Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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Nos. 11-338, 11-347

In Whe Excaglpchetadotaenll

Supreme Court of the Anited States

°

DOUG DECKER, the Oregon State Forester,

in his official capacity, et al.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

o

GEORGIA-PACIFIC WEST, INC., et al.,

Petitioners,

V.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

+

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

+

BRIEF OF AMERICAN FOREST RESOURCE

COUNCIL, PUBLIC LANDS COUNCIL, NATIONAL

CATTLEMEN’S BEEF ASSOCIATION, MONTANA

WOOD PRODUCTS ASSOCIATION INC., ARKANSAS

FORESTRY ASSOCIATION, FEDERAL FOREST

RESOURCE COALITION INC., MINNESOTA

FOREST INDUSTRIES, INC., AND

INTERMOUNTAIN FOREST ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

S

CAROLINE M. LOBDELL Scott W. HORNGREN

WESTERN RESOURCES Counsel of Record

LEGAL CENTER AMERICAN FOREST

5100 SW Macadam RESOURCE COUNCIL

Suite 350 5100 SW Macadam

Portland, Oregon 97239 Suite 350

(503) 222-0628 Portland, Oregon 97239

(503) 222-9505

shorngren@amforest.org

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ...............0..000005: 1

SUMMARY OF THE ARGUMENT ....................... 7

EE ciiiscitcesceiebininisichicvcstinnatenisihiasiestiibinsiniihasiatittibiniiaialicantia 9

A. Resource Management of a Vast Area of

Federal Forest and Rangeland is Likely to

be Disrupted by the Erroneous Ninth Cir-

I Se cisesitinieniatsinnictbeinbeininiicitiarmnbtaiiibiabauad 9

B. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Struggling Forest Products

Businesses that Rely on Federal Lands as

1 iitctnnrssetnnirniiniesnetindianen 14

C. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Ranching Families and Busi-

nesses that Often Use the Same Roads

Used for Logging on Federal Land.............. 16

D. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Intermingled Landowners

who Reguire Access Across Federal Land..... 17

EI piinsicernccnsisninsinsinnsininindiltnhinndeiddimeiiataibipapinndie 18

ll

TABLE OF CONTENTS -— Continued

Page

APPENDIX

U.S. FOREST SERVICE, IMPLICATIONS OF DECISION

IN NEDC v. BROWN TO SILVICULTURAL ACTIVI-

TIES ON NATIONAL FOREST SYSTEM LAND, Doc.

ene heen ee la

Sixty Day Notice OF INTENT To SUE RE: Vio-

LATIONS OF CLEAN WATER ACT (AUG. 20, 2010) ....... 9a

ill

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alliance for the Wild Rockies v. McNair, No. 2-

I I, Boa ictctcccratsckcctenusescncscnccsees 12

Andrus v. Utah, 446 U.S. 500 (1980)............00.cc cece. 8

Leo Sheep Co. v. United States, 440 U.S. 668

ERR ATEIR ee o cer A Oe BO OER Ce ORCL a NT 7

Newton County Wildlife Ass’n v. Rogers, 141

I etal 5

FEDERAL STATUTES

Clean Water Act, § 402, 33 U.S.C. § 1342....7, 11, 14, 18

Consolidated Appropriations Act of 2012, Pub.

L. No. 112-74, § 429, 125 Stat. 786, 1046-47

at 12

REGULATIONS

SE IIIT: St IIIT css hcssrhsschnnastepiheninhacthnanichienneitiniteianaatinbanediainiible 17

EE eee cna eT nen ree een 14

ae ee ei icnrrcrsuisheitiiimintiininnciatineimiitedl 16

55 Fed. Reg. 47,990, 48,011 (Nov. 16, 1990)................ 8

77 Fed. Reg. 30,473 (May 23, 2012)..........ccccsc000- 14,17

iv

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES

Administrative Protest of Evans Creek Project De-

cision Record and Finding of No Significant

Impact as Implemented via the Skeleton Moun-

tain Timber Sale, Klamath Siskiyou Wildlands

Center, http//www.blm.gov/or/districts/medford/

plans/evans/files/KS WildSkeletonProtest.pdf ..

E. RICHARDSON, BLM’s BILLION — DOLLAR CHECK-

ERBOARD, MANAGING THE O & C LANDs (1980)...

Environmental Assessment, Angora Fire Resto-

ration Project, USDA FOREST SERVICE

(July 2010), http://www.fs.usda.gov/Internet/

FSE_DOCUMENTSSstelprdb5 181776. pdf........

Final Environmental Impact Statement; Motor-

ized Travel Management Plan (formerly Mo-

torized Route Designation), Klamath National

Forest California and Oregon, USDA FOR-

EST SERVICE (January 2010), http://www.

fs.usda.gov/Internet/FSE_DOCUMENTS/stel

SIE ccannniennseninntasinindmenabaspnnitnmupent

Forest Roads: Construction and Financing,

Cong. Res. Serv. Rep. 97-706 (1997), p.1 n.1.....

Kramer, Forest Service Says Lack of Sawmills

Hurting Forests, Wenatchee World (April 12,

2011), http://(www.wenatcheeworld.com/news/

2011/apr/02/forest-service-says-lack-of-sawmills-

EN cinttecsnsesocinntnnsensesiienmsumieretenisiienentinueants

Page

— 17

Vv

TABLE OF AUTHORITIES — Continued

Page

U.S. General Accounting Office, GAO-02-136, RE-

STORING FISH PASSAGE THROUGH CULVERTS ON

FOREST SERVICE AND BLM LANDS IN OREGON

AND WASHINGTON COULD TAKE DECADES (2001)........ 1l

1

INTERESTS OF AMICI CURIAE'

Amici Curiae represent companies and families

that depend, in part, on federal forests and rangeland

for their livelihood. Amici are concerned about access

across federal forest roads to transport logs and cat-

tle, to maintain vested water rights, for ingress to

and egress from their private property, to promptly

control insect and disease outbreaks, and to battle

wildfire.

American Forest Resource Council (AFRC) is an

Oregon nonprofit corporation that represents the

forest products industry throughout Oregon, Wash-

ington, Idaho, Montana, and California. AFRC repre-

sents over 50 forest products businesses and forest

landowners. AFRC’s mission is to create a favorable

operating climate for the forest products industry, en-

sure a reliable timber supply from public and private

lands, and promote sustainable management of for-

ests by improving federal laws, regulations, policies

and decisions regarding access to, and management

of, forest lands.

’ All the petitioners and respondent have filed a letter of

blanket consent to filing amicus briefs and letters are lodged

with the Clerk. Pursuant to this Court’s Rule 37.6, the amici

submitting this brief and their counsel hereby represent that no

party to this case nor their counsel authored this brief in whole

or in part, and that no person other than amici paid for or made

a monetary contribution toward the preparation and submission

of this brief.

2

In states where AFRC members are located, they

purchase the majority of timber from federal lands

managed by the U.S. Department of Agriculture, For-

est Service and U.S. Department of Interior, Bureau

of Land Management (BLM). AFRC members also

enter into long-term stewardship contracts on the fed-

eral lands that include forest restoration projects

such as repairing roads and replacing culverts. AFRC

members also own land adjoining federal land that

can only be accessed by crossing roads on federal

land subject to permits, easements, and right-of-way

agreements.

The Public Lands Council (PLC), headquartered

in Washington, D.C., represents ranchers who use

public lands and preserve the natural resources and

unique heritage of the West. PLC is a Colorado non-

profit corporation. PLC membership consists of state

and national cattle, sheep, and grasslands associa-

tions. PLC works to maintain a stable business en-

vironment for public land ranchers in the West where

roughly half the land is federally owned and many

operations have, for generations, depended on public

lands for forage.

PLC members hold long-standing permits to graze

on federal allotments. Many of them also own water

rights, the claim to which depends upon those ranch-

ers’ continued beneficial use of the water, primarily

through livestock grazing. PLC members develop and

maintain water sources and other improvements on

their allotments and use roads across federal land to

manage vested water rights. Such access roads to

3

grazing allotments often are the same roads used to

remove logs from federal land. PLC ranching families

also own millions of acres of range and forest land,

some of which is intermingled with federal land and,

like AFRC members’ properties, can only be reached

by roads crossing federal land. The use of roads on

federal land is critical to PLC’s ability to continue

properly managing natural resources and produc-

ing food and fiber for the nation and world. The loss

of the exempt status of these roads would burden

ranchers with new permitting costs, and incite litiga-

tion against the land management agencies, taking

time and resources away from the already-belabored

grazing permitting process. Thus, not only will PLC

members’ access be threatened; the renewal of their

permits could be in jeopardy, as well.

The National Cattlemen’s Beef Association

(NCBA) is the national trade association representing

the entire cattle industry. NCBA is a Colorado non-

profit corporation. NCBA represents nearly 139,000

cattle producers and 45 affiliated state associations

throughout the United States. NCBA works to ad-

vance the economic, political and social interests of

the U.S. cattle business and to be an advocate for the

cattle industry’s policy positions and economic inter-

ests. NCBA members are proud of their tradition

as stewards and conservators of America’s land and

waters, and good neighbors to their communities.

Many of NCBA’s western members own water rights,

hold federal grazing permits or own range and forest

land intermingled with federal land. NCBA members

4

use the same public roads to move cattle between

their private property and federal allotments that are

used to remove logs. Without reliable and prompt

access, NCBA members’ ability to retain their water

rights, protect the resource and stay in business is

jeopardized. Adding another layer of permitting and

increasing the opportunity for environmental lLiti-

gation will also cause hardship for federal lands

ranchers.

The Montana Wood Products Association, Inc.

(MWPA) is a Montana nonprofit corporation promot-

ing healthy forests and healthy communities through

management of Montana’s forests. MWPA’s member-

ship includes companies and individuals involved in

all facets of Montana’s wood products industry. They

produce value-added products through manufacturing

and provide over 7,500 direct jobs for Montana fami-

lies. Since about 60 percent of Montana’s forest land

base is owned by the federal government, much of

which is intermingled with MWPA members’ private

timberland, road access to and through these lands is

vital to maintaining healthy forests, producing tim-

ber, and protecting lands from wildfire.

The Arkansas Forestry Association (AFA) is an

advocate for the sustainable use and sound steward-

ship of Arkansas’s forest resources to benefit AFA

members and all Arkansans, today and in the future.

AFA is an Arkansas nonprofit corporation. AFA mem-

bers manage private forestland to produce essential

forest products, while maintaining fresh water and

air supplies, and enhancing fish and wildlife habitat.

5

AFA represents one of the state’s largest manufactur-

ing sectors which directly employs about 33,000

people with a $1.46 billion annually in payroll. Na-

tional forests are an important timber source for AFA

members in western Arkansas and AFA supports con-

tinued access to these forests. AFA has a long-standing

interest in ensuring that the use of forest roads on

federal land is subject to best management practices

and not NPDES permits. AFA was an intervenor in a

case on the Ozark National Forest where the Eighth

Circuit ruled that logging and road building was cov-

ered by EPA’s silvicultural exemption from NPDES

permits. Newton County Wildlife Ass’n v. Rogers, 141

F.3d 803, 810 (8th Cir. 1998).

The Federal Forest Resource Coalition, Inc. (FFRC)

is a national coalition consisting of small and large

companies and regional trade associations through-

out the country whose members manufacture wood

products, paper, and renewable energy from federal

timber resources. FFRC is a District of Columbia non-

profit corporation. Coalition members employ over

350,000 workers in over 650 mills, with payroll in ex-

cess of $19 billion. FFRC wants to ensure timely and

effective access to federal lands to sustainably pro-

duce timber, pulpwood, and biomass and for prompt

management to protect federal forests from insects,

disease, and wildfire.

Minnesota Forest Industries, Inc. (MFI) repre-

sents forest products producers and landowners that

are committed to conservation, quality forest manage-

ment, and industry development that fosters sound

6

environmental stewardship, multiple use of timber-

lands, and a dependable long-term timber supply.

MFI is a Minnesota nonprofit corporation. Many of

MFI’s members purchase sawtimber and pulpwood

from the Superior and Chippewa National Forests.

MFI’s members depend on timely access to these

forests to complete timber sale contracts, particularly

since access is limited during certain seasons. Disrup-

tion of access because of a time consuming NPDES

permit process would diminish an important supply

of federal timber to MFI’s members.

Intermountain Forest Association (IFA), a Wyo-

ming nonprofit corporation, develops and implements

solution-oriented policies intended to provide a posi-

tive climate for forest management as well as a stable

and sustainable supply of timber from public for-

estlands. IFA also works to assure that regulations

affecting its members remain reasonable. IFA has

members in Wyoming, Colorado, Montana, and South

Dakota. IFA has a firm commitment to environmental

responsibility and accountability, advancements in

manufacturing technology and forestry science, and

the business principles that have helped forest prod-

ucts businesses survive and prosper in the Inter-

mountain West for a century. IFA members rely on

national forest timber sales for an important part of

their timber supply and have an interest in continued

and ready access to the national forests.

PLC and NCBA (grazing amici) are deeply con-

cerned with the prospect of having access to their

members’ grazing allotments prohibited or restricted

7

because of a requirement for NPDES permits. Graz-

ing amici are also concerned about access delays and

restrictions impeding the development and mainte-

nance of water improvements many of which support

vested water rights. AFRC, MWPA, AFA, FFRC, MFI,

and IFA (timber amici) interests in obtaining timber

from federal lands to run their mills would be harmed

by an expensive and lengthy permit process imposed

on federal agencies to obtain NPDES permits. All

amici have an interest in continued access to their

members’ private land using roads that cross inter-

mingled federal land and the prospect of new avenues

for environmental litigation against federal agencies

further threatens amici’s members’ livelihoods.

°

SUMMARY OF THE ARGUMENT

The Ninth Circuit Court of Appeals failed to give

deference to the Environmental Protection Agency’s

(EPA) long-standing interpretation that forest road

construction, use, and maintenance from which nat-

ural runoff occurs does not require an NPDES permit

under section 402 of the Clean Water Act, 33 U.S.C.

§ 1342.

Rather than repeat petitioner’s legal arguments,

amici want to emphasize the exceptional importance

of the Ninth Circuit’s decision to the management of

the vast acreage of federal forest and rangeland

which supply timber and forage for thousands of fam-

ilies and businesses in rural communities. Leo Sheep

8

Co. v. United States, 440 U.S. 668, 678 (1979) (“Be-

cause this holding affects property rights in 150 mil-

lion acres of land in the Western United States, we

granted certiorari”); Andrus v. Utah, 446 U.S. 500,

506 (1980). The effect of the Ninth Circuit decision

extends beyond non-federal lands and logging activity

which are at issue in this case. The decision also

applies to millions of acres of federal land and to the

roads used to access timber sales on national forests

and public lands managed by the BLM. The decision

also affects ranchers who use roads on federal land to

access their federal grazing allotments and to main-

tain water rights, and to intermingled private and

state landowners whose lands can only be accessed by

roads across federal land.’ Finally, neither the Ninth

Circuit nor EPA has defined what in fact constitutes

a “logging road” or a “forest road.” Many roads on

public lands are used for forest management activi-

ties beyond logging, including critical access for

fighting wildfires, for recreation, and for other multi-

ple use activities. Access for these purposes would all

be impacted by an NPDES permit requirement.

Amici agree with EPA’s long-standing interpreta-

tion that logging which occurs over several months on

a site on 20 to 40 year intervals is not an industrial

activity and that natural runoff is best controlled by

non-point source best management practices. 55 Fed.

* States owning land intermingled with federal land will be

similarly affected.

9

Reg. 47,990, 48,011 (Nov. 16, 1990). Logging on tracts

of public land is even less frequent, often separated

by intervals of 50 years or more. Nor is grazing an

industrial activity when it occurs on a federal allot-

ment where a pasture may be grazed for only a few

weeks out of the year and the road used twice annual-

ly to bring livestock to and from federal pastures.

Moreover, on millions of acres of federal land, the

same road accesses both federal forest and pasture

and an injunction or regulatory restrictions on haul-

ing logs will harm ranchers who need to use the same

roads to haul livestock.

¢

ARGUMENT

The Ninth Circuit decision will broadly limit the

federal land management agencies’ ability to continue

to sell timber, issue grazing permits, manage and

authorize fencing and water source improvements,

contract for road construction and restoration pro-

jects, and provide timely access to intermingled pri-

vate lands that can only be reached across federal

land.

A. Resource Management of a Vast Area of

Federal Forest and Rangeland is Likely to

be Disrupted by the Erroneous Ninth Cir-

cuit Decision.

It is unclear whether the federal land management

agency and the intermingled private landowners or

10

timber purchasers, grazing permittees, and road con-

tractors would be obligated to obtain NPDES permits

and conduct the required water runoff monitoring or

whether this would be the responsibility of the fed-

eral land management agency. Regardless of who is

responsible for obtaining the permit and conducting

the monitoring, it would be an extremely costly, time-

consuming, and daunting task. Nationwide, the For-

est Service has approximately 378,000 miles of roads

under its jurisdiction, covering 193 million acres. U.S.

FOREST SERVICE, IMPLICATIONS OF DECISION IN NEDC

Vv. BROWN TO SILVICULTURAL ACTIVITIES ON NATIONAL

FOREST SYSTEM LAND, Doc. 1570-1, at 3 (Sept. 7,

2010). Amici App. la. The Forest Service estimates

that if it must obtain permits for roads under its con-

trol, it would have to obtain over 400,000 permits.

The agency estimates it could take more than 10

years to complete the permitting process. Jd. at 5a.

Even if the Forest Service can obtain programmatic

permits by state, it estimates it would still take sev-

eral years to obtain the necessary programmatic per-

mits. Jd.

The NPDES permit requirements and associated

litigation will significantly impede the ability of the

Forest Service and BLM to manage federal forests

and rangeland, sell timber, issue grazing permits, re-

pair roads, and restore forests and range to reduce

the risk of wildfires. Wildfires on unhealthy federal

forests and rangeland have burned onto amici’s mem-

bers’ private lands damaging forest and range re-

sources including wildlife habitat and water quality.

An onerous permitting process to keep roads open

11

and maintained will increase the incentive for federal

agencies to expand the obliteration and closure of

roads and will discourage road maintenance. This

will exacerbate the problem of federal, local, and pri-

vate firefighters being hindered by inadequate access

in an initial attack of wildfires during the critical first

24 hours after a fire starts and mean fewer roads to

use as a fuel break to control a fire. Thousands of

acres have burned unnecessarily because of limited

access.

Both the Forest Service and BLM have a large

backlog of fish passage restoration work to replace

road culverts that are blocked, poorly sized, or too

far elevated above the stream. U.S. General Account-

ing Office, GAO-02-136, RESTORING FISH PASSAGE

THROUGH CULVERTS ON FOREST SERVICE AND BLM

LANDS IN OREGON AND WASHINGTON COULD TAKE DEc-

ADES (2001). An NPDES permit requirement for in-

stallation of replacement culverts will stall this fish

habitat improvement work even further. Formal ad-

ministrative protests have been filed to halt use of

roads for projects involving log hauling and road

rehabilitation work on BLM lands on the grounds

that the projects need a Clean Water Act discharge

permit. See Administrative Protest of Evans Creek

Project Decision Record and Finding of No Significant

Impact as Implemented via the Skeleton Mountain

Timber Sale, Klamath Siskiyou Wildlands Center, http://

www.blm.gov/or/districts/medford/plans/evans/files/KS

WildSkeletonProtest.pdf at 20.

12

Amici’s concern that a vast acreage of federal

lands will be drawn into this controversy is supported

by actions of environmental groups. Before Congress

temporarily directed that the Administrator of the

EPA not require NPDES permits for discharge of

stormwater runoff from forest roads (section 429 of

the Consolidated Appropriations Act of 2012, Pub. L.

No. 112-74, § 429, 125 Stat. 786, 1046-47 (Dec. 23,

2011)), environmental groups threatened to stop the

use of roads on federal land based on the Ninth Cir-

cuit decision. Three days after the Ninth Circuit filed

its original opinion, the Alliance for the Wild Rockies

and the Selkirk Conservation Alliance filed a 60-day

notice of intent to sue for violation of the Clean Water

Act challenging the Lakeview-Reeder Fuels Reduc-

tion Project. App. 10a. The project involves road

maintenance, road construction, and road storage and

decommissioning to achieve long-term sediment

reduction and watershed improvement on the Idaho

Panhandle National Forest in Idaho. A complaint

challenging the project was filed on October 6, 2010.

Alliance for the Wild Rockies v. McNair, No. 2-CV-

00504-EJL (D. Idaho). The Forest Service subse-

quently withdrew the project and it was over a year

and a half before supplemental analysis was com-

plete.

Two projects in California were also challenged

on the grounds that the Forest Service has not ob-

tained an NPDES permit for the silviculture, road

use, and road restoration included in these projects.

The first project is the Angora project in the Lake

13

Tahoe Basin Management Unit that was prepared

in response to the Angora fire within the Wildland

Urban Interface (WUI) Defense Zone, which de-

stroyed or damaged more than 250 structures on the

South Shore of Lake Tahoe. Environmental Assess-

ment, Angora Fire Restoration Project, USDA FOR-

EST SERVICE (July 2010), http://www.fs.usda.gov/

Internet/FSE_DOCUMENTS/stelprdb5181776.pdf. The

Angora project includes removal of dead and dying

trees, relocating roads outside of streamside zones,

replacement of undersized culverts, and construction,

decommissioning, and restoration of roads. Id. The

second project is the Klamath National Forest travel

management plan that will prohibit off-highway

vehicle travel in some areas and permit off-highway

vehicle travel on other roads. Final Environmental

Impact Statement; Motorized Travel Management

Plan (formerly Motorized Route Designation), Klamath

National Forest California and Oregon, USDA FOR-

EST SERVICE (January 2010), http://www.fs.usda.

gov/Internet/FSE_DOCUMENTS/stelprdb5 120060. pdf.

Off-highway vehicles and federal roads are used by

ranchers to administer their federal grazing allot-

ments, move livestock between pastures, and main-

tain fences and water sources. The administrative

appeal argued that the Forest Service must obtain an

NPDES permit which will delay much needed road

restoration, culvert replacement, and forest health

projects that lead to improved water quality.

The EPA has announced its intent to revise storm-

water regulations to specify that NPDES permits are

14

not required for stormwater discharges from logging

roads under Phase I of the stormwater program. 77

Fed. Reg. 30,473 (May 23, 2012). EPA also announced

in the notice that it will consider adoption of remedial

regulations with forest roads under the Clean Water

Act section 402(p)(6), id., presumably because forest

roads will remain point sources unless this Court re-

verses the Ninth Circuit’s decision invalidating EPA’s

regulation at 40 C.F.R. § 122.27. However, plaintiffs

are certain to litigate EPA’s interpretation relying on

the Ninth Circuit’s holding that section 402(p) of the

Clean Water Act unequivocally creates a statutory ob-

ligation to treat stormwater runoff from logging roads

as a discharge associated with industrial activity. Pet.

App. 43a. Thus, EPA’s approach does not eliminate

the regulatory burden or the high likelihood of litiga-

tion gridlock.

B. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Struggling Forest Products

Businesses that Rely on Federal Lands as a

Source of Timber.

The extension of the Ninth Circuit’s decision to

federal forest land will adversely affect amici’s mem-

bers — whether responsibility to obtain the NPDES

permits lies with the federal agencies or amici’s mem-

bers who have contracts, permits, leases, easements,

and right-of-way agreements with these agencies. In

either case, the sale and removal of timber from

federal land and the use of grazing allotments will be

15

more costly and the approval process will be signifi-

cantly delayed. Maintaining a steady supply of public

timber at current market prices is crucial to help

existing milling infrastructure survive which is also

needed to help fight the forest health crisis on federal

lands. Kramer, Forest Service Says Lack of Sawmills

Hurting Forests, Wenatchee World (April 12, 2011),

http//www.wenatcheeworld.com/news/2011/apr/02/forest-

service-says-lack-of-sawmills-is-hurting/. Delaying pub-

lic timber sales now for several years by requiring a

costly NPDES permit process for the use of logging

roads will threaten the already tenuous operations of

sawmills, and of road and stewardship contractors

that provide scarce jobs to support the struggling

economies of rural communities. In order for the in-

stalled milling capacity and the skilled woods work-

ers who support it to survive to better times, it is

vital that the timber supply from public lands not be

further curtailed by an NPDES permit process. If this

infrastructure is lost by further constraining the

supply of timber, it is unlikely that the investment

will ever again be made in this industry and the loss

of jobs will become permanent. This will devastate

already struggling rural communities.

16

C. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Ranching Families and

Businesses that Often Use the Same Roads

Used for Logging on Federal Land.

Ranching families and businesses face similar

concerns regarding the Ninth Circuit decision as

they depend on “logging” roads to access their graz-

ing leases on federal land. Since federal regulations

discourage construction of duplicate roads, separate

road systems have not been created for each specific

purpose. See, e.g., 43 C.F.R. § 2812.0-6(a}(b) (“The

intermingled character of the O. and C. lands pre-

sents peculiar problems of management which re-

quire for their solution the cooperation between the

federal government and the owners of intermingled

lands, particularly with respect to timber roads ...

the duplication of an existing road reduces the value

of the federal and other timber which is tapped by the

existing road.”). Federal roads are used by loggers

and ranchers alike. If the use and maintenance of a

“logging” road on federal land without an NPDES

permit violates the Clean Water Act, then invariably

the Forest Service or BLM will preclude the use of the

road for hauling logs, livestock, or other commercial

products until an NPDES permit is issued. If the

agencies choose not to preclude use of a “logging” road

pending completion of an NPDES permit, then envi-

ronmental groups undoubtedly will seek a judicial

order to preclude the use of the road more broadly.

Amici App. 9a.

17

D. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Intermingled Landowners

who Require Access Across Federal Land.

Federal land is often intermingled with private

land and the use of private land is dependent upon

access across federal land. See, e.g., E. RICHARDSON,

BLM’s BILLION — DOLLAR CHECKERBOARD, MANAGING

THE O & C LANDS (1980); Forest Roads: Construction

and Financing, Cong. Res. Serv. Rep. 97-706 (1997),

p.1 n.1. The Forest Service and BLM often have road

use or right-of-way agreements with intermingled

landowners that provide for sharing the cost of road

construction and maintenance. See 42 U.S.C. § 1762

(Cost-Share Road Authorization). The BLM updated

their Best Management Practices in 2011 and “as a

result, current road construction and maintenance

standards are substantially improved over the stan-

dards in existence when the CWA was enacted in

1972.” 77 Fed. Reg. 30,473, 30,478 (May 23, 2012).

Amict who have in holdings must access their forest

or rangeland across roads on federal land. Lawsuits

to compel federal agencies to obtain permits for fed-

eral roads will directly affect intermingled landowner

access. Intermingled landowners face the prospect of

being denied access to their private lands while wait-

ing for federal land management agencies to complete

the NPDES permit process.

°

18

CONCLUSION

Amici respectfully request that the Court reverse

the Ninth Circuit’s holding that NPDES permits are

required for logging roads which extend through mil-

lions of acres of federal forest and rangelands and

intermingled private lands. These lands supply tim-

ber and forage to support rural families and busi-

nesses that cannot afford to have federal resource

management paralyzed by an unnecessary permit

process and an interpretation of the Clean Water Act

that will provide environmental groups new fertile

ground for public lands litigation.

Respectfully submitted,

Scott W. HORNGREN

Counsel of Record

AMERICAN FOREST

RESOURCE COUNCIL

5100 SW Macadam

Suite 350

Portland, Oregon 97239

(503) 222-9505

shorngren@amforest.org

CAROLINE M. LOBDELL

WESTERN RESOURCES

LEGAL CENTER

5100 SW Macadam

Suite 350

Portland, Oregon 97239

(503) 222-0628

Attorneys for Amici Curiae

August 2012

la

APPENDIX

IMPLICATIONS OF DECISION IN NEDC V.

BROWN TO SILVICULTURAL ACTIVITIES

ON NATIONAL FOREST SYSTEM LAND,

U.S. FOREST SERVICE, SEPT. 7, 2010

Forest Service

Washington Office

1400 Independence Avenue, SW

Washington, DC 20250

File Code: 1570-1 Date: September 17, 2010

Route To:

Subject: Implications of Decision in Northwest

Environmental Defense Center v. Brown to

Silvicultural Activities on National Forest

System Land

To: Regional Foresters, Station Directors, Area

Director, IITF Director, Deputy Chiefs and

WO Directors

On August 17, 2010, the United States Court of

Appeals for the Ninth Circuit (9th Circuit), in North-

west Environmental Defense Center v. Brown (NEDC),

07-35266 (9th Circuit), ruled that it considers storm

water runoff from logging roads to be a discharge of

pollutants from a point source when collected by

ditches, canals, and culverts and discharged into

streams. As such, the 9th Circuit ruled that these

discharges are subject to permitting requirements of

the Clean Water Act’s (CWA) National Pollutant

Discharge Elimination System (NPDES). Environ-

mental Protection Agency (EPA) regulations at Title

2a

40, Code of Federal Regulations, Section 122.27 (the

“Silvicultural Rule,”) exempted such discharges from

the CWA’s permitting requirements prior to this

ruling. The Court held that the Silvicultural Rule

violates CWA.

Although the Forest Service was not a party to

NEDC, several questions have arisen about applica-

tion of the decision to silvicultural activities on Na-

tional Forest System land and its impacts on State,

private, Tribal, and forest lands under other jurisdic-

tions. The enclosed document, prepared by the Forest

Service and the Office of General Counsel, addresses

questions that field units have asked about NEDC.

Because the Forest Service was not a party, the

Agency is not immediately impacted by the 9th

Circuit decision in this case. At this time it is recom-

mended that Forest Service personnel:

e Continue the use of best management

practices, compliance monitoring, and

update of National Best Management

Practices Handbook and Monitoring Pro-

tocols.

e Work with EPA regional offices and

States with delegated permitting author-

ity to address permitting for logging

road ditches and culverts.

¢ Continue to coordinate closely with EPA

regarding best management practices.

3a

If you have further questions regarding NEDC and

its impact on the Forest Service, please contact your

regional Office of General Counsel.

/s/Richard J. Cook (for) Tony Tooke

TONY TOOKE

Director for Ecosystem Management Coordination

cc: Anne Zimmermann

Richard Sowa

Tom Peterson

Q&As: 9th Circuit’s August 17, 2010

decision in Northwest Environmental

Defense Center v. Brown

Date: September 7, 2010

Issue: The 9th Circuit ruled that it considers storm

water runoff from logging roads collected by ditches

and culverts and discharged into streams to be a

discharge of pollutants from a point source subject to

permitting requirements of the Clean Water Act’s

(CWA) National Pollutant Discharge Elimination Sys-

tem (NPDES). Environmental Protection Agency (EPA)

regulations at Title 40, Code of Federal Regulations

(CFR), Section 122.27 (the “Silvicultural Rule,”) exempted

such discharges from the CWA’s permitting require-

ments. The court held this exemption violates CWA.

Q@: Was the Federal Government a Party to this

litigation?

A: No. Neither EPA nor the Forest Service (FS) was

a party in this lawsuit. This case involved environ-

mental groups, private timber operators, and Oregon

4a

state officials. The FS is not immediately bound by

this ruling. However, it could have impacts on FS

activities.

Q: Did the 9th Circuit issue a nationwide

injunction?

A: No. The 9th Circuit did not issue a nationwide

injunction of the regulations at 40 CFR §122.27, but

remanded the case to the District Court for further

proceedings. The 9th Circuit has not issued any

injunction, final order, or mandate. It is unclear when

the District Court of Oregon will act or how those

further proceedings may impact the FS or private

entities.

Q: How might this lawsuit impact FS opera-

tions?

A: The FS will likely need to obtain a permit for the

discharge of storm water from logging roads, which is

channeled through a system of culverts, pipelines,

ditches, or other diversions. Although the decision in

this particular lawsuit did not immediately bind the

Agency, the FS has received its first notice of legal

challenge to road construction and maintenance

activities based on this decision and anticipates

additional challenges within the 9th Circuit. States

located within the jurisdiction of the 9th Circuit

Court of Appeals include Arizona, California, Nevada,

Oregon, Idaho, Washington, Montana, Alaska, and

Hawaii.

5a

Q: If the FS needs to obtain NPDES permits

for its logging roads, how long will that take?

A: The FS is still evaluating the answer to this

question. EPA has delegated NPDES permitting

authority affecting National Forest System lands to

the State governments of all but four States (ID, NM,

Mass., and NH) and has retained it in most of the

territories (including Puerto Rico). Each State has a

different process and timeline in place for issuing

permits. Some States may determine that a general

permit for logging roads is appropriate, while others

may determine that individual roads or timber pro-

jects require road-specific or project-specific permits.

The FS will have to work closely with EPA and the

States to efficiently obtain permits where necessary.

If the FS is required to obtain programmatic permits

by State, we may have to work with 46 States and the

process could take several years. If the FS is required

to obtain permits on a road by road basis, that would

mean obtaining up to 400,000 permits. This would

likely take more than 10 years. There would also be

an ongoing workload to maintain and administer

these permits.

States located within the jurisdiction of the 9th

Circuit Court of Appeals should be prioritized for any

permitting activity.

6a

Q: If the FS must obtain NPDES permits for its

logging roads, how much will it cost?

A: The FS is still evaluating the answer to this

question. See answer above.

Q@: How will this ruling impact private timber-

lands?

A: Timber companies and others conducting silvi-

cultural operations on private timber lands will likely

be impacted in a manner similar to the FS, in that

under this ruling, they must obtain a NPDES permit

for storm water runoff associated with silvicultural

activities and logging roads discharged to waters of

the United States through a system of culverts,

ditches, and canals. There are approximately 260

million acres of private woodlands across the United

States. They are accessed by a road network that

consists of Federal, State, county, and private roads.

Interior roads accessing these acres are low-volume

timber access roads similar to roads found within the

Federal estate which access comparable forested

lands. Similar challenges will exist with NPDES

permitting on these lands when ditch and culvert

templates are used for drainage and travel way

stability. The FS currently has inventoried approxi-

mately 378,000 miles of roads under its jurisdiction of

approximately 193 million acres. Although no com-

prehensive database of roads traversing private

timber roads exists, it is reasonable to extrapolate

that private owners will have a proportionate number

of roads needed to access their timber. The specific

7a

issue before the 9th Circuit involved private entities

and the State of Oregon, and the Court’s ruling may

eventually affect all entities involved in resource

management, whether private, State, or Federal.

Q: Must the FS stop building logging roads to

wait for permits from the States or EPA?

A: No. The ruling does not immediately apply to the

FS. The Circuit Court remanded the case to the

District Court of Oregon for further proceedings. The

District Court’s future opinions may be instructive as

to when and how the ruling might take effect. The

FS, in the interim, should coordinate closely with

EPA to determine the most efficient way to move

forward.

Q@: Does the 9th Circuit’s ruling apply to new,

existing, or reconstruction of logging roads?

A: The opinion does not distinguish between new,

existing, or reconstruction of logging roads, but

concluded that storm water runoff from logging roads

that is collected by and then discharged from a sys-

tem of ditches, culverts, and channels is a point

source discharge for which a NPDES permit is re-

quired. The lawsuit challenged private timber opera-

tors’ failure to obtain a NPDES permit for existing

logging roads.

Q@: Have EPA or the States permitted discharge

of storm water from logging roads before?

A: No. Prior to the Court’s August 17, 2010, opinion,

the Silvicultural Rule at 40 CFR §122.27 was in effect

8a

and no permit was required. The Silvicultural Rule was

an exemption to the CWA’s permitting requirements,

and was based upon Best Management Practices that

EPA and the FS had agreed upon, and which the FS

already had in place.

Q: How will this Ruling change storm water

management activities on the ground?

A: This ruling should not affect road management

practices. The FS currently uses best management

practices (BMPs) and will continue to implement

them to minimize sediment delivery to streams.

Q: Is there any chance that this decision could

be overturned after further review by a higher-

level court?

A: This is unknown, but unlikely at this time. This

decision was decided by the 9th Circuit Court of

Appeals. Additional review by either the 9th Circuit

or the Supreme Court is very rarely granted, and the

Federal Government has almost no ability to request

further review of this decision because it was not a

party to the litigation.

9a

SIXTY DAY NOTICE OF INTENT TO SUE,

AUG. 20, 2010

Law Office of Dana Johnson, PLLC

Dana M. Johnson, Attorney at Law

August 20, 2010

VIA CERTIFIED MAIL

Chief Tom Tidwell

USDA Forest Service

201 14th Street SW

Washington., DC 20250

Ranotta McNair, Forest Supervisor

Idaho Panhandle National Forest

3815 Schreiber Way

Coeur d’Alene, ID 83815

Secretary Tom Vilsack

U.S. Department of Agriculture

1400 Independence Ave,, SW

Washington, D.C. 20240

Secretary Ken Salazar

U.S. Department of the Interior

1849 C Street, NW

Washington, DC 20240

RE: Sixty-day Notice of Intent to File Suit for

Violations of the Clean Water Act

Dear Chief Tidwell, Supervisor McNair, Secretary

Vilsack, and Secretary Salazar:

I am writing on behalf of Alliance for the Wild

Rockies (AWR) and the Selkirk Conservation Alliance

(SCA). AWR and SCA intend to file a citizen suit

10a

pursuant to Section 505(a) of the Federal Water

Pollution Control Act (Clean Water Act or CWA), 33

U.S.C. Section 1365(a). AWR and SCA hereby give

notice, pursuant to Section 505(b) of the CWA, 33

U.S.C. Section 1365(b), that the USDA Forest Service

has violated and continues to violate the conditions of

the National Pollutant Discharge Elimination System

(NPDES) as required by the CWA and its Implement-

ing regulations.

On December 4, 2009, the Forest Supervisor of

the Idaho Panhandle National Forests approved the

implementation of the Lakeview-Reeder Roads Pro-

ject, and on May 10, 2010, the Forest Supervisor of

the Idaho Panhandle National Forests approved the

implementation of the Lakeview-Reeder Fuels Reduc-

tion Project. AWR and SCA have reviewed public file

documents available on the USDA Forest Service

website for the Lakeview-Reeder HFRA Project and

have identified reporting, monitoring, and compliance

violations. If you have information that indicates the

violations listed in this notice did not occur or are

incorrectly stated, please immediately respond and

specify to which violation that information applies.

AWR and SCA intend to file suit at the end of the

sixty (60) day notice period to enforce compliance

against these violations as well as any additional

violations that AWR and SCA may discover.

AWR and SCA are non-profit organizations

dedicated to the protection of natural resources in the

Northwest. AWR and SCA members regularly use and

enjoy the waterways in Idaho, which are impaired by

lla

the discharge of pollutants through stormwater

runoff from logging roads. The Forest Service has an

obligation under the CWA to regulate its stormwater

discharges from these logging roads.

Violations of NPDES Permit

Requirements for Point Source Discharge

Stormwater Runoff from Logging Roads

Road work is proposed throughout the Lakeview-

Reeder Project area, including road maintenance,

road construction, and road storage and decommis-

sioning. Major watersheds in the Project area are

Granite Creek, Reeder Creek, and Kalispell Creek.

Each of the streams in the project area is listed by the

State of Idaho as impaired and not fully supporting

beneficial uses. Kalispell Creek and Reeder Creek

both have approved Total Maximum daily Loads

(TMDL) for sediment. The Project would increase

sediment delivery to these at-risk streams, thereby

reducing water quality and impairing beneficial uses.

Stormwater runoff from logging roads deposits

large amounts of sediment into streams and rivers.

Much of this sediment is created by logging trucks

hauling timber over roads and grinding up surface

gravel and dirt. This sediment is then channeled

away from road areas by ditches and culverts and

eventually discharged into streams and rivers. The

sediment adversely affects fish by disrupting eggs,

decreasing oxygen levels, increasing stream tempera-

ture, and interfering with feeding.

12a

This stormwater runoff, collection, and discharge

is a point source discharge subject to the NPDES

permit process under the CWA. Sections 301(a) and

402 of the CWA prohibit the discharge of any pollu-

tant from a point source into navigable waters of the

United States without a NPDES permit. The USDA

Forest Service has violated the CWA and its imple-

menting regulations by not obtaining permits for

stormwater runoff that flows from logging roads into

systems of culverts, ditches, and channels and then

into forest streams and rivers.

Conclusion

If the above described violations are not cured,

AWR and SCA intend to file suit under the CWA after

the mandated sixty (60) day notice period to protect

Jdaho water resources and the interests of the AWR

and CWA users who regularly use them, The intent of

this action is to require the USDA Forest Service to

come into full compliance with CWA requirements,

particularly the NPDES permit process. In filing this

action, AWR and CWA Intends to seek Injunctive

relief as well as costs, attorneys’ fees and litigation

expenses as authorized by 33 U.S.C. Section 3.365(d).

If you wish to discuss any aspect of this notice or

to discuss settlement of this matter prior to com-

mencement of suit, please contact us.

13a

Persons Giving Notice

The full names, addresses, and telephone numbers of

the parties providing notice are:

Michael Garrity, Executive Director

Alliance for the Wild Rockies

P.O. Box 505

Helena, Montana 59624

(406) 459-5936

Mark Sprengel, Executive Director

Selkirk Conservation Alliance

P.O. Box 1809

Priest River, ID 83856

(208) 448-4110

The attorneys representing the parties in this notice

are:

Dana M. Johnson

Law Office of Dana Johnson, PLLC

P.O. Box 9623

Moscow, ID 83843

(208) 874-3158

Rebecca K. Smith

Public Interest Defense Center, P.C.

P.O. Box 7584

Heligate Station

Missoula, Montana 59807 (406) 531-8133

Sincerely,

Dana M. Johnson, Attorney

Law Office of Dana Johnson, PLLC

l4a

COPIES TO:

Lisa P. Jackson, Administrator

United States Environmental Protection Agency

401 M Street SW

Washington, DC 20460

Dennis McLerran, Regional Administrator

United States Environmental Protection Agency,

Region 10

1200 6th Avenue, Suite 900

Seattle, WA 98101

Eric Holder, Jr., Attorney General

of the United States

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Toni Hardesty, Director

Idaho Department of Environmental Quality

1410 N. Hilton

Boise, [ID 83706