Litigation

On Collaboration: Eric Anderson’s Thesis

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From the Montana Forest Restoration Committee Website
From the Montana Forest Restoration Committee Website

Here is a link to Eric’s thesis on collaboration. The title is:

The Forest Management Divide: Evidence From Administrative Comments on U.S. Forest Service Projects Indicating Why Environmental Interest Groups in the Northwestern U.S. Choose Whether or Not to Collaborate

For those of you who haven’t read public comments, he has several pages of them in the thesis you might find interesting.

Below are some of his conclusions..

 

Chapter 5: Conclusions

The results of this study suggest that the interests theory variables – environmental, equitable, and economic values – may be influencing environmental interest groups collaborative strategy in a different way than the literature suggests. The evidence indicates that both participating and non-participating groups share interest in all three values, to varying degrees by region and group type. The political opportunity theory variables indicate, however, that there may be more subtle forces explaining why groups sharing all three values choose different collaborative strategies. Carmin and Balser (2002) found that the difference in this case might be explained by another factor not explored in the recent literature on collaborative strategy – environmental philosophy.
A group’s environmental philosophy relates to its normative views about how humans should interact with nature. Some environmental interest groups have a conservationist philosophy that allows for sustainable extraction of forest resources for human needs. Others have a preservationist philosophy, contending that forest resources are already overtaxed and that forest management only adds additional stress to an already
overburdened landscape. Viewed through this lens, both participating and nonparticipating environmental interest groups can have environmental, equitable, and economic values, but their environmental philosophy may drive them to different means of attaining what they both believe to be the same outcome – forest health. Thus, a group with a conservationist philosophy may be willing to utilize the political opportunity
created by the CFLR Program to collaborate with other stakeholders and the Forest Service even if the proposed outcome of the project portends “logging” of forest resources. Such may not be the case for a group with a preservationist philosophy. Rather than collaborating with other stakeholders whom they suspect will sanction commercial harvest outcomes, these groups will choose the political opportunities created by the
bedrock environmental statutes such as the NEPA, ESA, and NFMA to achieve a proposed outcome that meets their preservationist philosophy.

The results of this study appear to strongly support this theory. In addition to the comments highlighted in Section 4.1, some groups made comments capturing the essence of this study’s foregoing conclusion. For example, George Weurthner commenting on a proposed DCFP project on behalf of the Alliance for the Wild Rockies stated, “The more the natural forest is ‘managed’ the more out of whack it becomes. Logging cannot restore
‘natural’ processes because it is fundamentally at odds with nature” (DCFP -Alliance #597). Commenting on a different DCFP project, he stated “There appears to be a philosophical and pejorative bias [on the Forest Service’s behalf] against natural processes like wildfire, beetles, mistletoe and so forth that can achieve many of the goals without timber cutting” (DCFP – Alliance #809). He also states that “While there are aspects of the proposal that we fully support such as the closing of roads, reintroduction of fire as a natural process, and even some thinning of plantations in some circumstances, the main objection has to do with the means of getting to those ends—namely that all proposals except the No Action alternative recommend some degree of logging” (DCFP Alliance # 808) In addition to issues of management, a LOWD/BMBP comment illustrates the distrust among some non-participating environmental interest groups,  stating, “The West Bend timber sale is a public relations-orchestrated travesty that also gives us no hope for a good outcome. (DCFP -LOWD-BMBP #164).

In contrast, the participating groups generally appear to embrace some “logging” to achieve their forest management ends. For example, Idaho Conservation League stated, “We support the use of mechanical harvest followed by prescribed fire to achieve a shift in age structure to provide diversity on the landscape, consistent with historic conditions. We encourage consideration of a range of approaches to restoration forestry,
especially in moist, mixed severity forests to achieve this diversity” (CBC – Idaho Conservation League # 1040). Also, stakeholder context comments questioning the integrity of others are largely missing from the participant group’s comments. Instead, many comments express gratitude. For example, the Montana Wilderness association stated “We appreciate your willingness to meet with us on multiple occasions to discuss
the Colt Summit project, and we are confident that through these discussions the project has improved” (SWCC – Montana Wilderness Association #399). Comments like these, and many others in Appendix C, appear to reinforce this study’s major conclusions.

In addition to the conclusions that follow from the hypotheses, evidence from this study also supports inferences that may be helpful in crafting future collaborative efforts. The analysis at regional case study level suggests that three additional proximity factors may work in concert to influence environmental interest groups collaborative strategy.  The SWCC is proximately located near a large urban area with a high concentration
environmental interest groups that maintain a preservationist philosophy, and a judicial forum that may be perceived by some groups as empathetic to preservationist arguments.

In addition, evidence from regional analysis supports the inference that strong State based environmental leadership, supported by a large consensus, may lead to better implementation outcomes. Both the CBC and DCFP appear to fit this characterization, whereas the SWCC does not.

The analysis at the group type level also support one further inference that could prove instructive to future collaborative efforts. In the absence of larger State and Regionally based environmental interest groups, local groups (particularly nonparticipating local groups) appeared to pick up the burden. With the ubiquitous presence of nationally based groups supporting the implementation of the CFLR Program – and no countervailing National groups –the importance of local group inclusion is manifest. As noted in section 2.2.2, successful collaborations should include all interested
stakeholders, even though in reality all of the interested stakeholders are often not included due to willingness or ability to attend. Burke (2011) noted that collaboration may have the unintended effect of marginalizing local stakeholders, but while this study provides no evidence of that conclusion, future collaborative National Forest efforts should be aware of the important balancing role they may play.

This study also suggests areas of future research. To reiterate, this study was exploratory in nature, but suggests that future efforts exploring the factors driving environmental interest group’s collaborative strategy should focus on the influence of Carmin and Balser’s (2002) findings on the influence of the interaction between environmental interest group’s environmental philosophy and prescribed project management outcomes. Future research in this vein is important because it may allow forest resource mangers and interested stakeholders to understand when and where
collaborative efforts are necessary, and also aid in more efficacious outcomes.

Klamath Westside salvage project

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I thought this article provided a succinct overview of the state of salvage logging in California.  I was curious about what kind of a logging project the Center for Biological Diversity and local environmental groups were supporting.

Table 11 in the ROD shows that the tribal alternative they supported would harvest about 2000 acres. The selected alternative would log three times that.  Why did the Forest Service pick the latter over the former?

“As shown in Table 12 (sic), there is considerable overlap between the Karuk Alternative and the Selected Alternative;”

Did the FS miss the obvious point here?  That the magnitude of the project is the problem because it would affect water quality and salmon runs?  (Or is this what “pound sand” means?)

It was also interesting to read the earlier letter from the Karuk Tribe chairman that describes the tribal interest in prescribed fires.  I wonder if the Forest Service has considered managing the historic tribal lands for “production of acorns, wild game, medicinal plants and basketry materials,” among its multiple uses.

Another classic settlement

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A follow up to an earlier post on ATV litigation on the Okanogan-Wenatchee National Forest.

“Under the settlement, the Forest Service agreed not to authorize public use to all-terrain vehicles without first completing an assessment of environmental effects. The agency also agreed to re-survey routes and remove any remaining signs authorizing ATV use.”

“The federal agency denied the groups’ allegations but agreed to pay their attorney’s fees as part of the settlement.”

This telegraphs something important that the Forest Service gets out of settlements. They don’t get a judicial precedent, and that gives them more flexibility to use the same disputed approach in future actions (and better protects other past actions that used this approach, at least for awhile).

It’s just an administrative rule

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The courts are finished with addressing the Forest Service Roadless Area Conservation Rule’s application to Alaska.  The Supreme Court won’t review the Ninth Circuit’s reversal of the attempt to exempt the Tongass National Forest from the rule.  Whew – glad that’s finally over.  But wait, there’s an election coming, and roadless rule opponents are thinking about that:

“And then the other thing is we could just get a … federal administration that’s friendly toward responsible resource development and they can just rescind the rule because it’s an administrative rule. It’s nothing that Congress passed.” (Owen Graham of the Alaska Forest Association)

And why stop with Alaska; rescind the entire roadless rule.  And why not replace the 2012 Planning Rule, too?  The possibilities are endless.

Howdy, Folks

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I’m just going to drop this here. A side by side comparison of the land that some serial litigators insist is clear evidence of Forest Service salvage clearcutting in the Rim Fire. The caption reads, “Post-fire clearcutting on the Stanislaus National Forest in the Rim fire area, eliminated the wildlife-rich snag habitat and left only stump fields.” Where is the “wildlife-rich snag habitat” in that burned-over plantation on private land? The picture on the right is before logging started, from Google Maps.

Yes, the story is still up on their website, in all its slanderous glory.

Have a nice day!

Spi-comparison

Settlement: opening roads to motorized use requires NEPA (take 2)

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It’s the Pike-San Isabel this time.  The issue appears to be “unauthorized and unanalyzed” routes.  It’s not clear whether those are two different things, but I think the point is that when a Motor Vehicle Use Map allows motorized use on user-created (“unauthorized?”) roads, the map becomes an authorization that triggers NEPA, ESA, NFMA consistency and travel plan “minimization” requirements.  The MVUM is not just displaying an open road system that was authorized in a previous travel planning and NEPA process (as was envisioned by the Travel Management Rule).

Thanks to WildEarth Guardians, we can look at the settlement agreement.  In it the Forest Service agrees to conduct travel planning using the proper procedures (I’ll bet that was a hard thing for them to accept …), agrees to some specific aspects of the process, and will undertake some interim protection measures in specified areas.  That’s a pretty standard formula, I think – do/re-do the process, and meanwhile don’t take some actions (in this case that means interim closing and “unopening” some roads).

What I need someone to explain to me is this.  Some motorized user groups intervened as defendants, but their signature is not on the settlement agreement.  I thought intervention allowed the parties to contest a settlement in some way.  Can we assume that they didn’t in this case?

Forest Service Litigation Weekly 10-15-2015

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Just returned from my blogging break, extended due to unforeseen circumstances. I learned many things from my experience in religious media,and discovered that people are not appreciably nicer in their online communications when they are involved in religious kinds of discussions (so I’m an optimist!). Anyway, we haven’t seen a litigation report in a while, so here goes…check out the R-5 salvage/hazard tree ruling.

1. Affirmative Litigation│ Region 3

District Court Finds in Favor of Forest Service in Affirmative Challenge to a 2001 Statute Enacted by the State of New Mexico and a 2011 Resolution enacted by the Otero County Board of County Commissioners in USA v. Board of County Commissioners of the County of Otero and the State of New Mexico. On September 30, 2015, the United States District Court for the District of New Mexico found in favor of the United States of America in a challenge to a 2001 statute enacted by the State of New Mexico and a 2011 resolution enacted pursuant to the statute by the Otero County Board of County Commissioners. The statute in question, Section 4-36-11, authorizes counties in New Mexico to “take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees
within the area of the disaster.” The United States government alleged that Statute 4-36-11 is in conflict with and interferes with federal law, that Section 4-36-11 violates the Supremacy Clause of the United States Constitution, that Section 4-36-11 is therefore preempted by federal law and is unconstitutional, and that the Otero County Resolution violates the Supremacy Clause and is, therefore, preempted by federal law and is unconstitutional. The court found that the Property Clause of the United States Constitution grants Congress plenary power (and the Tenth Amendment therefore does not reserve for New Mexico any sovereign police power) over federal lands, that the New Mexico statute and Otero County Resolution Conflict with federal law, that the statutory language of the New Mexico statute and its intent prevent the court from interpreting the statute in a manner consistent with federal law, and that the statute and resolution therefore violate the Supremacy Clause of the United States Constitution, are preempted by federal law, and are invalid. (12-00120, D. N.M.)

2. Salvage│ Region 5

District Court Finds in Favor of Forest Service on Plaintiffs’ Motion for Preliminary Injunction in
Challenge to the Bald Fire Salvage Restoration Project on the Lassen National Forest in Center for
Biological Diversity et al. v. Hays. On October 8, 2015, the United States District Court for the Eastern
District of California denied plaintiffs, Center for Biological Diversity et al.’s motion for preliminary
injunction of the Bald Fire Salvage Restoration Project on the Lassen National Forest. The court found that plaintiffs were not likely to succeed on the merits (cumulative effects analysis is adequate, an EIS is not required, effects of the project are not highly uncertain or unique, and both beneficial and adverse impacts of the Project are considered), that the Project would not cause irreparable harm, that the balance of equities does not weigh in favor of granting injunctive relief due to the safety risk posed by hazard trees, and that a preliminary injunction is not in the public interest (salvage of timber will provide jobs in the community, increase safety for employees and the recreating public, and serve management goals as directed by Congress). (15-1627, E.D. Cal.)

Litigation Update

1. None to Report.

New Cases

1. Minerals │ Region 2

Plaintiff Challenges Operation of Keystone Mine Water Treatment Plant in High Country Conservation Advocates v. U.S. Forest Service. On October 5, 2015, plaintiff, High Country Conservation Advocates, filed suit in the United States District Court for the District of Colorado alleging that the actions/inactions of the Forest Service in allowing the continued operation of an active mine water treatment plant, water management facilities, and mine waste dumps associated with the Keystone Mine on U.S. Forest Service lands without an approved Plan of Operation, the required financial assurance or bond, and without any review of the environmental impacts associated with these operations constitute violations of the Forest Service Organic Act of 1897, NEPA, the 1970 Mineral Policy Act, the APA, and implementing regulations (36 CFR 228).

In October of 2012, following a protracted dispute between the Forest Service and Keystone Mine Owner, U.S. Energy regarding whether U.S. Energy was required to submit a Plan of Operation for occupancy of Forest Service lands associated with operation of the water treatment plant, the Forest Service issued an Administrative Appeal Decision rejecting U.S. Energy’s contention that the 1979 Plan of Operation for construction of the plant was sufficient, but that ultimately found that the appeal was moot and that no approved Plan of Operation authorizing operation of the plant or requirement for a bond or financial warranty was necessary because U.S. Energy had, two weeks earlier, submitted a proposed “preliminary Plan of Operation” for mining-related activities that would rely on the water treatment plant. Plaintiff alleges that the proposed Plan of Operations does not contain the information required by 36 CFR 228 to adequately cover the operation of the treatment plant and the surface water management facilities associated with the plant, including the required bond amount (D. Colo.)

20151005ComplaintHighCountryConservationAdvocates_v_USFS_KeystoneMineWaterTreatment
20150930OrderUSA_v_OteroCounty_Statute4-36-11
20151008OrderPI_CBD_v_Hays_BaldFireSalvage

Sagebrush rebellion goes down in flames

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The U.S. District Court for the District of New Mexico has ruled that an Otero County resolution permitting the removal of trees from the Lincoln National Forest is unconstitutional because it violates the Supremacy Clause of the U.S. Constitution.  The court’s order also invalidated the New Mexico state statute upon which the Otero County resolution relied because it too violated the Supremacy Clause.

We’ll hope the Forest Service helps spread the word to the rest of the states and counties that believe otherwise.

Forest Service to pay attorneys fees to industry group that challenged a settlement

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The U.S. Forest Service has agreed to pay an oil and gas industry group $530,000 for attorney fees it incurred in a long-running battle over drilling in the Allegheny National Forest, according to a court document filed Thursday.

The Pennsylvania Independent Oil and Gas Association sued to overturn a 2009 agreement between the government and two environmental groups that banned drilling while the agency conducted an environmental impact study. The industry contended that the ban exceeded the Forest Service’s authority.

U.S. District Judge Sean McLaughlin agreed and, in September 2012, permanently overturned the agreement. The 3rd U.S. Circuit Court of Appeals upheld his ruling in January 2014.

http://triblive.com/news/allegheny/9152266-74/forest-industry-service#ixzz3n4DOXNQV

I await the cries of indignation.

Forest planning contributes to listing species under ESA

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A recent federal court decision has invalidated the listing of the lesser prairie chicken.  A key reason for the court’s decision was that the Fish and Wildlife Service made an assumption that if it didn’t list the species, it would reduce the incentive for participation in a conservation plan.  The judge didn’t think that was a valid assumption.  The Forest Service seems determined to prove him wrong.

Under the 2012 Planning Rule, the Forest Service has the opportunity to help forestall the need to list species under ESA by identifying them as species of conservation concern and including protective plan components for them.  The wolverine received a positive 90-day finding that listing should be considered, but the FWS ultimately decided not to.   In response, the three forest plan revision efforts that are proceeding under the 2012 Rule and have wolverine habitat (Nez Perce-Clearwater, Flathead, Helena-Lewis & Clark) have determined that the wolverine should not be identified as a species of conservation concern.

The FWS will be looking for evidence their assumption was correct.  The lesser prairie chicken may have the Forest Service to thank when it eventually gets listed.  (And the wolverine, too.)