NEPA

Forest Service and BLM slightly lose sage grouse lawsuit in Nevada

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The state of Nevada, nine counties, three mining companies, and a private ranch challenged the adoption of greater sage grouse conservation measures in Forest Service and BLM land management plans.  Most of the agency actions were upheld in Western Exploration v. USDI (D. Nevada), including compliance with FLPMA requirements of BLM for multiple use and consistency “to the extent practical” with local plans, and compliance with NFMA.  Here’s the court’s language on Forest Service multiple-use:

“Plaintiffs contend that the SFA (mineral) withdrawal zones, travel restrictions on 16 million acres of land, and grazing restrictions violate the multiple-use mandate of NFMA. They also challenge that the FEIS violates multiple-use principles because it closes millions of acres of land to important uses, replaces “no unmitigated loss” with a requirement for “net conservation gain,” and creates uniform lek buffers that are “no-go zones.”

“The Court’s review of whether the Forest Service Plan violates NFMA’s multiple use mandate is necessarily narrow, and it may consider only whether the Forest Service contemplated all relevant factors in making its determination. First, it is unclear to the Court how travel and grazing restrictions manifest the Forest Service’s failure to consider multiple use. To the contrary, the restrictions demonstrate a balance between conservation of greater-sage grouse habitat and sustainable human use of natural resources. Second, the Court fails to see how multiple use mandates that any particular parcel of land be available for any particular use.  While Plaintiffs point out certain land closures in the USFS Plan, such as complete exclusion of new solar and wind energy projects (on SFA, PHMA, and GHMA), the Plan does not exclude all possible human uses on those lands. Finally, Plaintiffs fail to demonstrate how the “net conservation gain” and lek buffer zones preclude multiple use or demonstrate a failure on the part of the Forest Service to consider all relevant factors. In fact, the move from “no unmitigated loss” in the DEIS to “net conservation gain” in the FEIS demonstrates that the Forest Service reconsidered whether their initial standard consistently balanced sustainable human use with adequate habitat conservation.”

The court did not uphold compliance with NEPA. Plaintiffs had identified several changes between the draft and final EIS, and the court agreed that, “the designation of 2.8 million acres as Focal Areas in Nevada amounts to a substantial change relevant to environmental concerns, requiring the Agencies to prepare an SEIS.  The court focused on the fact that these lands included the town of Eureka, Eureka County’s landfill, power lines, subdivisions of homes, farms with alfalfa fields and irrigation systems, hay barns, and important portions of the Diamond Valley area, and there would be a “spillover” effect from the changes in adjacent federal land management that warranted additional analysis and opportunity to comment.  Because of risk of harm to sage grouse, the court did not enjoin the plan amendments pending completion of the new analysis.

9th Circuit upholds EA for Shasta-Trinity logging project

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The mantra I always use to hear was don’t use an EA if you might get sued.  Maybe things are different now?  Or maybe this was just one of those EAs that looked a lot like an EIS.

  • The Project’s proposed treatment methods will retain all existing snags greater than 15 inches in diameter, “unless deemed a safety hazard by the purchaser, or in the case of a need to meet coarse woody debris (CWD) requirements.” Because the Project only removes snags in two limited circumstances, it was reasonable for USFS to conclude that treatment methods will not reduce snag numbers below Forest Plan standards.
  • The Project’s Environmental Analysis considered a total of fourteen alternatives, five of which were discussed in detail.  The USFS reasonably concluded that not treating 17% of the Project area would thwart the major purposes of the Project.
  • USFS properly analyzed the cumulative impacts of the Project.  The Council on Environmental Quality (“CEQ”) Handbook does not require USFS to use the owl’s “natal dispersal” distance in its analysis.
  • While the uncertain effect of fires in spotted owl foraging areas may cast doubt on some aspects of the Project, the Project’s anticipated effects as a whole are not highly uncertain and do not trigger the need for an EIS.  Also, logging in designated critical habitat will be limited to areas that support lower-quality owl habitat—and no forest treatment will occur in nesting and roosting habitat.  “We think USFS has provided a ‘convincing statement of reasons’ to explain why [the Project’s] impacts are insignificant.”

Conservation Congress v. U. S. Forest Service.  March 31, 2017.

Fremont-Winema wins sucker lawsuit

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In Oregon Wild v. Cummins, the Oregon district court upheld the Fremont-Winema National Forest’s compliance with the requirement of INFISH to “modify grazing practices … that retard or prevent the attainment of [Riparian Management Objectives (“RMOs”)] or are likely to adversely affect inland fish.”   The court quoted a prior case for INFISH requirements: “INFISH contemplates that its objectives are `targets’ that will not be met instantaneously” and “[t]he attainment of RMOs is to be assessed on a watershed level.”  While plaintiffs identified streams that did not meet RMOs, the Forest had monitoring data that showed overall improvement in stream conditions. While past grazing practices had contributed to degraded conditions, the court held that now, “there is nothing to indicate that grazing is contributing to any failure to attain INFISH RMOs at a watershed level.”

The court dismissed Endangered Species Act claims regarding the impacts of grazing on two listed sucker species because the Forest was obligated to reinitiate consultation on its grazing permits on a 10-year schedule, which was now ongoing and must be completed prior to further grazing. It also dismissed a challenge to an EA used to approve livestock grazing because plaintiffs failed to exhaust their administrative remedies by appealing the decision (which would have stayed any further grazing until the appeal was resolved).   Finally, there was no significant new information that would require supplementing the EA for grazing allotments.

Forest Service wins 2

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The Forest Service turned back a challenge on the Manti-La Sal National Forest to its management of a research natural area in Utah Native Plant Society v. U. S. Forest Service. The state of Utah had introduced mountain goats outside of the national forest boundary, over the objections of the Forest Service that they could adversely affect the plants being protected by the RNA. Plaintiffs challenged the Forest Service for allowing the reintroduction, and failing to remove the goats after they were introduced. The court dismissed plaintiffs’ claims because there was no requirement for a special use permit for actions beyond national forest boundaries or for “migrating wildlife,” and the Forest had not yet determined the effects of the introduction nor decided to take any action on the mountain goats that could be challenged. The court did indicate that this was not the end of the story:

“Indeed, it would be nonsensical if an administrative agency could kick the proverbial can down the road by merely stating that more research must be conducted before acting. Eventually, after further research, the Forest Service will need to take a position.”

In Granat v. USDA a federal district court in California upheld the travel management plan for the Plumas National Forest against a NEPA challenge from counties and motorized user groups. It refused to require the Forest to conduct field surveys to support its environmental analysis because plaintiffs did not explain how that would have changed the outcome of the analysis conducted by the Forest. The court found that the Forest had considered an adequate range of alternatives, that the prohibition of non-highway legal vehicles on maintenance level three roads was reasonable, and that the Forest properly coordinated with local governments. The EIS also adequately considered economic and recreation impacts and the Forest adequately responded to public comments. A cumulative effects analysis beyond the Forest boundaries was not necessary. Changes between the draft and final EIS were not “substantial” and did not require a supplemental EIS. The court also upheld compliance with requirements of the Travel Management Rule.

Mendocino N. F. loses HFRA project lawsuit

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The Eastern District of California District Court has reversed a decision by the Mendocino National Forest to implement the Smokey Project, which would include fuel and vegetative treatments intended to further habitat and fire management goals and contribute to the MNF’s timber production goals (Conservation Congress v. U. S. Forest Service). The project was located in a late successional reserve for northern spotted owls. It was prepared pursuant to the Healthy Forest Restoration Act, which requires only one action alternative to the proposed action if the additional alternative is (1) proposed during scoping or the collaborative process; and (2) meets the purpose and need of the project.

 

The court held that the Forest failed to consider an alternative with an 18” DBH diameter cap sought by plaintiffs.   The court interpreted the phrase “collaborative process” to include “something beyond ‘scoping.’” The court then listed 14 comments in the record that suggested a diameter cap for large trees and/or expressed concern over the cutting of larger trees. It concluded, “Based on the Plaintiff’s active participation throughout the iterations of the Project … the Court concludes that Plaintiff’s suggestions were made during the collaborative process.”

 

The court found that the Forest had failed to “explain why none of these triggered the HFRA requirement to prepare a single additional alternative.” While the Forest had considered a 10” DBH diameter cap as a alternative not considered in detail, the court agreed with plaintiffs that this was a “straw alternative” because no comments had suggested such a low limit. The plaintiffs argued that, “more limited thinning from below prescriptions with quantitative diameter limits … were a viable option that would meet all HFRA objectives, while also being consistent with LSR duties,” and this was apparently not contested.

 

The court also found that the EA failed to take the “hard look” required by NEPA because of the lack of this alternative, and for two other reasons. The explanations of the use of a “limited operating period” as a mitigation measure were conflicting and caused confusion about the effects. The project documentation also failed to explain why admitted failure to monitor other projects did not render this project’s impacts “uncertain.” The court upheld the decision against other NEPA claims, which included a claim that the purpose and need for the project conflicted with the forest plan. The court also found that the project complied with ESA and with NFMA consistency requirements, including compliance with the spotted owl recovery plan (which had been incorporated into the forest plan).

Custer-Gallatin wins salvage logging lawsuit

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On Feb. 6, Judge Molloy in the Montana District Court upheld the Custer National Forest’s  use of the categorical exclusion applicable to projects not exceeding 250 acres for the Whitetail Salvage Project.  In Native Ecosystems Council v. Weldon he found that even though it was the third project in the area affected by the 2012 Ash Creek Fire, the record showed that it was not reasonably foreseeable when the 2013 and 2015 projects were planned, and so the agency had not illegally “segmented” the projects to keep the acreages below the threshold for using the CE.

The court also found that effects on black-backed woodpeckers would be minimal because “the combined area of the Whitetail, Phoenix, and roadside hazard projects affect less than 2% of the highly suitable black-backed woodpecker habitat within the 90-kilometer cumulative effects area,” and “Abundant nesting and foraging habitat for black-backed woodpeckers will remain in the project area and cumulative effects area.”  This level of effects did not require an EA.  Plaintiffs had based much of their case on declarations they submitted by Chad Hanson.  However, the court refused to consider the declarations because documents that “challenge the underlying science and data used by the agency” can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).  The judge found compliance with the 2012 Planning Rule requirement for using the best available scientific information for the woodpeckers (which is odd because the Planning Rule is not supposed to apply to projects).

The court also found that the project is consistent with the forest plan.  The project is in a wildlife management area, but the plan had selected mule deer for emphasis in this area, and it was proper under the forest plan for the Forest Service to balance the needs of black-backed woodpeckers and other species in determining to conduct the salvage harvest.

Court slams Forest Service wilderness decision

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The federal district court in Idaho has ruled against the state’s use of helicopters to collar elk in the Frank Church-River of No Return Wilderness. In Wilderness Watch v. Vilsack it held that the Forest Service failed to consider the cumulative impacts of a one-year proposal when it knew the state intended this to be part of at least a ten-year program. It found that the decision to not prepare an EIS violated NEPA.

The court also found that the Forest Service violated the Wilderness Act. In 2010, the court had approved use of helicopters to collar wolves because its purpose of “understanding the wolf” furthered wilderness values. However, the judge warned that, because of cumulative impacts (and probably because of some skepticism about the state’s motives), “the next project will be extraordinary difficult to justify,” and that the Forest Service would need to give sufficient notice to allow opponents to “fully litigate” such projects.

The Forest Service issued a special use permit in January 2016, and within two days the elk collaring was completed, along with four wolves not authorized by the permit. The court rejected state arguments that it didn’t need permission, and held that the Forest Service failed to make a proper determination that the helicopters and collaring were necessary for wilderness management because it considered only “a one-year portion of a much larger long-term plan.”

The relief granted by the court is noteworthy:

  • Injunction preventing the Forest Service from considering any of the data gathered from the elk and wolves as a result of this project
  • Injunction preventing the Forest Service from approving any future helicopter projects without delaying implementation for 90-days to allow affected groups to file challenges to the projects
  • Inunction preventing the state from using any of this data in further proposals seeking approval from the Forest Service
  • Mandatory injunction ordering the state to destroy the data received on the elk and wolves collared in this project

How do you suppose the Forest Service rewards this kind of decision-making?

Fracking on the Wayne protested

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This would be the first approval of fracking on this national forest, and it required a supplemental information review of the impacts of fracking, because that was not addressed in the 2006 forest plan.  I was curious about how the analysis would address the potential for earthquakes, based on what has been happening in Oklahoma.

The BLM’s analysis didn’t say much:  “Increased seismic activity has recently been a concern of the public following a number of low magnitude earthquakes centered on the Youngstown area. These earthquakes were within a mile of the Northstar 1 well, a Class II deep injection well…  In response to these seismic events and the possible linkage to the injection well the ODNR is pursuing reforms to the injection well program, including restrictions on injecting fluids in the Cambrian or Precambrian rock, requirements for testing and monitoring of pressures and injection rates and the installation of an automatic shutoff system, among other reforms (ODNR 2012).”

Talking about what the state might do is not exactly a disclosure of the environmental impacts.  The BLM concluded, “No additional analysis or protective measures are needed at the Forest Plan level, since the RFDS (Reasonably Foreseeable Development Scenario) discussed the common methods of waste disposal and this was used as the basis of the effects analysis conducted in the EIS.”

Some of the locals are not happy about the planned leases.

Lawsuit will question fuel breaks

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The Los Padres National Forest has proposed the Santa Barbara Mountain Communities Defense Zone Project.

“The desired condition for chaparral is to establish a diversity of shrub age classes in key areas near communities to improve the effectiveness of fire suppression operations. Adequate defensible space around communities could greatly reduce the risk of structure loss, as well as improve safety for residents. Thus, at the urban interface there will be a management emphasis on direct community protection. This could be accomplished in at least two ways: (1) by removing or heavily modifying shrublands immediately adjacent to populated areas (Wildland-Urban Interface Defense Zones); and (2) by strategically creating blocks of young, less flammable vegetation near the interface areas. Both types of fuels modification could slow or even halt the rate of fire spread into urban areas.”

Two conservation organizations have filed a lawsuit in U.S. District Court “to protect fragile habitat and rare species in the path of a massive, remote fuel break recently approved in the Los Padres National Forest.”  According to this article, “The suit is also an effort to encourage the Los Padres National Forest to focus on reducing fire risk where it matters most, directly in and around communities.”   Interestingly, the Forest Service used a categorical exclusion from NEPA, which suggests that they think there is no scientific controversy about the effects of fire breaks that are beyond the area needed for defensible space.  I’d like to see a court weigh in on this, and how far away “near” and “remote” are, but it might just decide that a CE for “timber stand improvement” can’t be used where there is no timber.

Post-Election Thoughts About Our Forests?

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With a new Republican President and a Republican-controlled Congress, how will this affect the Forest Service and the BLM?

crown-fire-panorama-web

Regarding the picture: I did some processing with a High Dynamic Range (HDR) program to get this artsy view. It is interesting that it enhanced the flames better than in the original scan, from a Kodachrome slide. I shot this while filling in on an engine, on the Lassen NF, back in 1988.