Jon Haber

A little weekend reading.

FOREST SERVICE

• Siuslaw NF Oregon Dunes NRA coastal marten

Notice of Intent to Sue

On March 25, the Center for Biological Diversity notified the Forest Service and Fish and Wildlife Service of its intent to sue for failing to initiate consultation on its ongoing actions that may affect the coastal pine marten, listed as threatened in 2020.  They specifically target “rampant, unchecked off-road vehicle (“ORV”) use” in the Oregon Dunes National Recreation Area, and suggest that the Forest Service should “put up fencing to protect marten habitat, and more signage or enforcement of noise limits that could disrupt the martens’ critical day-to-day behaviors.”  The press release includes a link to the Notice; additional background is provided here.

• Beaverhead-Deerlodge NF telecommunications site

New lawsuit

A new lawsuit has been filed against the Beaverhead-Deerlodge National Forest because it relocated a repeater antenna to a designated Wilderness Study Area.  The Forest’s decision was apparently based on a categorical exclusion for repair and maintenance of an administrative site.  No news sources without a paywall seem to have covered this story, but background was previously provided here.

• Eastside Screens

Court decision in Greater Hells Canyon Council v. Wilkes (D. Oregon)

On March 29, the district court issued an order supporting the findings of the magistrate judge, previously discussed here.  The court said the Forest Service evaluation of eliminating the 21 inch diameter limit on logging in eastern Oregon and Washington “failed to take a hard look at the amendment’s change and its impact on aquatic species.”  We have already discussed the court’s decision here.  (Press coverage seems surprisingly limited, and I have not seen the actual order.)

• Custer-Gallatin NF trail rerouting

Court decision in Friends of the Crazy Mountains v. Erickson (9^th Cir.)

On April 8, the circuit court affirmed the district court’s ruling that the Forest Service had complied with NEPA requirements for specificity for this 2018 decision long ago because, “Both the 2006 EIS and the 2009 EA gave reasonable notice that the 2018 trail reroute fell within their respective scopes.”  Plaintiffs had failed to challenge those actions at the time.  The article includes a link to the opinion.  We covered the beginnings of this case here.

BLM/NPS

• BLM oil and gas leases

Court decision in Dakota Resource Council v. U. S. Department of Interior (D. D.C.)

On March 22, the district court upheld BLM’s compliance with NEPA and FLPMA for six oil and gas lease sales affecting nearly 120,000 acres in Wyoming and another 10,000 in several other states.  The court specifically rejected the plaintiff’s arguments that the BLM should combine all leases within each quarter in one decision process instead of separate EAs.  With regard to greenhouse gas issues, the court said:

“Operating at the frontiers of science, BLM reasonably exhausted available tools to analyze the lease sales’ environmental consequences:  It estimated the amount of GHG emissions from the lease sales; placed those projections in proper perspective; monetized the social cost of the emissions; described why it cannot predict the on-the-ground effects that this level of GHG emissions will have on the local ecosystem or global environment; and explained why, absent a government carbon budget or similar reference standard, it was not possible to determine whether the estimated emissions would have a “significant” impact on the environment.”

Court decision in Wilderness Society v. U. S. D. I. (D. D.C.)

In a second case on the same lease decisions, the same judge held that the BLM violated NEPA because it failed to adequately assess “the Wyoming sale’s impact on groundwater and wildlife,” specifically mule deer and the sage grouse, and failed to adequately explain how the effects on greenhouse gas emissions influenced its leasing decisions.  Notably, the court did not approve of the BLM relying on the analysis of wildlife effects in its resource management plan.  The court agreed with the BLM on other issues.  With regard to the greenhouse gas issue, the court said:

“After projecting the emissions and their social costs, though, the Bureau did not explain why it believed that a lease sale of this magnitude was nonetheless worthwhile and consistent with its statutory duties to steward federal lands for the public benefit. Rather, the Bureau appeared to back away from its analysis of GHG emissions when justifying its decision to move forward.”

Briefing on the remedy is pending.  (The article includes a link to both opinions.)

• Nevada BLM national monument plans

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (D. Nevada)

On March 25, plaintiffs went to court to try to force the BLM to develop plans for two national monuments in Nevada, Basin and Range and Gold Butte.  The monuments were established in 2015 and 2017 respectively, and beginning efforts at planning were abandoned.  FLPMA and the proclamations for the monuments require planning. Plaintiffs explained the problems with the delay:

“Some examples of impacts to the monuments from a lack of active management include the proliferation of human waste at recreation sites due to BLM’s failure to install sanitary facilities; a proliferation of unauthorized [off-highway vehicle] uses due to BLM’s failure to properly regulate and enforce laws on limitations to off road vehicular travel; and the ongoing illegal cattle grazing by Cliven Bundy in Gold Butte. These impacts cause habitat degradation and destruction which threaten wildlife like the desert tortoise.”

Solar projects were also mentioned.  This article provides an update on the Bundy cattle (from which one might infer a connection to the lack of BLM action there).  Plaintiffs recognize that completion of plans would not resolve the cattle trespassing issue, since they are already illegal.

• Oregon BLM Cascade-Siskiyou National Monument

Cert denied in American Forest Resource Council v. U. S. A. (Supreme Court)

On March 25, the Supreme Court declined to review the expansion of the Cascade-Siskiyou on O&C lands, and BLM’s 2016 Resource Management Plans for Western Oregon O&C lands, which had been upheld by the D. C. Court of Appeals.  (See also comments by Sean here.)  Only two justices indicated an interest in reviewing the case, and they may have only been interested in the narrower question of conflicts with the O&C Act rather than the Antiquities Act authority to designate monuments.  The door doesn’t appear to be closed to another challenge to the Antiquities Act.  (Coincidentally, the BLM has just released a new draft plan for managing the Monument.)

• Oregon BLM forest management project

New lawsuit:  Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

On March 27, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands and Oregon Wild sued the BLM for its decision to authorize portions of the Rogue Gold Forest Management Project, which involves logging in late-successional reserves designated under a resource management plan.  The complaint alleges that the Project violates FLPMA because it is not consistent with that plan because, “Generating timber volume is not a permissible objective for logging within the LSR.”

This article provides some additional context regarding large trees and litigation in this area, including this comment from BLM that was something I hadn’t heard before:

“We work really hard to design timber sales and access roads to have the least amount of impact. We hear from our timber operators that they don’t want to cut those larger trees. It’s a safety issue. It increases the costs,” said Kyle Sullivan, a BLM spokesperson.

He said that there are barely any mills left in Oregon that can take old-growth sized logs and claimed those large trees that are felled are left on the forest floor to become wildlife habitat.

• Nevada BLM wild horse roundups

Court decision in Leigh v. Raby (D. Nevada)

On March 28, the district court ruled that the BLM “unreasonably delayed” completion of herd management area plans when it failed to adopt such a plan or conduct the necessary environmental review before 31 mustangs died during a roundup in the Pancake complex in eastern Nevada.  The court specifically rejected the argument that BLM’s broader resource management plans combined with individual roundup plans for overpopulated herds satisfies the requirement.  The court stated, “Engaging in the decision-making of an HMAP without actually preparing an HMAP could therefore deprive interested parties of the administrative review processes to which they are entitled.”  (This reasoning may be applicable to decisions that should be in forest plans but are made without following appropriate processes, or attempts to substitute some other process for actions that should be subject to NEPA.)  The court required completion of the Herd Area Management Plan within one year.

ENDANGERED SPECIES ACT

• ESA regulations

At the end of March, the U. S. Fish and Wildlife Service and NOAA issued a final rule largely reversing the changes the Trump Administration had made in the ESA listing and consultation processes.  This article explains the changes, and anticipates the litigation that will follow.

• Bumblebee (li)stings

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On April 1, the Center sued the Fish and Wildlife Service for failing to respond to its petitions to list four bumblebee species under the Endangered Species Act within the required time period.  The species are the American bumblebee, the southern plains bumblebee, the variable cuckoo bumblebee and the blue calamintha bee.  American bumblebees were found in open areas across all of the lower 48 states except Washington.

• Gray wolf relisting

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Montana)

New lawsuit:  Western Watersheds Project v. Williams (D. Montana)

On April 8, 14 plaintiffs filed two lawsuits against the decision by the U. S. Fish and Wildlife Service to not relist the gray wolves of the northern Rocky Mountains under the Endangered Species Act.  Both complaints argue that USFWS relied on flawed population models and underestimated the impact of aggressive wolf-reduction measures in Idaho, Montana and Wyoming.  The article has links to both complaints.

An Easter egg for this morning, but I’ll be running a little behind for awhile.

FOREST SERVICE

I started the last litigation update with this, before discussing a district court opinion in the Rio Grande case: “I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other).”   Within a couple of days there were new opinions on both the Rio Grande and the Flathead revised forest plans.

• Grande NF plan revision

Court decision in Defenders of Wildlife v. U. S. Forest Service (10^th Cir.)

On March 11, the 10^th Circuit Court of Appeals affirmed a district court opinion upholding the Rio Grande National Forest revised forest plan’s compliance with the Endangered Species Act for Canada lynx.  The circuit court did not directly offer an opinion on what the district court called “fundamental flaws” in the plaintiff’s arguments, but found that the determination of no jeopardy by the Fish and Wildlife Service was supported by the record and not arbitrary.

However, the circuit court did imply that there is no point in formally consulting on lynx on the Rio Grande because there are not enough lynx.  The court first established that, “When the record shows a subpopulation is particularly important to the species, the FWS may need to consider how the agency action affects that subpopulation to give a reasoned jeopardy opinion” on the listed species as a whole.  It then found that to not be the case for the subpopulation on the Rio Grande.   It found that the Species Status Assessment for lynx showed that the “Colorado subpopulation was a fraction of the estimated DPS population” (the population south of Canada), and pointed out “the RGNF’s small lynx population relative to the Colorado population.”  (The NFMA requirement for viability in a plan area is more protective of such “dispensable” populations.)

The court nevertheless proceeded to find that there was sufficient information in the administrative record about lynx habitat and use in the northern portion of the Forest (designated in the plan as a “low use” area for lynx) to uphold the FWS discounting of effects there.  This included discussion of the applicability of three research efforts, and the agency’s determination of what was the best available science for them to use (which was given considerable deference by the court).  It also upheld the analysis of effects on lynx in the low use areas, which it pointed out meant only looking at the effects of the revised plan, and did not require a comparison to the former plan.  It found that the FWS made reasonable assumptions about the amount and location of future vegetation management and deferred to its recognition that “complete analysis is not possible at this time” (but additional consultation would occur on specific projects).  (The court noted that “Defenders’ petition for review did not challenge the USFS’s design of the (new) VEG S7 standard,” but instead this case was about  the FWS effects analysis.)

• Flathead NF plan revision

Magistrate recommendations in Swan View Coalition v. Haaland (D. Montana)

This is the second lawsuit on the Flathead plan.  In the first, the district court remanded without vacatur to the agencies to reconsider how to comply with ESA, and the 9^th Circuit dismissed an appeal as moot because the FWS had issued a superseding Revised Biological Opinion.  On March 12, in this lawsuit on that BiOp, the magistrate judge recommended another remand without vacatur to address the following ESA violations (the article includes a link to the recommendations):

“(T)he Revised BiOp failed to adequately consider the impact of ineffective road closures on the 2011 baseline and on grizzly bear populations as a whole. The Revised BiOp further failed to consider that the new take statement regarding culvert removal does not apply to roads rendered impassable under the Revised Plan. Therefore, the Forest Service violated the ESA to the extent it relied on the Revised BiOp’s flawed road density determinations and culvert removal analysis.”

A 2020 analysis of road closure devices found an average of 92% of them to be effective, and the Revised BiOp included a new section addressing illegal or unauthorized motorized use of closed roads in the environmental baseline.  However, the BiOp did not attempt to determine the actual effect of the failures and account for unauthorized use, instead stating that unauthorized motorized access is unpredictable, and its effects on grizzly bears are unknowable.  This reasoning had already been found insufficient in a prior case.

The Revised BiOp also included a new incidental take statement for bull trout, which assumes a take will result from road decommissioning in bull trout watersheds that did not remove culverts (referred to as “impassable” or “barrier” roads, which were expected to be more common than fully decommissioned roads).  The magistrate found, “given that removal of culverts is an effective sediment-prevention method for both barriered and decommissioned roads, it is inexplicable why FWS limited its analysis to the Forest Service’s abandonment of culvert removal requirements for decommissioned roads.”  Omitting the effects of leaving these culverts in place for these other roads was arbitrary and capricious.

The magistrate would uphold the Forest Service against other claims.  By not vacating the portions of the forest plan identified by plaintiffs, they point out, “while we appreciate that the judge has since sent them back to the drawing board, they’re still out there building roads on grizzly and bull trout habitat…”

• Plumas NF logging project

New lawsuit:  John Muir Project v. U. S. Forest Service (E. D. California)

On March 22, John Muir Project of Earth Island Institute and the Plumas Forest Project asked the district court to require an EIS (rather than an EA) for a logging and burning project on the Plumas National Forest.  Plaintiffs say the 217,000-acre Central/West Slope Project will be among the largest logging authorizations in the forest’s history, and it will include cutting old-growth trees up to 400 years old.  The Forest Service says the project is intended to reduce wildfire impacts in several communities.

BLM

• Arizona BLM Agua Fria National Monument grazing

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (D. Arizona)

On March 12, the Center and Maricopa Audubon Society sued the BLM and Fish and Wildlife Service over unauthorized cattle grazing in the Agua Fria National Monument, and its effects on critical habitat for the endangered Gila chub and threatened yellow-billed cuckoo.  Plaintiffs specifically challenge the ESA consultation process for five grazing allotments, and also failure to develop and implement a program to conserve listed species impacted by BLM’s grazing program and unauthorized grazing, pursuant to §7(a)(1) of ESA.  A prior lawsuit was settled, but plaintiffs allege the settlement has not been properly implemented.  (The article includes a link to the complaint.)

• Utah BLM Labyrinth Rims/Gemini Bridges Travel Plan

Preliminary injunction denied in BlueRibbon Coalition v. U. S. Bureau of Land Management (D. Utah)

On March 20, the district court denied plaintiffs a preliminary injunction against the Labyrinth Rims/Gemini Bridges Travel Plan, finding that they had not demonstrated a likelihood of success on the merits of any of the four claims, discussed earlier here.  Per some of that discussion, the court found, “neither the law nor the record supports Plaintiffs arguments that BLM was creating a buffer zone or closing routes due to noise within the Labyrinth Canyon Wilderness.”  Additional background is provided here.

ENDANGERED SPECIES

• Arkansas snail listing

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.)

On March 11, plaintiffs filed suit against the 2019 decision to not list the Arkansas mudalia, a freshwater snail, as threatened or endangered.  According to the Fish and Wildlife Service, four of the nine recently documented populations occur on the Ozark and Mark Twain National Forests.  They say, “Habitat modification and degradation is highly unlikely in these areas, as the USFS restricts many of the land practices that can be a threat or, when allowed, follows strict BMPs to reduce the impact of the practice on the environment.”  (Presumably these restrictions are in the forest plans so that the FWS can consider them “regulatory” in the listing process.)

• Mt. Graham red squirrel critical habitat

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On March 19, plaintiffs sued the Fish and Wildlife Service for failing to protect additional critical habitat for Mount Graham red squirrels.  Original critical habitat for the squirrels was destroyed by construction of mountaintop telescopes and fires. A petition to designate the additional habitat was filed in 2017.  Part of the alleged problem is Forest Service special use permits for recreation cabins and an organizational camp in remaining habitat on the Coronado National Forest.  (The article incudes a link to the complaint.)

• Idaho wolf trapping

Court decision in Center for Biological Diversity v. Little (D. Idaho)

On March 19, the district court found that Idaho’s rules for trapping wolves violated the Endangered Species Act because the traps and snares are likely to harm grizzly bears.  The decision stated, “There is ample evidence in the record, including from Idaho’s own witnesses, that lawfully set wolf traps and snares are reasonably likely to take grizzly bears in Idaho.”  The court enjoined trapping and snaring during the non-denning season on public and private lands unless the State obtains an incidental take permit from the Fish and Wildlife Service for harm to grizzly bears.  (The article includes a link to the opinion.)

• Joshua tree listing

New lawsuit:  WildEarth Guardians v. U. S. Fish and Wildlife Service (C.D. California)

On March 20, plaintiffs sued the FWS for its 2023 decision to not list two species of Joshua trees as threatened under the Endangered Species Act.  The same court ruled in 2021 that a prior decision to not do so lacked scientific support.  Plaintiffs again claim the FWS did not properly account for the effects of climate change and wildfires on recruitment of young trees.  Agriculture and human developments near Joshua Tree National Park are also threats to the species.  (The article includes a link to the complaint.)

OTHER

• Going cashless

New lawsuit (D. D.C.).

Three individuals have sued the National Park Service over its policy of not accepting cash payments at some of its sites across the country.   The suit asks the court for a declaratory judgment that the Park Service is in violation of U.S. law that “legal tender”—U.S. currency—is suitable “for all public charges.”  For those with only cash, “Go buy a gift card.”  This article also cites an example of a BLM site with a “no cash” policy, its Virgin River Recreation Area in Arizona.  (Coming to a national forest near you?)

(Links are to additional background and/or court documents.)

FOREST SERVICE

• Chequamegon-Nicolet NF project implementation

In Februrary, the Environmental Law and Policy Center sent a letter to the Chequamegon-Nicolet National Forest supervisor requesting that operations in the Sunfish Timber Sale, which are part of the controversial Fourmile logging project, be stopped because they had violated terms of a government contract by conducting work when the ground was unfrozen and illegally clearcutting parts of the forest with mature and old growth trees.  This has led to an exchange between the ELPC and the Great Lakes Timber Professionals Association, but no response yet from the Forest Service.  (I’d question whether there would be standing to sue to enforce contract compliance, but this suggests NEPA issues as well.)

• Idaho Panhandle NF logging project

Partial dismissal of Alliance for the Wild Rockies v. U. S. Forest Service (D. Idaho)

On February 22, the district court dismissed four of the six claims in this case against the Buckskin Saddle Integrated Resource Project on the Idaho Panhandle National Forest because plaintiffs had failed to identify the relevant issues during the administrative objection process.  The Project authorizes approximately 13,005 acres of commercial logging and 6,469 acres of noncommercial logging and fuels reduction.  The remaining claims involve effects on old-growth habitat and whether the Project would move the forest towards the desired conditions laid out in the forest plan.

• Sequoia NF/ Giant Sequoia National Monument logging projects

New lawsuit: Sierra Club v. U. S. Forest Service (N.D. California)

On February 22, the Sierra Club, Earth Island Institute and Sequoia Forestkeeper challenged two projects in and around the Giant Sequoia National Monument that would remove dead and live trees from about 13,000 acres following the Castle and Windy Fires in 2020 and 2021. The presidential proclamation that created the monument states that aside from some uses as firewood, trees may be removed there only “if clearly needed for ecological restoration and maintenance or public safety.” Differing views about what that means and how to go about it are the crux of the lawsuit.  Plaintiffs allege failure to comply with NEPA and the forest plan for the Monument.

• Timber targets and carbon

New lawsuit:  Chattooga Conservancy v. U.S.D.A. (D. D.C.)

On February 26, the Chattooga Conservancy, MountainTrue, and an individual in Missouri challenged the use of timber targets in the Southern and Eastern regions of the Forest Service.  See our discussion here.

• Tonto NF mining land exchange

Court decision in Apache Stronghold v. U. S. A. (9^th Cir.)

On March 1, a divided en banc decision of the 9^th Circuit (with a 6-5 majority, and seven different written opinions) rejected Native American religious freedom claims seeking to stop a legislated land exchange that would facilitate copper mining near the Tonto National Forest.  The exchange would transfer the Oak Flat sacred site from the national forest to a mining company, and subsurface mining would collapse the site into a crater.  The court held that the First Amendment Free Exercise Clause allows federal land managers to burden religious practices, as long as there is no “tendency to coerce” them “into acting contrary to their religious beliefs.” The religious liberty law firm Becket representing plaintiffs stated, “The Supreme Court has a strong track record of protecting religious freedom for people of other faiths, and we fully expect the Court to uphold that same freedom for Native Americans who simply want to continue core religious practices at a sacred site that has belonged to them since before the United States existed.”  (If you’re keeping score, the 9^th Circuit panel had 6 Trump appointees, one of whom sided with the minority along with all of those appointed by Democrats.)

• Los Padres NF fuelbreak project

Court decision in Los Padres ForestWatch v. U. S. Forest Service (9^th Cir.)

On March 1, the 9^th Circuit affirmed the district court opinion, and approved the Tecuya Ridge Shaded Fuelbreak Project on the Los Padres National Forest.  The remaining issue concerned the Roadless Rule’s requirement that logging in part of the area be “generally small diameter timber.”  The court found that a 21-inch diameter could reasonably be considered “small” where the predominant Jeffrey pine can grow to 60-90 inches.  The district court opinion was provided here.

USDI

• Oregon BLM plan amendment

Lawsuit settlement follow-up

On February 16, the BLM State Director for Oregon and Washington approved an amendment to the Southeastern Oregon Resource Management Plan.  According to the BLM, “The plan amendment was undertaken in response to adverse court rulings and a resulting settlement agreement, in which the BLM committed to evaluate specific issues.”  About 10% of the 4.6 million acres will be managed to protect wilderness characteristics, and about 40,000 acres will be available for off-road vehicle use.  The Oregon Natural Desert Association (one of the plaintiffs in the lawsuit), Pew and the Theodore Roosevelt Partnership have all made supportive comments.

ESA

• Southwestern willow flycatcher listing

Court decision in New Mexico Cattle Growers Assn’ v. U. S. Fish and Wildlife Service (D. D.C.)

On February 28, the district court upheld the decision to list the southwestern willow flycatcher as a federally endangered species.  Plaintiffs had claimed that a new research study shows it is not a valid subspecies that could be subject to listing, but the court agreed with the Fish and Wildlife Service that this “outlier reanalysis of existing data” in 2017 was not the best available science, and did not justify changing a subspecies classification that had been recognized since 1948.  The bird is found in riparian areas in the southwest where its habitat is damaged by livestock grazing.

• Northern spotted owl critical habitat

Court decision in American Forest Resource Council v. Williams (D. D.C.)

On March 5, the circuit court affirmed the district court decision that plaintiff’s case against the Biden Administration’s delaying of the Trump Administration’s reductions in northern spotted owl critical habitat was moot.  The delays had expired and a new rule had been adopted, so invalidating the prior rules imposing the delays would provide no relief.

• Oregon Habitat Conservation Plan

A series of lawsuits filed against the State of Oregon alleging violations of the Endangered Species Act has led to the State’s approval of a new 70-year Habitat Conservation Plan for protecting listed species from logging on about 700,000 acres of state forest land.  It may reduce logging by 20-30%.  It still needs to be reviewed for ESA compliance by the federal agencies.

OTHER STUFF

• Columbia Basin Restoration Initiative

On December 14, the Biden Administration announced an agreement that seeks to move away from the continuing litigation over the Columbia River’s salmon.  On February 24, four tribal and two state leaders signed the agreement, which would commit federal resources to improve fish habitat and sponsor tribal clean energy projects, and would agree to adjustments in dam operations to promote fish survival.

Most notably, the federal government “would undertake or help fund studies of how the transportation, irrigation, and recreation services provided by the four Lower Snake River dams could be replaced, to help inform Congress should it consider authorizing dam breach in the future.”  “The Administration, however, is not making a judgment on whether to breach the dams, nor does it have the authority to do so; that authority resides with Congress.”  Local representatives in Congress quickly agreed to participate in such studies and the search for alternatives that would work for their constituents – of course not.  One denounced “secret negotiations” led by White House senior adviser and climate envoy John Podesta, saying he and other officials “worked behind closed doors with a select group of radical environmentalists to develop a secret package of actions and commitments” that “advance efforts to remove the four Lower Snake River dams.”

• Los Padres NF Thomas Fire liability

In the largest recovery obtained by the U.S. attorney’s office in Los Angeles for firefighting costs incurred by the Forest Service, Southern California Edison has agreed to pay $80 million to settle a civil lawsuit that blamed the utility’s equipment for the 282,000-acre Thomas Fire 2017.

• Crimes on federal lands

In April 2023, a Nevada federal court dismissed a criminal indictment after finding that a provision of the Federal Land Policy and Management Act of 1976 (FLPMA) unconstitutionally delegated Congress’s legislative power to write crimes to a federal agency, the Bureau of Land Management. The government has appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit.  In this case the crime was failure to use a taillight at night while riding a dirt bike in a remote desert area.  The court objected to FLPMA granting BLM unfettered power to issue any “regulations necessary to implement the provisions of th[e] Act with respect to the management, use, and protection of the public lands” backed by criminal penalties.  This opinion is apparently bucking Supreme Court precedent, but the Federalist Society is salivating over how this might limit federal authorities.

• Grand Teton NP dirt bike race

Another possible example, a federal district court in Wyoming has sentenced a Utah man who allegedly held illegal dirt bike races within the boundaries of Grand Teton National Park to 18 months of unsupervised probation and fined almost $10,000.

• Horse theft

Then there’s good old-fashioned horse theft (which was presumably prosecuted under federal law rather than agency regulations).  On February 26, a retired U.S. Forest Service law enforcement officer was sentenced for stealing government horses and mules, ammunition and more.  He was sentenced to two years of probation with six months of home confinement, and must pay almost $12,000 in restitution.  He had switched two of his own horses for two belonging to the government, and “did knowingly receive, conceal and retain” two government mules.”

National Monument creation

• New lawsuit:  Arizona State Legislature v. Biden (D. Arizona)

On February 12, leaders of both houses of the Arizona legislature, the State Treasurer, Mohave County and two towns sued President Biden and the Department of the Interior over designation of Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument.  The complaint alleges the designation exceeds the authority of the Antiquities Act, the Arizona-New Mexico Enabling Act reserved state authority to manage State Trust Land encompassed by the Monument, and Defendants lack the power to change the designated use for former wilderness study areas governed by the Arizona Wilderness Act of 1984.  Plaintiffs are particularly interested in regaining the opportunity for uranium mining within the Monument boundaries.  (The article has a link to the complaint.)

• New lawsuit:  Heaton v. Biden (D. Arizona)

On February 12, a second lawsuit was filed by a rancher whose private land is partly included within the Monument boundaries.  He alleges “severe regulatory burdens and the threat of criminal penalties for engaging in everyday conduct on his ranch.”  (The article has a link to the complaint.)

If the conduct is “on his ranch,” I’m not sure of how Monument designation could criminalize actions on private property.  Along the same lines, the state claims in its lawsuit, “The Ancestral Footprints Monument will restrict and prohibit uses on State Trust Land by making State Trust Land inaccessible, impacting water rights, prohibiting new mining claims, prohibiting new grazing leases, limiting new construction of infrastructure and other property improvements, and affecting other uses of State Trust Land that had previously been allowed.”  I’m not sure how Monument designation could “disallow” these uses of State land.

FOREST SERVICE

• Idaho aerial wolf shooting

On Nov. 28, 2023 wildlife conservation groups submitted a petition asking the Forest Service to immediately ban the aerial killing of wildlife in Idaho national forests.  This was in response to the Idaho Wolf Control Board approving funding for this purpose.  On February 15, 30 organizations sent a follow-up letter to five national forests, the Intermountain Region and the national office.  They allege violations of the Federal Airborne Hunting Act, the Endangered Species Act (grizzly bears, lynx and wolverine), the Wilderness Act and NFMA and Forest Service regulations.  (Maybe this should be viewed as a notice of intent to sue.)

• Beaverhead-Deerlodge NF vegetation management project

New lawsuit

On February 16, Yellowstone to Uintas Connection, Native Ecosystems Council and Alliance for the Wild Rockies filed a complaint in the Montana federal district court against the U.S. Forest Service and asked for an injunction to stop the Pintler Face Project on the Beaverhead-Deerlodge National Forest.  The project would log or burn more than 11,000 acres, including large clearcuts, along the southeastern edge of the Anaconda Pintler Wilderness over the course of five to 10 years.   Issues involve effects on lynx and grizzly bears.  (The article refers to a recent court precedent involving remapping of lynx habitat on the Custer-Gallatin National Forest, which is referring to the Greater Red Lodge Area project discussed here.)

BLM

• Wyoming BLM drilling permit

Court decision in True Oil LLC v. BLM (D. Wyoming)

In this case, the district court determined that, where the federal government owns subsurface mineral rights, it can require a permit for an easement to drill through that property, even though no minerals would be removed, and even where they do not own the surface estate.  A permit requirement would allow the government to protect its mineral interests.

• Colorado BLM limestone quarry

New lawsuit:  Glenwood Springs Citizens Alliance v. U. S. Department of the Interior (D. Colorado)

On February 15, plaintiffs filed a Freedom of Information Act lawsuit against the BLM.  They are seeking documents related to ongoing mining operations, and proposed major expansion of, a large limestone mine directly above Glenwood Springs, CO, known as the Mid-Continent Mine.  Many documents had been withheld or redacted, and appeals of these had not been resolved.  Plaintiffs contend that the end use for that limestone does not comply with the federal permit under which that mine is operating.  (The article includes a link to the complaint.)

• National coal leasing moratorium

Court decision in Citizens for Clean Energy v. U. S. Department of the Interior (9^th Circuit)

On February 21, the appellate court reversed a district court decision that had rejected the Trump Administration’s restarting of coal leasing on federal lands after the Obama Administration had imposed a moratorium.  It found that since the Biden Administration had revoked the order to restart leasing, the case was moot.  That leaves no moratorium in place, but also nothing compelling leasing to resume, and plaintiffs are still hoping for “a long overdue review of the federal coal leasing program,” including NEPA compliance.   (The article includes a link to the opinion.)

FISH AND WILDLIFE SERVICE

• Louisiana black bear delisting

Court decision in Atchafalaya Basinkeeper v. Bernhardt (M.D. Louisiana)

On January 29, the district court approved the 2016 decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the list of threatened species.  National forest lands are considered suitable but unoccupied.  The court found that the FWS had properly considered the five listing/delisting factors using the best available science.  It added this closing comment: “The Court commends Plaintiffs’ extraordinary efforts in defense of this remarkable mammal. Would that every species received the same indefatigable support as the Louisiana black bear.”

• Gila NF jaguar reintroduction

In January, the U. S. Fish and Wildlife Service denied a 2022 petition by the Center for Biological Diversity (link provided) seeking to reintroduce endangered jaguars on the Gila National Forest.  There are presently only two known jaguars north of the Mexican border.  The FWS determined that reintroduction in New Mexico “would not further the conservation of the species.”  (Does the Center ever sue?)

• Northern Rockies gray wolf listing denial

Notice of Intent to Sue

On February 7, within a week after the U. S. Fish and Wildlife Service decided not to relist gray wolves in the northern Rockies under the Endangered Species Act, fourteen organizations gave their notice of intent to sue in two letters to the FWS.  (Links to both are included in this article.)

• Silverspot butterfly listing

On February 15, the U. S. Fish and Wildlife Service published a notice that it would list a southwestern subspecies of silverspot butterfly as a threatened species.  No populations are known to occur on national forest lands, but the elevational range of the subspecies includes some lower elevation USFS land, and they are a sensitive species in regions 2 and 4.  Two known colonies occur on BLM lands, one of which is managed for this species in the land management plan.  (The press release has a link to the Federal Register notice.)

INCIDENTAL TAKE

These cases don’t directly relate to federal lands, but federal land management activities require a comparable investigation of incidental take and approval in an incidental take statement.  (I’ve wondered why federal land managers shouldn’t have to also refer to a habitat conservation plan, which might be a land management plan, for these take statements.)

• West Virginia forest management

Court decision in Allegheny Wood Products v. U. S. Fish and Wildlife Service (N. D. W. Virginia)

On February 12, the district court found that the administrative record supported a decision by the FWS to not provide an incidental take permit necessary to avoid liability for possible harm to seven listed species that might be affected by the plaintiff’s forest management activities.  Following a back-and-forth process that began in 2006, the court agreed with the FWS that the 2021 draft habitat conservation plan did not provide information necessary to determine the extent of take and develop mitigating measures.  This included not providing “sufficient project details at scales relevant to the impacted species” to constitute a “complete description of the activity sought to be authorized.”

• Florida wetlands permits

Court decision in Center for Biological Diversity v. Regan (D. D.C.)

On February 15, the district court issued an order vacating the U.S. Environmental Protection Agency’s approval at the end of the Trump Administration of the state of Florida’s application to assume permitting authority from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act within the state.  This would have allowed future permits to avoid review under the Endangered Species Act.  The court found flaws in the biological opinion and incidental take statement prepared by the Fish and Wildlife Service for the transfer of authority.  Of particular concern are Florida panthers near the Florida Panther National Wildlife Refuge in the western Everglades. (The article includes a link to the opinion.)

• Puyallup River dam

Court decision in Puyallup Tribe of Indians v. Electron Hydro, LLC (W.D. Washington)

On February 16, the district court found that a “temporary” rock structure (which had been there for several years) in the Puyallup River was interfering with migration of listed fish species and causing incidental take of these species (and orcas) without an incidental take permit, in violation of ESA.  The court ordered removal of part of the structure.  In this case, the National Marine Fisheries Service had indicated that harm would occur, but they were not a party to the lawsuit.  (This press release includes a link to the opinion.)

OTHER CASES OF INTEREST

• Eldorado Fire liability

Criminal plea deal

A man whose family’s gender reveal photo shoot sparked the El Dorado Fire that killed a firefighter in 2020 has pleaded guilty to involuntary manslaughter.  His sentence includes one year in jail, two years of felony probation and 200 hours of community service.  His wife was sentenced to a year of probation and 400 hours of community service. The couple was also ordered to pay $1,789,972 in restitution.

• Fire boss trial

On February 2, the Forest Service burn boss arrested in Oregon in conjunction with an escaped fire was indicted by a grand jury on a misdemeanor count of reckless burning, and arraignment in the county court was February 16.  A plea haring is set for April 1. He is being represented by private attorneys paid by the U.S. Department of Justice.  The Forest Service and the National Federation of Federal Employees have expressed their support for the accused.

FEATURED CASE

• Okanogan-Wenatchee NF Twisp project

Court decision in North Cascades Conservation Council v. U. S. Forest Service (E.D. Washington)

On January 17, the district court granted summary judgment to the Forest Service with regard to the Twisp Restoration Project on the Okanogan-Wenatchee National Forest.  The proposed project stated that most of the thinning and prescribed fire treatments would use a “condition-based management strategy.”  The court held that the project complied with NEPA requirements related to the proposed action, alternatives, cumulative impacts, public participation and the significance of effects.  The latter two issues implicated the issue of condition-based management, where the court held:

“At the heart of Plaintiff’s challenge is the Forest Service’s use of condition-based management. Plaintiff has not shown that this approach violates NEPA as a matter of law. Here, the Final EA disclosed detailed decision criteria that will be applied during the TRP implementation to ensure the actual conditions on the ground meet the expected conditions disclosed in the Final EA. If they do, the approved treatment will be applied. If they do not, the treatment will not be applied.

 In this case, the Final EA’s description of condition-based management details the decision criteria for each approved activity, specific prescriptions that will be applied if those decision criteria are met, maps identifying where those prescriptions would be applied, and estimates of the timing of implementation.

The Court finds that the use of condition-based management is not arbitrary or capricious as a matter of law and as applied in this case.”

The highlighted language is why I think “this case” may represent a different kind of “condition-based” management than other project we have seen, some of which have lost in court.  This statement means the action will not be changed from how it has been described (other than possibly reducing the scope of the action and its effects), and it limits the likelihood that unanticipated environmental effects may occur (if they do become evident later, the project would still be subject to NEPA’s new information requirements).  Overall, the specificity of the decision seems to be in greater detail than other projects labeled “condition-based,” and in this regard is more similar to the Ashland Municipal Watershed case upheld by a court and discussed in my comments here (though the project area of 24,000 acres is larger). While the Twisp Project court carefully recognizes that such management is legal “as applied in this case,” this implicitly recognizes that it might not be if done with less specificity or without the limit that was imposed.

OTHER FOREST SERVICE CASES

• Idaho Panhandle NF Hanna Flats I

Court decision in Alliance for the Wild Rockies v. Higgins (D. Idaho)

On January 10, the district court held that plaintiffs had waived their right to sue for a violation of the Healthy Forests Restoration Act by failing to object to the intended use of a categorical exclusion for WUI projects during their participation in administrative proceedings.  Qualifying projects are exempt from formal objections; however, there was an opportunity for plaintiffs to notify the agency during scoping of its disagreement about HFRA compliance, which they did not do in their “more than 100 pages” of scoping comments.

• Nantahala-Pisgah NF Southside project

New lawsuit:  Chattooga Conservancy v. U. S. Forest Service (W.D. North Carolina)

On January 31, five conservation groups sued the Nantahala-Pisgah National Forest over its Southside logging project.  The project was developed under a forest plan that has been recently revised, and the complaint alleges that the project is not consistent with the revised plan.  The revised plan places the 15-acre timber stand at issue in a Special Interest Management Area based on its high ecological values, and also protects the scenic integrity of lands adjacent to the Whitewater Scenic River where the stand is located.  The complaint alleges that the logging contested in the lawsuit, that intends to create “early successional habitat,” does not meet the specific criteria established in the forest plan.  (The article includes a link to the complaint.)

BLM CASE

• Oregon BLM Big League project

Withdrawal of the subject of Willamette Riverkeeper v. Teitzel (D. Oregon)

On December 14, the BLM announced the withdrawal of this project following litigation commenced in November “in order to incorporate additional aquatics data and analysis,” likely including the effects on the chinook salmon of concern to plaintiffs.  Plaintiffs then dismissed the lawsuit.

FIRE FALLOUT

Freres Lumber Co. has sued the Forest Service for $33 million for not trying hard enough to put out the 2020 Beachie Creek Fire.  The plaintiff alleges that this case clears the high bar for liability under the Federal Tort Claims Act because of the Willamette National Forest’s “negligent failure to follow its own mandated fire attack plan.”  It burned over 5000 acres of the company’s timberlands.

On January 21, “yet another utility lawsuit” was filed over the 2020 fires in Oregon.  Law firms representing 238 victims who lost homes and property in the Holiday Farm fire sued the Eugene Water and Electric Board, Lane Electric, and Bonneville Power Administration in federal court for their roles in the  fire, which burned both national forest and BLM lands east of Eugene.

A California man has pleaded guilty to setting several fires on the Shasta-Trinity National Forest in 2021, including some behind firefighters who were actively fighting the Dixie Fire.  (The article includes a link to the plea agreement.)

An Alaska charter fishing company has paid $900,000 to settle a lawsuit brought by the U.S. government alleging one of its guides started a wildfire in 2019 by failing to properly extinguish a campfire at a campground on the Klutina River. The funds will help cover the costs incurred by state and federal firefighters to extinguish the fire, which burned about 0.28 square miles.

FISH AND WILDLIFE SERVICE

• Wolverine listing

Notice of Intent to Sue

On January 26, Montana Fish, Wildlife and Parks filed a notice of intent to sue the U.S. Fish and Wildlife Service within 60 days if it does not overturn its November decision to list wolverines as a threatened species under the Endangered Species Act.  The complaint alleges the agency did not use the best available science.  This listing decision followed previous litigation for not listing the species (last discussed here).  Idaho’s Office of Species Conservation filed a similar notice on the same day.  (The articles have links to the notices.)

• Groundhog’s Day for wolves

On February 2, the U. S. Fish and Wildlife Service announced that it would reiterate the decision by Congress to delist the gray wolf in the northern Rocky Mountains.  The FWS rejected arguments that hunting initiated by the states where it had been delisted constituted a threat that warranted relisting the species.  At the same time, the FWS announced that it will undertake a process to develop a first-ever nationwide gray wolf recovery plan by December 12, 2025.  A FWS appeal of a district court decision that relisted wolves outside of the Northern Rockies is pending.  The article includes a link to the press release covering these actions.

OTHER CASES OF INTEREST

• Chevron deference and the 1872 Mining Law

On January 17, the Supreme Court heard two cases against the National Marine Fisheries Service rules pertaining to monitoring on fishing boats, but which could make it harder for all federal agencies to regulate.  The “Chevron Doctrine” is the result of a 1984 case supported by conservatives at that time as a curb on “unelected liberal judges” overruling federal agencies.  It required courts to defer to interpretations of statutes by federal agencies if the statute is ambiguous and the agency interpretation is reasonable.  Now it appears this conservative court would rather make the interpretations itself instead of “unelected federal bureaucrats” who are more responsive to a liberal administration (which was elected).  Here is a short overview of the statements made by the Supreme Court at the hearing.

How might that affect federal land management?  As an initial point, an agency’s interpretation of its own regulations is governed by another court case (Auer) that would not necessarily be affected.  A forest plan’s compliance with the 2012 Planning Rule should be governed by that.  On the other hand, the Planning Rule itself could be reviewed under whatever standard the Supreme Court comes up with to modify or replace Chevron.  There is a question in my mind of whether regulations like this that govern agency actions like planning, rather than directly affecting the public, would be viewed the same way.

As a real example, on January 16, the D. C. Circuit Court of Appeals conducted a hearing in Earthworks v. U. S. D. I., a case filed in 2009.  It concerns a 2003 regulation implementing the 1872 Mining Law that allows mining companies to claim an unlimited amount of federal land around a mining site for mining-related activities like chemical processing and waste dumping.  If there is any ambiguity in the statute, the court would have to defer to the Interior Department’s decision, as per the Chevron doctrine.  The issue then becomes whether the statute is ambiguous, and the courts get to decide that (even though the judges know less about the subject matter than the agency expert).  Here’s what the law says:

“Where nonmineral land is needed by the proprietor of a placer claim for mining, milling, processing, beneficiation, or other operations in connection with such claim, and is used or occupied by the proprietor for such purposes, such land may be included in an application for a patent for such claim, and may be patented therewith subject to the same requirements as to survey and notice as are applicable to placers. No location made of such nonmineral land shall exceed five acres and payment for the same shall be made at the rate applicable to placer claims which do not include a vein or lode.”  (30 U.S.C. 42(b))

At the hearing, the parties offered their interpretations of whether this language is ambiguous, and whether it limits nonmineral land inclusion in a claim to five acres, and therefore whether or not BLM’s current regulation imposing no limits is valid.

• Colorado Water Court

On January 26, Puckett Land Co. filed a motion to dismiss (and the court granted it) its diligence application for conditional water rights to avoid abandoning water rights that date to 1966.  The conditional rights were associated with the planned construction of a 23,983-acre-foot reservoir on BLM land within the boundaries of an area (Thompson Divide) that the Forest Service and BLM are proposing to withdraw from eligibility for new oil and gas leases.  The reservoir would have been used for shale-oil production in that area.  (The federal agencies had not filed a statement of opposition to the water right.)

POST-LITIGATION FOLLOW-UPS

Two national forest travel management plans were recently completed that respond to prior litigation.

In 2007, a lawsuit resulted in a court order that barred motorized over-snow vehicles from the entirety of the caribou’s recovery zone on the Idaho Panhandle National Forest, cutting off access to about 250,000 acres (most recently addressed here).  The Kaniksu Over-Snow Vehicle Use Designation Project won’t go into effect until the Forest Service publishes a final map, which is expected before next winter.  It reopens some areas to snowmobile use, and closes areas earlier in the spring to protect grizzly bears.  On the horizon?  A spokesman for WildEarth Guardians said, “We’re still evaluating the decision and considering our options while trying to balance out a lot of litigation priorities.  Sadly, there are a lot of bad decisions out there. This is one of them, and we’re taking a close look.”

The Nez Perce-Clearwater National Forest has prepared a Draft Record of Decision and Final Supplemental Environmental Impact Statement for the Clearwater National Forest Travel Planning Project to comply with the District of Idaho’s December 2022 remand order and prohibition of motorized use of the Fish Lake Trail (most recently discussed here).  It would again amend the forest plan and reinstate summer motorized use on the Fish Lake Trail.

A proposed resource management plan from the BLM in Arizona would limit recreational shooting to 5,295 acres of the 486,400-acre Sonoran Desert National Monument. Currently, target shooting is permitted on 435,700 acres.  The plan is the result of a series of lawsuits and an April 2022 court settlement that required the BLM to reassess how it handled recreational target shooting on the monument (most recently discussed here).

It was relatively quiet in court over the holidays (but interesting).  (What will the new year bring?)

FOREST SERVICE

• Lincoln NF Sacramento Mountains grazing

Magistrate recommendations in Center for Biological Diversity v. Moore (D. New Mexico)

On November 17, the magistrate judge recommended dismissing this challenge to livestock grazing on the Sacramento Allotment on the Lincoln National Forest as moot.  Regarding compliance with the Endangered Species Act for the New Mexico meadow jumping mouse, the judge determined, “The new BiOp issued by FWS on or before December 31, 2023 … will moot Petitioners’ claims regarding the validity of the 2021 BiOp,” because it “will include substantive regulatory changes,” which respond to changed circumstances.  (No word on whether this actually happened.)

• Custer Gallatin NF South Plateau Landscape Area Treatment Project

New lawsuit:  Gallatin Wildlife Association v. Erickson (D. Montana)

On December 4, plaintiffs in Center for Biological Diversity v. U. S. Forest Service (discussed here) agreed to avoid a preliminary injunction hearing when the Custer Gallatin NF agreed to not take further action on the South Plateau Project until summer.  On December 18, Gallatin Wildlife Association, Native Ecosystems Council, and WildEarth Guardians filed a lawsuit against the same project.  They allege violations of ESA and NEPA for the project, which would involve clearcutting 5,551 unspecified acres of forest, including mature trees; commercial thinning of 6,500 acres of forest; 2,500 acres of non-commercial thinning; 1,800 acres of fuels treatment; and up to 56.8 miles of temporary roads, based on an EA.  The project is in an area described by plaintiffs as a grizzly bear “sink,” where the population is struggling.  Plaintiffs question the science used to consider effects on grizzly bears, challenge the project’s “condition-based” management under NEPA, and also allege a violation of President Biden’s executive order that requires the Forest Service and Bureau of Land Management to conserve mature and old-growth forests.  (The article includes a link to the complaint.)

• Monongahela NF coal hauling

New lawsuit: Center for Biological Diversity v. U. S. Forest Service (D. D.C.)

On January 10, six conservation organizations sued the Monongahela National Forest to protect the federally endangered candy darter (a fish) and two endangered bats from a commercial Forest Service road use permit to haul coal from the Rocky Run Mine on private land and to move mining equipment and supplies.  The plaintiffs claim that the Forest failed to consult with the Fish and Wildlife Service or follow procedures to comply with NEPA.  Plaintiffs assert:  “Without the Forest Service’s authorization of the Permit, the Applicant would not be able to operate Rocky Run Mine. Surface coal mining operations, such as Rocky Run Mine, can cause significant environmental damage, including erosion, sedimentation, pollution of ground and surface waters, contamination of soils, loss of habitat, and loss of biodiversity.”  (The article includes a link to the complaint.)

• Bitterroot NF Mud Creek Project

New lawsuit:  Alliance for the Wild Rockies v. Vilsack (D. Montana)

On January 11, five conservation groups filed a lawsuit against the Mud Creek Vegetation Management Project on the Bitterroot National Forest, which could take place over up to 20 years and would involve 13,700 acres of commercial logging, 26,000 acres of non-commercial logging, 40,000 acres of prescribed burns, and the building of around 40 miles of temporary and specified roads.  It is another challenge to “condition-based” NEPA (based on an EA):  “Rather than surveying the project area and analyzing site-specific information to determine which management activities are appropriate to which area before approving and finalizing a project, the Forest Service approved all logging and burning over large swaths of the Project area, leaving the actual decision of what is appropriate until after the project is finalized, when the public may no longer participate in the decision-making process.”  The complaint also challenges the continued use of project-specific amendments to the forest plan for road density and old growth, and failure to use the forest plan definition of old growth.  There are also ESA claims related to bull trout and whitebark pine.  (The article includes a link to the complaint.)

BLM/NPS

• Cascade-Siskiyou National Monument

Amicus curiae briefs filed in American Forest Resource Council v. U.S.A. (Supreme Court)

On December 18, members of Congress and six organizations filed amicus curiae briefs in support of a petition for Supreme Court review of two circuit court decisions upholding the Obama-era expansion of the Cascade-Siskiyou National Monument and the Bureau of Land Management’s 2016 Resource Management Plans for Western Oregon O&C lands.  In April, the 9^th Circuit decided Murphy Company v. Biden (discussed here), and in July, the D. C. Circuit decided the AFRC case.  These courts held that the Antiquities Act could be used to designate a national monument that reduced the area of O&C lands where timber may be produced, and that the BLM can eliminate timber production on such lands.  (Links to the briefs are included.)

• Utah BLM Labyrinth/Gemini Bridges Travel Management Plan

New lawsuit:  Blue Ribbon Coalition v. Bureau of Land Management (D. Utah)

On December 22, The BlueRibbon Coalition, Colorado Off-Road Trail Defenders and Patrick McKay, who is the vice president of the latter organization, filed a complaint in federal district court after the Interior Board of Land Appeals denied their stay request in that administrative hearing.  They are challenging the BLM’s travel management plan and EA for the Labyrinth Rims/Gemini Bridges Travel Management Area, which would close 317 miles of routes that were previously open to motorized use in the 300,000 acre area because vehicles posed a danger to sensitive habitats, riparian zones and cultural sites. The complaint alleges violations of NEPA, the APA, the Dingell Act, and the Appointments Clause of the Constitution.  (The article includes a link to the complaint, the IBLA appeal, and a map of the area.)

OTHER

• FEMA payments for the Hermits Peak-Calf Canyon Fire 

In late December, two lawsuits were filed against the Federal Emergency Management Agency for failing to respond in a timely manner to claims from 24 of over a thousand victims of the largest fire in New Mexico history, started by the Forest Service in 2022

• Oregon climate case

A federal judge in Oregon has rejected a U.S. Department of Justice request to dismiss a 2015 lawsuit brought by young people that alleges the federal government knew the dangers posed by carbon pollution but that it has continued through policies and subsidies to support the fossil fuel industry.

• Coronado NF fire prosecution

A man must pay $180,000 after federal officials said he started a wildfire in the Molino Basin target shooting area of the Coronado National Forest using a shotgun loaded with flaming, incendiary rounds of ammunition.

• Green Mountain NF timber theft

An adjacent landowner is facing criminal charges he illegally cut down at least 299 trees that were part of the Green Mountain National Forest and were designated for protection.  He said he had removed a USFS property boundary marking Carsonite post because he believed it was inaccurate. “The tree cutting was inconsistent with the guidelines contained in the GMNF Plan.”

• Wyoming corner crossing case

On January 12, Great Old Broads for Wilderness, GreenLatinos, Sierra Club and Western Watersheds Project filed an amicus brief in the 10th Circuit proceedings involving trespass claims against hunters who used a ladder to cross between parcels of public land connected at the corner.  “The public — not just hunters but everyone — should have the same right of reasonable access to their lands as private landowners have,” said Erik Molvar, executive director with Western Watersheds Project, in a press release. (The article includes a link to the brief.  We have discussed this case previously here, and the district court decision here.)