Forest Service Litigation Weekly 10-15-2015

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Just returned from my blogging break, extended due to unforeseen circumstances. I learned many things from my experience in religious media,and discovered that people are not appreciably nicer in their online communications when they are involved in religious kinds of discussions (so I’m an optimist!). Anyway, we haven’t seen a litigation report in a while, so here goes…check out the R-5 salvage/hazard tree ruling.

1. Affirmative Litigation│ Region 3

District Court Finds in Favor of Forest Service in Affirmative Challenge to a 2001 Statute Enacted by the State of New Mexico and a 2011 Resolution enacted by the Otero County Board of County Commissioners in USA v. Board of County Commissioners of the County of Otero and the State of New Mexico. On September 30, 2015, the United States District Court for the District of New Mexico found in favor of the United States of America in a challenge to a 2001 statute enacted by the State of New Mexico and a 2011 resolution enacted pursuant to the statute by the Otero County Board of County Commissioners. The statute in question, Section 4-36-11, authorizes counties in New Mexico to “take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees
within the area of the disaster.” The United States government alleged that Statute 4-36-11 is in conflict with and interferes with federal law, that Section 4-36-11 violates the Supremacy Clause of the United States Constitution, that Section 4-36-11 is therefore preempted by federal law and is unconstitutional, and that the Otero County Resolution violates the Supremacy Clause and is, therefore, preempted by federal law and is unconstitutional. The court found that the Property Clause of the United States Constitution grants Congress plenary power (and the Tenth Amendment therefore does not reserve for New Mexico any sovereign police power) over federal lands, that the New Mexico statute and Otero County Resolution Conflict with federal law, that the statutory language of the New Mexico statute and its intent prevent the court from interpreting the statute in a manner consistent with federal law, and that the statute and resolution therefore violate the Supremacy Clause of the United States Constitution, are preempted by federal law, and are invalid. (12-00120, D. N.M.)

2. Salvage│ Region 5

District Court Finds in Favor of Forest Service on Plaintiffs’ Motion for Preliminary Injunction in
Challenge to the Bald Fire Salvage Restoration Project on the Lassen National Forest in Center for
Biological Diversity et al. v. Hays. On October 8, 2015, the United States District Court for the Eastern
District of California denied plaintiffs, Center for Biological Diversity et al.’s motion for preliminary
injunction of the Bald Fire Salvage Restoration Project on the Lassen National Forest. The court found that plaintiffs were not likely to succeed on the merits (cumulative effects analysis is adequate, an EIS is not required, effects of the project are not highly uncertain or unique, and both beneficial and adverse impacts of the Project are considered), that the Project would not cause irreparable harm, that the balance of equities does not weigh in favor of granting injunctive relief due to the safety risk posed by hazard trees, and that a preliminary injunction is not in the public interest (salvage of timber will provide jobs in the community, increase safety for employees and the recreating public, and serve management goals as directed by Congress). (15-1627, E.D. Cal.)

Litigation Update

1. None to Report.

New Cases

1. Minerals │ Region 2

Plaintiff Challenges Operation of Keystone Mine Water Treatment Plant in High Country Conservation Advocates v. U.S. Forest Service. On October 5, 2015, plaintiff, High Country Conservation Advocates, filed suit in the United States District Court for the District of Colorado alleging that the actions/inactions of the Forest Service in allowing the continued operation of an active mine water treatment plant, water management facilities, and mine waste dumps associated with the Keystone Mine on U.S. Forest Service lands without an approved Plan of Operation, the required financial assurance or bond, and without any review of the environmental impacts associated with these operations constitute violations of the Forest Service Organic Act of 1897, NEPA, the 1970 Mineral Policy Act, the APA, and implementing regulations (36 CFR 228).

In October of 2012, following a protracted dispute between the Forest Service and Keystone Mine Owner, U.S. Energy regarding whether U.S. Energy was required to submit a Plan of Operation for occupancy of Forest Service lands associated with operation of the water treatment plant, the Forest Service issued an Administrative Appeal Decision rejecting U.S. Energy’s contention that the 1979 Plan of Operation for construction of the plant was sufficient, but that ultimately found that the appeal was moot and that no approved Plan of Operation authorizing operation of the plant or requirement for a bond or financial warranty was necessary because U.S. Energy had, two weeks earlier, submitted a proposed “preliminary Plan of Operation” for mining-related activities that would rely on the water treatment plant. Plaintiff alleges that the proposed Plan of Operations does not contain the information required by 36 CFR 228 to adequately cover the operation of the treatment plant and the surface water management facilities associated with the plant, including the required bond amount (D. Colo.)

20151005ComplaintHighCountryConservationAdvocates_v_USFS_KeystoneMineWaterTreatment
20150930OrderUSA_v_OteroCounty_Statute4-36-11
20151008OrderPI_CBD_v_Hays_BaldFireSalvage

Using national forests to combat Canadian timber subsidies

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The Missoulian reported today on the effects of the expiration of the Canadian trade agreement, which will make Canadian timber relatively cheaper than that from the U. S. because the industry is subsidized by the Canadian government.  The Montana Wood Products Association proposes, that until a new international trade agreement could be negotiated (whenever that may be):

“We need to ask what the Forest Service can do to bring down the cost of raw fiber.”

How would this be done?  (Voiding environmental laws anyone?)

Tidwell: 5% of timber projects were litigated this year

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Greenwire article from last week….

5% of timber projects were litigated this year — chief

Phil Taylor, E&E reporter

Just over 5 percent of timber sales on national forests were litigated this year, Forest Service Chief Tom Tidwell said this morning.

Of the roughly 315 timber sales and stewardship contracts offered, 16 were challenged in court and delayed, Tidwell told the House Agriculture Subcommittee on Conservation and Forestry.

The hearing was to discuss the 2015 wildfire season, in which more than 9 million acres have burned, costing the Forest Service $1.7 billion in suppression.

Panel Chairman Glenn Thompson (R-Pa.) said the Forest Service needs to more aggressively thin overstocked forests using logging and prescribed burns.

Tidwell said the Forest Service expects to achieve 97 percent of its timber sale target this year.

Collaborative forestry projects have enlisted support from conservation groups that have been willing to defend the agency when it is challenged in court, he said.

The House recently passed legislation, H.R. 2647 by Rep. Bruce Westerman (R-Ark.), that seeks to reduce the amount of litigation hindering forestry work. It would require litigants to post a bond to cover the government’s anticipated legal costs, which would not be reimbursed unless the litigant succeeded on all the claims in the case.

Litigation has been a significant impediment in the agency’s Northern Region, which includes parts of Washington, Idaho, Montana and the Dakotas. A report released in spring by researchers at the University of Montana found that in recent years, “litigation has encumbered 40 [percent] to 50 percent of [the region’s] planned timber harvest volume and treatment acres.”

“Appeals, lawsuits and especially the threat of lawsuits has paralyzed and demoralized the Forest Service and created perverse incentives to ‘do nothing,'” Rep. Tom McClintock (R-Calif.) said at a June hearing before the House Natural Resources Committee.

But a bigger impediment to selling timber this year was lack of bidding, Tidwell said. More than 50 timber sales this year drew no bids, a consequence of “very difficult markets,” he said. Some timber sales were too large to draw bids and had to be reconfigured to garner industry interest, he said.

“We have to do a better job to make sure we’re in sync with not only the market but what the purchasers need,” Tidwell said.

Rep. Dan Benishek (R-Mich.) said the issue has less to do with markets than it does with the difficulty of purchasing federal timber.

“We’ve got a lot of mills in my district that need fiber, but they’ve kind of given up on going to the Forest Service to get wood because it’s too onerous,” Benishek said.

Tidwell this morning also praised Congress for giving the agency new categorical exclusion authority in the 2014 farm bill for timber projects up to 3,000 acres in size to respond to and prevent attacks from insects and disease. He said the agency is currently pursuing 20 projects using that authority.

The Westerman bill would allow categorical exclusions on projects up to 15,000 acres under certain conditions. It would also set deadlines for the completion of National Environmental Policy Act reviews for post-fire salvage projects.

The Obama administration said it strongly opposes the measure.

Tidwell said he supports categorical exclusions to the extent that they allow the Forest Service to maintain the trust of the public.

“When we’re talking about using categorical exclusions, it’s a good tool for small projects,” Tidwell said. “But we have to be thinking much larger.”

He emphasized the need for evaluating treatments on hundreds of thousands of acres at a time to achieve greater administrative efficiencies and restore forests at a landscape scale

Politicizing science – the view from the front lines

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A survey from the Union of Concerned Scientists included employees of CDC, FDA, FWS and NOAA.

A significant number of scientists (46 to 73 percent of respondents across agencies) reported that political interests at their agencies were given too much weight in their agencies.  Many scientists told us that scientific decisions were being swayed by politics or that political influence inhibited their ability to carry out agency missions.

The Fish and Wildlife Service was at the 73% end of the scale where one employee said,

“It is my perception that upper-level managers are influenced by fear of Congress dismantling the Endangered Species Act and/or otherwise interfering with the mission of the Service.”

One would expect that this would eventually lead to litigation about not following the law (followed by Congress complaining about the plaintiffs and the courts).

Interesting that another question in the survey indicates that Congress is as guilty as advocacy groups are for slowing the ESA process down.  While the Department of the Interior is credited with investing in scientific integrity, the Agriculture Department is singled out for not doing so.

Opening roads to motorized use requires NEPA

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It seems like this should be obvious, but it apparently took a lawsuit to get the Okanogan-Wenatchee National Forest to agree.

Thursday’s reversal by the Okanogan-Wenatchee National Forest of its June decision to allow wheeled all-terrain vehicles (WATVs) on six Forest Service routes was met with mixed reviews by people on both sides of the motorized trail-use issue.

(The lawsuit) charged that opening the roads to WATVs not only violated the National Environmental Policy Act (NEPA) but was also premature, since the Okanogan-Wenatchee has yet to complete its long-overdue Travel Management Plan. The federally mandated plan is supposed to guide the use of off-road recreational vehicles on public lands.

Thursday’s Forest Service announcement said any decision to reopen those six roads to WATVs would be based on additional NEPA analysis, but didn’t reference the Travel Management process.

While the plaintiff’s primary concern may be the sequencing of travel planning and road management decisions, the NEPA concession could be at least as important.  The Forest Service has generally tried to limit its analysis of road use effects to the travel planning process.  The conclusion reached here could also be applied to roads and trails currently open to motorized vehicles that have never been through a NEPA process to consider their effects, or that have never been reviewed for effects on listed species under the Endangered Species Act.

Sagebrush rebellion goes down in flames

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The U.S. District Court for the District of New Mexico has ruled that an Otero County resolution permitting the removal of trees from the Lincoln National Forest is unconstitutional because it violates the Supremacy Clause of the U.S. Constitution.  The court’s order also invalidated the New Mexico state statute upon which the Otero County resolution relied because it too violated the Supremacy Clause.

We’ll hope the Forest Service helps spread the word to the rest of the states and counties that believe otherwise.

Helping realtors think about climate change

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Previous posts have discussed how where we choose to live contributes to the effects of climate change, both by promoting carbon lifestyles and building in locations at risk.  The Missoula Organization of Realtors hosted a conference on the effects of climate change on their industry.  This is a step in the right direction.  Missing from the presentation though were the perspectives on urban interface living from local government planners and public land managers.

2015: Another Summer of Industry’s Discontent

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The following article is written by Keith Hammer, Chair of the Swan View Coalition in Montana. Hammer has shared his views on this blog before – including raising red flags about some types of ‘collaboration’ in Montana. – mk

When there is wildfire smoke in the air, the timber industry and its cronies in Congress blame it on a lack of logging. As though logging prevents wildfires, which it does not. Moreover, they blame the alleged lack of logging on lawsuits brought by conservation groups simply wanting to insure the Forest Service follows the law as it logs public fish and wildlife habitat.

In February, Senator Jon Tester (D-MT), emphatically and falsely told Montana Public Radio “Unfortunately, every logging sale in Montana right now is under litigation. Every one of them.”

Listeners, including Swan View Coalition, challenged Tester’s statement. The Washington Post investigated and found there to be 97 timber sales under contract in Montana’s national forests with only 14 of those being litigated and only 4 of those stopped by a court order! The Post awarded Tester “Four Pinocchios” and noted the Forest Service responded “Things should be litigated that need to be litigated. If there is something the Forest Service has missed, it is very healthy. We absolutely should be tested on that.”

Then politicians and the Forest Service went back to lying as though this never happened. Representative Ryan Zinke (R-MT) visited Essex on the border between Glacier National Park and the Flathead National Forest and claimed the summer’s wildfire smoke “is completely avoidable.” He went on to promote his Resilient Federal Forests Act, that would speed up federal logging and require citizens to post unaffordable bonds before suing the Forest Service to make it follow environmental laws. He then proposed that future Wilderness designations allow logging to reduce fires.

Such proposals fly in the face of federal studies like the Interior Columbia River Basin Ecosystem Management Project, which found roads and logging render ecosystems less resilient to natural disturbances like fire. Countless other studies find large trees, including fire-killed trees, are essential for fish and wildlife habitat.

Forest Service research shows that forest thinning within the last couple hundred feet of our homes and structures helps save them, not distant logging where fire helps renew natural ecosystems. This summer’s fire that burned the remote and abandoned Bunker Creek bridge shown here was started by lightening in an area burned in 2000.

We’ve supported thinning around the village of Swan Lake, the Spotted Bear Ranger Station, guest ranches, and trail-heads, but such thinning needs to be repeated often to remain effective. Neither the American taxpayer nor our natural ecosystems can afford to apply such front-country logging to the distant backcountry.

As I write this article, Montana’s entire Congressional delegation has done an about-face and is urging the Forest Service to slow down and give loggers more time to log federal timber sale contracts in the face of a glutted timber market.

It’s also time to consider how backcountry logging, most often done at a taxpayer loss, is taking money and market demand away from the thinning that should instead be done adjacent to human homes and other structures.

Timber Industry Fails to Convince Judges that Logging Levels Linked to Wildfires

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Screen Shot 2015-09-29 at 12.29.53 PM

In a decision dismissing three lawsuits intended to compel more federal land logging in western Oregon, DC federal district court judge Richard Leon found that the timber industry failed to show that less logging means more wildfires (see page 7’s footnote). Judge Leon had ruled earlier in favor of the industry plaintiffs in one of four forum-shopping lawsuits filed by attorney Mark Rutzick. But, judges don’t like being reversed. When the DC circuit court did so in the earlier case, ruling that the timber industry failed to establish standing, Leon took that message to heart and said “ditto” for the other three lawsuits.

Judge Leon’s ruling likely ends a two-decades long legal skirmish by the timber industry to compel federal agencies to increase logging levels from Northwest Forest Plan lands. The campaign has been led by the Portland-based American Forest Resource Council. For 20 years AFRC chose primarily the courts as its strategy to increase logging. Today’s decision suggests that AFRC may change its focus from the courts to Congress, which would play to the strength of its newly-hired executive director, Travis Joseph, former natural resources staff to Oregon Rep. Peter DeFazio. Joseph, who is not an attorney, was DeFazio’s point person during House negotiations over proposed O&C forest legislation that continues to languish in Congress.

Forest Service to pay attorneys fees to industry group that challenged a settlement

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The U.S. Forest Service has agreed to pay an oil and gas industry group $530,000 for attorney fees it incurred in a long-running battle over drilling in the Allegheny National Forest, according to a court document filed Thursday.

The Pennsylvania Independent Oil and Gas Association sued to overturn a 2009 agreement between the government and two environmental groups that banned drilling while the agency conducted an environmental impact study. The industry contended that the ban exceeded the Forest Service’s authority.

U.S. District Judge Sean McLaughlin agreed and, in September 2012, permanently overturned the agreement. The 3rd U.S. Circuit Court of Appeals upheld his ruling in January 2014.

http://triblive.com/news/allegheny/9152266-74/forest-industry-service#ixzz3n4DOXNQV

I await the cries of indignation.