Forest in court: Malheur deals with lawsuits

Forest in court: Malheur deals with lawsuits

Here's a look at the status of eight lawsuits filed against the Malheur National Forest. A ninth lawsuit, which concerns grazing allotments in the forest, was filed in May by Oregon Natural Deserts Association. The Forest Service is working on a reply.

1. League of Wilderness Defenders v. Forest Service (Flagtail Hazard Tree CE) (Civ. Case No. 03-171-HA) The Forest prepared seven hazard tree removal timber sales (1.7 MMBF) along roads in the Flagtail Fire area under a categorical exclusion. U.S. District Judge Ancer Haggerty granted a preliminary injunction on Feb. 14, 2003, because "the magnitude of this project should have prompted the Forest Service to conduct an EA [environmental assessment] so that the environmental impact of the proposed actions could be evaluated."

In March 2004, the Forest Service prepared the Flagtail Fire Recovery Final Environmental Impact Statement (FEIS), which covers the removal of these hazard trees. With the publication of the Record of Decision for the recovery project, the agency moved forward with removal of the hazard trees. Plaintiffs went to the judge on April 12, 2004, who ruled his injunction was still in place.

However, the judge did not enjoin the Flagtail Salvage Sale and other sales prepared under the FEIS (Civ. Case No. 04-488-HA below). During the operation of the Flagtail Salvage Sale, some 65 enjoined trees were felled in order to ensure safe operation and the purchaser cut another 32 by mistake. The agency failed to inform the judge before this felling took place. Since the MNF is enjoined from felling these roadside hazard trees, it was required to prepare weekly reports on the condition of these trees. The requirement to provide weekly updates was lifted January 18 due to limited access into the area and lack of sale activity in the area.

The court issued its final judgment February 18, stating the Forest Service violated the National Environmental Policy Act (NEPA) because the timber sales at issue could not reasonably be construed as road repair and maintenance and were inconsistent with the examples in the handbook. The Forest Service has completed new NEPA for the felling of the hazard trees in this area and is awaiting court approval.

2. Oregon Natural Deserts Association (ONDA 2) v. Forest Service (Civ. Case No. 03-213-KI)Plaintiffs allege the agency's management of its grazing program is violating the National Wild and Scenic Rivers Act and other laws by failing to "protect and enhance" the Malheur and North Fork Malheur river corridors' "outstandingly remarkable values."

On June 10, 2004, U.S. District Judge Garr King denied plaintiff's motion for preliminary injunction because of effects of a last-minute injunction upon the affected ranchers. However, he recognized the dire need for management of grazing on these public lands.

Because of Judge King's heavy workload the case was reassigned to U.S. District Judge Robert E. Jones and court heard oral arguments March 29. Arguments centered on whether Annual Operating Instructions (AOIs) were considered "Final Agency Actions" subject to litigation. Judge Jones on June 20 dismissed the case, ruling Annual Operating Instructions are not final agency actions and therefore he lacks jurisdiction. This case has been appealed to the Ninth Circuit Court by ONDA. No court date has been set.

3. League of Wilderness Defenders v. Forest Service (W2) (Civ. Case No. 03-272-HO)Plaintiffs have raised concerns over the quality of planning under NEPA for the W2 Timber Sale. There were no bidders on the original sale offering. MNF is in the process of filing a response to the plaintiffis complaint. No court date has been set.

4. Oregon Natural Deserts Association (ONDA 3) v. Forest Service (Civ. Case No. 03-381-HA)Plaintiffs allege the agency is violating the National Forest Management Act (NFMA) and other laws by failing to insure that ongoing livestock grazing practices on the Murderers Creek and Blue Mountain grazing allotments meet PACFISH and INFISH standards. At the July 15, 2004, preliminary injunction hearing, Judge Haggerty referred to Judge King's decision and gave similar rational and concerns. He also did not enjoin this year's grazing on the affected allotments. MNF filed its opening brief in December 2004; the plaintiffs filed their reply brief in January 2005, and MNF filed its reply to their reply in February, then oral arguments were heard March 11. Arguments included whether the AOI was a final agency action and whether grazing was retarding attainment of riparian management objectives. Judge Haggerty heard two hours of oral arguments and did not rule from the bench, but did eventually dismiss the case, ruling Annual Operating Instructions are not final agency actions and therefore he lacks jurisdiction.

5. League of Wilderness Defenders v. Forest Service (Flagtail FEIS) (Civ. Case No. 04-488-HA)Plaintiffs have raised concerns over the quality of planning under NEPA for four timber sales covered under the Flagtail Fire Recovery FEIS, and for use of the new (June 4, 2003) emergency situation determination that allows actions to go forward without waiting for the results of project appeals filed under 36 CFR 215 (a 75-day savings in delay). The new determination allows for situations that "would result in substantial loss of economic value to the government." Plaintiffs failed in their attempts for injunction. Oral arguments on the merits were given on August 12, 2004. The court found in favor of the plaintiffs on the following four points.

• MNF was "arbitrary and capricious" under NEPA to rely on DecAid given the limitations of the tool; and there was inadequate disclosure of its shortcomings.

• MNF was "arbitrary and capricious" in relying on DecAid to establish MIS species viability.

• Cumulative effects

Roadside hazard trees - cumulative impacts analysis was inadequate;

Adjacent private land salvage - analysis was inadequate.

Where future fires and suppression activities might occur - analysis was inadequate.

• Cumulative effects of grazing on burned landscapes - analysis was inadequate. The court found the Environmental Impact Study (EIS) inadequate in its handling of the scientific controversy surrounding salvage after fire.

The court found in MNF's favor on the three points:

• The promulgation of the new appeal regulations and the application of the emergency waiver.

• The Scott Guidelines relating to tree marking.

• Cumulative affects of past fire suppression actions was adequately disclosed.

The MNF has petitioned the court to allow the restoration activities described in the EIS to continue in light of his ruling. Judge Haggerty has released the restoration activities from the injunction, but has not lifted the injunction on the remaining harvest activities or the hazard tree felling.

6. League of Wilderness Defenders v. Forest Service (Monument Fire FEIS) (Civ. Case No. 04-639-HA) Plaintiffs raised similar claims as Flagtail, including the quality of planning under NEPA for two timber sales covered under the Monument Fire Recovery FEIS, and for use of the new emergency situation determination. Plaintiffs have failed in their efforts to have the sales enjoined. Harvest of the Monument salvage had been completed. Judge Haggerty issued his ruling in favor of MNF on the preliminary injunction. MNF is in the process of preparing a response. A court schedule has not been set.

7. League of Wilderness Defenders v. Forest Service (High Roberts Salvage) (Civ. Case No. 04-1595-KI) and Forest Service Employees for Environmental Ethics v. Forest Service (Civ. Case No. 04-1628-KI) Two lawsuits were filed against the High Roberts Salvage sale. Judge King combined the two complaints into one hearing. Plaintiffs raised concerns over cumulative effects leading to extraordinary circumstances, validity of the Scott Guidelines, harvest of live trees over 21-inch diameter in violation of the Eastside Screens, and the establishment of the Categorical Exclusion (CE) category itself.

Oral arguments were heard Nov. 17, 2004. Judge King issued his opinion Dec. 9, ruling the plaintiffs were not likely to prevail on their claims against the establishment of the CE category or validity of the Scott Guidelines; however, he said the plaintiffs did raise good questions on extraordinary circumstances, but it was not enough to issue an injunction.

Judge King did rule the plaintiffs were likely to succeed in their claim that MNF was harvesting live trees over 21-inch diameter in violation of the Eastside Screens and issued an injunction. The High Roberts Salvage has been remarked to exclude trees with green needles in accordance with court issued instructions. The plaintiffs are then afforded an opportunity to review the marking and provide comments prior to offering the sale.

8. Forest Service Employees for Environmental Ethics (FSEEE), and Dan Becker v. Forest Service (Easy Fire Salvage) (Civ. Case No. 05-553-HA) This lawsuit was filed against the Easy Fire Recovery Environmental Impact Statement. Plaintiffs raised concern over reliance on the Scott Guidelines to determine future fire related mortality would result in harvest of "live" trees violating the Eastside Screens. Plaintiffs also claim MNF failed to disclose scientific uncertainty associated with the Scott Guidelines. A court schedule has not been set.

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