AFRC Annual Meeting 2019 Legal Program Overview Offense Defense - PDF document

AFRC Annual Meeting 2019

Legal Program Overview Offense Defense O&C Act Protect agency tools DNR Trust mandate Develop legal precedent Unsupported regulatory Defend timber volume decisions (Critical Habitat) Defend our members AFRC Annual Meeting 2019

The Litigation Casino Ninth Circuit 5 PI Appeal 9 Merits Appeal 1 TRO 3, 4 IPA 7, 8 IPA 2 Prel. District Court 6 Summary Judgment Injunction AFRC Annual Meeting 2019

O&C Act O&C Lands: shall be managed … for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the princip[le] of sustained yield CSNM Expansion: No portion of the monument shall be considered to be suited for timber production, and no part of the monument shall be used in a calculation or provision of a sustained yield of timber. AFRC Annual Meeting 2019

O&C Act– Current Litigation AFRC cases Others - Monument - AOCC - RMP Challenge - Murphy - “ Swanson III ” - Pac. Rivers et al. AFRC Annual Meeting 2019

O&C Act Developments Washington, DC :  Monument & RMP cases remanded for explanation until June 3 Oregon :  Pac. Rivers’ RMP challenge rejected  Reaffirms O&C Act is a “dominant use” statute  Magistrate Judge has recommended ruling in favor of government in Monument suit AFRC Annual Meeting 2019

WA DNR – Trust Mandate [T]hese are real, enforceable trusts that impose upon the state the same fiduciary duties applicable to private trustees.  Washington Supreme Court in Skamania County. v. State (1984) AFRC Annual Meeting 2019

What is fiduciary duty?  Undivided loyalty  Diligence WA DNR – Fiduciary Duty  Impartiality  Compliance with trust terms AFRC Annual Meeting 2019

WA DNR – Fiduciary Duty What is fiduciary duty? A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. - New York Court of Appeals in Meinhard v. Salmon (1928) AFRC Annual Meeting 2019

WA DNR – Fiduciary Duty and Marbled Murrelet AFRC Annual Meeting 2019

Farm Bill Categorical Exclusion (CE) In order to use the Farm Bill CE , projects must: o Maximize retention of old-growth and large trees to the extent the trees promote stands that are resilient to insect and disease threats; o Consider the best available scientific information ; and o Be developed and implemented through a collaborative process that includes multiple interested persons representing diverse interests and is transparent and non-exclusive. AFRC Annual Meeting 2019

Farm Bill CE A project that uses the Farm Bill CE : o May not exceed 3,000 treated acres; o Must be located in the Wildland Urban Interface (WUI), or in condition classes 2 or 3 in Fire Regime Groups I, II, or III. o May not include the establishment of permanent roads. AFRC Annual Meeting 2019

Sunny South Project  First case to challenge use of Farm Bill CE  Three Issues  Whether the landscape designation (by the Chief) of insect and disease treatment areas required the preparation of a NEPA analysis.  Whether the Forest Service was required to engage in “extraordinary circumstances” review.  If so, whether impacts on the California Spotted Owl required an EA. AFRC Annual Meeting 2019

Lostine Corridor Public Safety Project What does collaborative process mean under the Farm Bill? AFRC Annual Meeting 2019

Moose Creek Vegetation Project Did the Forest Service demonstrate that the project maximizes the retention of old Representative Stand Before After Treatment – Commercial Thin growth ? Treatment AFRC Annual Meeting 2019

W EYERHAEUSER C O . V . U.S. FWS What does critical habitat mean? Is a decision not to exclude areas subject to judicial review? AFRC Annual Meeting 2019

W EYERHAEUSER C O . V . U.S. FWS According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” - Supreme Court opinion (Chief Justice Roberts) AFRC Annual Meeting 2019

Softwood Lumber AFRC Annual Meeting 2019

Softwood Lumber Panel Decision on Anti-Dumping Measures Upholds methodology used by US  Subject to appeal to WTO Appellate Body  NAFTA panel to review injury determination by ITC, May 7 2019  Countervailing Duty Dispute WTO Panel review underway  AFRC Annual Meeting 2019

Questions? Lawson Fite Sara Ghafouri American Forest Resource Council 700 NE Multnomah St., Ste. 320 Portland, OR 97232 (503) 222-9505; (971) 801-4864 (Lawson cell); (650) 279-3569 (Sara cell) Lfite@amforest.org sghafouri@amforest.org AFRC Annual Meeting 2019