Litigation

Personnel, politics and public access to public lands

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Yes, it looks like Forest Service employees should be concerned about how Trump might affect their careers.  Here’s an example about offending private landowners who block access to national forests.  (And, without any facts beyond earlier stories, I’ll suggest that you not think of these as long-term rural residents, but more likely some recent, possibly seasonal transplants, with money and political connections.)

Here’s one version of the story from a private property rights promoter:

Such cooperation, however, changed under the Obama administration as the Forest Service took a more strident approach in asserting claims to “traditional public access” routes. The dramatic change is reflected in a posting by Yellowstone District Ranger Alex Sienkiewicz who publicly advocated “NEVER ask permission to access the National Forest Service through a traditional route shown on our maps EVEN if that route crosses private land. NEVER ASK PERMISSION; NEVER SIGN IN. … By asking permission, one undermines public access rights and plays into their lawyers’ trap of establishing a history of permissive access.”

According to Sienkiewicz and access advocates, traditional public access is sufficient to establish a legal right, known as a prescriptive easement, to cross private property. Centuries of legal practice, however, have required that individuals or agencies wanting to establish prescriptive easements must prove that access was continuous, open, notorious, and hostile to the owner. In other words, the access must be without expressed permission by the landowner, a burden of proof that has been difficult, to say the least.

This doesn’t sound like the complete story.  The federal government does try to protect its existing legal interests, and that includes historic access that may not have been formalized, which it tries to negotiate.  I doubt if it often pursues litigation, but does sometimes end up in court to defend public access, as in this case involving access to the Lee Metcalf Wilderness on the Indian Creek trail, cited by the author of the op-ed above as a good example of negotiation (at least until it apparently went bad).  The Forest Service met its “difficult” burden of proof in this case.  There is a risk that asking permission now could undo the historic rights that already exist, but I don’t think it’s large, and I am a little skeptical that the Forest Service would “post” statements like that above except in cases where a particular landowner had made it clear that they were declaring war on public access, such as in this example.

Here’s another version of the same story from a recreation outfitter:

Recently, the U.S. Forest Service removed District Ranger Alex Sienkiewicz from his position in the Yellowstone Ranger District pending an internal investigation into his efforts to defend historical Forest Service trails and easements along the Crazy Mountains.

When legal access to public land does exist, I believe Montanans fully expect the Forest Service to defend and maintain that access for Montanans. As with so many of these issues involving political pressure on public agencies, a look behind the curtain reveals a very troubling story. According to media reports, U.S. Sen. Steve Daines, and Congressman Pete Sessions from Houston, Texas, both contacted Agricultural Secretary Sonny Perdue regarding Sienkiewicz’s efforts to protect legal, established accesses to landlocked public lands. According to Mary Erickson, forest supervisor, “the reassignment was made after allegations from an assortment of landowners in the Big Timber area were raised to the level of the Secretary of Agriculture, Sonny Perdue, and Sen. Steve Daines.“

Here’s the background on the Crazy Mountains access.

Blocking and posting no trespassing signs at the head of Trail 115/136 prompted Yellowstone District ranger Alex Sienkiewicz to organize a trail clearing and marking trip this past summer. Prior to that the agency traded letters with the Langhuses’ Livingston attorney, Joe Swindlehurst, who has denied there is an old forest trail at that location.

It’s not a stretch to see this as politicians ordering a personnel move to keep public lands from public hands.  Dangerous on both counts.

 

 

“Not Enough Analysis”: The Ongoing Saga of the Village at Wolf Creek

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This is the map of the ski area.

When I was working in Region 2, I used to call this project “Reasonable Access for Unreasonable People”- I think at that point it involved ANILCA access to private land, and not a land exchange. This is a later incarnation of the same project.

For those who don’t remember the first incarnation, there was the infamous Redskin Tickets and Tetratech. Note that this is from a 2007 Denver Post editorial titled “scale back oversized plans for pristine area”:

Colorado Wild researchers may have found the proverbial “smoking gun” to back up their charges. According to the Herald, the project foes found e-mails from Tetra Tech executive Mark Blauer to Honts, asking for Washington Redskins football tickets for members of his staff who “put their heart and soul into your EIS.”

District Judge John Kane blocked construction of the roads until the case is finished and said the e-mails between Blauer and Honts raise concerns about the integrity of the EIS process.

It’s interesting that the Post editorial board (or the headline writer) called the area “pristine.” It was next to a ski area. So in the next incarnation, the proponents tried this.

Why is the proposed Land Exchange better?

We believe the Village at Wolf Creek Land Exchange offers an opportunity to develop a village that is unique in character compared with other ski villages. Specifically, by moving the Village into the trees away from the ski mountain, it creates a place of tranquility and solitude not found at other ski areas. Not to mention that it minimizes any disruption to the experience one feels when skiing at Wolf Creek. Here are the potential public benefits as outlined by the Forest Service in their Draft EIS:
development of private lands would be moved further east from Wolf Creek Ski Area, and would minimize impacts to skiers and ski area operations.
the land exchange would focus residential development and associated infrastructure in an area that is more suitable due to topography, natural resources, and proximity to US Highway 160.
the proposed land exchange would lead to a net gain of wetlands and perennial streams in public ownership.
the proposed exchange would accommodate a lower density development.
the land exchange would replace the need for ANILCA access.

If the ski area is full of people, and can be seen from the area proposed, could that area be “pristine”?

Anyway, in this incarnation, we have Judge Matsch who says (according to this Durango Herald article, I did not read the judge’s opinion)

Senior Judge Richard P. Matsch in no uncertain terms agreed with those concerns.

“What NEPA (National Environmental Policy Act) requires is that before taking any major action, a federal agency must stop and take a careful look to determine the environmental impact of that decision, and listen to the public before taking action,” he wrote in his decision. “The Forest Service failed to do that.”

Matsch noted “predictive bias” in the Forest Service’s decision to approve the land swap, suggesting the agency relied on environmental reviews that favored the developers and their request.

“Public awareness of the fragility of the natural environment has greatly increased in the intervening 30 years, and the need for a scientifically based analysis of the impact of the Forest Service decisions in managing national forest system lands to support a decision is imperative in explaining the decision to the public,” he wrote.

Matsch also took issue with the public comment process.

“The 900 public comments in the record show this heightened public awareness of the effects of human disruption of the native environment,” Matsch wrote. “Notably, responses to the public comments were prepared by the contractors who did the work. They would not be expected to find that work to be flawed.”

I think this is interesting that the judge said this about analysis, because even when I was involved (and I retired five years ago), there was no shortage of analysis including that with a “scientific” basis. I don’t know for sure, but the times I was involved, specialists from the forest reviewed the work of the contractors. I wonder what evidence the judge had that the FS wasn’t doing an adequate job of this?

The other thing about this project is that it shows that even with different political parties, with their own proclivities, in charge, some projects have staying power (30 years?). This should be encouraging to those who are worried about the impacts of the new administration.

And finally, as a citizen, I’d like to thank the people who have worked on the many incarnations of this project, caught between the legal requirements of ANILCA, and the opposition to the project. They have certainly put their hearts and souls into these many iterations and perhaps some generous soul could donate Broncos tickets to them!

Enjoined timber sale “renegotiated”

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The Johnson Bar Salvage Sale on the Nez Perce-Clearwater National Forest has been approved by the Forest Service and the litigants.  (Johnson Bar has been previously discussed here in several posts.)

Following the injunction, Nez Perce-Clearwater National Forest Supervisor Cheryl Probert pulled the project and committed to a rewrite that was completed earlier this year. The environmental groups filed objections to the new logging plan, but those objections were resolved through negotiations between the agency, the environmental groups and timber companies.

“Nobody got 100 percent of what they wanted in this effort. But they have been really good about working through the process and understanding it’s in all of our best interests to get something done out there,” Probert said.

Bill Higgins of the Idaho Forest Group — one of the timber companies that successfully bid on the sale — estimated it will produce 25 percent to 40 percent of the original volume

“It’s not the best outcome,” he said. “The original project implementation on the schedule they were on was the desired outcome. This is making the best of kind of a bad situation.”

The project eliminates logging in areas that are visible from the river and places the groups feared were prone to erosion and landslides or areas that could degrade steelhead spawning habitat.

What’s not to like about this?  Maybe only that they could have done this without the litigation step, but apparently the litigation step was needed to convince the Forest Service that it couldn’t just do what it wanted without a fight.  (Anticipating Sharon’s argument, let’s assume that the timber purchasers and local governments were not formally “at the table,” but they were free to advise the Forest Service on what they wanted.)

Litigation Weekly June 23, 2017

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1. Recreation | Region 1

Court Decisions

The 9th Circuit affirmed a favorable decision from the Montana District Court in a case challenging the denial of a special use permit (SUP) for a ski area development on the Lolo and Bitterroot National Forests in  Western Montana Community Partners et al. vs Austin et al.                                          The court concluded:
Plaintiffs were not entitled to an administrative appeal because the plaintiffs did not apply for the SUP at the invitation of a “prospectus” issued by the Forest Service;
The Forest Service did not abuse its discretion in concluding the plaintiffs’ proposed resort “would not meet the visual quality standards of retention or partial retention”;
The Forest Service did not abuse its discretion in concluding the proposal was inconsistent with the Lolo Forest Plan;
The Forest Service did not abuse its discretion in concluding that the proposal contravenes the recreational standards applicable to the Bitterroot Forest Plan; and
The Forest Service was free to change its views even if it consistently endorsed the concept of building a ski resort as long as its “new policy is permissible under the statute, . . . there are good reasons for it, and . . . the agency believes it to be better.”
(15-35568, 9th Cir.)

2. Recreation | Region 1
The District Court for the District of Idaho found favorably for the Forest Service on a challenge to the Clearwater National Forest Travel Management Plan in Clearwater County et al. vs. United States Forest Service et al.
Plaintiffs, counties in Idaho, disputed the closure of approximately 200 miles of trail to motorized use where such use was previously allowed. The agency argued that the plaintiffs did not establish standing to bring the case by failing to demonstrate any actual or imminent injury resulting from the agency’s decision. The court agreed. Nevertheless, the court considered the merits of the plaintiffs’ claims.

The court ruled:
The agency adequately coordinated with the plaintiffs during the travel planning process by providing notice and an opportunity for the counties to be involved in, comment on, and cooperate with the agency during the process of developing the travel plan;
The Forest Service “articulated a reasonable and well supported basis” for why motorized uses were being limited or eliminated in recommended wilderness areas that previously allowed such uses;
The agency appropriately balanced the correct standards for management areas by providing motorized recreational opportunities while conserving big-game summer range and special wildlife areas by restricting motorized use on some trails; and
The agency sufficiently address the social and economic impacts of the travel plan on local governments and communities.
(13-519, D. Idaho)

Notices of Intent

1. Wildlife | Region 3
The Center for Biological Diversity (CBD) submitted a Supplemental Notice of intent to Sue (NOI) related to the proposed Rosemont Copper Mine on the Coronado National Forest. According to the NOI the mine will cover 3,670 acres of national forest, last between 20-25 years, and permanently fill approximately 18 miles of streams. The NOI alleges the Fish and Wildlife Service’s (FWS) April 28, 2016 Amended Biological Opinion (BO) violates the Endangered Species Act (ESA) and the Forest Service’s reliance on the BO in its Record of Decision violates the ESA.

CBD challenged FWS’s BO primarily on four grounds: 1) the mine’s effects on jaguar, 2) the mine’s effects on Gila, 3) the standards used by the FWS to reach its conclusions, and 4) how the FWS calculated incidental take. For jaguar the NOI states the mine is located in “the home range of one of the three known wild jaguar in the entire United States” and would result in the permanent loss of over 4,000 acres due to its construction. Concerning Gila the NOI states that the watershed in which the mine is to be located is critical habitat for the Gila “has the only known stable and secure population of Gila chub in existence.” For standards the CBD claims the FWS unlawfully applied a “high probability standard instead of a required “likely” standard in making determinations for jaguar and other species with designated critical habitat in the mining area, unlawfully applying a “greatly diminished” standard and threshold in making a determination for Gila chub, and for “relying upon unlawful regulations defining ‘destruction or adverse modification of critical habitat’ which conflict with the plain language, purposes, legislative history and relevant case law…” For the last main challenge the NOI states the FWS used groundwater

elevations as a surrogate measure for incidental take since the FWS claimed “it was unable to determine a numeric estimate or limit on take.” The problem with this, the NOI claims, is that this measure is calculated post-mining and is therefore not meaningful for monitoring take.

The NOI alleges the Forest Service is in violation of ESA because “without a lawful and valid BO, the Forest Service… cannot ensure that their actions related to the proposed mine, including the Forests Service’s 2017 Record of Decision, are not likely to jeopardize the continued existence of any of the listed species, or result in the destruction or adverse modification of the species critical habitat.”

CBD NOI

WMCP v Austin

Clearwater Opinion

Litigation Weekly June 23 (1)

FS Litigation Weeklies – June 2, May 28 and May 19, 2017

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For now, I won’t be lifting parts of the weekly litigation report out because they come in pdfs and I have to run them through OCR which is a bit of a pain and costs money. I’m asking the FS to send Word documents, and that would help greatly. I will keep you all posted on how that goes. Until then, take a look at the Litigation Weekly documents and feel free to lift and discuss any cases of interest.

June 2, 2017

Litigation Weekly 06_02_2017

HCPC v Stein

FriendsOfTheClearwater v Probert

SaveOurCabinets v USFS

AWR v Martin

Ouachita Watch v FS (1)

May 26,2017
Litigation Weekly 05_26_2017

Rocky_Mtn_Wild_v_Dallas_Wolf_Creek_SJ_Decision (002)

Bd_Cty_Comm_v_DOI

Tongass NFMA Decision

May 19, 2017

Litigation Weekly 05_19_2017

Alliance for the Wild Rockies v Bradford

Swan View Coalition v Weber

9th Circuit takes out NFMA diversity requirement

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In a 2-1 decision, which allowed the Big Thorne timber project to proceed on the Tongass National Forest, the Ninth Circuit Court of Appeals affirmed a district court opinion that the Forest Service had complied with NFMA when it adopted forest plan direction related to managing old growth forest for deer to support viability of Alexander Archipelago wolves (an at-risk species).  The dissent pointed out that prior Ninth Circuit precedent had established that:

the forest plan must comply with substantive requirements of the [NFMA] designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest . . . .” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961–62 (9th Cir. 2002). Specifically, 36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” Our law is clear that an agency must abide by its own regulations.

The majority (both judges appointed by republican presidents) charted a new course, citing a a BLM case that had nothing to do with NFMA:

Instead, an agency need only supply “a rational connection between the facts found and the conclusions made.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007).

Instead of recognizing the language of NFMA that requires plans to “provide for plant and animal diversity,” the majority opinion cites language that refers to the Multiple-Use Sustained-Yield Act (contained in a case that was not about forest plans).  It concludes:

The NFMA gives the Forest Service flexibility because the Service has many different goals—conservation, commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2); McNair, 537 F.3d at 993–94. The statute reflects a congressional judgment that balancing these goals calls for policy judgments—judgments that often require trade-offs among worthy objectives, such as wolves and logging jobs.

In other words, NFMA did not take away any of the discretion provided by MUSYA.  This should be news to a lot of people, including the Forest Service.  This case would be a really good candidate for en banc review by the Ninth Circuit.

Here’s a local news story.

Forest Service Litigation Weeklies April 28 and May 5, 2017

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Complete listings are in pdfs attached below.
April 28
1. Range & Wildlife I Region 5
Sierra Forest Legacy and Central Sierra Environmental Resource Center submitted a Notice of Intent to Sue (N01) for claimed violations of the Endangered Species Act (ESA) in the Stanislaus National Forest. The NOl claims that the authorization of livestock grazing in the habitat for the Sierra Nevada yellow-legged frog and Yosemite toad are agency actions that are illegal under the ESA.

On June 16, 2014, the Forest Service requested formal consultation as to the effects of its actions on the Sierra Nevada yellow-legged frog and the Yosemite toad. On December 19, 2014, the U.S. Fish and Wildlife Service (FWS) issued a Programmatic Biological Opinion (Prgm. BiOp) which found that the species were threatened by livestock grazing. As a result, the Prgm. BiOp stated that the Forest Service must establish a monitoring program to determine if and how well certain conservation measures minimize effects to the listed species and their habitats.
According to the NOI, for the 2014 and 2015 grazing seasons, Sierra Forest Legacy, Central Sierra Environmental Resource Center, and others “have provided evidence to the Forest Service and FWS demonstrating lack of monitoring, overgrazed meadows, degraded special aquatic features, and degraded stability along stream reaches where the natural streambank and streambed stability have been pocked, chiseled, sloughed, and otherwise damaged by livestock.” Additionally, the NOI claims that the effects of climate change and the spread of Chytridiomycosis constitutes new information that was not previously considered. This evidence and new information, according to the NOI, demonstrates that the Forest Service must reinitiate of consultation.

May 5

1. Timber I Region 1 If a Tree Might Fall in the Woods
The District Court of Idaho rejected a motion for preliminary injunction against the Tower and Grizzly Fires Salvage Projects, both of which relied on the Chief’s authority to invoke an Emergency Situation Determination (ESD), on the Idaho Panhandle National Forest in Alliance for the Wild Rockies v. Farnsworth. Wildfires in 2015 burned 47,500 acres, resulting in two proposed timber salvage sales that were expedited using an ESD, which would allow for projects to bypass the 90-day objection period and implement the projects immediately. Time was of the essence because the burned trees would depreciate in value quickly. The Chief issued Emergency Situation Determinations, followed by the forest issuing a Decision Notice with the Environmental Assessment. Alliance for the Wild Rockies brought five NEPA-based claims.
Using the “sliding scale standard” of the four-factor Winter test for a preliminary injunction, under which a party may have a lesser showing of likelihood of success on the merits when it shows a stronger likelihood of suffering irreparable harm absent preliminary relief, the court denied the plaintiff’s motion for a preliminary injection. It found that the plaintiffs failed to raise serious questions as to three of their five claims.
The Chief may issue an Emergency Situation Determination under 36 C.F.R. §218.21(b) for:
• Relief from hazards threatening human health and safety;
• mitigation of threats to natural resources on NFS or adjacent lands; or
• avoiding a loss of commodity value sufficient to jeopardize the agency’s ability to accomplish project objectives directly related to resource protection or restoration
In finding that the first and third triggers were properly invoked, the court noted that these projects posed a threat to human safety where there were burned trees along snowmobile trails, and there was nearly $3 million in value at risk. The court rejected plaintiff’s argument that the projects were not necessary because hazardous dead trees would be removed even without the sales, because the no-action alternative provided removal of the dead trees. The court noted that this argument merely confirmed that a hazard is present, which is one of the three triggers for allowing and ESD. The court also rejected the plaintiff’s challenge to valuation estimates, noting that the real risk was finding a bidder at all.

Wildlife I Region 4 If a goat is in the forest, does it require NEPA?
Plaintiffs appealed to the United States Court of Appeals for the Tenth Circuit a District of Utah decision favorable to the Forest Service in Utah Native Plant Society et al v. United States Forest Service et al.
Reported in the Litigation Weekly on March 10, 2017, the District Court ruled favorably for the Forest Service on National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA) claims against the presence of mountain goats in the Mount Peal Research Natural Area in the Manti-La Sal National Forest. Plaintiffs claimed the Forest Service violated NFMA and NEPA by refusing to take action to manage the goats’ occupation of the forest, neglecting to require the State to obtain a special-use permit for introducing the goats to land adjacent to the National Forest, and failing to conduct an environmental analysis. The court, however, found that the Forest Service did not engage in any agency action so was not required to undergo any NEPA analysis and that to require the State to obtain a special-use permit “would disregard the Forest Service’s duty to work cooperatively with the State to manage wildlife.” (16-056, D. Utah)

Land Use & Wildlife I Region 1 Don’t want no CE’s round here...
Native Ecosystems Council and Alliance for the Wild Rockies (Plaintiffs) filed a complaint in the District of Montana against the Smith Creek Vegetation Management Project on the Custer Gallatin National Forest, a portion of the Clean-Up Amendment for the Forest Plan, the Northern Rockies Lynx Management Direction (Lynx Amendment), and the May 20, 2014 landscape-scale insect and disease designation for Montana under the Healthy Forest Restoration Act in Native Ecosystems Council et al v. Erickson et al. The complaint alleges violations of the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Healthy Forest Restoration Act (HFRA), and the Endangered Species Act (ESA).

2. Resources & Land Use I Region 9 Two agencies fer one lawsuit
Plaintiffs filed suit in the District Court for the Southern District of Ohio against the Forest Service and the Bureau of Land Management (BLM) claiming the agencies failed to comply with NEPA when authorizing 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.

Litigation Weekly 4_28_2017 (1)

Notice of Intent Stanislaus Forest

Litigation Weekly 5_06_2017

CBD v FS

Utah Native Plant Society v FS

Alliance Wild Rockies v Farnsworth

Equal Access to Justice Act often aids those who frustrate forest restoration

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“in most Western legal systems other than the United States, the prevailing norm is the English rule. The “English Rule for Attorney’s fees” is also known as “Loser Pays” which is contrasted to the “American Rule” where each party to the suit is responsible for it’s own fees. I’m not really interested in discussing the pros and cons of the two contrasting approaches to settling legal disputes. Inevitably such discussions end up in a fierce political fight about as desperate as a discussion of the existence of God between people on opposite sides of the fence.

What is interesting is that the article referred to in the title for this discussion thread points out that the 1980 Equal Access to Justice Act, or EAJA follows the English Rule if a small claimant or any non-profit claimant wins a case against the federal government but follows the American Rule if the claimant looses. This may not be news to many here but the article provides some interesting insights including:

1) “The act was passed in 1980 to help veterans with disabilities pursue claims against the federal government”

2) “Over the last five years the payments for legal challenges to the Forest Service have nearly doubled, costing the taxpayer over $38 million in 2015. EAJA is not benefiting average citizens as Congress had intended. Thirty-three-hundred lawsuits were filed by just 12 special interest groups from 2001 to 2011. During this time $37 million was awarded to special interest groups, including awards of attorney fees of $500-750 per hour, according to research by Wyoming attorney Karen Budd-Falen.” If I read that right the payments are rising exponentially with $37million paid out from 2001 through 2011 while 2015 alone cost $38million.

3) “No one counts the cost of jobs lost and families displaced after mills are forced to close due to lack of resources. Unfortunately, those folks do not have the same equal access to justice as these highly funded and financially motivated activist organizations.” I assume that the author is referring to the affected individuals not having the same access to the necessary up front money required to go to court on such a big issue as do the highly funded and financially motivated activist organizations.

4) “these EAJA payments come out of your Social Security Trust Fund”

FS Litigation Weekly, April 7, 2017

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This was a long one, so I have excerpted the boldfaced section in the original (linked below) plus a sentence or two relevant to the decision, where there is one. The people who write this do a super job (IMHO) so it really is better to read their entire summaries if any of these pique your interest.

1. Wildlife I Region 4
The District Court for the District of Idaho found favorably for the Forest Service on a National Environmental Policy Act (NEPA) challenge claiming that the Forest Service was required to issue a special use permit for a “predator derby” to take place in the Salmon-Challis National Forest and other public or private lands near Salmon, Idaho in WildEarth Guardians et al. v. United States Forest Service et al. The predator derby was “a private competition involving the hunting of coyotes, wolves, and other wildlife.”

.. The court found that the major activity in the event, namely the awarding of prizes and the makings of donations, did not take place on the forest and that hunting was a legal activity that each of the derby’s participants could have pursued on forest land if they chose to do so independent of the derby.

2. Wildlife I Region 4
The District Court for the District of Nevada granted in part and denied in part the plaintiffs’, the Forest Service’s, and the Bureau of Land Management’s (BLM) Motions for Summary Judgment challenges to the BLM’s and Forest Service’s decisions to amend their resource management plans to provide greater protection to the greater-sage grouse in Western Exploration, LLC et al. v. U.S. Department of the Interior et al.

However, the court did determine that the agencies violated NEPA by making substantial changes between the draft and final environmental impact statement by designating 2.8 million additional acres of sage-grouse focal areas in Nevada.

3. Land Use I Region 5
The District Court for the Eastern District of California vacated a prior decision and granted the Forest Service’s Motion for Summary Judgment on a National Historic Preservation Act (NHPA) claim regarding the Coonrod Cultural Site in Winnemem Wintu Tribe et al. v. United States Forest Service.

The court in this case found that, as the plaintiffs were “a non-federally recognized Indian tribe” and as there was no indication of the plaintiffs’ requested consulting party status in writing, the Forest Service did not violate NHPA. (09-01072, E.D. Cal.).

Litigation Update

1. Wildlife I Region 4
Plaintiffs filed an amended NFMA complaint in the District Court for the District of Idaho against the Salmon-Challis National Forest for authorizing livestock grazing in the Copper Basin area of the Big Lost River watershed in Western Watersheds Project v. U.S. Forest Service.

New Cases
1. Grazing & Land Use I Region 5
Plaintiffs filed suit in the Eastern District of California challenging the authorization of cattle grazing on the Bell Meadow, Eagle Meadow, and Herring Creek allotments in the Stanislaus National Forest in Central Sierra Environmental Resource Center et al. v. Higgins et al. Plaintiffs claim theses authorizations violate the Clean Water Act, California’s Porter Cologne Act, the Rescissions Act, NEPA, and NFMA.

(Note: this is the case mentioned here on this blog- of interest is that there is not a new decision being challenged but the fact that the authorization is continuing without a new NEPA decision (the Rescissions Act said that everyone was on a timetable to complete their grazing NEPA)

2. Wildlife I Region 9
Challenging the NorthMet Mining Project and Land Exchange (NorthMet Mine) on the Superior National Forest, Plaintiffs filed Endangered Species Act (ESA) claims against the Forest Service and the U.S. Fish and Wildlife Service (FWS) in Center for Biological Diversity et al. v. Zinke et al. The project would involve the exchange of federal land with PolyMet Mining Inc. to be used for an open-pit mine.

3. Land Use I Region 9
Alleging FLPMA violations for appraising federal lands for their timber value instead of for mining, plaintiffs filed a complaint against the NorthMet Mining Project and Land Exchange on the Superior National Forest in the District Court of the District of Minnesota in Minnesota Center for Environmental Advocacy et al. v. Tidwell et al.

4 Land Use I Region 9
Plaintiffs filed Weeks Act and NEPA claims challenging the issuance of the NorthMet Mining Project and Land Exchange Decision by the Forest Service on the Superior National Forest in Save Our Sky Blue Waters et al. v. United States Forest Service et al

Attached is the whole Litigation Report plus the other documents.SaveOurSky v Forest ServiceWinnemen Wintu Tribe v Forest ServiceWildEarth Guardians v Forest ServiceW Watersheds Project v Forest ServiceLitigation Weekly 04072017

Grazing Lawsuit on the Stanislaus National Forest

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Photo of Bluff Meadow courtesy of CSERC

Julie Stevens of CSERC sent me this link and said that they would be willing to answer any questions about this lawsuit.
Here’s the link:

I’m working on trying to get the FS side of the story.

Relevant to our discussion of the concept of multiple use, I thought this quote was interesting:

The goal of this litigation is to protect water quality, public health, and at-risk resources — not to halt livestock grazing on national forest land,” Buckley noted. “But federal agencies such as the Forest Service need to comply with the Clean Water Act and appropriately protect water quality the same as anyone else. Laboratory results frequently detect fecal coliform pollution at levels above safe thresholds for recreational contact in streams affected by livestock. One laboratory test of a stream sample in 2016 showed stream pollution more than 100 times the threshold level. In contrast, tested streams without any permitted livestock presence routinely show acceptable water quality results. When it comes to water quality in mountain streams, pollution by livestock matters.”

The conservation groups are open to discussion with USFS officials about steps that could settle this lawsuit. Key to any settlement would be agreement from the Forest Service to abide by its own resource regulations, to comply with environmental policies, to reduce livestock contamination of water, and to protect critical wildlife habitat when evidence of resource damage is documented.

“We support balanced public land management,” emphasized Dr. Britting of SFL. “That means that one commercial use (such as livestock grazing) should only be permitted to the degree that it does not cause significant harm to water quality, public health, threatened plants and wildlife, recreation, and scenic values on public land.”

I like how they laid out what they are looking for in a settlement (although probably not as specific enough as blog readers might prefer). However, it’s interesting that recreation seems to be seen more as a value than a use.