Enough already!

Big Fin

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I know some wonder the origin my sour taste for the current status of litigation on Federal Land Management projects. This lawsuit is a project RMEF has offered to help fund after significant interaction with the Forest Service and partners in the Elkhorn Working Group. The Elkhorns are the only Congressionally designated wildlife management lands in the entire Forest Service. The priority of management on these lands is to help wildlife.

Once again, the serial litigators are out trying to make some change by litigating a project that would be very good for elk.

http://helenair.com/news/natural-re...b530e516-bf9f-56b5-89d9-4304a476af0d.amp.html


In the article, lead litigator, Steve Kelly, claims this is a cattle grazing habitat manipulation project. He is clueless. The fact that elk and cattle are both grazers evidently cause him to preclude elk habitat projects from being implemented on Federal lands. They want no part of the planning and collaboration process, knowing the current model gives them the big stick of litigation and can gum up the works for years by litigation. When a system is set up that gives that kind of power to groups who refuse to participate in the planning process, the system needs some changes. Even if the Forest Service prevails in court, the costs and delays are still a huge waste of time, resources, and effort.

Kelly also cites that the elk are so far above objective that elk habitat improvement is not needed. If he had a clue as to how those objectives were artificially suppressed by the political process, he might have a different view of how elk habitat improvement might help the public land hunting in the Elkhorns. I really don't expect much different from him.

A lot of thought, consideration, and money is going into improving elk habitat on public lands, in hopes that work will give some help to counter the accumulation of elk that happen on private lands. Probably not enough in a state with the immense hunting pressure Montana has on public lands, but at least in some limited entry units like the Elkhorns, it will hopefully help. Litigation against these projects does nothing to help elk or the effort that such elk habitat improvements could be a tool to reduce accumulations of elk on private lands where they are off limits to hunters.

Expect me to advocate for litigation reform wherever and whenever possible. Reform can be made to still allow for those parties who litigate with discretion to not lose any options, yet hopefully force some of the serial litigators to find a new business model that gives incentive to participate and collaborate from the beginning, rather than opt out of the planning process in favor of litigating for cash.

I know there are instances where groups participate in the planning process and work hard toward solutions, yet when they are ignored litigation might be the only remaining option. This Elkhorns case, and many cases like it, are not those instances of "litigation as last resort."

As the article clearly demonstrates in the last paragraph, this is another example of "Litigation R Us." To quote......The lawsuit asks the court to halt the project and award attorney fees and other costs.
 
FYI, if you'd like to send a comment to the two litigators mentioned in the linked article above their addresses are (they don't have websites):

Native Ecosystems Council
P.O. Box 125
Willow Creek, MT 59760

Montana Ecosystems Defense Council
3165 Foothill Rd
Kalispell, Montana 59901-8377
 
Since Google Earth only has pictures of this area going back 17 years, it's not as obvious as it would be if we were looking at aerial imagery farther back, but just in the last 15 years you can see conifer encroachment in the the South Fork Crow Creek area where they are trying to improve grasslands.Whether it benefits wildlife or not doesn't matter. The FS is trying to do something and an opportunity has arose for the serial litigators.

I hope the Helena National Forest prevails.
 

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The motives of the plaintiffs aside, I'm a bit surprised that the USFS chose the CX route. I'm guessing the lawsuit would not have legs if a full analysis had been completed (disclosure: I have not read the proposal or justification for the CX).
 
The motives of the plaintiffs aside, I'm a bit surprised that the USFS chose the CX route. I'm guessing the lawsuit would not have legs if a full analysis had been completed (disclosure: I have not read the proposal or justification for the CX).
I doubt that a more in depth analysis would have stopped an appeal, considering it was mentioned that the two appellants did not participate in the "collaborative process". Some types of projects and/or some areas are going to be litigated by certain groups regardless of the rationale behind them or the benefits of them. IMO too many low hurdles in the appeal process...

If a project falls under the guidelines of a CX I think the agencies should go that route as much as possible.
 
I'm no expert in NEPA, but through my job I have dealt with NEPA on several restoration projects. In my experience, I've had to provide substantial project information and avoidance measures to avoid or reduce potential negative impacts to get a Categorical Exclusion. Some agencies are much more loose about approving Categorical Exclusions than others. That said I've never dealt with the US Forest Service and I'm not saying they didn't do their due diligence. I hope they did and it is a short case. If they had gone through the full EIS/EIR process it would cost a lot more money and delay the project for potentially years, depending on the impacts. I've dealt with projects that had $500,000 budgets to cover NEPA and other environmental permits and delayed projects for 1-2 years. You could do a lot of good on the ground projects with $500,000.
 
I doubt that a more in depth analysis would have stopped an appeal, considering it was mentioned that the two appellants did not participate in the "collaborative process". Some types of projects and/or some areas are going to be litigated by certain groups regardless of the rationale behind them or the benefits of them. IMO too many low hurdles in the appeal process...

If a project falls under the guidelines of a CX I think the agencies should go that route as much as possible.

In my experience if the full analysis was conducted it would be harder to justify a lawsuit unless the lawsuit was claiming a flaw in the analysis. If the analysis was conducted according to code then a lawsuit wouldn't have a leg to stand on.
 
In my experience if the full analysis was conducted it would be harder to justify a lawsuit unless the lawsuit was claiming a flaw in the analysis. If the analysis was conducted according to code then a lawsuit wouldn't have a leg to stand on.
We have had different experiences it seems. It's a pretty low bar, IMO, to "show harm" that can an allow an appeal to go forward to a hearing/judgment. Doesn't mean the agency won't win and easily, but the appeal process still has to be allowed to run its course.
 
We have had different experiences it seems. It's a pretty low bar, IMO, to "show harm" that can an allow an appeal to go forward to a hearing/judgment. Doesn't mean the agency won't win and easily, but the appeal process still has to be allowed to run its course.

I wasn't trying to imply that an appeal would not run its course. Maybe "Justify a lawsuit" was a poor choice of words. Now a days it seems anyone can bring a lawsuit forward, but my point was that if the NEPA process was followed and a full EIS/EIR document was prepared, then the USFS would be able to fight the lawsuit easier and hopefully win easier.
 
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