Litigation

September litigation monthy

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This gets us up-to-date with the weeklies I’ve received.  Sit back, have a cup of coffee ….

Litigation Weekly Sept 1

  • Cent Or Landwatch v Connaughton  – The Deschutes decision to authorize a water supply intake was consistent with the forest plan riparian management objectives (RMOs) and complied with NEPA.  (9th Circuit)
  • Beaver Creek NOI  –  Alleged violations of ESA on the Flathead for failing to consult on the forest plan for grizzly bears in newly acquired lands, and for proceeding with a project in lynx critical habitat prior to completion of forest plan consultation.
  • Boise NOI,  Payette NOI,  BridgerTeton NOI  –  Alleged violations of ESA consultation/conference requirements for publication of over snow vehicle use maps.

Litigation Weekly Sept 8

  • Friends Wild Swan v. Kehr  –  (New case.)  The Beaver Creek Project on the Flathead is being challenged for failure to consider the cumulative effects of another project on the same ranger district, and for being inconsistent with forest plan road density standards for grizzly bears and elk.  (See also Beaver Creek NOI above.)  (D. Montana)
  • Oregon Hunters Association v USFS  –  (New case.)  Plaintiffs argue that the Ochoco Summit Trail System Project on the Ochoco failed to consider effects on elk and violates the forest plan direction for elk.  (D. Oregon)

Litigation Weekly Sept 15

  • CCRMC_v_USFS  –  Collection of data related to possible construction of a mine tailings pond on the Tonto had nominal effects on the environment, and approval did not require consideration of the impacts of the proposed copper mine it would service.  (D. Arizona)
  • WinterWildlandsAlliance_v_USFS  –  (New case.)  This case involves over snow vehicle use maps on the Boise, Payette and Bridger-Teton prepared in 1988 and 1990.  They are alleged to based on out of date information, violate forest plan requirements for at-risk species, and were not eligible to be “grandfathered in” under the Travel Management Rule.  There is also a claim under the Wyoming Wilderness Act.  (See also ESA NOIs above.)  (D. Idaho)
  • WesternWatersheds_v_Michael  –  A Wyoming state statute that criminalized collecting data on public lands after trespassing on private lands infringed on the First Amendment’s right of free speech. (10th Circuit)

Litigation Weekly Sept 22

  • Rocky Mtn Wild v Dallas  –  In a case that voided the Rio Grande’s approval of land exchange related to the Wolf Creek Ski Area, the court denied a motion by the proponent to reconsider its decision.  (D. Colorado)  Discussed in more detail here.
  • Sequoia Forestkeeper v Price  –  The Frog Timber Sale Project on the Sequoia complied with NEPA and forest plan requirements with regard to fisher.  (E. D. California)
  • FSEEE v USFS  –  (New case.)  The complaint alleges that the decision to grant a special use permit to the Navy to conduct electronic warfare training did not to comply with the Olympic forest plan.  W.D. Washington)
  • CBD v BLM  –  (New case.)  The Battle Mountain District of the BLM (Nevada) leased 195,732 acres for oil and gas development using an EA, and was challenged regarding its NEPA compliance.  (D. Nevada)
  • DOW v Duke  –  (New case.)  This case involves the decision by the Department of Homeland Security to waive federal laws under the Illegal Immigration Reform and Immigrant Responsibility Act to construct a prototype Mexican border wall, due to its environmental impacts.  (S.D. California)
  • WildEarth Guard v BLM  –   The BLM failed to adequately consider the greenhouse gas emissions of four coal leases in Wyoming because its assumption that coal would be produced elsewhere if the no-action alternative were selected was not supported by the record (though mining was allowed to continue on remand).  (10th Circuit)

Litigation Weekly Sept 29

  • WildEarthGuardians v. Provencio  –  The Kaibab’s use of the motorized big game retrieval exception under the Travel Management Rule complied with the Rule and the National Historic Preservation Act, and the EA complied with NEPA.  (D. Arizona)
  • USA v. Carpenter  –  Elko County did not prove ownership of a road on the Humboldt-Toiyabe, and the Forest could not convey rights to the road in a settlement agreement.  (D. Nevada)
  • Alaska v. USDA     The 2001 Roadless Area Conservation Rule was again upheld, including consideration of its application to the Tongass.  (D. D.C., scanned file size exceeds site capacity)
  • CBD v. FWS  –  (New case.)  Plaintiffs challenge the biological opinion by the Fish and Wildlife Service, and reliance on it by the Coronado when it approved the operating plan for the Rosemont Copper Mine.  (D. Arizona)  Discussed further here.
  • Wyoming v. Zinke  –  The BLM has proposed to rescind its 2015 Fracking Regulation, and therefore a case involving its validity was not ripe for judicial review.  (10th Circuit)

R.I.P. Saw Brigade

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In another old case …

The Supreme Court has left in place a lower court ruling that prevents New Mexico from greenlighting tree clearing on federal land in the state in the name of fire prevention.

The Supreme Court declined Monday to hear a dispute between New Mexico and the federal government.

The issue dates back to 2001 when New Mexico passed a law saying the U.S. Forest Service had failed to reduce the threat of forest fires by not clearing undergrowth and removing trees on Forest Service land. The law then gave counties in the state permission to do the work.

When Otero County moved to cut trees on land in the Lincoln National Forest without federal approval in 2011, the United States government sued. Lower courts sided with the federal government.

https://www.abqjournal.com/1072087/supreme-court-declines-to-hear-nm-tree-clearing-dispute.html

R.I.P. Shovel Brigade?

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The Jarbridge Road in Nevada is back under the control of the Forest Service.

A federal judge in Reno ruled against rural Elko County this week — again — and closed the 18-year-old case stemming from a sometimes volatile feud over the road in remote wilderness near the Idaho line.

It began in 1999 when the Clinton administration filed suit against then-Nevada Assemblyman John Carpenter, one of the leaders of a “Shovel Brigade.” They had vowed to rebuild a washed out road near threatened fish habitat along the Jarbidge River in defiance of the government. Carpenter and one of his lawyers, Grant Gerber, have since died.

The county claimed it owned the road under a Civil War-era law that granted state and local governments’ rights of way to existing roads in places where national forests and parks later were established.

The so-called “R.S. 2477 roads” — named after the statute number — became a lightning rod for property rights advocates and anti-federal forces in the 1990s, with similar court battles in Utah, Idaho, Colorado, Oregon and New Mexico.

Like other cases, the federal government denied Elko County’s claim it owned the road before the Humboldt National Forest was established in 1909.

But the Nevada case is unique because, despite the government’s position, the Forest Service signed an agreement with the county in 2001 that said it wouldn’t challenge the county’s alleged right of way.

It looks like the court held that 1) the county did not prove that it owned the road prior to the establishment of the national forest, and 2) the Forest Service could not violate the law by giving away federal land rights though a settlement agreement.  (Of course the county could again appeal this ruling to the 9th Circuit.)

What is Beyond the “Fog of War”?

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There are scary and uncertain times ahead for our forests. There is just too much “Fog of War” going on for the public to sort out and fact-check for themselves. Even the ‘fact-checkers’ should be suspect, until proven reliable and bias-free. The rise of ‘fake news’ has blurred multiple lines, and many people, even in mass media, fall for the hoaxes, satire or misinformation. (Example: An article appeared on the Grist website, showing concern about a recall of “Dog Condoms”, presenting the link to www.dogcondoms.com )

New lawsuit – winter motorized recreation in Idaho

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A sneak preview of the September litigation monthly:

A lawsuit filed by the Winter Wildlands Alliance and WildEarth Guardians contends that the Bridger-Teton, Boise and Payette national forests improperly used a “grandfather provision” to avoid preparing a new winter travel plan.

The U.S. Forest Service historically allowed its forests to forgo winter travel plans, but in 2015 changed direction and required them to delineate where snowmobiles can and cannot go. A provision allows forests to skip the planning process if winter routes were designated through a public process, and they haven’t been changed since.

Groups suing contend the Bridger-Teton, Boise and Payette ignored the requirement to plan.

Apparently because they have “been changed since.”

August litigation monthly

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I’ll try to keep up weekly, but will deal with the backlog in a couple of chunks.  I plan to just summarize the Forest Service summaries here (to minimize space and work and chance for misrepresenting them).  If you want the original summary or the supporting documents, click on the links.  If I have an opinion, I’ll keep it separate.  Jon

Litigation Weekly Aug 4

Litigation Weekly Aug 11 

  • AWHPC v Perdue  The Modoc failed to explain a change in acreage in its plan for the Devil’s Garden Wild Horse Territory. (D. C. Circuit)
  • Rosemont CWA NOI  Alleged Clean Water Act violation by the Coronado for its plan for the Rosemont copper project.  More here.

Litigation Weekly Aug 18

  • CBD v Eli Ilano  Designation of lands as at-risk under the Farm Bill did not require NEPA.  The use of the Farm Bill’s categorical exclusion was upheld on the Sunny South Insect Treatment Project on the Tahoe with respect to spotted owls.  (E.D. California)
  • CNSP v. USFS  New case.  A permitee challenged denial of proposed electronic site construction on the Santa Fe.
  • ESA NOI  Alleged ESA violations involving grizzly bears and lynx by the Helena-Lewis & Clark for the Moose Creek vegetation project.

Litigation Weekly Aug 25

  • Sierra Club v DOE  The Department of Energy properly granted a liquid natural gas export permit without considering indirect effects of gas production that were not reasonably foreseeable. (D. C. Circuit)
  • Mont Env Info Ctr v OSM The Office of Surface Mining failed to adequately consider the effects of coal transportation and combustion and greenhouse gas emissions when it approved an application to expand coal mining.  (D. Montana)
  • Sierra Club v. FERC_ 2017 U.S. App. LEXIS 15911  The Federal Energy Regulatory Commission EIS for the Southeast Market Pipeline project did not contain enough information about the greenhouse gas emissions that would result from burning the gas.  (D. C. Circuit)  (Requires Lexis subscription)

 

New lawsuit on Arizona copper mine and jaguars

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The Coronado National Forest has been sued by the Center for Biological Diversity for approving the Rosemont copper mine.  The U. S. Fish and Wildlife Service is also a defendant because the issues involve ESA consultation on the mine.

The Rosemont Mine would “significantly impact a number of endangered species and their remaining habitat, including one of the three known wild jaguars in the United States,” said the center.

The mine’s footprint lies “squarely in jaguar critical habitat” important for the survival and recovery of jaguars in the United States, the Center said, cutting through the home territory of “El Jefe,” one of three jaguars spotted in Arizona’s mountain, the center said.

In the lawsuit, the center said that the mine would affect 5,431 acres of land in the Coronado National Forest, including hundreds of acres used as a “dumping site” for more than a billion tons of waste rock and tailings facilities. Approved by the Forest Service, the Rosemont Mine would also include hundreds of acres of fencing that would present a “permanent barrier to wildlife movement.”

“The Rosemont Mine would turn thousands of acres of the Coronado National Forest into a wasteland,” wrote Marc Fink, an attorney for the group. “Even though the agencies found it would permanently damage endangered species and precious groundwater resources, they’re letting the mine proceed,” he said.

The decision to permit the mine required a forest plan amendment.  The Forest Service provided this rationale:

“I have decided to amend the 1986 Coronado forest plan by creating a new MA that provides for
mining of privately held mineral resources while allowing other forest uses to the degree that they are safe, practical, and appropriate for an active mining or postmine environment. Standards and
guidelines have been developed specifically for this new MA (MA 16). See the FEIS, pp. 117–120,
for details. In so doing, this project meets the requirements of 36 CFR 219.

I have determined that this programmatic amendment of the 1986 forest plan is not significant
because it would not significantly alter the multiple-use goals and objectives for long-term land and resource management for the forest as a whole.”

The requirements of “36 CFR 219” it allegedly satisfied were those from the 1982 planning regulations.  The amendment was allowed to proceed under the old regulations because it was initiated prior to the 2012 Planning Rule.   However, both sets of regulations require that forest plans provide for recovery of listed species.  There could be an NFMA violation as well.

“Hunting group sues to stop Ochoco off-road trails”

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This is about the Ochoco Summit Trail System Project:

The project proposes to designate a trail system in the Ochocos specifically for off-highway vehicles. The trail would be open seasonally and it would be built using mostly existing roads and trails tied together by some currently open roads. It would be a system where motorcycles, quads, side-by- sides, and Jeeps could ride trails designed specifically for enjoyment and recreation. The trail  system would be accessed at designated staging areas, parking areas, or trailheads.

The current Final Supplemental EIS has five alternatives for the trail system that range in distance from 124 miles (Alt 2) to 158 miles (Alt 4), and the No Action alternative (Alt 1).

The idea for this system originated in 2009 when the Ochoco National Forest conducted travel management planning. The 2005 Travel Management Rule required the forest to designate a system of roads, trails, and areas for motorized use and to prohibit cross-country travel. Under the motorized travel system adopted in 2011, recreational OHV users lost a lot of opportunity. More than 80 percent of the forest was made off-limits to OHV use and most of the roads still open to OHV driving lack connectivity and must be shared with cars and trucks. Through an engineering analysis, some system roads were also deemed unsafe for mixing non-street legal OHVs with
passenger vehicles and commercial traffic.

The lawsuit:

The Oregon Hunters Association, the state’s largest, pro-hunting organization made up of more than 10,000 members, filed the lawsuit in the Pendleton Division of the United States District Court on Aug. 31, arguing the decision to approve the trails is not supported by scientific wildlife research the Forest Service completed on the Starkey Experimental Forest in Northeast Oregon.

The hunters association argues the addition of trails and roads would increase use, which Forest Service scientists have shown adversely affects elk habitat, according to a news release from the hunters association Research on the Starkey Experimental Forest found the animals avoid areas within 1.1 miles of roads or motorized trails.

This idea of designating a motorized trail “system” as a distinct “project” seems kind of unusual to me (it’s not just a “travel plan”).  The conflicts with wildlife are not, however.  There’s also a claimed violation of NFMA.  This lawsuit (“environmental extremists” abusing the legal system?) might get at some interesting questions about motorized recreation use on public lands.

Politicians vs science

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Ideology was on display at a grandstanding event on the Lolo Peak Fire.

Secretary Sonny Perdue, Interior Secretary Ryan Zinke, Congressman Greg Gianforte and Senator Steve Daines got a briefing from the fire management team, and then held a short press conference.

Senator Daines repeated a refrain that Montana Republicans have been saying for years: That lawsuits from extreme environmental groups are preventing the U.S. Forest Service from carrying out logging and thinning projects that would remove trees and prevent wildfires… “It is the lawyers who are – funding for these extreme environmental groups — who are having a tremendous impact, devastating impact on allowing us to move forward here on some common sense timber projects,” Daines said.

Both Perdue and Congressman Greg Gianforte pointed to a 5,000 acre logging project called the Stonewall that was approved by the Helena Lewis and Clark National Forest outside Lincoln in 2016. That was then put on hold in January by a judge responding to a lawsuit from the Alliance for the Wild Rockies and Native Ecosystems Council. That area is now burning as part of the Park Creek fire sparked by lightning this summer.

But, after listening to audio of the press conference this afternoon, the dean of the Forestry School at the University of Montana, Tom DeLuca, cautioned against expecting too much from a timber sale or wildfire  fuel management projects…  On a windy, hot day, a fire will carry right through that understory or in those crowns regardless of whether it’s been thinned or not. It does change the behavior…  There are also studies that try to quantify how much more severe wildfires are in recent years due to climate change. DeLuca says it’s clear that human-caused climate change from burning fossil fuels is making fire seasons longer and more intense.

Sen. Daines says, “We go through warmer cycles, cooler cycles, droughts, excessive precipitation. We are in a warm cycle right now, we are in drought conditions here in Montana consequently we’re having a severe fire season.”

(Climate scientist Steve) Running says.., “”What I heard is the kind of evasive response, ‘yeah weather’s always changing and we’ve had dry seasons and fire seasons before,’ and so the implication that there’s nothing really new and this is just part of natural cycles. Of course in the climate change research community we’ve well documented in dozens and dozens of peer reviews papers that the fire season’s getting longer and overall we’re burning more acres than in the past and that we’re on a trend of longer fire seasons and bigger fires,” Running says…  It’s always the case that if you pick any one year out you can say there’s been other years like this, but when we study climate, we’re studying decades, multi-decadal trends, and we clearly document multi-decadal trends of longer, warmer summers and more, bigger fires.”

At least Perdue agreed, “There obviously is climate change …”

Court buys FS interpretation of viability for bighorn sheep

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On July 31, the federal district court for Wyoming found that the revised Medicine Bow National Forest Plan met the requirement of the 1982 planning regulations to manage habitat “to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.”  At issue was the meaning of additional language in the regulation that “habitat must be well distributed so that those individuals can interact with others in the planning area.”  The court determined that, “there is no requirement that the Forest Service manage habitat so as to maintain bighorn herds, at maximum potential, across the entire Forest, at all potential habitat locations…”

There are three reintroduced herds of bighorn sheep on the national forest.  The plan would only protect two of those from exposure to disease risks from domestic sheep, which is the major risk factor for bighorns, by eliminating domestic sheep grazing.  The small unprotected herd was stable but had never thrived, and was considered a low priority by the state of Wyoming.  The court found that the viability regulation was ambiguous and the agency’s interpretation in this case had changed during the administrative review.  Nevertheless it held that the record adequately explained the agency’s interpretation that protecting the two herds from domestic sheep and providing other plan direction that would benefit all three herds would meet the viability requirement:

“The Regional Forester made the determination, given all information available to him, that emphasizing domestic sheep grazing over the Encampment River herd in the Sierra Madre range, the Medicine Bow National Forest would still be able to manage the habitat of the Laramie Peak and Douglas Creek herds in order to achieve viability of bighorn sheep.”

The court found that this was determination was not arbitrary or capricious.  (Biodiversity Conservation Alliance v. Jiron)