Litigation

Should the Forest Service intervene on the side of environmental groups?

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“Public interest groups filed a lawsuit Thursday, Sept. 15, challenging the city of Highland’s approval of the high-density Harmony development. The development sits at the confluence of Mill Creek and the Santa Ana River and is directly adjacent to San Bernardino National Forest lands and will bring more than 3,600 houses to 1,657 acres of land acquired by Orange County Flood Control in the Seven Oaks Dam project that are currently home to numerous endangered species, rare habitats, wetlands and crucial wildlife connectivity corridors, according to the suit.”

“The lawsuit was brought by the Center for Biological Diversity, San Bernardino Valley Audubon Society and the Greenspot Residents Association, who are represented by the law firm Shute, Mihaly and Weinberger. It argues the city of Highland’s City Council’s August approval of the project violates the California Environmental Quality Act.”

It sounds like potentially illegal local government actions could adversely affect national forest resources.  Shouldn’t the Forest Service be trying to protect those resources?  (Not to mention what this would add to fire management costs.)

http://www.highlandnews.net/news/political/lawsuit-challenges-high-density-harmony-housing-development/article_f36e5c3e-7cfd-11e6-845e-2bf853763e42.html

Do elk need trees?

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For many years, it has been pretty much common knowledge, supported by science, that as the amount of hunting season open roads increases, there is more need for cover for elk to hide.  The Helena National forest plan (and others) have incorporated this relationship into standards for elk security.  (Full disclosure – I had something to do with this on the Helena 30 years ago.)   When the Helena National Forest developed its Divide travel plan, it found that it couldn’t meet its requirements for elk habitat because there were too many roads and not enough trees to provide security (trees in the area have been killed in large numbers by mountain pine beetles in recent years).  So it amended its forest plan elk standard to eliminate the role of tree cover in determining elk security (distance from roads replaces road density as a factor).

The rationale provided in the Record of Decision emphasizes the fact that elk have been doing well despite the fact that the existing forest plan standards have not been met in many places.

I have taken into account the fact that Montana Fish,Wildlife and Parks data indicate that elk populations in the Divide landscape are either at or near population objectives of the 2005 Montana Elk Plan and that elk management challenges are only partially related to access management according to that Plan. I have also taken into account the fact that, despite several miles of road closures, only one herd unit comes into compliance with standard 4a in the Travel Plan Decision. Given this, I have concluded that the existing standard 4a is not an accurate indicator of elk security and is insensitive to changing road densities. The methodology utilized for the new standard (based on the percentage of an elk herd unit occupied by elk security areas and/or intermittent refuge areas) indicates that overall elk security in the Divide landscape is adequate. This measure of security is sensitive to changes in open road configuration and will provide a way to determine where proposed management actions are effective or where management needs to improve to ensure adequate big game security. I believe the new standard will provide a more realistic means of guiding travel management and other future management activities in the Divide Travel Planning Area.

In essence, the Forest is using anecdotal evidence in place of long-established science (which the Forest now asserts is not relevant to this kind of forest).  Has the science just not caught up with reality, or is it possible that the high elk numbers are a result of unknown factors that, when they change, will render excessive road densities fatal to meeting elk harvest goals?  When the plan is revised under the 2012 planning rule (revision is ongoing), it will have to meet the requirement for using best available scientific information for its elk habitat management decisions.  (The amendment is using the 1982 planning process, but scientific integrity is still required.)

A court has been asked to weigh in on the amendment.

Interestingly, the lawsuit is by participants in a collaborative process.

Remember the “Shovel Brigade?” Court unsettles settlement.

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This was the Bundy gang of the 90s.  The Forest Service decided that it would not rebuild a washed out road along the Jarbridge River in Nevada to avoid impacting the now federally threatened bull trout.  The locals threatened to rebuild it themselves.  The issue in court became “who owns the road.”

Under the Bush Administration, the Forest Service agreed to not challenge the county’s ownership – a substantive concession that a federal district court has just reversed.  The judge said, “Without evidence that Elko County owns the right-of-way, the consent decree gives land of the United States to Elko County without following proper procedural requirements.”

This is how the discretion of federal agencies to settle lawsuits may be limited.

On the question of whether a “road” existed prior to establishment of a national forest, the court required “a demonstration of more than random or merely occasional use.”

Utah to sue to get federal lands

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Or at least they’ve set aside the money to pay for it (the lawsuit, not the land).  So what are they waiting for?  Maybe they are hoping a Trump administration would make it unnecessary?

(Some of you would probably also like Heartland’s take on forest fires.  “But now, the Department of the Interior misinforms us, ‘climate change is making it worse. Wildfire seasons are now hotter, drier and longer than in the past.’ Sure they are. Wanna buy a bridge?”)

Court holds up mining project after fire affects sensitive plant

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On July 11, the Idaho federal district court reversed a Forest Service decision to approve a mining exploration project on the Boise National Forest. The legal issues arose when the Grimes Fire burned habitat for the Sacajawea bitterroot (abbreviated “LESA”), in an area supporting the largest population of a plant designated as a sensitive species by the Forest Service. The court found that the analysis of changed conditions was inadequate, leading to violations of both NEPA and NFMA (Idaho Conservation League v. U. S. Forest Service):

“The Forest Service recognizes the baseline data needs to be re-established following the 2014 Grimes Fire but instead of compiling and analyzing that data up front, the Forest Service has incorporated those NEPA steps into the Project itself. The selected Alternative B anticipates conducting a new baseline study during the Project and then monitoring and mitigating to protect the LESA species. (CU080344-51.) This approach puts the cart before the horse by prematurely asking for approval of the Project before the necessary baseline data and analysis are conducted. NEPA demands that the Forest Service analyze a project’s impacts before it is approved; not as part of the Project itself.

“The Defendants’ reliance on the Project’s design features, monitoring, and mitigation measures does not cure the failure to re-evaluate and analyze the Project’s impact on LESA following the Grimes Fire.  Without accurate baseline data before the Project begins, it is impossible to know whether and to what extent the Project’s activities will impact LESA even with the proposed design features, monitoring, and mitigation features. As thorough as these features of the Project appear to be, the Forest Service’s failure to re-evaluate LESA’s current baseline leaves too much unknown for the Forest Service to have concluded that the Project will not have a significant impact on the LESA population.

“Additionally, the Complaint alleges the Forest Service violated NFMA by failing to follow Guideline BTGU01 which requires it to conduct up-to-date surveys of Sacajawea’s bitterroot habitat and plant presence. (Dkt. 1 at ¶ 77.)  Consistent with its ruling on the NEPA claim, however, the Court finds the Forest Service failed to re-evaluate the baseline data for LESA following the Grimes Fire prior to approving the Project. Without an accurate baseline, the Project’s monitoring and mitigation measures will not be effective or accurate. Failing to obtain the necessary baseline is contrary to Guideline BTGU01 because the Forest Service did not determine the existing suitable habitat for and presence of LESA within or near the project area. (CU053833.) For these reasons, the Court finds the Forest Service was arbitrary and capricious and in violation of NFMA.”

Another way that fires make life hard for the Forest Service, and another example of how short-cutting the NEPA process makes it harder.  A “trust us” approach doesn’t sell well under NEPA or NFMA.

Court assumes collaboration represents the public interest

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On June 14, the Idaho federal district court refused to grant a temporary restraining order against a timber sale on the Payette National Forest.  The court’s review of the merits of the case was cursory, and instead it focused on the standard for granting an injunction.  A key question is whether the injunction would be in the public interest.

The Payette Forest Coalition had participated in developing the project, and had intervened in the case on the side of the Forest Service.  In determining the public interest, the court noted that, “the Project was developed in a collaboration between the USFS and a diverse group of stakeholders, including the Intervening Defendants.”  The court also stated that, “the collaborative efforts of all Defendants in developing the Project is in the public’s interest,” and finally, “the public has an interest in supporting the collaborative process that was used in this case to develop the Project.”  The court denied the TRO (citing a number of other factors in the public interest as well).

There is no evidence that the plaintiff environmental groups challenged the assumption that this collaboration was in the public interest, which, based on many discussions on this blog, should probably be considered a debatable point.

Nez Perce Clearwater salvage project enjoined

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The Idaho District Court enjoined the Johnson Bar Salvage Project on May 12, finding  violations of NEPA and the Wild and Scenic Rivers Act.  During the time between the release of the DEIS in March of 2015, and the publication of the FEIS in October of 2015, timber harvesting activities on burned state and private lands had occurred or were underway, and additional wildfires had burned or continued to burn, near the project area.

The court found that the Forest had failed to take a hard look at the effects of these events on sediment and visual quality, and should have prepared a supplemental EIS to address the new information.  The main flaw was failing to undertake a quantitative effects analysis of the new sediment sources comparable to what had been done for the original baseline.  There were also conflicting statements in the fisheries evaluation, and evidence that road decommissioning would not reduce sediment as claimed.  There was no support in the record for conclusory statements in the ROD about a lack of cumulative effects.  The urgency of the salvage harvest was not given great weight in the balancing of interests that supported the injunction because the project was scheduled over five years.

This sounds like a case where shortcuts were taken to try to complete a project that was overtaken by events.  Haste makes waste.

The Wild and Scenic River holding involved an out-of-date river plan, but may have some implications for vaguely written forest plans (in relation to rivers, diversity or other requirements):

The Forest Service cannot effectively analyze, nor can the public and Court crosscheck, the Forest Service’s analysis, without a River Plan that delineates objective standards, or predetermined criteria, for describing, assessing, and protecting the Wild and Scenic values of the Rivers. Without objective, predetermined criteria, the public is left to trust the Forest Service’s “word” that it considered all relevant factors necessary to protecting the Middle Fork Clearwater and Selway Rivers’ Wild and Scenic values and that the Project will not affect or have minimal impact upon the Wild and Scenic values.”

Even the 9th Circuit piles onto plaintiffs

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On May 6, the Ninth Circuit Court of Appeals upheld the Montana district court’s opinion in Alliance for the Wild Rockies v. Weber.  The Flathead National Forest Precommercial Thinning Project would thin about 500 acres a year in bull trout grizzly bear and arguably lynx habitat, and the decision was based on a categorical exclusion.  This looks like one of those cases where the judges tried to make the law match what they saw as the facts – The Ninth Circuit took three days to decide and quoted the district judge: “[t]his Project is the most innocuous logging project to be challenged in this court to date.”  The district judge also said, “Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.”

I think the judge played a little loose with the law (NFMA and NEPA) failed to appreciate the importance of one “procedural misstep.”  Specific locations of the thinning activities were not identified.  With regard to treatments in riparian areas (and bull trout habitat), decisions are said to be left to the future judgment of a “fisheries biologist.” With regard to meeting a forest plan requirement for maximum distance to cover, the decision document is apparently silent, but the court accepts an ambiguous statement in the biological assessment as assuring compliance with the forest plan. Where environmental effects or compliance with plan direction may be different depending upon project layout, then that layout should be part of the decision reviewed by the public and signed by the decision maker.

The judge also incorrectly stated that the forest plan’s 300-foot riparian buffer standard did not apply.  He should have said that it did, but that the requirements applicable to it were met.

Project complies with spotted owl recovery plan requirement in Shasta-Trinity forest plan

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The Eastern California district court upheld the Harris Project on the Shasta-Trinity National Forest on Feb. 26. The project would treat about 2800 acres in northern spotted owl habitat. The Forest Service determined that the project would be “not likely to adversely affect” spotted owls, and the Fish and Wildlife Service concurred. The court found that spotted owls would be able to continue to feed, shelter, or disperse within the 17 acres of treated area in foraging habitat, and therefore the determination and concurrence complied with ESA. It also found that incomplete surveys were the best available science for determining owl presence.

 

The court also found that the agencies followed the recommendations in the spotted owl recovery plan. The recovery plan encouraged long-term improvements in habitat even if there were some short-term adverse effects, and, “Defendants weighed the short-term impacts against the long-term benefits and concluded that the Harris Project would ultimately help protect and increase northern spotted owl habitat. The court deferred to the agencies’ judgments that this project complied with this strategy. (The highlighted terms suggest that there would in fact be adverse effects that should have required a finding of adverse effects and triggered formal consultation to comply with ESA. Offsetting beneficial effects do not negate this ESA consultation requirement.)

 

As result the court also held that the project complied with NFMA because it was consistent with the Shasta-Trinity forest plan that required the Forest to, “maintain and/or enhance habitat for” threatened, endangered, and sensitive “species consistent with individual species recovery plans.”

 

The court also upheld the Forest Service NEPA process. It adequately addressed the effects on spotted owls of promoting ponderosa pine, and properly concluded that other treatments would lead to overall effects that would be beneficial. The court also found that a new report on reducing fire risk (Lydersen) did not contradict information used by the Forest Service, and therefore an SEIS was not needed to address it.

Wish you were on the Dixie?

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The Utah federal district court upheld the Dixie National Forest decision on the Iron Springs Project (argued at a hearing in July 2014) in Alliance for the Wild Rockies v. Bulletts. The Project involves a range of vegetation management activities including intermediate harvest treatments, salvage of timber killed by or dying as a result of beetle infestation, regeneration of aspen, and reforestation of previously harvested areas. Commercial logging would occur on 3,603 acres of spruce/fir.

 

Most of the plaintiff’s claims were based on NEPA. The court found that an EIS was not necessary, focusing on the fact that the project affected only 0.5% of the national forest. It found the analysis of effects on old growth species and other at-risk species (including threatened Utah prairie dogs) to be adequate. There were also no unique characteristics of the area, and no controversy about the effects of the project on several wildlife species.

 

The court was a little creative (or inexperienced) in brushing off potential controversy about using timber harvest to address beetle kill. It concluded that, “Even if the efficacy of timber harvest for the purpose of addressing beetle kill is highly controversial, addressing beetle kill is only one of six stated reasons for the Project.”   This suggests that adding non-controversial purposes to a project can somehow offset any other controversy that exists – a dubious NEPA proposition.

 

Plaintiffs also pointed out that a goshawk amendment to the forest plan had been in place for a decade longer than intended, based only on an EA. However, they did not challenge the forest plan, and the court found that the project was consistent with the forest plan, and that a 2012 scientific review of the amendment validated the best available science for goshawks. The court also upheld viability analysis of management indicator species, which showed that the project area would continue to support sufficient numbers of flickers and three-toed woodpeckers.