Litigation Weekly Feb. 6, 2017

  1. No new court decisions.

Litigation Update

  1. No new litigation updates.

New Cases

  1. Minerals I Region 9

Plaintiffs filed suit in the District Court of the District of Minnesota alleging the Forest Service’s final Record of Decision (ROD) approving a land exchange known as the PolyMet NorthMet Land Exchange (PMLE) in the Superior National Forest violates the Federal Land Policy and Management Act (FLPMA) in Waterlegacy v. USDA et al. The PMLE is a proposal to exchange 6,650 acres of federal land for 6,690 acres of private land. The purpose of the exchange, according to the complaint, is to enable a foreign corporation, PolyMet Mining, Inc., to develop an open-pit copper-nickel mine.

FLPMA, the complaint states, requires “[t]hat equal value determinations for land exchanges be based on the highest and best use of the property, estimating the value of lands and companies as if in property ownership and available for sale in the open market.” While the Forest Service valued the federal lands for the PMLE at $550 per acre, Plaintiffs claim this value is based solely on the value of timber and fails to consider the market value of the lands for mining purposes. Recent sales of surface lands by private owners to mining company purchasers in Northeastern Minnesota, as per the complaint, average $1,645 per acre. Because the purpose of the sale is to allow the development of an open-pit copper-nickel mine, but the price in the NOI only reflects the valuation of the timber, the complaint alleges the Forest Service failed to comply with FLPMA. Specifically, the complaint alleges the Forest Service ROD:

  1. Failed to consider the purpose and intent of the PMLE is to enable the use of federal lands for an open-pit mine;
  2. Failed to consider that the highest and best use of the property for valuation purposes is for mining;
  3. Devalued the lands by applying a timber income approach; and
  4. Failed to consider that there is a premium value of minerals underlying federal lands as opposed to private lands.

Plaintiffs request the Forest Service vacate the ROD approving the PMLE and seek to enjoin the Forest Service from approving the PMLE. (17-00276, D. Minn.).

Notices of Intent

  1. Wildlife I Region 5

The Environmental Protection Information Center (EPIC) submitted a Notice of Intent to Sue received on January 30, 2017, alleging that the Forest Service violated the Endangered Species Act (ESA) by approving livestock grazing along rivers that provide habitat for coho salmon in the Klamath National Forest without first consulting with the National Marine Fisheries Service (NMFS).

In 2014, NMFS issued a Recovery Plan for coho salmon that states that the Upper Klamath River coho population is of significance to the species’ survival. Horse Creek, located in the Klamath National Forest, is a tributary of the Klamath River and provides habitat to coho that are part of the Upper Klamath River coho population. The NOI states the Forest Service has authorized and continues to authorize livestock grazing on allotments along and in Horse Creek without first consulting with NMFS as to site-specific and cumulative effects of livestock grazing along and in Horse Creek and its tributaries on coho salmon in violation of the ESA.

Natural Resource Management Decisions Involving Other Agencies

  1. No new decisions.

EPIC NOI received 1.30.2017

(I tried to upload the water legacy vs FS pdf file and WordPress said

Sorry, this file type is not permitted for security reasons.”) I can email to anyone interested.

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