Two conservation groups and a long-time volunteer represented by Greenfire Law and the Center for Biological Diversity have reached a settlement agreement with the U.S. Fish and Wildlife Service that will lead to better protection for endangered red-cockaded woodpeckers on Mississippi’s Noxubee Wildlife Refuge. The agency has agreed to prepare a new management plan for the refuge and to suspend any new timber harvest until that plan is complete.

Red-cockaded woodpeckers, once common in the Southeast but now endangered, need old trees to survive. Over the past few years, logging on the Noxubee National Wildlife Refuge in red-cockaded woodpecker habitat has increased, resulting in the bird’s significant decline. The refuge was also failing to notify and involve the public before developing logging proposals.

In agreeing to prepare a new, comprehensive conservation plan, Fish and Wildlife also agreed to revise the agency’s “red-cockaded woodpecker management plan” as well as the forest management plan for the Noxubee. The Service also agreed that public participation would be allowed for any future proposed logging projects.

The agreement, approved by a federal district judge today, settles a lawsuit filed in 2012 that challenged logging plans in the refuge. Plaintiffs in the lawsuit were Margaret Copeland, a long-time volunteer on the Noxubee National Wildlife Refuge, Wild South, and the Center for Biological Diversity. Greenfire Law attorneys Rachel Doughty and Jason Totoiu handled this matter along with attorney Marc Fink at the Center for Biological Diversity.

Greenfire Law attorney James Birkelund spent the day on July 11, 2012 teaching visiting laws students from Italy why U.S. environmental laws are a powerful tool to protect park lands and endangered species. James has spent much of the last decade litigating and advocating to protect natural resources here in California. He currently teaches at the University of California, Hastings College of The Law where the Italian students from Boccini University in Milan, Italy are studying for the summer.

On March 19, 2012, a federal judge once again sided with conservation groups in a dispute over public participation and transparency in government decisionmaking. Under a Bush-era rule the U.S. Forest Service could exempt certain decisions from public notice, comment, and appeal by citizens. Sequoia ForestKeeper (CA), Conservation Congress (MT), Earth Island Institute (CA), Oregon Wild (OR), Cascadia Wildlands (OR), Ouachita Watch League (AR), Utah Environmental Congress (UT), Western Watersheds Project (WY), and WildEarth Guardians (NM) argued that the exception violated federal statute that guarantees the public this fundamental right.

“The court in California issued a nationwide injunction which immediately restores the public’s rights to be informed and participate in the management of all projects on the National Forests,” said SFK attorney René Voss, co-counsel for the conservation plaintiffs. Added Matt Kenna, the lead attorney on the case: “Time and time again the courts have affirmed the public’s right to be involved in Forest Service decisionmaking. Once again, the Court made this clear.”

The management decisions challenged in the lawsuit include logging, Uranium exploration and prescribed fire that all could potentially affect the environment. The projects were all exempted from administrative review by the Bush-era rules. Administrative appeals or reviews of government decisions are a fundamental tenet of the checks and balances in a healthy democracy.

The same rules were successfully enjoined by the same court in 2005, and the Ninth Circuit Court of Appeals upheld that judgment in 2006, finding: “Had Congress wanted to categorically eliminate the right of appeal for timber sales and other categorically excluded Forest Service actions, the Appeals Reform Act would not have been necessary.” However, in 2009 the United States Supreme Court in Summers v. Earth Island Institute reversed the Ninth Circuit on the technical ground of “standing,” allowing the challenged regulations to spring back to life after being enjoined for 3½ years. But the Supreme Court did not address the Ninth Circuit’s holding on the merits that the challenged regulations violate the law.

With a firmer showing of “standing” by the conservation plaintiffs for this new complaint, the court decision re-established notice, comment, and appeal rights granted by Congress to citizens for all logging, and other substantive, land-altering projects, proposed by the Forest Service.

Today the U.S. Forest Service granted a stay, halting the Forest Service’s plans to permit boating on 17 miles of the Wild and Scenic Upper Chattooga River this season.

“This was the only appropriate decision given how flawed the government’s plan was,” said Rachel Doughty, the Greenfire Law attorney who filed the request for stay on behalf of three conservation organizations, Georgia ForestWatch, the Georgia Sierra Club, and Wilderness Watch. “The Forest Service should consider management of the entire Wild and Scenic Corridor at once, instead of piecemeal. This wonderful, wild area will cease to exist if the Forest Service does not address the fact that five million people a year use these National Forests, and it is quite possible to love them to death.”

The Forest Service had sought to permit boating this year for the first time in more than 35 years on the upper portions of the Chattooga Wild and Scenic River and through the Ellicott Rock Wilderness.  The most glaring immediate problem with this plan was the proposed “interim” access, which would encourage use by large numbers of people of unmanaged trails and user creation of put-ins and take-outs. The conservation groups’ concerns were heightened because boating use occurs mostly during rain events when soils are at their most vulnerable to erosion. The groups other major concern is that the Forest Service has set no enforceable limits to the number of boating trips per day, so the experience of solitude and wildness–present on the Upper Chattooga where boating is banned but not in the Lower Chattooga where there are 89,000 floating trips per year–could be lost.

The three conservation groups have filed an appeal with the Forest Service because the management plan violates environmental and public lands laws. Five other appeals were filed as well. The Forest Service has said will make a decision on the appeals by this summer. The stay prohibits the Forest Service from issuing permits for boating on the 17 mile stretch in the interim, but allows it to go ahead with related planning.

Georgia ForestWatch, the Georgia Sierra Club, and Wilderness Watch remain united in their efforts to challenge the Forest Service to better manage the headwaters of this outstanding Wild and Scenic River and the Ellicott Rock Wilderness.  

This week the U.S. Forest Service announced plans to allow boating for the first time in more than 35 years on the upper portions of the Chattooga Wild and Scenic River and through the Ellicott Rock Wilderness. Environmental groups are outraged because allowing this boating would cause extensive damage to water quality, soils, the riverbank, and the solitude visitors now experience. The plan violates environmental laws designed to protect these resources. 

Greenfire Law is challenging the Forest Service’s decision on behalf of Georgia ForestWatch, the Georgia Chapter of the Sierra Club, and Wilderness Watch.  The groups submitted an appeal of the decision on Wednesday (supplemented on Friday), and have requested an immediate stay based on violations of the Wild and Scenic Rivers Act, the Wilderness Act, the National Environmental Policy Act, and a host of internal Forest Service practices.

“The Forest Service’s decision favors narrow recreational interests at the expense of irreparable damage to fragile and rare wild areas that belong to everyone,” said Rachel Doughty, lead attorney at Greenfire Law.  ”None of this damage is necessary because boaters have plenty of options elsewhere to recreate.  It is a very poorly thought-through plan. For example, boaters are encouraged to find and create their own put-ins and take-outs along miles of delicate river bank during high water events when erosion is most likely.”

There are as many as 89,000 boating trips a year on the lower 37 miles of the Wild and Scenic River. The upper 21 miles have always been reserved for quieter pursuits—hiking, walking, botanizing, hunting, angling, and swimming—to name just a few.

Spokespersons for the three groups echoed their resolve to stand united and challenge the Forest Service on the issue. Other groups and individuals have filed letters in support of Greenfire Law’s clients’ position.

January 5, 2012

Contact:
Tracy Davids, Wild South, (828) 712-0945
Rachel Doughty, Greenfire Law, (828) 424-2005
Jason Totoiu, attorney at law, (561) 568-6740

BROOKSVILLE, Miss.— Two conservation groups and a long-time volunteer filed suit today against the U.S. Fish and Wildlife Service over the logging of endangered red-cockaded woodpecker habitat on Mississippi’s Noxubee Wildlife Refuge. The agency has increased logging in the woodpecker’s home even though the bird’s population is in steady decline and excessive logging was a major factor in its endangerment; it has also failed to notify the public before developing logging proposals.

“National wildlife refuges are meant to be safe homes for America’s animals and plants, not large-scale commercial logging sites,” said Marc Fink, an attorney with the Center for Biological Diversity.

The Fish and Wildlife Service prepared a “comprehensive conservation plan” for the refuge in 2004 that identified a target population of 88 groups of red-cockaded woodpeckers. At the time, there were 45 groups. But today as few as 31 groups remain, far short of the 88-group target, and some of these “groups” are only one individual — meaning no reproduction is possible. At the same time, logging on the refuge has significantly increased.

The Endangered Species Act requires agencies to re-consult on plans where new information reveals impacts to an endangered species that were not previously considered. Despite the steady decline of this very rare woodpecker since completion of the 2004 refuge plan, Fish and Wildlife has not re-consulted as required.

In addition, the National Environmental Policy Act requires federal agencies to meaningfully involve the public and to assess and disclose the potential environmental impacts of its actions. On the Noxubee, however, Fish and Wildlife routinely issues permits to logging companies without preparing environmental analyses, giving public notice or welcoming involvement. Even long-time volunteers at the refuge are not told of logging plans.

“The steady decline of the endangered red-cockaded woodpecker on the Noxubee Wildlife Refuge should be a wake-up call that additional protection is needed,” said Tracy Davids of Wild South. “It’s long past time for the Fish and Wildlife Service to involve the public and revisit its lack of proper protection for wildlife on this refuge.”

Today’s suit was filed by refuge volunteer Margaret Copeland, Wild South and the Center for Biological Diversity.

Video and photos of past logging at the Noxubee Wildlife Refuge can be accessed at:

http://wildsouth.org/index.php/where-we-work/wild-mississippi/532-noxubee-logging-pictures