In a case brought by the North American Packgoat Association, among others, a Court recently held the Forest Service in contempt of court and awarded attorney’s fees to the plaintiffs based on the agency having relied on a report which the Court had previously prohibited the agency from using. The two reports discussed the risk of domestic goats and sheep transmitting disease to bighorn sheep. The Court disagreed with the Forest Service, finding that the agency had in fact relied on the banned report in its more recent report.
The first report, prepared in 2006, addressed the risk of domestic goats and sheep transmitting disease to bighorn sheep on the Payette National Forest. In 2009, a court ruled that the 2006 report was prepared in violation of the Federal Advisory Committee Act (FACA) and prohibited the Forest Service from relying on its conclusions. In 2012, the Forest Service prepared another report on the same issue on the Shoshone National Forest and cited to and quoted from the 2006 report. The plaintiffs claimed that, in doing so, the Forest Service had violated the 2009 court order. The Forest Service responded that the portions of the 2006 report which it quoted did not contain conclusions and that, regardless, there was a substantial amount of scientific literature supporting the conclusions which it reached in the 2012 report.
The Court disagreed with the agency, finding that the Forest Service did rely upon the conclusions in the 2006 report and never cited to a single new source. Therefore, the Court held that the agency was in contempt of court for violating the prior court order and ordered the agency to pay appropriate attorney’s fees of the plaintiff. The Court did not, however, invalidate the 2012 report because the Shoshone National Forest was in a different state but instead scheduled a hearing with the parties to discuss the resolution of that issue.