Litigation

Litigation weekly – December 22 and 29, 2017

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Litigation Weekly Dec 22

The Allegheny National Forest was not liable for trespass when it delayed the extraction of oil and gas by the subsurface rights owner.  (W.D. Pa.)

The 10th Circuit held that the BLM could not adequately represent the interest of environmental groups when defending an energy industry challenge to its Mineral Leasing Act policies.

(New case.)   Plaintiffs challenge the expansion of the West Elk Mine on the Grand Mesa, Uncompahgre and Gunnison National Forest into a designated roadless area, based on NEPA.  (D. Colo.)  (The request for a temporary restraining order was subsequently denied.)

(Notice of intent.)  Alleged violation of Clean Water Act discharge permits for mines on the Tahoe National Forest.

Litigation Weekly Dec 29

The Ouachita National Forest properly denied a special use permit to construct a road to private property surrounded by a wilderness area.  (E.D. Okla.)

(Update.)  Plaintiffs requested dismissal of their case against the denial of mineral leases by the Superior National Forest.  (D. Minn.)

(New case.)  This is a dispute about the process for contracting with an entity to operate a shuttle service on the Coronado National Forest for which the plaintiff is the previous contractor.  (D. D.C.)

Idaho Collaboration: “Lawsuits and appeals are no longer what hold up timber projects. The problem instead is money”

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A) A few excerpts from an 12/27/17 article describing a situation where local collaboration has, to date, prevailed over legal suits to stop the Pioneer Fire Salvage Plan. The battle isn’t over but the prospects look good.

1) “Loggers are racing wood-boring insects and decay to salvage as much timber as they can from the 190,000 acres that burned across the Boise National Forest in last year’s Pioneer Fire, before the wood loses its worth.

The U.S. Forest Service planned to harvest 70 million board feet of timber from about 7 percent of the area burned in the massive wildfire. But insects, fungi and rot have deteriorated the standing trees so much that it will be lucky if it can get 50 million to 60 million board feet”

2) “Under the banner of the Boise Forest Coalition, these groups helped the Forest Service write a restoration plan that will use the proceeds from the salvage logging to pay for a variety of projects. On the list are efforts to protect and restore water quality in the South Fork Payette River and area streams; limit erosion; and reopen trails, roads and campgrounds.

This approach put loggers and conservation groups like the Idaho Conservation League on the same side as they helped the cash-strapped agency write up a plan that would meet environmental laws. So when other environmental groups like Wildlands Defense, Alliance for the Wild Rockies and the Native Ecosystems Council sued to halt the project, U.S. District Judge B. Lynn Winmill allowed the logging to continue, noting in November the coalition’s approval of the project.

“We all want to see a healthy forest and clean water and appreciate that the court agreed that the project should move forward,” said Alan Ward, chairman of the Boise County Commission and a member of the coalition.”

3) “Statewide, four timber projects endorsed by collaborative groups over the past two years have later been challenged in court, and all four held up. Fuels treatment in Idaho rose from 53,000 acres in 2016 to 79,000 acres in 2017.

Part of the reason for success has been the use of “Good Neighbor” authority by the state of Idaho. Using a state fund, state foresters prepare timber sales after the Forest Service completes environmental reviews. This has increased how many projects can be offered even as federal staffs become smaller.”

B) A few excerpts from the background story from May 6, 2017

1) “Even before fall snow put the fire out last year, Peterson and John Kidd, his counterpart in the Lowman District, were overseeing rehabilitation projects to prevent landslides, mud flows and severe erosion. Such events can take out the roads that are major recreation arteries into the places Treasure Valley residents go to camp, collect mushrooms, hike, hunt, fish or ride off-road vehicles.”

2) ““It also gives us the ability to have some funding for the reforestation and other things, like culvert replacement,” said Kidd. “If we didn’t do this salvage right away, we would probably be dealing with this for the next 20 years. (Restoration) takes manpower and that takes funding, which we might not have down the road.””

3) “Many of the trees to be harvested are near roads and trails and are considered a hazard to the traveling and recreating public. If not cut now, those hazards might last 10 years.

Morris Huffman, a forest consultant who served on the Boise Forest Coalition, said uncut burned trees could fall and close corridors like Clear Creek Road for years. Clear Creek provides access to Bear Valley Creek, one of the headwaters of the Middle Fork of the Salmon River popular with campers, hunters and anglers.”

4) “In addition to logging and tree planting, the projects include decommissioning and removing unneeded roads; thinning overgrown forests; trail work; spraying to control noxious weeds; road maintenance; and water quality-improvement projects such as culverts and water bars.”

5) “Not everyone is eager to see such aggressive action following the fire. There is ecological value in leaving the forest alone after a burn. The Northwest forest ecosystem evolved in fire, and bird species like black-backed woodpeckers, for example, rely heavily on snag trees left standing after a burn.

Jeff Juel, an environmental consultant from Missoula, Mont., who works for environmental groups that oppose salvage sales, argues that the less done after a fire, the more resilient the area is to future disturbances. He opposes the agency’s emergency declarations justified by the need to sell timber to help the local mill and workers. He wants a full environmental review instead of the shortened one the Forest Service is doing.

Jonathan Oppenheimer, government relations director for the Idaho Conservation League, agrees with Juel on the overall benefits of allowing natural renewal following a fire. But he’s a member of the Boise Forest Coalition and worked closely with partners like Roberts and the Forest Service to “make sure that those high-quality and sensitive resources are protected.””

Shoshone forest plan lawsuit leads to negotiated solution on pack goats

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The North American Packgoat Association’s lawsuit reversed a forest plan decision to restrict the use of goats for packing (because of risk of disease spreading to bighorn sheep) based on a procedural violation.  They then got together with the National Wild Sheep Foundation and other stakeholders to work out a new plan, which the Shoshone just adopted (presumably as a forest plan amendment, though the Forest website has no information about it).

The balance that was struck prohibits pack goats from territory used by core bighorn sheep herds in the Absaroka Range and Wind River Mountains. It was a concession the goat packers were willing to make, partially because of lack of use and the undesirable nature of the Absaroka as a goat packing destination.

“North of Whiskey Mountain is infested with grizzlies,” Jennings said. “Frankly I didn’t want to go in there anyway.”

Permits will required to bring the pack animals into the Shoshone in areas where they are allowed, which include the entire Washakie Ranger District and the southern reaches of the Wind River Ranger District. The Temple Peak Herd roams the area between the two pack-goat-friendly zones, but the Wyoming Game and Fish Department manage it as a lower-priority herd. The state agency agreed with the Shoshone that the Temple Peak sheep could be subject to a higher level of risk.

The Shoshone’s decision also calls for goat packers to abide by a strict set of rules, like stringing no more than three animals per person, leashing their goats and possessing proof of vaccinations.

Possibly in the background was the result of another lawsuit finding that extirpation of a “lower-priority” herd of bighorn sheep could be a violation of NFMA.

 

Federal liability for fires it starts

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This topic has come up a few times, and the Missoulian did a little legal research on it for us, but I think it’s incomplete.  In short, federal agencies are protected by sovereign immunity against claims of damages, and its employees are protected when performing their official duties – even if negligent.  What this article doesn’t make very clear is that the government has consented to be sued for negligence through the Federal Tort Claims Act:  “Under the FTCA, 28 U.S.C. §§ 2671-2680 , individuals who are injured or whose property is damaged by the wrongful or negligent act of a federal employee acting within his or her official duties may file a claim with the government for reimbursement for that injury or damage.”

In the Davis Fire example, the article says the court found that “the United States was immune from the litigation.”  But then it seems to address the question of negligence:  “In the government’s review of the Davis fire, it found that Forest Service officials had adequate training, followed proper protocols and ignited the fire within the prescription parameters of the burn plan.”  (I couldn’t find the actual opinion.)  So, while this story makes the FS look pretty bad, on another set of facts that show negligence, private landowners should be able to recover damages.

Earth Island Institute v. Elliott (E. D. California)

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This case was decided on November 16, but has not yet been included in a Forest Service litigation summary. At issue is the Bull Run project, a fire salvage restoration project to treat a strip of land along an area of roadways affected by the Cedar Fire on the Sequoia National Forest. The court denied the motion for a preliminary injunction. The Forest determined that the project could be categorically excluded from an EIS, and that there were no extraordinary circumstances that would prevent the use of a CE.

The court determined that the main issue involving the use of a CE was “whether it is reasonable to interpret a project that “salvages” hazard trees on a large scale as “routine road maintenance.”  Here is the CE:

(4) Repair and maintenance of roads, trails, and landline boundaries. Examples include but are not limited to:

(i) Authorizing a user to grade, resurface, and clean the culverts of an established NFS road;

(ii) Grading a road and clearing the roadside of brush without the use of herbicides;

(iii) Resurfacing a road to its original condition;

(iv) Pruning vegetation and cleaning culverts along a trail and grooming the surface of the trail; and

(v) Surveying, painting, and posting landline boundaries.

After reviewing several similar cases, the court concluded, “the Court cannot determine with certainty at this stage of the case to what extent the Bull Run project is a true commercial “salvage” operation or whether it is, in practice, more like the Nez Perce project (which denied it was a salvage project), or whether, possibly, this is a distinction without a difference.” The court held: “For purposes of this motion for a preliminary injunction, the Court need not definitively determine the issue on the merits; it is enough to conclude that success on the merits as to the CE issue is unclear.” Thus plaintiffs had not made their case for likelihood of prevailing. (I think the FS got away with one here, especially because there is another CE for salvage projects, but for limited acreage; maybe it will become more “clear” at trial.)

The court found no extraordinary circumstances with regard to the federally endangered mountain yellow-legged frog and the Pacific fisher and California spotted owl (both designated as sensitive species by the Forest Service). For the spotted owl, the court determined that the Forest had adequately considered information about their use of post-fire areas (including submissions from the John Muir Project and Chad Hanson). Lack of quality fisher habitat swayed the court to accept the FS explanation regarding fisher connectivity. The project included 30 “site-specific measures” designed to minimize the risks to the frog, and the court cited the FWS conclusion that the resulting risk to individuals was low. (These measures would be good candidates for forest plan components when the Sequoia revises its forest plan.)

Western Watersheds v. USFS (D. Idaho)

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This case involves the decision by the Targhee National Forest to issue new Annual Operating Instructions to the Agricultural Research Service in 2017 to allow the U. S. Sheep Experiment station to continue grazing sheep on two allotments. This case was summarized in today’s Litigation Weekly, but since it found two violations of the forest plan these are worth some further discussion. Note that the case was decided on a motion for a preliminary injunction, and the perceived risk to bighorn sheep viability was key factor in granting the PI to prevent irreparable harm. (There is also a NEPA claim that the court did not decide as part of the PI opinion.)

In order to “provide an opportunity to minimize conflicts between domestic and bighorn sheep,” the Targhee Forest Plan required these allotments to be “phased out on an opportunity basis.”   “Opportunity” was defined to include “resource protection.” The court found that new telemetry data showing proximity of the bighorn sheep to the domestic sheep and other new information “reasonably could have been identified as an opportunity” to close the allotments based on the objective of resource protection instead of issuing a new AOI.

The forest plan required the Forest to maintain “at least viable populations of all native and desired nonnative wildlife . . . in habitats distributed throughout their geographic range on National Forest System lands.” The court summarized the Forest Service argument as follows: “the Forest Service asks the court to the measure the Forest Plan’s maintenance requirement not herd-by-herd, but by considering the sum of all of the individual bighorn populations Forest-wide.” The court used a dictionary definition of “maintain” to find that allowing this small herd of bighorn sheep to be extirpated “potentially will diminish the overall population of bighorn sheep throughout the Forest.” “Thus, in no way do the common definitions and understandings support neglect or deterioration of a population of animals (taken as a whole, or in part) that the Forest Service is mandated to maintain.” The court also cited agency requirements for ensuring that sensitive species do not become threatened or endangered (bighorns are classified as sensitive species on the Targhee).

Litigation Weekly December 1

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Litigation Weekly Dec 1

The court issued a preliminary injunction against grazing domestic sheep on two allotments on the Targhee NF that are used for the U. S. Sheep Experiment Station because the forest plan appears to require removal of the sheep to prevent disease transmission to bighorn sheep to maintain a viable population.  (D. Idaho)

In a case involving a permit issued by the Bridger-Teton NF to the Wyoming Game and Fish Commission for supplemental elk feeding, the District of Columbia District Court granted the Forest Service request to transfer the case to the District of Wyoming.

This is the second lawsuit brought against the Rosemont Copper Mine project on the Coronado NF and involves alleged violations of the Clean Water Act, NEPA and other legal requirements.  Other links are provided here.  (D. Ariz.)

Alleged violations of ESA for failing to monitor road culverts as required by prior consultation on bull trout, and failure of consultation to address the impacts of climate change.

The non-profit owner of conservation lands is challenging FERC’s process for condemnation of those lands for a natural gas pipeline.

Litigation Weekly November 17

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Litigation Weekly Nov 17

Temporary restraining order denied for the North and South Pioneer projects on the Boise N. F. approved under an emergency situation determination, and involving bull trout, Canada lynx and forest plan soil condition standards.  (D. Idaho)  (previous summary 10/6 here)

The lawsuit involves publication of over-snow vehicle use maps on the Bridger-Teton N. F., and an amended complaint adds claims regarding failure to consult under ESA.  (D. Idaho) (previous summaries here and 9/1 and 9/15 here)

Environmental plaintiffs claim a violation of section 7(a)(1) of ESA, which requires that agencies carry out programs to conserve listed species, as applied to the Rosemont Copper Project on the Coronado N. F. (previous summaries on this project 9/29 here and 8/11 here and discussion here)

Forest Service Litigation-Behind the Scenes III: Bringing Knitting to a Knife Fight?

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Long time readers are familiar with this post from 2011 which links to an interview with Kieran Suckling of the Center for Biological Diversity. I have appreciated his directness and honesty about what the Center’s lawsuits are really about. The interview was by Ray Ring of the High Country News, and Gina is a friend of his who is a marriage counselor.

“(Lawsuits) are one tool in a larger campaign, but we use lawsuits to help shift the balance of power from industry and government agencies, toward protecting endangered species,” Suckling told HCN in 2009. “By obtaining an injunction to shut down logging or prevent the filling of a dam … we are in the position of being able to powerfully negotiate the terms. …”
Suckling’s group often wins in court. But instead of helping various parties come to an agreement, as Gina does, Suckling wants to steamroll opponents: “New species listings and new bad press take a terrible toll on agency morale. When we stop the same timber sale three or four times running, the timber planners … feel like their careers are being mocked and destroyed — and they are. So they become much more willing to play by our rules. … Psychological warfare is a very underappreciated aspect of environmental campaigning.”

Of course, “psychological warfare” is too strong a term, but Mr. Suckling’s natural public language seems to be Hyperbolic. In my language, it would be.. “unnecessarily unpleasant experiences” and perhaps sometimes a “hostile work environment.” But let’s check in with the BBER study..

Other ripple effects mentioned by the FS and FWS personnel involved with the SBR case included reduced morale and feelings of frustration among personnel involved from repeatedly having the quality, completeness, and/or validity of their work called into question by litigants, by the press when these cases make it into the news, and by their professional peers and community neighbors.”

What I remember being frustrating about this was the feeling of bringing knitting to a knife fight. We were carefully trained to be collaborative and respectful of other opinions, and yet working in an area in which other people were disrespectful and snarky. One of my employees quit because a certain group she was dealing with were so nasty to her. For me, it wasn’t so much the part between us and the appellants/plaintiffs (although that does wear on you, others can be snarky and inaccurate but we have to be respectful and accurate), but the part about what gets to the neighbors and in the press. Note that in this case, it’s not just the FS but the FWS folks involved. It can feel like being beaten over and over again, but being unable to fight back. It’s not a good feeling.

The reasons I’ve heard to not reply to inaccurate statements included: 1. if we tell our story/ attempt to correct what is stated, it will sound defensive. 2. It’s in litigation, we can’t tell our story, the cone of silence has descended. I’d be interested in other reasons that folks have heard. The feeling I got is something along the lines of “it’s a contentious world but we can’t get involved, it will only make it worse.” Solution-wise, we could imagine an “Adopt-a-Project” Program in which we get folks (perhaps retirees?), train them to “fight back” and give them the appropriate tools. This could be scary for the Agency, because of losing control, but it seems to me that you need to balance someone “assuming the best” with folks who are “assuming and promulgating” the worst if the public is to get an accurate view of what is happening on their National Forests. Other ideas to help those on the front lines?