Litigation

FS Litigation Weekly August 4 2014

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Court Decisions

1. Travel Management ǀ Region 3

District Court Finds Forest Service Did Not Violate NEPA in Approving the Santa Fe National Forest Travel Management Plan in New Mexico Off-Highway Alliance v. United States Forest Service. On July 25, 2014, the United States Court for the District of New Mexico found that, contrary to Plaintiff, New Mexico Off-Highway Alliance’s claims, the Forest Service was not in violation of NEPA for approving the Santa Fe National Forest Travel Management Plan. Specifically, the Court found that the Forest Service: (1) reasonably used the estimated amount of trails actually being utilized by the public as the baseline for the no-action alternative, (2) sufficiently analyzed a reasonable range of alternatives, and (3) provided scientifically-sound reasoning for the decision. On Plaintiff’s claim related to the no-action alternative the Court expressed some concern finding that the correct measure of a no-action alternative would have been to consider the effect of leaving all the routes that were currently open under the Santa Fe plan as opposed to the Agency’s estimated use definition of the no-action alternative. However, the Court determined that the estimated use definition of the no-action alternative was not arbitrary and capricious because it was based on a thorough examination of which roads were currently being used, supported by CEQ guidance, and that the Forest Service actually analyzed the status quo (reasoning that unused roads would not have a significant impact on the environment and thus, would not have been part of the impact of the status quo). On this claim, the Court concluded Plaintiff’s argument was one of semantics which did not warrant reversal. (12-01272, D. N.M.)

Litigation Update

1. Salvage ǀ Forest Management ǀ Region 5

Plaintiffs File Amended Complaint and Motion for a Temporary Restraining Order of the Aspen Project on the Sierra National Forest in Earth Island Institute v. Gould. On July 29, 2014, Plaintiffs, Earth Island Institute and Center for Biological Diversity, filed an amended complaint and motion for a Temporary Restraining Order of the Aspen Project on the Sierra National Forest (work is scheduled to begin on August 1, 2014). (14-1140, E.D. Cal.)

2. Salvage ǀ Forest Management ǀ Region 5

District Court Denies Plaintiffs’ Motion for Preliminary Injunction of the Big Hope Project on the Tahoe National Forest in Earth Island Institute v. Quinn. On July 31, 2014, the United States District Court for the Eastern District of California denied Plaintiffs, Earth Island Institute and Center for Biological Diversity’s motion for a Preliminary Injunction of the Big Hope Project on the Tahoe National Forest finding that Plaintiffs failed to show that the balance of equities tips in their favor or that Preliminary Injunction of the Project is in the public interest. (14-1723, E.D. Cal.)

Note: Originally, Plaintiffs, Earth Island Institute and Center for Biological Diversity had challenged the Aspen and Big Hope Projects in a single complaint which was subsequently split into two separate cases.

New Cases

1. Range ǀ Region 4

Plaintiff Challenges Issuance of a Special Use Permit for Winter Elk Feeding Operations on the Bridger-Teton National Forest in Western Watersheds Project v. USFS. On July 14, 2014, Plaintiff, Western Watersheds Project, filed suit in the United States District Court for the District of Wyoming alleging that the Forest Service’s decision to grant a twenty-year Special Use Permit to the Wyoming Game and Fish Department to use National Forest System lands for winter elk feeding operations is in violation of the Wyoming Wilderness Act of 1984, NFMA, NEPA, and the APA. (14-00140, D. Wyo.)

Here is the 20140729AmendedComplaintEarthIslandInstitute_v_Gould_AspenSalvage

Here is 20140725OpinionNewMexicoOHVAlliance_v_USFS_SantaFeTrvlMgmt

Here is 20140714ComplaintWesternWatershedsProject_USFS_GrazingPermitElkFeeding

Here is 20140731OpinionPI_EarthIslandInstitute_v_Quinn_BigHopeSalvage

Note from Sharon: We’ve had discussions about the Center for Biological Diversity before but I had not heard much about Earth Island Institute. When I read their story about innovative work they had done on climate change, marine mammals, etc. here it seemed to me like a couple of Region 5 salvage sales are relatively small potatoes in terms of impact. I wonder what it is about these two salvage projects that drew their attention?

Bear-iered or Not?

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Pages from 2014_07_07 NFS Litigation Weekly

Here’s a copy of the judge’s order.

I understand how folks are supposed to raise issues during administrative appeals.. but I’m not clear on how the Gov could argue that the road is not covered if it’s barriered, unless it was intended to be barriered. Confusing. Could someone closer to the action shed some light on this?

Kudos on NFS Litigation Weekly: Why Not Post It For All?

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Pages from 2014_06_30 NFS Litigation Weekly

Andy inspired me to ask another “why not?” kind of public information question.

Generous souls within the Forest Service send me the ever-popular Litigation Weekly, which has paragraphs with links about lawsuits. It’s a great resource, IMHO and I think it’s one of the best pieces of information out there. So thank you, producers of it, if you are reading this (and past producers).

So here is my question… could someone tell me why this couldn’t be distributed publicly? I can’t access the links to the court case, of course, but if it is public information about our agencies shouldn’t they be available for free? I know people could be critiqued for what they write (the summary) but so what?

It seems to me like the plaintiffs have access to all kinds of media outlets to tell their side of the story. Would it be too much work to have it cleared? Or would it somehow give people on the other side an advantage?

Here’s my opinion FWIW: it would be a great service to have it publicly available, including links to the documents.

Anyway, for those of you who haven’t seen it, it’s posted above. Now I could post it every week, but that seems a bit silly. Or I could FOIA it and post it? Sillier. Ideas?

Gallatin Wins Hazard Tree Lawsuit

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big_hazard_tree_me-web

Here’s a report from the FS on the win:

District Court Upholds Millie Roadside Hazard Tree Removal Project on the Gallatin National Forest in Native Ecosystems Council v. Krueger. On June 4, 2014, the United States District Court for the District of Montana ruled in favor of the Forest Service in Plaintiffs, Native Ecosystems Council and Alliance for the Wild Rockies’, challenge to the Millie Roadside Hazard Tree Removal Project on the Gallatin National Forest. On Plaintiffs’ ESA claims related to grizzly bear, the Court found Plaintiffs failed to demonstrate (1) that the Project would result in an unauthorized take of grizzly bear in violation of ESA Section 9; (2) how the Forest Service would have reached a different decision had they utilized the most recent reports regarding secure habitat (Plaintiffs alleged that the Forest Service had failed to utilize Best Available Scientific Information); and (3) how the project will adversely affect the grizzly bear in violation of ESA Section 7. Plaintiffs also raised ESA claims related to lynx. On lynx, the Court found that its decision in Salix v. U.S. Forest Service did not require the Project to be enjoined because the determination that the Project would not adversely affect lynx or lynx critical habitat was not contingent upon the 2007 Northern Rockies Lynx Amendment. On Salix’s applicability the Court concluded, “…a project affecting lynx or lynx critical habitat may be appropriately and reasonably approved even if the agencies’ analysis mentions or relies in part on the Lynx Amendment, so long as the agencies’ analysis also contains a reasonable independent basis for its conclusions with respect to effects on lynx and lynx critical habitat.” (In Salix the Court determined that the designation of critical habitat triggers the need for reinitation of consultation and ordered the Forest Service to reinitiate consultation on the Lynx amendment.) Finally, the Court found that the Forest Service had reasonably concluded that the Project fell within the categorical exclusion for road maintenance, and had correctly concluded that the use of the categorical exclusion is appropriate because no extraordinary circumstances preclude it. (13-00167, D. Mont.)

Really… they were saying falling hazard trees would affect grizzlies and lynx? I guess it’s one thing to declaim it and and another thing to prove it in court.. but still it is hard to imagine it in Physical World. And I continue to wonder whether there might be more useful investments in promoting wildlife habitat or protecting the environment?

(Edit: Here is a picture of me, from the Eldorado NF’s Power Fire Salvage projects. The top 30 feet or more was also dead, and the picture was taken from the road. The logger ripped the butt log, in an attempt to get more scale. There were five 16’s and three 33’s to a broken top of 20″ diameter….. Larry H. )

Settlement agreements in litigation

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Here is a textbook example, from the Stanislaus National Forest travel planning process.

  1. The Forest Service makes a decision
  2. Plaintiffs sue
  3. Intervention granted to supporters of the decision
  4. Court finds Forest Service violated a procedural analysis requirement
  5. Plaintiffs, intervenors and Forest Service agree on an interim solution while the process is redone

It looks like win/win/win/win:

  • Plaintiffs: “Now we have 40 miles of the worst routes officially closed.”
  • Intervenors: “At the end of the day, we need to be partners in effective forward-looking management and allowing this agreement to be approved as opposed to tilting at windmills.”
  • Forest Service: “Diverse riding and driving opportunities for motorized recreation and dispersed camping still abound on the forest with over 230 miles of OHV trails available.”
  • General public:  Gets another chance to participate in the process

(Of course the goal in most litigation is to settle a case before a judge has to decide it.)

Whitebark Lawsuit Redux: Groups Appeal

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Whitebark pine cones are caged to protect them from Clark's nutcrackers. by USDA Forest Service
Whitebark pine cones are caged to protect them from Clark’s nutcrackers. by USDA Forest Service

Here’s a story from the Bozeman Chronicle and below is an excerpt.

In July 2011, the agency determined that whitebark pine forests have enough threats, such as climate change, to warrant listing.

However, the USFWS was not abusing its power or being arbitrary when it decided other species have a higher priority for listing, said U.S. District Judge Dana Christiansen of Missoula in his April 25 ruling.

The USFWS has identified more than 260 species that qualify for Endangered Species Act protections but are yet to be listed.

In their appeal filed Friday, the two groups asked the appeals court to declare the decision to delay listing as illegal and to order the agency to list the whitebark pine by a set date.

“The FWS has already found that whitebark pine trees are going extinct due to global warming,” said Mike Garrity, AWR executive director. “Whitebark pine seeds are an important food source for grizzly bears in the greater Yellowstone Ecosystem. We are going to keep fighting to keep whitebark pines from going extinct because Yellowstone grizzly bears are so dependent on them.“

The U.S. Forest Service estimated that climate change would result in the whitebark-pine population shrinking to less than 3 percent of its current range by the end of the century.

However, the Forest Service still has proposals to clearcut whitebark pine stands, Garrity said.

When whitebark pine trees were more numerous, grizzly bears’ diets could be as much as 75 percent pine nuts, said whitebark pine expert Jesse Logan.

But since 2005, pine beetles and white blister rust, a fungus, have been decimating whitebark pine forests in the greater Yellowstone area, especially at lower elevations.

2009, 95 percent of the stands had some infestation. As a result, stands in 18 of 22 mountain ranges in the greater Yellowstone area are nearly gone.

Some scientists say that grizzly bears have historically sought out high-fat whitebark-pine nuts as an autumn food source but are now adapting to use other foods as whitebark pine trees die out.

The difference between the legal aspects of ESA, what goes on that all can see in Physical World, and what people say in news stories (perhaps simplified?) can lead to a great deal of confusion in my mind, and this is an example.

For example, 1) did FWS really say whitebark pine would go extinct due to climate change? Is that the same data that the Forest Service said it would be 3% of its natural range? If whitebark’s original range is very broad, then 3% could be many acres. When is the criterion “going extinct” versus “populations are greatly reduced”? Who decides exactly what “greatly” is for these purposes?

2) That would be a projection based on many assumptions.. probably all of which are open to different points of view. We tree people know it’s not that easy to predict how trees will respond to unknown future events.

For example, how do they know it won’t adapt through time? Many folks have predicted that many species (including WWP) would be wiped out by diseases and natural selection seems to have worked pretty well. We know that these things are impossible to predict with any accuracy, so…. we need to rely on someone’s judgment on what the risk is and what could be done that would work. But is a lawsuit the best way to arrive at that? (I had personal experience with some scientists wanting to list sugar pine. The scientists are retired, but sugar pine is still doing fine.)

3) And if it’s really climate change and not BBs or blister rust, how on earth are any physical actions taken by FWS or the FS going to help? If we look at what Garrity appears to be asking for, it is for the FS to stop clearcutting WBP.

4) But I don’t know why the FS would clearcut WBP, certainly not for timber. Does anyone have links to any FS projects where this is proposed?

5) Finally, even if you grant all the above, which I don’t, many scientists think it’s too late to turn climate change around (if that’s the ultimate fix to the situation).. so.. are we spending money on the ESA equivalent of beating dead horses? And who but FWS should decide which dead horses to pick?

Perhaps readers know the answers to these questions.

While looking for a photo, I ran across this study which said that the whitebark was experiencing mortality in 1993 (20 years ago, now) due to BR and BBs and successional replacement, and more prescribed burning was/is(?) needed. Could a listing make the FS do more prescribed burning? But that’s already part of their restoration plan..

Abstract:
Whitebark pine (Pinus albicaulis), an important producer of food for wildlife, is decreasing in abundance in western Montana due to attacks by the white pine blister rust fungus (Cronartium ribicola), epidemics of mountain pine beetle (Dendroctonus ponderosae) and successional replacement mainly by subalpine fir (Abies lasiocarpa). Plots established in 1971 were remeasured in 1991 and 1992 to determine the rate and causes of whitebark pine mortality. Mortality rates averaged 42% over the last 20 yr. indicating a rapid decline in whitebark pine populations of western Montana. This decline is most pronounced in northwestern Montana with the southward extension of heaviest mortality centered along the continental divide and Bitterroot Mountain range. Management treatments such as prescribed fire can serve to maintain whitebark pine in the landscape. West. J. Appl. For. 8(2):44-47.

Judge Christensen on Whitebark Pine

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It’s interesting to me that there are species that have few members right now, and there are species that are likely to have few members in the future depending on people’s predictions/projections about what will happen in the future.

Given my experience with people’s projections about the future, I would tend to prioritize those species that are having problems now. I don’t know if that’s the way ESA works, though.

Anyway, this seems to be a discussion about funding, but it’s not clear what the funding would do other than to develop a plan. But I believe that there have been a couple of other plans or strategies developed. There is one for the Pacific Northwest (here) and one (range-wide) from the Rocky Mountain Station here. I know individuals who have spent many hours working on these efforts, so I am curious why

Christensen also agreed with FWS’ claim that developing multi-species protection plans (that might include whitebark pine with things facing similar threats or use similar areas) was a reasonable and logical effort.

What is missing from the other strategies, developed with much government time and money, that makes them insufficient?

Again, as in so many lawsuits, it’s difficult for me to figure out what is the desired endgame (in Physical World) following all the paperwork-jousting that will actually help the WB pine.

Here’s a link, and below is an excerpt from a Missoulian story. Thanks to an unnamed reader for this.

Whitebark pines grow on high-altitude mountain slopes and mature trees can produce big crops of protein-rich pine nuts. Grizzly bears and other animals count on the trees as a major food source. But decades of devastation by blister rust fungus and mountain pine beetle infestation have put it in danger of extinction. FWS research expects it to be gone from the landscape within two or three generations.

In July 2011, FWS decided whitebark pine was warranted but precluded from protection under the Endangered Species Act. That means while the agency agrees the tree is in danger, it does not have the resources to prioritize its protection over other species already listed.

The Fish and Wildlife Service ranks species’ risk numerically from 1 to 12, based on their respective threats and rarity. The environmental groups argued that whitebark pine got a rank of 2 – second-most serious – but the federal agency let species with lower ranks get protection while the tree was precluded.

Christensen ruled the ranking could assist FWS in setting its priorities, but didn’t force it to work exclusively by the strict order of worst-first standing.

“Congress could have expressly bound the service to its (listing priority number) rankings or some other proxy for degree of threat, but chose not to do so,” Christensen wrote. “The court will respect that decision.”

In September 2011, FWS settled another lawsuit over its endangered species backlog by creating a work plan to finish initial reviews of more than 600 species and settle the status of 251 “candidate” species that were already under review. But the whitebark pine status was done before that agreement was imposed, Christensen said.

Christensen also agreed with FWS’ claim that developing multi-species protection plans (that might include whitebark pine with things facing similar threats or use similar areas) was a reasonable and logical effort.

“The service provided sufficient reasoning and data upon which the finding that listing of the whitebark pine is ‘precluded by pending proposals to determine whether any species is an endangered species or a threatened species’ as required by (law),” Christensen wrote. “In the case of the whitebark pine, the service turned in its homework, which the court gives a passing grade.”

Molloy Dissolves Colt Summit Injunction: Collaborative Effort Goes Forward

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I’m still on vacation, but thought this worthy and timely to post..here is the link. It seems like this is the end of this but perhaps not.. lawyers can weigh in.

For those who are interested in the specific claims made and the details, the document gives a flavor of that, yet is relatively short. The details regarding the cumulative effects assertions by plaintiffs is mildly interesting.

Here’s a brief summary from an unnamed source, for the details on this blog you can search on “Colt Summit” in the search box.

The plaintiffs initially filed 12 counts in their original complaint. The Forest Service prevailed on 11 of those counts. The one count on which they lost was that of cumulative impacts to lynx. The Forest Service repackaged the cumulative impacts analysis they had already completed into a “supplement to the environmental assessment.” Judge Molloy ruled that this document was not a NEPA document, and thus it was not sufficient to lift the injunction. So the Forest Service repackaged the information again into a “supplemental environmental assessment” and submitted that to the Court in December 2013 along with a motion requesting that the injunction against work on the Project be lifted. Today’s order by Judge Molloy is in response to this latest motion by the Forest Service.

Below are a couple of excerpts:

“Plaintiffs claim that, although the Forest Service provides useful information, there is “no analysis of the total, combined impacts.” (Doc. 74 at 1.) However, Plaintiffs ignore the lengthy discussion and summary table of cumulative impacts in the SEA. X-001:FS78942-78982; specifically X-001:FS78964-78967 (Table 22 is the cumulative effects table Plaintiffs argue insufficient) X-OOI :FS78967-78980 (discussion following the table that explains the underlying analysis used in creating the summary table). Plaintiffs insist there is no analysis of the total combined impacts, as the bullet-point list summarizing the cumulative analysis focuses only on the impacts of the Colt Summit Project rather than outlining an aggregate analysis. X-OOI :FS78981. However, the table and the overall summary are supported by hundreds of pages of data, as well as fifteen pages of a cumulative effects analysis.” – page 9

“Even though Plaintiffs do not like the result of the Forest Service’s aggregate cumulative analysis, NEPA does not require specific outcomes, but only provides the process that agencies should use in order to take a “hard look” at a project’s impacts. The requisite “hard look” was taken here.” – page 14

Behind the Curtain: Colt Summit Appeals Resolution Meeting Notes

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Pages from colt sum supplemental EA

One of my goals on this blog has been to try to share some of the “behind the scenes” that goes on with Forest Service projects, so that colleagues in academia and elsewhere can get an idea of what it’s like to be a practitioner in this world.

Here are the note from an appeals resolution meeting for the project we’ve been following, Colt Summit. Remember it was collaboratively developed, and the acres of commercial thinning reduced from 1298 to 597 based on public comment. This resolution call was open to the public.

Also remember that I said there were two pieces of information about “what groups want”. One is “what do you want to change about the analysis?” and the other is “what do you want to change on the ground for this project.”

In this transcript, the FS keeps asking “what do you want?”…and the appellants say “give us something and we’ll see if we like it.” That’s the old “bring me a rock” approach. And why should the FS “bring them a rock”?

Because, in the words of Sarah Jane Johnson “you are asking us to defend our appeal, we are all irritated by that, and we did a lot of work on our appeal, our offer is drop the project and do an EIS, you are supposed to provide a counter offer. ”

Hmm. “you are supposed to make a counteroffer..” is that in law, regulations or policy? Not that I recall.

This meeting resonated with me, as I have been in similar discussions with the same flavor, in fact it have me a flashback or two.

In the interests of being fair, I am posting the whole thing instead of an excerpt. Now it could be argued that the note-taker didn’t adequately capture the comments.. so perhaps all these meetings should be open to the public and videotaped?

May 25, 2011 1:30pm

Appeals Panel Resolution Meeting Conference Call

Notes taken by Allison Kolbe

Participants at Lolo SO: Scott Tomson, Tim Love, Barb Beckes, Tami Paulsen, Shane Hendrickson, Sandy Mack, Debbie Austin, Chris Partyka, Carly Lewis, Boyd Hartwig, Allison Kolbe

Debbie Austin: I will go over our agenda, we are here to resolve appeals for Colt Summit, the three appeals came from Friends of the Wild Swan and Montana Ecosystems Defense Council, Alliance for the Wild Rockies and Native Ecosystem Council and the third from Native Ecosystem Council and Alliance for the Wild Rockies. We also received a Notice of Intent to Sue from the Western Environmental Law Center on behalf of those groups.

This project had broad public involvement including participation by the Lolo Restoration Committee and the Southwest Crown of the Continent group. This project is unique because it is fully funded for implementation and for monitoring implementation and effects monitoring.

Our agenda for this meeting is:

1. Debbie Austin will make introductions, speak to why we are here (to see if we can come to resolution), introduce everyone in the meeting, we will go until 3:30 or 4pm if needed

2. Chris Partyka will go over the appeals process

3. Tim Love will give a Project Overview, including a quick summary of project including the

4. Sandy Mack will explain how we grouped the appeal points into issues

5. What do the appellants want to focus on, and what are their most important concerns?

6. Public on the call can comment

7. Closeout/Next Steps/Wrap‐Up/Resolved Issues

Participants in room introduced themselves: Debbie Austin, Sandy Mack, Shane Hendrickson, Boyd Hartwig, Tami Paulsen, Barb Beckes, Scott Tomson, Allison Kolbe, Carly Lewis, Chris Partyka

Participants on the phone introduced themselves: Arlene Montgomery, Steve Kelley, Michael Garrity, Sara Jane Johnson, Scott Brennan, Megan Birzell, Joe Kirkley, Melissa Hayes, and Julia Altemus.

Chris Partyka: The Administrative Appeals Process is designed to review public comments that question the decision that has been made, and anyone who submitted comments can appeal. There is a 45 day appeal period after the decision was made, then the appeal period closes and the Forest Service has 45 days to review the process and decision. This is an informal disposition meeting to try to resolve issues.

The Regional Appeal Panel determines whether we have done an adequate job of addressing issues that were brought up during the appeal period. The appeal panel is made of folks from other Forests and they are not hand selected. The panel reviews the issues and information and the Reviewing Officer
submits the findings to the Deputy Regional Forester who is the deciding officer and they determine whether the Forest did an adequate job. The Deciding Officer will uphold the decision, uphold the decision with instructions that there may be some item sthat could be covered in the project record, or withdraw decision and the Forest redoes the project. We are at day 15 and have until Tuesday to submit the project record to the Regional Office.

Sarah Jane Johnson: I question the chances of resolving the appeals, the chances are non‐existent that we will resolve any offers or changes by either side.

Debbie Austin: this is an opportunity for us to hear each other’s concerns.

Sarah Jane Johnson: We aren’t interested in going over our issues on our appeal, we have outlined them in our appeals. We aren’t going to argue our appeal.

Debbie Austin: we are here to see if we can do anything to move forward.

Chris Partyka: in these meetings there is an opportunity to find consensus, we can explain our analysis.

Sarah Jane Johnson: it sounds to me like you want to go through each of our issues.

Debbie Austin: we have grouped your issues, and we would like to discuss…

Sarah Jane Johnson: there is that word again, discuss, I don’t know what we will discuss, if you have questions, or if we do we could ask each other to clarify questions

Debbie Austin: the goal of meeting is to see if we can resolve, or clarify or gain a better understanding of issues.

Arlene Montgomery: you have seen our appeals, do you have something that you would want to change in the project? We have laid out what we think and what the deficiencies are, do you have something that the forest would propose?

Michael Garrity: we want to know if you are going to make any changes, otherwise this is a waste of time.

Debbie Austin: this is not an offer, counter‐offer process, I came to gain a better understanding of what your concerns were.

Michael Garrity: you have seen our appeal, if you are here to resolve our appeal then I want to hear how you are going to address our appeal, and I will tell you now I am not going to drop my appeal and I am willing to listen if you are going to make some changes.

Tim Love: The Colt Summit FONSI was signed March 25, 2011. The purpose and need of this project is to increase forest health, improve grizzly bear and bulltrout habitat by rerouting the Colt Road and to reduce fuels in WUI. The Modified Alternative shifted treatment to more understory slashing and prescribed burning and reduced commercial timber harvest by more than half. There was lots of public involvement, and we also met with research scientists. The Lolo Restoration Committee visited the project on a field trip, and the CSKT,DNRC, BLM, localfire district, and etc. also were involved. We had
FWS consult on both terrestrial and aquatic species.

Sandy Mack: we received 3 appeals that included 130 contentions or issues. We grouped them into 6 issues for ease of discussion. These issues are: lynx, grizzly bear, old growth and species viability for Management Indicator Species, soils and aquatics, WUI and treatments, and general NEPA including
CFLRP and request for an EIS.

Debbie Austin: did we miss anything?

Arlene Montgomery: you missed Cumulative Effects and the fact that there is an adjacent project on the Flathead, we don’t need to talk about it, you don’t mention it in your EA.

Sandy Mack: it is in the project record, we considered it when bears were analyzed, the 6th unit HUC for Clearwater happens to be a hydrologic boundary, the silviculturist looked at prescriptions and we looked at them on the ground and we used similar prescriptions.

Arlene Montgomery: It is not clear in your EA that you looked, quite frankly your EA is skimpy and I do not believe you did an effective cumulative effects analysis.

Debbie Austin: Arlene is there anything you would like to discuss?

Arlene Montgomery: we don’t want to go point by point over our appeal points to hear what you say you did.

Debbie Austin: what are the major issues that you really disagree with in this project?

Steve Kelley: it is not our job to design projects for you, you need to drop the project and do the EIS, and we did a lot of work in our comments and appeals, I don’t think this is going to serve anything.

Debbie Austin: what do you think an EIS is going to do?

Steve Kelley: I’ve been asking since 1987, we have a perfect understanding and I think we disagree, it is in the appeal, there is no ambiguity, then ask if you have questions, I’m clear and I understand the project, and I responded in the best way that I could.

Debbie Austin: instead of going over 130 things, I want to understand what truly are your concerns about the implementation over this particular project.

Arlene Montgomery: I think I clearly articulated in my appeal what I think the problems are in the project.

Steve Kelley: I don’t think we have a misunderstanding, we have a disagreement, isn’t this a fair assessment?

Chris Partyka: you seem to feel that there is a level of analysis that we did not do, looking at your appeal
points, then we went to the project record and were able to use that to answer your points. I suggest we tackle lynx or old growth so we can explain how we addressed something, it isn’tfai rfor us to ask you to go through the 1000 plus page appealrecord. Old growth for instance is very small at 17 acres of treatment and we hope to improve the old growth stand and protect it from future fire.

Steve Kelley: we totally understand that you think you can manage old growth, we just disagree.

Sarah Jane Johnson: old growth, you are telling me that you are doing a reasonable job of managing it and I don’t want to listen to you justify that you are managing it.

Debbie Austin: I want you to understand that we did make changes based on your comments, including with old growth, and the project is smaller in terms of activities than it was in the beginning.

Chris Partyka: do you want to offer us something,…

Michael Garrity: no we don’t, drop the decision and do an EIS which we think is what the law requires, and we understand that you disagree with that and I understand that.

Chris Partyka: I was hoping that we could find common ground, this project is a small tidbit at trying to find common ground, how do we get there, is this the flavor of everything from here on out, why can’t we just go over certain points? I was hoping we could resolve it with…

Sarah Jane Johnson: the confusion is we aren’t collaborating in this meeting.

Debbie Austin: no, we don’t intend it to be collaboration, but we want to discuss how we could move this project forward and discuss our agreements.

Sarah Jane Johnson: you are asking us to defend our appeal, we are all irritated by that, and we did a lot of work on our appeal, our offer is drop the project and do an EIS, you are supposed to provide a counter offer.

Debbie Austin: you guys did a lot of work on your appeal and we appreciate that, we also did a lot of work on our end, we haven’t necessarily seen yet what we will gain from doing an EIS.

Arlene Montgomery: I disagree that your analysis was thorough, and it looks like specialists reports that were just cut and pasted in the EA, for instance hydrology brought up wildlife issues that weren’t addressed by wildlife, this is one of the poorest EAs I’ve seen.

Michael Garrity: let’s just see what the appeal review board says.

Debbie Austin: I’ll now provide the public a chance to comment.

Michael Garrity: I’m going to hang up.

There were no public comments.

Meeting ended at 14:15

BLM Scattered Apples Timber Sale Mediation

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I was going to recommend that Congress task the US Institute of Environmental Conflict Resolution with developing a mediation process for FS fuels reduction projects or restoration projects, and looked up the link.

Lo and behold, they had this 2005 project information posted to their site:

BLM Scattered Apples Timber Sale Mediation
April – October 2005

Location: Oregon
Background

Together with a conservation group, residents of Williams, Oregon filed a lawsuit against the U.S. Bureau of Land Management (BLM) over a timber sale. This led the BLM and other affected parties to request the assistance of the U.S. Institute. The U.S. Institute worked with contracted mediators to conduct an initial assessment of the situation.

They first determined that a negotiated agreement was feasible and then made recommendations on how to proceed. The parties agreed to a focused mediation of the Scattered Apples timber sale. Legal representatives for each party worked with the mediators to design the process, conditions, and basic ground rules for mediation.
Results and Accomplishments

The seven-month mediation resulted in an agreement that dismissed the lawsuit. The settlement allowed 75% of the original timber sale to go forward. It left in place 152 acres of old-growth trees that serve as habitat for species such as the northern spotted owl.
Timber sales cancelled or suspended due to legislative and legal efforts cost the federal government millions of dollars a year. Costs include contractors’ claims for the value of replacement timber and damages due to the effects of cancelled contracts on jobs, payroll, and taxes.
The mediated agreement was reached by investing $66,000 in mediation services in addition to the costs of stakeholder participation with their legal representatives.

Highlights/Innovation

This case is reportedly the first successful mediation of a BLM timber sale in Oregon. It highlights some of the alternative avenues available for resolving this kind of dispute. The settlement could serve as a prototype for other successful timber sale mediations.
The Scattered Apples settlement is innovative in that it includes a provision for continuing community oversight. The stakeholders can ride along with contract administrators during logging activities and visit harvested sites. Additional efforts to improve long-term communication and working relationships between stakeholders are ongoing.
In the words of plaintiff Lesley Adams, outreach coordinator for Klamath-Siskiyou Wildlands Center, the agreement “is a great example of the BLM working with conservationists and the community to come up with a plan everyone can support.”

Here’s a link to a report..

I guess this article is some of the “rest of the story”.. Oregonians, what’s your perspective?