Logging

The law may be coming full circle

Lands Council v. Martin

No. 07-35804

CV-06-00229-LRS

You may recall the insane case of the environmental obstructionists attempt to stop the salvage of timber from the Umatilla National Forest[1].   Through court rulings and an earlier appeal, the Forest Service attempted to move forward in the harvest of salvageable timber from the School Fire Salvage Recovery Project.

The Umatilla National Forest Plan adopted the Eastside Screens[2] that requires the Forest Service to “[m]aintain all remnant late and old seral and/or structural live trees [greater than or equal to] 21 dbh [diameter at breast height] that currently exist within stands proposed for harvest activities.” Id. at 641 (emphasis omitted).

In short, the Forest Plan prohibits the harvest of old-growth “live trees.”   Plaintiffs  in this case argued that the Forest Service’s proposed logging of dying trees violated the Eastside Screens because dying trees are still alive, and the court agreed.  Because the forest plan failed to include a definition of a “live tree”, the obstructionists have been successful in preventing the harvest of dead and or dying trees[3]. 

On June 11, 2007, in answer to the earlier court ruling and associated appeal,the forest service adopted a forest plan amendment specific to the School Fire Salvage Recovery Project.  The forest service decision amends the Umatilla National Forest’s Land and Resource Management Plan Eastside Screens’ wildlife standard at 6d.(2)(a) to read as follows: Maintain all remnant late and old seral and/or structural live trees [greater than or equal to] 21 dbh that currently exist within stands proposed for harvest activities. Live trees are defined as trees rated to have a high probability of surviving the effects of fire, and trees rated to have a moderate probability of survival where sampling 7392 THE LANDS COUNCIL v. MARTIN indicates that at least 50 percent of their basal cambium is alive. Dead trees are defined as trees rated to have a low probability of surviving the effects of fire, and trees rated to have a moderate probability of survival where sampling indicates that more than 50 percent of their basal cambium is dead. Survival probability is determined using [the Scott Mortality Guidelines].  [4]

Keeping in mind that the fire decimated the area in 2005, the forest service amended the forest plan in answer to the 2007 court decision that ultimately stopped logging. 

The court finally agreed that the deference afforded to the professional foresters with the agency were right and denied the plaintiffs request for relief.  Therefore, the issue is now moot on the question of live trees!  (Only on this forest)

Now we move onto the next part of the ruling that is a blow to the management of resources on all public lands.  The activist judges agreed that the precedence set in 1994 with Smith v. USFS, and later confirmed  in Lands Council v. Martin, the term “Roadless Expanse” brought forward in Smith, render most of our public lands open to the argument of “needing protection for potential wilderness designation.” 

The 1964 Wilderness Act does not require an absolute strict interpretation regarding the minimum of 5000 acres to qualify as “Sufficient Size”  16 U.S.C. 1131 (c).  The plaintiffs in this case successfully argued that the “Contiguous” areas to “inventoried” roadless areas have the potential to qualify as wilderness. 

In this case, the West Tucannon roadless area is a bounded uninventoried roadless area that contains 4,284 acres. Upper Cummins Creek roadless area is an “uninventoried” roadless area that contains 966 acres but, when combined with the adjacent Willow Springs “inventoried” roadless area,  they form a “roadless expanse”of more than 13,000 acres[5].

The court has ruled that even the areas under the size requirement to qualify as roadless or other designations, still have the potential and therefore deserve protection under the premise that these areas compliment and are potentially part of the inventoried areas.

So, we now can expand and move forward in establishing a solid forest management planning process that provides for a definition of a dead or live tree.

We still must work on area designation through legislation from the bench as well as administrative designations that continue to remove the multiple use management requirements from public lands.

LANDS COUNCIL v.  MCNAIR

Another Perspective

NFMA

            “In essence, Lands Council asks this court to act as a panel of scientists that Instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty. As we will explain, this is not a proper role for a federal appellate court.”

          The court has decided that it has erred in earlier cases and has admitted that it cannot legislate from the bench!  “To read into a law something that is not there is equally in error to omit something that is in that law.”

36 C.F.R. § 219.19 (2000). This regulation is no longer in effect, see Envtl. Prot. Info. Ctr., 451 F.3d at 1017 & n.8 (“[N]ew regulations have eliminated the MIS concept . . . .”). 

This brings us to a new juncture in the management regulations that the federal land management agencies must follow.  With the new 2008 planning rules and the pending forest plans that will be promulgated under these new rules, we must be vigilant and hold the agency responsible officials accountable to the people.

Congress has consistently acknowledged that the Forest Service must balance competing demands in managing National Forest System lands.  Indeed, since Congress’ early regulation of the national forests, it has never been the case that “the national forests were . . . to be ‘set aside for non-use.’” United States v. New Mexico.  The NFMA unquestionably requires the Forest Service to “provide for diversity of plant and animal communities . . . in order to meet overall multiple-use objectives.” 

We have argued for many years that the statutes provide for equality in the management decision process for the recognition  of all resource management needs

“Thus, the NFMA is explicit that wildlife viability is not the Forest Service’s only consideration when developing site-specific plans for National Forest System lands.”  

It is great to see that the court recognizes that the NFMA is not the save the animal  habitat from the people statute that it has been abused to represent.

“Thus, as non-scientists, we decline to impose bright-line rules on the Forest Service regarding particular means that it must take in every case to show us that it has met the NFMA’s requirements. Rather, we hold that the Forest Service must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable.”

We with caution regard this statement by the court to mean that they are not going to legislate from the bench from this day forward.

“Relying primarily on Ecology Center, Lands Council specifically contends that the Forest Service erred by not verifying its prediction regarding the effect of treatment on old-growth species’ habitat with observation or on-the-ground analysis.  We disagree, and hereby overrule Ecology Center.” 

Ecology Center opened the flood gates to appeals and litigation based on the premise of look but do not touch “old growth.”   Putting into context the actual congressional intent of the statute with “agency deference” has a long way to go, but this is certainly a step in the right direction.

“We made three key errors in Ecology Center. First, we read the holding of Lands Council I too broadly.  Second, we created a requirement not found in any relevant statute or regulation. And, third, we defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors.”  

With the court recognizing that they wrongly legislated mandates on the USFS, is a great win for resource management across America.   

“Ecology Center illustrates the consequences of failing to grant appropriate deference to an agency.” 

Unfortunately, we must recognize that the deference issue is now going to be a greater hurdle in our ability to hold specific responsible officials accountable to the people when they make decisions based on personal opinion.  Proving that opinion is the prevailing driving force behind agency decisions will be very difficult.

“A number of our sister circuits agree that we are to conduct a “particularly deferential review” of an “agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise . . . as long as they are reasonable.” 

Our Constitution provides for the people to have a means of checks and balance on our government.  The trend of the courts has stood in the way of this for many years by using the term; “What is reasonable?”

“Lands Council’s briefs repeatedly suggest that the Forest Service must improve wildlife habitat but, as our discussion of the NFMA and the IPNF Forest Plan makes clear, neither the NFMA nor the IPNF Forest Plan require the Forest Service to establish that its plans will improve the habitat of a particular species.  The SFEIS defines “suitable habitat” as  habitat “that currently has both fixed and variable stand attributes for a given species’ habitat requirements.” This differs from “capable habitat,” which refers to a site’s “inherent potential . . . to produce essential habitat requirements of a species” though the site does not currently have all that a species requires.” 

We are pleased to see that the definition of “suitable habitat” takes precedence over “capable habitat.”

“Today, as we have in the past, we approve, based on the record before us, of the Forest Service’s use of the amount of suitable habitat for a particular species as a proxy for the viability of that species.”

For too long, the agency has been reluctant to manage habitat based on the “Potential” or “Capable” habitat theory. 

“eminently reasonable”  We now have a term or use of words that has a new twist on what is reasonable.  We must keep an eye on how this term will be used in the future.

NEPA

“see also Inland Empire Pub. Lands Council, 88 F.3d at 758 (noting that NEPA imposes only procedural requirements on federal agencies).”  We all know that the NEPA process has been abused for many years B. National Environmental Policy Act 1. Statutory Language And Purpose NEPA, unlike the NFMA, does not impose any substantive requirements on federal agencies—it “exists to ensure a process.”  

 It is now recognized by the most NEPA friendly court in the nation that the statute is not all encompassing in resource management on public lands.

“But none of NEPA’s statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS.  Thus, we hold that to the extent our case law suggests that a NEPA violation occurs every time the Forest Service does not affirmatively address an uncertainty in the EIS, we have erred.”  Wow!  What an admission to come from this court!

“The Forest Service did not fail to conduct a “full and fair discussion” of environmental impacts as NEPA requires by not discussing these articles brought to its attention by Lands Council because they did not raise uncertainties about its methodology.” 

We are reminded here of the importance to insure that the monitoring of the intended results of the planning projects do not limit themselves.  The adverse consequences that the courts will see fit to ignore can prevent us from sensible multiple use management.

“40 C.F.R. § 1502.1. The EIS must include statements on: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 

The law speaks for itself, but this particular section of law has been interpreted to death. 

42 U.S.C. § 4332(C). We hold that when the Forest Service provides a full and fair discussion of environmental impacts and its EIS includes these necessary components, the Forest Service has taken the requisite “hard look.” 

Many times we find ourselves asking why we could not discuss certain aspects of a planning process?  Here the law states that “full and fair” discussion is an essential compontent.  When you get sideboards on your planning process, ask about this LAW!

See, e.g., 40 C.F.R. § 1500.1(b) (providing that the agency “must insure that environmental information is available to public officials and citizens” and this “information must be of high quality” as “[a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA”) The Forest Service does not, however, have the burden to anticipate questions that are not necessary to its analysis, or to respond to uncertainties that are not reasonably supported by any scientific authority. 

To some extent the opinion is contradictory in nature.  On one hand we must allow outside scrutiny, while at the same time, deference and the agency preference precludes that scrutiny.

We reaffirm, however, that the Forest Service must acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exist.

We many times have insisted that the scoping process of the planning projects is where we must identify the inconsistencies in the planning process.  The court apparently agrees to some extent!

 Finally, this approach also acknowledges that “[w]e are not free to ‘impose on the agency [our] own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.’” Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001) (alteration in original) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978)).  Nor may we impose “procedural requirements [not] explicitly enumerated in the pertinent statutes.” Wilderness Soc’y v. Tyrrel, 918 F.2d 813, 818 (9th Cir. 1990). 

It is refreshing to see that the court recognizes that as far back as at least 1990, they have been legislating from the bench, or ignoring that error.

“To always require a particular type of proof that a project would maintain a species’ population in a specific area would inhibit the Forest Service from conducting projects in the National Forests. We decline to constrain the Forest Service in this fashion. Were we to do so, we may well be complicit in frustrating one or more of the other objectives the Forest Service must also try to achieve as it manages National Forest System lands. See 16 U.S.C. § 528 (noting Congress’ policy that the National Forests are to be “administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes” 

“Analysis Paralysis” is now recognized in part by the court.  We can also celebrate that the court here again recognizes it cannot legislate from the bench.

Other Case Law

To the extent we suggested in Idaho Sporting Congress v. Thomas, 137 F.3d

1146 (9th Cir. 1998), that habitat cannot be used as a proxy when there is an

“appreciable habitat disturbance,” id. at 1154, Thomas is overruled.  The precedence set in this and other cases that inhibit our ability to manage for multiple use by focusing exclusively on “Wildlife Habitat” now may see its demise.

“The Forest Service may meet wildlife “viability requirements by preserving habitat, but only where both the Forest Service’s knowledge of what quality and quantity of habitat is necessary to support the species and the Forest Service’s method for measuring the existing amount of that habitat are reasonably reliable and accurate.”  Each time we see the court making an accurate decision in regards to the law, the word “reasonable” gets injected to insure that the door is left open.

See Marsh, 490 U.S. at 378 (describing arbitrary and capricious review). We have the court defining and using a narrow interpretation of the terms “Arbitrary and Capricious” by setting Marsh as the threshold.

See Rittenhouse, 305 F.3d at 972-73 (“We hold that under the facts of this case, the Forest Service’s use of habitat as proxy . . . was arbitrary and capricious.”  We have a clear message here from the court in the term “Habitat” is the foundation of the law and that foundation is not limited to benefit neither environment nor multiple use disproportionately.

“The National Forest Inventory and Analysis (FIA) program, “provides a congressionally mandated, statistically-based, continuous inventory of the forest resources of the United States.”  The FLA is a congressional law that the courts and the environmental organizations have hidden or ignored.  The court recognizes the congressional intent.

“Forest pathologist v. forest ecologist” It is ironic that the environmental obstructionists have created their own expert “Forest Pathologist” that is not recognized by the agency or the court. 

“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”  Everyone must remember this opinion by the court when we find ourselves in a position to challenge the opinion of a responsible line official in the planning process.  If we are going to make that challenge, we will have our work cut out for us.

“Lands Council also contends, more generally, that the Forest Service did not cite adequate evidence that the Project will improve the habitat of old-growth species and did not adequately examine adverse impacts from logging within old-growth stands. We disagree.” 

The court again recognizes that the management for unknown potentials allows for the expectation for the court to legislate rather than interpret the law.

Turning first to the significance of environmental injury, the Supreme Court has instructed us that “[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” 

Many times we try to include the human environment in this broad interpretation of the law to no avail.  The court reaffirms this miss use of the law, and we must work to get some relief in the process to include the human environment.

But the Supreme Court has not established that, as a rule, any potential environmental injury merits an injunction. Indeed, in Amoco Production Company, the Supreme Court concluded that economic concerns—the loss of $70 million that an oil company had committed to exploration—outweighed environmental concerns when the claimed injury to subsistence resources from exploration “was not at all probable.” Consistent with Amoco Production Company, we have held that the public interest in preserving nature and avoiding irreparable environmental injury outweighs economic concerns in cases where plaintiffs were likely to succeed on the merits of their underlying claim, Our law does not, however, allow us to abandon a balance of harms analysis just because a potential environmental injury is at issue. 

Perhaps we can see light in the end of the tunnel and see relief in the elevation of ecological factors over other multiple uses that are protected by law.

This case has been working back and forth through the courts resulting in the court recognizing the error that has been made.  We may also be seeing the trend to minimize the credibility that the environmental obstructionists have.

Forest Management Under Attack

HR 2016 was passed

    We are surprised that the bill came out of committee. This bill is another way of getting around the Wilderness Act by designating land under the venue of other protection.  However, these lands are equally managed for the intent of wilderness designation, which removes resource management.  With the vast destruction of timber resources across the west, it is unknown why our representatives would not fight this bill. 

   We cannot afford to allow those in Washington that are un-informed to dictate the management planning for our forests.  The lack of our ability to manipulate vegitation in the name of forest health is under attack with HR 1975 and everyone that lives in Montana must step up and help educate those who do not understand the resources that we are losing to fire and insects.

FOREST HEALTH AT RISK

    We are nearing a double trouble time of year for Montana Forests.  Epidemic insect infestations are in many areas.  The health of our forests continue to be under stress.  We are now approaching the perilous fire season.  Early rains this summer have increased fuels.  Public land forest management continues to be neglected and the single most effective tool for healthy forests sits idle in many areas.  We must continue to fight to insure that the management our forests is for the future benefit of all the people.   

ROADLESS AREAS UP FOR REVIEW

    We have begun the process of building consensus on returning the management of these areas to the people of Montana.  To learn more on how you can help, contact us.   

    Inventoried Roadless areas are home to many resources.  With the endemic onslaught of timber disease here in Montana, it is very important that we make every effort to capitalize on the management opportunity of these resources. The future of our Montana Forests depend on proper management of all our resources on multiple use lands.  We must take this opportunity and insist on proper management of these resources.

    Logging is part of our heritage and a large part of our economy here in Montana.  As timber is a renewable resource, we must continue to fight for the ability to harvest timber, and to manage our forests for future generations.  A healthy forest requires a diverse age class. The harvesting of timber brings the most return to the people of the United States.  Public lands are to be managed for these resources, and Montana Multiple Use Association continually lobbies and supports sustainable resource management.

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