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Major court decision eliminates FS trail maintenance
#22339 03/27/12 11:19 AM
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On Mar 19th, the 9th Circuit Federal Court, in a decision called
"Sequoia Forestkeeper v Thomas Tidwell" ruled against the use of the "categorical exclusion" in allowing routine forest maintenance activities. This is a national decision. What has happened, is that it has caused the FS to stop all routine maintenance activities in all wilderness areas in the US.

Up to this point, the way things worked, was that there was a provision in the law that allowed certain categories of things to be done, without going through the process of public comment and potential protest of the action. Generally, this would require a proposed action to be posted for 30 days for comment/protest, then a 45 day period during which responses would be created and sent out, and a potential appeal could be filed. So a minimum of 2-1/2 months.

So if a tree falls across a trail, a ranger could not simply go up and cut it out. They would need to go through the process.

If rocks tumbled onto the trail, FS workers could not remove them.

As a result of this, there is nationwide confusion, and the FS has basically shut down all such work until they are given direction from the Wash, DC office.

Local (CA) word from the agency people I work with, is that the coming summer season will be lost, and no projects will be done. The group I work with had 11 week-long backcountry wilderness trail projects scheduled. It looks like that is all cancelled.

Re: Major court decision eliminates FS trail maintenance
Ken #22340 03/27/12 11:44 AM
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That does it for me.

Twice in the same week: I can no longer side with environmentalists. Wilderness Act protections have gone to hell.

My Sierra Club membership is terminated.

Re: Major court decision eliminates FS trail maintenance
Ken #22345 03/27/12 01:17 PM
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Wow! I thought it was bad enough everything we had to go through to work on the trail as it is! This is bad enough news for everyone but worse for the Forest Service in general. They are so under funded and projects are hard enough to get done already!

I'm wondering how this is going to effect the work around Reds Meadow with thousands of trees down?

Re: Major court decision eliminates FS trail maintenance
Steve C #22350 03/27/12 02:39 PM
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Originally Posted By: Steve C
That does it for me.

Twice in the same week: I can no longer side with environmentalists. Wilderness Act protections have gone to hell.

My Sierra Club membership is terminated.


Steve - why do you think the Sierra Club was involved in this action? As best I can tell, the case was brought by the following organizations. Are any of them really the SC?

SEQUOIA FORESTKEEPER; CONSERVATION CONGRESS; EARTH ISLAND INSTITUTE; OREGON WILD; CASCADIA WILDLANDS; OUACHITA WATCH LEAGUE; UTAH ENVIRONMENTAL CONGRESS; WESTERN WATERSHEDS PROJECT; AND WILDEARTH GUARDIANS
PLAINTIFFS

Re: Major court decision eliminates FS trail maintenance
KevinR #22351 03/27/12 03:04 PM
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> Steve - why do you think the Sierra Club was involved in this action?

I should probably educate myself more on this lawsuit, but I named the SC because it is the grandfather of all the above, and I think we can be pretty sure those groups associate and consult with the SC on these things.

Edit: Bingo! Here you go: google the case, there's Sequoia ForestKeeper. Executive Director: Ara Marderosian. Then, "Officers of the Kern-Kaweah Chapter, Sierra Club" ...Secretary: Ara Marderosian mad


Last edited by Steve C; 03/27/12 03:13 PM.
Re: Major court decision eliminates FS trail maintenance
KevinR #22352 03/27/12 03:15 PM
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If you dig a little, you will see that there are a lot of cross associations.

Mr. Ara Marderosian is the executive director of Sequoia Forestkeepers, he is also the Secretary of the Kern Kaweah Sierra Club. Marderosian is also associated with Earth Island
http://www.martenlaw.com/newsletter/20090305-env-groups-rights-limited
http://www.kernkaweah.sierraclub.org/officers.html

Michael J. Connor, Ph.D. of the Western Watersheds Project has been associated with Sierra Club
http://www.energy.ca.gov/sitingcases/iva...ve_TN-52447.PDF

So maybe not the Sierra Club, but they certainly are all partying together.

Re: Major court decision eliminates FS trail maintenance
RoguePhotonic #22353 03/27/12 03:32 PM
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Originally Posted By: RoguePhotonic
Wow! I thought it was bad enough everything we had to go through to work on the trail as it is! This is bad enough news for everyone but worse for the Forest Service in general. They are so under funded and projects are hard enough to get done already!

I'm wondering how this is going to effect the work around Reds Meadow with thousands of trees down?


I had the same thought.

I'm thinking that those that are down outside of wilderness will be cut, and those inside will not.

I'm also thinking that the trees/branches that Richard noted coming down in the wind event on the main trail are going to be left there, because that IS in wilderness.

Re: Major court decision eliminates FS trail maintenance
Ken #22354 03/27/12 04:15 PM
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Here is the full bench order, from Justia.com. Signed by Uncle Larry.


Verum audaces non gerunt indusia alba. - Ipsi dixit MCMLXXII
Re: Major court decision eliminates FS trail maintenance
Ken #22357 03/27/12 07:11 PM
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So who is going to get sued when the first injury results from all of the debris? Is the next 'logical' step closure?

Every year, I admire all of the fresh saw cuts on all of the Winter's fallen logs, out on the PCT where I hike. No matter when I start the season, it seems that the trail maintenance teams have been there first. Currently, this same area is a candidate for designated "Wilderness"....


The body betrays and the weather conspires, hopefully, not on the same day.
Re: Major court decision eliminates FS trail maintenance
Bee #22361 03/27/12 08:02 PM
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Ok, this peeves me and that this is about the nicest words I could come up with instead of cussing.
I have had it with the 9th circuit court of appeals, this is the tops, they don't know their you know what from the you know what in the ground.
I am also frustrated once again with the Sierra Club, so much for defending their occasional common sense.
Irrational law suits burn everything and extremist behavior is a poor excuse for our wilderness protection. Nothing and nobody is being protected,including jobs and/or access. But the worst part of this all is, they totally ignore the wilderness itself.
Breath...
Thanks for the information.


"If you don't have a strategy, you're part of someone else's strategy."
-- Alvin Toffler
Re: Major court decision eliminates FS trail maintenance
Jonishiker #22373 03/28/12 07:39 AM
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Makes me wonder how many of these people (and that goes for ALL involved, both sides of the case, the judges, etc) really get out into the Sierra, or anywhere, with any regularity. I just don't see or hear about many David Brower's out there.

It's sadly interesting to see the original visions of Muir ("Climb the mountains and get their good tidings. Nature's peace will flow into you as sunshine flows into trees. The winds will blow their own freshness into you, and the storms their energy, while cares will drop away from you like the leaves of Autumn." ) ("I only went out for a walk and finally concluded to stay out till sundown, for going out, I found, was really going in." ) morphed into such extreme positions.

I wonder what the beef will be once all the step-arounds and new paths to avoid the uncleared obstacles (on the more populated trails) start to erode everything else.

I have the rulings from the stock case printed out, waiting to be read more thoroughly. One of my co-workers owns the Rainbow Pack Station in South Fork (Bishop Creek), and says the ruling may completely destroy their business. Makes me think that sneaking into the backcountry, sans permit -- because those will be obsolete when they close it off entirely -- might happen in my lifetime.


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Re: Major court decision eliminates FS trail maintenance
Ken #22376 03/28/12 07:59 AM
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Ken,

Why is this a national decision? Aren't the rulings of the 9th Circuit generally limited to its geographic area?

Last edited by wbtravis; 03/28/12 07:59 AM.
Re: Major court decision eliminates FS trail maintenance
MooseTracks #22377 03/28/12 08:54 AM
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Originally Posted By: MooseTracks
Makes me think that sneaking into the backcountry, sans permit -- because those will be obsolete when they close it off entirely -- might happen in my lifetime.


Awwwwwww yeah! Ahead of my time.

Re: Major court decision eliminates FS trail maintenance
wbtravis #22380 03/28/12 10:16 AM
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Originally Posted By: wbtravis
Ken,

Why is this a national decision? Aren't the rulings of the 9th Circuit generally limited to its geographic area?


In my limited understanding, I would have thought that. However I think since this involves a national rule of a federal agency, when they invalidate it, it applies everywhere. Best guess. The actual wording:

Quote:
This action challenges two of the public notice, comment, and administrative appeal regulations that the defendant United States Forest Service ("Forest Service") promulgated in response to the Forest Service Decisionmaking and Appeals Reform Act of 1992, Pub. L. 102-381, Title III,§ 322, 106 Stat. 1419 (16 U.S.C. §1612 note) (October 5, 1991) ("ARA"). The challenged provisions are codified at 36 C.F.R. §§215.4(a) and 215.12(f) (2003).1 This Court has previously addressed the Forest Service's jurisdictional challenges to this action. In this order, this Court shall address the merits of Plaintiffs' claims. For the following reasons, this Court finds that Sections 215.4(a) and 215.12(f) are manifestly contrary to both the plain language of the ARA and its purpose. Accordingly, this Court GRANTS judgment in favor of Plaintiffs. This Court further GRANTS Plaintiffs their requested relief of a nationwide injunction to enjoin the Forest Service from implementing the invalidated regulations.


Quote:
Pursuant to this statute, this Court must hold unlawful and set aside
the regulations that were impermissible interpretations of their governing statute. A geographicallyrestricted
injunction is insufficient, as the Forest Service has no authority to continue to implement ultra
vires regulations in any district of the United States. See also, Nat. Resources Def. Council v. EPA, 966
F.2d 1292, 1304 (9th Cir. 1992); Asarco v. EPA, 616 F.3d 1153, 1162 (9th Cir. 1980). Accordingly, this
Court grants Plaintiffs' request for a nationwide injunction of Sections 215.4(a) and 215.12(f).

Re: Major court decision eliminates FS trail maintenance
Ken #22386 03/28/12 12:39 PM
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Hmmm... digging into this some more, this case is all about logging and forest fire fuel reduction. The case was brought apparently in response to the F.S. bypassing the comment and appeals process for such operations.

I doubt the court intended to include trail maintenance operations in the ruling, and it is likely the environmental groups did not either.

From an environmental site, earthjustice.org:
Quote:
In 1992, Congress passed the Appeals Reform Act, § 322, Pub. L. No. 102-381, 106 Stat. 1419 (1992), which required the U.S. Forest Service and the Secretary of Agriculture to allow the public to help guide how logging and other projects take place on our National Forests. Congress required the Forest Service to inform the public about pending projects, let the public comment on proposed projects so that they could be improved or rejected entirely, and required the Forest Service to allow administrative appeals contesting projects before they were implemented.
...
Limiting the public's right to participate in, and ultimately to appeal, Forest Service decisions is not necessary to reduce fire danger in the National Forests.
...
The Appeals Reform Act expressly allows the Chief of the Forest Service to ensure that truly needed projects go forward despite pending appeals by declaring "that an emergency situation exists."

I sure hope Forest Service administrators are not just taking ALL their marbles (projects) off the table as a knee-jerk response to the ruling.

Edit: Can anyone find (online) the actual wording of the Appeals Reform Act of 1992, and especially the two sections: 215.4(a) and 215.12(f) ?

Last edited by Steve C; 03/28/12 12:42 PM.
Re: Major court decision eliminates FS trail maintenance
Steve C #22392 03/28/12 03:56 PM
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I dunno. If it's true that USFS has shut down all trail maintenance, then it seems like it's overreacting. I would think that each forest could publish a general plan that includes the specifics of maintaining their trails and specifically limiting such work to clearing trees, digging waterbars etc, and clearly excluding building new trail or other disturbances or new construction.

While there's some understandable gnashing of teeth at the effect of this decision, it was brought because of an obvious overreach by the USFS. They tried to include some pretty big projects (timber cutting under the ruse of "emergency fuel clearance") in a blanket exemption using the categorical exclusion rule. USFS was abusing the process and three courts found against them.

NPS, for instance, will write up a categorical exclusion if they want to reroute a trail for up to several hundred feet (don't know the exact number). But anything beyond that and an EA or EIS has to be done. Which is to say there are rules in place to recognize the difference between a large and a small project. It appears USFS tried to drive a tank through what was intended as a narrow exemption and lost.

So who do you blame when stuff like this happens? The "extreme" environmentalists who seem to be trying to hold agencies to existing regulations or the USFS, who seem to be ignoring the stated intent those regulations?

I'm willing to bet there's a stack of letters and meetings over the years from the environmentalists asking USFS to back off -- and that those requests only applied to the egregious violations such as timber harvesting.

Reading the decision, it specifically invalidated the regulation for all of USFS. I would think they now have to negotiate with the groups who brought the suit on what constitutes a remedy. Might be worth writing the lead group to find out the status and bring up the downside. Maybe they're considering separating things like minor trail maintenance to deal with the real issue. (this entire paragraph is a huge guess, but based on what's happening in the HSHA lawsuit).

Hmmm again. Reading the earthjustice site makes it seem that all that's happened is that USFS has to give the public the right to appeal its projects. By using the categorical exclusion, USFS was denying that right. It would make sense that, for trails, USFS would just have to write up a maintenance plan each summer as I suggested above. They could even publish it for comment to be extra safe.

George


None of the views expressed here in any way represent those of the unidentified agency that I work for or, often, reality. It's just me, fired up by coffee and powerful prose.
Re: Major court decision eliminates FS trail maintenance
George #22396 03/28/12 08:11 PM
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I largely agree with George's interpretation, and that is the word around...the USFS was trying to abuse the authority, and got caught.

Interestingly, the case specifically mentions that there had been a previous case that was nearly identical, in which the USFS lost at every level, but was overturned by the US Supreme Court....not on the issues, but because they determined the plaintiff did not have the standing to bring suit.

so, you could say the FS was on notice.

The case mentions several specific projects. The first one is this:
project

It is of interest, because my group was apparently going to be doing most of the work. Hmmmm.

As I look at it, I don't see the abuse there. I actually know the people involved on the agency side, and they are straight shooters.

But I have another take on all this. It seems like this categorical exclusion is a generally bad idea. In my mind, doing what George suggests, where one creates a description of routine work to be done, and puts it up for comment, etc...actually creates an opportunity for public education and even involvement.

You get the sense that there is a desire to hide the "sausage making" from the public. I think that makes sense and is appropriate at Disneyland, where you are generating an artificial creation. But there is nothing more real than the forest, and everything we do out there is something that we should all know about and understand, as stewards. If we are ignorant, we cannot be effective stewards.

For the vast majority of routine work, I would think there would be little controversy, and when there is an objection, it provides an opportunity for education and collaboration.

Re: Major court decision eliminates FS trail maintenance
Ken #22428 03/29/12 04:55 PM
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Ken makes good points on everything. The categorical exclusion (CatEx)was brought in to (I think...) just find a way to do small routine projects without a lot of paperwork. It really is a timesaver. You've always got routine trail maintenance and need some way to just be able to do it with the fewest hoops possible. But, in NPS anyway, the emphasis is on small. I was involved in designing and getting a new ranger cabin built in Kings. Since it was going to be the same size as the old one and put on the exact same site, we looked at CatEx as the way to do it quickly. It was decided, though, that it was really too big a project with too many questions and potential impacts on wilderness (should it be replaced in the first place; do we need ranger stations?? etc.), so an EA was written. Slowed it down by years, but was the right way to go.

CatEx could have worked but,if someone objected, the whole thing could have blown up like this USFS case. It is a sausage thing though. I'm hopeful they'll just come up with some blanket announcement for public input on small and related projects with a comment period of 30 days or something; and standards on what constitutes a major project requiring better analysis and public input.

g.


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Re: Major court decision eliminates FS trail maintenance
George #22431 03/29/12 05:37 PM
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This just in:
=====================

File Code: 1570 Date: March 29, 2012
Route To:

Subject: Adverse Ruling in Sequoia ForestKeeper v. Tidwell

To: Regional Foresters, Station Directors, Area Director, IITF Director, Deputy Chiefs and WO Directors



This letter documents instructions from the Forest Service Washington Office for operation of
36 CFR §215 pursuant to the March 19, 2012, judicial ruling in Sequoia ForestKeeper v. Tidwell. The District Court found that Forest Service regulations exempting project decisions from notice, comment, and appeal when they are categorically excluded from analysis under the National Environmental Policy Act (NEPA) are in violation of the Appeals Reform Act (ARA) and enjoined the Forest Service from following these regulations. The Forest Service will immediately comply with the District Court's Orders and Injunction. Until new instructions are issued by this office, or the Agency issues regulations implementing Section 428 of the Consolidated Appropriations Act of 2012 and addresses the Court's ruling, pursuant to the Court's Order the following instructions apply:

First, the District Court granted plaintiffs' request for a nationwide injunction, and enjoined the Forest Service from implementing 36 CFR §§ 215.4(a) and 215.12(f). These regulations had exempted all categorical exclusions from notice, comment and appeal.

Therefore, effective March 19, 2012, all units shall refrain from applying these exemptions.

Second, the Forest Service will offer notice, comment and administrative appeal opportunities for categorically excluded decisions as provided for in the District Court's Order. The District Court held that "[t]o comply with the ARA, the Forest Service should have promulgated regulations that preserved the comment, notice, and appeal for any decisions subject to administrative appeal prior to the proposed changes in 1992." (Merits Opinion p. 11). The opinion notes "Prior to 1992, the Forest Service "provided a post-decision administrative appeals process, 36 C.F.R. pt. 217, for agency decisions documented in a 'decision memo,' 'decision notice,' or 'record of decision.'" (Merits Opinion p. 2).

Therefore, all units shall provide notice, comment and appeal opportunities for all projects and activities implementing land and resource management plans that are "documented in a 'decision memo,' 'decision notice,' or 'record of decision.'"

While the 1992 regulatory standard for appealability is quite clear that "Only decisions documented in a Decision Memo, Decision Notice, or a Record of Decision are subject to appeal," 36 C.F.R. 217.3 (1992) (emphasis added,) the Forest Service seeks to diminish the potential for conflict while operating pursuant to the Court's order.

Therefore, line officers are instructed to write decision memos for any proposed action or activity that seeks to authorize the sale of timber, and offer the opportunity for notice, comment, and appeal on these proposed actions, as directed above. Further, line officers at their sole discretion may offer notice, comment and appeal opportunities for individual projects or activities that do not require a decision memo. Such instances are expected to be infrequent and would be offered only when the line officer deems appropriate or necessary to promote public confidence in agency decision making. As stated above, units will provide notice, comment, and appeal opportunities for all projects and activities that are documented in a decision memo.

Third, questions have already been raised concerning whether the injunction will affect ongoing activities. The Agency believes that retroactive application of the Court's Order would impede the necessary daily functioning of the Agency and could upset the settled expectations of permittees, contractors, and members of the public or other groups interested in using National Forest System land by halting projects already underway. In prior litigation involving these same rules (Earth Island Institute v. Ruthenbeck) before the same District Court, the court concluded that "a retroactive remedy would seem to plunge the Forest Service headlong into a crippling morass of confusion. The [injunction], therefore, will apply to Forest Service projects and decisions post-dating the...docketing of the...Order."

Therefore, implementation of decisions that were finalized prior to the Court's March 19, 2012 Order need not be halted or subjected to notice, comment and appeal, and may proceed as planned.

Fourth, for categorically excluded projects and activities currently under development, units should not assume that NEPA "scoping" for the purposes of 36 CFR 220.4(e)(1) will necessarily satisfy the requirements for notice and comment under the Court's injunction. If legal notice of the opportunity to comment has been published, and comments have been accepted in the same or similar manner as that described in 36 CFR 215.6(a) (regarding Environmental Assessments), units need not repeat notice and comment efforts.

Finally, we recognize that these circumstances represent a significant burden and will in many instances delay implementation of needed and valuable management activities or create substantial hardships for users of the National Forest System. This is regrettable, but immediate compliance with the Court's Order is imperative. The agency has and will continue to confer with the Office of the General Counsel and Department of Justice concerning the agency's legal options.

Additional information will be provided as it becomes available. Any questions regarding this direction should be directed to Deb Beighley at 202-205-1277, or Joel Strong at 202-205-0939.


/s/ Thomas L. Tidwell
THOMAS L. TIDWELL
Chief



Re: Major court decision eliminates FS trail maintenance
Ken #22451 03/29/12 10:00 PM
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I think people are reading more into this than what's really here. This should not affect basic trail maintenance activities that have always been exempt, although they will be more likely to notify the public and accept comments on their decisions. I don't see any time requirements for documenting categorical exemptions, so the only delay will be drafting and publishing a decision memo. This is not the same as the Environmental Assessment process or EIS process with specific time limits.

This applies nationwide because this is a legal decision regarding how FS policy implements NEPA everywhere. They specifically mention sale of timber, but I don't see any mention of commercial pack operations in this letter. This change just opens up all activities covered by land management plans to more review - probably too much review and paperwork, but it's not clear where this will go.

As mentioned in posts above, they've been pushing the law and they got caught. A Whitney example is the removal of the toilets and implementation of the wag bag program without completing a decision memo. They just did it without finishing the process.

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