Forest plan stops ski area

It seems to be a little-known benefit of forest plans, but they can be used to support decisions to turn down requests for special use permits.  The high profile case of a proposed Lolo Peak ski resort near Missoula made it to district court, where Judge Molloy upheld the Forest Service decision to reject the proponent plaintiffs’ request.  The process for initial screening of a proposal requires a finding that it would be consistent with the forest plan.  In this case, the court reviewed the forest plan direction for the area proposed for development and found that the Forest Service was not arbitrary in finding that a ski area would not meet the goals and standards of the various management areas.  It didn’t help that the developer had already built ski runs on the private land, and photographs of them were used to demonstrate how the ski area would not meet visual quality requirements in the forest plan.   (This is what I see across the valley every time I drive into town.)

Malmsheimer Testifies on Litigation Study

Dr. bob Malmsheimer in DC
Dr. bob Malmsheimer in DC
Thanks much to Joseph Smith of SAF, who posted this on the SAF Linked- in site.

SAF member and SUNY ESF professor Bob Malmsheimer testified before House Subcommittee about litigation’s impacts on managing fire-prone forests – http://goo.gl/JiQX18

Between 1989 and 2008, 1,125 lawsuits were filed challenging Forest Service land management decisions.

SAF members Chris Topik (The Nature Conservancy) and Dale Bosworth (former US Forest Service Chief) also testified.

Additional information about the hearing is available at http://goo.gl/9zCYok.

Here’s a link to Bob’s testimony care of David South. And here’s a news story in the Sacto Bee with excerpts below.

Hanvelt, in his written testimony, elaborated that even if lawsuits based on the National Environmental Policy Act or other laws ultimately fail, forest projects “can be stopped or at least delayed indefinitely while additional analyses are completed.”

The subcommittee’s ranking Democrat, Rep. Niki Tsongas of Massachusetts, countered the hearing’s GOP-dominated theme by stressing that “bedrock environmental laws are making sure our public voice is heard” in the management of federal lands.

Between 1989 and 2008, according to a study presented Thursday, 1,125 lawsuits were filed challenging Forest Service land management decisions. The agency settled about one-quarter of the cases and won nearly 54 percent of them, study co-author Robert W. Malmsheimer testified.

More than 40 percent of the cases challenged the Forest Service’s “vegetative management” decisions, meaning logging and salvage programs, and these were also the lawsuits the agency was “most likely to settle,” the analysts found.

“Legal factors are now as important as biological factors and economic factors in the management of our national forests,” said Malmsheimer, a professor at the State University of New York’s College of Environmental Science and Forestry.

During the last Congress, McClintock wrote a bill to speed the salvage logging from forests damaged during the Yosemite Rim fire. The measure passed the Republican-controlled House of Representatives on a largely party line vote but did not advance in the Senate.

Sharon’s observation: I would argue that the public’s voice is not being heard when cases are settled in a room with attorneys ;), And don’t county commissioners represent the public? I think it’s sad that something that people can agree on (in Colorado), they can’t in D.C., where arguably the stakes for public policy are higher.

In fact, I’m looking for a liberal/conservative equivalent of a “coexist” bumper sticker for religions.. if anyone knows where I can find one, please let me know.

University of Montana Litigation Cost Case Study

Help

Here is a link to a case study by Todd Morgan and John Baldridge of BBER. I have to thank them for at least attempting to quantify the bucks that we spent when I worked for the Forest Service.

But what I think is really interesting is the reporting of this study in the Missoulian here.

First of all, the source of funding is in the title. Now that’s an interesting approach, and I think that it’s pretty unusual. But the Forest Service funds lots of research and other kinds of studies.. it even funded an administrative study on place-based efforts by Martin Nie of University of Montana.. and about a zillion other projects. In an organization as diverse as the Forest Service, I don’t know if “funded by the Forest Service” carries any meaning.

However, we also know that some studies are funded by environmental organization, folks like Headwaters and even Pew has funded studies that focus on one point of view. Yet most of the news stories I’ve found do not spend the first two paragraphs talking about the inclinations of the groups funding the study. I don’t think it’s a bad idea.just think that if folks are going to do it, they should do it consistently.

The reporter also interviewed Michael Garrity who made a series of claims. Now I think that perhaps every news article about a study should include someone who disagrees with it. There are a couple of problems though, with that. The first is that academics seldom question each other in print, which decreases the pool of available people. Then you could get people like me but if I were critiquing something my tone would be too civilized to make good press. I don’t know what the answer is ..

Michael Garrity, executive director of the Alliance for the Wild Rockies, a Helena-based organization that has sued to stop many timber sales in the state, didn’t put much stock in the report.

“The Forest Service loses money on almost all of their timber sales, almost $1,400 per acre, so it never makes sense to me how stopping the government from losing money costs money,” he said. “I can’t be any more straightforward than that. The (BBER) gets a lot of money from the timber industry, so I guess they are just doing what they are getting paid to do. This report is not in any published research journal or anything. They’re making their funders happy. There is no academic credibility behind that report at all.”

Sharon’s comments: EEK…ghosts of the below-cost timber sale controversy! Maybe someone out there can quote some published figures on that? I would bet different people include different things and come up with different numbers. However, my point is that everything the Forest Service does costs money.. duh.. so if you increase the costs above what they would otherwise spend, then it costs them more. (A + B)>A.

Let’s take an example- a ski area expansion. If you litigate it and the litigation costs are rolled into the cost of administering the permit, then it costs more. Or perhaps a campground or recreation road. I don’t get this logic.

Also, if “not published in a research journal” means “no credibility” well then…some topics are not popular in “research journals”, and some points of view are not popular. I would love to think that editors and reviewers are open-minded, interested in a wide range of topics and practical things that are useful to people, and objective, but peer-reviewed articles have shown that this is not the case ;).

Garrity, who says he is an economist by training, said the report makes no mention of the negative environmental effects of timber sales or the positive effects to taxpayers of stopping a timber sale.

Thanks to the High Country News for being more specific about Mr. Garrity’s economics pedigree here. I’m not critiquing his background, shoot- he has more than I do (note: some of my favorite people to work with and clearest thinkers have been forest economists).

My critique of his comment is that I thought the question the study was addressing was ” how does litigation affect the costs?”. Not “should we have timber sales based on a cost-benefit (social, economic, environmental) analysis?”
. He says “the positive effects of stopping a timber sale”. But many (most?) aren’t actually stopped, just dragged out and analyzed more over time. You would have to examine the probability of winning (according to some FS colleagues it’s a “crapshoot”) times the amount of money saved or spent. It would be kind of nice to have a table for the public posted that showed for the last 10 years, key characteristics of the project, was it collaborative? who sued, if they appealed and the ultimate date and size of project finished. Ah.. the People’s Database.

“Obviously, I have my biases, but Congress appropriates money (to the Forest Service for logging), it’s very clearly a subsidy, so anything that reduces that subsidy is a good thing,” he said. “There’s also a lot of timber sales that keep getting delayed because there isn’t a demand.

Congress appropriates money for recreation also, so if we have fewer campgrounds that must be a good thing..

“I checked yesterday, and the price of lumber is down 26 percent for the year. The housing industry really hasn’t recovered yet from the recession. To say delaying a timber sale costs money, it’s hard to take that seriously because there’s a lot of timber sales sitting out there they haven’t cut because there’s not a market for the timber.”

I’m not an expert on trends in Montana today (would appreciate input from some). And logically people still need wood for things, regardless of how the needs compare to before the recession.

Again, I think it’s a great idea to have an open discussion whenever a study comes out. The opener the better!

The Rim Fire Salvage Seems Done

My last expedition included another trip to Yosemite, and the Rim Fire. I DO think that there are enough dead trees for the owls to “enjoy” in their respite from breeding. Then again, maybe this new “Circle of Life” will provide more food, in the form of baby owls, to larger predators?

P9036671-web

You might also notice the ongoing beetle kills, which will increase when spring and summer come into play. This next picture shows the little bit of harvesting that was done along Highway 120. You can see the drainage where the Highway sits, and you can also see how wide the hazard tree units are. The barren area in the foreground is/was chaparral.

P9036665-web

I am glad that the Forest Service “took my advice” about getting the work done before there was any chance to appeal to a more liberal….errr….. higher court. However, is THIS what we want our salvaged wildfires to look like? This area should be ready for re-burn in a few short years. Also, be reminded that two of the plantation salvage projects did not sell, despite the prompt action by the Forest Service. My guess is that SPI was low-balling the Forest Service to get those smaller trees at less than “base rates”. That means that the prices remain the same (rock bottom) but, some of the non-commercial treatments would be dropped. It appears that the Forest Service wasn’t willing to go as low as SPI wanted. So, those perfectly good salvage trees will be left, “for wildlife”, it appears.

Participating, Objecting and Litigating: AWR and Some Montana Projects

east reservoirA reader sent me this series of questions about AWR’s objections to some Montana projects:

It would appear the Alliance for the Wild Rockies isn’t participating in the formal public comment piece of the proceedings. The attached are objection responses for the East Reservoir (Kootenai) and Trapper Creek (BDNF) projects in Montana. Dated 7/17/14 and 10/17/14.

The summary is the AWR isn’t submitting specific written comments as required by 36-CFR-218, resulting in the dismissal of their objections. It would appear there is a bit of cutting and pasting from previous appeals going on.

Does this flagrant disregard for 36-CFR-218 mean the AWR loses standing to sue?

Will the USFS test this in court?

Is it just another tactic by the AWR to test it in court…and tie the project, and future projects, up in the 9th circuit?

Why can the AWR get away with not following procedural review…but the USFS can’t?

Sharon’s thoughts: When I was working for the Forest Service in a different Region, different people working in appeals and different attorneys had different ideas about what to do when appellants “didn’t get the appeal in on time” and “submitted an appeal without changing the name from the last project (or only changing the title)”. One example I remember concerned meeting the deadline. The appeals coordinator felt that “rules are rules and we need to enforce them for everyone.” But some of the OGC attorneys felt “we ought to cut them some slack because they might get mad and sue us or otherwise cause trouble.” My personal opinion is that this did not become an issue with permittees or the ski industry or whatever.. they were expected to follow the rules. It’s kind of easy to feel sorry for a shoestring operation (some of the environmental groups who did this actually were shoestring operations, but others clearly were much better off, than say, some permitees), but, on the other hand, rules are rules.

So I don’t know how this will work on these Montana projects. I just know, in my experience, there were a lot of different points of view in what was the “right thing to do.”

For those who wonder how these different points of view get resolved, in our case, we would write a letter (say denying the appeal), and the attorneys would sit in on the meeting in which we would brief the Deputy Regional Forester and give their point of view. But if OGC was going to push on it with the DRF or RF, I think the attorneys would check around among themselves to see if they shared the opinion first before deciding to push. If the DRF (the boss of me and our shop) agreed with the attorneys we would go back and do what the DRF said.

Anyway, is there anyone out there who can answer the reader’s questions with more current and relevant experience?

For those who are interested and have not worked in this area, I recommend you take a look at the links below.

Here are the links to the Regional Forester’s letters re the objections on Trapper Creek:

and East Reservoir.

Here are the responses on the two projects:

trapper creek page 2

trapper creek page 3(1)

East Reservoir page 2

East Reservoir page 3

Usettling Forest Service settlement

The continuing judicial story of the South Canyon Road on the Jarbridge River (where the first battle was fought with shovels).

Legal arguments center on an 1866 law that established so-called RS 2477 roads by granting states and counties the right of way to build highways on federal lands…  The government denies such a right of way exists. But under political pressure, the Forest Service signed a settlement agreement in 2003 with assurances it no longer would challenge the county’s claim.

The Wilderness Society and Great Old Broads for Wilderness sued to block the deal, saying U.S. officials lacked the authority to cede control of the road and shirked their responsibility to protect the bull trout. The 9th Circuit Court of Appeals agreed and tossed the agreement out in 2005, before the agency signed a similar deal in 2011 and conservationists sued again.

 

Forest Service Litigation Weekly–April 20, 2015

Attached are the Weekly itself, and the court order related to the below:

Big Thorne │Forest Management │ Region 10

Circuit Court Denies Appellants’ Motion for Emergency Injunction of the Big Thorne Project on
the Tongass National Forest in Southeast Alaska Conservation Council et al. v. U.S. Forest
Service et al
. On April 16, 2015, the United States Court of Appeals for the Ninth Circuit denied
appellants, Southeast Alaska Conservation Council et al.’s motion for an emergency injunction
pending appeal in their challenge to the Big Thorne Project and the 2008 Tongass Forest Plan. The
Circuit’s order also granted the unopposed motion the consolidate the appeals and expedite briefing on
the merits. (15-35232, 9th Cir.)

Oh.. and here’s a disclaimer, which is valuable for any reading of this extremely useful newsletter:

The NFS Litigation Weekly Newsletter is provided to Forest Service employees for internal, informational purposes and is not intended to provide a legal/policy opinion or interpretation of its subject matter. Information presented in the Litigation Weekly is publicly available via official court records. Official court records should be consulted for the most complete and accurate discussion of each case.

2015_04_20 NFS Litigation Weekly20150416CircuitOrderEmergInjSEAC_v_USFS_BigThorne

Swiss Dude with Outsized Policy Influence

swiss dude

A shout-out to E&E News, and to an unnamed blog reader for sending this in.. I think this piece is important just because as a person up to my gills in some of these controversies, I had never heard of this chap. As regular readers know, it makes me uncomfortable from a social justice perspective that our country has set up a governance system for public lands that enfranchises some (rich people who have foundations) at the expense of others (people who work at the mill or make their living from ranching). It makes me uncomfortable from a political perspective that the views of distant landowners (e.g, this Swiss dude) override the views of local people and their elected officials. It sounds a bit, well, colonialist. And I know that is the way it is currently set up, but it just doesn’t seem right to me. Below is the article and some of the groups mentioned in certain of my experience have pretty much dictated policy (as in, if this group doesn’t like the wording, the policy ain’t happening). Again, much thanks to E&E for publishing this piece.)

A Swiss billionaire is forging a conservation legacy across the western United States and having an outsized influence on federal policies.

His name: Hansjorg Wyss.

The media-shy 79-year-old built a $6 billion fortune manufacturing medical devices, and he’s pledged to give more than half of it away to preserve the American West, among other philanthropic pursuits.

Hansjorg Wyss (pronounced “Hans-yorg Wees”) and his nonprofit, the Wyss Foundation, have so far donated more than $350 million to acquire land and buoy dozens of green groups molding lands policy in Washington, D.C., and Western communities.

“Hansjorg Wyss is a godsend to the conservation community,” said Bill Meadows, former president of the Wilderness Society, which has received significant Wyss funding. “Without their funding, all of our organizations would be much less equipped to do serious research, serious policy analysis.”

Industry-aligned groups say Wyss promotes radical environmentalists who block energy development and destroy jobs on Western lands.

“Wyss’s foreign money — tens of millions of dollars of it — takes American natural resources out of productive uses,” according to a profile of Wyss by the Center for Organizational Research and Education. The center is run by Richard Berman, a D.C. public relations consultant who runs attack campaigns against green groups.

Love him or hate him, Wyss’ policy footprint on Western lands is growing.

In late 2013, Wyss signed the “Giving Pledge,” an initiative started by Warren Buffet and Bill and Melinda Gates that asks wealthy individuals to give at least half of their wealth to charity.

Among Wyss’ biggest gifts:

$4.25 million in 2013 to help buy back 58,000 acres of oil and gas leases in Wyoming’s Hoback Basin, a prized retreat for rafters, fishermen and hunters, and a major migration route for wildlife.

$2 million in 2013 to remove the century-old Veazie Dam and restore fish passage in Maine’s Penobscot River.

$35 million in 2010 to help purchase 310,000 acres of private timberlands to protect grizzly bear and wolverine habitat in northern Montana, stitching together a checkerboard of federal, state and private lands.

In 2013, the politically connected Wyss Foundation quietly donated roughly $19 million, much of it to conservation nonprofits that lobby for new wilderness and national monuments and curbs on drilling, mining and grazing on public lands, according to the foundation’s most recent 990 report to the Internal Revenue Service.

The foundation gets relatively little media exposure given its influence. Wyss gives few interviews and declined to speak for this article.

Mr. Wyss

Wyss, 79, is an avid hiker and major supporter of Western land conservation. Photo courtesy of the Wyss Foundation.

Yet environmental leaders and former Interior Department officials say Wyss is in a pantheon of conservation luminaries that includes William Hewlett and David Packard.

“His foundation has become one of the pillars of philanthropy in the American West,” said David Hayes, who served as Interior deputy secretary during President Obama’s first term and was a senior fellow for the William and Flora Hewlett Foundation, another major backer of land conservation.

Wyss’ foundation, which has more than $2 billion in assets, in the past several months has expanded its philanthropic work beyond the West. It gave $10 million to rebuild ocean fisheries in Peru and Canada, $6 million to combat illegal wildlife trafficking in eastern Africa, and $385,000 to support environmental journalism, including two new reporting jobs in D.C. and Denver.

Wyss’ work is filling a major funding gap as Republicans propose gutting federal conservation programs and as another major lands funder, the David and Lucile Packard Foundation, is pulling back from the West.

Packard recently concluded a six-year, $122 million Western conservation program, leaving some of its grantees in a financial hole.

The program, which was led by Rhea Suh before she left in 2009 to head the Interior Department’s budget office, was “one of the largest environmental initiatives by philanthropy” in the West’s history, even though it fell well short of its $200 million funding goal, according to a report released this month by California Environmental Associates.

“Many organizations grew in size and sophistication during the subprogram, but some are finding it difficult to secure funding to replace the Packard Foundation investments,” the report concluded.

‘Abiding love’ for the West

Wyss, who splits his time between his native Switzerland and his home in Wilson, Wyo., at the foot of the Teton Range, is an avid outdoorsman who has hiked some of the most remote landscapes in the Lower 48.

“I know the West like my back pocket,” Wyss said in a 2010 interview with the Associated Press.

His love for the West began in 1958, when he took a summer job as a surveyor for the Colorado Highway Department. Wyss was impressed that public lands in the United States had been preserved from development and kept open to all its citizens.

In the Swiss Alps, there were already “too many ski lifts, too many resorts, too many hotels,” he told the AP. “In the United States, we have a chance to protect some of them, not only for Americans but for people all around the world to benefit.”

Wyss returned to the United States to attend the Harvard Business School, where he earned a Master of Business Administration in 1965.

Wyss built his fortune through medical device manufacturer Synthes USA, which he founded in 1974 and sold in 2012 to Johnson & Johnson for $20.2 billion cash and stock, according to Forbes.

His trips west to hike the Rocky Mountains and explore the Grand Canyon were catalysts for his later philanthropic work, according to people who know him. He still hikes, cross-country skis, climbs mountains and backpacks.

He is a “quietly philanthropic person” with “an abiding love affair with the West,” said Chris Wood, president of Trout Unlimited, which has received more than $6.5 million from Wyss over the past decade, Wood said.

“He is a guy who brings intellect, knowledge, passion and commitment together,” Meadows said.

Wyss’ hiking prowess belies his age, said Bill Hedden, executive director of the Grand Canyon Trust.

Hedden said he hiked with Wyss six years ago in the Grand Canyon along “the most difficult, treacherous route on the South Rim,” a multi-day trek that required scrambling down steep talus fields and skimming across razor-sharp Kaibab limestone.

More recently, Wyss and Hedden plumbed “the Maze,” a remote, sandstone labyrinth in Canyonlands National Park in southern Utah that requires experienced route finding and a high level of self-reliance. The expedition navigated a half-foot of snow and temperatures nearing single digits, Hedden said.

“You go out with Hansjorg, and you’re probably in for a real expedition,” Hedden said. “He connects to the place by loving the place.”

Wyss has a daughter, Amy, who lives in Wyoming and is also a billionaire, according to Forbes.

According to Wyss Foundation President Molly McUsic, Wyss spends little time in D.C. and rarely meets with policymakers. The foundation has 14 staff members in D.C. and Durango, Colo., but it does not lobby or take policy positions, she said.

Yet the foundation has deep connections to the Beltway.

McUsic was a counselor to Interior Secretary Bruce Babbitt during the Clinton administration, where she was involved in the designation of the Grand Canyon-Parashant National Monument and seven other national monuments under the Antiquities Act in 2000.

The Wyss Foundation’s vice chairman, John Leshy, served as Babbitt’s solicitor and was co-chairman of the Obama administration transition team for the Interior Department.

Past and current Wyss consultants have served in high levels of the Obama administration.

John Podesta, who until last month was Obama’s top environmental adviser, was paid $87,000 for “consulting” by the HJW Foundation, another of Wyss’ foundations (now merged into the larger Wyss Foundation), according to Podesta’s financial disclosure statement.

Matt Lee-Ashley, who was a top Interior official during Obama’s first term and is now director of public lands for the Center for American Progress, is a part-time consultant for Wyss, whose foundations have donated millions of dollars to CAP.

In addition to his philanthropy, Wyss is on the governing council of the Wilderness Society and serves on boards of the Southern Utah Wilderness Alliance, Grand Canyon Trust and CAP — major movers and shakers in federal lands policy.

Who gets money

The foundation’s 2013 grant recipients are a who’s who of Western lands advocacy.

The largest grant was $2.9 million for the New Venture Fund, whose initiatives include the Western Energy Project and which supports the “responsible development of oil, gas, and oil shale on our federal public lands” in the Rocky Mountain West, according to NVF’s website.

Wyss gave nearly the same amount to Trout Unlimited; about $2.5 million to the Portland, Ore.-based Western Rivers Conservancy; and $1.5 million to the Durango-based Conservation Lands Foundation, which supports the Bureau of Land Management’s National Conservation Lands and the designation of new national monuments.

Smaller grants went to the Theodore Roosevelt Conservation Partnership ($750,000), Backcountry Hunters and Anglers ($300,000), the New Mexico Wilderness Alliance ($280,000), Great Old Broads for Wilderness ($90,000) and WildEarth Guardians ($53,000).

“We look at a wide range of organizations that are looking to expand public access” to Western lands, McUsic said. “We look for groups that are building support locally.”

Unlike its foundation peers, Wyss money is almost exclusively dedicated to land conservation. A big chunk of Wyss funding is for general support for nongovernmental organizations, rather than specific projects.

“They give grants to organizations that know their stuff and then they get out of the way,” Wood said. “They don’t micromanage.”

But foundations that receive Wyss money issue their own grants — often with discreet policy objectives like designating national monuments, bolstering conservation funding or lobbying lands agencies to set aside public lands from drilling.

Take the Denver-based Western Conservation Foundation, which received $1.6 million from Wyss in 2013. WCF that year issued dozens of grants to mobilize sportsmen, Hispanics, veterans and business owners to support conservation of public lands, according to its 990.

WCF gave $198,000 to the Portland-based Vet Voice Foundation to support designation of the Rio Grande del Norte National Monument in New Mexico — which Obama declared a monument in March 2013 — and to “elevate veterans’ voices on conservation.”

WCF gave more than $100,000 to other nonprofits to support protections for Nevada’s Gold Butte and Idaho’s Boulder-White Clouds area, which are candidates for national monument designations, and New Mexico’s Organ Mountains-Desert Peaks and Colorado’s Browns Canyon, which were recently designated by the president.

The WCF grants also supported direct advocacy with top Interior officials.

One $5,000 grant to Visit Mendocino County Inc. was for “thanking Sally Jewell for visiting Mendocino County” after the Interior secretary in late 2013 visited the county’s Stornetta Public Lands, which conservationists and business groups including Visit Mendocino were lobbying Obama to designate as a national monument.

In March 2014, Obama used the Antiquities Act to add 1,665 acres of the Stornetta public lands to the California Coastal National Monument.

WCF in 2013 also donated $46,000 to the Theodore Roosevelt Conservation Partnership for a “sportsmen reception for Sally Jewell & briefing for policy makers.”

The Wyss Foundation gave about $4.5 million from 2011 to 2013 to the Conservation Lands Foundation, where Wyss is a founding board member. CLF supports friends groups that help BLM maintain its national monu””We look at a wide range of organizations that are looking to expand public access” to Western lands, McUsic said. “We look for groups that are building support locally.”

Forest Service Litigation Update March 30, 2015

A reader asked these questions and I did not know the answers..

1. when the FS loses a case, it pays EAJA fees sometimes why and not other times?
Where can a record of these be found?

2. When the plaintiffs lose must they pay legal costs to the Forest Service?
How does the FS determine this?
Where can a record of these be found?

Thanks to any who can answer… here is the news of the week. note that Big Thorne has been appealed.

Forest Management │Region 10

District Court Upholds the 2008 Amended Forest Plan and the Big Thorne Project on the Tongass National Forest in Southeast Alaska Conservation Council v. USFS. On March 20, 2015, the United States Court for the District of Alaska ruled in favor of the Forest Service in plaintiffs, Southeast Alaska Conservation Council, Alaska Wilderness League, National Audubon Society, Natural Resources Defense Council, Sierra Club, Cascadia Wildlands, Center for Biological Diversity, Greater Southeast Alaska Conservation Community, Greenpeace, and the Boat Company’s challenge to the Big Thorne Project and the 2008 Amended Tongass National Forest Plan. The court found that: (1) the Forest Service conducted a reasonable assessment of timber market demand (plaintiffs alleged that the Forest Service acted arbitrarily when it relied on outdated projections of timber demand in evaluating the need for the project); (2) the Forest Service did not violate NEPA with regard to wolf population information in its SIR because incomplete and missing current wolf population estimates were identified and explained as to why the information was not considered essential to making a reasoned choice among alternatives; (3) the Forest Service considered the ability to provide sufficient deer habitat to meet both the viability and sustainability of wolf populations, and where that sustainability was not presently possible, appropriately exercised its discretion (plaintiffs argued that the Forest Service violated NFMA by providing an arbitrary explanation on how Big Thorne is consistent with the 2008 Forest Plan with regard to deer habitat); (4) the Forest Service sufficiently disclosed the Project’s impact to wolf populations, specifically that the Forest Service did address differing scientific opinions (plaintiffs claimed that the Forest Service violated NEPA for failure to do so); (5) an SEIS was not required because the Forest Service’s use of a SIR; and (6) that the 2008 Forest Plan did not violate NEPA or NFMA with regard to sustainable wolf populations. (14-00013, D. Ak.)

Update: Plaintiffs filed a notice of appeal of the District Court’s decision on March 26, 2015.

2. Lands │Region 2
District Court Rules in Favor of the Forest Service in Lands Dispute on the San Juan National Forest in USA v. St. Clair. On March 26, 2015, the United States Court for the District of Colorado found that the United States is the owner of a disputed piece of property considered to comprise a portion of the San Juan National Forest. (11-02857, D. Colo.)

Litigation Update

1. NOI │Region 6
NOI Filed Regarding Grazing on the Malheur National Forest. On March 6, 2015, Oregon Natural Desert Association sent an NOI alleging impacts from grazing on the Malheur National Forest in violation of sections 7 and 9 of the ESA (failure to reinitiate consultation and exceeding the amount of incidental take) with regard to bull trout.

20150320OrderSoutheastAlaskaConservationCouncil_v_USFS_BigThorne

20150323NOI_ONDA_MalheurGrazing

20150326OrderUSA_v_StClair_LandsDispute2015_03_30 NFS Litigation Weekly(1)

Blankenship Vegetation Project Update

You may remember thisblankenship-veg-project project from this post, in which I asked for volunteers to learn about it. No one ever volunteered, but here we are. The project apparently treats 1100 acres in the 40K acre project area.

I still think it would be better policy if we had an open dialogue with folks like AWR about why AWR thought there were lynx and why they thought the project would hurt them with the rest of us able to read the FS documents and chime in. It would have been interesting and a learning experience for everyone. Wouldn’t it be interesting if there were a policy experiment that before any (fuels treatment?) project (less than 2000 acres?), future plaintiffs were required to engage in a public discussion about their claims? It seems like it would be a more open and transparent process… and at the end of the day the lawsuit could still be brought so no legal rights would be violated (as far as I can tell.)

Here’s the link to the Great Falls Tribune article:

U.S. District Judge Brian Morris has sided with Lewis and Clark National Forest in a lawsuit brought by the Alliance for the Wild Rockies to block a forest logging/prescribed fire project in the Little Belt Mountains to address aging stands of timber.

The Alliance alleged in the February 2014 lawsuit that the forest violated the Endangered Species Act, the National Environmental Policy Act and the National Forest Management Act when it approved the Blankenship Vegetation Treatment Project.

The lawsuit said the Forest Service’s finding of “no adverse effects” for lynx was flawed.

The Forest Service said it is possible lynx move through the area, but the habitat isn’t considered occupied.

In a decision Monday, the judge ruled in favor of the forest’s motion for summary judgment, finding the agency had complied with the law on each of the seven points raised in the lawsuit.

The court’s decision notes that “summary judgment is appropriate if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.”

“This is one of those projects that has taken a couple of years and has consumed hundreds of hours of staff time to move through the appeal and litigation process,” Forest Supervisor Bill Avey said in a news release. “The court’s decision validates the hard work that those employees did to get the project to this point and now we look forward to restoring resource conditions and improving public safety by getting to work out on the ground.”

The project area encompasses about 40,700 acres in the Dry Fork of Belt Creek Drainage of the Little Belt Mountains. Within that area, roughly 1,100 acres would be treated using a mix of commercial harvesting, pre-burn slashing and thinning and prescribed fire.

The Dry Fork of Belt Creek is a popular forest recreation area and is considered to be at high risk of wildfire due to the current vegetative conditions including mortality from the mountain pine beetle, lack of defensible space adjacent to private land inholdings, and natural fuel conditions that could result in large scale wildfire, according to the Forest Service.