Litigation

NFS Litigation Weekly – March 9, 2018

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Litigation Weekly March 9

After a remand to correct NEPA deficiencies, the court upheld the Smokey Project on the Mendocino National Forest and dissolved the prior injunction against removing trees 2o” in diameter or greater.  (E.D. Cal.)  The prior decision in this case was addressed here.  (See below for more details.)

After two remands to address lynx and grizzly bear issues with biological opinions, the Ninth Circuit upheld the Gallatin National Forest decision on the Lonesome Wood 2 project to reduce the threat of wildfire, and dissolved the prior injunction.  (D. Mont.)  (See below for more details.)

(Update.)  The Ninth Circuit denied the government’s request to dismiss a case filed by twenty-one young plaintiffs against the United States, the President, and various Executive Branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights.  (9th Cir.)

(New case.)  Plaintiffs challenge the use of a categorical exclusion for the Spear Creek Roadside Hazard Tree Mitigation Project along 23 miles of road in the Giant Sequoia National Monument.  (E.D. Cal.)  A related case involving the same issues on the same fire was discussed here.

Blogger’s comments on Conservation Congress v. USFS

This case addresses some of the scientific questions about northern spotted owls and fire that have been debated on this blog. There were two desired outcomes for the project area. One was to retain NSO foraging habitat, defined as at least 40% canopy cover. The other was to reduce the mortality from future fires under 97th percentile weather conditions to 25% (using the Forest Vegetation Simulator model). The proposed action, without diameter caps, was the only alternative where trees can be thinned evenly across all size class clumps: “the ability to remove some larger trees allows the Proposed Action to achieve reduction of canopy fuel hazard in the hard-to-replace larger size class clumps, and to retain canopy cover in the smaller size class clumps, both of which comprise the foraging habitat within the commercial thin units.”

Plaintiffs questioned the use of the 97th percentile because it differed from the 90th percentile used in the Forest’s “Late Successional Reserve Assessment.” The court found that the Forest had adequately explained its rationale: “the higher percentile accounts for climate change and the 97th percentile conditions were judged to approximate 90th percentile conditions over the life of the Project (20 years).”

The court also examined the basis for the requirement imposed by the Forest on the project that after treatment the potential mortality from future wildfire not exceed 25%. The “Late Successional Reserve Assessment” had stated that this limit on future mortality was necessary to “maintain late successional habitat.” The court agreed with the Forest Service interpretation that this did not need to include the effects of thinning, so the combined effect of thinning and future fires could therefore exceed 25%. The Assessment did not consider additional effects of thinning, so I think this is a case where the court gave the agency too much deference, and the Forest Service interpretation was arbitrary and capricious.

The court also identified a problem I have seen a few times – there are conflicting factual statements in the NEPA document and biological assessment and/or biological opinion. This required the Forest to retract and clarify statements as part of this remand.

Blogger’s comments on NEC v. Krueger

The court rejected the Forest Service position it characterized as “Forest Plan ‘goals’ are merely aspirational and thus impose no obligations on USFS,” citing other language in the plan that indicates the intent was more than “ a mere preference.”  This should have implications for the application of the 2012 Planning Rule, in which desired conditions are similarly “aspirational,” but also given significant weight through the Rule’s consistency requirement and elsewhere.   Nevertheless, the court held that, although it could imagine projects that would be incompatible with the goal, “the Council does not allege, and has offered no evidence to suggest, that Lonesome Wood 2 is such a project.”

The court examined a master’s thesis about lynx habitat requirements that had been produced after the lynx conservation strategy was amended into the forest plan, and which plaintiffs argued invalidated reliance on the provisions of the lynx amendment.  Regarding this new scientific information the court, held:

“In light of the deference that we owe to the agency’s expertise, and in light of FWS’s site-specific BiOp analyzing the effect of Lonesome Wood 2 on the Canada lynx, we disagree. We decline to overrule the Forest Service’s determination that Ms. Kosterman’s thesis does not require it to reevaluate its approval of the project.”

“Ms. Kosterman’s thesis will undoubtedly prove significant in the consultation process concerning the Lynx Amendments, including the WUI exemption, that has been reinitiated and is now underway pursuant to our decision in Cottonwood. Indeed, Regional Forester Marten acknowledged this in her letter when she wrote, “[W]e fully recognize the importance of [Ms. Kosterman’s] study and its implication for improved management direction.” If the Forest Service fails to give Ms. Kosterman’s thesis its due in the reinitiated consultation process, the Council will have an opportunity, in appropriate proceedings, to challenge that process and its result.”

Stay tuned.

Sue and settle … for a study

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This lawsuit involves two predator-killing poisons.  It doesn’t directly involve the Forest Service, although the chemicals are used on national forests.  But it is a recent example of what a lot of settlements look like – more analysis.

The 10-page agreement filed Wednesday in U.S. District Court in Montana requires the U.S. Fish and Wildlife Service to complete consultations with the Environmental Protection Agency by the end of 2021 on the two poisons used by federal workers on rural Western lands to protect livestock.

The Center for Biological Diversity and the other groups in the lawsuit filed last year in Montana say Fish and Wildlife is violating the Endangered Species Act by not analyzing with the EPA how sodium cyanide and Compound 1080 could harm federally protected species including grizzly bears and Canada lynx.

“The federal government needs to ban these deadly pesticides, but until then we’re hopeful the analysis spurred by our lawsuit will lead to common-sense measures to prevent unintended deaths,” Collette Adkins with the Center for Biological Diversity said in a statement.

Evidently, in this case, the agencies can continue to use the chemicals while the study proceeds.

 

Wyoming Public Lands Initiative and the Bridger-Teton National Forest

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“In early 2016 the Wyoming County Commissioners Association (WCCA) organized the Wyoming Public Lands Initiative (WPLI).  The WPLI is a collaborative, county-led process intended to designate WSAs as wilderness, multiple use, or other management.  The result will be one state-wide legislative lands package that is broadly supported by public lands stakeholders in Wyoming.”

It always makes me a little nervous when a local “collaborative” (or local government) feels empowered to dictate federal land policies (especially where, as in this case, there is a county plan that purports to “guide … the management of public lands” – implicitly federal lands).  On the other hand, it’s always helpful to land managers if those with opposing views can work out and recommend something they all agree on.   With wilderness designation decisions there is the added layer of Congress having to take a national look before approving a decision.  In this case there are also national conservation groups represented in the collaborative, as well as local ones.  But there is also a lawsuit by other conservation groups, and apparently someone on the other side ran to the local Congresswoman who is meddling, so the county commissioners are asking for a “time-out.”  Here’s the latest.

Litigation Weekly – February 16, 2018

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(The header links to the Forest Service summary, and each bullet links to an associated legal document.)

Litigation Weekly Feb 16

The court denied a Forest Service motion to dismiss claims that the Stanislaus N. F. violated the Clean Water Act and the forest plan in relation to its management of three grazing allotments.  (E.D. Cal.)

The court denied a motion for a preliminary injunction by the current concessionnaire to stop the bidding process for a 5-year permit to run the shuttle service for the Sabino Canyon Recreation Area on the Coronado N. F. (D. D.C.)

(update)  The Ouachita N. F.’s denial of a permit to construct a road in the Upper Kiamichi Wilderness has been appealed to the 10th Circuit.  (E.D. Okla.)

(update)  Plaintiffs have voluntarily dismissed their challenge to the Westside Fire Recovery Project on the Klamath N. F.  (N.D. Cal.)

(update)  The district court agreed to stay pending appeal its order to destroy wolf data illegally obtained by the State of Idaho using helicopters from the Frank Church River of No Return Wilderness on the Salmon-Challis N. F.  (D. Idaho)

(new case)  The Forest Service is a signatory to the 2000 Interagency Bison Management Plan, and the plaintiff alleges that a tribal notice of intent to hunt bison is significant new information requiring supplemental NEPA analysis for the plan because more bison hunters in the concentrated area established by the plan would create a safety risk to recreationists.  They seek to enjoin the activities that keep bison within the concentrated area.  (D. Mont.)

Has “energy dominance” lost a battle?

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Opponents of fracking on the Wayne National Forest filed a lawsuit last spring alleging the failure of the BLM and Forest Service to comply with NEPA and the Endangered Species Act in authorizing oil and gas leasing.  They argued that when the forest plan was revised in 2006 it didn’t address the effects of fracking.  Plaintiffs suggest that is the reason why the Forest has now decided to again revise it forest plan.   (Which would make it one of a very few forests to re-revise, so it is noteworthy that the Wayne was put in the queue ahead of many forests that have not been revised at all.)

The Forest says this:

For years, the USDA Forest Service, Ohio Department of Natural Resources (ODNR), and USDA Natural Resources Conservation Service (NRCS) have been innovating ways to collaborate in the restoration of southeast Ohio’s oak and hickory forest ecosystems. The next step to realizing that objective is having compatible long-term management plans that allow the organizations to work together more efficiently. With ODNR’s intention of revising their State Action Plan by 2020, the Wayne National Forest decided the time is right to revise its Land Management Plan, to facilitate collaborative work efforts with the State.

That’s a worthy goal, but not one I would have expected to get it to the top of the Forest Service’s priority list for plan revisions.  Let’s see if they argue in court that starting revision would moot the lawsuit.  Regardless, “The public can now demand a plan that bans fracking in the Wayne.”

Litigation Weekly – February 2, 2018

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Litigation Weekly Feb 2

(New case.)  Plaintiffs claim 23 surface water diversions on the Sawtooth National Forest adversely affect listed fish species, and that the Forest Service failed to consult on them with the U. S. Fish and Wildlife Service as required by the Endangered Species Act.  (D. Idaho)  (Also discussed here.)

This Supreme Court decision favored industry plaintiffs objecting to the Obama Administration’s 2015 regulation defining the “waters of the United States” (WOTUS) subject to the Clean Water Act by holding that the case must be heard initially in a district court rather than an appeals court.  This maneuvering is likely related to the fact that the Trump Administration is in the process of changing the 2015 regulation. (U.S.) (More information may be found here.)

(New case.)  The Tribe’s claim is that federal agencies have a mandatory duty to exercise jurisdiction over permit applications for discharge from a mine into the Menominee River and adjacent wetlands, and cannot delegate that responsibility to the State of Michigan.  (E.D. Wis.)

The Fish and Wildlife Service improperly denied petitions to list bison under the Endangered Species Act in its initial (90-day) finding because competing scientific theories indicated that the species “may” be warranted for listing.  (D. D.C.)

Blogger’s note:

The Forest Service summary doesn’t really explain the importance of the disagreement about genetics.  One of the claims in the petitions is that while the existing plan to maintain the population at 3000 individuals could be an adequate regulatory mechanism to protect one genetic population (inadequate regulatory mechanisms being one of the factors for listing species), it would not be adequate to maintain two genetically distinct herds (arguably requiring 3000 in each herd, and I think one of the studies must be suggesting that the loss of one genetic population would threaten the species as a whole).

Also, it is important to recognize that the “may” be warranted standard prevents the agency from making its own determination of the best science at the 90-day stage.  That is what federal agencies normally get to do.  The second stage of the ESA listing process is the 12-month finding, and that is where the FWS must decide if listing is actually warranted, based on its weighing of the science.

These bison are also an issue in the Custer-Gallatin forest plan revision process (noted here).

 

Lawsuit against water diversions on the Sawtooth

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Nearly two dozen water diversion projects in central Idaho’s Sawtooth Valley are harming federally protected salmon, steelhead and bull trout, according to the Idaho Conservation League (and this article).

Specifically, the lawsuit says the Forest Service in 2001 prepared environmental documents called Biological Assessments and found most of the 23 diversions are “likely to adversely affect” one or more of the protected species.

Those assessments were sent to Fish and Wildlife and NOAA Fisheries. But in June 2001, NOAA Fisheries notified the Forest Service, according to the lawsuit, that the additional information was needed to begin the consultation. The lawsuit says the Forest Service never followed up with that additional information.

“More than 16 years later, the Forest Service continues to authorize these 23 diversions to be used, operated, and maintained without ESA consultation, even though sockeye salmon, Chinook salmon, steelhead, bull trout, and their habitat have been, are being, and will continue to be harmed by the diversions,” the lawsuit says.

Once an agency decides that a proposed action is likely to adversely affect a listed species it has to formally consult with the appropriate agency (in this case, Fish and Wildlife Service for bull trout and NOAA Fisheries for salmon and steelhead).  If they haven’t done it, it’s kind of an open-and-shut case – one that would be a good candidate for settlement.  Under ESA, there should have been a 60-day notice of intent to sue, which should have led to discussions that might have avoided a lawsuit.  Not sure what happened here.  (If there have been more recent reauthorizations with a finding of “no effect,” that would complicate things.)

Litigation weekly January 19, 2018

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Litigation Weekly Jan 19

The 9th Circuit Court of Appeals refused to enjoin the Tower and Grizzly fire salvage and restoration projects on the Idaho Panhandle National Forest.  (9th Cir.)

(Update)  The Forest Service was added to a case against the BLM involving approval of a plan for construction of oil and gas wells on the Grand Mesa, Uncompahgre and Gunnison National Forests.  (D. Colo.)

(New case)  A recreational gold miner in Georgia challenged the authority of the Forest Service to monitor or regulate noncommercial activities associated with recreational mining.  (S.D. Ga.)

Litigation Weekly – January 12, 2018

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Litigation Weekly Jan 12

A Freedom of Information Act case.  Documents created by contractors in conjunction with their preparation of an EIS for the Wolf Creek Land Exchange on the Rio Grande National Forest, but never provided to the Forest Service, were not “agency records” subject to release under FOIA.  (10th Cir.)

(New case.)  Reauthorization of livestock grazing would allegedly “impair the viability and recovery” of the federally threatened Spalding’s catchfly in the Hells Canyon National Recreation Area on the Wallowa-Whitman National Forest.  (D. Or.)

(Notice of intent to sue under the Endangered Species Act.)  Earthen berms used to close roads in the Pilgrim Project on the Kootenai National Forest fail to effectively prevent motorized access to protect grizzly bears as required by the forest plan’s access requirements, which results in unauthorized take of a listed species.

The Migratory Bird Treaty Act allows the U. S. Fish and Wildlife Service to kill barred owls (protected as migratory birds) to determine whether that practice would benefit spotted owls listed under ESA.  (9th Cir.)

Plaintiffs did not have standing to sue USDA Wildlife Services for killing wolves in Idaho because a court decision would not stop the State from using other means to kill the wolves.

 

Loggers lose attempt to remove coho salmon from California’s endangered list

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On remand from the California Supreme Court, the Central Coast Forest Association and Big Creek Lumber Company lost again in the state appeals court.  They have been arguing that coho salmon did not occur naturally in rivers south of San Francisco, and that hatchery coho were harming native steelhead.  The state Fish and Game Commission had found otherwise.

From the judge:  “Petitioners have not offered sufficient evidence that the current inhabitants of the streams south of San Francisco are directly the result of out-of-state hatchery stock,” he wrote. “Moreover, the Commission relied on recent genetic data, the results of which rule out the claim that hatchery fish replaced the native stock south of San Francisco.”

From an environmental intervenor attorney:   “The petitioners/plaintiffs are timber companies, not advocates for steelhead,” he said, noting that the appellate court’s ruling blames timber harvesting in part for the decline in coho populations.  “It seems pretty transparent that their interests lie in reducing restrictions on timber operations, not protecting salmon or steelhead,” Evans added. “Protections for waterways that contain coho salmon would also benefit steelhead trout in those same rivers. So, in essence, greater protections against sediment, erosion, roads, and increases in water temperature due to timber harvest would benefit both salmon and steelhead, which have similar ecological needs.”

From the plaintiffs’ attorney:  “It’s sad to see the deepening corruption of science in California. It’s just another layer of regulation and stupidity,” he said. “This decision is sinking California into a pit of idiocy from which it will never return.”

It sounds to me like it’s just typical judicial deference to a professional agency’s interpretation of science.  And for lumber companies to say they are only concerned about the fish – that sounds a little “stupid” (but whatever it takes to try to win the case, right?).