynx directly.”  If plan cannot jeopardize a species, then there should be no need to consult.

These statements and this conclusion would be contrary to national Fish and Wildlife Service policy on consultation on “programmatic” or “tiered” decisions.  Forest plans are decisions that both promote activities that could adversely affect species through desired conditions and objectives, and limit those activities through standards and guidelines.  Consultation on such decisions is based on the effects that would be allowed to occur using the “design standards” in the decision.  There is no requirement that consequences potentially leading to jeopardy be “immediate.”

The court’s conclusion is also at odds with other cases, which emphasized the broad scope of agency “actions” subject to ESA.  The 10th Circuit has determined that, “Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes “action” under § 7(a)(2) of the ESA.”  Forest Guardians v. Forsgren, 478 F.3d 1149, 1154 (2007).  The 9th Circuit held, “RMPs are actions that “may affect” the protected salmon because the plans set forth criteria for harvesting resources within the salmon’s habitat.”  Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (1994).  A requirement to consult on forest plans must presume that there could be some basis for finding substantive violations of ESA, so this court’s finding of a fundamental flaw here seems fundamentally flawed.

A second “fundamental flaw” results from the fact that, “lynx habitat in the Forest amounts to just over 2 percent of the lynx habitat in the contiguous United States,” and “none of that habitat was designated as critical.”  Therefore, “even if the lynx were extirpated in the Forest, that would not significantly affect the status of the lynx across the contiguous United States.”  This raises questions about the effectiveness of applying ESA’s requirements to wide-ranging species if no individual project or even a forest-wide plan could be viewed as capable of causing jeopardy.  This is a reason why the western lynx amendments were applied across ranges of the lynx, and consultation occurred on multiple national forests simultaneously.  The reasoning the court applied here highlights the risk of now disassembling a regional strategy on a forest-by-forest basis.  Doing so on one forest should arguably trigger the need to reinitiate consultation across the range of lynx (in this case the southern Rockies national forests).

This court’s view of ESA highlights the need to challenge species conservation provisions of forest plans under the viability requirement of the 2012 Planning Rule, even for listed species.  The requirements pertaining to species viability must be met based on their probability of persistence in the “plan area.”  Various statements cited by the court would support a conclusion that lynx are not likely to persist on the Rio Grande National Forest plan area over time.  This argues for strict scrutiny of forest plan components that would allow any adverse effects to occur from management activities.  Similar to ESA, the viability requirement contemplates long-term consequences of multiple activities over time, and effects need not be direct or immediate.  (In another context, the court points out that, “the revised forest plan is intended to remain in effect only until about 2036,” but it may be that management actions during the life of this plan would contribute to the “long-term” decline, which is the test applied by the 2012 Planning Rule).

There is a counter-argument that the 2012 Planning Rule applied the viability requirement explicitly only to “species of conservation concern,” which are defined to not include listed species, for which the requirement is to “contribute to recovery.”  However, at the point at which the species recovers, it should immediately become an SCC (see Planning Handbook §12.52d.2.b) and would need to meet the viability requirement.  Regardless, logic requires that what is needed to “contribute to recovery” should be something beyond what is needed to maintain viability after recovery, and that plan components for listed species must at least provide habitat for viable populations.

This outcome would be consistent with court interpretations of the NFMA diversity requirement under the 1982 planning regulations.  When the Forest Service argued that it did not have to meet the viability requirement for listed species, the 9th Circuit found, “The effect of the Forest Service’s position in this litigation, were it to be adopted, would be to reward the Forest Service for its own failures; the net result would be that the less successful the Forest Service is in maintaining viable populations of species as required under its regulations, the less planning it must do for the diversity of wildlife sought by the statute. This is directly contrary to the legislative purpose of the National Forest Management Act.”  Seattle Audubon Society v. Evans, 952 F.2d 297, 301 (1991).  (The San Luis Valley Ecosystem Counsel claims against the Rio Grande plan include NFMA violations for lynx and the Uncompahgre fritillary butterfly, but relative to the “contribute to recovery” requirement for listed species, and not the viability requirement.)

The third “overarching flaw” appears to derive from judicial deference principles.  The court specifically notes that, “the Court does not find that the presumption of validity that attaches to agency action is overcome merely because the revised forest plan changes the way the SRLA was previously applied in the Forest.”

The remainder of the opinion discusses the scientific rationale provided by the agencies for their effects analysis and decisions, and finds that they properly address questions raised by plaintiffs, and the court was “not persuaded that implementation of the revised forest plan is likely to make conditions worse for the lynx.”  (Perhaps under stricter scrutiny called for by the NFMA plan area viability requirement the court might have been persuaded.)  So maybe the court’s findings of “fundamental flaws” were just window dressing?

On January 17, 2024 the 10th Circuit held a hearing (listen here) in this case.  I have not read the briefs, but the hearing did not discuss the overarching issues reviewed above, so it appears that they are assuming (and apparently the government did not object) that the Rio Grande revised plan could theoretically cause jeopardy to lynx.

The hearing was narrowly focused on two issues, and particularly on the question of whether the northern portion of the Rio Grande should be managed as an area of low lynx use with less protection, as it is in the revised forest plan.  That turned on the question of best available science.  The only research on lynx that included the northern portion (Ivans) concluded that there could be high lynx use.  The Fish and Wildlife Service concluded otherwise based on discussions with unnamed biologists that were not specifically documented.  Importantly, there is no record of the reasons why the Ivans study was not accepted by the FWS (or the Forest Service).  If there were no conflicting information in the record, the unattributed sources might be sufficient, but that is not the case here.  The FWS conclusions could be considered arbitrary.

The second issue was about the importance of the lynx population on the Rio Grande, and/or the importance of the Colorado lynx population to the listed species.  The record indicated that the Rio Grande lynx are important to the Colorado population.  The FWS had also said elsewhere that all six populations in the lower 48 (the listed entity) are important, but then discounted the current importance of the Colorado lynx population because it was not historically important.  Ultimately the question appeared to be whether the FWS properly considered the importance of these lynx in its jeopardy determination for the species.

We await a decision.

 

 

 

Federal Lands Litigation – update through February 21, 2024

National Monument creation

On February 12, leaders of both houses of the Arizona legislature, the State Treasurer, Mohave County and two towns sued President Biden and the Department of the Interior over designation of Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument.  The complaint alleges the designation exceeds the authority of the Antiquities Act, the Arizona-New Mexico Enabling Act reserved state authority to manage State Trust Land encompassed by the Monument, and Defendants lack the power to change the designated use for former wilderness study areas governed by the Arizona Wilderness Act of 1984.  Plaintiffs are particularly interested in regaining the opportunity for uranium mining within the Monument boundaries.  (The article has a link to the complaint.)

On February 12, a second lawsuit was filed by a rancher whose private land is partly included within the Monument boundaries.  He alleges “severe regulatory burdens and the threat of criminal penalties for engaging in everyday conduct on his ranch.”  (The article has a link to the complaint.)

If the conduct is “on his ranch,” I’m not sure of how Monument designation could criminalize actions on private property.  Along the same lines, the state claims in its lawsuit, “The Ancestral Footprints Monument will restrict and prohibit uses on State Trust Land by making State Trust Land inaccessible, impacting water rights, prohibiting new mining claims, prohibiting new grazing leases, limiting new construction of infrastructure and other property improvements, and affecting other uses of State Trust Land that had previously been allowed.”  I’m not sure how Monument designation could “disallow” these uses of State land.

FOREST SERVICE

On Nov. 28, 2023 wildlife conservation groups submitted a petition asking the Forest Service to immediately ban the aerial killing of wildlife in Idaho national forests.  This was in response to the Idaho Wolf Control Board approving funding for this purpose.  On February 15, 30 organizations sent a follow-up letter to five national forests, the Intermountain Region and the national office.  They allege violations of the Federal Airborne Hunting Act, the Endangered Species Act (grizzly bears, lynx and wolverine), the Wilderness Act and NFMA and Forest Service regulations.  (Maybe this should be viewed as a notice of intent to sue.)

New lawsuit

On February 16, Yellowstone to Uintas Connection, Native Ecosystems Council and Alliance for the Wild Rockies filed a complaint in the Montana federal district court against the U.S. Forest Service and asked for an injunction to stop the Pintler Face Project on the Beaverhead-Deerlodge National Forest.  The project would log or burn more than 11,000 acres, including large clearcuts, along the southeastern edge of the Anaconda Pintler Wilderness over the course of five to 10 years.   Issues involve effects on lynx and grizzly bears.  (The article refers to a recent court precedent involving remapping of lynx habitat on the Custer-Gallatin National Forest, which is referring to the Greater Red Lodge Area project discussed here.)

BLM

Court decision in True Oil LLC v. BLM (D. Wyoming)

In this case, the district court determined that, where the federal government owns subsurface mineral rights, it can require a permit for an easement to drill through that property, even though no minerals would be removed, and even where they do not own the surface estate.  A permit requirement would allow the government to protect its mineral interests.

New lawsuit:  Glenwood Springs Citizens Alliance v. U. S. Department of the Interior (D. Colorado)

On February 15, plaintiffs filed a Freedom of Information Act lawsuit against the BLM.  They are seeking documents related to ongoing mining operations, and proposed major expansion of, a large limestone mine directly above Glenwood Springs, CO, known as the Mid-Continent Mine.  Many documents had been withheld or redacted, and appeals of these had not been resolved.  Plaintiffs contend that the end use for that limestone does not comply with the federal permit under which that mine is operating.  (The article includes a link to the complaint.)

Court decision in Citizens for Clean Energy v. U. S. Department of the Interior (9th Circuit)

On February 21, the appellate court reversed a district court decision that had rejected the Trump Administration’s restarting of coal leasing on federal lands after the Obama Administration had imposed a moratorium.  It found that since the Biden Administration had revoked the order to restart leasing, the case was moot.  That leaves no moratorium in place, but also nothing compelling leasing to resume, and plaintiffs are still hoping for “a long overdue review of the federal coal leasing program,” including NEPA compliance.   (The article includes a link to the opinion.)

FISH AND WILDLIFE SERVICE

Court decision in Atchafalaya Basinkeeper v. Bernhardt (M.D. Louisiana)

On January 29, the district court approved the 2016 decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the list of threatened species.  National forest lands are considered suitable but unoccupied.  The court found that the FWS had properly considered the five listing/delisting factors using the best available science.  It added this closing comment: “The Court commends Plaintiffs’ extraordinary efforts in defense of this remarkable mammal. Would that every species received the same indefatigable support as the Louisiana black bear.”

In January, the U. S. Fish and Wildlife Service denied a 2022 petition by the Center for Biological Diversity (link provided) seeking to reintroduce endangered jaguars on the Gila National Forest.  There are presently only two known jaguars north of the Mexican border.  The FWS determined that reintroduction in New Mexico “would not further the conservation of the species.”  (Does the Center ever sue?)

Notice of Intent to Sue

On February 7, within a week after the U. S. Fish and Wildlife Service decided not to relist gray wolves in the northern Rockies under the Endangered Species Act, fourteen organizations gave their notice of intent to sue in two letters to the FWS.  (Links to both are included in this article.)

On February 15, the U. S. Fish and Wildlife Service published a notice that it would list a southwestern subspecies of silverspot butterfly as a threatened species.  No populations are known to occur on national forest lands, but the elevational range of the subspecies includes some lower elevation USFS land, and they are a sensitive species in regions 2 and 4.  Two known colonies occur on BLM lands, one of which is managed for this species in the land management plan.  (The press release has a link to the Federal Register notice.)

INCIDENTAL TAKE

These cases don’t directly relate to federal lands, but federal land management activities require a comparable investigation of incidental take and approval in an incidental take statement.  (I’ve wondered why federal land managers shouldn’t have to also refer to a habitat conservation plan, which might be a land management plan, for these take statements.)

Court decision in Allegheny Wood Products v. U. S. Fish and Wildlife Service (N. D. W. Virginia)

On February 12, the district court found that the administrative record supported a decision by the FWS to not provide an incidental take permit necessary to avoid liability for possible harm to seven listed species that might be affected by the plaintiff’s forest management activities.  Following a back-and-forth process that began in 2006, the court agreed with the FWS that the 2021 draft habitat conservation plan did not provide information necessary to determine the extent of take and develop mitigating measures.  This included not providing “sufficient project details at scales relevant to the impacted species” to constitute a “complete description of the activity sought to be authorized.”

Court decision in Center for Biological Diversity v. Regan (D. D.C.)

On February 15, the district court issued an order vacating the U.S. Environmental Protection Agency’s approval at the end of the Trump Administration of the state of Florida’s application to assume permitting authority from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act within the state.  This would have allowed future permits to avoid review under the Endangered Species Act.  The court found flaws in the biological opinion and incidental take statement prepared by the Fish and Wildlife Service for the transfer of authority.  Of particular concern are Florida panthers near the Florida Panther National Wildlife Refuge in the western Everglades. (The article includes a link to the opinion.)

Court decision in Puyallup Tribe of Indians v. Electron Hydro, LLC (W.D. Washington)

On February 16, the district court found that a “temporary” rock structure (which had been there for several years) in the Puyallup River was interfering with migration of listed fish species and causing incidental take of these species (and orcas) without an incidental take permit, in violation of ESA.  The court ordered removal of part of the structure.  In this case, the National Marine Fisheries Service had indicated that harm would occur, but they were not a party to the lawsuit.  (This press release includes a link to the opinion.)

OTHER CASES OF INTEREST

Criminal plea deal

A man whose family’s gender reveal photo shoot sparked the El Dorado Fire that killed a firefighter in 2020 has pleaded guilty to involuntary manslaughter.  His sentence includes one year in jail, two years of felony probation and 200 hours of community service.  His wife was sentenced to a year of probation and 400 hours of community service. The couple was also ordered to pay $1,789,972 in restitution.

On February 2, the Forest Service burn boss arrested in Oregon in conjunction with an escaped fire was indicted by a grand jury on a misdemeanor count of reckless burning, and arraignment in the county court was February 16.  A plea haring is set for April 1. He is being represented by private attorneys paid by the U.S. Department of Justice.  The Forest Service and the National Federation of Federal Employees have expressed their support for the accused.

 

 

 

 

 

 

Lawsuit Over 15 Acres on the Pisgah-Nantahala: New Forest Plans and Previously Approved Projects?

Mature trees on Brushy Mountain in Nantahala National Forest in August. Photo: Jack Igelman / Carolina Public Press

I’d like to point out to any FS leadership who read TSW that folks on the Forest wouldn’t talk to me to tell their side of the story.  So they are being good employees.  Problem is, if it weren’t for retirees who happen to keep up with the details (retirees like this being rare and threatened by loss of interest), we would never hear the FS side- unless there is an objection response on the same points. Maybe this would be a good application for AI.. “find the FS statements about … in the EA, response to comments and objections.” Still, I don’t think the Cone of Litigation Silence is good for public understanding, trust and support.

Anyway, here’s a link to Jack Igelman’s recent article on the issue. You can follow him on TwitX @ashevillejack.  I’m not a legal person, as everyone knows, so there are some quotes from me that are off the top of my head about why these 15 acres are of concern.  Conceivably with the same funding invested, the plaintiffs could buy their own 15 acres and manage it however they wanted.  Maybe our friends at SELC will weigh in.  Kudos to Jack for reading the EA!

The agency is obligated to manage the forest along the Whitewater River as a wild and scenic river corridor, which limits management options. However, timber harvesting is allowed to occur as long as it does not harm the river’s outstandingly remarkable values or degrade its water quality. The wild and scenic corridor extends about one quarter-mile on each side of the river.

“This timber prescription takes it backwards,” said Nicole Hayler, executive director of the Chattooga Conservancy. “The Forest Service has a track record of management activities in eligible areas to basically whittle away at the eligibility.”

Will harvesting “harm the values” or “whittle away at eligibility”?  I don’t think we can judge without the prescription. (NHP is the natural heritage program.)

In the Southside Project’s final Environmental Analysis released in 2019, the Forest Service included a response to objections that the project analysis failed to analyze impacts to state natural areas.

The NHP determined that portions of the stand are dominated by white pine, an artifact of previous land use that is not naturally occurring.

According to the NHP, “It would be beneficial to remove the white pines from this stand, and then manage the area after harvest in such a way to restore the natural community” while acknowledging that some areas along the Whitewater River are in excellent condition.

The NHP did not respond to CPP’s interview request.

But if it’s good to remove the white pines, then maybe taking some more trees and getting openings for the “natural community” is a good idea.  Again, it would be nice to see the prescription.

The timber harvest prescriptions for the tract “require harvesting much more than white pine,” SELC attorney Patrick Hunter said. “We can say with certainty that the NHP’s request to limit logging to white pine is not reflected in the Forest Service’s final decision.”

But did the NHP say to limit the logging to WP? What other species are there? Is taking out the WP and other species an opportunity to increase tree species diversity or wildlife habitat?

Although the lawsuit includes a relatively small parcel of land, Friedman said that the court’s ruling could establish legal precedent around the influence of new forest plans on projects initiated and authorized under prior plans.

“The same groups who didn’t want certain projects before will still not want them” after a forest plan is finalized, she said. “If they feel strongly enough about them and have the financial wherewithal, they will litigate those projects. That’s just the way it works for most of the country; it’s business as usual. “

Litigating forest restoration projects in the Forest Service’s Southern region, however, are less frequent compared to other parts of the country, such as the Northern or Pacific Southwest region. There has been just one forest restoration project litigated in the Southern region which stretches from Texas to Virginia since 2003.

Hunter told CPP this is the first time SELC has initiated litigation against the Nantahala or Pisgah National Forest.

Whether the case is settled inside or outside of court, Friedman said changing an existing agency decision may set a precedent for other projects and other national forests.

According to Hunter of the SELC, the lawsuit seeks to validate the understanding that activities occurring within the national forest must be consistent with the current forest plan.

He noted that the complaint could reinforce existing precedent citing a 2006 decision against the Cherokee National Forest in Tennessee in which the court ruled that a timber harvesting and road building project must be made consistent with a revised forest management plan that went into effect after the projects’ authorization.

The legal action reflects broader concerns about balancing the need for timber harvesting to restore the ecology of the forest while preserving ecologically significant areas and underscores the complexities of managing public lands.

*************

Of course, the Cherokee NF is indeed in Region 8, so I guess the difference is whether the project is a “restoration” project or a “logging” project.  I would only offer that what the FS sees as a restoration project (with tree removal), other entities often see as a “logging” project.  This is a real side trip-  but I ran across a paper by Miner et al. from 10 years ago (no paywall) that had this graph. The authors characterized these as “land management” cases, not necessarily vegetation management cases.

*******

David Whitmire, of the Fish and Wildlife Conservation Council, which represents the interests of fishers and hunters in Western North Carolina, said the lawsuit could, however, slow down forest-restoration work.

“I would rather see money spent on projects rather than lawyers,” Whitmire said. “The Forest Service is having to back up and deal with the lawsuit. It takes away a lot of resources that would otherwise benefit the forest.”

I’d only add that if this case sets precedent for forest plans being retroactive for ongoing previously approved projects, I think it might have two effects: first that Forests will not want to do plan revisions. When I worked in Region 2, many forests were not enthused about plan revisions anyway (reopening large numbers of disagreements to what end?).   Second is that if they are in revision, they would seemingly be less inclined to give areas with ongoing projects more restrictive designations.  It seems that both of these co-evolutionary responses by the FS would be against what plaintiffs would ultimately prefer.

But perhaps the plaintiffs will weigh in.

Public Lands Litigation – update through February 2, 2024

FEATURED CASE

Court decision in North Cascades Conservation Council v. U. S. Forest Service (E.D. Washington)

On January 17, the district court granted summary judgment to the Forest Service with regard to the Twisp Restoration Project on the Okanogan-Wenatchee National Forest.  The proposed project stated that most of the thinning and prescribed fire treatments would use a “condition-based management strategy.”  The court held that the project complied with NEPA requirements related to the proposed action, alternatives, cumulative impacts, public participation and the significance of effects.  The latter two issues implicated the issue of condition-based management, where the court held:

“At the heart of Plaintiff’s challenge is the Forest Service’s use of condition-based management. Plaintiff has not shown that this approach violates NEPA as a matter of law. Here, the Final EA disclosed detailed decision criteria that will be applied during the TRP implementation to ensure the actual conditions on the ground meet the expected conditions disclosed in the Final EA. If they do, the approved treatment will be applied. If they do not, the treatment will not be applied.

 In this case, the Final EA’s description of condition-based management details the decision criteria for each approved activity, specific prescriptions that will be applied if those decision criteria are met, maps identifying where those prescriptions would be applied, and estimates of the timing of implementation.

The Court finds that the use of condition-based management is not arbitrary or capricious as a matter of law and as applied in this case.”

The highlighted language is why I think “this case” may represent a different kind of “condition-based” management than other project we have seen, some of which have lost in court.  This statement means the action will not be changed from how it has been described (other than possibly reducing the scope of the action and its effects), and it limits the likelihood that unanticipated environmental effects may occur (if they do become evident later, the project would still be subject to NEPA’s new information requirements).  Overall, the specificity of the decision seems to be in greater detail than other projects labeled “condition-based,” and in this regard is more similar to the Ashland Municipal Watershed case upheld by a court and discussed in my comments here (though the project area of 24,000 acres is larger). While the Twisp Project court carefully recognizes that such management is legal “as applied in this case,” this implicitly recognizes that it might not be if done with less specificity or without the limit that was imposed.

OTHER FOREST SERVICE CASES

Court decision in Alliance for the Wild Rockies v. Higgins (D. Idaho)

On January 10, the district court held that plaintiffs had waived their right to sue for a violation of the Healthy Forests Restoration Act by failing to object to the intended use of a categorical exclusion for WUI projects during their participation in administrative proceedings.  Qualifying projects are exempt from formal objections; however, there was an opportunity for plaintiffs to notify the agency during scoping of its disagreement about HFRA compliance, which they did not do in their “more than 100 pages” of scoping comments.

New lawsuit:  Chattooga Conservancy v. U. S. Forest Service (W.D. North Carolina)

On January 31, five conservation groups sued the Nantahala-Pisgah National Forest over its Southside logging project.  The project was developed under a forest plan that has been recently revised, and the complaint alleges that the project is not consistent with the revised plan.  The revised plan places the 15-acre timber stand at issue in a Special Interest Management Area based on its high ecological values, and also protects the scenic integrity of lands adjacent to the Whitewater Scenic River where the stand is located.  The complaint alleges that the logging contested in the lawsuit, that intends to create “early successional habitat,” does not meet the specific criteria established in the forest plan.  (The article includes a link to the complaint.)

BLM CASE

Withdrawal of the subject of Willamette Riverkeeper v. Teitzel (D. Oregon)

On December 14, the BLM announced the withdrawal of this project following litigation commenced in November “in order to incorporate additional aquatics data and analysis,” likely including the effects on the chinook salmon of concern to plaintiffs.  Plaintiffs then dismissed the lawsuit.

FIRE FALLOUT

Freres Lumber Co. has sued the Forest Service for $33 million for not trying hard enough to put out the 2020 Beachie Creek Fire.  The plaintiff alleges that this case clears the high bar for liability under the Federal Tort Claims Act because of the Willamette National Forest’s “negligent failure to follow its own mandated fire attack plan.”  It burned over 5000 acres of the company’s timberlands.

On January 21, “yet another utility lawsuit” was filed over the 2020 fires in Oregon.  Law firms representing 238 victims who lost homes and property in the Holiday Farm fire sued the Eugene Water and Electric Board, Lane Electric, and Bonneville Power Administration in federal court for their roles in the  fire, which burned both national forest and BLM lands east of Eugene.

A California man has pleaded guilty to setting several fires on the Shasta-Trinity National Forest in 2021, including some behind firefighters who were actively fighting the Dixie Fire.  (The article includes a link to the plea agreement.)

An Alaska charter fishing company has paid $900,000 to settle a lawsuit brought by the U.S. government alleging one of its guides started a wildfire in 2019 by failing to properly extinguish a campfire at a campground on the Klutina River. The funds will help cover the costs incurred by state and federal firefighters to extinguish the fire, which burned about 0.28 square miles.

FISH AND WILDLIFE SERVICE

  • Wolverine listing

Notice of Intent to Sue

On January 26, Montana Fish, Wildlife and Parks filed a notice of intent to sue the U.S. Fish and Wildlife Service within 60 days if it does not overturn its November decision to list wolverines as a threatened species under the Endangered Species Act.  The complaint alleges the agency did not use the best available science.  This listing decision followed previous litigation for not listing the species (last discussed here).  Idaho’s Office of Species Conservation filed a similar notice on the same day.  (The articles have links to the notices.)

On February 2, the U. S. Fish and Wildlife Service announced that it would reiterate the decision by Congress to delist the gray wolf in the northern Rocky Mountains.  The FWS rejected arguments that hunting initiated by the states where it had been delisted constituted a threat that warranted relisting the species.  At the same time, the FWS announced that it will undertake a process to develop a first-ever nationwide gray wolf recovery plan by December 12, 2025.  A FWS appeal of a district court decision that relisted wolves outside of the Northern Rockies is pending.  The article includes a link to the press release covering these actions.

OTHER CASES OF INTEREST

  • Chevron deference and the 1872 Mining Law

On January 17, the Supreme Court heard two cases against the National Marine Fisheries Service rules pertaining to monitoring on fishing boats, but which could make it harder for all federal agencies to regulate.  The “Chevron Doctrine” is the result of a 1984 case supported by conservatives at that time as a curb on “unelected liberal judges” overruling federal agencies.  It required courts to defer to interpretations of statutes by federal agencies if the statute is ambiguous and the agency interpretation is reasonable.  Now it appears this conservative court would rather make the interpretations itself instead of “unelected federal bureaucrats” who are more responsive to a liberal administration (which was elected).  Here is a short overview of the statements made by the Supreme Court at the hearing.

How might that affect federal land management?  As an initial point, an agency’s interpretation of its own regulations is governed by another court case (Auer) that would not necessarily be affected.  A forest plan’s compliance with the 2012 Planning Rule should be governed by that.  On the other hand, the Planning Rule itself could be reviewed under whatever standard the Supreme Court comes up with to modify or replace Chevron.  There is a question in my mind of whether regulations like this that govern agency actions like planning, rather than directly affecting the public, would be viewed the same way.

As a real example, on January 16, the D. C. Circuit Court of Appeals conducted a hearing in Earthworks v. U. S. D. I., a case filed in 2009.  It concerns a 2003 regulation implementing the 1872 Mining Law that allows mining companies to claim an unlimited amount of federal land around a mining site for mining-related activities like chemical processing and waste dumping.  If there is any ambiguity in the statute, the court would have to defer to the Interior Department’s decision, as per the Chevron doctrine.  The issue then becomes whether the statute is ambiguous, and the courts get to decide that (even though the judges know less about the subject matter than the agency expert).  Here’s what the law says:

“Where nonmineral land is needed by the proprietor of a placer claim for mining, milling, processing, beneficiation, or other operations in connection with such claim, and is used or occupied by the proprietor for such purposes, such land may be included in an application for a patent for such claim, and may be patented therewith subject to the same requirements as to survey and notice as are applicable to placers. No location made of such nonmineral land shall exceed five acres and payment for the same shall be made at the rate applicable to placer claims which do not include a vein or lode.”  (30 U.S.C. 42(b))

At the hearing, the parties offered their interpretations of whether this language is ambiguous, and whether it limits nonmineral land inclusion in a claim to five acres, and therefore whether or not BLM’s current regulation imposing no limits is valid.

On January 26, Puckett Land Co. filed a motion to dismiss (and the court granted it) its diligence application for conditional water rights to avoid abandoning water rights that date to 1966.  The conditional rights were associated with the planned construction of a 23,983-acre-foot reservoir on BLM land within the boundaries of an area (Thompson Divide) that the Forest Service and BLM are proposing to withdraw from eligibility for new oil and gas leases.  The reservoir would have been used for shale-oil production in that area.  (The federal agencies had not filed a statement of opposition to the water right.)

POST-LITIGATION FOLLOW-UPS

Two national forest travel management plans were recently completed that respond to prior litigation.

In 2007, a lawsuit resulted in a court order that barred motorized over-snow vehicles from the entirety of the caribou’s recovery zone on the Idaho Panhandle National Forest, cutting off access to about 250,000 acres (most recently addressed here).  The Kaniksu Over-Snow Vehicle Use Designation Project won’t go into effect until the Forest Service publishes a final map, which is expected before next winter.  It reopens some areas to snowmobile use, and closes areas earlier in the spring to protect grizzly bears.  On the horizon?  A spokesman for WildEarth Guardians said, “We’re still evaluating the decision and considering our options while trying to balance out a lot of litigation priorities.  Sadly, there are a lot of bad decisions out there. This is one of them, and we’re taking a close look.”

The Nez Perce-Clearwater National Forest has prepared a Draft Record of Decision and Final Supplemental Environmental Impact Statement for the Clearwater National Forest Travel Planning Project to comply with the District of Idaho’s December 2022 remand order and prohibition of motorized use of the Fish Lake Trail (most recently discussed here).  It would again amend the forest plan and reinstate summer motorized use on the Fish Lake Trail.

A proposed resource management plan from the BLM in Arizona would limit recreational shooting to 5,295 acres of the 486,400-acre Sonoran Desert National Monument. Currently, target shooting is permitted on 435,700 acres.  The plan is the result of a series of lawsuits and an April 2022 court settlement that required the BLM to reassess how it handled recreational target shooting on the monument (most recently discussed here).

Public Lands Litigation – update through January 12, 2024

It was relatively quiet in court over the holidays (but interesting).  (What will the new year bring?)

FOREST SERVICE

Magistrate recommendations in Center for Biological Diversity v. Moore (D. New Mexico)

On November 17, the magistrate judge recommended dismissing this challenge to livestock grazing on the Sacramento Allotment on the Lincoln National Forest as moot.  Regarding compliance with the Endangered Species Act for the New Mexico meadow jumping mouse, the judge determined, “The new BiOp issued by FWS on or before December 31, 2023 … will moot Petitioners’ claims regarding the validity of the 2021 BiOp,” because it “will include substantive regulatory changes,” which respond to changed circumstances.  (No word on whether this actually happened.)

New lawsuit:  Gallatin Wildlife Association v. Erickson (D. Montana)

On December 4, plaintiffs in Center for Biological Diversity v. U. S. Forest Service (discussed here) agreed to avoid a preliminary injunction hearing when the Custer Gallatin NF agreed to not take further action on the South Plateau Project until summer.  On December 18, Gallatin Wildlife Association, Native Ecosystems Council, and WildEarth Guardians filed a lawsuit against the same project.  They allege violations of ESA and NEPA for the project, which would involve clearcutting 5,551 unspecified acres of forest, including mature trees; commercial thinning of 6,500 acres of forest; 2,500 acres of non-commercial thinning; 1,800 acres of fuels treatment; and up to 56.8 miles of temporary roads, based on an EA.  The project is in an area described by plaintiffs as a grizzly bear “sink,” where the population is struggling.  Plaintiffs question the science used to consider effects on grizzly bears, challenge the project’s “condition-based” management under NEPA, and also allege a violation of President Biden’s executive order that requires the Forest Service and Bureau of Land Management to conserve mature and old-growth forests.  (The article includes a link to the complaint.)

New lawsuit: Center for Biological Diversity v. U. S. Forest Service (D. D.C.)

On January 10, six conservation organizations sued the Monongahela National Forest to protect the federally endangered candy darter (a fish) and two endangered bats from a commercial Forest Service road use permit to haul coal from the Rocky Run Mine on private land and to move mining equipment and supplies.  The plaintiffs claim that the Forest failed to consult with the Fish and Wildlife Service or follow procedures to comply with NEPA.  Plaintiffs assert:  “Without the Forest Service’s authorization of the Permit, the Applicant would not be able to operate Rocky Run Mine. Surface coal mining operations, such as Rocky Run Mine, can cause significant environmental damage, including erosion, sedimentation, pollution of ground and surface waters, contamination of soils, loss of habitat, and loss of biodiversity.”  (The article includes a link to the complaint.)

New lawsuit:  Alliance for the Wild Rockies v. Vilsack (D. Montana)

On January 11, five conservation groups filed a lawsuit against the Mud Creek Vegetation Management Project on the Bitterroot National Forest, which could take place over up to 20 years and would involve 13,700 acres of commercial logging, 26,000 acres of non-commercial logging, 40,000 acres of prescribed burns, and the building of around 40 miles of temporary and specified roads.  It is another challenge to “condition-based” NEPA (based on an EA):  “Rather than surveying the project area and analyzing site-specific information to determine which management activities are appropriate to which area before approving and finalizing a project, the Forest Service approved all logging and burning over large swaths of the Project area, leaving the actual decision of what is appropriate until after the project is finalized, when the public may no longer participate in the decision-making process.”  The complaint also challenges the continued use of project-specific amendments to the forest plan for road density and old growth, and failure to use the forest plan definition of old growth.  There are also ESA claims related to bull trout and whitebark pine.  (The article includes a link to the complaint.)

BLM/NPS

Amicus curiae briefs filed in American Forest Resource Council v. U.S.A. (Supreme Court)

On December 18, members of Congress and six organizations filed amicus curiae briefs in support of a petition for Supreme Court review of two circuit court decisions upholding the Obama-era expansion of the Cascade-Siskiyou National Monument and the Bureau of Land Management’s 2016 Resource Management Plans for Western Oregon O&C lands.  In April, the 9th Circuit decided Murphy Company v. Biden (discussed here), and in July, the D. C. Circuit decided the AFRC case.  These courts held that the Antiquities Act could be used to designate a national monument that reduced the area of O&C lands where timber may be produced, and that the BLM can eliminate timber production on such lands.  (Links to the briefs are included.)

New lawsuit:  Blue Ribbon Coalition v. Bureau of Land Management (D. Utah)

On December 22, The BlueRibbon Coalition, Colorado Off-Road Trail Defenders and Patrick McKay, who is the vice president of the latter organization, filed a complaint in federal district court after the Interior Board of Land Appeals denied their stay request in that administrative hearing.  They are challenging the BLM’s travel management plan and EA for the Labyrinth Rims/Gemini Bridges Travel Management Area, which would close 317 miles of routes that were previously open to motorized use in the 300,000 acre area because vehicles posed a danger to sensitive habitats, riparian zones and cultural sites. The complaint alleges violations of NEPA, the APA, the Dingell Act, and the Appointments Clause of the Constitution.  (The article includes a link to the complaint, the IBLA appeal, and a map of the area.)

OTHER

In late December, two lawsuits were filed against the Federal Emergency Management Agency for failing to respond in a timely manner to claims from 24 of over a thousand victims of the largest fire in New Mexico history, started by the Forest Service in 2022

A federal judge in Oregon has rejected a U.S. Department of Justice request to dismiss a 2015 lawsuit brought by young people that alleges the federal government knew the dangers posed by carbon pollution but that it has continued through policies and subsidies to support the fossil fuel industry.

A man must pay $180,000 after federal officials said he started a wildfire in the Molino Basin target shooting area of the Coronado National Forest using a shotgun loaded with flaming, incendiary rounds of ammunition.

An adjacent landowner is facing criminal charges he illegally cut down at least 299 trees that were part of the Green Mountain National Forest and were designated for protection.  He said he had removed a USFS property boundary marking Carsonite post because he believed it was inaccurate. “The tree cutting was inconsistent with the guidelines contained in the GMNF Plan.”

On January 12, Great Old Broads for Wilderness, GreenLatinos, Sierra Club and Western Watersheds Project filed an amicus brief in the 10th Circuit proceedings involving trespass claims against hunters who used a ladder to cross between parcels of public land connected at the corner.  “The public — not just hunters but everyone — should have the same right of reasonable access to their lands as private landowners have,” said Erik Molvar, executive director with Western Watersheds Project, in a press release. (The article includes a link to the brief.  We have discussed this case previously here, and the district court decision here.)

 

 

 

 

 

 

 

WEG and Oregon Wild Argue That They Can’t Afford $4600 Award to Feds Despite Joint Annual Revenues of $7.5 Mill

Thanks to Nick Smith for this one, from the Capital Press.

Two environmental groups must pay about $4,600 of the U.S. government’s litigation expenses following the dismissal of their lawsuit against commercial thinning in southeastern Oregon.

A federal judge has ordered Oregon Wild and Wildearth Guardians to compensate the U.S. Forest Service for the cost of processing paperwork related to three disputed projects in the Fremont-Winema National Forest.

The environmental plaintiffs claimed the $4,655.80 bill would discourage similar “public interest” lawsuits in the future.

However, U.S. District Judge Michael McShane disagreed, ruling they “have not provided sufficient evidence that an award of costs would be inequitable or create a chilling effect” on such actions.

The judge also said the lawsuit wasn’t of such extraordinary importance that the U.S. Forest Service should be barred from recovering its costs as the prevailing party.

“The court will not allow plaintiffs to hide behind the subject matter of the litigation they initiated to avoid costs Congress intended them to pay” under federal law and court rules, McShane said.

Last year, the plaintiffs filed a complaint alleging the government’s plan to commercially thin 29,000 acres under the three projects was too expansive to “categorically exclude” from environmental review.

In August, however, the judge ruled such analysis wasn’t legally required for the South Warner, Bear Wallow and Baby Bear projects under an exemption for certain habitat improvement treatments.

After the lawsuit was thrown out, the Forest Service asked to be compensated for the money paid to a third-party vendor for converting paper administrative records into searchable PDF computer files.

The environmental plaintiffs objected, arguing they’d brought the case in good faith because the agency’s implementation of forest regulations affects “the entire National Forest system,” not just the 29,000 acres in question.

“Through cases like this one, plaintiffs and other conservation organizations help ensure that federal agencies properly manage public lands and remain accountable to the public they serve,” the nonprofits said.

The government countered that environmental groups are actually encouraged to file lawsuits against federal agencies under the Equal Access to Justice, under which they can recover attorney fees and other litigation costs.

For example, Wildearth Guardians was awarded nearly $300,000 for winning a case against the Forest Service last year, the government said.

The government also pointed to recent tax filings that showed annual revenues of nearly $3 million earned by Oregon Wild and $4.5 million earned by Wildearth Guardians.

“Public information indicates that plaintiffs have adequate means to pay for the modest bill of costs here,” the government said.

The judge said legal precedents allow him to consider the financial resources of plaintiffs, but in this case they’ve “not demonstrated that a severe injustice will result from an award of costs.”

Oregon Wild and Wildearth Guardians had previously appealed the underlying decision to allow commercial thinning on 29,000 acres to move forward.

The groups have now amended their filing with the 9th U.S. Circuit Court of Appeals to also challenge the government’s $4,600 award.

High Litigation Rates for Energy Projects: Bennon and Wilson (2023)

Michael Bennon at Stanford with Devon Wilson authored this interesting NEPA study.

Here are a few of their conclusions:

We observe predevelopment litigation on 28% of the projects requiring an environmental impact statement, 89% of which involve a claim of a NEPA violation. The highest litigation rate is in solar energy projects, nearly two-thirds of which are litigated. Other high-litigation sectors include pipelines (50%), transmission lines (31%), and wind energy projects (38%)

If anything, and at the highest possible level, we conclude that current debates regarding the question of permitting reform are overly focused on NEPA’s administrative process and comparatively neglect NEPA’s judicial process. Judicial review of NEPA appears to significantly impact infrastructure project development in the United States, and it impacts both the projects that are litigated
and those that are not.

Although the suthors are “happy to qualify that conclusion as limited to large infrastructure projects”, I think it is also relevant to forest management projects.

As discussed herein, many prior studies of NEPA practices and environmental litigation have focused on land management agencies such as the U.S. Forest Service or the Bureau of Land Management (BLM). We aimed tofocus specifically on infrastructure projects because they differ from area management or forestry projects in terms of both the impacts of the federal actions on the environment, and the practical impacts of environmental litigation on the projects.

One thing that’s obviously very different, and not in this quote, is the role of proponents. Let’s think about a fuel treatment project.. it is mostly between people who want it (including timber folks if there is a mill around) and people who don’t want it. For the most part, loggers and mills are not making investment decisions based on a specific project making it through the litigation mill. To the contrary, geothermal, solar and wind companies are subject to the whims of interest rates, the time value of money, supply chain difficulties and so on. Their operational environment is substantially more complex, and it appears that their connections to political actors may be stronger than, for example, Tina and her family who run Tina’s Sawmill. In the Forest Service, these projects may be more like Wolf Creek or ongoing litigated projects with specific proponents.

It is possible that NEPA’s architects, even Senator Jackson, failed to foresee28 the volume of litigation that would stem from the law because the environmental law sector was nascent, almost nonexistent, at the time of NEPA’s passing.

In fact, it is remarkable that NEPA’s evolution has been so primarily driven by case law rather than executive orders or major guidance by CEQ. After the 1978 CEQ guidance changes, NEPA did not undergo another major guidance change until CEQ published another revision in 2020, which was followed by additional rulemakings in 2021 and 2022.

In the case of NEPA, that limiting principle on the scope of environmental study is not found in law. NEPA’s “opaque, constitution-like language seems to give courts enough latitude to subject NEPA documents to either the hardest of looks or the softest of glances.”43 Judicial flexibility translates to agency uncertainty, to the point that permitting time and effort may be driven less by the anticipation of environmental impacts and more by the presence of conflict, or stakeholders with the resources and motivation to litigate against the project.44
The procedural nature of NEPA litigation is a key driver of “litigation proofing” and why contentious environmental studies under NEPA tend to grow into the many thousands of pages, despite the fact that strict page limits for EISs have been recommended by CEQ guidance since 1978. When asked to review NEPA studies, courts are deferential to federal agencies on their substantive determinations.46

On the question of limitations for its judicial reviews of agency NEPA decisions, the court in the Calvert Cliffs’ decision stated: “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgement for that of the agency.”

I keep reading that, but that’s not my lived experience. For example, I remember courts ruling that the BLM’s air quality model should not have been used; often courts weigh in on scientific controversies against the agency position. It’s entirely possible I’m missing something important and legal here, so maybe legal folks can enlighten me as to some kind of overall pattern in agency deference. Anyway…

They are far less deferential when considering topics, impacts, or alternatives that were not included in the environmental study. This dynamic can create a game of “cat and mouse” for project opponents and federal agencies, in which potential litigants try to identify and comment on alternatives or impacts that were not studied, and federal agencies are left to study everything as a means of litigation-proofing their environmental study.

Yes, cat and mouse, and sometimes it feels like judges “bring me a rock, no not that rock” to the agencies.

What the authors have to say about the “denominator” issue

Additionally, many prior studies have taken a very broad approach to estimating the prevalence of NEPA litigation. They do so by dividing the number of cases filed under NEPA (on average just over 100 annually) by the total number of agency actions that could be subject to NEPA litigation, which includes CEs and EAs (on the order of tens of thousands of actions). Most of those estimates rationally find that the litigation rates associated with NEPA are “exceedingly low.”130
Yet, we find such a calculation underwhelming, and especially so for our purpose, which is to study the impacts of the NEPA process on infrastructure development. The rate of NEPA litigation against all NEPA actions is less useful in part because the distribution of actions is extremely skewed. CEs constitute the vast majority of federal actions (upwards of 99%), and most of these permits are relatively short in duration for relatively minor actions.

This is an interesting observation.

We can generalize a bit and classify what we observe as two distinct but overlapping strategies for navigating federal environmental permitting: one that accepts a higher degree of litigation risk and thus has shorter permitting timelines but also higher rates of litigation, and another that has very long permitting timelines, perhaps due to litigation-proofing, and thus relatively lower rates of litigation. The question of which of these “strategies” is optimal would likely be determined by a wide range of unique circumstances of the environmental impacts, politics, and economics of a specific project.
However, we do note that in the sectors with higher rates of private investment in predevelopment, project sponsors appear to accept more permitting risk and to complete permits faster.

And something I’ve argued for:

The litigation databases that we used for this study are naturally oriented toward their users, or attorneys, and thus focused on published cases and legal precedent. Empirical research is much more challenging to conduct, especially in the many cases that do not result in a published opinion, or which are resolved via settlement. The result is a lack of transparency in many of the most important decisions regarding our public works and their mitigations, because many of those decisions are made during litigation settlement negotiations or during negotiations with stakeholders in the shadow of their threats of litigation.
It is in the public interest for transparency to be significantly increased in NEPA litigation and for other costs and litigation associated with the permitting of infrastructure projects. Recent legislative proposals have included transparency requirements addressing only minor, direct costs, such as the agency expenses to prepare an environmental study. A better alternative would be a requirement for federal agencies to publish online all documentation associated with project litigation during predevelopment, alongside the (already) publicly posted environmental study for the project. Given the public interest in project litigation, agencies should also be required to publicly disclose litigation documents instead of leaving journalists and the public to contend with and pay for federal court records.

Finally, here is their chart of kinds of projects they studied, litigation rate, average permit duration and counts.

Bipartisan Policy Center Ideas for Reforming Judicial Review: What Do You Think?

I first ran across The Bipartisan Policy Center when I read their comments on the USDA Climate Smart Forestry and Ag comment request. I was impressed by their work, especially since we don’t usually see them in the forest space. Students: there appear to be many spring internships with them.

Anyway, this fall they published  “Reforming Judicial Review for Clean Infrastructure:  A Bipartisan Approach.”

BPC has had three roundtables thus far with experts from across the political spectrum.

This roundtable was the third in a series on permitting. The first roundtable focused on public engagement, and the second focused on permitting linear infrastructure (i.e., transmission and pipelines). The goal of this roundtable was to foster robust discussions on reforming the judicial review process related to permitting, with participants weighing the pros and cons of a variety of policy proposals from across the political spectrum.

According to a forthcoming study of 355 of the largest energy and transportation projects between 2010 and 2018, solar energy projects experienced the highest litigation rate, with nearly two-thirds facing a claimed National Environmental Policy Act (NEPA) violation. Transmission and wind energy projects similarly face higher-than-average rates of litigation, as well as light-rail transit projects. Maintaining opportunities for people to file meritorious lawsuits against projects that have the potential to unduly harm the environment or communities is vital. Nevertheless, the status quo prevents the accelerated build-out of desperately needed infrastructure, all while increasing costs and discouraging investment.

Since many of us have experience with lawsuits (on the USG and plaintiff sides) I’m curious as to what you think about these.  I put my opinions below each one, more to prime discussion than anything else.

(1) Option: Reduce the Statute of Limitations

Under current law, initial lawsuits can be filed for up to six years after final permitting decisions. Participants generally agreed on the value of reducing that time frame.

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Current proposals in Congress vary for placing time restrictions on legal challenges, ranging from 60 days up to three years. Some participants advocated shorter time limits, while others wanted to ensure that affected communities would have a longer period to file lawsuits. Although no consensus on a specific time frame was reached, the majority felt that a deadline of two years or less to file suit was acceptable, and most were comfortable with a statute of limitations under one year.

I like two years, seems like most file by then anyway in our world.

(2) Option: Reduce Standing 

One proposal raised by participants, similar to a provision in H.R. 1 passed by the House of Representatives earlier this year, is to limit eligibility to those who raised concerns during the public comment period in the administrative process: If a person or group did not express their concern during the process designed to receive such comment, then they would not be able to petition the courts after the administrative process ended. Some participants expressed concern that such limitations could shut persons out directly affected by a project but were not aware or able to participate in the administrative process. Participants also noted that if this change were adopted, agencies would need to do a better job advertising and make the public comment process accessible.

This has always seemed like a no-brainer to me, since people who can afford lawyers tend to also track projects pretty well.  However, I suspect different agencies do better and worse at public engagement.

(3) Option: Elevate Litigation Filed after Final Agency Actions Directly to U.S. Courts of Appeals

One proposal that received near unanimous support at the roundtable was to elevate litigation directly to an appeals court following the administrative process. This option would speed up the entire litigation process by bypassing district courts and eliminating a step in the judicial process. Because litigation under NEPA is essentially an appeal of a government agency decision, participants agreed that moving directly to a court of appeals would streamline the process without undermining the rigor or thoroughness of judicial review.

I don’t see a downside to this..

(4) Option: Establish a Technical Court with Jurisdiction Over Federal Permitting Decisions

Another proposal that received general backing is the establishment of a single technical federal court with jurisdiction over American Procedure Act reviews and NEPA decisions. This court would have the expertise to address these cases in an effective and timely manner. Participants noted that the U.S. Court of Appeals for the D.C. Circuit already has environmental review expertise and could play this role well. Participants also noted that sending appeals directly to a single technical court would solve the issue of court shopping. Overall, participants agreed that this would be an effective solution that would provide certainty to project developers and appropriate judicial review.

I like this one, as I’ve said before, it would be easier for practitioners to track case law and perhaps make for more consistent case law.

(5) Option: Establish a Permitting Review Board for Energy Projects

Similar to the Environmental Protection Agency’s Environmental Appeals Board, an independent technical appeals board consisting of judges would act as a forum for parties to appeal permitting decisions for energy projects. After a final permitting decision is issued, rather than filing an appeal with district courts, litigants could appeal to a review board that attempts to resolve disputes between the parties. If the board is unable to resolve a dispute, the appealing party can raise their concerns to U.S. Circuit Courts of Appeals. The review board could help concentrate permitting expertise in a single independent body and expeditiously resolve disputes. However, some roundtable participants added that appointments to this board would need to be handled with care to avoid it becoming politicized.

If this is important for climate mitigation (renewable energy) why not climate adaptation.. say fuels and prescribed burning projects?  I like the “resolving disputes” aspect rather than “remandng for more paperwork.”

(6) Option: Setting Court Deadlines

A proposal that participants found appealing was to set deadlines for court actions, such as requiring court decisions on federal permitting challenges within a time frame designated in statute. However, there was skepticism as to whether the legislative branch’s decision to place time restrictions on the judiciary would withstand constitutional scrutiny, or whether the deadline would be enforceable.

Constitutional dogs usually won’t hunt.

(7) Option: Setting Deadlines on Agency Remand

Some participants proposed requiring courts to set deadlines for agency action when the judges remanded a decision. (A remand is when the courts send the decision back to the agency for further consideration, or when a judge vacates a permit, which means the courts invalidated or canceled the permit.) In these cases, deadlines for agency action would provide needed certainty on the timeline for next steps for developers. However, as with the previous option, participants questioned whether requiring courts to set agency deadlines would withstand constitutional scrutiny. Congress could, however, set agency deadlines for agency action following remand, though a deadline set in statute would have less flexibility than one set by a court for a specific action under review.

Most agencies don’t kick back and take a break with a remand anyway, so I don’t know what deadlines would help with.

(8) Option: Narrowing the Scope of Decisions

Participants broadly supported narrowing judicial outcomes by directing the courts to specify aspects of review requiring additional analysis, revision, or remand. By specifying the particular aspects requiring attention, agencies  can focus their efforts on rectifying specific deficiencies without the need to entirely vacate permits. This would streamline the process and promote more efficient decision-making. The familiarity of this procedure to the D.C. Circuit also garnered support, as it builds upon existing practices that have proven to be effective in addressing complex regulatory challenges.

I think they already do this to some extent in our world. Not sure I understand when and when not. Maybe our legal friends can help us out here?

(9) Option: Direct CEQ or the Permitting Council to Develop a Public Database of NEPA Lawsuits

Roundtable support was strong for the Council on Environmental Quality (CEQ) or the Permitting Council to establish a public database of NEPA lawsuits that would include information about timelines for both filing of initial claims and total length of the judicial review process. CEQ previously tracked such data, but it stopped doing so in 2013. One participant stressed that transparency is critical for accountability.

Duh. Transparency is also critical for coherent public policy, as well as useful policy discussions and writing of papers.