FOREST SERVICE
New lawsuit: Grand Canyon Chapter of the Sierra Club v. Bosworth (D. Arizona)
On September 5, the Sierra Club and Maricopa Audubon Society sued the Forest Service and Fish and Wildlife Service for violating the National Environmental Policy Act and the Endangered Species Act in approving expanded operations at the Pinto Valley Mine, on the Tonto National Forest. The mining would allegedly reduce flows to nearby Pinto Creek and destroy habitat for the western yellow-billed cuckoo and the southwestern willow flycatcher. The complaint also alleges a violation of 36 CFR §228 (which implements the Forest Service’s Organic Act) by failing to protect fisheries and wildlife habitat, and using water without a state authorization. (The press release includes a link to the complaint.)
New lawsuit (again): Alliance for the Wild Rockies v. Anderson (D. Montana)
On September 9, Alliance for the Wild Rockies and Native Ecosystems Council filed a second lawsuit against the Gold Butterfly Project and associated forest plan amendments on the Bitterroot National Forest. The original project was withdrawn four years ago (as described here). The current lawsuit alleges violations of NEPA and revolves around excepting the project from forest plan requirements for old growth and elk, violating other forest plan requirements for elk, and inadequately addressing several other wildlife species and whitebark pine. It also includes a claim that violating the forest plan is also a violation of the Healthy Forest Restoration Act’s requirement to be consistent with the forest plan. The complaint is here.
Notice of Intent to Sue
On September 10, the law firm Earthjustice sent a notice of its intent to sue the Forest Service on behalf of Friends of the Bitterroot, Friends of the Clearwater, Native Ecosystems Council and WildEarth Guardians over its decision to amend the Bitterroot National Forest Plan to reduce its limitation on open road densities without complying with the Endangered Species Act for grizzly bears and bull trout. (The article includes a link to the NOI.)
New lawsuit (again): Monroe County Board of Commissioners v. U. S. Forest Service (S. D. Indiana)
On September 11, the County, Indiana Forest Alliance, Hoosier Environmental Council, and Friends of Lake Monroe filed a third lawsuit against the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, allegedly, “the single largest project to log and burn the Hoosier National Forest in its 89-year history.” This court had previously found that an EA contained inadequate analysis of the effects on the water quality of the Lake Monroe watershed, a drinking water source, and similar NEPA claims have been raised again. Plaintiffs ask the court to require an EIS. (The article includes a link to the complaint.)
Hearing in Western Watersheds Project v. Vilsack (10th Cir.)
On September 23, environmental appellants argued to reverse a September 2023 district court decision that upheld a 2020 amendment to the Thunder Basin National Grassland’s land management plan that removed measures protecting prairie dogs from poisoning and recreational shooting. They claim violations of NEPA and ESA’s duty to conserve the black-footed ferret. (The article includes a link to their brief.)
BLM
Court decision in Powder River Basin Resource Council v. U. S. Department of the Interior (D. D.C.)
On September 13, the district court enjoined he Converse County Oil and Gas Project, which would allow for 5,000 new oil and natural gas wells to be built across 1.5 million acres of brushland near the borders of Nebraska and South Dakota. The BLM acknowledged miscalculating the effects on local aquifers by a factor of 10,000; “the drastically higher specific storage value used by BLM may have resulted in ‘substantial underestimation’ of groundwater drawdown,” the judge wrote. There will be further briefing on whether to vacate the decision. (The article includes a link to the opinion.)
New lawsuits
The State of Idaho has recently filed two lawsuits against the Lava Ridge wind turbine project proposed for BLM lands. They have asked the 9th Circuit to find that the Federal Aviation Administration’s review of low-level flight hazards was inadequate. The second suit was filed in federal district court for the District of Idaho, related to the FAA’s incomplete response to a Freedom of Information Act request regarding the “hazard” evaluations.
ENDANGERED SPECIES
Court decision in WildEarth Guardians v. U. S. Fish and Wildlife Service (D. D.C.)
On September 5, the district court determined that the regulation designating black-footed ferrets as a “nonessential” experimental population in Wyoming was proper under the ESA, that the designation does not include an improper subdelegation of the FWS’s statutory duties to the Wyoming Game and Fish Dept., and that the FWS complied with the requirements of NEPA with the EA it prepared when it adopted the rule. A determination that the population is “nonessential” relaxes the ESA’s prohibitions on taking and the requirement that federal agencies engage in formal consultation with the FWS before taking an action that might affect the species.
New lawsuit: Pesticide Action Network North America v. Williams (N.D. California)
On September 9, the Center for Biological Diversity, Center for Food Safety, and Pesticide Action Network North America sued the U.S. Fish and Wildlife Service for failing to adequately protect more than 1,500 species of wildlife and plants from the insecticide malathion. They are challenging a 2022 biological opinion the FWS prepared for EPA’s registration of malathion which found no jeopardy to any of the species. Malathion is used in Forest Service programs to control insect pests in pine seed orchards and to control mosquitoes on lands managed by the Forest Service. (The news release has a link to the complaint.)
- Gray wolf delisting
Government appeal in Defenders of Wildlife v. U. S. Fish and Wildlife Service (9th Circuit)
On September 13, the Biden Administration endorsed the Trump Administration’s attempt to delist the gray wolf by filing an appeal of a district court decision that reinstated Endangered Species Act protections for gray wolves across most of the U.S. According to the government brief, “At its core, this appeal is about whether the purpose of the ESA is to recover endangered and threatened species to the point where they are no longer in danger of extinction, or whether it goes beyond that objective to require that a species be restored to its historical range before delisting.” (The article includes a link to the brief.)
It’s worth noting that the government is pursuing national delisting (based on recovery) in advance of its planned national recovery plan for gray wolves, which it announced on February 2. (That announcement coincided with a decision to not relist the Northern Rocky Mountain region gray wolf, which has garnered at least three lawsuits.)
New lawsuit: U. S. Sportsmen’s Alliance Foundation v. Haaland (W.D. Michigan)
Meanwhile, on September 9, the U. S. Sportsmen’s Alliance Foundation, Michigan Bear Hunters Association, Upper Peninsula Bear Houndsmen Association, and Wisconsin Bear Hunters Association filed a lawsuit against the Fish and Wildlife Service for failing to respond to two petitions they submitted to remove ESA protections from gray wolves. One seeks delisting of gray wolves in the western Great Lakes states of Michigan, Wisconsin and Minnesota, plus areas in adjoining states. The other seeks to downgrade partially recovered and rapidly growing West Coast wolf populations in western Washington, western Oregon and California from endangered to threatened, while continuing to protect wolves in the lower 48 states that are not part of an established population group. (Even if the species as a whole were delisted, it may be possible to list “distinct population segments” under ESA.) (The article includes a link to the complaint.)
New lawsuit: Friends of the Wild Swan v. Hammond (D. Montana)
On September 16, Friends of the Wild Swan and Council on Wildlife and Fish sued the National Park Service and the Fish and Wildlife Service over plans to introduce an “experimental population” of bull trout into an alpine lake in Glacier National Park that was historically fishless. The complaint alleges the agencies violated NEPA and ESA because they failed to properly consider the consequences of collecting bull trout from their native habitat, and conditions that changed over the course of the project. ESA also requires specific procedures to permit populations outside of a species’ native range that were allegedly not followed. (The article includes a link to the complaint.)
Meanwhile, on September 13, the Fish and Wildlife Service completed the five-year review of bull trout status required by ESA, and determined that listing as a threatened species is still warranted due to remaining threats, such as “climate impacts, past and current habitat threats, and expanding distribution of non-native fishes.”
Delisting
On September 4, the U. S. Fish and Wildlife Service announced that after more than five decades of recovery efforts by federal, state and Tribal partners, and with $5.1 million from President Biden’s Investing in America agenda, the Apache trout is being removed from the federal list of threatened species. It is the first sportfish and the first trout delisted due to recovery. It is found on the Apache-Sitgreaves National Forest, and the Forest Service will continue to be part of the 2021 Apache Trout Cooperative Management Plan (with shared responsibilities by the Arizona Game and Fish Department, White Mountain Apache Tribe, U.S. Fish and Wildlife Service, and Trout Unlimited), which “provides for long-term management when delisted to maintain a recovered status while providing sportfishing opportunities for the citizens of Arizona,” according to the State. Apache trout were originally listed because of “watershed alterations related primarily to forestry, livestock grazing, reservoir construction, agriculture, road construction, and mining” according to the species recovery plan.
Excellent summary as always! Thank you, Jon!