Coalition for Sustainable Resources Inc. vs. USFS

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t ' Page 10 48 F. Supp. 2d 1303, *; 1999 U.S. Dist. LEXIS 7198, **; 48 ERC (BNA) 1753 USFS harvested 24 percent of a 4133 acre catchment and concluded that such vegetation management techniques significantly increased water flows during the months when FWS believed the listed species suffer from insufficient water. (Compl. P 40.) Because substantial portions of the aforementioned forests lie within the Platte River Basin, a substantial portion of the total water yield increase could be produced annually (from vegetation and snow management techniques) to the Platte River and its tributaries. [**7] (Compl. P 42.) Thus, the implementation of vegetation and snow management programs on National Forest Lands within the Platte River drainage can produce most or all of the 238,000 acre-feet of the additional water that FWS asserts is necessary for the recovery of the listed species. (Compl. P 44.) CSR asserts that the activities explained above have not occurred and USFS has continued to manage these National Forests in a manner that will continue to increase forest density. (Compl. P 45.) Research by USFS shows that dense, uniform forests yield less water than diverse forests with openings. (Compl. P 47.) Furthermore, since the creation of the Medicine Bow, USFS fire suppression, pest control, and other vegetation management techniques have decreased the amount of water produced from that forest. (Compl. P 48.) Timber harvest is a proven technique that can increase water yield, and from 1986-1995 the total timber sale was only 58 percent of the allowable sale quantity ("ASQ") prescribed in the Medicine Bow Forest Plan. (Compl. P 50.) The 1997 Annual Report indicates that the trend of not meeting the ASQ has persisted through 1996 and 1997. (Compl. P 51.) Further, one or more of [**8] the federal defendants has announced that USFS intends to dramatically decrease the ASQ. (Compl. P 52.) Based on these allegations, CSR has filed a three Count Complaint. The first two counts have been brought via the "citizen-suit" provision, and under 16 U.S.C. § 1536(a)(1) of the ESA. In its first Count, CSR alleges that Defendants have failed to manage the Medicine Bow to maximize water available to listed species under the ESA. CSR alleges that the defendants have not used "all methods and procedures" necessary to bring the listed species to the point at which measures provided by the ESA are not necessary. (Compl. PP 56, 57.) CSR further alleges that Defendants have violated and continue to violate the ESA by not implementing snow and vegetation techniques to increase water flow to the Platte River Basin. (Compl. P 60.) CSR's second Count alleges that the defendants have managed the Medicine Bow forest vegetation to the detriment of the listed species under the ESA. Here CSR alleges that past and present USFS forest vegetation management will continue to exacerbate water shortages to listed species and that the defendants have a duty to prevent an increase in forest density [**9] to pre- National Forest levels. These actions have allegedly continued to decrease the quantity of water produced by the Medicine Bow. CSR's third Count alleges that the defendants have violated the requirements of the Forest and Rangeland Renewable Resources Planning Act ("FRRRPA," also known as the National Forest Management Act), 16 U.S.C. § 1600 et seq., by failing to implement snow and vegetation management programs (as described in the environmental analysis, Forest Plan, [*1308] and Coon Creek Report) to maximize water flows from the Medicine Bow to the benefit of listed species. Further, the defendants have allegedly continued to violate FRRRPA by failing to comply with the Forest Plan prohibition against an increase in forest density above historic and pre-National Forest levels. CSR seeks the following relief regarding the Medicine Bow: (1) that this Court adjudge and declare that the defendants are violating the ESA by not implementing proper snow and vegetation management programs, as described in the Forest Plan, its environmental analysis, and the Coon Creek Report, that maximize water flow to the listed species in Nebraska; (2) that this Court adjudge and declare that the [**10] defendants are violating the ESA by failing to prevent an increase in forest density above pre-National Forest and historic levels; (3) that this Court adjudge and declare that the defendants are violating FR1tRPA in various ways; (4) that this Court enjoin the defendants from further violations of the ASQ requirements in the Forest Plan and require an increase in the current ASQ requirements; (5) that this Court enjoin Defendants from allowing any further increases in forest density; and (6) if this Court should grant the previous relief requested, that it require the defendants to satisfy such an order without interference to private property rights. Medicine Bow Background and Statutory Background For National Forest Management Act The Medicine Bow National Forest was reserved in 1902. The forest is located in south-central Wyoming. The Medicine Bow is not a contiguous land unit, but instead encompasses four separate areas. The Medicine Bow is approximately 1,095,386 acres in size. Approximately 65% of this forest drains into the Platte River Basin.