FOREST SERVICE
Preliminary injunction in Yellowstone to Unitas Connection v. Marten (D. Montana)
On July 12, the district court granted plaintiffs an injunction of the noncommercial vegetation treatments in the Pintler Face Project on the Beaverhead-Deerlodge National Forest, while denying the request to enjoin salvage harvest in the four commercial timber sales (which were mostly ongoing). The court found that plaintiffs would be likely to win their argument that the Forest Service violated NEPA when it (1) failed to prepare a NEPA analysis for the 2020 decision to reclassify over a million acres as no longer lynx habitat (which had the effect of changing where forest plan direction would be applied), and (2) unlawfully tiered the Project EA and DN/FONSI to the new map. We discussed this case previously here.
Conviction reversed (10th Circuit)
On July 16, the 10th Circuit Court of Appeals reversed a conviction for posting on a personal account a photo that depicted an individual snowmobiling over a jump in a terrain park at Keystone Resort when the property was closed. The U.S. government successfully prosecuted the individual for trespassing and conducting unauthorized work activity on national forest land. The circuit court reversed the conviction for the latter charge, finding that, “It is one thing to require a movie producer or a photographer for Vogue to seek a permit for using public lands to conduct their business … But it is another thing to say that same individual is liable under the regulation when he or she visits (Forest Service) lands for a ski trip and makes a personal video for Instagram.” The defendant had admitted this incident was related to his business. The question of whether the trespassing charge requires a jury trial could be addressed to the Supreme Court.
Court decision in Knezovich v. U. S. A. (10th Circuit)
On July 26, the 10th Circuit Court of Appeals upheld the district court’s dismissal of claims for damages from the Roosevelt Fire on the Bridger-Teton National Forest to property owners and hunters who said rangers failed to adequately warn them to evacuate. Plaintiffs also claimed the Forest Service delayed actions to suppress the fire in order to accomplish resource benefits. The Forest Service disagreed. However, the court did not reach the merits of that argument, holding, “We have little trouble concluding that the ‘nature of the actions’ taken by the Forest Service involved the exercise of policy judgment of the sort the exception is meant to protect” (referring to the “discretionary function” exception to potential liability in the Tort Claims Act).
BLM
Court decision in Cascadia Wildlands v. U. S. Bureau of Land Management (D. Oregon)
On June 28, the district court upheld the Big Weekly Elk project, consisting of logging and thinning on about 1,500 acres in southwestern Oregon. The court interpreted the BLM’s resource management plan to support the BLM’s decision to exclude “edge effects” resulting from tree removal when it considers effects on the marbled murrelet’s nesting habitat to determine where plan direction for murrelets applies. The court found no violations of FLPMA or NEPA.
The court applied “Auer deference” to its review of the forest plan, as if it were an agency regulation. Similar to the Chevron test of statutory interpretation, this required finding that the plan was ambiguous regarding the meaning of the phrase “modifying nesting habitat.” The court did this, and then reviewed in detail the language in the plan documents and the FWS Biological Opinion for murrelets and found sufficient evidence that BLM’s application of the plan falls “within the bounds of reasonable interpretation.” The court concluded:
“… it makes little sense to require strict, 300-foot buffers for potential impacts from indirect edge effects from treatments in adjacent stands while encouraging—with the long-term goal of increasing nesting habitat via habitat restoration treatments—direct impacts from treatments within the occupied stand itself.”
An EIS was not necessary because any significant effects were already considered in the 2016 Resource Management Plan EIS, long-term benefits would outweigh any short-term concerns, and the Biological Opinion for the Project found minimal effects on spotted owls and murrelets.
Court decision in Alliance for the Wild Rockies v. Haaland (D. Montana)
On July 1, the district court upheld the Scratchgravel Hills Recreation Area Management Plan for BLM land north of Helena, Montana, which was designated as a 5500-acre Special Recreation Management Area in the applicable resource management plan. The Scratchgravel RAMP will result in 35 miles of new trails, and implement two trail systems: one for hikers and horseback riders only and the other for mountain bikers only. The decision, based on an EA, complied with NEPA and with the RMP, and “adhered to the principles of multiple use, as required by FLPMA.” The court also found that a proponent/consultant and the public users and homeowners whom he surveyed fail to meet the characteristics of an advisory committee under FACA.
New lawsuit: Center for Biological Diversity v. U. S. Bureau of Land Management (D. Arizona)
On July 11, the Center for Biological Diversity and the Maricopa Audubon Society sued the BLM and U. S. Fish and Wildlife Service over management of cattle grazing on three allotments in riparian habitat along the Big Sandy River in Arizona. Plaintiffs have found damaged riparian areas, and allege the agencies violated ESA by not reinitiating consultation on the allotments after the listing of the endangered southwestern willow flycatcher, the threatened western yellow-billed cuckoo and the threatened northern Mexican garter snake, while also failing to consult on renewal of 10-year grazing permits. The article includes a link to the complaint.
New lawsuit: American Farm Bureau Federation v. U. S. Dept. of the Interior (D. Wyoming)
On July 12, eleven agricultural, mining and energy organizations filed a lawsuit against the BLM’s recently adopted “Conservation and Landscape Health Rule.” Plaintiffs allege violations of FLPMA associated with the conservation leases the rule provides for, its treatment of Areas of Critical Environment Concern, and its public involvement. They also challenge BLM’s use of a categorical exclusion. (The article includes a link to this complaint.)
Another lawsuit filed in June was described here. On July 25, the Southern Utah Wilderness Alliance, Conservation Lands Foundation, and the Wilderness Society filed a motion to intervene in that case. Legislation was also passed in the House of Representatives that would withdraw the Rule (The Western Economic Security Today – WEST Act).
Court decision in Wilderness Society v. U. S. Department of Interior (D. D.C.)
On July 16, the district court refused to vacate the BLM’s decision to lease almost 120,000 acres of land for oil and gas development. While it had found in March (described here) that the BLM violated NEPA when making its decision, and prohibited the leases from proceeding, it concluded that, “In light of the ‘serious possibility’ that the Bureau will be able to substantiate its prior conclusions and the disruptive effects of setting aside the existing leases, the Court finds that vacatur is not the appropriate remedy in this case.” The article includes a link to the opinion.
ENDANGERED SPECIES
New lawsuit
On July 2, Animal Wellness Action Center For a Human Economy filed a lawsuit in Montana against the U. S. Fish and Wildlife Service’s decision to not relist the northern Rocky Mountains gray wolf under the ESA. Two previous cases were filed in April and were described here. This one was directly tied to a February wolf torturing incident, about which a retired Fish and Wildlife Service game warden was reported to say that Federal land management agencies such as the U.S. Forest Service and Bureau of Land Management likely already have the authority to ban the practice on the lands that they control. (Copy of the complaint not provided.)