Litigation

Sue and … keep suing

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Search this site for previous lively discussions of “sue and settle.”  Here is the latest attempt to stop it.  In September, the Interior Department extended EPA’s recent restrictions on litigation settlement agreements to the rest of the Department.

Here’s someone’s perception of the problem. Basically, there is rampant secret collusion between environmental groups and the government, which leads to substantive regulatory changes that “cost the economy billions of dollars and thousands of jobs, without Congressional approval.” Actually it is the laws passed by Congress that say the regulations must be produced that would have any impact, not the lawsuit forcing compliance with the law.

And here is another fact:

A legal analysis published by lawyer Ben Tyson in the Virginia Law Review, for example, looked at 79 settlements brokered between environmental groups and the Obama administration, and found that all but four of the agreements involved setting deadlines for compliance.

According to this article (which also provides an example of how this policy has worked in one case):

The Trump administration says the new rules are necessary to prevent government agencies from colluding with environmental groups to reach settlements that favor their interests. But critics say these rules only delay the implementation of federal laws designed to protect the environment, leaving ecosystems and wildlife vulnerable while agencies drag their feet.”

Though regulated industries and administration officials denounce lawsuit-happy environmental groups, the rhetoric surrounding sue and settle typically disregards the fact that agencies choose to settle because, as Bernhardt puts it in his order, “the Department is likely to lose.” According to a letter from 60 former federal attorneys criticizing the new EPA policy, “It is EPA’s failure to comply with legal requirements that is the problem, not the people who sue EPA.”

I’ve not seen evidence of “colluding with environmental groups.” Unless that includes DOJ evaluating the case and admitting it’s a loser. (Focusing on environmental groups also ignores the fact that settlements also benefit the Pacific Legal Foundation when it sues over ESA DE-listing requirements, and then there’s those regulations that a new administration would rather settle out of than defend.)

I’m a big fan of transparency, and I’m not sure what would justify not disclosing the terms of a settlement. As for public comments, I doubt if there would be a lot of interest in whether a legal deadline was missed or not.

However, the actual intent may be for this to “prolong the settlement process,” and thereby reduce the number of lawsuits that budget-limited plaintiffs can afford to bring.  But it could just as likely mean that plaintiffs would rather avoid the new process and spend their time in court, and a judge will have to decide more cases, which will almost always be against the government, and the government will have to pay even more money in legal fees (there are also new incentives to litigate the legal fees, which could lead to even more of them).

NFS Litigation Weekly September 28, 2018

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Forest Service summaries:  Litigation Weekly sept 28

The Santa Fe National Forest must reinitiate ESA consultation on the effects of its 2012 travel management decision on the subsequently listed Jemez Mountain salamander.  (D. N.M.)

The Olympic National Forest did not explain why it was not feasible for the Navy to use private land for electronic warfare training, as required for issuance of a special use permit by its forest plan (but further briefing will be allowed).  (W.D. Wa.)

A magistrate judge agreed that the Santa Fe National Forest could deny a request to put a new telecommunications facility on Tesuque Peak.  (D. N.M.)

(New case.)  Off-road vehicle plaintiffs challenge the West Delores Roads and Trails Travel Management Project on the San Juan National Forest.  (D. Colo.)

The U. S. Fish and Wildlife Service improperly delisted the threatened Greater Yellowstone Ecosystem population of grizzly bears.  (D. Mont.)

The Lewis and Clark National Forest took too long to cancel oil and gas leases in the Badger-Two Medicine “traditional cultural district” due to NEPA deficiencies.  (D. D.C.)

 

Blogger’s note on the FSEEE case:  One of the other issues was whether another forest plan requirement was met that “interests and needs of the general public shall be given priority over those of the applicant.”  The Forest Service was upheld on this point because the Navy’s operating procedures require that they relocate if a camper is occupying the mobile emitter truck site, and the public user wishes.  I’m imagining myself telling the Navy to get lost.

Blogger’s bonus:

The BLM appears to have violated FLPMA and when it issued new procedures for public participation in oil and gas leasing in areas identified as greater sage-grouse special management areas in land management plans (as amended by the Greater Sage-Grouse Plan Amendments), and a preliminary injunction against their use for future leases was granted.  (D. Idaho)

The U. S. Fish and Wildlife Service must reconsider its decision to not list the species, found in California and Oregon forests, under ESA.  (N.D. Cal.)

 

Hearing on EAJA “abuse”

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Montana, Rep. Greg Gianforte (mugshot from reporter assault case above) chaired a hearing Thursday in a U.S. House subcommittee seeking suggestions on ways to modify the Equal Access to Justice Act (EAJA).  At the Subcommittee on the Interior, Energy and Environment hearing, Gianforte called environmental groups “extremists” and accused them of stifling “responsible use of natural resources” and said “wealthy environmental organizations” were taking advantage of the law’s loopholes, amounting to an “abuse” of taxpayer dollars.

This article includes some helpful perspectives on the law.  Here’s a summary of testimony by a law professor:

Sara Colangelo, a visiting professor of law at Georgetown University Law Center, urged the congressman to seek more information from government agencies on EAJA cases. Better data tracking would provide the public a clearer picture of what is actually going on, she said.

“When we see the data in front of us, we’ll come up with better changes,” Colangelo said.

In fact, the 2012 GAO report noted then that data collection by agencies was either hard to find or nonexistent.

“As a result, there was no way to readily determine who made claims, the total amount each department paid or awarded in attorney fees, who received the payments, or the statutes under which the cases were brought,” the report said.

Colangelo also said she sees little evidence that environmental groups would consider EAJA payments when deciding whether to contest a project. In other words, the EAJA payments don’t invite litigation, she said.

Also,

Rep. Stacey Plaskett, D-Virgin Islands, noted in her opening statement as ranking member that the Equal Access to Justice Act is important to U.S. citizens seeking to hold government agencies accountable for actions or inaction. Ninety-eight percent of EAJA fees go to veterans fighting for disability and for Social Security cases, she said.

Based on the 2011 GAO report, Plaskett said most of the lawsuits seeking EAJA funds were filed by trade groups, not environmentalists, a fact Colangelo also made saying that attorney fee awards to environmental groups were a “miniscule” part of Forest Service or Bureau of Land Management budgets.

So any legislation would appear to have little benefit, and would have to target the real “extremists” (and who gets to decide who those are?).  (Searching this site for EAJA will turn up several prior discussions of this topic.)

NFS Litigation Weekly September 21, 2018

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Forest Service summaries:   Litigation Weekly sept 21

The Bridger-Teton National Forest violated NEPA when it amended a special use permit for the Alkali Creek elk winter feeding station.  (D. Wyo.)

New case:  Crystal Clear Restoration Project on the Mt. Hood National Forest.  (D. Or.)  Discussed already here.

Notice of intent to sue under ESA:  The Crystal Clear Project on the Mt. Hood National Forest may affect the northern spotted owl, spotted frog, and gray wolf.

BLOGGER’S NOTE:  The NOI challenges the assumption that logging existing habitat would benefit the spotted owl, which was underlying some of our prior discussion of this project, and discussions of other projects in spotted owl habitat.

 

IN OTHER COURTHOUSE NEWS

An Oregon law restricting suction dredge mining in rivers and streams containing essential salmon habitat is not preempted by federal law and applies on federal lands.

Activist groups have filed suit against a planned tree thinning and burning plan on national forest lands near Santa Fe.

A federally-run sheep experiment station partly on national forest land in the Centennial Mountains of Idaho and Montana, and long targeted by environmental groups in lawsuits, will resume grazing sheep next year.  One lawsuit is discussed here.

Sen. Steve Daines asked the Forest Service to open a court-ordered objection period on a travel plan to anyone with an interest in the issue.  Previously discussed here and here.

NFS Litigation Weekly September 14, 2018

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Forest Service summary:  Litigation Weekly sept 14

(New case.)  Cove Fire Salvage Project on the Modoc National Forest.

 

BLOGGER’S BONUS:  Since this one was so short (and since Sharon might not be forwarding anything to me for awhile), here’s some other recent courtroom news involving national forests.

“Four environmental groups are suing the U.S. Forest Service to stop a major logging project on the east shoulder of the Mount Hood National Forest near the White River in north-central Oregon… It is the largest timber sale in the Mount Hood National Forest in more than a decade, and would roughly double the annual forest-wide timber harvest.”

“U.S. District Judge Robert E. Blackburn dismissed the case last week following a settlement reached earlier this summer between the Bureau of Land Management and energy company SG Interests. The BLM agreed to pay the company $1.5 million for 18 oil and gas leases it cancelled in 2016 at the request of a coalition of governments, environmentalists, ranchers and others.”  I guess this closes the “gap,” discussed here.

“Nearly a dozen residents and businesses have filed a lawsuit against the Durango & Silverton Narrow Gauge Railroad, accusing it of starting the 416 Fire earlier this summer (on the San Juan National Forest).  The lawsuit was filed before the Forest Service has completed its own official investigation into the fire’s cause.”

“For over two decades, Oregon has regulated thermal pollution in rivers and streams using illegal standards. But at a hearing Tuesday, the federal and state governments said it will take another 12 years to come up with revised standards to protect threatened and endangered fish.”

NFS Litigation Weekly September 7, 2018

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Forest Service summaries:  Litigation Weekly Sept 7

The District court adopted the magistrate judge’s recommendations to uphold the Lostine Public Safety Project on the Wallowa-Whitman National Forest.  (D. Or.)  (We didn’t receive the June 14 LW cited, but there is a brief summary and a link to an article here.)

A magistrate judge has recommended that the Santa Fe National Forest be required reinitiate ESA consultation on its 2012 travel management plan to address the subsequently listed Jemez Mountain Salamander.  (D. N.M.)

(Update.)  The district court denied plaintiffs’ motion for an injunction pending appeal of its decision to affirm the Beaver Creek Landscape Restoration Project on the Flathead National Forest.  (D. Mont.)

(Notice of intent to sue.)  Seven plaintiffs are seeking reinitiation of ESA consultation on grizzly bears and bull trout for the Rock Creek Mine on the Kootenai National Forest.

 

BLOGGER’S BONUS

On August 13, the Montana district court granted a preliminary injunction against the North Hebgen Project on the Custer-Gallatin National Forest.  However, it was based on the Forest Plan Amendment 51 decision that changed a forest plan standard requiring the retention of 30% of”old growth” forest to a less-stringent standard pertaining to “over-mature” forest, which would allow the initially non-compliant project to comply with the forest plan. The court found that plaintiffs had raised questions about ESA consultation on Canada lynx sufficient to enjoin the project until completion of the litigation.  (This case was previously discussed here including my comments.)

There was no consultation on the amendment.  Consultation must occur if a federal agency action “may affect” a listed species.  Here, the record included statements by the Forest that Amendment 51 could have a “potential effect on wildlife associated with old growth,” and indications that lynx are one of these species. The Forest Service seemed to be arguing that consultation that occurred on the lynx amendment was sufficient because there are no new adverse effects, but that appeared to be contradicted by its record.   The court found that Plaintiffs have established “fair ground for litigation and thus for more deliberative investigation,” regarding whether Amendment 51 “may affect” lynx-” a relatively low threshold for triggering [Section 7] consultation.”

The Ninth Circuit rejected the U. S. Fish and Wildlife Service decision to not list this fish species as endangered in 2014.  It is found in a few lakes in southwest Montana on national forest lands, but the primary concern is the remaining river populations.  The court found the decision to be arbitrary and capricious because the FWS failed to supply evidence of increased population of the Arctic grayling in Montana rivers, and didn’t properly account for climate change effects on thermal refugia.

 

Payette lawsuit reply

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Original post

(Sharon – did I miss a new rule about threads being closed to new comments?  This one was started 8/13, and Steve replied 9/7, but I couldn’t today and it says “comments are closed” at the end.)

Steve posted this from AFRC:

Ninth Circuit Undercuts Collaborative Landscape Management

A Ninth Circuit ruling on August 13 strikes an unfortunate blow against collaborative landscape management. The court rejected the Lost Creek-Boulder Creek collaborative project, which is part of the Collaborative Forest Landscape Restoration Program (CFLRP). Most strikingly, the court’s analysis contains a fundamental misunderstanding of forest planning. It wrongly assumes that the project’s design is binding on future projects in the same area, though the project did not amend the governing forest plan. The irony is that the project focuses on restoration rather than timber production, and the court accepted the environmental groups’ challenge on that basis. The court’s decision is so flawed that the government has already taken the unusual step of filing a petition for rehearing.

In the Payette National Forest, fire suppression has led to accumulations of small and medium-sized trees, making wildfires harder to control and more damaging to the land and adjacent communities. A diverse group of private and not-for-profit interests came together and formed the Payette Forest Coalition (PFC). Despite different backgrounds, the group found a shared interest in reducing uncharacteristic wildfires, improving wildlife habitat, water quality and watershed health, enhancing recreational access, and supporting the economies of local communities. The PFC worked closely with the Forest Service to design the Lost Creek-Boulder Creek project, which aims to restore approximately 80,000 acres.

The project reflects a common understanding that doing nothing is not an option. Without prescribed burns and noncommercial thinning, at least 40,000 acres remain at risk of mortality from insect, disease and fire, 25 culverts will not be replaced (to the detriment of bull trout), and 55 MMBF of logs will not be manufactured into wood products while maintaining the approximately 1,100 associated jobs.

Environmental plaintiffs alleged that the Forest Service improperly failed to consult on bull trout critical habitat at the Forest Plan Level, improperly relied on a draft wildlife conservation strategy, improperly changed the desired condition for forested lands within the project area and failed to follow the proper procedures regarding the minimum road system in the project area. AFRC attorneys represented both the PFC and Adams County in the litigation.

The district court rejected all these challenges. In denying a request for injunctive relief, it found “the collaborative efforts of all Defendants in developing the Project is in the public’s interest,” and that “the public has an interest in supporting the collaborative process that was used in this case to develop the Project.”

The Ninth Circuit ignored all these factors, and its opinion does not mention the collaborative process at all. Instead, it assumes that the restoration emphasis of the project is a binding forest plan amendment and compares that to the existing forest plan, rather than analyzing whether the project is consistent with the forest plan. This upside-down ruling shows that litigation reform is a necessary element to any meaningful change on our forests.

The PFC has reiterated its commitment to restoration work despite the court setback. AFRC will continue to work with the PFC in its efforts to bring meaningful forest restoration to the Payette and appreciates the work of our partners on the Forest. /Lawson Fite

My response:

Not surprising.  The “fundamental misunderstanding of forest planning” (NFMA) lies with the Forest Service.

“It (the court) wrongly assumes that the project’s design is binding on future projects in the same area… Instead, it assumes that the restoration emphasis of the project is a binding forest plan amendment and compares that to the existing forest plan.”   The court didn’t “assume;” it took the Forest at its word that it had changed plan direction applicable to this project, and the court decided that as a matter of law, the changes that the Forest admitted it made can’t be made project-by-project. Even if the Forest hadn’t admitted it, desired conditions, by definition, apply to areas and timeframes larger than a project and require the forest planning process. The court understood that if the Forest Service could legally do what it did here, plan components wouldn’t matter, which is not what was intended by NFMA’s consistency requirement.

“its opinion does not mention the collaborative process at all.” Once the 9th Circuit decided that the agency action was illegal (unlike the district court), any “public interest” arguments became pretty much irrelevant. It’s kind of absurd to suggest that an illegal action should proceed just because there is “collaborative landscape management” (at least until the politicians make it so). See earlier discussion of this point from the district court TRO opinion here:

 

NFS Litigation Weekly August 24, 2018

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Litigation Weekly Aug 24

The Ninth Circuit found that claims against hunting derbies on the Salmon-Challis National Forest in Idaho were moot with regard to past derbies and not yet ripe with respect to future derbies.  (9th Cir.)  (This case was previously discussed here.)

The Ninth Circuit reversed the district court and held that the Forest Service violated NFMA for the Lost Creek Project on the Payette National Forest in Idaho by utilizing desired conditions and standards that were inconsistent with the forest plan.  (9th Cir.)  (This holding was discussed in detail here.)

(New case.)  Plaintiffs allege violations of NFMA and ESA for failing to close most of the Los Padres National Forest in California to target shooting as required by the forest plan to protect threatened and endangered species, including the California condor.  (C.D. Cal.)  (This case was discussed when the Notice of Intent to Sue was filed here.)

NFS Litigation Weekly August 3, 2018

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Litigation Weekly Aug 3

The district court upheld the Beaver Creek Landscape Restoration Project on the Flathead National Forest in Montana against NEPA, NFMA consistency and ESA (Canada lynx) claims.  (D. Mont.)

The Fourth Circuit upheld a decision by the Nantahala National Forest in North Carolina to authorize development of a 3-5 acre shooting range against landowners’ claims of NEPA and state law violations.  (4th Cir.)

The Fourth Circuit found that the Forest Service violated NEPA and NFMA when it amended its forest plan and approved construction of the Mountain Valley Pipeline on the Jefferson National Forest in West Virginia and Virginia.  The BLM also violated the Mineral Leasing Act.  (4th Cir.)  (The NFMA issues were discussed here.)

The Ninth Circuit reversed a district court decision, and held that the Kootenai National Forest in Montana violated NFMA for the East Reservoir Project by failing to properly determine compliance with motorized access standards in the forest plan.  (The summary incorrectly refers to this part of the forest plan as the Lynx Amendment; it was originally developed for grizzly bears.)  (9th Cir.)  (This case was also discussed here.)

(Update.)  The Supreme Court denied a request by the government to stay proceedings in this case, which is the constitutional climate change lawsuit filed by 21 youths.  (D. Or.)  (The history of this case is provided here.)

(New case.)  This complaint alleges that the Forest Service has violated the Freedom of Information Act for failing to meet legal deadlines for providing records associated with the Four Forest Restoration Initiative in Arizona, including the Rim County EIS Project.  (D. Az.)

The district upheld the Army Corps of Engineers and Bureau of Reclamation decision to construct a dam and bypass channel on the Lower Yellowstone River in Montana as the preferred means of providing passage for endangered pallid sturgeons.  (D. Mont.)

Some August FS court cases

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The Forest Service recently won two lawsuits involving timber projects in Montana.

  • In Native Ecosystem Council v. Marten, the district court upheld the Telegraph Vegetation Project on the Helena Lewis and Clark National Forest.
  • In Native Ecosystem Council v. Erickson, it upheld the Smith Shields Forest Health Project on the Custer Gallatin National Forest.  One of the issues involved an amendment to the forest plan that modified standards applicable to elk habitat and old growth. In both cases, the court found that Forest was not arbitrary in concluding that the effects of the amendments were not significant and did not require an EIS.

In Sierra Club v. USFS, 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.  This was the first direct judicial test of the 2012 Planning Rule, but it was actually a test of a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments.

That addition to the Planning Rule said:  Forest Service “shall . . . [d]etermine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to the plan direction being added, modified, or removed by the amendment,” and then “apply such requirement(s) within the scope and scale of the amendment,” and an agency’s “determination must be based on the purpose for the amendment and the effects (beneficial or adverse) of the amendment,” 36 C.F.R. § 219.13(b)(5).  The Preamble to the 2016 changes said, “When a specific substantive requirement is associated with either the purpose for the amendment or the effects (beneficial or adverse) of the amendment, the responsible official must apply that requirement to the amendment.”

The Forest Service said that because the pipeline project would mitigate effects on soil and riparian resources they would not be “substantial,” and therefore the Forest did not apply the requirements of the 2012 Planning Rule related to soil and water resources, including “the ecological integrity of riparian areas” (36 C.F.R. § 219.8(a)(3)(i)).  The court held that, “the clear purpose of the amendment is to lessen requirements protecting soil and riparian resources, so the amendment was directly related to these requirements, and the Forest must apply the applicable Planning Rule requirements. It also held that the Forest had not adequately analyzed the effects of the pipeline on soil and riparian areas. The court remanded the amendment to the Forest “for proper application of the Planning Rule soil and riparian requirements to the Forest Plan amendment.”