Litigation

Federal Judge Tells USFS It Must Manage Snowmobile Travel on National Forests

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This is a guest post from regular commenter John Persell. -mk

Here’s the link to the Oregonian story: “Federal judge in Idaho agrees with skiers, says snowmobile excemption is arbitrary.”

The meat of the court’s decision is in the last several pages, but the intro provides good background on how travel management came about on public lands.

This is a very satisfying victory for many who have advocated for management of snowmobiles and motorized travel in general on national forests, and is the result of great work by Advocates for the West on behalf of the Winter Wildlands Alliance.  It is not clear yet whether the Forest Service will appeal to the 9th Circuit or comply with the 180-day timeframe ordered by the judge.

The judge’s straightforward decision highlights some truly head-scratching plain language twists the Forest Service attempted to use.  The case also raises questions as to why the current administration chooses to defend some of the previous administration’s actions (as here) but not others (the 2008 NFMA planning rule).

Colt Summit: Judge dings Forest Service for failure to “prepare a supplemental environmental assessment”

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The Colt Summit project area is located in the upper-center portion by the "83" and bend in the road. The surrounding area (including the portions of the Lolo National Forest, State DNRC lands and private lands) have been heavily logged and roaded, significantly compromising critical habitat for lynx, grizzly bears, bull trout and other critters.
The Colt Summit project area is located in the upper-center portion by the “83” and bend in the road. The surrounding area (including the portions of the Lolo National Forest, State DNRC lands and private lands) have been heavily logged and roaded, significantly compromising critical habitat for lynx, grizzly bears, bull trout and other critters.

The Colt Summit timber sale – and subsequent lawsuit – on the Lolo National Forest in Montana has been the source of much previous debate on this site, even though this is the first timber sale lawsuit on the Lolo NF in over 6 years.  Well, just today the next step in the legal process occurred, as US Federal District Court Judge denied the Forest Service’s motion to dissolve the injunction because the Forest Service failed to “prepare a supplemental environmental assessment,” as the court required.  Read the judge’s ruling here, or see the snips below.

The United States Forest Service moves to dissolve the injunction in light of actions that it has taken following remand. The motion is denied. The Court previously granted summary judgment in favor of the Forest Service on a host of issues, all but one. (See doc. 50.) The only fault with the Service’s analysis of the Colt Summit Project was the inadequate cumulative effects analysis for lynx. (Id.) Because of this deficiency, the Court remanded the matter to the Forest Service “so that it may prepare a supplemental environmental assessment consistent with this order and the law.” (Id. at 46.)

The summary judgment order plainly requires the Forest Service to prepare a supplemental environmental assessment (“supplemental EA”). The Service didn’t do so. Instead, it prepared what it called a “supplement to the environmental assessment.” The document is a stand alone document that is, by the Service’s own admission, not a supplemental EA within the meaning of NEPA or the NEPA regulations. See 40 C.F.R. §§ 1502.9, 1508.9–1508.10. Nor, contrary to the Service’s argument, is the “supplement to the environmental assessment” any other type of NEPA document. See 40 C.F.R. § 1508.10. Courts have previously allowed agencies to prepare non-NEPA, supplemental documents on remand, but those circumstances do not apply here….

Instead, where, as here, the Service “present[s] information and analysis that it was required, but according to the finding of the district court, failed to include in its original NEPA documents,” it must prepare a supplemental NEPA document….

Using documents not sanctioned by NEPA to “correct this type of lapse” is “inconsistent with NEPA”:

[I]f the Forest Service were permitted to correct deficiencies in an EA or an EIS by means of an SIR or another non-NEPA procedure, the regulations governing the supplementation of NEPA documents promulgated by the CEQ, as well as the Forest Service’s own rules on the issue, would be superfluous.

The Forest Service’s document does not comply with the Court’s summary judgment order or Ninth Circuit precedent.

The Service makes two arguments in response. First, it argues that the Court has previously allowed the Service to prepare a non-NEPA supplement on remand. See Native Ecosystems Council v. Kimbell, 9:5–cv–110. Be that as it may, the Court in Native Ecosystems Council expressly ordered the Service to “to supplement the EIS.” That isn’t the case here. Here, the summary judgment order expressly requires the Service to prepare a “supplemental environmental assessment.” These are two distinct requirements.

Second, the Forest Service argues that it solicited public comment for the supplement to the EA, so the document should be sufficient. Not so. Providing public comment and following some of NEPA’s other procedures doesn’t make a document a required NEPA document.

The Service’s task on remand was clear: “prepare a supplemental environmental assessment . . . .” (Doc. 50 at 46.) The Service didn’t do that. This decision has nothing to do with the quality or the adequacy of the Service’s lynx analysis. The Service might very well have produced a substantively useful cumulative effects analysis. But, regardless of the quality of the analysis, the Service has to follow the procedures required by law and this  Court’s previous order. Until the Service does so, the Court will not consider a motion to dissolve the injunction.

IT IS ORDERED that the U.S. Forest Service’s motion to dissolve the injunction (doc. 60) is DENIED. The Court will not consider a motion to dissolve the injunction until the Forest Service complies with the Court’s previous order requiring the Service to prepare a supplemental environmental assessment and comply with all the requisite procedures. (See doc. 50.)

Dated this 27th day of March 2013.

OR: Federal judge puts McKenzie Bridge timber sale on hold

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Hanging out in the Goose timber sale on the Willamette National Forest, Oregon. Photo by forester Roy Keene.
Hanging out in the Goose timber sale on the Willamette National Forest, Oregon. Photo by forester Roy Keene.

Previously, we’ve discussed and debated the Willamette National Forest’s proposed Goose timber sale, especially as it relates to the fact that many local residents in the McKenzie Bridge area of Oregon knew nothing of the Forest Service’s plans to log 7,600 logging trucks full of trees from what amounts to their neighborhood.

According to the Eugene Register Guard, a federal judge has put the McKenzie Bridge timber sale on hold, ordering the Forest Service to prepare an environmental impact statement.  At the end of the article you’ll notice that this logging project would reduce 13% of the Lookout Mountain Potential Wilderness Area, in a part of central Oregon that’s already heavily logged and roaded.  Besides, logging to reduce potential Wilderness is, like, so, late 70s/early 80s.  Hey Forest Service, get with 21st Century already.

A federal judge has ruled that the U.S. Forest Service cannot go forward with a controversial logging project near McKenzie Bridge until an environmental impact statement has been prepared.

People living near the 2,100-acre Goose Project had opposed strongly the logging plans. They said there had been insufficient notice about the project and that they didn’t find out about it until it was too late for them to weigh in.

Cascadia Wildlands and Ore­gon Wild, represented by the Western Environmental Law Center, filed a lawsuit last May challenging the project.

In a ruling dated Thursday and made available late Tuesday, U.S. District Judge Ann Aiken said the timber sale could have a “potentially significant effect” on the environment. As a result, the Forest Service erred in choosing a less stringent environmental assessment, rather than a more demanding environmental impact statement, to assess the potential effects of harvesting an estimated 38 million board feet of lumber from federal land….

Aiken’s ruling will likely be embraced by McKenzie Bridge area residents who said they didn’t learn about the pending timber sale and harvest until last spring. Those residents had little recourse because they didn’t have legal standing to challenge the sale — unlike Cascadia Wildlands and Oregon Wild, who did have such standing because they were the only parties to have appealed the project back when it was approved in 2010.

Doug Heiken of Oregon Wild said Tuesday that the ruling is a victory for local residents who will now have a much greater opportunity to be heard on the matter. That’s because an environmental impact statement requires greater public participation. “The public gets to comment, so that the decision-maker has the benefit of that information and can make a fully informed decision,” Heiken said.

Heiken said the Forest Service “had the chance to get it right a couple of times and stumbled.” The agency could have limited the proposed sale to the noncontroversial thinning of dense young timber stands, but instead opted to include the proposed logging of mature forests and logging near riparian areas, he said.

The agency again made a misstep when it decided against inviting public comment after local residents learned of the proposed sale last year, he said. “The Forest Service still had the discretion to do that and avoid this lawsuit,” he said….

Aiken said that the project would reduce the 9,664-acre Lookout Mountain Potential Wilderness Area by 1,249 acres — resulting in the harvesting of 680 acres of timberland and fragmenting an additional 569 acres from the rest of the potential wilderness area.  In addition to the number of acres logged, the project also would authorize the construction of eight miles of temporary roads and one mile of permanent road, the judge noted.

Here is the press release from the plaintiffs.

Forest Service Win in Bison Hazing Case

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Here’s a link with a bit of interpretation. Other interpretations are welcome!

Bison Order

Attached is the Court’s decision, issued today, in AWR v. Weldon. The Court granted US motion for summary judgment and denied Plaintiff’s motion.

ESA Claims

The court held that it lacks jurisdiction over the ESA claims for lack of a 60-day NOI and lack of standing. The court found that Plaintiff violated the 60-day notice requirement by failing to actually give the required 60 days prior to amending their complaint. The court also notes that the NOI is defective because it fails to name APHIS and FWS. Notwithstanding the NOI issue, the Court found that Plaintiff lacked standing as to the Section 7 claims for lack of a showing of causality and redressability between the Federal Defendants’ alleged violations, the alleged harms and the relief sought. Even if the Court had jurisdiction, the Section 7 claim as to the Federal Defendants is moot because the agencies reinitiated consultation. (The court noted that Plaintiff’s challenge to Montana’s helicopter hazing program is not moot because the State stands ready to recommence helicopter hazing if it acquires funding, thus it falls under an the voluntary cessation exception to the mootness doctrine.) As to the Section 9 claim, the court looked to the declarations of USG experts and the 2012 BE in responding to evidence that plaintiffs submitted to support their take claim and agreed with USG argument that there was no evidence in the record that helicopter hazing of bison constitutes a “take” of grizzly bear within the meaning of Section 9.

NEPA Claim

As to the NEPA claim, the court found that Plaintiff lacks standing, yet went on to analyze the merits of Plaintiff’s NEPA claim. The Court noted that the FEIS notes that a majority of management activities will take place while bears are in their dens, while still acknowledging the possibility of overlap into the fall and spring when bears are out of their dens. The FEIS contemplated that hazing would be conducted on a flexible schedule. “The FEIS clearly demonstrates a consideration of hazing when bears are present because the FEIS notes the policy that ‘hazing operations would cease if there was evidence of grizzlies being active in the area.’” The Court also rejected Plaintiff’s argument that new circumstances or information required supplementation of the FEIS.

NFMA Claim

Finally, noting that Plaintiff lack standing, the Court went on to reject Plaintiff’s NFMA claim stating that it is Plaintiff’s burden to show a NFMA violation and they had failed to do so.

Congrats to the Gallatin, Region, OGC and DOJ and anyone else!

Side note… I find that footnotes are sometimes interesting.

Neither NPS nor USFS considers itself to have in any way permitted or authorized the State of Montana’s hazing activities in Montana (whether in airspace over the Gallatin National Forest or in the airspace over Yellowstone National Park). Montana’s authority to conduct helicopter hazing is not given to
Montana by the IBMP (which provides no legal or governmental authority to any IBMP partner but rather draws its legal authority from the powers of the government signatories themselves). Rather, Montana’s authority to conduct helicopter hazing arises from the legal authority of the State of Montana to
manage its own wildlife: “Montana has the right under its own police powers to protect the health, safety, and welfare of its inhabitants by removing possibly infected YNP bison that migrate into Montana.” Intertribal Bison Co-op. v. Babbitt, 25 F.Supp.2d 1135, 1137 (D. Mont. 1998) (citing Fund for Animals, Inc. v. Lujan, 794 F.Supp. 1015 (D. Mont. 1991)), aff’d sub nom. Greater Yellowstone
Coalition v. Babbitt, 175 F.3d 1149 (9th Cir. 1999). The fact that hazing–in general–is discussed in the 2000 Record of Decision (as cited by Plaintiff) merely underscores the fact that hazing has been addressed in prior NEPA analysis. (See FS AR Doc 1 at 11.) As to AWR’s attempt to use the testimony of a witness (Mr. Mackay) to support its argument that helicopter hazing is a federally authorized
program, the Court merely comments that legal conclusions are for the Court, not
lay or expert witnesses. See Aguilar v. Int’l Longshoremen’s Union Local #10, 966 F.2d 443, 447 (9th Cir. 1992) (excluding legal expert’s opinion as to legal matters because the opinion offered is an inappropriate subject for expert testimony).

Also

This thread of lack of standing winds its way through all of the claims filed by AWR: the ESA claims are weakened because no federal action underlies the complained-of activity; 4 the claim for additional NEPA supplementation is weakened because no new federal action has occurred since the original NEPA
analysis was prepared; and the NFMA claim is weakened because the Forest This thread of lack of standing winds its way through all of the claims filed by AWR: the ESA claims are weakened because no federal action underlies the complained-of activity; 4 the claim for additional NEPA supplementation is
weakened because no new federal action has occurred since the original NEPA analysis was prepared; and the NFMA claim is weakened because the Forest Service issues no permit and takes no action to allow the State of Montana’s helicopter hazing in the airspace over the Gallatin National Forest.5
AWR attempts to call federal agencies to task for allegedly violating federal environmental statutes, but the actual conduct complained of is the conduct of the State of Montana. The Court concludes that AWR’s standing to assert claims against the Federal Defendants is lacking in both causality and redressability.

pp. 12-13.

UPDATE FROM MATTHEW:  I was curious about this case, so I took the step of actually contacting the attorney for Alliance for the Wild Rockies. Here is the information she sent me about the case:

We wanted federal agencies to do ESA consultation on the IBMP (Interagency Bison Management Plan) for helicopter hazing impact on grizzlies.  They fought and fought.  After we finished briefing, they did the consultation.  So judge ruled yesterday that our ESA consultation claim was moot because they had finally done consultation.  There were other minor issues, but the main issue was forcing them to do consultation, which we accomplished.  And the lawsuit was against all the federal IBMP partners, not just Forest Service.  So the agencies didn’t really “win” since they were finally forced to do consultation.

Oregonian Editorial Board on Forest Roads

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While we’re waiting for the objections rule, thought I’d post a few miscellaneous items..

Here’s a link and below are some excerpts.

Forest owners, logging companies and those who value gainful employment won a significant victory Wednesday in the U.S. Supreme Court, which opined that logging roads are not point sources of pollution requiring discharge permits under the Clean Water Act. The lopsided, 7-1 decision reversed the 9th U.S. Circuit Court of Appeals, whose wisdom promised, warned Sen. Ron Wyden, D-Ore., in 2011, to “bury private, state and tribal forest lands in a wave of litigation.”

Party time, right?

Not quite. As important as the decision is for forest owners, some of them are keeping the bubbly on ice until Congress makes the long-standing policy challenged by environmental groups a matter of law. Can you blame them, given the determination of litigants to keep right on litigating and prodding?

and

Meanwhile, environmental lawyer Paul Kampmeier told The Oregonian’s Scott Learn last week, his organization, the Washington Forest Law Center, will keep right on “pushing EPA to do something …” And why not? As Kampmeier pointed out, “The court generally ruled that the ball’s in the EPA’s court.”

The most effective way to provide long-term security for forest owners is to change the law, as legislation sponsored during the last Congress by Wyden and others would do. Unfortunately, the legislation died despite gathering a bipartisan collection of sponsors. It deserves another shot.

This seems to be another of those “Congress should act” kinds of things…perhaps we need a grassroots movement for “Congress stepping up” in some of these areas? Perhaps a “sustainable forests and national forest communities” Manifesto?

Barry Wynsma: U.S. Forest Service Collaboration Process: Solution or Sham?

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This is pretty interesting because Mr. Wynsma was able to obtain a great deal of information, (should that information be available more generally?) and also his observations as employee and collaborator. I’m starting a page on ideas for solving “the Problem” and will put his ideas, as well as the ideas found (buried?) in comments here, on that page. Here’s the link, and below is an excerpt.

The Good, The Bad, and The Ugly Truth about Collaboration

Even though I don’t believe the current process for collaboration will solve these problems, that doesn’t mean there aren’t good things about the collaborative process or that the process can’t be improved upon to help solve the problems.

Here’s what I and other current and retired Forest Service acquaintances I contacted think are good things about the collaborative process:

Involving a diverse group of people (I hate the term “stakeholders”) during the project planning process is a good thing. I believe it helps the Forest Service design projects that better meet the desires of the public, even though it’s impossible to meet everybody’s personal opinions on how to best manage the public forests.
With collaboration comes group ownership in projects and support from start to finish.
Joint solutions and commitment means no backing out.
The collaborative program provides assistance with funding to accomplish needed treatments.
Collaboration can help lay people better understand the complexity of forest management.
Collaboration may build community relationships that encourage continuing positive working relationships between Forest Service people and the community.
Collaborative groups police themselves and force extremists on both sides of the spectrum to consider what they are really saying philosophically vs. practically on any given issue.

On the other hand, there are things about collaboration that are not so good, if not bad. Here’s what I and other current and retired Forest Service acquaintances I contacted think are bad things about the collaborative process:

The collaborative process is time consuming and more costly than the traditional process of public scoping and comment gathering for projects. The more people involved in a project, the harder it is to schedule meeting dates and field trips that will maximize the largest group involvement. The results of my inquiry clearly show that projects aren’t moving through the NEPA and appeals process any faster than normal and possibly even taking longer.
The time consuming nature of collaboration can be a major deterrent to people that are not paid to attend meetings during working hours, people who have limited free time or travel. Forest Service people can become weary of after hour meetings, paid or not paid.
Meetings can go on for months, if not years. This consumption of time makes it difficult, if not impossible, for many people to take part.
Poorly managed meetings generate negative emotions and can ruin the entire process.
For individuals or groups with an agenda to limit or eliminate forest management, collaboration can provide an opportunity to wear others down by dragging meetings on and on, then appeal and/or litigate after an extended collaboration process. Collaboration can also usurp the agency’s authority.
The Forest Service may or may not be aware of hidden agendas or games being played by some members in a collaborative group.
Forest Service specialists may feel like they get “cut-out” of project development.
Also considering project specialists: the more days they have to spend in meetings, the less time they have to conduct field work and write reports, which extend the timeline for implementing projects.

The ugly truth is that collaboration won’t reduce analysis paralysis, appeals and litigation. Collaboration also won’t increase the rate at which the Forest Service can reduce fuels and restore unhealthy forests until the appeals process and our current myriad of conflicting environmental laws are reformed.

So what are some possible ways to improve the collaborative process?

Here’s a few:

After all the time and effort put into project development by collaborative groups and the Forest Service, it simply isn’t fair to the collaborative or to the taxpayers of this country to allow an inexpensive process for individuals and groups, whether they were members of the group or not, to stop or delay project implementation through appeals and litigation.

Congress should pass a new law that will exempt collaborative projects from the appeal or objection process. They should also include bonding requirements for any individual or group that file suits to stall or stop collaborative projects.

Congress should also reform or eliminate the Equal Access to Justice Act, which allows litigants to recuperate court costs from the tax paying public.

The Forest Service should develop a new Categorical Exclusion to replace the Healthy Forests Restoration Act version (CE #10) that allowed for fuels reduction timber harvests less than 1,000 acres in size. The CE #10 was rescinded following a lawsuit filed by environmental groups because in my opinion this CE allowed for expedited implementation of fuels reduction projects.

To get a broader spectrum of public involvement, make more use of the internet to gather input from people who want to participate in collaboration but don’t have the time or money to show up for meetings and field trips. The Forest Service could maintain email mailing lists for projects that people want to be engaged in and could be kept up to date on the progression of projects without having to show up for meetings. For example, with the smart phone technology I could imagine a logger sitting in the woods during a lunch break or a hiker up on a mountain top being able to participate in a collaborative project.

Note from Sharon: I was somewhat involved in the development of CE#10, not sure that would help at the end of the day. I really like his last point in terms of the criticism I hear from both sides.

Courtroom Backroom Collaboration: Southern California Forests

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Backroom-Deals-300x202
Here’s the link.

Here’s an idea. If the FS has to analyze an alternative proposed by a litigo-collaborative group, wouldn’t it have been more cost effective to analyze it right away as part of the rest of the NEPA rather than draw this out.. how many years have these poor folks been planning? Which would be an argument for analyzing both a collaborative group’s alternative and the “likely litigator’s” alternative upfront. Then we’d just have to think up a “more intrusive” alternative, and call it good.

The process seems to be:
Government tries really hard to write a perfect document
Groups who want control find flaws
Sit down with DOJ and make a deal

Leaving out the FS (well they are talking to DOJ but..), the public, Congress and other elected officials other than the ones influencing DOJ (current administration) Wish the political science folks were still here on this blog to talk about the “separation of powers” but as I recall, when things get out of balance with courts and executive, it is time for Congress to step in.

And back to our collaboration topic, by the same logic as Macfarlane suggested, then developing a proposal with groups as part of a settlement would also “violate NEPA..” But could that be, since it’s apparently ordered by a court? The non-legal mind boggles.

U.S. Forest Service officials could add 80,000 acres of wilderness areas in the four Southern California national forests — which would prohibit road building, commercial development and mountain biking — and ban motorized vehicles from another 300,000 acres.

The proposal is part of a settlement between the Forest Service and seven environmental groups that sued in 2008 over the agency’s decision to allow road building and off-highway vehicles in remote roadless areas.

The San Bernardino, Cleveland, Angeles and Los Padres national forests, which total 3.5 million acres, would be affected. Those forests, all near urban areas, are among the most popular in the country for recreation, drawing more than seven million visitors a year.

The proposal is outlined in a draft of the Forest Service’s management plan. An environmental analysis of the plan is open to public comment through May 16. The Forest Service will hold a public meeting on the topic March 28 at the San Bernardino National Forest headquarters.

Three alternatives are proposed:

Alternative 1 would make no changes.

Alternative 2, preferred by the Forest Service, would establish backcountry areas where no motorized vehicles would be allowed. The zoning would allow bicycling and makes an exception for road construction for tasks such as forest fuels management. It would not remove vehicle access where it is already allowed, however. The largest portion — 300,000 acres — would be in the Los Padres National Forest, headquartered near Santa Barbara.

Alternative 3, the most restrictive, recommends additional wilderness, a designation ultimately made by Congress. This would ban off-road vehicles, mountain bikes and construction of new roads and prohibit installation of cellphone towers, radio repeaters and microwave reflectors. This is the proposal favored by environmentalists.

Hmm. I guess it you have no timber, grazing, or oil and gas, you have to go after mountain bikes, fuel treatments and cellphone towers. Maybe we can see the ultimate endgame for some, as proposed for Southern California.

Group sues to stop Hebgen timber sale

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Pages from lonesome wood rod

Another Montana project.. above is the map. You can click on it to get greater detail.

Here’s a link to a news story, below is an excerpt.

The area covered by the timber sale is along the western and southern shores of Hebgen Lake. The Forest Service initiated the project, saying logging would safeguard area cabins from wildfires.

But Mike Garrity of the Alliance for the Wild Rockies said some of the proposed logging is in roadless areas away from the cabins. The Forest Service would build six miles of logging roads and log 400 acres of designated old growth forest.

Both groups claim the old growth areas are habitat for lynx, grizzly bears and wolverines, all of which are rare. The Forest Service and the U.S. Fish and Wildlife Service both determined in an assessment that logging would adversely affect grizzlies and lynx.
Garrity said the groups don’t oppose all the logging in that area, just the old growth sections.
“Their own fire expert says to start at the structures and work out, clearing the trees to create a defensible space, and they’re not doing that,” Garrity said.
This isn’t the first challenge for this area. The Forest Service proposed a similar sale but dropped the sale after Alliance for the Wild Rockies sued in 2009.
Garrity said the Forest Service loses money on timber sales, because it is usually unable to get enough money for the logs to cover its costs.
“Right now, when the government is authorizing less spending with the sequester, timber sales cost the taxpayer,” Garrity said.

In a couple of seconds, I was able to find this handy ROD. It’s in a pdf so you can search for old growth. You can look at the map and see how far the units are from private land (not very).. “roadless areas”?. But it would be handy to have the overlay of the units on Googlemaps.

Vegetation – Old Growth Protection
45. Old growth stands in Compartment 709 will be avoided during unit layout. Unit boundaries for unit 17, 20, 25, 26C, 26B and 26A will avoid adjacent old growth stands 70907006 (unit 17), 70907029 (unit 20), 70906036 (unit 25/26c), 70904036 (units 26a/26b). These avoidances will require inspection of preliminary unit boundaries on the ground to ensure old growth stands are avoided.

I’m sure it is more complex than it appears from this glance, but that is what I’d expect a story to get at .. if Garrity says they are far away and going into old growth, what does the FS have to say?

Note for retirees and other local folks Even if the FS can’t share their perspective due to the litigation cone of silence, you can learn about the project and be available to the media. You can be spokespeople for CREATE. Part of CREATE’s mission is to ensure that good information is given to the public about projects. This is one “direct action” approach.

Trail maintenance and fire suppression also cost the taxpayer, so I’m not sure exactly what Garrity’s point is there.

Sharon’s review of document:
I think the ROD is convenient to use, and generally excellent with all the information you need to find right there. Would also like to see more photos and the units on Google maps. Maybe they are located somewhere else. A- Nice work!

Sharon’s review of news story:
Did not even superficially examine Garrity’s claims. D

Supreme Court throws out ruling classifying logging road runoff as industrial pollution

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Here’s a news story…

Here’s the first sentence…

The Supreme Court on Wednesday sided with timber interests in a dispute over the regulation of runoff from logging roads in western forests.

It also sided with EPA in a D administration, who had just shoved a stick in their eye by issuing a surprise regulation on the eve of the Supreme Court taking the case… Just sayin’

But this is one of those cases.. what is the point here? More regulatory paperwork? Or is there some specific issue that relates to BMP’s not working? If so, what is it? Wouldn’t it be cheaper to have a meeting (open to the public) to discuss the specific water quality concerns, than to spend all the bucks to take the case to the Supreme Court? Unless folks just want to do it for the glory.. but it’s not glorious to lose, or is it?

Justice Scalia in his dissenting opinion agreed that the discharges from forest roads, aside from those four activities that have always required a permit gravel crushing etc., should not require a permit or that logging be classified as an industrial activity, but he did not like that the Court was asked to determine the intent of the EPA in their rule saying, “It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.”

Could someone explain why courts should determine what EPA meant by their rule? Or is it more complex than that?

Sometimes I think we need an Extension Service-like group to explain all these legal issues to the public. Maybe some law school will volunteer to run one as a pro bono effort?

Oh, and I guess The Northwest Environmental Defense Center filed a challenge to the new EPA rule on January 24th in the US Ninth Circuit. Is that the about the same thing? It seems very confusing.

Finally, I should add that I am a proud member of, and a volunteer with, the Society of American Foresters, who filed an amicus brief in this case.
But they were only one among many notable groups who did..
Here’s a link to see them all.

Of all the industries in the U.S. with all the environmental impacts they have, one has to wonder why this was it was so important to go after this one.. I’d like to hear someone (I know I keep asking this) articulate why they did this and what they hoped to accomplish, and why they picked this particular battle instead of the many others we might be able to imagine. In English, not legalese, and describing desired changes to the environment (Physical World).

McClatchy Take on Pacific Rivers Supreme Court Case

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Martins photo
Note: This post is not just an excuse to run Martin’s photo again.
Planners: I’m looking for a photo that shows a real forest plan and all its associated documentation for future posts.

Here’s a link to another story about the Supreme Court case.

Below are a couple of excerpts I found interesting:

One key question confronting the court will be whether environmentalists have the “standing” to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they’ve been injured or face imminent injury.

It seems to me that no one faces “imminent injury” from a forest plan other than, as planner DeAnn Zwight once remarked, by dropping one on your foot. Or potentially tripping over a pile of Appendices. Or falling asleep while reading one (very likely) and smoking…

Apparently DOJ agrees with me, below is a quote from an E&E story.. if you read past the “project htat would “threaten the forest’s ecosystem”.

Pacific Rivers Council “has not identified even one project that will adversely affect even one member,” the service wrote in court documents.

The agency also wrote the challenge was “un-ripe” for a lawsuit because it had yet to sign off on a specific project that would threaten the forest’s ecosystem.

“Absent approval of a site-specific project or other irreversible commitment of resources by the Forest Service, [Pacific Rivers Council]’s challenge to that programmatic decision is merely an abstract disagreement not appropriate for judicial review,” the agency wrote.

“The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action,” Pacific Rivers Council’s attorneys said in a legal brief, adding that “agencies cannot take a ‘hard look’ unless they have reasonably identified the consequences of their actions.”

It was interesting in the 2001 Roadless Rule case, it appeared that very general and not very accurate environmental analysis was OK. Some have suggested that different levels apply if you are documenting a decision “not to do things” as opposed to “doing things”. I’m not sure I read that in NEPA, though. But plans, of course, don’t “do things” either. So perhaps if we looked at the 10th Circuit Roadless case and the 9th Circuit Pacific Rivers case, we would have to argue that levels of analysis can differ from decisions that “don’t allow things” to ones that “might could (plans are all about “might could”) allow some things, and not allow other things. I wonder what would happen if the same standards of analysis were applied to the 2001 Roadless Rule and to the Sierra Nevada plans? After all, that was a final decision on not allowing things, and any actions allowed by plans have to go through specific NEPA.

I was also curious about this quote:

In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.
“The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing,” Judge William A. Fletcher wrote for the appellate panel.

It’s hard for me to believe that there was “no analysis”. What “Joe, I thought you were going to do the fish chapter. Oh, no, I guess we forgot? Well it’s too late, the document’s printed. I guess we’ll have to see if anyone misses it. Especially since this document is sure to be appealed and litigated.”

Anyone from familiar with this case, please shed some light.