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.”

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."