Litigation

NFS Litigation Weekly April 20, 2018

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Litigation Weekly April 20

The District Court accepted the magistrate’s recommendations with minor clarifications and upheld livestock grazing activities on the Malheur National Forest.  (D. Or.)  Also reported here.

(New case.)  Three southwestern tribes filed the third lawsuit challenging the Rosemont mine on the Coronado National Forest.  (D. Ariz.)  Also reported here.  (See below also.)

(New case.)  According to the complaint, the Tonto National Forest reopened portions of an allotment that had been closed since 1979 without conducting an analysis of the effects.  (D. Ariz.)

(Notice of intent.)  Plaintiffs seek reinitiation of ESA consultation on recreational summer cabin permits in Mount Graham red squirrel habitat as a result of recent fires on the Coronado National Forest.

 

Blogger’s note on the Tohono Oodam case:  The complaint challenged the Forest Service interpretation of the 1872 Mining Act that it is required to provide unpatented lands for disposal of the mining waste.  Here is a summary of this point from the article linked above:

“The Coronado may impose reasonable conditions to protect surface resources, but cannot materially interfere with reasonably necessary activities under the General Mining Law that are otherwise lawful,” Dewberry (the forest supervisor) wrote.

The lawsuit, however, asserts that the 1872 mining law gives people a right to occupy and use public lands for unpatented mining claims — the kind Hudbay has on Rosemont’s national forest lands — only when they contain a valuable mineral deposit. There’s no evidence of any mineral deposits on the lands where waste rock and tailings will go, the suit says.

“Say you are doing business and it results in some kind of waste. You can’t just put it in a neighbor’s land. You have to accommodate it on your own property, or find a place to get rid of it, without causing an environmental threat,” attorney McIntosh said on behalf of the tribes. “You can’t put it on public lands and say the Forest Service can’t say no.”

Which comes first, the NEPA or the ESA (process)?

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My experience was generally that the consulting agencies wanted to have the last word. That is that they didn’t want to consult on anything unless it was the final decision by the Forest Service. The expectation was that the FS would just incorporate any needed changes that resulted from the consultation process. I wondered if the public needed be involved in these changes in the decision, but I didn’t think NEPA would apply because any changes required by ESA would further mitigate adverse impacts and/or be non-discretionary.

The court’s recent opinion in Bark v. Northrop discusses this part of the NEPA process. It involves a proposal to build the Timberline Ski Area Mountain Bike Trails and Skills Park on the Mt. Hood National Forest. As approved, the project is a chairlift-assisted mountain biking development with seventeen miles of bike trails and a small skills park within an area designated for managed recreation.

It turns out that after consulting with NMFS on the project’s effects on the Lower Columbia River steelhead the Forest Service issued a New Information Report (“NIR”) and concluded that NMFS’s discussion of the Project’s effects was consistent with the effects considered and disclosed in the project EA. (This actually happened twice, and the Forest Service made the point that the second set of terms and conditions were actually more protective so that impacts had been decreased.)

The court agreed that no supplemental NEPA analysis was necessary because “the mere fact that NMFS found likely adverse effects does not trigger further NEPA analysis unless NMFS’s finding implicates impacts that could significantly affect the environment in a manner not already considered by the Forest Service.”  The effects were minor, and the difference in effects was minor.  (The court reached a similar conclusion for new information about the western bumblebee, a FS-designated sensitive species.)

The Forest Service has little guidance on how to make determinations in accordance with NEPA regarding the significance of new information, never mind how that interfaces with ESA. “NIRs” are not a “thing” recognized in the agency NEPA directives. But the FS got it right this time.

Sometimes it takes a lawsuit

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A couple of examples of how lawsuit settlements can play out on national forests.

“How Cross-Country Skiers Got Tahoe National Forest To Rethink Snowmobile Use; Future Plan Could Cut Access In Half”

“Both cases were settled around 2012, and it took years for the Forest Service to come up with a plan. Now, it is rethinking how snowmobilers explore public land. Its final plan will determine what percentage of the forest and what trails are used for snowmobiles.”

This is a typical settlement, where the Forest Service agrees to undertake a process, with more analysis, without committing to an outcome, but sometimes that outcome can make the plaintiffs happy (and maybe prevent another lawsuit).  The settlement occurred here after the Forest Service lost the lawsuit.

“US 70 bypass around Havelock gets green light after lawsuit settled”

“In an agreement announced Monday, NCDOT will give a conservation easement to protect land it will own along the 10.3-mile bypass, as well as provide $5.3 million to the N.C. Coastal Land Trust to create a fund to protect land in and around the Croatan National Forest. NCDOT also will establish a $2 million revolving loan fund that could be used to protect property elsewhere in Carteret, Craven and Jones counties.  As part of the settlement, the two federal agencies have committed to maintaining woodpecker habitat between the bypass and the town of Havelock with the use of controlled burning, which longleaf pines need to reproduce and thrive. The U.S. Forest Service has agreed to carry out the burning.”

The Forest Service was not a party to this one, but was part of the settlement, which involved adding mitigation measures.  This settlement occurred prior to a court decision.

(Here and here are a couple of less effective alternatives to litigation.)

 

NFS Litigation Weekly April 13, 2018

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Litigation Weekly April 13

Since there was no evidence that an access easement had been granted by the Helena-Lewis and Clark National Forest to a patented mining claim in-holding, the Forest Service could require a special use permit for the owners to use a road that was closed to public motorized use.  (D. Mont.)

(New case.)  Taking a cue from a 9th Circuit decision in 2013 on the Pilgrim Creek timber sale, which said that ineffective road closures would violate the Kootenai National Forest plan limits on open roads, plaintiffs identified numerous ineffective berms and open roads that had not been accounted for.  They have again challenged the Pilgrim Creek timber sale project for violating NFMA and NEPA, and also alleged violation of the incidental take provisions of ESA for grizzly bears for the project and the forest plan .  (D. Mont.)  This case was also mentioned here.

(Note:  Plaintiffs continue to refer to the “Access Amendment” to the previous forest plan, which was incorporated into the revised Kootenai forest plan in 2015.  While it may be true that the NFMA consistency requirement for this project is determined based on the old forest plan, if the court grants their request for reinitiation of consultation on access restrictions, that would mean reinitiating consultation on the revised forest plan.)

NFS Litigation Weekly April 6, 2018

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Litigation Weekly April 6

(New case.)  Plaintiffs challenged the Dinkey timber sale on the Nantahala-Pisgah National Forest because of erosion and water quality risks.  (E.D. Tenn.)  (This case was also discussed here.)

The court invalidated the regulation issued by the Fish and Wildlife Service governing management of the reintroduced  Mexican wolf because it did not sufficiently further the conservation of the species, and the court required a new determination of whether the population was “nonessential” under ESA.  The Mexican wolf is found primarily on national forest lands in eastern Arizona and western New Mexico, where there are persistent conflicts with livestock grazing.  (D. Ariz.)

 

Blogger’s bonus – new case

The Alliance for the Wild Rockies “says the U.S. Forest Service and U.S. Fish and Wildlife Service are ignoring their own science by not including roads behind earthen berms in total road mileage counts” in grizzly bear habitat on the Kootenai National Forest.  (It’s not clear what decision is being challenged.)

NFS Litigation Weekly March 30, 2018

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Litigation Weekly March 30

Plaintiff alleges violations of the Wild and Scenic Rivers Act for failure to prepare river management plans for eight river segments on the Los Padres, Inyo and San Bernardino national forests, as well as BLM lands.  (C.D. Cal.)  (Discussed earlier here.)

The court reversed decisions on BLM resource management plans by two adjacent field offices for failure to consider alternatives with fewer areas open to oil, gas and coal leasing, failure to consider the impacts of the foreseeable combustion of resources that would be sold, and failure to respond to concerns about using outdated science for methane pollution (while dismissing other NEPA challenges).  (D. Mont.)

Wild and scenic river plan lawsuit

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The Wild and Scenic Rivers Act requires a comprehensive river management plan for eight rivers and creeks in southern California that Congress designated under the Act in 2009.  The law requires completion of river plans within three years of designation.  The rivers flow through national forest and BLM lands.  A complaint was filed March 27.

The North Fork of the San Jacinto River, for example, runs through lands managed by the San Bernardino National Forest and provides habitat for the critically endangered mountain yellow-legged frog, as well as other animals including California spotted owls and rubber boas.

Animals that live along Palm Canyon Creek include the southwestern willow flycatcher and Peninsular bighorn sheep.  “We’re concerned that by not having a comprehensive management plan for this wild creek that the resources could degrade over time,” she said.

The complaint asks  for “a permanent injunction, to prepare a Management Plan … by a date certain.”  Seems like a good candidate for a settlement, no?

NFS Litigation Weekly – March 16, 2018

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Litigation Weekly March 16

(Update.)  Plaintiffs filed a petition with the U. S. Supreme Court regarding the Ninth Circuit’s opinion that the Federal Land Management and Policy Act authorized the Secretary of the Interior to withdraw national park and Kaibab National Forest lands near the Grand Canyon from new uranium mining claims for 20 years.

(New case.)  This is a challenge to the Fish and Wildlife Service reversing its 2011 determination that the Pacific walrus warranted listing under ESA as a result of climate change.  (D. Alaska)

Cherokee National Forest objects to objection

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Plaintiff environmental groups expressed concerns from the beginning of the Dinkey Project about the effects on water quality because of erosion caused by previous nearby timber projects in similar terrain.  After the Forest released the draft EA on the Project it also released a monitoring and evaluation report that revealed the erosion problems caused by the earlier projects and included recommended mitigation measures.  The EA and Decision Notice for the Dinkey Project failed to acknowledge this information and relied on mitigation measures that had failed in the earlier projects.  The complaint alleges violations of NEPA and also NFMA because the Project would be inconsistent with the forest plan requirements for soil protection and would cause irreversible resource damage.

The plaintiffs also filed an administrative objection to the Dinkey Project raising these concerns.  The Forest Service dismissed the objection, citing failure to comply with the requirements for objections as follows:

“Based on the information provided in your objection, the issues raised do not demonstrate connection to prior comments with specific violations of law, regulation, or policy. In addition, no specific proposed remedies are stated for consideration by the Reviewing Officer for resolving the objection. Therefore, the objection does not comply with 36 CFR 218.8(d)(5) and (6).”

Here are those requirements:

(5) A description of those aspects of the proposed project addressed by the objection, including specific issues related to the proposed project; if applicable, how the objector believes the environmental analysis or draft decision specifically violates law, regulation, or policy; suggested remedies that would resolve the objection; supporting reasons for the reviewing officer to consider; and

(6) A statement that demonstrates the connection between prior specific written comments on the particular proposed project or activity and the content of the objection, unless the objection concerns an issue that arose after the designated opportunity(ies) for comment (see paragraph (c) of this section).

The complaint describes how plaintiffs have met these requirements.  In my experience, it is unusual for the Forest Service to nitpick an objection like this, especially in a case where the parties have consistently described what their concerns are and what they would like the agency to do.  It’s certainly not consistent with the idea that pre-decisional objections are more collaborative than post-decisional appeals.  Is this a unique situation or is it a manifestation of Trump Administration policies to get rid of barriers to “getting the cut out” (again, “GTCOA”)?

Forest Service “takes” ranchers’ water rights

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The Court of Federal Claims (which reviews monetary claims against the U. S. government) decided a case in November that got a lot of attention in legal circles, but apparently not from the Forest Service.  It held, in Sacramento Grazing Association v. U.S., that the Forest Service violated the Fifth Amendment to the U. S. Constitution by “taking” (without compensation) water rights owned by ranchers using the Sacramento Allotment on the Lincoln National Forest in New Mexico. They did this by constructing exclosures to keep cattle from trampling two federally listed plant species in wet areas, and amending the allotment management plan to prohibit cattle from entering the exclosures.

After determining that historic grazing had established water rights for the ranchers under state law, the court held that the Forest Service physically took the water rights because it denied the ranchers all access to their property interest. The court seemed to base its decision on prior cases that involved entirely fencing off a lake or totally denying access to minerals. The court did not directly address arguments raised by the Forest Service that water rights do not entitle a user to a particular source of the water, and that the permitted number of cows had been able to find sufficient water without using the sources having exclosures.

The court ordered further discussion between the parties of locating alternative water sources, which had been unsuccessfully attempted earlier. If that is not possible, the Forest Service would be faced with continuing to pay the ranchers, or removing the exclosures, potentially leading to violations of the ESA. Or maybe they could not renew the permit or terminate the allotment. In earlier stages of the case, the court had held that the grazing permits are not a property right, and in this case, the number of cattle permitted to be grazed had also been reduced. However, the court’s reasoning in this recent decision would appear to also produce a “taking” if the historic number of cows were not allowed to graze the allotment because fewer cows could not use the historic volume of water ranchers are entitled to.

The case seems to be viewed as an aberration among “takings” scholars, this blog post noting that this outcome should be barred by a precedent set by the Federal Circuit in another recent case.  It is therefore a good candidate for appeal, but who knows what the current Administration might think about that, and it should have happened by now.  Here is a take from the ranchers’ perspective (which takes off from the court’s invoking of the Malheur National Wildlife Refuge occupation as a similar situation with different results).