Litigation

April-May litigation update

by

 

Mountain goat removal (new decision)

Utah Native Plant Society v. U. S. Forest Service (10th Circuit)

The circuit affirmed the district court dismissal of an attempt to force the Manti-La Sal National Forest to remove mountain goats that the state of Utah had introduced to prevent them from harming a research natural area. It held that neither laws or regulations gave the Forest Service authority to prohibit the state action to introduce the goats on nearby state lands or to require a permit. It also held that, while the Forest Service had the authority to remove the mountain goats, it had not made a final decision on whether to do so, or to take other possible actions to protect the RNA, and therefore could not be sued.  This case was discussed previously here and here.

 

Hells Canyon grazing (new decision)

Greater Hells Canyon Council v. Stein (D. Or.)

Magistrate Judge Patricia Sullivan released her findings on a lawsuit (previously discussed here) brought by the Greater Hells Canyon Council claiming cattle grazing on the Hells Canyon allotments were imperiling the Spalding’s catchfly, a rare wildflower found only in the inland Northwest and listed as threatened under the Endangered Species Act. In her findings, Sullivan disagreed with the plaintiff’s assertions that the Forest Service lacked sufficient baseline monitoring data for the catchfly and that the agency was required to consider an alternative that would eliminate grazing in all areas where catchfly grow. Sullivan’s findings also denied the plaintiff’s claim that the Forest Service violated the Hells Canyon National Recreation Area Act.

 

Target shooting (settlement)

Los Padres ForestWatch v. U.S. Forest Service

The lawsuit alleged violations by the U.S. Forest Service of the National Forest Management Act and the Endangered Species Act from unregulated target shooting in the Los Padres National Forest (discussed here). A ban on unmanaged target shooting in the forest was approved as part of the forest plan in 2005, making it consistent with the three nearby national forests, but it was never implemented.  Under an agreement approved in U.S. District Court, the Forest Service will extend a temporary ban on target shooting outside of designated sites, and prepare studies and consult with federal wildlife agencies to assess and reduce the impacts of target shooting on rare and endangered plants and animals including the California condor, California red-legged frog, southern mountain buckwheat, and Kern mallow. A report also noted that target shooting has caused at least 53 wildfires in the Los Padres National Forest during the past 25 years.

 

Sage grouse plans (update)

Western Watersheds v. Schneider (D. Idaho)

The plaintiffs challenge 15 different Environmental Impact Statements (EISs) and their associated land use plans issued in 2015 that govern land covering ten western states. The EISs were issued as part of a National Planning Strategy by the BLM and Forest Service to update protections for sage grouse. This lawsuit was stayed for a lengthy period as the parties pursued settlement. But more recently, the BLM has issued amendments (referred to as the 2019 Amendments) to the 2015 Plans.  (The Forest Service has completed a DEIS for similar amendments.)  The court has granted plaintiffs’ motion to supplement their complaint to challenge the amendments as well as part of the ongoing case.

 

Rosemont copper mine (update)

A motion for a preliminary injunction was filed on May 15 pertaining to five lawsuits filed over the last two years against a proposed copper mine in the Santa Rita Mountains on the Coronado National Forest. A long article on what is involved and what has happened is here.

 

Idaho sheep experiment station (unsettlement/new case)

A previous case involving the experiment station on the Caribou-Targhee National Forest was discussed here (the settlement was discussed in a comment). In the prior settlement, the federal government agreed to prohibit grazing until a study was completed assessing the risk of domestic sheep transmitting diseases to bighorn sheep. The USDA completed an environmental analysis last summer and said last fall that it intended to resume grazing this year. A new lawsuit was filed in February to protect bighorns, grizzly bears, sage grouse and other wildlife.

 

Fremont-Winema grazing (new case)

The complaint filed by Concerned Friends of the Winema and four other groups marks the fourth case in about a decade alleging violations of federal statutes in the Antelope allotment. This lawsuit accuses the U.S. Forest Service of unlawfully approving a 10-year grazing permit for the allotment despite “irreparable harm” to the threatened Oregon spotted frog and wetland plants and mollusks.  An injunction was dissolved earlier this year in a previous lawsuit (discussed here).

 

Hammond brothers grazing permit (new case)

Conservation groups filed suit challenging former Interior secretary Ryan Zinke’s order to renew grazing permits for Oregon ranchers Dwight and Steven Hammond after BLM had cancelled them in 2014 when the agency determined they didn’t qualify for a renewal based on a lack of “satisfactory record of performance” (which purportedly precipitated the standoff at the Malheur National Wildlife Refuge with the Bundy Gang). The lawsuit says that Zinke misinterpreted the effect of the presidential pardon of the Hammonds for setting a series of fires on federal lands without authorization and interfering with firefighters, and that there are no legal grounds for renewing the permit without a public environmental review.

 

White River logging project (new case)

Twenty-one residents of the Upper Fryingpan Valley are asking the Colorado federal district court to stop the Upper Fryingpan Vegetation Management Project on the White River National Forest. The complaint challenges the failure to prepare an environmental impact statement to address Canada lynx habitat, increased carbon emissions (from biomass used in energy production) and impacts to tourism and recreation.

 

Trail on a conservation easement (new case)

The Sawtooth National Forest holds a conservation easement across a private ranch and has proposed a 4.4-mile trail across 1.5 miles of the easement for pedestrians, cyclists, horseback riders and snowmobilers between the resort town of Stanley and Redfish Lake. The owner of the ranch has filed a lawsuit claiming “numerous flaws and illegalities,” including failing to do a study on the environmental impacts of the trail.

 

Geothermal leases (new case)

Pit River Tribe v. Bureau of Land Management

The Pit River Tribe of northern California has filed suit to force the cancellation of a 1982 contract to explore geothermal energy on 2,560 acres of national forest lands where the Modoc, Klamath, and Shasta-Trinity National Forests meet. The Tribe alleges that Calpine Corporation failed to meet lease renewal requirements by making “diligent efforts” to produce geothermal power as required by the Geothermal Steam Act.

 

Grizzly bear recovery (Notice of Intent to Sue)

The Center for Biological Diversity has notified the U. S. Fish and Wildlife Service that it will sue them over its plans for recovery of grizzly bears. Specifically, they allege failure to prepare a new recovery plan that adequately addresses the need for recovery of the species in additional areas, which the Service recognized the need for in its 2011 status review of the species. The additional areas where recovery should be considered include “historic habitat in Colorado, New Mexico, Arizona, Utah, California, Nevada, Oregon, and southern Washington (mountain ranges in the western U.S.)” (likely primarily on national forest lands).  Federal legislation has also been introduced to eliminate hunting of grizzly bears.

 

Other recent litigation news discussed in other threads:

Flathead timber sale (new decision)

Tongass timber plans (new case)

Chainsaws in wilderness (new case)

 

Ninth Circuit bails out Flathead timber project

by

Beaver Creek Project Area – Forest Service, USDA

The Beaver Creek Landscape Restoration Project on the Flathead National Forest was presented here when the district court upheld the decision (Friends of the Wild Swan v. Kehr).  The Ninth Circuit affirmed the district court on May 10 on three claims that the project was inconsistent with the forest plan.  Two of the claims involved road density requirements for grizzly bears where the court found the project would “result in a net gain towards” objectives for one subunit and that roads would be properly reclaimed in another.

Here is the court’s holding on the third claim (emphasis added):

Finally, appellants argue that the Forest Service violated NFMA and NEPA by failing to demonstrate compliance with the Forest Plan’s road density standards for elk habitat in the Beaver Creek Project area. While this argument has significant force, we ultimately conclude that the Forest Service demonstrated compliance with the Forest Plan. The Forest Plan contains a standard that requires “[a]reas with `moist sites'” to be managed “with open road densities that average 1 mile or less per square mile” during the elk use period. Moist sites are defined as sites “found at the heads of drainages, bordering streams or marshy meadows, or occupying moist swales or benches.” The Forest Service admits that the Project’s Environmental Assessment (“EA”) did not expressly provide a specific determination about road density in areas near elk moist sites. Indeed, the Forest Service did not identify specific locations of elk moist sites. Ultimately, we conclude that the Project satisfies the Forest Plan based on the fact that a large portion of the Beaver Creek subunit has an open road density of less than one mile per square mile and the Forest Service’s explanation in the EA that “moist sites occur primarily . . . in roadless and wilderness areas[.]” While the Forest Service could have done a better job demonstrating its compliance with the elk habitat road density standards by mapping moist sites and showing that open road densities near those moist sites will meet the Forest Plan’s standard, we nevertheless conclude that the Forest Service did just enough to comply with the Forest Plan, NFMA, and NEPA.

The lesson here is “don’t try this at home, folks.”  This particular circuit panel (1 Clinton, 1 Bush and 1 Obama via Sarah Palin, if you wondered) went out of its way to construct a rationale for compliance which basically said there was a low probability of noncompliance, or the amount of noncompliance would be small.  NFMA  does not say that projects must be “probably or mostly consistent” with the forest plan.  If the forest plan says certain kinds of areas must meet certain requirements (and the Forest Service wants a successful project), the project documentation must do what the Ninth Circuit said here:  identify where those areas are and show how those requirements will be met in those locations.  (And imagine doing that if you don’t know where the locations are.)

A big timber project gets a big lawsuit

by

(Clear-cutting in the Tongass Forest, Alaska | by musicwood)

 

Over the years, the Forest Service has dreamed of being able to do “big gulp” projects, or in contemporary terms, “landscape scale” projects. These essentially amount to doing one EIS for a large area and a long time period before the actual locations and treatments have been determined. There are many of these in progress now across the country, and the approach is being tested (again) in court in Alaska on the Tongass National Forest. This Earthjustice news release includes a link to the complaint (filed May 7), which includes the following:

The Prince of Wales Landscape Level Analysis Project (the Project) in the Tongass National Forest includes extensive old-growth and second-growth logging. The project area is roughly 2.3 million acres. The project area contains about 1.8 million acres of national forest land. The Project authorizes logging of up to 656 million board feet (mmbf) of timber. The U.S. Forest Service (Forest Service) estimates that this logging would occur on over 42,000 acres. The Forest Service estimates about 164 miles of roads associated with the logging would be constructed as part of the Project. The Record of Decision authorizes implementation of the Project to take place over a span of fifteen years.

The Forest Service has authorized this Project using an approach that has been soundly rejected by the courts. The agency authorized the Project before identifying specific locations for logging or road construction. As a result, the FEIS does not adequately describe the direct, indirect, or cumulative impacts of the Project on the human environment or on subsistence uses.

In the 1980’s, the Forest Service lost at least two court decisions for failure to provide adequate site-specific information and analysis in the environmental impact statements (EISs) for Tongass timber sales. City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985); City of Tenakee Springs v. Courtright, No. J86-024-CIV, 1987 WL 90272 (D. Alaska June 26, 1987). In subsequent Tongass timber sale EISs, the Forest Service began including comprehensive, detailed quantitative and qualitative descriptions of the logging and road access plans for each harvest unit proposed for sale. When it did so, the courts upheld the adequacy of the site-specific information. Stein v. Barton, 740 F. Supp. 743, 748-49 (D. Alaska 1990).

The FEIS’s Response to Comments states that “it is not possible to determine all of the direct, indirect, or cumulative impacts to wildlife habitat or connectivity that could result from this project before implementation.” Implementation of a particular part of the project has begun, apparently with no project-specific NEPA planned to determine those effects. Plaintiffs necessarily are challenging the entire project decision for violation of NEPA (and ANILCA) procedures.

There is a related NFMA issue that results from the Tongass forest plan imposing data requirements on projects that are hard to meet at this large scale, making the project inconsistent with the forest plan.  While this involves specific language in the Tongass plan, all forest plans explicitly or implicitly require certain analysis prior to projects.  The bigger the area, the harder that is to do.  And the trend of recent plan revision documents is to put off decisions about things like ecological integrity until project planning.  If successful, this could create an imposing analytical burden for large-scale projects like this one.

They are still going to have to do a site-specific NEPA analysis somewhere. The end result of all this may be that the Forest Service will create another level of planning and NEPA for “timber programs.” Just like the old days, except now added to the existing current plan and project level processes.

Your not-so-friendly neighborhood oil and gas industry

by

There sometimes seems to be an undercurrent here of the idea that environmental groups are rich bullies, and extractive industries are working for the common good, or at least are benign.   Here’s some evidence otherwise regarding the latter.

One of the industry tactics is SLAPPs, Strategic Lawsuits Against Public Participation, wherein corporations try to intimidate their opponents by filing truly frivolous lawsuits – that they can afford but the defendant can’t. Matthew posted about one involving a forest products company here.

But your friendly oil and gas industry seems to be a leader in this field. Meaning that when you pay for your heat and transportation you’re also paying for this; “Using lawsuits to shut people up has long been a part of the oil industry’s playbook…”  They lost a notable case recently when they sued youth groups (among others) after the groups won protections against neighborhood oil drilling in Los Angeles.

Many states have passed legislation to prevent this kind of intimidation of free speech, and a proposal is pending in Colorado, as described here, by an anti-drilling activist who has been SLAPPed:

I accept the urgency of climate change, and I am a proud advocate for our public lands. Many here agree with me, and together we have stood up to limit oil and gas development from expanding across the national forest and BLM lands.

The particulars of my case are unimportant here, although they can be easily researched. And I have already been found by a Colorado District Court to not have committed any actionable offense, and also awarded attorney fees for the “frivolous” and “vexatious” complaint made against me.

But all that is under appeal, and so I am still, over two years later, unduly burdened by and defending myself against this action.

Free speech is protected in our republic for good reason. Citizen input is grist for the mill of representational democracy. Dialogue and debate is a plus in pluralistic society. And this value is shared by Americans across the political spectrum. Free Speech allows people to participate robustly in government, speak truth to power, and to challenge the status quo.

Downgrading wildlife in land management plans

by
Siskiyou Mountains Salmander, Plethodon stormi, (c) 2005 William Flaxington

 

The Center for Biological Diversity has notified the U. S. Fish and Wildlife Service of its intent to sue for failure to respond to its petition to list the Siskiyou Mountains salamander as a threatened or endangered species. The species is found primarily on BLM lands, but also on the Rogue River-Siskiyou and Klamath National Forests.   Prior listings were avoided largely because of provisions in the Northwest Forest Plan to protect the species:

Conservation groups first petitioned for protection of the salamander under the Endangered Species Act in 2004. To prevent the species’ listing, the Bureau of Land Management (“BLM”) and U.S. Fish and Wildlife Service signed a conservation agreement in 2007, intended to protect habitat for 110 high-priority salamander sites on federal lands in the Applegate River watershed. In 2008 the Fish and Wildlife Service denied protection for the salamander based on this conservation agreement and old-growth forest protections provided by the Northwest Forest Plan.

Here’s what’s changed (from the 2018 listing petition):

The Western Oregon Plan Revision (WOPR) which replaces the Northwest Forest Plan, has the express purpose of substantially increasing logging on BLM lands with the range of the salamander and elsewhere (USBLM 2016, p. 20). The WOPR was originally proposed in 2008 and abandoned by the BLM in 2012 after years of litigation. In August 2016 the BLM issued a final Environmental Impact Statement implementing the WOPR (USBLM 2016).

The WOPR presents a substantial new threat to Siskiyou Mountains salamanders in Oregon because it will allow increased timber harvest in late-successional areas, decrease optimal salamander habitat, increase habitat fragmentation, eliminate requirements to conduct predisturbance surveys in salamander habitat, and allow logging of previously identified known, occupied salamander sites. The WOPR removes protections for salamander populations formerly included in species protection buffers on BLM lands. Although some of the reserves on BLM lands have been enlarged in the WOPR, timber harvest emphasis areas will often be subject to more intensive logging, and logging of known, occupied Siskiyou Mountains salamander sites is allowed.

This demonstrates again the value of including regulatory mechanisms as protective measures in forest plans: they can keep species from being listed under ESA. There is already a pending lawsuit against the new WOPR (now officially called the Resource Management Plans for Western Oregon), and the Forest Service should keep this in mind when it revises its forest plans that are now governed by the Northwest Forest Plan (especially the “survey and manage” requirement).

The trend seems to be in the other direction, however (see also greater sage grouse). And when a species is listed, regulatory mechanisms are needed in forest plans to contribute to their recovery and delisting. Yet the Forest Service is removing such mechanisms from forest plans for grizzly bears, lynx and bull trout (Flathead National Forest), Indiana bats (Daniel Boone National Forest: to “provide flexibility to implement forest management activities”), and black-footed ferrets (Thunder Basin National Grassland:  “greater emphasis on control and active management of prairie dog colonies to address significant concerns related to health, safety, and economic impacts on neighboring landowners”).   Since plant and animal diversity was one of the main reasons for NFMA it shouldn’t be a big surprise to see these kinds of retrograde actions ending up in court.

 

Early spring litigation summary

by

 

Rosemont Mine

(Update to Tohono Oodaham v. USFS and two other cases discussed here.)

A FOIA request unearthed EPA comments to the Army Corps of Engineers regarding effects of the Clean Water Act permit. And the mining company response, which is partly to demand a “statistical analysis” of impacts before calling them “significant.”

Mountain yellow-legged frogs, Sierra Nevada yellow-legged frogs, and Yosemite toads

(D. C. District Court decision in California Cattlemen’s Association v. U. S. Fish and Wildlife Service.)

Farming and ranching groups were not able to establish standing to sue under ESA by claiming that critical habitat designation led the Stanislaus National Forest to reduce permitted grazing, partly because that occurred before the critical habitat decision. The Regulatory Flexibility Act also did not apply.  Additional information here.

Greater sage grouse

(New lawsuit, Western Watersheds v. Bernhardt, in the District of Idaho.)

Plaintiffs who were already litigating allegedly inadequate protections for sage grouse adopted in BLM land management plans in 2015 (discussed here as Western Watersheds v. Zinke) are now suing the BLM for weakening them. The Forest Service adopted similar measures but has not yet changed them.  Additional information here.

Cascade-Siskiyou National Monument

(District of Oregon court decision in Murphy Company v. Trump)

The court found that the Oregon and California Lands Act, which applied to lands included in an expansion of the national monument, did not conflict with the Antiquities Act and did not prohibit inclusion of O & C ands in the monument.

Badger-Two Medicine

(Update on two lease cancellation cases)

The Department of Interior is withdrawing its appeal of a district court decision favoring leaseholders in one of two cases involving cancellation of oil and gas drilling leases on the Helena-Lewis and Clark National Forest adjacent to Glacier National Park and the Blackfeet Indian Reservation.   Environmental and tribal intervenors are maintaining their appeal, and the second appeal by all parties remains pending.

Colorado oil and gas

(District of Colorado decision in Citizens for a Healthy Community v. U. S. Bureau of Land Management)

The BLM and Forest Service illegally approved two adjacent natural gas drilling plans in western Colorado, because they did not adequately analyze wildlife and climate impacts.

Mt. St. Helens

(New lawsuit.)

The Cascade Forest Conservancy filed a lawsuit against the Forest Service and BLM over the agencies’ decision to allow exploratory drilling near the Mount St. Helens National Volcanic Monument in the Gifford Pinchot National Forest on lands acquired using the Land and Water Conservation Fund.

Court fees and costs

The Montana District Court awarded fees based on Endangered Specie Act’s fee shifting provision to two attorneys who litigated Native Ecosystems Council v. Krueger, (see discussion of Beaverhead-Deerlodge forest plan). The award was due because plaintiffs were the “prevailing party” on a claim involving Canada lynx:   “By obtaining an enforceable judgment against the Forest Service that preserved the Court’s 2012 injunction pending consultation under the ESA, Plaintiffs obtained sufficient success for an award to be appropriate for the legal work in its entirety.” (These are the attorneys who frequently represent plaintiffs against the Forest Service in Montana, and you might find the court’s discussion of the value of their services to be interesting.)

The Oregon District Court awarded costs “other than attorney’s fees” to the government and intervenors as the “prevailing parties” in accordance federal court rules in BARK v. Northrop.   They were reimbursed for costs associated with preparing the records needed for the litigation. Courts can deny such costs, but this court was not convinced by these plaintiffs to do so.

Bagley Fire project

(Eastern District of California court decision in Conservation Congress v. U. S. Forest Service)

The court upheld the Bagley Hazard Tree Abatement Project on the Shasta-Trinity National Forest. It involves felling and removal of hazard trees along roads in the area burned by the 2012 Bagley Fire. The court held:

  • The EA adequately adequately addressed cumulative effects because it stated, “[a]dditional impacts to the [NSO] and Sensitive species . . . could occur from the disturbance generated during implementation overlapping in space and time with private actions (highlighted to point out that a precedent cited by the court had held, [“g]eneral statements about `possible’ effects and `some risk’ do not constitute a `hard look’”).
  • The EA properly discounted effects on inventoried roadless areas because it characterized them as “substantially roaded” and “having minor roading,” as well as having very small proportions of the areas affected. (This is an example of the difference between IRAs and areas with roadless characteristics, discussed here.)
  • Effects on northern spotted owls in Late Successional Reserves and critical habitat were not significant because the BA states that there would be adequate numbers of snags remaining in treated areas, and, “the [Project] impacts would not affect the function of the habitat.”
  • The Forest was not required to consider an alternative that avoided IRAs and owl habitat because that would have excluded almost all of the project area, similar to no action. While not explicitly identified as an alternative, the EA also considered reducing the distance from roads to be included, which would have reduced the effects on these areas.
  • The Fish and Wildlife Service properly considered the spotted owl recovery plan as one of several pieces of information constituting best available science for its concurrence that there would be no adverse effects.

Litigation and Mediation: Exploring the Gendering of Touchy-Feely Options

by

I ran across an interesting paper here on the gendered aspect of mediation compared to litigation. I think that it gets at some of the vibes I received when I was working for the Forest Service in litigation. I also think it’s germane to the Forest Service in that cooperators would like it if FS individuals had better “people skills.” In some cases, in the past at least, working and leading NEPA efforts have not been as highly valued by the FS as other kinds of work. Could some degree of gendering be one reason? I think it’s worthy of discussion. Of course, it is not about that men can’t be as good as women at any of these things.. it’s just that there might be underlying and unconscious thoughts that might make a person think “hey, she’s good at leading people on NEPA efforts, but that doesn’t translate to becoming a line officer because…” Or if NEPA and collaboration are unconsciously less valued, then men who do those jobs are also undervalued.

The authors make it easy to read this piece even if you don’t keep up with the field of gender studies. The lead author, Dr. Jennifer Schultz, is a law school professor at University of Manitoba and the second author Jocelyn Turnbull, is a lawyer in private practice.

Jennifer Coates examined gender-differentiated language and the role it plays in the continued marginalization of women in the professions. Her study found that men are socialized to be more competitive and to use competitive discourse throughout discussion, whereas women are socialized to use cooperative discourse.  Men in the study were more individualistic, while women often define themselves and understand their world with reference to their relationships. Mediation mirrors this genderization of goals by focusing on cooperation, consensus, and the parties’ relationship. Litigation, on the other hand, takes a masculine approach through competitive discourse and individualistic understandings of relationships. This is because the goal of litigation is best described as winning.

David Berg, an American trial lawyer, recalls the chief justice at his call to the bar telling the new lawyers, “You worry about winning. Let us worry about justice.”  Of course, he acknowledges that winning also “includes great settlements, especially in an age of alternative dispute resolution. But you can’t get great settlements without the credible threat that you will go to trial.”The goal of litigators is to use threats and intimidation to win their cases at the expense of their opponents. This winner-takes-all approach, which pits one party against the other, is conventionally masculine.

And..

In order to foster good communication in mediation, adroit facilitation is essential. Facilitation skills, generally known or understood as “soft skills”, include good communication skills, emotional intelligence, and interpersonal adeptness, and are explicitly gendered female, as is obvious by the reference to “soft”. It is often assumed that women more naturally possess these soft skills, and therefore it is simply taken for granted that these skills are traits of women, and not truly mediation skills. Soft skills – communication to assist and understand others – are highly feminized, focusing on listening, caring, dealing with emotions, and thinking creatively, all in the context of a privately facilitated process, and can be contrasted with the advocacy skills required for litigation.

Successful litigators realize that “much in the way of preparation, imagination, ingenuity, and oratorical skill is required to mount the most persuasive presentation” before the court in an effort to win their cases. Litigation skills focus on the individual litigator and his or her ability to manipulate, coax, and persuade a particular view point, in a public forum, to benefit one party at the expense of the other. Litigation skills are generally assumed to come more easily to men, whereas the “soft skills” of mediation come more easily to women. As a result, mediation becomes gendered female to allow for the appropriate worker pool to be established. When those who do the work are “naturally” suited to work in
that area, the work becomes devalued due to the lack of knowledge and training that is thought to be required for those working to accomplish what comes “naturally”. These differences contribute to the gendering of both processes.

Of course, the most important avenue to pursue is the much more complicated process of revaluing gender. The devaluation of mediation would be rectified if as a society, we overcome our prejudice against all female processes. If we valued female mediation as much as male litigation, we would not need to write this article. Revaluing gender is a crucially important, long-term goal that cannot begin without better education. Unless and until mediative, problem solving approaches become the focus of legal education, mediation will continue to be devalued and viewed as a secondary process to litigation by law students and society alike. Most importantly, it will mean that many who might benefit from the wonderful process of mediation will never be offered, or will not embrace, the opportunity.

February-March litigation and such

by

For those who have been missing this (click links for more) …

Atlantic Coast Pipeline

Update: The energy companies wanting to build the Atlantic Coast Pipeline across the George Washington and Monongahela National Forests are appealing a reversal of that decision to the U. S. Supreme Court. The 4th Circuit Court of appeals held that the Forest Service improperly amended their forest plans to allow it (discussed here).

Rock Creek Mine (no link)

New lawsuit: Ksanka Kupaqa XaʾⱠȼin v. U. S. Fish and Wildlife Service. In the latest case in long-running litigation against the Rock Creek copper and silver mine on the Kootenai National Forest, Plaintiffs challenge failure to reinitiate ESA consultation regarding the mine’s impacts on grizzly bears. Plaintiffs also challenge the legality of FWS’s 2017 bull trout biological opinion and the Forest Service’s authorization for the first phase of the project in reliance on the challenged FWS decisions.

Beaverhead-Deerlodge forest plan

Update: The Beaverhead-Deerlodge National Forest has decided not to issue any new decisions on timber or vegetation projects until it has completed consultation on the effects of its 2009 revised forest plan on Canada lynx, a species that was found on the forest after previous consultation on the revised plan occurred. This is the result of the NEC v. Krueger lawsuit on the Fleecer Mountains Project discussed here and here.

Flathead Glacier Loon project

Update: The Ninth Circuit Court of Appeals has enjoined the Glacier Loon Project on the Flathead National Forest pending resolution of an appeal from a district court that upheld the Project. Plaintiffs say the U.S. Fish and Wildlife Service didn’t properly analyze the project’s potential harm to threatened grizzly bears and Canada lynx and wolverines that are proposed for listing, including cumulative effects of the adjacent Beaver Creek project (also being litigated).

Elkhorn Mountains BLM

New decision: The Montana Federal District Court has enjoined a logging and prescribed burning project on BLM land in the Elkhorn Mountains, which are jointly managed with the Helena-Lewis and Clark National Forest. A supplemental environmental analysis is being required to consider cumulative effects.

Elkhorn Mountains Helena-Lewis and Clark National Forest

Also in the Elkhorn Mountains (and who knows, maybe a future lawsuit), the Strawberry Butte Front Country Trail Management Project calls for adding 39 miles of hiking and biking trails to the U.S. Forest Service trail system within a uniquely designated wildlife management unit. The system would designate 28 miles of trail that currently exists but is not recognized by the Forest Service, as well as 11 miles of new trail construction. One complaint during the public comment period: “inviting bike enthusiast from all over the country to the north Elkhorns.”

Kaibab travel plan

New decision: The Ninth Circuit Court of Appeals has upheld a travel plan decision and environmental analysis by the Kaibab National Forest to allow hunters to drive up to a mile off certain routes to pick up big game. According to the State of Arizona the decision was needed to help cull oversized herds of bison that roam areas of the forest near Grand Canyon National Park. Plaintiffs cited potential danger to the habitat of Mexican spotted owls and the black-footed ferret, both endangered species.

Visitor fees

New decision: The Colorado U.S. District Court upheld the Aspen-Sopris Ranger District’s right to charge $10 per vehicle to visit the Maroon Bells Scenic Area. The judge ruled that it didn’t matter if a person doesn’t use the services offered. The plaintiff’s attorney filed a notice of appeal in the 10th Circuit Court; the Recreation Enhancement Act forbids the Forest Service from charging a fee “solely for parking” or for general access to public lands, she said in an email.

Wolf Creek Ski Area inholding

Update: Rio Grande National Forest Supervisor Dan Dallas on Wednesday announced a new decision to provide reasonable access to a 288-acre private property parcel adjacent to Wolf Creek Ski Area. The property owner plans to construct a year-round resort known as the Village at Wolf Creek. Previous litigation was discussed here. Coincidentally, a U.S. magistrate judge has ordered the Forest Service to release documents asked for in the FOIA request that sought information about political intervention in the Wolf Creek decision. The law required the release of the documents by last August.

Nestle bottled water

Update: In another FOIA case, the Forest Service was able to withhold records pertaining to Nestle’s special use permit and water diversion and transmission facilities at Strawberry Creek in the San Bernardino National Forest pursuant to the “trade secrets” exemption.

Bi-state sage-grouse

Update:   Four environmental groups have intervened on the side of the Forest Service to defend its decision in the Humboldt-Toiyabe National Forest Plan to protect the listed population of bi-state sage-grouse from motorized users. “The Forest Service did the right thing by strengthening sage-grouse protections under the Humboldt-Toiyabe plan,” said Taylor Jones, endangered species advocate for WildEarth Guardians.

Greater sage-grouse

Future litigation: As for the greater sage-grouse, which was not listed under ESA because the Forest Service and BLM amended their land use plans to include a species conservation strategy, the BLM has changed their plans again to remove key protective measures that would have avoided development in the areas most important to sage-grouse. The Forest Service is likely to follow (although their website is still touting the benefits of their existing conservation measures).

Humboldt-Toiyabe oil and gas leases

No action alternative selected: Also on the Humboldt-Toiyabe National Forest, the Forest Service probably avoided another lawsuit by deciding to not allow oil and gas leases on almost 53,000 acres of the Ruby Mountains in Nevada. The Forest Supervisor said his decision was based on overwhelming opposition to the idea and “unfavorable geologic conditions” that suggest there is little to no oil and gas potential in the area.   On that latter point, maybe he could have figured it out a little earlier and avoided a little work? And now they have to allow an objection?

Blue Mountains forest plan revisions

No action alternative selected: The Forest Service has decided to not revise the forest plans for the Blue Mountains of eastern Oregon and Washington, apparently in response to local complaints that they could not accept any of the action alternatives because of the social and economic impacts. (This was prophesied here.)  “For now, the forests will be managed under a previous plan, with a few minor changes.” There is no mention of an objection process for this decision (including the “minor changes”).

Monongahela hydroelectric project

No action proposed: Unlike their decision on the Atlantic Coast Pipeline, the Monongahela National Forest successfully used its forest plan to block a proposal to build a water-powered electrical facility. The Forest Supervisor wrote that the project would adversely affect parts of the Forest, including species and vegetation. “In addition to denying the SUP proposal because the proposed licensing studies are inconsistent with the Forest Plan, the project itself would be antithetical to the Forest Plan,” he wrote. This rejection is not subject to administrative appeal.  As with the Pipeline, the politicians are now being asked to help.

Forest Service prosecutions:

Helena-Lewis and Clark mining

Umatilla mining

Sequoia marijuana grow

Tahoe archaeological sites

January litigation

by

On to 2019 …

Ochoco National Forest OHV trail system

The Oregon district court ruled the U.S. Forest Service failed to satisfy its legal obligation to study wildlife impacts.  This case was discussed here.

Humboldt-Toiyabe National Forest motorcycle event

Several organizations are challenging decisions that allegedly limit the routes for a motorcycle trail riding event on public land.  They challenge the Greater Sage-grouse Bi-State Distinct Population Segment Forest Plan Amendment  and special recreation permits issued to them.

Oregon state forest logging practices

In 2018, five environmental and fisheries groups filed a legal complaint against the Oregon Department of Forestry alleging that logging and associated activities in the Tillamook and Clatsop state forests are harming federally threatened coho salmon by discharging sediment into streams.  The federal district court will allow the case to proceed as long as the allegations are made more specific.

Bitterroot National Forest public access

A lawsuit by landowners subject to a Forest Service easement claims the agency has encouraged public use, which has become “excessive and disruptive” to the landowners.

Rio Grande National Forest bighorn sheep

The new lawsuit challenges a decision to allow domestic sheep to graze because the risk is high that the domestic sheep and bighorns will cross paths, which could expose the bighorns to life-threatening diseases.

Superior National Forest land exchange

A federal judge is allowing to proceed lawsuits challenging a land exchange between the U.S. Forest Service and PolyMet Mining after a bill that would curb such legal challenges to the swap failed in Congress’ last session.

 

December litigation

by

Since it looks like the Forest Service “Litigation Weekly” may have been a victim of the government shutdown, here’s what you may have missed.

Coconino National Forest ski area

The Arizona Supreme Court has squashed what could be the last legal maneuver by the Hopi Tribe to block the use of treated effluent to make snow on the San Francisco Peaks.  (The Forest Service was not a party.)

Boise National Forest salvage logging projects

The Ninth Circuit upheld the North and South Pioneer salvage logging projects against NEPA and ESA claims.  This lawsuit was previously addressed here.

Helena – Lewis and Clark National Forest thinning project

The District Court upheld a thinning and burning project in the Elkhorn Mountains Wildlife Management Area.

Flathead National Forest timber project

The District Court dissolved the injunction against the Glacier Loon project after the Forest supplemented its NEPA analysis.

Francis Marion National Forest annexation

The South Carolina Supreme Court ruled that two Awendaw residents and the Coastal Conservation League may challenge a 2009 town annexation that cut through the Francis Marion Forest to reach a 360-acre privately owned tract.  What made the Nebo annexation so controversial was the town’s approach to establishing “contiguity.” In South Carolina, municipalities may annex properties only if they’re contiguous, or touching, their current limits.  Awendaw annexed Nebo after also annexing a 10-foot-wide strip through the Francis Marion forest, but the U.S. Forest Service did not sign a petition allowing it.  (The Forest Service was not a party and has been strangely silent.)

Kisatchie National Forest hunting ban

A federal judge has upheld a 2013 dog deer hunting ban challenged by local hunters.