In response to the recent controversy regarding the use of public bathrooms in schools by transgender individuals, the National Park Service reportedly has stated that bathrooms, showers and changing areas at all NPS sites are, and have been, open to individuals on the basis of their gender identity, as opposed to their biological gender. “As it relates to recently passed state laws relating to the transgender community, visitors to public lands and water sites are welcome to use restrooms that best align with their gender identity,” was a comment attributed to an NPS spokesman. Another NPS spokesman reportedly addressed the issue by stating that “[p]eople have always been able to choose the public restroom within the national park system that aligns with their gender identity. The National Park Service has never had a rule that determined nor designated what restroom someone should use according to their gender identity.” However, at this time, NPS has not issued any formal guidance to its concessioners as to this issue.
Archives for June 2016
A bill was recently introduced in Congress to improve and reduce the costs of issuing permits for guide and outfitter operations on the National Forests and BLM lands. Entitled “Guides and Outfitters Act” or the “GO Act,” among other things, the proposed legislation reduces the time and cost of issuing new permits by not requiring environmental analyses for activities which were considered under prior analyses, are similar to existing uses or are not inconsistent with approved uses. The bill would also allow for joint permits that would apply to both Forest Service and BLM lands. In addition, the bill would provide for deductions from fees by excluding revenues for related services provided outside of federal lands and fees paid to other federal agencies. The proposed legislation also states that no fee shall exceed 3% of gross revenues for activities on federal lands. In addition, the bill requires that, when agencies are adjusting priority use allocations, they allocate the amount of highest use over the reviewed period plus an additional 25%, not to exceed the original use amount.
The bill is making its way through the laborious legislative process, and at this point has been referred to the Subcommittee on Conservation and Forestry.
A court recently denied a request for a temporary restraining order to stop an ongoing logging project on the Payette National Forest, even though such injunctions have usually granted by the courts on the basis that environmental injury, by its nature, is often irreparable. In the case, plaintiffs submitted numerous declarations stating that the logging project would irreparably harm their ability to view, experience, recreate, enjoy and utilize the area involved. The court’s decision was notable because it held that the plaintiffs’ standard allegations of harm to their ability to enjoy the area involved in the logging project were not sufficiently specific to show a likelihood of irreparable harm. The court held that logging is not per se sufficient to warrant an injunction, even though it will result in permanent removal of trees, and the project only impacted 1,011 acres of the overall 80,000 acres in the area at issue.
The court also found that the public interest was not in favor of an injunction because the logging project itself would benefit the public. The project was designed for the purpose of restoring the forest to its historic condition, improve habitat connectivity, increase recreational opportunities, reduce wildfire risk and provide water restoration. In addition, the court found that the project would provide employment and economic benefits to the surrounding communities.
A court recently rejected the National Park Service’s request to provide a redacted copy of an existing concession contract as part of an ongoing lawsuit rather than the entire document. NPS had sought to withhold parts of the concession contract based on the assertion that they were confidential. However, the court noted that the terms of existing concession contracts must be publicly disclosed in any solicitation for a new contract and that the concessioner had publicly disclosed its franchise fee. Thus, the court concluded that there was little risk of disclosing commercially sensitive business and pricing information.
A court recently found that the Forest Service’s approval of a special use permittee’s master development plan (MDP) was not a final decision that required any NEPA analysis. The court’s conclusion was based on its determination that approval of the MDP did not commit the Forest Service to allow any of the development proposed under the plan. The court also agreed with the Forest Service that a specific mountain bike trail and skills area project approved under the MDP, if completed, would not have any significant impacts on the environment, and therefore no environmental impact statement (EIS) was required.
Plaintiffs alleged that the Forest Service’s mere acceptance of the MDP constituted a “major federal action” that subjected the decision to a NEPA analysis. Plaintiffs thus argue that the Forest Service violated NEPA by failing to solicit public comment and analyze the environmental effects of the MDP. However, the Forest Service argued that its “acceptance” of the MDP did not constitute “approval” for projects identified in the plan. The court agreed with the Forest Service, holding that the MDP simply identified the permittee’s vision for future developments and that subsequent approval of individual project components would first require appropriate NEPA analysis. While the plaintiffs asserted that all parties benefit when a conceptual plan is subjected to NEPA review, the court noted that “more NEPA analysis is not necessarily better” if an agency expends scarce resources to review hypothetical projects “that may never be proposed or authorized.”