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USFS vs. your ability to sue them

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Emily Guerin | Mar 21, 2013 05:00 AM

In 2001, a week before George W. Bush took the oath of office, the Forest Service dropped a bombshell. It released the 1,800 page Sierra Nevada Framework, a plan for how to manage 11.5 million acres of Sierra Nevada forests to protect the California spotted owl, reduce wildfires and protect habitat. Unlike previous plans, which prioritized timber harvests, restoring the health of the Sierra Nevada was the primary goal of the plan (check out HCN’s 2001 special issue on the Framework for more details).The Forest Service had spent eight years and millions of dollars on the document, which industry groups quickly attacked for its limits on logging, ranchers criticized for protecting bird habitat at the possible expense of cattle, and cabin-owners protested for limiting when they could camp. The Bush administration made quick work of sweeping aside what was supposed to be a science-based document and writing its own version, which was released in 2004. Then, incoming Forest Service chief Dale Boswoth quickly dispatched the signer of the Framework, California’s Regional Forester Brad Powell, to the hinterlands of Montana.

National forest outside Lake Tahoe, CA
National forest outside Lake Tahoe, CA

After such a tortured process, it’s ironic that the U.S. government is now arguing that the Framework is simply a planning document with no real impacts on the ground, meaning environmental groups do not have legal grounds to challenge it.

This is the line of reasoning the feds’ lawyers will push when U.S. Forest Service vs. Pacific Rivers Council hits the Supreme Court this fall. The debate--who has the right to sue over a forest plan and when--dates back to 2005, when Pacific Rivers Council sued the Forest Service over the Bush-era Framework, arguing that it did not do enough to protect watersheds and fish. Many others piped up with complaints about the new plan, too: it allowed too many new roads, would more than double the amount of logging in the Sierra and sacrifice big trees, and it favored logging over prescribed burns to reduce the risk of wildfire. PRC’s lawsuit was one of many filed at the time, but because of numerous appeals by federal lawyers, it was the only one to make it to the Supreme Court. The PRC lost its first case, but won the appeal on substance: The 9th Circuit Court held that the forest plan violated the National Environmental Policy Act by not considering impacts on fish. Now that the government has appealed and the case is headed to the Supreme Court, the questions the justices will consider are not only substantive, but theoretical: is the PRC even allowed to challenge a forest plan?

In lawyer-speak, the issue at hand is “legal standing,” which, in plain English, means the person bringing the case has been harmed by the person they’re suing, and a favorable court ruling could make things better. To prove they have legal standing, PRC has to show its members have been harmed in some way by the 2004 Framework. One approach is to argue the plan has impacted their ability to fish and recreate.

"My first Sierra Nevada backpacking trip was to the Mineral King area in 2000, during which time I also fished," PRC chairman Bob Anderson told The Fresno Bee. "I plan to continue these activities as long as the management of Sierra Nevada national forests does not prevent me from doing so."

The government’s counter-argument is to say that the Sierra Nevada Framework is just a plan, and no one is harmed until an actual logging project is approved. In other words, the feds are arguing the PRC can’t legally challenge the forest plan until the things they are opposing—increased logging and road building, for example—are underway.

But Greg Loarie, an Earthjustice attorney who brought a different lawsuit against the Forest Service over the Bush-era Framework, questions this logic. “If (the plan) is just paper on a shelf somewhere, then why did Congress see fit to require them?” Clearly forest plans are meaningful documents, even before they’re implemented—just look at the way the Bush administration responded to the Clinton-era Framework.

Loarie thinks the case is part of a worrying pattern of Supreme Court cases where the government’s goal is to limit people’s ability to protest planning documents.

“I’m really disappointed,” he said. “If these plans are required (by the National Forest Management Act), but we can’t ever dispute their scientific basis or complain about the way in which they were adopted, then we really don’t have a lot in terms of keeping the Forest Service honest.”

In a blog for Legal Planet, Rick Frank, director of the California Environmental Law and Policy Center, doubts the court will rule in PRC’s favor. He says the court has a track record of interpreting the legal standing issue to “bar environmental organizations from pursuing their legal grievances in federal court,” and notes that the court has never, in the 43-year history of NEPA, ruled against the government when it is challenged by an environmental group. Finally, he notes that the Supreme Court rarely agrees with the findings of the 9th Circuit Court of Appeals, which earlier ruled in PRC’s favor, and is a more liberal court that can be sympathetic to environmental causes.

Lawyers will argue the case this fall, and a decision is likely in early 2014.

Emily Guerin is the assistant online editor at High Country News.

Photo courtesy Flickr user MiguelVieira.

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