26 Jul 2009, 12:11pm
Federal forest policy
by admin

Flathead Plan Compliance Suit Rejection To Be Appealed

Montanans For Multiple Use have announced that they will appeal the rejection of their suit to enjoin the Flathead National Forest from closing or blocking of private, county, and state roads, and from adopting further amendments to the existing Flathead NF Plan.

Background: the Flathead NF adopted their Forest Plan in 1986. Since then they have made numerous revisions and/or additions to the Plan with following the procedures mandated by the National Forest Management Act (NFMA), the Federal Land Policy Management Act (FLPMA), the National Environmental Policy Act (NEPA), and other Federal statutes.

The Plan revisions include forest road closures and decommissioning, OHV and snowmobile closures, lynx regulations, Wildland Fire Use adoption, and other significant changes.

In 2003 the Montanans For Multiple Use sued to enjoin the Flathead NF from amending its Plan in the absence of compliance with Federal law [here]. The Swan View Coalition, Sierra Club, and other enviro groups joined the Flathead Forest in opposition and successfully delayed the action through legal maneuverings, including a change of venue to the United States Court of Appeals for the District of Columbia Circuit. The injunction legal brief is [here]. An excerpt:

Pursuant to the mandates of the NFMA, the Flathead issued its Record of Decision adopting a Forest Management Plan for the Flathead on or about January 22, 1986, approximately three months after the date set for the adoption of an initial plan. …

Almost before the ink had dried on the original Plan, the Flathead began to adopt a series of
“amendments” to the Plan, purportedly pursuant to 16 U.S.C. § 1604 (f)(4), all of which purported to be non-significant. …

As of the date of the Complaint’s filing, there were approximately twenty-four proposed amendments to the Plan, not including “regional amendments” (i.e., amendments involving all of the National Forest units in the area), a rate of approximately 1.5 proposed amendments per year. Twenty of these amendments have been completed and adopted. The two regional amendments are not numbered.

Not one of the proposed amendments was accompanied by the comprehensive scientific review and public participation required by NFMA, 16 U.S.C. § 1604. No decision document or review document issued by Defendants considered the cumulative impact of the amendments. No amendment has been submitted to the GAO or the Congress pursuant to SBREFA.

The cumulative impact of these amendments on the Flathead National Forest Plan, has resulted in a such a substantial change to the Plan as originally adopted in January, 1986 that they have de facto revised the Plan without the degree of review and public participation required by the NFMA for significant plan amendments, much less plan revisions. The cumulative impact of these Amendments has also not been subjected to appropriate review under NEPA.

For example, Amendment 19 to the Plan (Exhibit H hereto), which was adopted in March of 1998: (1) closed off to public access vast portions of the forest and more such closures are
planned; (2) prevented timber harvest in areas clearly suitable for harvest; (3) prevented timber salvage in a timely fashion; and (4) otherwise substantially modified the uses allowed in the Flathead, both as a whole and in specific areas, as well as providing for the closure of roads putting the affected areas at substantial risk of fire, insect infestation, and disease. …

That court ruled against the injunction suit in June of this year, fully 6 years after the original filing. The MFMU plans to appeal. The MFMU statement of July 3, 2009:

Montanans For Multiple Use, News Release, July 3, 2009

MFMU Will Appeal USFS Lawsuit to Supreme Court

The United States Court of Appeals for the District of Columbia Circuit ruled against Montanans For Multiple Use (MFMU) appeal of the DC District Court rejection of MFMU’s claims against the US Forest Service in a June, 2003 lawsuit.

MFMU will petition the Appeal Court for a review of the three judge panel June 2009 decision by the full Circuit Court of seven judges. If the Appeal Court rejects that petition, MFMU will appeal to the Supreme Court.

“The issues in our lawsuit are just too important for us to leave any stone unturned in our efforts to get a fair judicial review of the harm that the US Forest Service’s actions and failures to act have caused to the citizens and natural resources of Montana and other Western states.” said Fred Hodgeboom, MFMU President.

MFMU Attorney Mark Pollot was appalled at the brevity and lack of substance in the Appeal Court’s decision, “Foremost in my reaction to the decision is what the Court did not discuss. It is not an exaggeration to say that most of the issues and arguments in our 50 page brief were not addressed in the court’s opinion and no explanation is given why these arguments were wrong. It may be that we raised questions for which the court either had no answer or they chose not to answer. The judges may have felt these are issues that were better left to the Supreme Court to resolve.”

There is ample reason to seek review of the DC Courts’ decisions that took 6 years to rule on, had no substantive review of MFMU’s complaint or legal arguments, and did not provide MFMU the opportunity to prove the merits of our complaint at trial.

MFMU believes that Courts are obliged to take a hard look at the actual harm to the environment, the economy, and the health, safety and general welfare of citizens that has actually resulted from Forest Service implementation of numerous piecemeal Amendments. Anyone who has lived in the vicinity of the Flathead National Forest for 10-15 years has experienced the cumulative effects of over twenty years of incremental Forest Plan Amendments. These amendments resulted in the access to the forests being destroyed, effective vegetation growth management has been reduced to such a low level that forest decline and mortality increased fire hazard so that catastrophic fires between 2001 and 2007 have burned more area than all regeneration timber harvests over the past 60 years while sawmills close for lack of supply. In addition to economic costs, the most harmful effects have been on human health and safety as firestorms now periodically sweep down off decadent overgrown Federal lands to burn State and private property while polluting the water and air for extended periods of time exactly as MFMU has predicted in several appeals as well as our lawsuit filed in 2003.

The lawsuit filed in 2003 by MFMU and thirteen co-plaintiffs* named The U.S. Forest Service and Flathead National Forest Supervisor Cathy Barbouletos, among others, as defendants, sought to require the defendants to comply with the forest management laws that require the Forest Service to comply with strict public notice and participation procedures, manage and protect the forest to achieve sustained yield of wood, wildlife, water, and recreation at a high level, and to prohibit the Service from closing roads it does not own. The Swan View Coalition, Wildlands CPR, Montana Chapter Sierra Club, and Defenders of Wildlife joined the lawsuit as interveners on the side of the Forest Service.

*Co-plaintiffs are: Northwest Montana Gold Prospectors Association, Leland’s Honda, Leland J. Moore, Montanans For Property Rights, Capital Trail Vehicle Association, Flathead Snowmobile Association, North American Wolf Watch, Owens and Hurst Lumber Co., Senator Jerry O’Neil, Representative George Everett, Flathead County, Sanders County, and Flathead Business and Industry Association.

Below is a graphic example of the results of the Flathead NF’s illegally instituted Let It Burn program. Note the mud in the North Fork of the Flathead River at its confluence with the Middle Fork.

The mud was a result of erosion from watersheds burned in 2003 Wedge Canyon and Robert fires that occurred 2 months after the MFMU filed their complaint. Over 285,000 acres of the Flathead NF burned in 2003. There have been numerous fires on the Flathead NF since, including the 2007 Brush Creek Fire (30,000 acres).

Many other National Forests have altered their Forest Plans in relative secrecy and without regard for (or compliance with) Federal law. Hopefully the Supreme Court will accept this case and consider the merits of forcing Federal agencies to obey the laws that pertain to them. If not, we will continue to see our forests and watersheds destroyed by rogue bureaucracies at odds with their legal mandates.



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