Litigation

NFS Litigation Weekly September 03, 2021

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The most recent “weekly” we received and posted was August 6.

The Forest Service summary for this week is here (it contains only one action from a month ago):  NFS Litigation Weekly September 03 2021 Email

 

NOTICE OF INTENT TO SUE

The Forest Service received a Notice of Intent to Sue under the Endangered Species Act dated August 8 from the Alliance for the Wild Rockies regarding the effects on grizzly bears and lynx of the Ripley Project, Kootenai National Forest Plan Access Amendment and Cabinet-Yaak Recovery Zone BORZ (Bears Outside of Recovery Zones) Mapping on the Kootenai National Forest.  Additional comments from AWR are here.

 

BLOGGER’S BONUS (through August 8)

Forest Service litigation

(New lawsuit.)  On July 12, the Blue Mountains Biodiversity Project filed a complaint alleging that the Camp Lick Project on the Malheur National Forest violates NFMA by permitting the removal of trees more than 21 inches in diameter, contrary to the “Eastside Screens” limit, which was still in effect when the project decision was made.  Recent discussion of the amendment to replace the Eastside Screens is here.

(Court decision – Friends of the Clearwater v. U. S. Forest Service (D. Idaho).)  On August 4, the district court enjoined the Lolo Insect and Disease Project on the Nez Perce-Clearwater National Forests in critical habitat for threatened Snake River Basin steelhead for failing to reinitiate consultation with the National Marine Fisheries Service because of new information about declining populations, and NMFS’ failure to use that information in the consultation process.  More on the plaintiffs’ views are here.

(New lawsuit – Center for Biological Diversity v. Moore (D. N.M.).)  On August 5, the Center for Biological Diversity and the Maricopa Audubon Society filed a complaint in the district court challenging the Lincoln National Forest’s failure to protect streamside meadows from cattle, which are designated critical habitat for the endangered New Mexico meadow jumping mouse.  The news release includes a link to the complaint.

Other litigation

(Court decision – Dine´ Citizens Against Ruining Our Environment v. Bernhardt (D. N.M.).)  On August 3, the district court denied a motion for a temporary restraining order and preliminary injunction against approval by the BLM of oil and gas production in the San Juan Basin.  The case involved an EA Addendum, supplementing a total of 81 EAs covering 370 APDs which had been initially approved between 2014 and 2019.

(Court decision – Friends of Gualala River v. Gualala Redwood Timber, LLC (N.D. Cal.).)  On August 3, the federal district court denied a preliminary injunction in litigation against the Dogwood Timber Harvest Plan for private land approved by the California Department of Forestry and Fire Protection.  The court held that prior proceedings in state courts had already addressed claims under the federal Endangered Species Act concerning four protected species: the California red-legged frog; the northern spotted owl; the Northern California steelhead; and the California Central Coast Coho salmon.

(Court decision – Stop B2H Coalition v. Bureau of Land Management (D. Or.).)  On August 4, the district court upheld the BLM’s decision siting a powerline between Boardman, Oregon and Idaho for the Idaho Power Company against NEPA claims, including effects on greater stage-grouse.  The decision is also discussed in this article.

USFS NEPA Study

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Folks, here’s an article that’s right up our Smokey Wire alley…. An article from Montana Business Quarterly, “Implementing the National Environmental Policy Act on National Forests,” by by Todd Morgan, Mike Niccolucci, and Erik Berg.

This article presents information about the number and types of NEPA analyses conducted by the agency, how long they take to prepare, and the frequency of litigation by NFS region and project purpose, as well as information on the NFS annual budget and land management accomplishments.

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Conclusions
This study suggests that more NFS land management is being accomplished per NEPA analysis (Morgan et al. 2021). Likewise, flat NFS budgets along with increasing accomplishments and declining numbers of NEPA analyses suggest the USFS is improving its acres treated per dollar appropriated to some mission areas, and may be reducing dollars spent per NEPA analysis. However, there is not strong evidence of increased speed in conducting NEPA, with just a four-day-per-year decrease in time-to-completion.

********************* Added by Sharon… here’s the part on litigation.

Litigation
The use of NEPA analyses in litigation against NFS management activities is well documented (Keele et al. 2006; Miner et al. 2010, 2014; Morgan and Baldridge 2015; Mortimer et al. 2011), and thus differences in litigation rates are worthy of some attention.

By analysis type, about 15% of the EISs, 2% of EAs, and 0.4% of the CEs completed between 2005 and 2019 were litigated (Table 1; Morgan et al. 2021). Projects with certain land management purposes appear to be litigated more often, regardless of analysis type. The most frequently litigated project purposes are forest products in 95 of 292 litigated analyses (32.5%), fuels management in 92 (31.5%) of litigated analyses, and vegetation management – nonforest products in 83 (28.4%) of litigated analyses. By analysis type, litigation frequency and rates vary, but forest products, fuels and vegetation management are consistently among the most frequently litigated project purposes or among those with the highest litigation rates. Grazing management and road management also have relatively greater litigation rates (Morgan et al. 2021).

There are striking differences in litigation by USFS region (Table 1; Morgan et al. 2021). The Northern Region (R-1) has the highest number of total litigated analyses, accounting for 25.7% of all litigated analyses nationally. Likewise R-1 has the highest overall litigation rate, with 2.3% of all R-1 NEPA analyses litigated, which is more than 2.5 times the national rate of 0.9%.

Table 1. Number of NEPA analyses and percent litigated by analysis type and National Forest System region.
Table 1. Number of NEPA analyses and percent litigated by analysis type and National Forest System region.

The Southwestern Region (R-3) has the most litigated CEs at 37.2% of all litigated CEs nationally. The R-3 CE litigation rate is more than four times the national CE litigation rate. R-1 has the most litigated EAs (29 of 101 litigated nationally) and the highest EA litigation rate (7.6%). That is 3.8 times the national EA litigation rate of 2%. R-1 also has the most litigated EISs at 23 of 78 litigated nationally (29.5%). Further, R-1 has the highest EIS litigation rate with 29.1% of all R-1 EISs litigated.

The seemingly low rates of litigation underestimate the on-the-ground impacts to USFS programs and R-1 projects are the most frequently litigated among the USFS regions (Morgan and Baldridge 2015; Morgan et al. 2021). According to USFS officials, the R-1 timber program has had 210 to 466 million board feet of timber – or an estimated 18,000 to 41,000 acres of treatment area – associated with some phase of litigation. That is roughly equivalent to 50% to over 100% of the region’s annual timber program impacted by litigation between 2016 and 2021. Even when a project is not directly enjoined by a lawsuit, the work associated with responding to litigation is significant and takes personnel away from their planned program of work, representing additional opportunity costs to the agency.

This goes back to the ongoing discussion of whether litigation is a problem or not.. specifically with regard to vegetation projects.  Lots of interesting info here.. especially the acres in Region 1 being litigated, as well as 31% of litigation being for projects identified as fuel management.

 

NFS Litigation Weekly August 6, 2021

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Two weeklies in two weeks!

The Forest Service summaries are here:  NFS Litigation Weekly August 06 2021 FINAL

COURT DECISION

Sequoia ForestKeeper v. U.S. Forest Service (E.D. Cal.) — On July 23, the district court granted the plaintiffs’ motion for a temporary restraining order against the Plateau Roads Hazard Tree Project on the Sequoia National Forest because it inappropriately used the categorical exclusion for road maintenance, and the prior 9th Circuit EPIC case is controlling.

NEW CASES

Washington State Snowmobile Association v. U.S. Forest Service (E.D. Wash.) — On July 27, plaintiffs filed a compliant alleging the Forest Service issued a special use permit to Wenatchee Mountain Alpine Huts, LLC to develop commercial winter lodging at the top of Van Epps Pass on the Okanogan-Wenatchee National Forest without following appropriate NEPA procedures.  The substantive issue appears to be whether the huts would pose a risk to public health and safety from avalanches and from increased interaction between motorized and non-motorized users as a result of the increased use of the area.

Alliance for the Wild Rockies v. Moore (D. Mont.) – On July 26, the plaintiffs filed a complaint against the Greater Red Lodge Project on the Custer Gallatin National Forest.  Issues include lynx habitat mapping, effects on lynx and compliance with the HFRA definition of WUI.  The project was stopped in 2015 by a previous lawsuit.  Here is some background, and here is plaintiffs’ perspective.

 

BLOGGER’S BONUS

Court decision:  Orr v. U. S. Environmental Protection Agency (W.D. N.C.) – On July 22, the district court denied a stay pending appeal to the 4th Circuit in one of a series of cases against the French Broad Electric Membership Corporation’s planned spraying of herbicides on its right-of-way easements (apparently including national forest lands).

On July 22, the Center for Biological Diversity and Maricopa Audubon Society filed a notice of intent to sue the BLM and the Fish and Wildlife Service for failing to protect critical (riparian) habitat for seven threatened and endangered species in the Gila Box Riparian National Conservation Area in southeastern Arizona based on documented cattle grazing damage.  (The news release has a link to the NOI.)

On July 19, a coalition of ten environmental groups filed a 60-day notice of intent to sue the state of Idaho over a new law that enables the year-around trapping of wolves on private property.  They contend the expanded use of traps and snares to catch wolves also harms grizzly bears and lynx, in violation of ESA.   The recorded interview also discusses a similar NOI in Montana against legalizing the use of snares (which would apply to national forests), as described here.

 

NFS Litigation Weekly July 30, 2021

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The Forest Service summary is here:  NFS Litigation Weekly July 30 2021 Email

(The last previous “weekly” summary was July 9.)

COURT DECISIONS

Sacramento Grazing Association, Inc. v. United States (U.S. Court of Federal Claims) – On July 23, 2021 the U.S. Court of Federal Claims reconsidered the court’s 2017 liability determination that the Forest Service “effected a physical taking of plaintiffs right to beneficial use of stock water sources under New Mexico law” in the Sacramento Allotments of the Lincoln National Forest. The Court found that the plaintiffs did not possess a right to beneficial use of stock water sources under New Mexico water law at the time of the alleged taking.

Alliance for The Wild Rockies v. Pierson, (D. Idaho) – On July 23, 2021 the district court granted a preliminary injunction (for a second time) on the Hanna Flats Project on the Idaho Panhandle National Forest because the Forest Service failed to apply HFRA’s definition of WUI, and instead relied exclusively on Bonner County’s community wildfire protection plan’s determination of the WUI, which is inconsistent with HFRA’s definition and cannot provide a justification for a NEPA categorical exclusion under HFRA.  (Here is an AP news article.)

LITIGATION UPDATES

WildEarth Guardians v. Steele and Swan View Coalition v. Steele (D. Mont.)- On July 22, 2021 the plaintiffs filed a motion to amend the district court’s June 24, 2021 decision against the Flathead National Forest revised land management plan by requesting the court to vacate new road management requirements, and to reinstate the requirements of the former forest plan to protect grizzly bears and bull trout.

NEW CASES

Wilderness Watch v. Marten (D. Mont.) – On July 22, 2021, the plaintiff filed a complaint in the district court against the Forest Service regarding the North Fork Blackfoot River Westslope Cutthroat Trout Conservation Project on the Lolo National Forest. The project would authorize large-scale helicopter-assisted stream poisoning to remove previously stocked fish, followed by the stocking of Westslope cutthroat trout in the Scapegoat Wilderness, including in areas that were likely historically fishless.  (We discussed this project here, and here is a local news article.)

 

BLOGGER’S BONUS

(Court decision.)  Neighbors of the Mogollon Rim, Inc. v. U.S. Forest Service (D. Ariz., June 30, 2021)

The district court denied a motion for a preliminary injunction against the Tonto National Forest’s allotment management plan and grazing permit for the Bar X allotments and Heber-Reno Sheep Driveway.  Plaintiffs are owners of land in private enclaves within an area of national forest lands that was reopened for grazing.  The court’s ruling is based entirely on the balance of harm and does not address the merits of the case.

(Notice of Intent.)  Lands Council v. U. S. Forest Service (E.D. Wa.)  Three conservation groups notified the Colville National Forest on July 10 of their intent to add a claim to their existing lawsuit against the issuance of a 10-year grazing permit for two allotments that will challenge the failure to consult with the Fish and Wildlife Service concerning effects on bull trout and critical habitat.  (The linked article includes a link to the NOI.)

(Court decision – BLM.)  Friends of Animals v. U. S. Bureau of Land Management (D. D.C., July 13, 2021)

The district court denied a motion for a preliminary injunction to stop BLM’s gather and removal of wild horses inside and adjacent to the Onaqui Mountain Herd Management Area in Utah.  The court found that Plaintiff’s likelihood of success on the merits was low, and that due to the extreme drought, “Allowing the horses to remain on the range could imperil their health and the ecological well-being of the range.”

(Notice of Intent – BLM.)  The Center for Biological Diversity and the Maricopa Audubon Society have filed a “60-Day Notice of Endangered Species Act Violations” with the Bureau of Land Management over cattle trespassing along the San Pedro River in the San Pedro Riparian National Conservation Area in Arizona.  Listed species that may be adversely affected are the western yellow-billed cuckoo, the northern Mexican garter snake and especially the Huachuca water umbel, an aquatic plant.

  • Trump un-dos

ESA regulations:  Trump-era changes to the regulations implementing the Endangered Species Act are currently subject to three lawsuits.  The Biden Administration’s Spring 2021 Unified Agenda provides general timeframes for changing them, each of which will go through a notice and comment rulemaking process.

Northern spotted owl critical habitat:  The U. S. Fish and Wildlife Service is proposing to redesignate northern spotted owl critical habitat, restoring protection to all but about 200,000 acres of the 3.4 million acres removed by the Trump Administration.  (That decision is currently under litigation, as is the Biden Administration’s delay in implementing it, as described here).

Tongass old growth:  In addition to its efforts to reapply the Roadless Area Conservation Rule to the Tongass National Forest (discussed here), the Biden Administration has announced it is freezing any remaining old growth timber sales from the Forest and will pivot to investing in other sectors of Southeast Alaska’s economy.

  • Law enforcement

Bull trout poaching:  A fourth poacher was convicted of illegally taking threatened bull trout from the Metolius River in the Deschutes National Forest.

Arrowhead theft:  Two men were convicted of unlawfully removing and damaging archeological resources on the Kisatchie National Forest.  The excavation site was designated by the United States government as a known Archeological Site, and the defendants uncovered various Native American artifacts, including arrowheads and some chips of Native American tools or utensils.

Maple tree theft:  A jury convicted Justin Andrew Wilke of conspiracy, theft of public property, depredation of public property, trafficking in unlawfully harvested timber, and attempting to traffic in unlawfully harvested timber from an illegal maple logging operation on the Olympic National Forest.  Wilke claimed the wood he sold to a Tumwater mill had been harvested from private property with a valid permit.  However, at trial, Richard Cronn, Phd., a Research Geneticist for the USDA Forest Service, testified that the wood Wilke sold was a genetic match to the remains of three poached maple trees investigators had discovered in the Elk Lake area. This was the first use of tree DNA evidence in a federal criminal trial.   (For Sharon!)

Off-road drivers:  Off-road drivers are damaging the Bankhead National Forest, and officials say they are struggling to stop the activity.  The Forest Service estimated only about 3% of the illegal riders are ever caught. He said it is usually a group of riders and they usually have lookouts with walkie-talkie radios to warn the drivers. In the rare event they are caught, the drivers face up to $5,000 in fines, six months in the county jail and a federal court appearance.

 

NFS Litigation Weekly July 09, 2021

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There WAS something to report this week (but it goes back a few weeks).  The Forest Service summaries are here:

Litigation Weekly July 09 2021 EMAIL

Links to court documents are provided in the abbreviated summaries below.

COURT DECISIONS

On June 24, 2021 the District Court of Montana issued an unfavorable decision to the Forest Service and U.S. Fish and Wildlife Service concerning the 2018 Revised Flathead Forest Plan and supporting 2017 biological opinion and their consideration of effects on grizzly bears and bull trout.  (This was previously summarized here.)

On June 21, 2021 the 9th Circuit Court of Appeals affirmed the District Court of Montana’s decision that the Rails-to-Trails Act secured title to the government of an abandoned railroad right of way across plaintiff’s land on the Kaniksu National Forest.  (This was also discussed here.)

NEW CASES

On July 1, 2021 Sequoia ForestKeeper and Earth Island Institute filed a complaint in the Eastern District Court of California against the Plateau Roads Hazard Tree Project on the Sequoia National Forest regarding the alleged improper use of the categorical exclusion (CE 4) for road repair and maintenance.

On June 21, 2021, Plaintiffs filed a complaint in the United States Court of Federal Claims alleging a breach of contract by the Forest Service for revoking their ski area permit on the Umatilla National Forest after a dispute over Forest Service management of snowmobile use of the parking lot.

NOTICE OF INTENT TO SUE

The Forest Service (Region 5) received a 90 Day Notice of Intent to Sue under the Resource Conservation and Recovery Act (RCRA) dated June 21, 2021 from the Environmental Protection Information Center and others regarding trespass cannabis farms and the Forest Service’s handling of these trespass sites, including solid waste discarded and left on the Six Rivers, Shasta-Trinity, and Plumas National Forests.  (This was also discussed here.)

NOT the NFS Litigation Weekly July 2, 2021

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The Forest Service has had “nothing to report” the last two weeks, but so you don’t feel like you’re missing something, here is what apparently didn’t make the cut.  (Links are primarily to news articles.)

SETTLEMENTS

In response to the lawsuit summarized here (Conservation Northwest v. U.S. Forest Service), on April 30, 2021, the Colville National Forest withdrew its action that changed the vehicle use class designations for 26 road segments from open to highway legal vehicles only to open to all vehicles, which opened those roads to use by all-terrain vehicles.  On June 7, the court dismissed the case.

On April 20, Central Oregon LandWatch and Oregon Wild filed a lawsuit challenging the Black Mountain Project on the Ochoco National Forest (introduced here).  On June 14, the court approved a settlement which, according to plaintiffs, will require the Forest Service to “exclude sensitive riparian habitat…”

ACCESS

(New lawsuit, between private parties.)  On June 1, a group comprised of hikers, hunters, fishermen and other users of the Jefferson National Forest sued a private landowner under a state statute in a Virginia county court for blocking historic access to the national forest.  The Forest Service had chosen to not pursue the matter in 2008.

On June 21, the 9th Circuit Court of Appeals held that the ownership of an abandoned railroad right of way near Noxon, Montana reverted to the federal government under the National Trails System Improvement Act.  An adjacent private landowner had brought a quiet title action against the Forest Service.

MARIJUANA

Four California conservation groups filed a formal notice of intent to sue the Forest Service for failing to clean up hazardous waste associated with trespass cannabis grows on Forest Service lands in California.  While trash and other solid waste is often removed from grow sites after law enforcement, deadly pesticides are routinely left at the former grow site because of the cost and complexity of removal.

Meanwhile, on June 29, a grower pleaded guilty to cultivating marijuana on the Sierra National Forest.

ESA

(Court decision.)  On June 22, the Montana federal district court upheld the Bull Trout Recovery Plan in Save the Bull Trout v. Williams.  The court held the content of recovery plans is largely discretionary, and that the Fish and Wildlife Service could use a matrix addressing management of threats to bull trout instead of population numbers to determine recovery.  (That could raise the stakes for what forest plans should do to protect bull trout.)  (The article includes a link to the opinion.)  Plaintiffs have filed an appeal to the 9th Circuit.

(New case.)  Following up on their notice of intent to sue in March (provided here), five conservation groups sued the Fish and Wildlife Service for listing only a Missouri distinct population segment as endangered rather than the entire species.  The species occurs on several eastern national forests.  Additional background and a link to the complaint are here.

  • Listing actions

Following a petition and lawsuit from the Center for Biological Diversity, the U.S. Fish and Wildlife Service announced that the beardless chinchweed will receive protection as endangered.  One of the remaining populations is found in the area that would be affected by the proposed Rosemont Copper Mine on the Coronado National Forest.  (Litigation related to the mine is discussed here.)

On June 15, the USFWS delisted the water howellia, an aquatic plant, citing (among other things) the protective measures in the Flathead National Forest revised forest plan and the Mendocino National Forest plan.  The delisting notice also states, “The USFS anticipates that water howellia will be given the status of ‘‘species of conservation concern’’ in both plans when the species is delisted.”

On June 24, the U. S. Fish and Wildlife Service proposed downlisting the smooth coneflower from endangered to threatened.  It is found on the George Washington and Jefferson National Forests in VA, Sumter National Forest in SC, and Chattahoochee-Oconee National Forest in GA.  The listing notice emphasized that, “there are currently 16 protected, resilient smooth coneflower populations, and, “These populations are protected on Federal lands from the threats of ecological succession or destruction due to development, primarily because Federal partners are vested in the protection of the species under their management plans.”

Recent forest plan litigation

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Litigation about the validity of a forest plan doesn’t happen very often, but two revised forest plans have been in the news for that lately.

Flathead court decision

The Montana District Court has decided the first case reviewing a forest plan revised under the 2012 Planning Rule, and it rejected decisions made in the Flathead plan related to roads because of the Fish and Wildlife Service and Forest Service had not adequately analyzed the effects of roads on grizzly bears and bull trout.  The court held that the process of revising the forest plan violated the Endangered Species Act; plaintiffs did not challenge compliance with NFMA or the Planning Rule. The court found no violations of NEPA and travel planning requirements.  The revised plan remains in effect pending additional analysis, but additional analysis will also be required for ongoing projects.  I haven’t read the opinion yet, and it’s not clear to me why these projects should not also be required to comply with the old plan direction for roads, which would have limited road construction, unless/until the revised plan complies with ESA.

This article quotes the judge on the crux of the case regarding grizzly bears:

“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.

Additionally, the article continues:

Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.

The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.

Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote.

A key factor in the decision was apparently evidence presented by plaintiffs that requirements for road closures in the forest plan would actually result in continued public use of the closed roads.

This article quotes timber industry intervenors:

“It’s a pretty thorough and nuanced opinion,” said Lawson Fite, an American Forest Resource Council attorney representing the Montana Logging Association.

Colville new lawsuit

There may be more legal action ahead involving NFMA in new litigation filed on the recently revised Colville Forest Plan, which was summarized here (this plan was revised using the 1982 planning regulations). Most of the attention is probably on the Sanpoil Project, where plaintiffs raise issues related to the site-specificity of the analysis (see condition-based NEPA). They also make a NEPA claim related to our many discussions of historic/natural variability (versus an alternative that “was actually focused on maximizing timber revenue”); more on the forest plan aspects of that below.

One of the forest plan issues is old growth – specifically the elimination of the Eastside Screens which imposed a diameter limit on trees harvested, and whether the revised plan direction adequately provides for viability of old growth species in accordance with the provisions of the 1982 planning regulations, which require that old growth be “well-distributed.”  The revised plan also eliminated pileated woodpeckers and American marten as management indicator species for old growth and did not replace them with anything.

The Forest prepared an “issue paper” on old growth as part of the objection process, which I will highlight below (you might want to keep in mind our recent HRV vs NRV discussions, though this is not an explicit requirement of the 1982 regulations):

The proposed Forest Plan replaces Eastside Screens with a series of desired HRV conditions (described in FEIS, Vol. 1, pp. 92-94, 99-132) but allows cutting of individual large trees when needed to meet desired conditions for structural stages, along with several other exceptions (FEIS, Vol. I, pp. 28-30). It provides a desired condition for forest structure (FW-DC-VEG-03) that provides for a diversity in forage and wildlife habitat. Additionally, forest-wide desired condition (FW-DC-WL-03 and FW-DC-WL-13) state that habitat conditions should be consistent with the historical range of variability.

Instead of fixed reserves in the current Forest Plan the proposed Forest Plan would have late structure contained throughout the landscape and all actions that affect forest vegetation would be assessed and compared to HRV, with the goal of moving the overall landscape toward HRV.

The proposed Forest Plan will result in approximately 780,592 acres of late forest structure in 100 years, which is slightly less than the current Forest Plan (810,583 acres). The proposed Forest Plan would, however, allow structure classes to shift around the landscape in response to disturbance and may result in more resilient forest landscapes.

The effects analysis described in the FEIS shows that maintaining a 21″ diameter limit reduces the ability to attain the desired future condition of having a majority of most vegetation types in late structure.

It’s great that they actually projected the amount of late forest structure.  Based on the planned/expected reduction, I would have to conclude that their assessment told them they had too much of this compared to historic conditions.  I think that would be fairly unique and create a burden to demonstrate that using best available science (which plaintiffs seem to be disputing).  The last two paragraphs are a little hard to reconcile since the current plan would produce more old growth, but maybe there is too much of some old growth vegetation types and not enough of others?

The forest structure desired condition (FW-DC-VEG-03) includes an evaluation of the historical range of variability (HRV) and vegetation treatments at the project level will need to show movement toward this desired condition. This means that until the desired condition is reached, existing late structure would need to be maintained on the landscape.

This is an important interpretation of what they think their forest plan requires.  Hopefully it says something close to this in the plan itself, but regardless, their EIS effects analysis would have been based on it and they should be held to it when project consistency is evaluated.

NFS Litigation Weekly June 18, 2021

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Things were a little busier this time.  Forest Service summaries are here:  Litigation Weekly June 18 2021 Email

Court documents related to each case are provided by the links below.

COURT DECISIONS

Western Watershed Project v. U.S. Forest Service (D. Utah).  On June 2, the district court granted the Forest Service’s partial Motion to Dismiss one of several claims challenging the decision to not suspend and cancel grazing on three allotments on the Fishlake National Forest for the 2019 grazing season permits.  This case was introduced here.

Unite the Parks v. U.S. Forest Service (E.D. Cal.).  On May 28, the district court denied the plaintiffs’ motion for a preliminary injunction against 45 forest health projects on the Sierra, Sequoia and Stanislaus National Forests that may affect the Southern Sierra Nevada Pacific fisher.  Most of the claims were based on ESA after the fisher was listed as endangered on May 15, 2020.  Regarding the long-term benefits to fisher claimed by the agencies (discussed here), the court found little likelihood that plaintiffs could raise serious questions. The Forest Service and Fish and Wildlife Service received a second notice of intent to sue under ESA on June 10 containing different claims (not linked).

Short v. Federal Highway Administration (D. N.D).  On May 28, the district court dismissed the Forest Service from the case without prejudice, based on their role as a cooperating agency for Little Missouri Crossing Road and Bridge Project that encroaches on and crosses the Little Missouri National Grassland and the Dakota Prairie Grassland (as well as plaintiff’s property).

Center for Biological Diversity v. U.S. Forest Service (D. Idaho).  On June 4, the district court upheld the Bog Creek Road Project in the Selkirk Grizzly Bear Recovery Zone on the Idaho Panhandle National Forest, which will reopen the road for administrative use by Customs and Border Protection in monitoring the border with Canada.

MAGISTRATE’S RECOMMENDATION

  • Flathead revision/grizzly bear amendments

O’Neil v. Steele (D. Mont.).   On June 8, the magistrate judge issued a findings and recommendation favorable to the Forest Service regarding the Flathead National Forest 2018 revised Forest Plan and the Lolo, Helena-Lewis & Clark and Kootenai National Forests amended Forest Plans. These plaintiffs have claimed that the Forest Service did not consider the albedo effect and should have planned for more timber harvest.  (No court document was provided.)

NEW CASES

Alliance for The Wild Rockies v. Pierson (D. Idaho).  On June 7, the plaintiff filed a complaint against the Forest Service’s October 11, 2018 Decision Memo (DM) and May 28, 2021 Supplemental DM (based on categorical exclusions) approving the Hanna Flats Project on the Idaho Panhandle National Forest.  The Supplemental DM was the result of the court’s remand on April 27 to address Wildland-Urban Interface boundaries (described here).

Save the Bull Trout v. U.S. Forest Service (D. Mont.). On June 4, the plaintiffs filed a complaint against the East Fork and Rock Creek Diversion on the Beaverhead-Deerlodge National Forest, alleging violations of the Endangered Species Act resulting from ongoing unpermitted incidental take of bull trout.

NOTICE OF INTENT TO SUE

In a second NOI dated June 4 to the U.S. Fish and Wildlife Service and Forest Service (first NOI issued September 13, 2019), the Center for Biological Diversity and Maricopa Audubon Society expressed continued concerns that inadequate exclosure fencing (and monitoring of fencing) has resulted in cattle from two allotments entering protected areas that has resulted in destruction and modification of endangered New Mexico Meadow Jumping Mouse critical habitat, and other effects not considered in 2021 biological opinions for the allotments.

 

BLOGGER’S BONUS (links are to news articles)

(Notice of intent.) The Environmental Protection Information Center filed the notice along with the Center for Biological Diversity and the Klamath Siskiyou Wildlands Center on June 2. The NOI states that the U. S. Fish and Wildlife Service failed to explain why the West Coast population, which was petitioned for listing by the groups on this notice and found to warrant protection in 2004 and subsequent years, no longer warrants protection as a threatened or endangered species. A final listing rule made in May 2020 revised the West Coast population’s definition into two separate distinct population segments, the previously established Northern-California-Southern Oregon and Southern Sierra Nevada populations and only granting protection to the latter.  (See the Unite the Parks case above.)

(Update.) The U.S. Fish and Wildlife Service said on June 2 it will propose listing the Tiehm’s buckwheat as an endangered species, dealing a blow to ioneer Ltd’s proposed Rhyolite Ridge lithium mine on BLM land in Nevada.  This decision is in response to a court-imposed deadline (as discussed here).

(New case.) On June 3, a coalition of conservation groups sued the Department of Interior over the BLM’s decision to allow construction of a new four-lane highway through a national conservation area in southern Utah that includes protected habitat for the Mojave desert tortoise.  (The complaint in Conserve Southwest Utah v. USDI is here.)

(Update.) On June 4, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act finalized under the prior administration.  This includes the regulations at issue in the ESA litigation described here.

NFS Litigation Weekly June 11, 2021

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It seems like this is becoming more of a “litigation monthly” (maybe because the litigation business is slow?), but here’s what they’ve got:  Litigation Weekly June 11 2021_Email

COURT DECISIONS

Conservation Congress v. U.S. Forest Service (E.D. Cal.).   On May 17, the district court upheld the Pettijohn Project on the Shasta-Trinity National Forest concerning alleged impacts on the northern spotted owl under ESA, NEPA, HFRA and NFMA.  A local story is here.

Gallatin Wildlife Association v. U.S. Forest Service (9th Cir.).  On May 18, in a 4-page opinion, the 9th Circuit affirmed the District Court of Montana’s decision, which upheld the allotment management plans on 7 domestic sheep allotments, on the Beaverhead-Deerlodge National Forest, and the Forest Service’s use of a coarse filter methodology in assessing the risk of domestic sheep grazing to bighorn sheep.

BAR K Ranch v. United States (D. Mont.).  On May 10, in a quiet title action brought against the Forest Service and BLM, the district court granted the Forest Service’s motion that the several public and private rights-of-way over roads on the Beaverhead-Deerlodge National Forest constitute Forest Service roads.

NEW CASES

Kettle Range Conservation Group v. U.S. Forest Service (E.D. Wash.) On May 12, the plaintiff filed a complaint concerning the Sanpoil Project on the Colville National Forest. The complaint alleges failure of the EA to include a meaningful (including site-specific) analysis of the impacts of timber harvests, controlled burns and road work within 47,956 acres of the Colville National Forest. Due to the proximity to tribal trust lands of the Colville Tribe, the project was proposed under the Tribal Forest Protection Act.  Plaintiffs further challenge the Forest Service’s final decision approving the 2019 Colville Forest Plan, because it fails to protect old-growth trees from logging through projects such as the Sanpoil Project.

Klamath Forest Alliance v Blower (D. Or.).   On May 21, the plaintiffs filed a complaint against the Slater Fire Safe Re-entry Project, after fires in 2020 on the Rogue River-Siskiyou National Forest, challenging the use of the road repair and maintenance CE for a project of this scope (along 85 miles of roadway).  Additional claims under ESA may be added pending response to a 60-day Notice of Intent to Sue.

 

BLOGGER’S BONUS

On May 17, 2021, the United States Court of Appeals for the Ninth Circuit held that a new Trump administration U.S. Fish and Wildlife Service rule requiring that affected states receive a 30-day notice of an intent to file a petition to list a species as endangered or threatened is inconsistent with the Endangered Species Act.  The specifics of this case involve the Pryor Mountains on the Custer-Gallatin National Forest.  They also involve a petition to list a particular “Old-World Spanish genetic lineage” of wild horse, which the Fish and Wildlife Service rejected for failure to comply with this new requirement.

  • Sage grouse

In February, the district court of Idaho overturned a Trump administration action to cancel a prior effort to ban mining and allow mining and other development on 10 million acres that are considered important for the survival of sage-grouse.  In May the Biden administration announced it would consider a new ban.

  • Flathead forest plan revision

On May 27, a hearing was held in the district court of Montana in the lawsuit against the revised Flathead National Forest Plan involving grizzly bears and bull trout.  Local articles summarizing the hearing discussions are here, here, and here.

PERC’s “Fix America’s Forests” Litigation Ideas: What Do You Think?

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We’ve been having an interesting discussion about a specific organization, PERC, with my contention being that one should examine ideas on their own merits regardless of source, and Anonymous arguing something different, as usual, quite articulately, in their own words (I don’t know how Anonymous identifies gender-wise) here . As usual, I thought that diving down to specifics might help clarify our points of view. So I turned to a specific instance in which I think PERC’s ideas are worth examining. In this case, it’s about the challenge of maintaining the rights of organizations to litigate, while also tightening up processes so that lawsuits move forward more expeditiously (I think 15 years was mentioned).

So here’s a link to PERC’s Fix America’s Forests report. We can certainly discuss any other parts of the report as well. But litigation is well-trod territory on TSW and I hadn’t heard these ideas before, so let’s start there.

3. Make litigation less disruptive by requiring lawsuits to be filed quickly and clarifying how fire risks and forest health should affect injunction decisions.

While litigation can be a source of frustration for Forest Service personnel, the added expenses, delays, and uncertainty may be even more disruptive for private partners putting their own time and money on the line for forest restoration. To an investor in a Forest Resilience Bond, for instance, the possibility that a project could get bogged down like the Bozeman Municipal Watershed Project risks stranding funds for a project that may never go forward or, even if it does, would have an unpredictable timeline for generating a return. Congress could help the Forest Service and partners avoid these downsides, without sacrificing the benefits of environmental litigation, through reforms that provide greater transparency and predictability to those participating in forest restoration.

First, Congress can require lawsuits challenging forest restoration projects to be filed soon after a project is approved. Currently, lawsuits can be filed up to six years after project approval. A shorter deadline would let the Forest Service, private partners, and investors know early on whether a project will likely be tied up in litigation, enabling them to better allocate their resources and, perhaps, walk away from the project. While this could provide early confidence to those funding or performing forest restoration, it would not significantly frustrate the ability to bring worthy cases. Many challenges are already filed soon after a project’s approval. And some state analogs to NEPA require lawsuits to be filed quickly, without unduly restricting litigation. California’s Environmental Quality Act, for instance, requires many challenges to be filed within 30 days.

A shorter statute of limitations could have the added benefit of spurring greater collaboration by encouraging a project’s critics to develop detailed objections early rather than flyspecking an agency decision after the fact. During the 4FRI NEPA analysis, for instance, the Forest Service was able to avoid substantial litigation by requiring objectors to articulate their concerns in advance and meet with the agency to discuss them. This allowed the agency to modify the project to address those concerns or prepare a sufficiently detailed explanation of why it declined to do so, increasing the likelihood that the decision would be upheld by courts and reducing the incentive to litigate.

Congress could also make litigation less disruptive by reforming injunctions. Currently, courts can enjoin projects pending the outcome of litigation and, if the challenge is successful, permanently enjoin them until the agency cures the error. This can give litigants a substantial amount of leverage while a lawsuit is going forward, even if the lawsuit is ultimately unsuccessful, because people may be wary of investing in a project when they cannot be certain how long a case will take or what the outcome will be. To provide greater predictability, Congress could expedite cases concerning forest restoration projects by limiting how long preliminary injunctions can remain in place before a court ultimately decides a case.

Ordinarily, when a court determines that an agency has improperly approved some action the proper course is to “vacate” that approval until the agency cures the error. However, Congress can override this rule. Given the substantial risks of doing nothing in areas that are already at high or very high risk of fire and that border populated areas, Congress could impose a heavier burden to justify blocking a forest restoration project in these areas, such as limiting injunctions to cases where moving forward would be objectively unreasonable.

To my mind, these might not work, but couldn’t hurt much either, and might be worth trying. I’m not sure exactly how a shorter statute of limitations would help with flyspecking, though, it seems like the process would be done and flyspecking would just be quicker. What do you think? Are these bad ideas? Are they far-right ideas? Are the ideas contaminated by their association with PERC?