Litigation

I am willing to upload the court documents cited here if someone wants them.. I would be willing to upload them all anyway, if someone would help me work through my issues with Google docs. Better yet, if the FS would just post them themselves :)…Maybe a reader with a good relationship with their Congressional office could dash off a letter?

1. Wildlife ǀ Region 4
Court Dismisses Challenge to the Idaho Department of Fish and Game’s Wolf Control Activities in the Frank Church River of No Return Wilderness on the Payette National Forest in Maughan v. Vilsack. On August 27, 2014, the United States District Court for the District of Idaho dismissed the case without prejudice upon reviewing the parties’ Stipulation of Voluntary Dismissal. The case arose from Plaintiffs, Ralph Maughan (private citizen), Defenders of Wildlife, Wilderness Watch, and Center for Biological Diversity’s challenge of the Idaho Department of Fish and Game’s wolf control activities carried out during the winter of 2013 in the Frank Church River of No Return Wilderness on the Payette National Forest. (14-00007, D. Idaho)
2. Forest Management ǀ Region 1
Court Lifts Injunction of the Pilgrim Creek Timber Sale on the Kootenai National Forest in Alliance for the Wild Rockies v. Bradford. On August 28, 2014, the United States District Court for the District of Montana, finding that the Forest Service had addressed violations identified in its June 30, 2014 order through a Clarification/Amendment of the Record of Decision (stating that all new permanent roads constructed for the project will be closed with a permanent closure device consistent with the Grizzly Bear Access Amendment and Kootenai Forest Plan), lifted its injunction against the Pilgrim Creek Timber Sale on the Kootenai National Forest. (13-00199, D. Mont.)

Litigation Update
1. Travel Management ǀ Rehearing En Banc ǀ Region 10
Ninth Circuit Grants Appellant’s Petition for Rehearing En Banc in Organized Village of Kake v. USDA. On August 29, 2014 the United States Court of Appeals for the Ninth Circuit voted to rehear the case en banc. On March 26, 2014, the Court had ruled favorably for the Forest Service in the case which challenged the Tongass Exemption to the 2001 Roadless Rule. In the March ruling the Court stated, “The panel reversed the district court’s order, which invalidated a 2003 United States Department of Agriculture regulation temporarily exempting the Tongass National Forest in Alaska from application of the 2001 Roadless Area Conservation Rule. The panel held that in its 2003 Record of Decision, the Department of Agriculture articulated a number of legitimate grounds for temporarily exempting the Tongass Forest from the 2001 Roadless Rule. The panel concluded that these grounds and the Department of Agriculture’s reasoning in reaching its decision were neither arbitrary nor capricious. The panel remanded to the district court to decide whether a Supplemental Environmental Impact Statement is required in the first instance.” (11-35517, 9th Cir.)

New Cases
1. Tongass Plan Amendment ǀ Wildlife ǀ Region 10
Plaintiffs Challenge the 2008 Amendment to the Tongass National Forest Plan in Southeast Alaska Conservation Council v. United States Forest Service. On August 22, 2014, Plaintiffs, Southeast Alaska Conservation Council, Sierra Club, Natural Resources Defense Council, and Alaska Wilderness League, filed suit in the United States District Court for the District of Alaska alleging that the 2008 Amendment to the Tongass National Forest Land and Management Plan is in violation of NFMA, NEPA, and the APA. On NFMA, Plaintiffs claim that in applying the deer habitat capability provision as a guideline rather than a standard, there is no support in the record for the Forest Service’s conclusion that the 2008 Plan Amendment will have a high likelihood of maintaining viable wolf populations. On NEPA, Plaintiffs claim that the 2008 Plan Amendment FEIS contains misleading information and fails to adequately disclose the impacts of the amendment. (14-14, D. Alaska)
2. Forest Management ǀ Region 10
Plaintiffs Challenge the Big Thorne Timber Sale on the Tongass National Forest in Southeast Alaska Conservation Council v. United States Forest Service. On August 22, 2014, Plaintiffs, Southeast Alaska Conservation Council, Alaska Wilderness League, and Sierra Club filed suit in the United States District Court for the District of Alaska challenging the Big Thorn Timber Sale on the Tongass National Forest. Plaintiffs allege: (1) that the Forest Service approved an unnecessarily large timber sale based on erroneous projections of market demand in violation of NFMA, MUSYA, and the Tongass Timber Reform Act; (2) the Project’s EIS contains misleading information regarding the market demand for timber and that the Forest Service’s erroneous market demand projections caused the Agency to neglect smaller volume alternatives in violation of NEPA; (3) the Forest Service’s approval of the Project based on significant errors in projecting market demand will cause unnecessary harm to subsistence users in violation of ANILCA; (4) that the Forest Service failed include updated wolf population information in the EIS in violation of NEPA; (5) that the Forest Service failed to explain why isolated areas outside of the Project area will meet the Tongass Forest Plan’s standard and guideline to provide for sustainable wolf populations in violation of NFMA. (14-13, D. Alaska)
3. Forest Management ǀ Region 10
Plaintiffs Challenge the Big Thorne Timber Sale on the Tongass National Forest in Cascadia Wildlands v. Cole. On August 26, 2014, Plaintiffs, Cascadia Wildlands, Greater Alaska Conservation Community, Greenpeace, Center for Biological Diversity, and The Boat Company filed suit in the United States Court for the District of Alaska challenging the Big Thorne Timber Sale on the Tongass National Forest. Plaintiffs allege: (1) that the Project fails to comply with the wildlife viability requirements of the 2008 Tongass Forest Plan Amendment in violation of NFMA; (2) that the Project EIS failed to disclose information on the direct, indirect, and cumulative effects on the viability of Alexander Archipelago wolves in violation of NEPA; (3) that the Forest Service failed to prepare a supplemental EIS to address highly uncertain and controversial findings regarding the Project’s potential impacts on wolves; (4) the Standards and Guidelines of the 2008 Tongass Forest Plan Amendment fail to ensure viable populations of the Alexander Archipelago wolf in violation of NFMA. (14-15 D. Alaska)

Court Decisions

1. Phase II Amendment ǀ Region 2
Circuit Court Finds in Favor of Forest Service on All Claims in Challenge of the Phase II Amendment and Related Projects on the Black Hills National Forest in Biodiversity Conservation Alliance v. Jiron. On August 5, 2014, the United States Court of Appeals for the Tenth Circuit ruled in favor for the Forest Service on all claims raised by Appellants, Biodiversity Conservation Alliance and Brian Brademeyer, in their consolidated appeal of unfavorable decisions from the United States District Courts for the Districts of Wyoming and Colorado regarding challenges of the Phase II Amendment and nine specific projects on the Black Hills National Forest. In its 103-page opinion, the Tenth Circuit repeatedly deferred to Forest Service interpretation of rules/regulations (namely the viability mandate of the 1982 Planning Rule and modifications to the 1982 Rule by the 2005 Planning Rule) and to the Agency’s technical and scientific expertise. On Appellant’s NFMA claims (stemming from the District of Wyoming case) the Court found that the Forest Service’s interpretation of the species viability mandate in §219.19 of the 1982 Rule and §219.14(f) of the 2005 Rule was entitled to deference and that the Forest Service complied with its interpretation of the viability mandate in regards to specific claims made by Plaintiffs regarding northern goshawk, snag-dependent species, and sensitive plants. On NEPA claims (stemming from the District of Wyoming Case) the Court found that the Forest Service had considered a reasonable range of alternatives (i.e. that consideration of a no-grazing alternative was not required as it would not meet the purpose and need for the Phase II Amendment) and that the Forest Service took the requisite hard look at both sedimentation in waterways’ effects on sensitive plants/aquatic fauna and at historical grazing practices before re-authorizing use on four specific projects (further, the Court found that even though the record indicates that the Forest Service did consider historical grazing practices, it was not required to do so under NEPA’s hard look requirement). Finally, the Court found that the District of Colorado did not abuse its discretion in denying Appellant’s motion claiming a breach of the 2000 settlement agreement (requiring the Forest Service to remedy deficiencies in the 1997 Black Hills Forest Plan) based on laches. (13-1352, 10th Cir.)

2. Wildlife ǀ Region 1
District Court Denies Plaintiffs’ Motion for Preliminary Injunction Pending Appeal of the Cabin Gulch Project on the Helena National Forest in Alliance for the Wild Rockies v. Kruger. On August 6, 2014, the United States District Court for the District of Montana denied Plaintiffs, Alliance for the Wild Rockies and Native Ecosystems Council’s motion for a Preliminary Injunction Pending Appeal of the Cabin Gulch Project on the Helena National Forest. Plaintiffs’ motion focused on their ESA claims regarding elk and grizzly bear while making no mention of NEPA or NFMA claims initially raised in the case. The Court, in denying Plaintiffs’ motion, expounded on the standard of review for injunctions based on ESA claims and determined that, under this standard: (1) Plaintiffs fail to demonstrate likelihood of irreparable harm to grizzly bears by failing to contend that the Project will irreparably harm any endangered or threatened species (only that their own interests in observing grizzly bears will be harmed); (2) Plaintiffs argument that they have presented a serious question as to whether grizzly bears may be resent in the project area fails to articulate serious questions on the merits; and (3)Plaintiffs conflate their interests with that of the species (i.e. that an injunction is not in grizzly bears’, and therefore the public’s, best interest because an injunction would delay various Project components designed to enhance the environment for grizzly bears). Additionally, the Court found that all Plaintiffs’ claims related to elk fail. (12-00150, D. Mont.)

Litigation Update

1. Recreation ǀ Notice of Appeal ǀ Region 5
Plaintiffs Appeal District Court Decision in Wiechers v. Moore. On August 1, 2014, Plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the Ninth Circuit concerning an Eastern District of California decision that the Forest Service is not required under the Recreation Enhancement Act to provide free parking for visitors who do not intend to use recreation site amenities. (13-223, E.D. Cal.)

Sharon’s note: Before I retired, I was involved with early phases of the Black Hills litigation. Notice that the plaintiffs are still dealing with the 1997 plan..17 glorious years of litigation, on what was supposed to be a 20 year plan. It seems to me that the original plan got caught up in political issues. And I personally don’t see that converting political issues to “legal issues” is very helpful to anyone. I guess this is evidence that the FS can spend a lot of time dealing with this even when they are “following the law” ;). And I am hopeful that with the new planning rule this (17 years of litigation on a 20 year plan won’t happen 🙂

20140805CircuitOrderBiodiversityConservationAlliance_v_Jiron_BlackHillsPhaseIIPlanAmendment

20140806OrderPI_AllianceForTheWildRockies_v_Krueger_CabinGulch

First, a couple of caveats. I am not picking on Guy here.. he deserves a lot of credit for putting up with us on this blog (!!!). Second, this idea is not original to me, as I have heard it from many folks about many different projects

The simple question was “if one of the points of the complaint was that the “public was excluded” from decision making, then why is it OK for the same group who makes the complaint to participate in closed-door settlement discussions? Does some combo of DOJ lawyers and NGO lawyers somehow de facto represent the public? But how could that be since the people who actually read the “real” public comments are not in the room? Yes, everyone knows that is how the “system works.”

Anyway, again, not to pick on Guy, this last couple of days just illustrates my point.

Guy said “I don’t think it is either hype or hyperbole to say that it has been exempted from public analysis and environmental review (realizing that full and adequate “environmental review” includes public disclosure, oversight, commentary, and interaction)” here.

I ask about his views on amicus brief.
He can’t talk to us (the public?) about these issues.

The idea is that 1) it’s really really important to have public dialogue and interaction (which I agree with, and apparently the people on the two salvage projects did too)
But 2) if it’s so important why is it that the people who actually read the public comments are often (or always) left out of the room when the settlement is reached (the decision is actually being made?)

Maybe I’m too simple of a person, but the idea of public involvement, and how it ends up being implemented, seem to be in conflict to me. And to some others working on the FS side, as well as people working with the FS (cooperators or collaborators), with whom I have spoken. Now I know that people will never agree at the end of the day, but it seems to me, that there is something valuable about a person who has been at the public meetings and read the comments(or has read the summaries of staff) and who writes a ROD with a rationale, seems like it’s easier for the public to understand than folks in a closed room settling and writing up terms.

In 2011, if you were on this blog then, you may recall a similar dialogue I posted with Mr. Garrity. Here’s the link.