Litigation

Appeal of Big Thorne Sale?

by

Another on the Big Thorne Timber Sale by E&E News…

This seems to me a “clearcut” case of the Forest Service following the law, based on what the judge says. I agree with Senator Murkowski that protracted litigation and appeals are a suboptimal approach to forest policy. At the end of the day, many times, the FS just does more work (as per Colt Summit) and unsurprisingly, no ecosystems have unraveled yet.

Environmental groups are “very likely” to appeal a judge’s decision last Friday to uphold a Forest Service plan to allow more than 6,000 acres of old-growth logging in Alaska’s Tongass National Forest, according to the groups’ attorney.

Tom Waldo of Earthjustice said plaintiffs are still evaluating whether to seek an emergency halt to the Big Thorne timber sale pending appeal to the 9th U.S. Circuit Court of Appeals.

Earthjustice represented the Southeast Alaska Conservation Council, Alaska Wilderness League, Sierra Club, National Audubon Society and Natural Resources Defense Council in two lawsuits in the U.S. District Court for the District of Alaska that were consolidated into one.

U.S. District Judge Ralph Beistline ruled the Forest Service broke no laws in crafting its 2008 Tongass land-use plan and approving Big Thorne, which allows the harvest of about 150 million board feet of trees, most of them old growth, while also mandating significant restoration and recreation improvements (E&ENews PM, March 23).

The Forest Service and a local mill have previously said they will not start ground-disturbing activities until April 1 at the earliest.

Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) has long supported the Big Thorne sale and cheered Beistline’s decision. But yesterday at an ENR hearing to discuss forestry reform, she warned that “the lawsuit isn’t necessarily over.”

She said she’s fearful that even if the Forest Service prevails on appeal, it could delay logging long enough to put southeast Alaska’s only remaining medium-sized timber mill out of business.

“Some would argue that that’s been the plan here all along,” she said. “Not to just cut it off, but to delay enough that those in the industry just give up. That’s not what forest policy should look like.”

Forest Service Litigation Weekly -March 23, 2015

by

Our favorite weekly document (thanks to the authors!) with attached documents.

Litigation Update

1. Preliminary Injunction │Region 5
Ninth Circuit Denies Appellant’s Motion for Injunction Pending Appeal in Conservation Congress v. USFS. On March 16, 2015, the United States Court of Appeals for the Ninth Circuit, citing Winter v. Natural Resource Defense Council, denied appellant, Conservation Congress’ motion for an injunction pending appeal of the Algoma Project on the Shasta-Trinity National Forest. (14-16142, 14-17397, 9th Cir.)

2. NOI │Region 1
NOI Filed Regarding the Noisy Face Recreation Plan on the Flathead National Forest. On March 6, 2015, Swan View Coalition sent an NOI alleging that the Noisy Face Recreation Plan on the Flathead National Forest is in violation of sections 7 and 9 of the ESA due to impacts on grizzly bear. The NOI also alleges failure to consult on lynx critical habitat.

New Cases
1. Travel Management │Region 5
Plaintiffs Challenge the Plumas National Forest Motorized Travel Management ROD in Granat et al. v. USDA. On March 18, 2015, plaintiffs, Amy Granat (Managing Director of the California Off-Road Vehicle Association), Corky Lazzarino (Executive Director of Sierra Access Coalition), Sierra Access Coalition, California Off-Road Vehicle Association, The County of Plumas, and the County of Butte filed suit in the United States District Court for the Eastern District of California challenging the Plumas National Forest Motorized Travel Management ROD. Plaintiffs raise twelve claims including: (1) the Forest Service did not employ a science-based roads analysis to designate routes under the Travel Management Rule according to the potential impacts to natural resources, soils, watersheds, or vegetation, (2) the Forest Service did not coordinate with local governments under the Travel Management Rule (including that the Forest Service’s decision did not reflect consideration of the connection between Plumas National Forest routes and the county road systems or consider the opportunities for county roads to serve as connectors), (3) the Forest Service failed to comply with NEPA requirements to cooperate and coordinate with local governments, (4) the Forest Service failed to identify, evaluate, and disclose the environmental impacts of motorized travel on thousands of unclassified but historically and lawfully used routes, (5) the Forest Service failed to consider an adequate range of alternatives as required by NEPA by failing to consider any alternatives that did not amount to a total ban or reasonable levels of closure for unclassified routes, (6) the Forest Service failed to provide a scientific basis for the Travel Management Decision (e.g. by using inaccurate and flawed data or no data), (7) the Forest Service failed to sufficiently analyze impacts to the human environment, (8) the Forest Service’s socio-economic impacts analysis was deficient, (9) the Forest Service failed to adequately respond to comments, (10) the Forest Service failed to complete a supplemental EIS between the draft and final decision, (11) the Forest Service failed to adequately consider the cumulative impacts of loss of recreational and trail access, and (12) the Forest Service violated FOIA by failing to respond within the statutory time limit. (15-00605, E.D. Cal.)

20150306NOI_SwanViewCoalition_NoisyFaceRecreation

20150316CircuitOrderPI_ConservationCongress_v_USFS_Algoma

20150318_Complaint_Granat_v_USDA_PlumasTrvlMgmt

Big Thorne Project Upheld

by

From E&E News

A federal judge in Alaska last Friday upheld the Forest Service’s controversial plan to allow more than 6,000 acres of old-growth trees to be logged in the Tongass National Forest, marking a major win for a local timber mill.

The decision by U.S. District Judge Ralph Beistline clears the way for the Big Thorne project, which authorizes the sale of about 150 million board feet of timber, most of it old-growth. It is the largest-volume timber project approved in the 17-million-acre forest since 1993.

The project’s main timber contract has been awarded, and ground-disturbing activities could begin within weeks.

The 25-page ruling is a defeat for 10 environmental groups that filed three lawsuits late last summer challenging the logging project and the 2008 Tongass land-use plan. Groups warned that old-growth logging would ruin habitat for the Sitka black-tailed deer, which is a key food source for the imperiled Alexander Archipelago wolf and area hunters.

One coalition of plaintiffs included the Southeast Alaska Conservation Council, the Alaska Wilderness League, the Sierra Club, the National Audubon Society and the Natural Resources Defense Council. The other consisted of Cascadia Wildlands, the Greater Southeast Alaska Conservation Community, Greenpeace, the Center for Biological Diversity and the Boat Co.

By targeting “most of the best remaining” mid- and low-elevation winter habitat for deer, the project will cause “irreparable harm” to hunters on Prince of Wales Island, said one of the lawsuits. All three suits were later consolidated.

Beistline rejected all of the groups’ claims.

He said the Forest Service had made a “reasonable” assessment of timber market demand, had properly explained why additional wolf population data was not necessary for the agency to make an informed decision, and had “appropriately exercised its discretion” on other issues.

He also found that the Forest Service’s review of its 2008 Tongass land-use plan “was ‘reasonably thorough’ and took the requisite hard look at the environmental consequence consistent with the requirements” of the National Environmental Policy Act.

Tom Waldo, an attorney for Earthjustice who represented a handful of the environmental plaintiffs in the case, could not immediately be reached for comment.

The Alaska Forest Association, the state of Alaska, the city of Craig and Viking Lumber Co., which won the main logging contract, had each intervened in the case in defense of the Forest Service.

Clearwater travel plan remanded (again)

by

Environmental plaintiffs successfully overturned the Clearwater National Forest travel plan in district court (newspaper coverage here). There are some implications for forest planning.

The court found the travel plan to be inconsistent with the forest plan’s requirement for elk habitat effectiveness (EHE) because it used the same methodology to evaluate EHE that was used for the forest plan. The methodology currently used (that the Forest Service helped develop) had added trails with motorized use to its road density calculations. The court considered this to be the best available science, which must be used in determining consistency with the forest plan, even though that creates (as the Forest Service put it) a ‘moving target’ for NFMA consistency. That’s an interesting argument for the Forest Service to make because the trend is for forest plans to defer more determinations to the project level, instead of having more specific direction in a forest plan.

The court also explained what is needed to demonstrate that an action ‘minimizes’ some outcome. (This case was specifically about ‘minimization’ criteria in an Executive Order related to motorized use, but the term is commonly found in forest plans.) Project documentation must explain exactly how a project was designed to meet the minimization criteria. General discussion of the criteria was not sufficient in this case.

The court upheld the NEPA analysis for the travel plan. However, it may have given the Forest Service a break by basing that decision on the fact that the decision was for an ‘entire forest’ and that it was ‘programmatic.’ The idea that NEPA analysis can be less demanding for broad-scale or programmatic decisions stems from the existence of another NEPA decision prior to actual impacts. While that is true for decisions to close roads (closure orders), it is not true for decisions to open roads.

(Since the Clearwater previously settled with motorized users in a case before a different Idaho judge, who kept the travel plan in effect, I’m not sure where this remand leaves travel planning on the Clearwater – especially in the context of ongoing revision of the Nez Perce-Clearwater forest plan.)

How the Sue and Settle Process Works II : Who Gets Intervenor Status?

by

Thanks to Jon for starting this discussion with a post on “how sue and settle really works”. Thanks to Guy for giving us the link to who can get intervenor status and why. I asked Scott Horngren, of the American Forest Resource Council, if my memory was correct that sometimes timber folks can’t get intervenor status. Based on what he says, It seems rather arbitrary (and capricious? ;)) across circuits. Especially inconsistent, I think, is the sentence I italicized. I wonder if what Scott refers to as resource users also includes anyone whose uses are opposed by another group based on environmental concerns (skiing, hiking, ATV’s etc.)? Doesn’t seem very.. errr.. just..
Many thanks to Scott for his explanation:

You are correct that resource users have been denied intervention (and the ability to bring their own challenge as plaintiff to an agency NEPA decision) in the past, and it still can be a problem in certain circumstances. The decisions vary by Circuit so the approach is not identical across the entire federal court system. I agree that it is inconsistent of agencies and environmental groups in one breath to profess to want to hear the views and encourage the participation of all parties in agency decision-making under NEPA and the National Forest Management Act yet in the next breath oppose intervention of the same people who participated in the process when the agency decision is later challenged in court.

In the Ninth Circuit, only recently has the “none but the federal defendant” rule on intervention been overturned. The rule was judicially created in Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982) and extended to the Ninth Circuit in Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir. 1989). It essentially stated that in litigation challenging a NEPA decision (and later NFMA) there could be no intervention “of right” in the case because if the agency lost it was only the agency that would have to rewrite the NEPA decision or do additional analysis to comply with the law. It was not until 2012 in Wilderness Society v. United States Forest Service, 630 F.3d 1173 (9th Cir. 2012), that an en banc panel of the Ninth Circuit stepped in to reverse the judge made law that had been in place for 22 years. In that case motorized recreation users led by the Magic Valley Trail Machine Association were denied intervention in the Wilderness Society lawsuit challenging a Forest Service decision involving road and trail use by motorized vehicles. The Ninth Circuit reversed its long-standing position that only an agency can be a defendant (and thus no intervenors were allowed to defend the decision). I do not know the current status of the rule in the Seventh Circuit. In the D.C. Circuit is less clear whether resource users can intervene in cases, since unlike the Ninth Circuit, the D.C. Circuit requires a proposed intervenor to demonstrate it would have standing under the statutes in order to intervene in a case. As explained below courts often consider that resource users do not have standing to bring a NEPA case.

In addition, there is the issue of standing to bring a NEPA case. Ironically, in many courts environmental groups can challenge a NEPA decision as a plaintiff but resource users are precluded from doing so. In particular, under Ninth Circuit law someone with an economic interest does not have standing to challenge an agency NEPA decision. That would mean a rancher whose economic livelihood is dependent on a grazing lease could not challenging NEPA decision of the Forest Service to challenge that lease. The court’s reasoning is that NEPA is concerned with environmental protection and only those with an interest in protection of the environment can bring a lawsuit under NEPA. However, the Supreme Court has emphasized that NEPA is a procedural statute that does not dictate any substantive environmental result. So the correct law should be that anyone who participated in the NEPA procedures can be a plaintiff to challenge the inadequacy of the procedures. I expect that as with the “none but the federal defendant rule” on intervention under NEPA, the “only environmental interests can be plaintiffs in a NEPA case” rule will be eventually overturned. (This “standing’ aspect also becomes an issue if you want to appeal a court decision on the merits striking down agency action but the government decides not to appeal. The Ninth Circuit court takes the position that if you cannot demonstrate standing under NEPA, you can’t appeal the adverse decision if the government doesn’t, even though in the Ninth Circuit you do not have to demonstrate standing to intervene in the case in the first place).

Finally, even as an intervenor in a case, some judges preclude you from participating in settlement discussions. But if a settlement agreement is reached between the environmental group and the agency, an intervenor, whether involved in the settlement discussions or not, has a right to object to the settlement in the district court. And if the objection is denied, the intervenor can file an appeal challenging the settlement agreement. It is rare however that a court will overturn a settlement agreement between the principal parties of the case.

How the sue and settle process really works

by

This 6-page opinion includes a discussion of how courts decide whether to approve a consent decree.

The case also demonstrates the ability of intervenors to influence the outcome.  In this case environmental groups intervened in a lawsuit by motorized users over a travel plan decision.  Because of the intervenors, the court refused to approve the part of the consent decree that would have vacated that travel plan and allowed motorized use to continue while the Forest Service reconsidered the travel plan.  The intervenors kept the plaintiffs from getting what they really wanted.  (But the plaintiffs or the Forest Service could now reject the consent decree and continue the lawsuit.)

The court poses a hypothetical at the end:  “This analysis would change, however, if upon reconsideration the Forest Service finds flaws in the 2011 Travel Plan requiring changes. At that point, a strong argument could be made that the Plan cannot remain intact and should be vacated, reinstating the 1987 Forest Plan management scheme.”  The problem with this result would be that this travel plan is necessary to accomplish the 1987 forest plan direction to protect wilderness character, and reverting to the no-action alternative would be inconsistent with the forest plan.  That creates an equally strong argument the other way (in my opinion).

Forest Service Litigation Weekly – March 2, 2015

by

 

Looks like Region 1 had a good month!

. Forest Management ǀ Region 1
District Court Rules in Favor of Forest Service in Challenge to the Spotted Bear Project on the Flathead National Forest in Friends of the Wild Swan v. Weber. On February 23, 2015, the United States District Court for the District of Montana adopted the recommendation of United States Magistrate Judge Lynch in its entirety, and ruled in favor of the Forest Service in Plaintiffs, Friends of the Wild Swan et al.’s challenge to the Spotted Bear Project on the Flathead National Forest. In adopting Magistrate Judge Lynch’s recommendation, the District Court upheld the Forest Service’s cumulative effects analysis (regarding the decision to exclude the Soldier Addition Project from analysis and discussion on native trout, lynx, and grizzly bear). The Court also upheld the finding that an EIS was not required, that the Forest Service correctly determined that the fisher population is viable, that the Forest Service’s methodology for determining horizontal cover was a means for addressing an existing Forest Plan standard (VEG S6), that the Forest Service sufficiently explained the ESA “action area,” and that the Court lacked the jurisdiction to hear arguments that the Forest Service violated the Salix decision. (12-00029, D. Mont.)

2. Forest Management ǀ Region 1
District Court Rules in Favor of Forest Service in Challenge to the Soldier Addition II Project on the Flathead National Forest in Friends of the Wild Swan v. Christiansen. On February 23, 2015, the United States District Court for the District of Montana adopted the recommendation of United States Magistrate Judge Lynch in its entirety, and ruled in favor of the Forest Service in Plaintiffs, Friends of the Wild Swan et al.’s challenge to the Soldier Addition II Project on the Flathead National Forest. In adopting Magistrate Judge Lynch’s recommendation, the District Court upheld the Forest Service’s cumulative effects analysis (regarding the decision to exclude the Spotted Bear Project from analysis and discussion on native trout, lynx, and grizzly bear). The Court also upheld the finding that an EIS was not required, that the Forest Service correctly determined that the fisher population is viable, that the Forest Service’s methodology for determining horizontal cover was a means for addressing an existing Forest Plan standard (VEG S6), that the Forest Service sufficiently explained the ESA “action area,” and that the Court lacked the jurisdiction to hear arguments that the Forest Service violated the Salix decision. (12-00059, D. Mont.)

3. Forest Management ǀ Region 1
Circuit Court Affirms the Grizzly Vegetation and Transportation Management Project on the Kootenai National Forest in Alliance for the Wild Rockies v. Bradford. On February 26, 2015, the United States Court of Appeals for the Ninth Circuit affirmed an August 20, 2013 decision from the United States District Court for the District of Montana upholding the Grizzly Vegetation and Transportation Management project on the Kootenai National Forest. The Circuit Court found: (1) that the Forest Service was not in violation of the ESA for concluding that the Project was not likely to adversely affect the grizzly bear population, (2) that the Forest Service complied with NFMA and the relevant standards in the Forest Plan, and (3) that the Forest Service’s cumulative effects analysis was adequate under NEPA. The Circuit Court was split on the issue of jurisdiction over Plaintiff’s ESA claim. The majority assumed the Circuit Court did have jurisdiction and resolved the issue in the Forest Service’s favor on the merits; however, Judge Bea, in a concurring opinion, opined that the Circuit Court lacked jurisdiction over the issue because Plaintiff, Alliance for the Wild Rockies, had dismissed its appeal from a 2010 District Court judgment. (13-35768, 9th Cir.)

Docs attached here.20150223OrderFriendsOfTheWildSwan_v_Christiansen_SoldierAddition

20150223OrderFriendsOfTheWildSwan_v_Weber_SpottedBear

20150226CircuitOrderAllianceForTheWildRockies_v_Bradford_GrizzlyProject

Dry Sierra Winter

by

I recently drove over California’s Carson Pass and spent a day in the Lake Tahoe Basin. The weather was good, so I decided to save some money and camp out (!) for two nights (and spending $42 for a night in Reno).

My day at Tahoe began encased in ice, as moist and cold air flowed down the canyon I was camping in. I quickly gathered my frozen gear and stuffed it into the car, making my way to Truckee, and precious morning coffee. From there, I drove down Highway 89, which was very familiar to me, as I used to bicycle, hitch hike and drive it, many times a week, when I lived there, in the 80’s. I continued along the west shore of Lake Tahoe, to reach my first planned stop at Eagle Rock. I had last climbed it in the mid 80’s, and I didn’t know there were now two trails to the top. It was still a bit icy on top but the amazing views sure hadn’t changed. Eagle Rock is a post-glacial volcanic plug, where Blackwood Canyon meets Lake Tahoe.

It appears that the bark beetles haven’t yet arrived in Tahoe yet but, they sure are knocking on the door. I did see bug patches in the southern part of the Eldorado. I heard about one landowner who had 42 bug trees on their property.

P9123021-web

I later visited the famous Emerald Bay, and you will see pictures of that in another post.

Along Highway 88, on the Eldorado National Forest, they have this interesting project being worked on, during the winter. I’m guessing that units have to find other ways to spend their timber bucks since litigation has returned diameter limits to the old unreasonable sizes imposed in 2000. It looks like this project is a highway strip, intended to be a quasi-fuelbreak. It does appear that some trees up to 9″ dbh were taken out, for spacing. There are going to be a ton of tiny piles to burn, and the California Air Resources Board has not been kind to the Forest Service in granting waivers on No-Burn days. And, yes, the piles are covered with burnable material that will keep the pile dry, so ignition will be easy.

P9102965-web

Can we start calling these things “Big Thin Lies”? It is what people see, and they think all forests look like these cleanly thinned and piled forests.

Forest Service Litigation Weekly 2/17/15

by

Thanks again to FS employees who send this to me..would prefer the FS would would post it on a website, but hey ;)!

NOI ǀ Bull Trout
NOI Filed Alleging ESA Violations for Failure to Re-initiate Consultation on Bull Trout. On
January 27, 2015, Cottonwood Environmental Law Center, on behalf of Western Watersheds Project,
Native Ecosystems Council, WildEarth Guardians, and Cascadia Wildlands, filed an NOI alleging that
the Forest Service is in violation of Section 7 of the ESA for failure to re-initiate consultation on the
INFISH and PACFISH management strategies, the amendments that adopted the strategies into Forest
Plans, and every Forest plan that adopted PACFISH and INFISH. The NOI also gave notice of
Cottonwood’s intent to challenge four site-specific projects that relied on either INFISH or PACFISH
to come to a no-adverse modification determination. Cottonwood claims that re-initiation of
consultation is necessary because new critical habitat for bull trout was designated in 2010.

Here’s something interesting…
Region 5..

NOI Filed Alleging ESA Violations Regarding Northern Spotted Owl and Grey Wolf. On February 3, 2015, an NOI was filed on behalf of Conservation Congress alleging that the Forest Service’s approval of the Harris Vegetation Management Project on the Shasta-Trinity National Forest
violates the ESA for failure to conduct adequate surveys to determine whether grey wolves may be present in the Project area, failure to analyze potential adverse effects of the project on the gray wolf, failure to provide for monitoring to determine the presence of and/or effects on the grey wolf during the project, and failure to utilize the best available scientific and commercial data in its analyses.

I didn’t know wolves were in California so looked around and found this..

He has now found a mate and it has been confirmed that he has at least 3 pups on the ground. OR7 and his pack are currently denning in the Rogue River-Siskiyou National Forest in southern OR, in a stretch of habitat shared with California. Experts are now saying that California will be the next state to which wolves naturally disperse and repopulate.

here.

Anyone know a good source for current information?

Anyway, here is a link to the pdf version of the Weekly plus a couple of related court documents.

2015_02_17 NFS Litigation Weekly

20150120DistrictOrderInjPendAppealAWR_v_Ashe_YoungDodge

20150205CircuitOrderWildernessWatch_v_King_HelicopterFlightFredBurrDam

Classic “sue and settle”

by

“Conservationists settle lawsuit after the government agrees to conduct a comprehensive environmental analysis of the drilling project. Following the conservation groups’ opening brief in the case, the Forest Service agreed to withdraw approval of the project.” 

So what’s wrong with this?  Better to gamble taxpayer dollars on a losing hand?