Litigation

Custer-Gallatin wins salvage logging lawsuit

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On Feb. 6, Judge Molloy in the Montana District Court upheld the Custer National Forest’s  use of the categorical exclusion applicable to projects not exceeding 250 acres for the Whitetail Salvage Project.  In Native Ecosystems Council v. Weldon he found that even though it was the third project in the area affected by the 2012 Ash Creek Fire, the record showed that it was not reasonably foreseeable when the 2013 and 2015 projects were planned, and so the agency had not illegally “segmented” the projects to keep the acreages below the threshold for using the CE.

The court also found that effects on black-backed woodpeckers would be minimal because “the combined area of the Whitetail, Phoenix, and roadside hazard projects affect less than 2% of the highly suitable black-backed woodpecker habitat within the 90-kilometer cumulative effects area,” and “Abundant nesting and foraging habitat for black-backed woodpeckers will remain in the project area and cumulative effects area.”  This level of effects did not require an EA.  Plaintiffs had based much of their case on declarations they submitted by Chad Hanson.  However, the court refused to consider the declarations because documents that “challenge the underlying science and data used by the agency” can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).  The judge found compliance with the 2012 Planning Rule requirement for using the best available scientific information for the woodpeckers (which is odd because the Planning Rule is not supposed to apply to projects).

The court also found that the project is consistent with the forest plan.  The project is in a wildlife management area, but the plan had selected mule deer for emphasis in this area, and it was proper under the forest plan for the Forest Service to balance the needs of black-backed woodpeckers and other species in determining to conduct the salvage harvest.

Litigation Weekly Feb. 6, 2017

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  1. No new court decisions.

Litigation Update

  1. No new litigation updates.

New Cases

  1. Minerals I Region 9

Plaintiffs filed suit in the District Court of the District of Minnesota alleging the Forest Service’s final Record of Decision (ROD) approving a land exchange known as the PolyMet NorthMet Land Exchange (PMLE) in the Superior National Forest violates the Federal Land Policy and Management Act (FLPMA) in Waterlegacy v. USDA et al. The PMLE is a proposal to exchange 6,650 acres of federal land for 6,690 acres of private land. The purpose of the exchange, according to the complaint, is to enable a foreign corporation, PolyMet Mining, Inc., to develop an open-pit copper-nickel mine.

FLPMA, the complaint states, requires “[t]hat equal value determinations for land exchanges be based on the highest and best use of the property, estimating the value of lands and companies as if in property ownership and available for sale in the open market.” While the Forest Service valued the federal lands for the PMLE at $550 per acre, Plaintiffs claim this value is based solely on the value of timber and fails to consider the market value of the lands for mining purposes. Recent sales of surface lands by private owners to mining company purchasers in Northeastern Minnesota, as per the complaint, average $1,645 per acre. Because the purpose of the sale is to allow the development of an open-pit copper-nickel mine, but the price in the NOI only reflects the valuation of the timber, the complaint alleges the Forest Service failed to comply with FLPMA. Specifically, the complaint alleges the Forest Service ROD:

  1. Failed to consider the purpose and intent of the PMLE is to enable the use of federal lands for an open-pit mine;
  2. Failed to consider that the highest and best use of the property for valuation purposes is for mining;
  3. Devalued the lands by applying a timber income approach; and
  4. Failed to consider that there is a premium value of minerals underlying federal lands as opposed to private lands.

Plaintiffs request the Forest Service vacate the ROD approving the PMLE and seek to enjoin the Forest Service from approving the PMLE. (17-00276, D. Minn.).

Notices of Intent

  1. Wildlife I Region 5

The Environmental Protection Information Center (EPIC) submitted a Notice of Intent to Sue received on January 30, 2017, alleging that the Forest Service violated the Endangered Species Act (ESA) by approving livestock grazing along rivers that provide habitat for coho salmon in the Klamath National Forest without first consulting with the National Marine Fisheries Service (NMFS).

In 2014, NMFS issued a Recovery Plan for coho salmon that states that the Upper Klamath River coho population is of significance to the species’ survival. Horse Creek, located in the Klamath National Forest, is a tributary of the Klamath River and provides habitat to coho that are part of the Upper Klamath River coho population. The NOI states the Forest Service has authorized and continues to authorize livestock grazing on allotments along and in Horse Creek without first consulting with NMFS as to site-specific and cumulative effects of livestock grazing along and in Horse Creek and its tributaries on coho salmon in violation of the ESA.

Natural Resource Management Decisions Involving Other Agencies

  1. No new decisions.

EPIC NOI received 1.30.2017

(I tried to upload the water legacy vs FS pdf file and WordPress said

“Sorry, this file type is not permitted for security reasons.”) I can email to anyone interested.

Litigation Weekly January 30, 2017

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Hope springs eternal – in me, anyway, that the new administration will post these on the FS website (or have?). Til then, though,…(post is just the first paragraph of each item, read pdf of Litigation Weekly for entire write-up).

  1. Wildlife I Region 4

The District Court of Idaho enjoined the Forest Service and the Idaho Department of Fish and Game (IDFG) from using data collected in an elk collaring project in the Frank Church Wilderness in the Salmon-Challis National Forest in Wilderness Watch et al. v. Vilsack et al. Plaintiffs argued the project violated the National Environmental Policy Act (NEPA) and the Wilderness Act of 1964.

  1. Range I Region 6

The District of Oregon ruled on cross motions for summary judgement, finding partially for the plaintiffs and partially for the defendants, in a NEPA and ESA challenge to a grazing Allotment Management Plan on the Fremont-Winema National Forest in Concerned Friends of the Winema et al. v. U.S. Forest Service et al. The Chemult Pasture in the Fremont-Winema National Forest hosts cattle grazing, including the defendant intervenor’s cattle, which have been permitted for over 100 years. The Oregon spotted frog, a species listed as threatened since 2014, lives in the pasture’s creeks. When drought lowers water levels in the creek, the frogs live in smaller pools, which the plaintiffs argue are harmed when cattle also use the same small water pools.

Notices of Intent

  1. Wildlife I Region 5

The Environmental Protection Information Center (EPIC) submitted a Notice of Intent to Sue received on January 30, 2017, alleging that the Forest Service violated the Endangered Species Act (ESA) by approving livestock grazing along rivers that provide habitat for coho salmon in the Klamath National Forest without first consulting with the National Marine Fisheries Service (NMFS).

In 2014, NMFS issued a Recovery Plan for coho salmon that states that the Upper Klamath River coho population is of significance to the species’ survival. Horse Creek, located in the Klamath National Forest, is a tributary of the Klamath River and provides habitat to coho that are part of the Upper Klamath River coho population. The NOI states the Forest Service has authorized and continues to authorize livestock grazing on allotments along and in Horse Creek without first consulting with NMFS as to site-specific and cumulative effects of livestock grazing along and in Horse Creek and its tributaries on coho salmon in violation of the ESA.

 

CBD et al 60-day Notice of Intent to Sue re WNF Oil Gas Lease Sale 1-26-2017 Litigation Weekly 01302017 1950.1570GreaterRedLodgeWithdrawalInterestedParty17Jan2017 Winema_Order_on_MSJ_Cross_Motions20170125 WW SJ opinion

Court protects frog from Freemont-Winema National Forest grazing

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In a case with a long history, the Oregon district court enjoined grazing in a pasture on the Fremont-Winema National Forest to protect threatened Oregon spotted frogs and sensitive plant species. The frogs congregate in pools in late summer, and so do cattle.  The court found violations of both NFMA and ESA.

The court held that annual operating plans for grazing were arbitrary and capricious because they were based on a viability analysis that assumed planned levels of grazing instead of the actual trespass and unauthorized use that was occurring and causing damage. Thus the Forest Service couldn’t show that the AOIs met the requirement in the plan to manage for viable populations of these species.

It also remanded the biological opinion that the Fish and Wildlife Service had prepared on the allotment for the newly listed frog. The court found the no-jeopardy conclusion was not supported by the record because there was no scientific basis for a 35% forage utilization rate protecting the frog, it did not provide a rationale for using studies from other areas, and did not explain why it failed to consider non-lethal incidental take in the final BiOp when it had done so in the draft. The magistrate judge suggested the latter was “a strategic application of a measurement convention that results in less apparent OSF loss…”

A NEPA claim was dismissed because Congress has overridden the usual NEPA timing requirements for grazing allotment planning.

Court slams Forest Service wilderness decision

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The federal district court in Idaho has ruled against the state’s use of helicopters to collar elk in the Frank Church-River of No Return Wilderness. In Wilderness Watch v. Vilsack it held that the Forest Service failed to consider the cumulative impacts of a one-year proposal when it knew the state intended this to be part of at least a ten-year program. It found that the decision to not prepare an EIS violated NEPA.

The court also found that the Forest Service violated the Wilderness Act. In 2010, the court had approved use of helicopters to collar wolves because its purpose of “understanding the wolf” furthered wilderness values. However, the judge warned that, because of cumulative impacts (and probably because of some skepticism about the state’s motives), “the next project will be extraordinary difficult to justify,” and that the Forest Service would need to give sufficient notice to allow opponents to “fully litigate” such projects.

The Forest Service issued a special use permit in January 2016, and within two days the elk collaring was completed, along with four wolves not authorized by the permit. The court rejected state arguments that it didn’t need permission, and held that the Forest Service failed to make a proper determination that the helicopters and collaring were necessary for wilderness management because it considered only “a one-year portion of a much larger long-term plan.”

The relief granted by the court is noteworthy:

  • Injunction preventing the Forest Service from considering any of the data gathered from the elk and wolves as a result of this project
  • Injunction preventing the Forest Service from approving any future helicopter projects without delaying implementation for 90-days to allow affected groups to file challenges to the projects
  • Inunction preventing the state from using any of this data in further proposals seeking approval from the Forest Service
  • Mandatory injunction ordering the state to destroy the data received on the elk and wolves collared in this project

How do you suppose the Forest Service rewards this kind of decision-making?

Forest planning for federal land ownership

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The Superior National Forest has received a notice of intent to sue over a land exchange that would allow development of a mine on the former national forest lands. The notice involves federally listed wolves and lynx. My question was whether the exchange is consistent with the forest plan as required by NFMA.

The Superior National Forest Plan contains very useful direction for land exchanges. It includes priorities for acquiring land (one of which is “Land needed for habitat for federally listed endangered, threatened, proposed, or candidate species or for Regional Forester Sensitive Species,” but that was not invoked by the ROD for this exchange). The plan also includes criteria for conveying land out of federal ownership, and it determines whether lands in each forest plan management area are suitable for conveyance.

The Record of Decision for this exchange first finds that a mine in this location would be inconsistent with the forest plan direction for the area. It then addresses the criteria for acquisition and conveyance (which are guidelines in the forest plan) and finds that the exchange would be consistent with the forest plan. The lands in the federal parcel to be conveyed are in the “General Forest and General Forest-Longer Rotation Management Areas” where conveyance is allowed. They also contain a lake, and there is a forest plan guideline to retain ownership of lakes. However the guideline is defined to allow deviation as long as the purpose of the guideline is met, and the exchange would produce a net gain in national forest water frontage.  The ROD also considers the mining project and land exchange in relation to Forest Plan direction related to larger areas on the landscape, including lynx analysis units.  (The ROD mistakenly cites the 2012 Planning Rule consistency provisions, which do not apply to plans developed under prior planning regulations, but the result should be the same.)

The plan components in the Superior Plan seem to have provided for a relatively smooth project planning process. Other forest plans I’ve seen provide much less guidance for land adjustments. It is important for a forest plan to recognize areas that provide important values by including plan components to retain and acquire such areas (which may then be supported by more detailed land adjustment planning). This may be especially important in planning for wildlife habitat connectivity in mixed ownerships.

Lawsuit will question fuel breaks

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The Los Padres National Forest has proposed the Santa Barbara Mountain Communities Defense Zone Project.

“The desired condition for chaparral is to establish a diversity of shrub age classes in key areas near communities to improve the effectiveness of fire suppression operations. Adequate defensible space around communities could greatly reduce the risk of structure loss, as well as improve safety for residents. Thus, at the urban interface there will be a management emphasis on direct community protection. This could be accomplished in at least two ways: (1) by removing or heavily modifying shrublands immediately adjacent to populated areas (Wildland-Urban Interface Defense Zones); and (2) by strategically creating blocks of young, less flammable vegetation near the interface areas. Both types of fuels modification could slow or even halt the rate of fire spread into urban areas.”

Two conservation organizations have filed a lawsuit in U.S. District Court “to protect fragile habitat and rare species in the path of a massive, remote fuel break recently approved in the Los Padres National Forest.”  According to this article, “The suit is also an effort to encourage the Los Padres National Forest to focus on reducing fire risk where it matters most, directly in and around communities.”   Interestingly, the Forest Service used a categorical exclusion from NEPA, which suggests that they think there is no scientific controversy about the effects of fire breaks that are beyond the area needed for defensible space.  I’d like to see a court weigh in on this, and how far away “near” and “remote” are, but it might just decide that a CE for “timber stand improvement” can’t be used where there is no timber.

Post-Election Thoughts About Our Forests?

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With a new Republican President and a Republican-controlled Congress, how will this affect the Forest Service and the BLM?

crown-fire-panorama-web

Regarding the picture: I did some processing with a High Dynamic Range (HDR) program to get this artsy view. It is interesting that it enhanced the flames better than in the original scan, from a Kodachrome slide. I shot this while filling in on an engine, on the Lassen NF, back in 1988.

Who gets the most legal fees from the federal government?

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Environmental groups barely register.  And it’s a good bet that the partner-named law firms on this list are not doing much public interest litigation.

The article this is taken from was about the novelty of Earthjustice being on the list, and its focus on EPA.  It added:

“Garcia said these fee awards play no role in determining which cases her attorneys will take and that Earthjustice does not depend on them for financial sustainability. They made up less than 4 percent of the group’s more than $54 million in revenues in 2015, according to its annual report for that year. The vast majority of Earthjustice’s revenue comes from charitable contributions from foundations and individuals.”

But who does Congress want to punish?

A test of the 2014 insect and disease categorical exclusion

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The Center for Biological diversity is suing the Tahoe National Forest for its decision on the Sunny South timber sale. The sale is designed to “reduce the extent and risk of insect infestations, as well as to reduce the negative effects of those infestations on forest health and resilience.” Plaintiffs allege, “Six (California spotted) owl territories are slated to be logged …, all of which are important contributors to the overall owl population given the high degree of successful owl reproduction in these old forested areas.”

Section 603 of the amended Healthy Forests Restoration Act establishes a categorical exclusion for qualifying insect and disease projects in designated areas on National Forest System lands. An insect and disease project that may be categorically excluded under this authority is a project that is designed to reduce the risk or extent of, or increase the resilience to, insect or disease infestation in the areas.  The project must be located in an area designated pursuant to a Governor’s request for areas in their State that are experiencing, or at risk of, an insect or disease epidemic. The project must also meet other criteria, including these rather subjective ones:

  • The project was developed through a collaborative process that includes multiple interested persons representing diverse interests and is transparent and non-exclusive.
  • The best available scientific information must be considered to maintain or restore ecological integrity, including maintaining or restoring the structure, function, composition and connectivity.

We might find out a little more about what these things mean from this court.

There used to be a sort of rule of thumb that if a project looked controversial, the Forest Service wouldn’t pursue a categorical exclusion (in part because they may be difficult to defend in court). The new agency policy appears to be to thumb its nose.