Mar 162015
 

Let's not do the Time Warp again.

That was the message from U.S. District Judge Edward Lodge, who said on March 11 that the Forest Service did not rely on the best available science when it updated its travel management plan (Friends of the Clearwater v. U.S. Forest Service, 13-515 EJL, D. Idaho).

A press release announcing the decision is below. Here's an excerpt:

The Forest Service issued a memo on May 2, 2011 providing its interpretation and reasoning for applying the guidelines for measuring [Elk Habitat Effectiveness] as those used in the Forest Plan to include roads but not motorized trails. (AR5750-51.) The memo discusses the model used in the Forest Plan as being limited to roads and states that although “the model has evolved over the years and now includes factors for trails, the test for Forest Plan standards must be made using the model as it existed at the time of the forest plan. Otherwise the standards in the Plan become a moving target. It is appropriate to utilize the current model to consider trail effects for the purpose of comparing alternatives to each other but not as a test for Forest Plan compliance.” (AR5751.)

Plaintiffs maintain this memo does not satisfy 36 C.F.R. § 219.35(a) because it does not substantively consider the best science found in the 1997 guidelines nor does it discuss science in any form. (Dkt. 38 at 8 n. 10.) Plaintiffs further dispute this conclusion arguing it is “an exercise in management convenience” that fails to satisfy the requirements of NFMA. (Dkt. 38 at 8 n. 10.) Plaintiffs assert that once the Forest Service became aware of the 1997 Guidelines they were required to either 1) alter the Travel Plan or 2) amend the Forest Plan. (Dkt. 38 at 7 n. 9.) The Court agrees with the Plaintiffs.

To accept the Forest Service’s conclusion would be to allow analysis and reasoning be made in a time-warp as if nothing has changed since 1987 when the guidelines for measuring the very data at issue have clearly and undisputably changed. While the Court agrees that generally data should be measured using the same yardstick, the Forest Service here takes that logic too far in order to conclude that the Travel Plan complies with the Forest Plan.

Judge rules in favor of plaintiffs against agency travel plan

FOR IMMEDIATE RELEASE

March 12, 2015

Contacts: Gary Macfarlane or Brett Haverstick, Friends of the Clearwater (208) 882-9755

Al Poplawsky, Palouse Group-Sierra Club (208) 669-1065
Mike Garrity, Alliance for the Wild Rockies (406) 459-5936
Dave Bahr, Bahr Law Offices (541) 556-6439

MOSCOW, ID-Yesterday afternoon, the honorable Judge Edward Lodge ruled on the legal challenge brought forth by Friends of the Clearwater, Palouse Group-Sierra Club and Alliance for the Wild Rockies on the Clearwater National Forest Travel Plan. The plaintiffs challenged the sufficiency of the federal agencies’ analysis and the lack of compliance with executive orders on minimizing off-road vehicle impacts. Judge Lodge ruled that the Forest Service failed to adequately protect wildlife habitat and, indeed, had not minimized impacts from off-road vehicles.

Attorney for the groups, David Bahr, said, “We are pleased that the judge agreed with us that the travel plan does not use the best available science to protect elk and does not minimize motorized use impacts as the law requires.”

The 38-page ruling clearly addresses the failings of the Forest Service’s decision. The plaintiffs believe that the ruling will result in greater protection for wildlands and wildlife on the Clearwater National Forest.

Gary Macfarlane, of Friends of the Clearwater, stated, “This is great news for the public wildlands on the Clearwater National Forest. Places like Cayuse Creek and Fish & Hungery Creeks deserve protection and the ruling reflects that.”

“This is an important ruling for wildlife in the Clearwater. Wildlife habitat needs to be adequately protected from motorized intrusion, whether its via roads or trails,” added Al Poplawsky with the Palouse-Group Sierra Club.

Judge Lodge ruled that the agency did not use the best available science in making its decision, as outlined in the 1997 Interagency Guidelines for Evaluating and Managing Elk Habitats and Populations in Central Idaho.

The Forest Service needs to implement the best available science in measuring off-road vehicle impacts to species like elk,” said Brett Haverstick with Friends of the Clearwater. “The agency failed to apply the appropriate measures in order to comply with 100% Elk Habitat Effectiveness.”

Besides negative impacts to terrestrial species like elk, plaintiffs were also concerned about off-road vehicle impacts to aquatic species on the forest.

“Thanks to the members of Friends of the Clearwater for working hard to bring stronger protections to Clearwater Country,” said Mike Garrity with the Alliance for the Wild Rockies. “It’s important that the Forest Service follow the law and protect critical habitat for species like bull trout, too.”

Feb 272015
 

Video of oral argument | Audio (2/5/15)

The Ninth Circuit affirmed a lower court's dissolution of an injunction in a challenge to the Grizzly Project on the Kootenai National Forest (Alliance for the Wild Rockies (AWR) v. Bradford, 13-35768).

In an unpublished decision, the court found that U.S. District Judge Donald W. Molloy was justified in dissolving the injunction he had issued June 29, 2010. The order being appealed was issued April 3, 2012.

The circuit judges on the panel were Raymond C. Fisher, Mary H. Murguia and Carlos T. Bea. Bea issued a separate concurring opinion to say he did not believe AWR should have been allowed to appeal the ESA portion of the ruling. Molloy had granted the plaintiffs' motion for summary judgment on its National Forest Management Act and National Environmental Policy Act claims. He ruled for the Forest Service on one of the ESA claims, but then the Forest Service voluntarily dismissed its appeal, and the plaintiffs dropped their cross-appeal.

Said Bea:

"I see no reason to deviate from the usual rule that a party gets one opportunity—and only one opportunity—to seek appellate review of an adverse judgment on a claim. Because Alliance had that opportunity in 2010 and rejected
it by dismissing its cross-appeal, I would not revisit the merits of the ESA claim."

Jan 052015
 

The Forest Service and Fish and Wildlife Service adequately reviewed a thinning project in the Nez Perce National Forest, the Ninth Circuit concluded in an unpublished opinion released today (Alliance for the Wild Rockies (AWR) v. Brazell, 14-35050). The judges on the opinion are M. Margaret McKeown, Richard C. Tallman and Michael Daly Hawkins.

AWR and Friends of the Clearwater were appealing a year-old district court decision that also sided with the agencies. In particular, the environmental groups said FWS and the Forest Service had not properly accounted for the impact of the 2,598-acre project on  the fisher, goshawk, pileated woodpecker and bull trout, only the last of which is listed under the ESA.

The appeals court disagreed. "We find that the federal agencies satisfied their obligations under [the National Forest Management Act], NEPA, the ESA, and the APA before implementing the project to improve long-term habitat and the health of the forest."

Regarding NFMA, the court said, "Although the Nez Perce Forest Plan requires USFS to monitor management indicator species (including fisher, goshawk, and pileated woodpecker) populations at the forest level, nothing in the Plan requires USFS to conduct site-specific monitoring before implementing individual projects like the Little Slate Project."

NEPA

"After thoroughly reviewing the Little Slate Project Final EIS, we are satisfied that USFS took the requisite 'hard look' at the project’s potential impacts on the species. The Little Slate Project EIS closely examines the project’s potential impact on fisher, goshawk, pileated woodpecker, and bull trout by considering how the project will degrade or improve those species’ critical habitats. This discussion includes an analysis of any potential cumulative environmental impact to which the project would contribute."

ESA

"In its Biological Opinion relating to the Little Slate Project, FWS concluded that the project would not jeopardize bull trout—the only listed species relevant here—or adversely modify its critical habitat. Consistent with the ESA, FWS based this conclusion on the 'best scientific and commercial data available.' This “no jeopardy” conclusion is supported by evidence in the record that shows that the project, while temporarily disrupting some bull trout habitat in the short term, will have a long-term positive impact on many of the streams in which bull trout live and reproduce."

Dec 102014
 

The Forest Service must consult with the Fish and Wildlife Service under Section 7 of the Endangered Species Act about "agreed operating procedures" on more than 100,000 acres of forest lands in Montana's Swan Valley (Swan View Coalition v. Weber, 13-129-M-DWM, D. Mont.).

U.S. District Judge Donald Molloy reaffirmed his Sept. 25 ruling requiring compliance with the ESA and National Environmental Policy Act but withdrew portions of his order requiring consultation and NEPA analysis on "site-specific projects." He noted that at present, no such projects are planned.

"Existing site-specific projects approved or accepted pursuant to the Agreed Operating Procedures for which ground-disturbing activities were underway before the entry of this Court's September 25 Order may proceed as planned," Molloy said in his Dec. 8 order. However, "[u]ntil the necessary analysis under NEPA and the ESA is complete, the Forest Service is enjoined from authorizing or accepting Harvest Plans for site-specific projects on the 111,740 acres subject to the Agreed Operating Procedures, including allowing such projects to proceed by default due to the Forest Service's failure to respond to a Harvest Plan."

Species potentially affected by activities within the 111,740 acres include Canada lynx, grizzly bears, bull trout and water howellia, a plant.

"[T]he Forest Service's argument regarding the difficulties and potentially adverse consequences of complying with the law carry little weight here, where the troubles complained of resulted from the Forest Service's failure to follow the law in the first instance," Molloy said in his Dec. 8 order. "Had the Forest Service conducted the requisite analysis prior to taking agency action through approving the Agreed Operating Procedures, the agency would not be in its current predicament."

Here's Alliance for the Wild Rockies' press release. Scroll down for the order.

December 9, 2014

Contact: Mike Garrity, Executive Director, Alliance for the Wild Rockies, 406 459-5936

Federal court reaffirms ruling protecting endangered species on 111,740 acres of national forest lands

The federal district court in Montana reaffirmed and clarified its September 2014 ruling that the U.S. Forest Service violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) when it approved logging procedures for 111,740 acres of newly-acquired national forest lands. The Court’s ruling requires the Forest Service to halt logging until it complies with both the National Environmental Policy Act and Endangered Species Act requirements to analyze “potential environmental effects, reasonable alternatives, and cumulative impacts on those lands” and “comply with the consultation requirements of Section 7 of the ESA with respect to those protected species affected on the lands.”

These so-called "Legacy Lands" in Montana's Swan Valley were former Plum Creek Timber Co. lands which were purchased by the federal government and are now part of the national forest and subject to federal laws that protect the environment and threatened or endangered species. These lands are critical habitat for grizzly bears, lynx, wolverine, bull trout, and a very rare plant called water howellia.

Four conservation groups, the Alliance for the Wild Rockies, Swan View Coalition, Friends of the Wild Swan, and Native Ecosystems Council, filed a lawsuit in 2013 in Federal District Court challenging the Glacier Loon Timber Sale near Lindbergh Lake in the Swan Valley.

"The U.S. Forest Service authorized logging procedures and thousands of acres of clearcutting on these lands without any analysis of how the logging might affect and harm endangered species in the area,” said Mike Garrity, Executive Director of the Alliance for the Wild Rockies. “Of particular concern to local conservationists is the lynx, a rare forest cat that requires large expanses of unlogged area for survival. The Swan Valley is the best potential habitat in the Lower 48 states for lynx, but lynx may be declining in the area."

"The federal court reaffirmed that the federal government violated the law and the ruling couldn’t have been more clear,” Garrity said, pointing to the language in the ruling that “the Court has compelled no substantive changes to Agreed Operating Procedures but merely required the Forest Service to take the procedural steps obligated by law.”

Moreover, in addressing Forest Service concerns that the ruling would enjoin new Harvest Plans until the required compliance with the law has been done, the Court put the blame directly on the agency, writing: “In any case, the Forest Service's argument regarding the difficulties and potentially adverse consequences of complying with the law carry little weight here, where the troubles complained of resulted from the Forest Service's failure to follow the law in the first instance. Had the Forest Service conducted the requisite analysis prior to taking agency action through approving the Agreed Operating Procedures, the agency would not be in its current predicament.”

“The bottom line,” Garrity concluded, “is very good news for the threatened and endangered species that call these lands home, since all commercial logging on these ‘Legacy Lands’ must cease until the Forest Service conducts the proper analysis required by the Endangered Species Act and National Environmental Policy Act and puts in place appropriate protections for the endangered species in the area."