EPIC in Court

BREAKING: EPIC Win For Mendocino National Forest at the Ninth Circuit!

Monday, August 3rd, 2020
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In a major victory, the Ninth Circuit Court of Appeals has sided with EPIC in a case impacting the Mendocino National Forest. The court found that the Forest Service’s use of a “categorical exclusion” to avoid an environmental impact assessment for a timber sale following the 2018 Ranch Fire was likely a violation of the law and that EPIC should have been awarded an injunction by the lower court to stop logging. The Ninth Circuit’s decision is available here. For more on this case, check out some of our past blog posts here and here.

In 2018, the Ranch Fire burnt a significant portion of the Mendocino National Forest. In response, the Mendocino National Forest authorized a series of commercial timber sales near roads within the forest. To avoid environmental review required by NEPA, the Mendocino National Forest attempted to shove these timber sales under a “categorical exclusion” to the ordinary requirements to prepare a document. Although a categorical exclusion for post-fire timber operations existed, the Forest Service did not employ this exclusion because they would be limited in the total acreage they could log. Instead, the Forest Service employed a different, ill-fitting categorical exclusion that allowed for “[r]epair and maintenance of road” including “[p]runing vegetation” to authorize these timber sales. 

EPIC challenged this project and sought an injunction to ongoing timber operations. The Northern District of California denied EPIC’s injunction and we appealed (with an oral argument by Zoom and livestreamed to Youtube) to the Ninth Circuit. Ultimately, the Ninth Circuit sided with EPIC, with a 2-1 decision finding that EPIC should have been awarded its injunction. The Court ultimately found that “Under no reasonable interpretation of its language does the Project come within the [categorical exclusion] for ‘repair and maintenance’ of roads.” 

With simple math, the Ninth Circuit exposed the pretextual nature of the Mendocino National Forest’s use of the categorical exclusion. In many areas, the court noted, the average tree height was only 100 feet, yet the National Forest established a once-size-fits-all prescription allowing for the logging up to 200 feet on either side of the road, and thus the project would allow targeting trees that posed no risk to road users.

This ruling has big implications for our National Forests moving forward. Under the Trump Administration, EPIC has seen a widespread abuse of the rejected faulty logic to log without environmental review or public participation.

What’s next? The case is remanded back to the Northern District Court for further proceedings consistent with the Ninth Circuit’s decision. We will update you when we know more. 

EPIC is able to bring litigation like this because of members like you. A donation is deeply appreciated.

View the full Press Release here


BREAKING: EPIC Joins Nationwide Coalition to Defend People’s Environmental Law

Wednesday, July 29th, 2020
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EPIC, along with a nationwide coalition of organizations from the environmental justice, outdoor recreation, and conservation communities, filed a lawsuit challenging the Trump administration’s attack on the National Environmental Policy Act (NEPA) this afternoon. 

The administration finalized its rules that will eviscerate core components of NEPA in mid-July. Under new regulations put forth by the White House Council on Environmental Quality (CEQ), polluting projects of all kinds will be exempt from basic environmental reviews, and the public will be cut out of one of its best tools to prevent dangerous, shortsighted projects. 

“NEPA ensures that California’s forests remain verdant and our rivers stay clean by requiring that federal agencies understand the environmental impacts of their decisions. Trump’s new rule is a crushing disappointment to good government and to a healthy environment,” said Tom Wheeler, executive director, Environmental Protection Information Center.

“It has been more than 30 years since the passage of the National Environmental Policy Act and environmental justice communities continue to live with the impacts of decisions that precipitated its need,” said  Kerene N. Tayloe, Esq., Director of Federal Legislative Affairs at WE ACT for Environmental Justice. “The changes made to this bedrock environmental law will further undermine basic protections, including the public’s right to participate in decision making and the obligation of the government to fully and thoroughly study the cumulative impacts of health hazards on overburdened communities. They also reflect a disregard of Black, Brown and poor communities and the unwillingness of this administration to execute laws in a way that benefits all Americans. WE ACT for Environmental Justice is committed to pursuing every option available to preserve and strengthen NEPA for the betterment of everyone.” 

“NEPA matters,” said Tricia Cortez, Executive Director of the Rio Grande International Study Center. “Here on the border, we know what a world without NEPA looks like because of what we’ve experienced with the border wall. The U.S. government has waived NEPA and dozens of other federal laws to rush construction for a politically motivated and destructive wall project. We would not wish this on any other community in this country. The feeling is like having a train barreling at you with nothing to stop it. To protect our environment and our health, we the people must save NEPA.” 

“We will not allow the Trump administration to compromise our rights to protect our communities and public health from the harms associated with unscrupulous and destructive industrial developments such as mining, oil and gas, and military operations,” said Pamela Miller, executive director of Alaska Community Action on Toxics. “This is a grave environmental injustice and we aim to prevent this attack on one of our most fundamental environmental laws.”

“The Trump administration picked the wrong fight,” said Kristen Boyles, an Earthjustice attorney serving as co-counsel on the case. “They want to make it easier to silence people’s voices and give polluters a free pass to bulldoze through our neighborhoods. That’s why we’re taking them to court.” 

“We have consistently defeated this administration’s relentless, vicious dismantling of safeguards for people and the environment, and we will do so again for this critically important law,” said Susan Jane Brown, Western Environmental Law Center co-counsel. “A thriving economy is not at odds with worker protections and a healthy environment — it depends on both.”

See the full press release here.


Opening Brief Filed in Case to Save Humboldt Marten

Thursday, July 2nd, 2020
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EPIC Challenges Take Permit Issued to Green Diamond

In late May, EPIC submitted an opening brief in the case to overturn a permit that threatens California’s last remaining Humboldt martens. Read it here. With fewer than 200 likely in the state, the marten is teetering on the edge of extinction. Necessary to the long-term survival of the species is to connect the largest population of martens, found on Six Rivers National Forest in Del Norte County, to prime habitat in the Redwood National and State Parks complex to the southwest. Standing in the way is Green Diamond, which owns the majority of this area.

Green Diamond clearcut along Redwood National Park border

Green Diamond’s clearcut-heavy management is antithetical to the needs of the Humboldt marten. Martens require mature forests and thick layer of herbaceous undergrowth to slink through the forest undetected by predators. Clearcutting destroys this undergrowth and leaves martens exposed. Clearcutting also provides prime habitat for the marten’s number one predator, bobcats, whose populations explode because of the woodrats and rabbits that enjoy clearcuts. With so many bobcats present, Green Diamond’s lands become uninhabitable for martens and, where clearcuts are near occupied marten habitat, bobcats begin to tread further into these occupied areas. That’s why it is curious that the California Department of Fish and Wildlife gave the company a free pass to “take” martens through their management.

As we’ve previously recounted, through funny math and a promise to relocate martens, Green Diamond convinced higher ups at the Department to issue a permit. And as we’ve now discovered through Public Records Act requests and through litigation, the actual scientists who work closely with Green Diamond were aghast—one writing that “this [Safe Harbor Agreement] sounds absolutely Orwellian” and that the permit “will, as a whole, actually be harmful.” Political interference to benefit a powerful timber company and plodding through the objections of staff scientists is something that we’ve come to expect from the Trump administration, not California’s wildlife agency.

The case is being heard in Humboldt County Superior Court by Judge Kelly Neel.

EPIC would like to extend a special thanks to our excellent attorneys, Marie Logan and Greg Loarie, of Earthjustice for representing us and our friends at the Center for Biological Diversity, who are our co-plaintiffs in the case. #TeamMarten

 


EPIC Files Lawsuit to Defend Old-Growth In Klamath National Forest

Tuesday, April 28th, 2020
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View from Crawford project area looking over the Klamath River watershed into Marble Mountain Wilderness.

 

Last Friday, EPIC and allies filed a federal lawsuit challenging the Klamath National Forests Crawford Timber Sale project. The project is located 15 miles southwest of the town Happy Camp and north of Dillion Creek, a salmon stronghold of the Klamath River. It proposes logging the forest canopy down to 30% in over 250 acres of mature and old-growth forests.

Mature forest stand. All trees in this photo without orange paint are proposed for logging.

The virgin forest in the Crawford Timber Sale is just outside the Siskiyou Roadless Area and provides an important wildlife corridor between the Siskiyou and Marble Mountain Wilderness Areas. Serving as Critical Habitat for the imperiled northern spotted owl the project area is home to two of the few reproductive owl pairs remaining on the Klamath National Forest. The Crawford timber sale would result in the “take” of these surviving pairs and would remove and degrade over 350 acres of Critical Habitat.

Old-growth Douglas fir 5 foot in diameter located in Northern spotted owl critical habitat and home range that is proposed for cutting.

The lawsuit focuses on three major claims: the agencies failure to comply with it’s own Forest Plan for the protection and recovery of northern spotted owls, especially reproductive pairs; failure to protect the Pacific fisher, which would lose 225 acres of habitat; and the failure to prepare a full Environmental Impact Statement, which is required when a major federal action may significantly affect the quality of the environment.

EPIC is joined by the Klamath Siskiyou Wildlands Center and Klamath Forest Alliance and is represented by Meriel L. Darzen and Oliver Stiefel of the Crag Law Center.

If you love the denizens who rely on dense forest canopy cover for survival, like the Pacific fisher, please donate today and help support the defense of old-growth forests.

To carry out this legal challenge to preserve owl habitat, clean water, fire resilient landscapes and our right to participate in public land management decisions, we need to raise substantial funding. Please help us see this case through by making a substantial donation today.


EPIC And Others To Sue USFWS for Putting Northern Spotted Owls at Risk

Thursday, January 30th, 2020
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Northern Spotted Owl. Photo by Frank D. Lospalluto.

On Friday, EPIC and a coalition of conservation groups notified the U.S. Fish and Wildlife Service of its intent to take the agency to court for is failure to complete an evaluation on the status of the northern spotted owl and whether the owl warrants greater protection under the Endangered Species Act. The notice letter begins a 60-day window for the Service to comply with the law by evaluating whether existing protections for the owl are sufficient to stave off extinction.

“The science is dire and alarming,” said Tom Wheeler, Executive Director of the Environmental Protection Information Center. “The Service’s failure to act is placing the northern spotted owl in danger of extinction. Urgent action is required now to avert tragedy.”

The northern spotted owl was first listed as “threatened” by the Service in 1990 because of range-wide population declines primarily caused by habitat loss from timber operations. Since the species listing, the northern spotted owl has been further impacted by the expansion of the more aggressive barred owl in its range. As the barred owl has moved south from British Columbia, the northern spotted owl declined precipitously. Today, northern spotted owls are functionally extinct in British Columbia and face extinction in the wild through the owl’s entire range within the next 50 years.

“Mature and old-growth forests that provide essential habitat for this species continue to be aggressively logged and removed,” said Nick Cady, Legal Director of Cascadia Wildlands. “Urgent action is needed by the Fish and Wildlife Service and is long overdue.”“The science is dire and alarming,” said Tom Wheeler, Executive Director of the Environmental Protection Information Center. “The Service’s failure to act is placing the northern spotted owl in danger of extinction. Urgent action is required now to avert tragedy.”

The Service has not completed a status review for the owl within the statutorily prescribed timeframe of five years, with the last status review completed in 2011. Similarly, the Service has failed to complete rulemaking concerning whether to “uplist” the owl from “threatened” to “endangered” despite the increasingly dire outlook for the species.

The Service’s failure to complete these actions has hurt the owl’s recovery in that the Service and other governmental agencies may be relying on outdated data. This is particularly troublesome as the Bureau of Land Management has already completed resource management plans for forests in the range of the northern spotted owl and as the U.S. Forest Service has begun its process to revise land and resource management plans for forests within the owl’s range.

The conservation groups include the Environmental Protection Information Center, Klamath-Siskiyou Wildlands Center, Western Environmental Law Center, American Bird Conservancy, Cascadia Wildlands, Oregon Wild, Pilchuck Audubon Society, Northcoast Environmental Center, Safe Alternatives for our Forest Environment, Forest Issues Group, Lassen Forest Preservation Group, Sierra Foothills Audubon Society, and South Umpqua Rural Community Partnership. The groups are represented by Susan Jane Brown of the Western Environmental Law Center.

Check out our full press release here. 


BREAKING:EPIC Litigates Mendocino National Forest’s Latest Attempt To Evade Environmental Review

Thursday, October 17th, 2019
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Mendocino National Forest bulldozer lines are linear clearcuts harmful to wildlife and ecosystems but are ineffective at stopping the fire. Photo courtesy of Kimberly Baker

The Environmental Protection Information Center (EPIC) is suing the U.S. Forest Service for approving a series of timber sales on the Mendocino National Forest that shortcut public participation and environmental review in violation of federal law. In a complaint filed today, EPIC alleges that the Forest Service expedited seven timber sales, totaling up to 7,000 acres, by mislabeling the logging as a “road maintenance” project. At risk from the logging are clean water, northern spotted owls, and increased fuel conditions.

All Forest Service timber sales are subject to the National Environmental Policy Act (NEPA). The core of NEPA is a requirement that agencies take a “hard look” at the environmental impacts of their proposed actions, typically done through an environmental impact statement or environmental analysis. The timber sales were approved using what is called a “categorical exclusion.” Categorical exclusions do not require environmental impact review or public comment.

Unnecessary bulldozer line the fire never reached fragments intact wildlands. Photo Courtesy of Kimberly Baker.

Here, the Forest Service argues that a commercial timber sale is “road maintenance” because the logging would remove dead and live trees affected by the 2018 Ranch Fire along roads, reducing the odds that the trees may fall and block the road. A separate categorical exclusion exists for post-fire logging, although that is limited to 250 acres, as anything larger in scale is assumed to be able to produce significant impacts to the environment. All timber sales in this proposed project are larger than 250 acres. Furthermore, many of the roads proposed for logging are closed to motor vehicle use.

“The Mendocino National Forest is taking a page from Trump’s playbook,” said Tom Wheeler, Executive Director of EPIC. “Calling a timber sale ‘road maintenance’ is a stunning way to stifle public participation and ignore environmental impacts.”

Science has widely recognized that post-fire logging is especially impactful, as logging adds an additional disturbance on top of the effects of the fire. Post-fire logging often results in degraded water quality, the spread of invasive plants, and loss of habitat for rare, threatened and endangered species. It can also increase the risk of high-severity fire since logging leaves behind a buildup of slash and finer “fuels.” If allowed to use a categorical exclusion instead of an environmental impact statement, these impacts may never be adequately examined and mitigation measures to reduce harm through better project design would not be incorporated.

“This is a massive project covering thousands of acres,” asserted EPIC’s Public Land Advocate, Kimberly Baker, “the Mendocino National Forest is breaking the law to meet timber targets and benefit timber corporations at a cost to fragile post-fire watersheds and threatened species. Public safety could be achieved in a more benign manner.”

EPIC is represented by René Voss of Natural Resources Law and Matt Kenna of Public Interest Environmental Law. The case will be heard in the Northern District Court of California.

To carry out this legal challenge to preserve owl habitat, clean water, fire resilient landscapes and our right to participate in public land management decisions, we need to raise substantial funding. Please help us see this case through by making a substantial donation today.

Click here for press release and contacts.


State Court Victory in Richardson Grove Case!

Tuesday, June 11th, 2019
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Decision Finds Agency Avoided Public Comment and Scrutiny on Risks

Humboldt County Superior Court Judge Kelly Neel ruled in favor of environmental plaintiffs in the latest salvo in the nearly decade-long effort to prevent the widening of Highway 101 through old-growth redwoods at Richardson Grove State Park. As a result of this court decision, Caltrans is not allowed to physically alter the proposed project area and the agency would need to get court approval before moving forward. Plaintiffs include the Environmental Protection Information Center, Center for Biological Diversity, Californians for Alternatives to Toxics, Friends of Del Norte and four private citizens, Bess Bair, Trisha Lee Lotus, Jeffrey Hedin, and David Spreen. Plaintiffs Bair and Lotus both have generational family ties to the creation of the Park.

In her decision, Judge Neel found that Caltrans avoided public scrutiny by failing to solicit public comment on a significant piece of new information—a report from an arborist hired by Caltrans. In doing so, Judge Neel highlighted that the public and other agencies were deprived of their right to provide comment and feedback, something “essential” to the law.

“Caltrans has continued to view public opinion and opposition to the Richardson Grove Project as something that they can bulldoze through,” said Tom Wheeler, Executive Director at the Environmental Protection Information Center. “Four times, courts have returned the project to the agency, finding that their slapdash work violates the law.”

Peter Galvin, Co-Founder of the Center for Biological Diversity stated, “We urge Caltrans to finally abandon their deeply misguided and destructive plan to widen Highway 101 through Richardson Grove State Park. Our ancient redwood trees are too important to pave over.”

In 2010, Caltrans issued its Final Environmental Impact Report for the Richardson Grove Operational Improvement Project. In 2014, the First District Court of Appeals found that Caltrans had violated CEQA by failing to take a hard look at the project’s impacts to old-growth redwoods. After this decision, Caltrans attempted to cure its deficiency by hiring an arborist to examine project impacts. The arborist’s report, which presented new scientific data, including an untested rating system to predict impacts to tree health from project activities, was shielded from public comment through its release as part of an “Addendum” to the original CEQA documents. This added significant new information to the EIR without providing public notice and consultation with agencies.

The Court stated that “the rating system devised by the arborist may or may not rest on sound scientific footing. Without review and critique by others with expertise in the relevant fields, this footing remains untested. Peer review is essential to sound science.”

Plaintiffs are represented by Sharon Duggan, Stuart Gross of Gross & Klein LLP, Philip Gregory of Gregory Law Group, and Camilo Artiga-Purcell of Artiga-Purcell Law Office.

Background

Richardson Grove State Park, is considered the gateway to the Redwoods, where tourists often first encounter large Redwoods when heading north on Highway 101. It is home to one of the last protected stands of accessible old-growth redwood trees in the world. The park has essential habitat for protected species and its creeks support runs of imperiled salmon and steelhead trout.

Litigation against the Richardson Grove project has been successful in both state and federal court. Most recently, in 2019, Judge Alsup of the Northern District District Court of California rules in favor of plaintiffs, finding that Caltrans failed to take a hard look at the impacts to oldgrowth redwoods under federal law.