This is about forest plan litigation – sort of. The Michigan Wilderness Act included a provision protecting “valid existing rights.” A series of forest plan amendments by the Ottawa National Forest imposed restrictions on motor boat use on a lake that was mostly within a wilderness area but partly touching private land. A 2007 Forest Order, subjected violators of Amendment No. 5 to criminal liability. An earlier case concluded that Michigan riparian water rights allowed for “reasonable use” of the lake’s surface water, and that, “the motorboat restrictions interfered with Thrall’s ‘valid existing right’ to use gas motor boats on Crooked Lake’ and thus fell outside the Forest Service’s regulatory authority.”
The question in the current case was whether purchasers of lakefront property in 2010 also had “valid existing rights” to unrestricted motorboat use. After sorting out the timing questions in favor of the private owners in this case, the Sixth Circuit court revisited the nature of riparian rights, holding that the Forest Service could only prohibit unreasonable uses:
“But the Forest Service has not shown that it would be unreasonable under Michigan law to travel on 95% of the lake above a low-wake-zone speed. If you think otherwise, try being at one end of a three-mile lake with a five-mile-an-hour speed limit as an unexpected storm sets in.”
(Evidently what’s reasonable in Michigan is different from what’s reasonable in wilderness.)
The Ninth Circuit affirmed the district court denial of a preliminary injunction for the North Fork Mill Creek A to Z Project on the Colville National Forest, which has been discussed here. Of note, the question of contractor-NEPA was not addressed, although the court said that the Forest Service “reviewed and approved” the EA, and “The Forest Service subsequently retracted and revised the EA to address concerns raised by the public.”
That’s right, an EA on a 13,000 acre logging project with some at-risk species. How could that be? The short answer is essentially full mitigation of effects. For pine marten and fisher, the plaintiffs agreed that goals in the forest plan would protect the habitat, and that the project was consistent with those goals by correctly identifying the habitat and leaving it alone. The legal arguments they made were more technical and weaker. So, while there are some differences here from the Colorado Tennessee project in lynx habitat, it appears that the Colville forest-wide conservation strategy for these species also simplified the project NEPA process. Full mitigation basically also occurred for sediment and open road density (It also probably didn’t hurt that, “The project was the result of a multi-year collaboration among elected officials, environmental organizations, Native American tribes, the timber industry, and community organizations.” And maybe that had something to do with why the FS agreed to this degree of mitigation.)
The opinion includes an interpretation of the 2012 Planning Rule’s requirement for the use of the “best available scientific information in the forest planning process” (despite the fact that the new Planning Rule does not apply to either the existing plan or to any projects). Quoting a Ninth Circuit case: A party challenging the Forest Service’s scientific analysis cannot simply “cite studies that support a conclusion different from the one the Forest Service reached” and must instead provide “scientific studies that indicate the Forest Service’s analysis is outdated or flawed.”
Here’s a story about an enjoined timber sale that might be burning up right now. It will no doubt become Exhibit A for arguing why we should not allow the public to sue the government over its land management decisions.
“Both the Park Creek and Arrastra Fires on the Helena-Lewis and Clark National Forest were ignited by lightning storms that spread through dense stands of dead timber. And both are located within the area of the Forest Service’s proposed Stonewall Vegetation Project, which was halted when two environmental litigant groups successfully convinced a federal judge to issue a preliminary injunction to halt the project.”
I just have to question the conclusions: “The preliminary injunction against the Stonewall project, and the resulting fires …” and the idea that environmental litigants should be “held accountable for their actions.” First there is the question of what exactly their actions caused (the fires?), and second is the idea that there should be liability associated with winning a lawsuit. I think the judge allocated accountability in this case to the Forest Service for failing to follow the law. They could have reconsulted on lynx critical habitat long ago, and the court said they should have, and if they had, the project would have probably occurred on schedule.
This case about wild horses on national forests shows how courts tend to look at agencies changing their minds (for whatever reason). “The judges said decades of history and practice by the Forest Service can’t be swept away by calling the original decision a mistake.” There is a process for remaking decisions – even “mistakes.” (I think I don’t agree with the author’s summary at the end – a mistake IS the same thing as a decision.)
I think it might be interesting to examine and discuss some of the specific ideas in the Westerman bill. The text of the arbitration section of the Westerman Bill is Title III subtitle B here. I like the idea of pilots- perhaps have two or three approaches and at the end of two years have a bipartisan commission or advisory committee (folks appointed from both parties and all sides of the issue) review how things worked. It seems to be different from the Barrasso bill that we discussed here in 2014, although the legal discussion about arbitration may still be valid.
I like how this process includes both Agriculture and Interior in the pilot, and how the arbitrator has to be approved by each party involved. I particularly like that each intervenor has to put its cards on the table in terms of going with the proposal, or submitting a modified proposal.
Another pilot might be a period of open, transparent public mediation perhaps done through the US Institute for Environmental Conflict Resolution (established by Congress for just these sorts of things). Not only would people have to put their cards on the table (put the public back in public policy) but it would be a great opportunity for science education (e.g., how do you know that this or that will or will not happen)?
Here’s a description of arbitration compared to mediation:
Arbitration and mediation are similar in that they are alternatives to traditional litigation, and sometimes they are used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. However, it is common to employ mediation as a non-binding process and arbitration as a binding process. In simpler terms, binding arbitration replaces the trial process with the arbitration process.
Arbitration is generally conducted with a panel of multiple arbitrators who take on a role like that of a judge, make decisions about evidence and give written opinions (which can be binding or non-binding). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote.
Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute.
Somehow I like the idea of a panel of three arbitrators better than the one in the Westerman bill. Maybe that could be another idea tested in the pilots. Maybe Congress could pick two regions, one in the 9th Circuit and one in the 10th Circuit, and test these approaches on a sample of projects. Maybe a joint advisory group could be developed with folks from differing perspectives to select 20 projects to try each way and report back. Forty projects would not cause ecosystems to collapse nor species to go extinct (the group could even agree on a maximum number of acres treated in the pilot) and we might all learn something.
I bet there are other interesting approaches floating around. There is a group in Australia called PCERA who does this:
Second, PCERA provides a new model for expert determination called Collaborative Expert Resolution. This process involves an independent expert being appointed for each party to undertake an independent informal assessment of the merits of the case. The experts then meet and reach consensus, through a collaborative process, as to the resolution of the dispute on the merits. The assessment may be undertaken on a binding or non-binding basis. The outcome is a form of expert determination process in which the parties can work closely with the assessor appointed to consider their case, ensuring the merits of the case are addressed.
I like the idea of experts being involved in this approach.
This case is from the July 28, 2017 Litigation Weekly but maybe deserves separate discussion. Previously folks have said you shouldn’t do EA’s but should do EIS’s, seemingly based on case law more than the NEPA regulations themselves (or as it has been characterized “DOJ won’t defend EA’s”). So we had been watching to see what EAs made it through litigation. This one has 13,580 treated acres and an endangered species (Canada lynx). I wonder if there’s something these folks did that others don’t do, or whether it’s just a “crapshoot” to go to court as my former colleague once said… It can’t be a lack of litigants, as these are folks who litigate frequently and are presumably good at it.
Here’s a list of hypotheses:
1. High quality NEPA work and consultation from the Leadville Ranger District (always one of my favorite hypotheses :))
2. Something about lynx is easier to accomplish than other ESA requirements..
3. Judges have different points of view
4. Judges in different circuits tend to have different points of view.
5. DOJ defense was above average.
6. Plaintiffs work was below average.
Other hypotheses?
Here’s a link to the project documents, the final EA (and draft) are under the “analysis” tab. It’s in the neighborhood of 150 pages, and it’s very readable. There is a draft and final EA, and the project went through the objection process.
Here’s what FS Litigation Weekly said about the case:
3. Wildlife I Region 2
The District of Colorado ruled favorable for the Forest Service on a National Environmental Policy Act (NEPA) suit challenging the Tennessee Creek Project on the San Isabel National Forest in WildEarth Guardians v. Conner. Plaintiffs challenges to the project focused namely on the Forest Service’s Canada lynx analysis under the Southern Rockies Lynx Amendment (SRLA) and to the use of an Environmental Assessment (EA) rather than an Environmental Impact Statement (EIS).
Plaintiffs claimed the EA failed “to disclose, analyze, and otherwise take a hard look at the environmental effects on lynx and specific types of lynx habitat.” They argue the EA: 1) should have included site-specific analysis and details as to treatment locations; 2) should have taken a harder look at lynx denning habitat; and 3) should have disclosed the location of existing lynx winter habitat within the project area. The court rejected these assertions.
Site-specific analysis is only required, as per the court, if environmental impacts are reasonably foreseeable. As the plaintiffs did not claim any such foreseeable impacts, the court concluded site specific analysis and treatment location details were unnecessary.
For denning habitat, the court found “the SRLA sets forth the appropriate framework for evaluating the effects of a project on lynx.” As the Forest Service complied with the SRLA through mapping lynx habitat, generally excluding spruce-fir habitat and habitat with dense horizontal cover, and attempting to promote foraging habitat, the court found the Forest Service’s analysis of lynx habitat in compliance with NEPA.
For lynx winter habitat the court found the Forest Service “focused on maintaining high-quality winter snowshoe hare habitat, per the SRLA guidance… The Service thus designed the project to exclude high-quality snowshoe hare habitat from treatment based on the best available science.” Accordingly, the court concluded the Forest Service satisfied its duty to take a hard look at the project’s impact on lynx winter habitat.
Plaintiffs next contended that the Forest Service was required to prepare an EIS due to the unique characteristics of the project area and the project’s impacts on it. The court, however, found the project activities insignificant when compared to the area in which they will be undertaken and that the agency did consider the characteristics of the project area, demonstrated by the constraints imposed on the project to protect high quality lynx habitat.
Here’s what the project does:
• Regenerate lodgepole pine through clear cutting on 2,370 acres.
• Thin 6,765 acres of mature lodgepole pine stands. Pre-commercial thin 345 acres of advanced regeneration of lodgepole pine.
• Improve aspen stands through prescribed fire and/or harvesting on 115 acres.
• Utilize prescribed fire on 6,040 acres with an average of 150 -300 acres of prescribed fire treatment per year.
• Remove encroaching conifers in meadows and sagebrush (1,345 acres) and use prescribed fire treatments in meadows throughout the project area (1,330 acres).
• Create small openings (less than 5 acres) in mixed conifer stands adjacent to spruce-fir by harvesting lodgepole pine to promote regeneration (375 acres).
• Remove spruce infested with or killed by insects (up to 1,395 acres).
• Maintain vegetation cover and increase age class and structure diversity over the long-term within the Ski Cooper Ski Area permit boundary (1,052 acres) utilizing mechanical and prescribed fire treatments in lodgepole and spruce-fir.
• Treatments adjacent to the Continental Divide National Scenic Trail (CONST) will be modified in accordance with Design Criteria #45 -47 (see the appendix to this decision).
• In order to conserve Canada lynx, the proposed action is specifically designed to comply with all objectives, standards, and guidelines in the Southern Rockies Lynx Amendment. To further protect quality lynx habitat, all areas in mapped lynx habitat with greater than 35 percent dense horizontal cover will not be treated.
• Mechanical treatments (thinning / clearcuts) will average 300 – 500 acres per year.
• Improve aquatic organism passage through the removal or replacement of 5 – 7 non-functioning culverts on National Forest System roads.
• Construct 2 – 4 nesting platforms at Turquoise Lake.
• Improve erosion and compaction issues by ripping, contouring, mulching, seeding, and/or installing erosion control netting in four developed sites (campgrounds and picnic areas).
• Improve aquatic habitat, reconstruct channel geometry, reduce erosion, and normalize sediment transport in 2.3 miles of Halfmoon Creek.
• Improve and maintain approximately 14 miles of Forest System roads including widening a portion of Forest System Road 109.
• Create approximately 20 miles of temporary roads and open approximately 1.5 miles of closed roads over the life of the project; roads will be closed and rehabilitated after treatments are complete.
The CERCLA case was mentioned on the blog before, plus I think this Ochoco travel management is interesting in terms wolves in the project area (I worked on the Ochoco way pre-current-wolves).
Court Decisions 1. CERCLA I Region 3
The 10th Circuit ruled on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) case involving a molybdenum mine owned by Chevron Mining Inc. near Questa, New Mexico in Chevron Mining Inc., v United States et al. The mine was partially located on national forest land.
“Under [CERCLA] the owner of property contaminated with hazardous substances or a person who arranges for the disposal of hazardous substances may be strictly liable for subsequent clean-up costs.” Anticipating cleanup costs exceeding $1 billion and seeking financial contributions for the clean-up, Chevron Mining filed suit against the United States asking for a declaration that the government is strictly liable for a portion of the clean-up costs as a potentially responsible party (PRP) as both an owner of portions of the site and as an arranger of hazardous substance disposal. The court concluded the United States is an owner, and therefore, a PRP, but the court also concluded the United States cannot be held liable as an arranger. (more in Lit Weekly)
New Cases 1. Recreation & Wildlife I Region 6
Plaintiffs, Central Oregon Landwatch, filed a complaint in the District of Oregon stating that the Ochoco Summit Trail System Project on the Ochoco National Forest violates both the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) in Central Oregon
Land Watch v. Forson et al. The project would authorize 137 miles of off-road vehicle (ORV) routs, including 53 miles of new construction. Specific allegations include:
NFMA:
1. The Forest Service violated the Ochoco Forest Plan standards and guidelines protecting Rocky Mountain Elk by failing to provide adequate road density calculations and analysis, failing to address ORV impacts on elk calving and wallows habitats through the use of stale data, and failing to place any restrictions on ORV use during either the elk calving or rutting seasons.
2. The Forest Service violated the Inland Native Fish Strategy (INFISH) standards protecting riparian areas by failing to demonstrate compliance, failing to prioritize riparian objectives over dispersed recreational needs, failing to explain why some standards did not apply to the project, failing to gather site-specific data to support the modification of standards, and the reliance on arbitrary statements.
NEPA:
1. The Forest Service failed to properly present an accurate and complete picture of the environmental baseline and the No Action Alternative by relying on stale data and failing to show the location of routes currently receiving unauthorized use.
2. The Forest Service failed to adequately disclose and consider direct/indirect impacts the project will have on the environment and failed to adequately address mitigation measures of those impacts.
3. The forest service failed to disclose and consider the cumulative impacts of reasonably foreseeable projects, grazing, and continued unauthorized ORV use in the project area.
4. The Forest Service failed to provide the public with critical data and key documents like specialist reports in a timely manner.
(17-01091, D. Or.)
Notices of Intent 1. Ochoco Summit Trail System Project I Region 6
Central Oregon Land Watch submitted a Notice of Intent to Sue on July 12, 2017 claiming a violation of the Endangered Species Act’s (ESA’s) consultation requirements for the Ochoco Summit Trail Project on the Ochoco National Forest. According to the NOl, monitoring data shows gray wolves are present in the project area and the impacts from the project’s implementation will impact the denning, foraging, and dispersing of the wolves as well as the presence of prey species. The NOI claims the Forest Service must initiate consultation with the Fish and Wildlife Service to ensure the project does not jeopardize gray wolves.
Here’s the Lit Weekly version of the Court decision on NEPA and the Wolverine fire we discussed previously here (27 comments).
1. Fire I Region 6
The District Court for the Eastern District of Washington ruled for the Forest Service on a National Environmental Policy Act (NEPA) case challenging the construction of a Community Protection Line (CPL) to contain the Wolverine Fire on the Chelan Ranger District of the Okanogan-Wenatchee National Forest in Forest Service Employees for Environmental Ethics v. United States Forest Service et al. The Wolverine Fire was ignited by lightening on June 29, 2015. By August 27, 2015 the fire grew to approximately 62,000 acres. After two failed attempts to contain the fire, the Forest Service began constructing the CPL, described as an approximately 20-mile long contingency line consisting of a roughly 300 foot wide thinning of vegetation. The CPL was near completion when the Forest Service halted construction after rain showers slowed the fire. Plaintiffs filed suit against the Forest Service on August 16, 2016, – “well after the construction of the CPL— complaining that the CPL was constructed without complying with NEPA.”
Plaintiff’s NEPA claims assert: 1) NEPA does not have a waiver from its procedural requirements for emergency actions and 2) even if NEPA did have a waiver, the Forest Service did not meet the requirements for claiming that waiver and wildfires do not represent emergency situations.
The court rejected both of plaintiff’s claims. The court ruled that NEPA does allow agencies to take actions in emergency situations “without complying with the ordinary, burdensome reporting requirements” because to require agencies to do so “is generally not feasible or prudent.” Under NEPA, an agency can circumvent traditional NEPA requirements if a “responsible official” determines “an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis,” and the action is “necessary to control the immediate impacts of the emergency.” The court concluded a responsible official did determine that the Wolverine Fire constituted an emergency situation and “just because wildfires are common and their general existence is foreseeable, the danger created by any specific wildfire is not so foreseeable and can create an emergency situation with little or no forewarning.” (16-293, E.D. Wash.)
Litigation Update 1. Wildlife I Region 9
Environmental groups submitted an amended complaint in the Southern District of Ohio adding Endangered Species Act (ESA) claims to National Environmental Policy Act (NEPA) claims against the Bureau of Land Management’s and Forest Service’s authorization of oil and gas leasing in the Wayne National Forest’s Marietta Unit in Center for Biological Diversity et al. v. U.S. Forest Service et al. The new ESA claims assert that both agencies relied heavily on a 2005 Biological Opinion (BO) which plaintiffs claim is out of date due to new conditions and listed species at the lease sites. Relying on an outdated BO, as per the complaint, means the agencies cannot ensure that the leases will not likely jeopardize threatened or endangered species and therefore the plaintiffs assert the agencies must reinitiate consultation with the Fish and Wildlife Service (FWS) to address new information and species that have been listed since the 2005 BO. (17-372, S.D. Ohio) New Case! 1. FOIA & Timber I Region 10
Public Employees for Environmental Responsibility (PEER) filed a complaint in the D.C. District Court alleging violations of the Freedom of Information Act (FOIA) in Public Employees for Environmental Responsibility v. United States Forest Service. PEER claims that on April 7, 2017, as a result of concerns about the mismanagement of commercial stewardship timber sales on the Tongass National Forest, the plaintiffs submitted a FOIA request asking for: 1) a news release allegedly issued by the agency related to commercial stewardship timber sales in the Tongass; and 2) records detailing how the agency addressed issues raised in an internal review of its timber sale administration. According to PEER the Forest Service is currently in violation of FOIA because the agency has yet to respond to PEER’s FOIA request despite being required to do so within 20 working days from its receipt. (17-1277, D.D.C)
Notices of Intent
1. North & South Pioneer Fire Salvage and Restoration Projects I Region 4
WildLands Defense, Inc. submitted a Notice of Intent to Sue (N01) related to the North and South Pioneer Fire Salvage and Restoration Projects on the Boise National Forest. The NOl claims these projects violate the ESA for both Canada lynx and bull trout. For Canada lynx the NOI asserts that, because both projects contain lynx habitat and Canada lynx has been ordered to undergo re-consultation, the project cannot go forward until that consultation process is complete. For Bull Trout, the NOI states that the Forest Service glossed over the impacts the projects would have on already at-risk population and habitat conditions. WildLands Defense believes the agency should have issued a ‘likely to adversely affect’ determination, instead of a ‘not likely to affect’ determination, and entered formal consultation with FWS to comply with the ESA.
2. Martin Basin Rangeland Project I Region 4
Martin Basin Permittees submitted a request to reinitiate consultation and a NOl concerning a 2016 Martin Basin Biological Opinion (BO) and the agency’s authorization of livestock grazing on the Santa Rosa Ranger District of the Humboldt-Toiyabe National Forest. The request and NOI concern a conflict between the 2016 Martin Basin BO and the 2017 Jarbridge BO. Permittees claim both BOs are “functional equivalents” since both implicate threatened Lahontan cutthroat trout fish management upon grazing, but apply opposite terms and conditions “without any rational or legal basis to do so.” According to the Permittees the 2016 BO imposes a stream alteration term and condition while the 2017 BO does not.
I have sadly fallen behind in posting these, and my previous workaround stopped working, so will be catching up…
1. Land Use I Region 1
The District of North Dakota ruled favorably for the Forest Service on actions filed by North Dakota and several counties seeking quite title to claims of section line rights-of-way on the Dakota Prairie Grasslands. The order consolidated North Dakota et al. v. United States of America and Billings County et al. v. United States of America. ….(more in the original LW)
The court ultimately agreed with the U.S. Specifically, the court found “the 1976/1977 Travel Plans for Sheyenne National Grassland and Little Missouri National Grassland and accompanying ‘Public Notice’ and signage, as well as the Public Notices issued by the Forest Service in 1982, 1984, and 1988, as to the Sheyenne national Grassland” were sufficient to put North Dakota on notice of the United States’ claim to
exclusive control over the 33 feet on either side of the section lines and trigger the QTA limitation period. As the plaintiffs’ complaints were filed more than 12 years after the travel plans and public notices, the plaintiffs’ claims were barred by the statute of limitations. (12-125 and 12-102, D.N.D.)
NEW CASE
1. Recreation and Land Use I Region 6
Plaintiffs filed suit in the District of Oregon challenging the Summit Trail System Project on the Ochoco National Forest claiming violations of the National Environmental Policy Act (NEPA) the Travel Management Rule, and the National Forest Management Act (NFMA) in WildEarth Guardians et al. v. Forson et al. The project proposes to establish a 137-mile trail system open to motorized vehicle use during certain times of year.
According to the complaint, the project violates NFMA because it does not comply with the Ochoco National Forest Plan. The complaint contends the project: 1) is inconsistent with the plan’s standards and guidelines for Rocky Mountain Elk and Mule Deer habitat; 2) fails to comply with the road density standards and guidelines; 3) fails to comply with the recreation opportunity spectrum; 4) fails to comply with standards and guidelines for recreation impacts on riparian habitat; and 5) fails to comply with the standards and guidelines for old growth and scabland areas.
The project, as per the complaint, violates the Travel Management Rule because it: 1) fails to minimize damage to soils, watersheds, vegetation and other natural resources; 2) does not minimize harassment of wildlife or significant disruption of wildlife habitat; and 3) fails to minimize conflicts among different types of forest uses.
Plaintiffs’ NEPA claims are based on the assertion the project fails “to take a hard look at the direct, indirect, and cumulative impacts of the Forest Service’s proposed actions.” Plaintiffs believe the Forest Service did not: 1) provide accurate baseline data to evaluate the environmental impacts of the project; 2) take a hard look at the impacts the project would have on gray wolves and elk; or 3) take a hard look at the cumulative impact of the project and other projects and activities near the project area. (17-1004, D. Or.)
