Litigation

New Congress New Ideas… Example AWR and the East Reservoir Project

by

It would be interesting if courts required documentation of mediation efforts prior to this kind of litigation…like I have said before, it would be interesting to know in advance, in public, transparently, what changes in design would be asked for by the plaintiffs. That would be one way of trying to get more justice in the resolution of these disputes. IMHO. Wonder if Congress could require that? I wonder if there are similar approaches in other legal worlds (besides divorce, and the BLM IBLA we have discussed previously here).

New Congress, new ideas.. we could take this project and ask the question, how could we do better with justice for all and still follow the existing laws? Ideas? When I retired, the solution to this was “collaboration”- folks have been doing this, and spending a great deal of time and energy… but the same result seems to be occurring (in some cases). It is certainly not the solution that some believed.

Here is an op-ed from the Missoulian..

Loggers, conservationists stand by Kootenai timber sale
Print Email
January 13, 2015 6:15 am • ROBYN KING, PAUL MCKENZIE, TIM DOUGHERTY, ED LEVERT and AMY ROBINSON

America is a nation of laws. But that does not mean the courtroom is necessarily the best place to resolve problems.

Sometimes, the best place to settle differences is out in the fresh air, in the scent of pines and the sound of the breeze overhead.

The people of northwestern Montana are no strangers to legal battles, especially over our national forests. But as conservationists, loggers, mill workers, community members and sportsmen, we’re proud of the work we’ve done to resolve differences and move the Kootenai National Forest ahead.

That is why we are so disappointed that the Alliance for the Wild Rockies has formally threatened to sue over a substantial, but carefully crafted logging and forest-restoration project near Lake Koocanusa.

As neighbors, we’ve put four years of hard work into helping plan the project. It’s hard to imagine a better result coming from the delays, frustrations and expense that go hand-in-hand with litigation.

Last Thanksgiving, the Kootenai National Forest approved a large project on the east side of Lake Koocanusa. The East Reservoir project involves logging about 39 million board feet of timber. While that is modest compared to the logging heyday of the 1980s, it is substantial by today’s standards.

This forest management project covers an area of nearly 90,000 acres, with only 8,800 of those acres actually receiving a timber harvest treatment. The project will be spread out over five or six individual contracts, each of a three- to five-year term. Of the 39 million board feet to be harvested, roughly 24 million will be sawlog volume and the balance non-sawlog to support local small log markets.

But what really is remarkable is the breadth of people who support the project. In fact, it earned the endorsement of the Kootenai Forest Stakeholders Coalition.

Our coalition includes not only timber and economic development groups, but also a slate of local and regional conservation groups. Together, we’ve identified opportunities for timber harvest, identified prime habitats that are better off left alone and seized opportunities to repair old scars on the land to improve water quality.

We are confident that the effort will withstand legal challenge. After all, the Kootenai National Forest currently has more than 150 million board feet of timber under contract with sawmills. Those sales are in the clear and ready to go, largely because the Forest Service, conservationists and timber interests have been willing to sit down together, walk the woods, and come up with reasonable and legal forest management projects.

For those of us who live here, and for the land itself, it’s a far cry better than the old timber wars.

There is a quiet success story going on in western Montana national forests. Collaborative efforts to help the Forest Service be more successful are working. They are providing real results on the ground, both in terms of timber harvested and in terms of improving habitats and streams.

On the Kootenai National Forest alone, the Kootenai Forest Stakeholders Coalition has helped bring about more than 10 forest management projects that include both logging and conservation goals. These average about 6 million board feet of timber apiece. More of these projects are taking place in the Lolo National Forest, because of similar collaborative processes.

This success story often occurs below public radar because the news media are naturally more interested in a conflict than collaboration. The media, by and large, has moved on to other “hot button” issues. That means it’s up to us to make sure people know these success stories are happening.

We have invited the staff at Alliance for the Wild Rockies to visit the slopes above Lake Koocanusa and talk over their concerns about the project. So far, their leader has declined those invitations, but the invitation still stands.

Lincoln County is rugged and remote, but even in northwestern Montana, times change. It’s up to all of us to accept those changes and work together to keep our national forests healthy and productive.

The tired old tactics and the obsolete battle lines of the past simply no longer make sense. Our national forests belong to all of us and the best way to ensure their future is to work together.

This opinion from the Kootenai Forest Stakeholders Coalition board of directors is signed by executive board members Robyn King, executive director of the Yaak Valley Forest Council; Paul McKenzie of Stolze Land and Lumber; Tim Dougherty of the Idaho Forest Group; Ed Levert, a Lincoln County forester; and Amy Robinson of the Montana Wilderness Association.

AWR Plans to File Lawsuit over Montana Timber Sale

by

From the Western News here:

A potential legal challenge could result in the delay or termination of timber sales in the Kootenai National Forest that were scheduled to begin this winter as part of the East Reservoir Project.

Attorney Timothy Bechtold, representing the Alliance for The Wild Rockies, sent a notice of intent to file suit on Dec. 2, 2014, to the U.S. Forest Service, U.S. Fish and Wildlife and their parent agencies. The notice alleges the record of decision signed on Oct. 27, 2014 fails to adequately address the protection of bull trout, white sturgeon, Canada lynx and grizzly bear species native to the impacted area.

The East Reservoir Project, approximately 15 miles east of Libby, will contribute approximately 39 million board feet of timber products to the economy, according to the final record of decision issued by the Forest Service. Of that amount, Forest Supervisor Chris Savage said about 6.5 million board feet would be available in sale packages as early as this winter.

Lincoln County Commissioner Greg Larson was dismayed by the news of a possible delay in the timber sale.

“We need a sustainable and predictable source of timber in Lincoln County,” Larson said. “The lack of a predictable timber supply prevents companies from wanting to invest the millions of dollars needed to build a mill here.”

Larson said the county commissioners have been working hard to improve timber management in the area, the work that has been done in cooperation with the Forest Service and other stakeholders to ensure proper management of forest resources from both an environmental and economic standpoint. Suits such as this, Larson said, “are detrimental to those efforts.”

More Colt Summit Legal Fun

by

Just when you thought there was no more fun to be had with Colt Summit, our colleague Eric Anderson has written a law review article that will be published this spring in the “Crit” — an alternative law review at the U of Idaho. Basically, it’s an in depth overview of the 9th circuit’s position on cumulative effects of past actions under NEPA — and why Malloy got it wrong in the Colt Summit decision. I think it shows how obscure some of this is to others outside the NEPA courtroom, and how difficult it can be to do a legally sufficient analysis.

Here it is.

Oh, in case you’re curious about Eric Anderson, here’s a bio of sorts..

Bio: I’m a native of Tropical Montana — 16 miles west of Lolo for those old enough to remember the bumper sticker— who currently resides in Bonners Ferry ID. I am in my final semester as a concurrent JD/MS candidate at the University of Idaho. I will graduate with a certificate in Natural Resource & Environmental Law; and my M.S. is in Bioregional Planning & Community Design. Over the last 8-9 summers I’ve worked as a crew boss for a U.S. Forest Service Trail Crew. I’m a bit of NEPA nerd and when I don’t have my nose in a book or typing away on my Mac, I can usually be found playing on the side of a mountain or in a river somewhere with my beautiful wife.

Forest road pollution back in court

by

Sometimes winning a lawsuit doesn’t get you anywhere.

“EPA has concluded that forest roads are a “major source of erosion from forested lands, contributing up to 90 percent of the total sediment production from forestry operations.

“In 2003, the 9th Circuit Court of Appeals ordered EPA to strengthen and correct rules for urban runoff that flows through small municipal storm sewer systems, and examine the evidence on forest road runoff to determine whether it is necessary to regulate that water pollution source.

“More than a decade later, EPA has failed to comply with the Court’s order on both issues. NRDC and EDC have filed a petition in the same Court that issued this order to enforce the duties it imposed on EPA.”

Aside from showing the difficulty of making the government so something, there are some forest planning implications.  EPA will comment on forest plans, and the Forest Service should be paying attention to what EPA thinks is needed in the plans to mesh with their non-point source pollution permitting process (current or as influenced by this litigation).

Suing the federal government over sage grouse: Denver Post Editorial Board

by

Here’s a link.

Editorials
Suing the federal government over sage grouse
By The Denver Post Editorial Board

When U.S. Fish & Wildlife director Daniel Ashe was in The Denver Post’s offices in November, he was exceedingly confident about his agency’s chances of prevailing if the state sued over its decision to list the Gunnison sage grouse as threatened.

And perhaps his confidence is well-placed. The federal government is sued all the time over wildlife decisions by every variety of interest group, and usually wins.

But not always — which is why it was good to see Colorado and Gunnison County each file a notice of intent to sue Fish & Wildlife in recent weeks over its unnecessary move to list the sage grouse.

The notices must be accompanied by explanations of the grounds for the pending lawsuits, and these too were encouraging. The state and county are not just quibbling over the odd procedural misstep by the federal government. They’re disputing the scientific judgments the agency used as the foundation for its decision.

“In making the listing decision, FWS improperly analyzed the required factors to make its determination that the Gunnison sage-grouse is threatened; failed to rely on the best available science; and failed to give adequate weight to the extensive conservation efforts undertaken by state and local governments and private landowners,” the state’s notice said.

Gunnison County similarly declared that Fish & Wildlife is flatly wrong about the sage grouse being threatened. The population of the Gunnison Basin, where 86 percent of the species live, is growing, the county points out, and the Rangeland Conservation Plan “estimates that the likelihood of the species becoming extinct in the next 50 years is less than 0.5 percent.”

The most interesting parts of the county’s brief, however, have to do with the extensive measures officials have taken over the years to protect the species, not only in the main basin but increasingly in the counties that have “satellite” populations of the bird, too.

The county maintains that a federal representative attended 69 meetings of the Gunnison Basin Sage-grouse Strategic Committee from September 2006 through December 2012 and yet never indicated those efforts “were inappropriate, insufficient or otherwise unacceptable.”

To the contrary, “Director Ashe commented at a public meeting at Western State Colorado University that the conservation efforts are ‘inspirational.’ ”

Inspirational, huh?

It will be interesting to see what a federal judge makes of all this.

FS Wins on Little Slate Project

by

I couldn’t find a photo of the project.. so Nez Perce folks are encouraged to send one. Thanks!

For those of you who want to watch our government in action, I was sent this fascinating video of a court proceedings (Appeal?) on the Little Slate project. I couldn’t stomach much more than about 30 seconds (thank Gaia I am retired!) but I have been told by those who know that the whole thing is interesting, and that this blog’s own Guy Knudsen appears in the flesh at about 16:00.

According to one official:

The Court affirmed the district court in an unpublished memorandum decision (attached). The Court agreed with our positions that: the Forest Plan did not require MIS monitoring at the site-specific level, the EIS took a hard look at impacts on all species, and the BiOp was based on the best available data.

The FS received an NOI, won in District Court, were appealed and then they were denied a PI, then the 9th upheld the FS decision. Apparently it took a mere 2 1/2 years. Since we have people on both sides who contribute to this blog, we may be able to have an interesting discussion. I’d just like to know how much it cost the FS, OGC and DOj to win this case.. how much it cost the plaintiffs and where the money came from to litigate. I also wonder why this project was picked for attention, perhaps Guy can tell us what decision criteria were used.

Here are a few more documents of interest..2013_11_27_Decision_Order

20140725_Order_Deny_PI_during_Appeal_Dist

APPELLATE-#324388-v1-slate_-_Memorandum_opinion

Some info on the project: here’s the link.

Alternative B2 will: Conduct timber harvest and fuel reduction on 2,598 acres and construct 12 miles of temporary roads and decommission them after use. Decommission 49 miles, reconstruct 15 miles, and improve 63 miles of existing roads. Complete restoration of: soils (100-150 acres), riparian areas (0.75 miles), gullies (75 acres) and instream (13 sites). Treat 59 road and 73 trail stream crossings. Expand a rock quarry by 2 acres. Reduced yearlong motorized access on system roads & trails.

here is why folks opposed it.. they felt it would hurt lynx and bull trout. Note how the caption to the video says that “the logging would harm” not “FOC claims that logging would harm.”

FOIA Improvement Act – coming next year

by

I saw FOIA from the government side when I was a regional FOIA coordinator as an unfunded mandate that made agency staff drop their priority work, but then sometimes get bogged down in attempts to deny requests under changing administration policies regarding the “presumption of openness.”  But when I hosted a FOIA conference, I invited a newspaper reporter as a guest speaker to offer the rest of the world’s perspective.  Which is a lot like the one in this editorial.

Rim Fire Update

by

Apparently, enough of the hazard trees within the Rim Fire on the Stanislaus NF have been cut so that the travel ban has finally been lifted, after more than a year. I heard one report that says that the litigation has failed at the District Court level, losing their pleas to stop the logging three times. The article below includes the Appeals Court but, I doubt that an appeal has been seen in court yet. It seems too soon after the District Court decision for the appeal to be decided.

http://www.calforests.org/rim-fire-update-final-motion-halt-restoration-forestry-rim-fire-denied/

P9232907-web

 

Since the Rim Fire tore through the area and devoured over 250, 000 square miles of National, State and private forested land, the community has come together to put together a solution with positive environmental, economical and social sense. The whole effort to restore forests has been very successful due to cooperation of a diverse group of individuals, organizations and government agencies.

(Edit: Thanks to Matt for pointing out the acres/square miles error. That should be 250,000 acres.)

With a monster storm approaching California, we should be seeing some catastrophic erosion coming from the Rim and King Fire areas. Of course, very little can be done to prevent erosion on the steep slopes of the canyons with high burn intensity. Standing snags tend to channel water, while branches and twigs on the ground can hold back a surprising amount of soil. This flood event would have been great to document through repeat photography but, it appears that opportunity will be lost, too.

Bark beetle activity has also spiked where I live, northwest of the Rim Fire.

Litigation Weekly Nov. 10-17

by

Here are a couple of cases:

1. Wild and Scenic Rivers ǀ Region 8.

Circuit Court Upholds District Court Decision in American Whitewater v. Tidwell. On November 4, 2014, the United States Court of Appeals for the Fourth Circuit upheld the United States District Court for the District of South Carolina’s ruling that the Forest Service’s decision to allow limited floating activities on the headwaters of the Chattooga River was not arbitrary and capricious in violation of the APA and was not in violation of the Wild and Scenic Rivers Act. The Court concluded that the Forest Service made a reasoned decision in limiting headwaters floating opportunities to specific portions of the river during the months of December to April and, accordingly, deferred to the Agency’s expertise. On American Whitewater’s Wild and Scenic Rivers Act claims, the Court found (1) that the Forest Service was not required by the Wild and Scenic Rivers Act to manage the river with “floating” as an ORV and (2) that the Forest Service correctly determined that floating could interfere with other recreational uses and therefore, restrictions on headwaters floating are consistent with the Act. The Court also upheld the District Court’s rulings on intervenors, the Rust Family and Georgia ForestWatch’s claims. (13-1960, 4th Cir.)

1. Herbicide Application ǀ Wildlife ǀ Region 6.

Circuit Court Affirms in Part, Reverses in Part, and Remands in Challenge to the Forest Service’s Approval of Herbicide Application on the Wallowa-Whitman National Forest in LOWD v. USFS. On October 30, 2014, the United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded the District Court’s ruling in Plaintiff, League of Wilderness Defenders/Blue Mountains Biodiversity Project’s challenge to a Project to apply herbicides in the Wallowa-Whitman National Forest. The Circuit affirmed the District Court’s ruling on Plaintiff’s NFMA claim finding that the Forest Service did not violate NFMA by failing to discuss in the EIS that the Project would be consistent with INFISH and PACFISH. However, the Circuit reversed the District Court’s ruling on Plaintiff’s NEPA claim finding that the Forest Service was required by NEPA to include an explicit INFISH/PACFISH consistency analysis in the EIS. (13-35054, 9th Cir.)

Judge rules Ninemile logging, burning may go forward: from Missoulian

by

Here’s a link to the Missoulian story, which has a very nice map, as well as the court decision.

Below is an excerpt:

“We had to defend this project in court and that required a significant amount of time and money,” Ninemile District Ranger Chad Benson said in an email Thursday. “I was disappointed in having to commit these additional expenditures, because from the start this was a collaborative project that had good public support and was designed with a lot of care, analysis and deliberation. To prevail in this lawsuit on all claims just affirmed that.”

The Rennic-Stark project got only four public comments before it was finalized in 2013. But the Alliance for the Wild Rockies appealed the decision, and then sued the Forest Service in August 2013 when its appeal was denied.

U.S. District Judge Dana Christensen ruled against the environmental group on Oct. 28, noting the plaintiffs had not proved any of their claims.

The alliance raised issues about the Forest Service’s lack of consideration of climate change and how the project might affect sensitive or threatened species like Canada lynx, wolverine, bull trout, fisher and goshawk.

“On the contrary, the Forest Service’s actions regarding the project appear thoughtful, informed and undertaken in the best interests of this portion of the Lolo National Forest,” Christensen wrote.