Litigation

Disagreement About Fuel Treatment: Exhibit A?

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Still More Agreement About Fuel Treatment: Conservation Colorado and former Secretary Zinke

Sharon said:

That’s why I’m thinking that finding some projects that entail:
1. FS clearcutting in California
2. Fuel treatments in backcountry
3. Fuel treatments taking out big fire-resilient (living?) trees

Would help us understand exactly what the issues are.

I think this project might be a good place to start:

Destructive wildfires along the California-Oregon border in recent years has the U.S. Forest Service pursuing projects to clear forests of burnt debris and trees that could feed future fires. One of those projects included selling the rights to log old-growth trees in Northern California, until a federal judge halted the timber sale on Friday.

Environmental groups asked a federal court to halt the Seaid-Horse timber sale in the Klamath National Forest. They say it would violate the Northwest Forest Plan by clear-cutting protected old-growth trees and harming Coho salmon.

Its purpose is: “Reduce safety hazards along roads & in concentrated stands, reduce fuels adjacent to private property, & to reduce the risk of future large-scale high severity fire losses of late successional habitat.”

So it’s got California, clearcutting, fuel treatment and big trees.  It’s also got wildlife issues, which is the other point of disagreement I suggested.  Maybe not back-country, but certainly not front-country – mid-country? 

It even comes with a spokesperson who is probably familiar with our questions:

Western Environmental Law Group attorney Susan Jane Brown says old-growth trees in Northern California provide a habitat for threatened species such as the northern spotted owl. They’re also the most resilient in enduring wildfires.

“We could agree that cutting small trees is a good thing to reduce fire risk, but when it comes to cutting very large, very old trees, that’s an entirely different matter,” Brown said.

 

 

Another gas pipeline down the tubes?

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Since the NFS litigation reporter is apparently furloughed, here is something you might not want to miss …

In July the 4th Circuit Court of Appeals ruled against the Jefferson National Forest for improperly amending its forest plan to create an exception to forest plan standards to allow the construction of the Mountain Valley Pipeline (reported here and discussed here).   On December 13, the same court ruled against the George Washington and Monongahela National Forests for improperly amending their plans to create exceptions to 13 forest plan standards to allow the construction of the Atlantic Coast Pipeline.  Cowpasture River Preservation Association v. Forest Service again involved interpreting a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments. It also again involved circumstances where the Forest Service reversed itself regarding its concerns about the effects of a pipeline without justification.

Forest plan amendments to existing plans (that were not prepared pursuant to the 2012 Planning Rule) are subject to the substantive requirements of the 2012 Planning Rule when those requirements are directly related to the amendment. This may occur when the requirements are related to either the purpose or effects of the amendment(in a “substantial” way). The Forest Service found that relevant effects on soil, water, riparian, threatened and endangered species, and recreational and visual resources were mitigated, but ignored the purpose of the amendment, which was (as stated in the NEPA documents) to reduce the protection of those resources so the Pipeline could proceed. As stated by the court, “To say that a 2012 Planning Rule requirement protecting water resources (as one example) is not “directly related” to a Forest Plan amendment specifically relaxing protection for water resources is nonsense.”

The court rejected the argument that it is the purpose of the project that should be considered rather than the purpose of the amendment, and rejected the idea that these requirements do not apply to amendments limited to an individual project. It found, “If the Forest Service could circumvent the requirements of the 2012 Planning Rule simply by passing project-specific amendments on an ad hoc basis, both the substantive requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency requirement would be meaningless.” The court also suggested that there would be “substantial” adverse effects of this project that should lead to a conclusion that the amendments are “directly related,” and the 2012 Planning Rule requirements would apply. The court held: “The lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 Planning Rule — its own regulation intended to protect national forests — in order to accommodate the ACP project through national forest land on Atlantic’s timeline are striking, and inexplicable.”

The court also found a violation of forest plan goals, “because it failed to demonstrate that the ACP project’s needs could not be reasonably met on non-national forest lands.”   The FEIS did not address this question, but instead found that no national forest avoidance alternative “confers a significant environmental advantage over the proposed route.”   The court held that consistency with plan goals is required by the 2012 Planning Rule (even though the goals were not written when that Rule was in effect). The Forest had included the goals (which are also found in the Forest Service Manual) in its scoping material for the Pipeline project. The court held that the Forest Service “is not free to disregard the goal entirely — as the Forest Service apparently wishes to do here.”

The court also found violations of NEPA. The EIS was prepared by the Federal Energy Regulatory Commission (FERC), but the Forest Service had duty to independently review it. The Forest Service never explained why it was satisfied with the lack of off-forest alternative routes after it had said they were required. The Forest Service also failed to explain why it lost interest in landslide risks, erosion control and aquatic species that it had previously expressed concerns about. The court found, “the record before us readily leads to the conclusion that the Forest Service’s approval of the project “was a preordained decision” and the Forest Service “‘reverse engineered’ the [ROD] to justify this outcome.”

The court remanded the Forest Service decisions to grant the right of way to address these legal shortcomings. However, the court also found a potentially bigger problem: the Forest Service does not have the authority to grant a right of way across the Appalachian National Scenic Trail (necessary for the routes considered) because it is administered by the National Park Service, and the Park Service does not have authority to grant such a right of way at all. Thus this part of the Trump Administration’s “energy dominance” program could now be in the hands of a divided Congress.

Here is the line from the court that got the most media attention (includes a link to the opinion):

“We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”

Supreme Court may reinterpret tribal treaty rights on national forests

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Here’s a pending Supreme Court case, Herrera v. Wyoming, that hasn’t shown up in the Forest Service litigation summaries.  The federal government is defending the right of a Native American to hunt on the Bighorn National Forest without complying with state hunting laws.  If they lose, tribal treaty rights, as currently understood, could be severely diminished.  The hearing is scheduled for January 8.

When the native tribes ceded their lands to the federal government, the language in the treaties typically preserved their rights to various uses and activities on indigenous lands that were not included within the new reservation, for which the treaties used the terms “open and unclaimed” or “unoccupied” lands.  Much of that land is now part of national forests.  Here is how the Forest Service interprets the language referring to those lands:

The term applied to public domain lands held by the United States that had not been fenced or claimed through a land settlement act. Today, “open and unclaimed lands” applies to lands remaining in the public domain (for the purposes of hunting, gathering foods, and grazing livestock or trapping). The courts have ruled that National Forest System lands reserved from the public domain are open, unclaimed, or unoccupied land, and as such the term applies to
reserved treaty rights on National Forest System land.

In the case currently pending before the Supreme Court the State of Wyoming has argued that this is not true (they also argue that the lands became “occupied” when Wyoming became a state):

The parties further dispute whether the Bighorn National Forest should be considered “unoccupied lands” for treaty purposes. Herrera and the federal government emphasize that the proclamation of a national forest meant the land could no longer be settled, which they argue was the historical standard for occupation. Yet Wyoming argues that physical presence should not be the test, especially given the West’s expansiveness. According to Wyoming, the federal government’s proprietary power over its own lands, including its decisions to exclude hunters, demonstrates that the land was effectively occupied when it became a national forest.

Courts have held that the federal government has a substantive duty to protect ‘to the fullest extent possible’ the tribal treaty rights, and the resources on which those rights depend.   If Wyoming were to win their argument, treaty rights to accustomed tribal uses of national forests would no longer exist.  Because the federal government is defending the tribal interests in this case, one might think that the Forest Service would continue to protect these rights even without the treaty obligation.  However, in the past they have disagreed with tribes on issues such as campground fees and desired salmon populations.

Trapping lawsuits

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Neither of these is going to show up in the NFS litigation summaries because the Forest Service is not a party to the litigation (yet), but the trapping at issue occurs on national forest lands, and the Forest Service does have the authority to regulate trapping that occurs on national forest lands.

Two environmental groups have sued the Oregon Department of Fish and Wildlife for failing to ban the trapping of Humboldt martens in Oregon’s coastal forests.  Humboldt martens were proposed for listing as a threatened species in October.  Threats include “loss of habitat, wildfire, changing climate, trapping, vehicle mortality, vegetation management, exposure to toxicants, threats from predators and effects associated with small and isolated populations.”  According to the Center for Biological Diversity news release, “Following the largest mammal survey ever conducted in the state, researchers from Oregon State University and the U.S. Forest Service recommended eliminating trapping of coastal martens as a first step in rebuilding the state’s imperiled populations.”  Good for the Forest Service.  Their involvement may have something to do with the fact that their “vegetation management” could be curtailed if the species is listed.  Perhaps they will intervene in the lawsuit on the side of CBD et al?  Probably as likely as them invoking their own authority to regulate trapping as a use of national forest lands.  But that may be better than being added as a defendant.

The Environmental Protection Information Center has filed a notice of intent to sue the federal USDA Wildlife Services.  According to this article, they allege that the agency’s program for killing beavers harms endangered fish because beavers “benefit salmon and steelhead by building better habitat conditions, including creation of ponds used by salmon and increasing stream flow in summer months.”  They are asserting that the Wildlife Services must consult on the effects of this program with the National Marine Fisheries Service.  While the Forest Service is not mentioned, nor is the geographic scope, this certainly includes practices on national forest lands.  The Forest Service has a Memorandum of Understanding with Wildlife Services, addressing among other things “managing damage caused by indigenous, non-native and feral vertebrates on NFS lands,” in which the Forest Service is designated as the lead agency for NEPA compliance.  While the MOU acknowledges the need to comply with the Endangered Species Act, this responsibility is not designated.  It appears that the Forest Service at least shares any obligation to consult with Wildlife Services and could be named as a party.

 

NFS Litigation Weekly November 30, 2018

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Forest Service summaries:  Litigation Weekly Nov 30

The district court upheld the Moose Creek Vegetation Project on the Helena-Lewis and Clark National Forest with respect to Healthy Forest Restoration Act compliance.  (D. Mont.)

  • Greenpeace v. Stewart

The Ninth Circuit Court of Appeals reversed the district court and the Forest Service on four timber sales on the Tongass National Forest because of flawed analysis of deer habitat.  (9th Cir.)

  • Quiet title claims

(New cases – no links.)  Five plaintiffs in different cases seek to quiet title regarding rights to irrigation diversion structures on the Sawtooth National Forest.  (D. Idaho)

 

BLOGGER’S BONUS

(There was no link provided by the Forest Service above, but the article I linked includes a link to the court decision.)  This is a case that has been litigated for “over a decade.”  The 9th Circuit stated, “USFS has been given multiple opportunities to correct flaws in its project analysis and has ignored this court’s guidance.”  I wanted to emphasize the holding on species viability (these are rare deer).  The deer model was flawed because it “was too unreliable to be used in conjunction with the proxy on proxy approach of ensuring species viability.” The court cited the precedent of Lands Council v. Powell from 2005: “Crucial to [the proxy on proxy] approach . . . is that the methodology for identifying the habitat proxy be sound.”  Since the coarse filter approach sanctioned by the 2012 Planning Rule uses habitat as a proxy for species viability, this will place a premium on demonstrating that coarse filter vegetation plan components will provide the ecological conditions needed for at-risk species.  Typical forest plan revision documentation does not seem to take this requirement to demonstrate the soundness of their methodologies very seriously (despite the requirement in 36 CFR §219.9(b)(1) to make this determination).

This is the final step in resolving a case that was begun in 2009 and led to injunctions against several timber sales on the Kootenai National Forest.  The Montana district court held that the Forest had complied with the requirements of the injunction for the Miller West Fisher Project, and it was therefore dissolved.  Plaintiffs conceded all points except one involving the Endangered Species Act – the need to analyze incidental take for grizzly bears that may be harmed outside of their recovery zone.  The Forest relied on the analysis of incidental take done for a grizzly bear access amendment that is now included in its revised forest plan.  The court upheld a “tiered” consultation process, where analysis at the forest plan level is sufficient for projects unless “proposed actions would result in adverse effects to grizzly bears that were not fully analyzed in the first-tier biological opinion (emphasis by the court).  In its concurrence that the project is not likely to adversely affect grizzly bears, the Fish and Wildlife Service determined that, “the proposed action is not likely to adversely affect the threatened grizzly bear in ways other than described in the2011 consultation on the Access Amendment”(emphasis by the court), and that analysis did not need to be repeated.  (D. Mont.)

 

 

NFS Litigation Weekly November 16, 2018

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Forest Service summaries:  Litigation Weekly Nov 16

(New case.)  Environmental groups challenge the Rico-West Delores Roads and Trails Management Project on the San Juan National Forest regarding effects on elk.  (D. Colo.) (A lawsuit by motorized users was filed earlier and described here.)

(New case.)  Environmental groups challenge the Kilgore gold mining exploration project, allowing ten miles of new roads and 140 drill stations, and its environmental assessment on the Caribou-Targhee National Forest.  (D. Id.)

 

Blogger’s Bonus

The plaintiff is a grazing permittee seeking to enjoin the Forest Service from enforcing certain livestock grazing management standards against Plaintiffs’ grazing operations on a grazing allotment within the Beaverhead-Deerlodge National Forest.  The court looked only at the question of irreparable harm that would occur to Plaintiffs prior to resolving the case, found none and denied the injunction.

This was introduced as a new case here.  Regarding my comment about granting Plaintiffs’ relief, the Forest did reinstate grazing privileges, but the parties still disagree about the appropriate annual use levels incorporated into existing permits.

The Cove Fire Salvage and Restoration Project would remove fire-damaged trees on the Modoc National Forest, which is proceeding under an “Emergency Situation Determination.”  On October 30 the court denied a preliminary injunction motion involving compliance with the Sierra Nevada Forest Plan Amendment requirements for northern goshawks and riparian areas.  It held that the project was consistent with guidelines that permit salvage harvest after “stand replacing” events, and that require surveys as part of project planning, and it held that guidelines do not require remapping of goshawk habitat in the project area.  The court found the Plaintiff has “some likelihood of success” regarding effects on the Modoc sucker, a recently delisted fish species, and regarding the “hard look” required by NEPA.

However, the court was not impressed with Plaintiff’s arguments that it would be irreparably harmed by the project.  It distinguished the many precedent cases that had established a fairly low bar associated with environmental harm, including implying that such harm is only associated with “the logging of healthy mature trees.”  In balancing the equities and the public interest, the court placed significance on “hazardous roadside trees that pose a risk of falling within the next five years,” and the “interest in mitigating the intensity and severity of future fires, increasing ecosystem resilience.”

 

 

NFS Litigation Weekly November 9, 2018

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Forest Service summaries:  Litigation Weekly Nov 9

The Forest Service successfully prosecuted a trespass action against miners on the Beaverhead-Deerlodge National Forest who were conducting mining activities on an unpatented mining claim without an approved plan of operations.  (D. Mont.)

(Update.)  The Supreme Court denied a request to stay proceedings in the “youth climate change” case pending in the Oregon federal district court (removing an earlier temporary stay).

NFS Litigation Weekly October 26, 2018

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Forest Service summaries:  Litigation Weekly Oct 26

A preliminary injunction was denied for the Quartz Integrated Project on the Umpqua National Forest because the Forest adequately addressed new information about red tree voles.  (D. Or.)

The Supreme Court stayed further proceedings in the “kids’ climate change” case.

(New cases.)  Both cases challenge the decision to sell wild horses from the Modoc National Forest without complying with or formally changing a policy that prohibits commercial slaughter of the horses.

(New case.)  Plaintiffs claim that authorization of activities that contribute to climate change violate the U. S. Constitution.  (D. Or.)

(New case.)  This case involves that Seiad-Horse Risk Reduction Project on the Klamath National Forest involving hazard tree removal and post-fire salvage logging and compliance with the forest plan and NEPA.  (E.D. Cal.)

 

Blogger’s notes:

The Cascadia case was discussed here when it was filed.  The case involves the application of “survey and manage” requirements in the Northwest Forest Plan to red tree voles. Red tree vole nesting sites are protected from logging unless the land manager determines the site is “non-high priority” (“NHP”).  Plaintiffs objected to the NHP designations for the project area.  Additional surveys occurred after the objection process and the Forest subsequently released “amendments to the EA” to “designate” additional NHP sites.  There was no public opportunity to review or object to these sites.

I am not that familiar with the workings with the Northwest Forest Plan, but I see some problems here.  “Designation” of sites for long-term management, especially if they would be suitable for timber production, is a forest plan decision, so I think what is really required here is a plan amendment process that would allow full public participation in the designation of each site.  In addition, the criteria for designating NHP (presumably from the NWFP) seem to all apply at a large scale without considering the importance of the actual site being designated, so it is hard to see any rationale for the designation (and the court opinion doesn’t provide one).  The court then finds that “plaintiffs had multiple opportunities to comment on the FS proposal to designate red tree vole sites as NHP,” but none of those occurred for the post-objection additions.  The court regards all of this as “minor changes.”  While viewing this as a NEPA problem might allow the new information to be considered not significant enough to trigger a supplemental EA, minor changes in a forest plan nevertheless require an amendment process.  Maybe someone could explain how this is supposed to work.

The public also had no opportunity to review or comment on how the Forest viewed changes in the resource management plan for adjacent BLM lands.  The changes would result in logging in 8 of the 27 red vole sites originally protected by the BLM plan, but the Forest determined (and the court agreed) that this “did not alter the number or spatial distribution of likely extant sites or records, or the amount or proportion of suitable habitat in reserves, and did not compromise the ability of other standards and guidelines or elements of the NWFP to provide a reasonable assurance of species persistence at the watershed scale.”  That feels like it dodged the question, but I could buy the BLM assertion that these sites were actually a small part of the overall watershed.

Finally, in looking at the other factors relevant to granting an injunction, the court seems to discount the irreversible environmental damage because “that fact is true in any environmental case.”  And it seems to punish plaintiffs for participating in settlement negotiations instead of filing a motion for an injunction earlier.  The court does explicitly qualify its holdings as being “at this stage” (meaning for a preliminary injunction), and a fuller airing of the facts might sway the court in the plaintiffs’ favor, but meanwhile logging is ongoing.

Here’s another case that I don’t think has been included in a FS summary.

“San Juan Trail Riders, based in Durango, along with national groups Trails Preservation Alliance and Access Preservation Association, ask the court to set aside a record of decision by the Dolores Ranger District that closed 30 miles of trails to motorcycles and implemented restrictions on others within Rico-West Dolores recreation area.”

 

NFS Litigation Weekly October 19, 2018

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Forest Service summaries:  Litigation Weekly Oct 19

The court refused to dissolve the current injunction against the Fleecer Mountains Project on the Beaverhead-Deerlodge National Forest because the Forest did not comply with the court’s instructions to consult with the Fish and Wildlife Service on the effects of the forest plan on Canada lynx based on new information that lynx “may be present” forest-wide (not just in the project area).  (D. Mont.)

(Notice of intent to sue under ESA.)  The exploration project on the Caribou-Targhee National Forest was approved before the grizzly bear was relisted under ESA by a recent court decision, and compliance with ESA should therefore be required.

NFS Litigation Weekly October 12, 2018

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Forest Service summary:  Litigation Weekly Oct 12

The court upheld the North Fork Mill Creek A to Z Project on the Colville National Forest (E. D. Wa.)

 

Blogger’s note:

The 9th Circuit had previously refused to enjoin the project and that decision was explained here.  This is important because the district court held that most of the issues involving fisher and pine marten had been finally determined by the 9th Circuit.  Even though preliminary injunctions don’t normally do that, on this issue the facts had not changed and the arguments were the same.

On the other hand, whereas the 9th Circuit did not get much into the question of contracting out the NEPA process (apparently subcontracted as part of a stewardship contract), this district court did.  The issue was treated as a challenge to the bidding process, which non-bidders have a hard time doing.  I thought there would be a NEPA issue about awarding a timber sale contract before the NEPA process was completed (there can no commitment to actions that would have environmental impacts prior to completion of NEPA requirements).  Maybe someone could enlighten me about what “stewardship contracts” actually commit the parties to do.

Here is an article also summarizing the court decision.