Litigation

Thanks to Nick Smith for this one, from the Capital Press.

A federal judge has ordered Oregon Wild and Wildearth Guardians to compensate the U.S. Forest Service for the cost of processing paperwork related to three disputed projects in the Fremont-Winema National Forest.

The environmental plaintiffs claimed the $4,655.80 bill would discourage similar “public interest” lawsuits in the future.

However, U.S. District Judge Michael McShane disagreed, ruling they “have not provided sufficient evidence that an award of costs would be inequitable or create a chilling effect” on such actions.

The judge also said the lawsuit wasn’t of such extraordinary importance that the U.S. Forest Service should be barred from recovering its costs as the prevailing party.

“The court will not allow plaintiffs to hide behind the subject matter of the litigation they initiated to avoid costs Congress intended them to pay” under federal law and court rules, McShane said.

Last year, the plaintiffs filed a complaint alleging the government’s plan to commercially thin 29,000 acres under the three projects was too expansive to “categorically exclude” from environmental review.

In August, however, the judge ruled such analysis wasn’t legally required for the South Warner, Bear Wallow and Baby Bear projects under an exemption for certain habitat improvement treatments.

After the lawsuit was thrown out, the Forest Service asked to be compensated for the money paid to a third-party vendor for converting paper administrative records into searchable PDF computer files.

The environmental plaintiffs objected, arguing they’d brought the case in good faith because the agency’s implementation of forest regulations affects “the entire National Forest system,” not just the 29,000 acres in question.

“Through cases like this one, plaintiffs and other conservation organizations help ensure that federal agencies properly manage public lands and remain accountable to the public they serve,” the nonprofits said.

The government countered that environmental groups are actually encouraged to file lawsuits against federal agencies under the Equal Access to Justice, under which they can recover attorney fees and other litigation costs.

For example, Wildearth Guardians was awarded nearly $300,000 for winning a case against the Forest Service last year, the government said.

The government also pointed to recent tax filings that showed annual revenues of nearly $3 million earned by Oregon Wild and $4.5 million earned by Wildearth Guardians.

“Public information indicates that plaintiffs have adequate means to pay for the modest bill of costs here,” the government said.

The judge said legal precedents allow him to consider the financial resources of plaintiffs, but in this case they’ve “not demonstrated that a severe injustice will result from an award of costs.”

Oregon Wild and Wildearth Guardians had previously appealed the underlying decision to allow commercial thinning on 29,000 acres to move forward.

FOREST SERVICE

• Nantahala-Pisgah NF arson

Conviction overturned

The 4th U.S. Circuit Court of Appeals has overturned the conviction of a man who burned 70 acres of the Nantahala National Forest in 2020.  The circuit court stated that testimony regarding his knowledge of where he was should not have been excluded by the trial court:

“We conclude that specific knowledge of federal ownership is not required for conviction … Therefore, the Government did not have to prove that Evans knew he was on federal land or intended to burn federal land. But the Government did have to prove that Evans acted willfully, and an honest mistake of fact about whether he was burning brush on his own property would be a viable defense… Evans explained his family’s long ownership of property abutting the Nantahala National Forest and his understanding of the boundary lines based on certain markers on the property.”

• Santa Fe NF flood deaths

New lawsuit

A wrongful death lawsuit filed by relatives of three people killed by flash flooding after the Hermit’s Peak/Calf Canyon fire on the Santa Fe National Forest in 2022 alleges that the Forest Service was negligent in failing to close roads or properly warn people of the risks of flash flooding.  The fire began as a planned burn. The Forest Service found in a report released later in 2022 that it underestimated the amount of fuel available to the fire and did not adequately account for dry conditions or the risk to nearby communities.

• Fremont-Winema NF grazing

Court decision in Western Watersheds Project v. McKay (9^th Cir.)

On October 26, the court of appeals reversed a lower court ruling, and vacated the Fish and Wildlife Service’s biological opinion supporting the Fremont-Winema National Forest’s approval of expanded cattle grazing.  It found the BiOp deficient because it did not account for climate change as a baseline condition or a cumulative effect or take it into account in developing mitigation strategies (which were not certain to occur).  The BiOp “altogether failed to engage with information in the record suggesting that climate change would affect water levels and streamflow.”  The court upheld the grazing decision’s compliance with NEPA and the forest plan.  (The article includes a link to the opinion.)

• Tonto NF wild horse management

Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Ariz.)

On Halloween, the district court dismissed NEPA claims against the 2023 Salt River Horse Management Plan on the Tonto National Forest and a 2017 Intergovernmental Agreement with the State of Arizona.  The claim against the IGA was moot because the Agreement had expired.  The claim against the 2023 Plan was not subject to NEPA because it involved no federal action since the forest supervisor had not approved the Plan.  Plaintiffs had asserted that ongoing harm to wildlife is occurring in the affected area because of delay in reducing the horse herd to numbers recommended by a collaborative associated with the IGA.

Maybe some of you, like me, are not very familiar with the wild horse issues on federal lands or the unique federal laws applicable to wild horse management.  I found this article in the Sierra Club’s magazine to be helpful.  Here’s their summary of those laws; while the article is about the BLM, the Forest Service is subject to the same requirements:

In 1959, Congress passed the Wild Horse Protection Act, which banned the hunting of feral horses from aircraft and motorized vehicles on federal land. More expansive protections followed. Wild horses became federally protected under the Wild Free-Roaming Horses and Burros Act of 1971, which gave the BLM power to manage horses in specific herd-management areas, enmeshing the animal in the BLM’s maxim of multiple use. With the new regulations in place, wild-horse numbers quickly increased, so Congress passed the Federal Land Policy and Management Act of 1976, allowing helicopter roundups. Two years later, the Public Rangelands Improvement Act created the adopt-a-horse auctions and required the BLM to set specific population levels for each herd-management area, which led to additional roundups and long-term holding on private ranches as the approved way we get horses off the range.

BLM

• Nevada BLM restoration project

Court decision in Western Watersheds Project v. U. S. Department of the Interior (D. Nevada)

On October 18, the district court denied motions for a temporary restraining order and a preliminary injunction against the South Spring Valley and Hamlin Valley Watersheds Restoration Project, which would include removal of pinyon and juniper trees, direct sagebrush treatment, and prescribed fire to restore the landscape to reference conditions and benefit sage-grouse.  The decision for the 384,414-acre area was based on an EA.

The court found plaintiffs did not demonstrate a likelihood of success on their NEPA claims. The complaint argued that the Project is “deferring critical decisions about siting and treatment methods to the future with no additional NEPA review.”  The court held that the record “describes the maximum number of acres to be treated; percentage of vegetation to be treated; and divides the watersheds into thirteen treatment units, categorizing each unit into one of four treatment categories based on the vegetative conditions and treatment objectives” (comparing it favorably to the EIS in the 8000-acre Navickas/Ashland case we discussed before here).  It considered this approach to be “adaptive management,” which is “permitted by NEPA.”  (Notably, the court approved of BLM’s statement that it, “determined that treatment within sagebrush habitats needed to be tailored depending on the potential environmental effect.”  That seems to suggest that BLM would not be done with NEPA until it has determined the actual effect.)  The court upheld the analysis of effects on wildlife and the cumulative effects of grazing in accordance with NEPA (and noted that plaintiffs, “curiously failed to challenge the failure to prepare an EIS”).

The court did find the likelihood of a legal flaw in determining compliance with the RMP’s requirement to replace lost habitats of special status species at a 2-to-1 ratio, which the BLM conceded it did not do, but upheld compliance with specific RMP requirements related to bat species and sage-grouse.   Despite plaintiff’s high likelihood of success on the one claim, the court found limited evidence of “irreparable harm” from allowing chaining to proceed, and refused to stay the Project pending a final decision in the lawsuit.  Additional discussion can be found here.

• Alaska BLM ANWR oil and gas lease cancellation

New lawsuits

The Alaska Industrial Development and Export Authority has sued USDI over the September cancellation of seven oil and gas leases in the Arctic National Wildlife Refuge.  AIDEA claims the termination violated a statute that directs the Interior Department to award leases covering at least 400,000 acres for exploration. In canceling the leases, Interior Department Sec. Deb Haaland cited “multiple legal deficiencies in the underlying record supporting the leases.” On October 31, Americans for Prosperity filed a lawsuit regarding its FOIA request related to the same decision.

• Wyoming BLM transmission line

Settlement of Albany County Conservancy v. Novotny (D. Wyo.)

Three months after the BLM was sued by a local environmental group and retired Fish and Wildlife Service biologist for violating NEPA and its public participation requirements when it approved a transmission line for wind energy, the agency has decided to revisit the decision.  Plaintiffs are particularly interested in the cumulative effects of commercial windfarms of golden eagles, including 17 windfarms in Albany County.

• New Mexico and Wyoming BLM drilling permits

Court decision in Center for Biological Diversity v. U. S. Dept. of the Interior (D. D.C.)

On November 1, the district court held that plaintiffs lacked standing to sue over more than 4000 applications for permit to drill (“APDs”) for oil and gas in New Mexico’s Permian Basin and Wyoming’s Powder River Basin.  The court required plaintiffs to prove standing with regard to each agency action rather than “”draw a line around them,” and allege that they have individual members who have a geographic nexus with “the resulting ‘APD Area.’””  They failed to, “identify individual members who use the areas affected by the challenged individual APDs.”  This article includes more background.

• Arizona BLM grazing

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

On November 2, the CBD along with the Maricopa Audubon Society sued the BLM and Fish and Wildlife Service for violating the Endangered Species Act by failing to protect habitat for the endangered southwestern willow flycatcher and western yellow-billed cuckoo from cattle grazing damage when it authorized seven grazing allotments along Arizona’s Gila River.  The claims are based on field surveys identifying continuing damage, apparently related to unauthorized grazing, despite previous agreements to remedy the problem.  (The press release has a link to the complaint.)

• BLM Utah oil and gas leases

New lawsuit:  Southern Utah Wilderness Alliance v. U. S. Dept. of the Interior (D. Utah)

On November 3, plaintiffs challenged four separate decisions made in 2018-2019 by the Bureau of Land Management to offer, sell and issue for development 145 oil and gas leases covering approximately 215,325 acres of public lands in Utah’s Uinta Basin without fully and adequately analyzing the environmental and public health impacts of those decisions.  (The news release has a link to the complaint.)

• Some renewable energy projects that haven’t drawn lawsuits

OTHER

• San Bernardino NF Arrowhead water

New lawsuit

BlueTriton Brands filed the lawsuit in October in Fresno County Superior Court, arguing in its complaint that the California State Water Resources Control Board overstepped its authority when it ordered the company to halt its “unauthorized diversions” of water from springs in the San Bernardino National Forest.  BlueTriton and prior owners of the business have for years had a special-use permit allowing them to use the pipeline and other water infrastructure; however, the Forest Service recently told the company that reissuing the permit would require proof of water rights.  The company’s argument centers on the different legal treatment of groundwater and surface water under California law.

There are even a few court opinions dealing with plan-level decisions!

FOREST SERVICE

• Apache-Sitgreaves/Gila NF grazing

Court decision in Western Watersheds Project v. Perdue (D. Ariz.)

On September 29, the district court upheld the Stateline Project, reauthorizing livestock grazing for ten years on fourteen allotments on the Apache-Sitgreaves and Gila National Forests.  Plaintiffs had argued that the Forest Service violated NEPA and the APA when it authorized the Project by failing to: (1) take a “hard look” at the Project’s impacts on Mexican Wolves, the Blue Range Primitive Area, and inventoried roadless areas; (2) prepare an EIS based on the context and intensity of the Project; and (3) consider a reasonable range of alternatives (there were two:  no grazing and a 3% reduction from current AUMs).

• Malheur NF Camp Lick Project and forest plan amendment

Court decision in Blue Mountains Biodiversity Project v. Trulock (D. Or.)

On October 5, the district court upheld the Camp Lick Project on the Malheur National Forest.  The Project would harvest trees larger than the 21” limit imposed by the Eastside Screens included in its forest plan because the Malheur properly amended its plan to allow this project. Plaintiffs had argued that the issues addressed by the amendment were forestwide, so the amendment (and therefore the effects) could not be limited to particular project, but the court disagreed.  Instead the court agreed with the magistrate judge’s conclusions that NFMA “(i) does not require that the U.S. Forest Service identify a “unique” attribute present at the location of a site-specific amendment within a forest plan and (ii) does not require a finding of de facto significance whenever a site-specific amendment shares similarities with past or future amendments.”

(In response to Sharon’s question here, this opinion does not address whether removing these larger trees was necessary to reduce fire risk or what the effects of removing them would be.  That may be because the administrative record adequately addressed these issues so they were not raised by plaintiffs.)

• Helena-Lewis and Clark NF revised forest plan

Court decision in Helena Hunters & Anglers Association v. Moore (D. Mont.)

On October 11, the district court upheld the Helena-Lewis and Clark national forest’s revised forest plan against challenges related to grizzly bears and big game – in particular the “removal” of wildlife standards that had been in the old forest plan and would benefit these species.

Interestingly, the government attorneys tried to claim that this was an original plan rather than a plan revision, despite a record full of references to a “revised” plan, because the two national forests had been combined subsequent to the first forest plans.  The court concluded it is a revised plan, and dismissed the significance of this argument (but if it were a new plan, it would have been more difficult for plaintiffs to complain about “removal” of the wildlife standards).  The court also refused to buy the government argument that the former standards were “largely carried forward” by equally effective guidelines and desired conditions, holding that these other plan components do not have “the same strength or impact” as standards.  However, it was sufficient under ESA for the Fish and Wildlife Service to address the old wildlife standards as part of the environmental baseline, and to address the “general” effects of the revised plan without those standards.

The court held that NEPA’s requirement to look at the environmental consequences of the revised plan does not mean it has to look at the effects of individual plan components (or their “removal”).  However, it did refer to the the plan components included in an EIS for the multiple-forest Grizzly Bear Amendment that were added to the existing plan prior to the revision, and are part of the revised plan.  The court also held that the FS was not required to consider an action alternative that retained the wildlife standards, because, “Plaintiffs fail to demonstrate that the proposed alternatives are otherwise unreasonable.”

Useful word for the day (from the opinion):  “defugalty:” an inconsistency, especially with regard to forms of communication.

• Malheur NF anti-trust case

Court decision

On October 15, the Oregon district court dismissed an antitrust lawsuit against Iron Triangle and Malheur Lumber by a group of sawmill owners, logging contractors and timber owners who accused the defendants of engaging in anticompetitive business practices.  The court held that the 10-year stewardship contract with the Forest Service “is not an illegal conspiracy in restraint of trade.”

Best oxymoron for a business name:  Prairie Wood Products

• Beaverhead-Deerlodge NF grazing

Court decision in Gallatin Wildlife Association v. Olson (D. Mont.)

On October 19, the district court dismissed a challenge to seven grazing allotments on the Beaverhead-Deerlodge National Forest based on their effects on bighorn sheep.  This followed the Forest Service losing a prior court case involving these allotments that required additional analysis, and an EIS was pending.  Court found no unreasonable delay because the Forest was “not required to undertake agency action beyond that which already has been taken.”  The court also summarily rejected a challenge to a supplemental EIS prepared for the revised forest plan in response to another lawsuit involving bighorn sheep, and rejected a third claim because these plaintiffs had failed to raise it in their prior challenge to these allotments.

BLM

• California BLM energy right-of-way

Court decision in Desert Protection Society v. Haaland (E.D. Cal.)

This case deals with the BLM’s decisions to amend the California Desert Conservation Area Plan and to grant a right-of-way to Eagle Crest Energy Company to construct, operate, maintain, and decommission a gen-tie [electrical] line and water supply pipeline.  It would run through an area that had been designated as an Area of Critical Environmental Concern in the Conservation Plan.  The larger energy project had been approved by FERC after an earlier NEPA process.  On September 29, the district court upheld the BLM’s right-of-way decision against NEPA and FLPMA claims.

The NEPA claims involved decommissioning requirements, the range of alternatives, mitigation, and effects on acid rock drainage, groundwater, wildlife and global warming (which “largely concern the FERC Energy Project and not the BLM Right-of-Way Project”).  Under FLPMA, the right-of way was not subject to other plan requirements because it was considered a “valid existing right.”  BLM also met FLPMA requirements related to balancing interests, mitigation measures, collocation of right-of-ways, and the administrative protest process.

• Nevada BLM wild horse removal

New lawsuit:  Colvin & Son v. Haaland (D. Nev.)

On October 17, two ranchers in Nevada sued the BLM for delaying compliance with the Wild and Free Roaming Horses & Burros Act of 1971, which they say requires “immediate” removal of excess horses.  BLM data showed that current populations are far above the “appropriate management level” established by the agency.  (The article has a link to the complaint.)

• Utah BLM dinosaur theft

Four individuals have been indicted by a federal grand jury on 13 counts of violating the Paleontological Resources Preservation Act by allegedly purchasing and then selling dinosaur bones valued at over $1 million and causing more than $3 million in damages, according to a statement from the U.S. Attorney’s Office, District of Utah.  The value represents 150,000 pounds of paleontological resources, including dinosaur bones, illegally removed from federal (BLM) and state lands in southeastern Utah sold at gem and mineral shows and sometimes, China.

FISH AND WILDLIFE SERVICE

• American burying beetle downlisting

Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.)

On September 30, the district court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle from endangered to threatened status, despite noting climate change will pose foreseeable and grave risk to the beetle’s remaining populations in the coming decades.  Ultimately, the Service proposed downlisting the species based on the agency’s conclusion in its 2019 study that the “beetle’s viability is higher than was known at the time of listing” and “it is not presently in danger of extinction.”  The species’ historic range includes forests and grasslands in the eastern half of the U. S.  (The article includes a link to the opinion.)

• Extinction delistings

We have previously questioned whether/how national forest management has contributed to extinction of any species (where we discussed the ivory-billed woodpecker, which is still not officially on the extinction list).  Here are some other possible examples.

In the continental U. S., this list of species removed from the protection of ESA because of extinction includes eight mussel species found in the southeast, where according to USDA, “Erosion, caused in part by deforestation, poor agricultural practices, and destruction of riparian zones, has led to both increased silt loads and shifting, unstable stream bottoms.”

The list also includes the Bachman’s warbler, a black and yellow songbird found in several Southern states, including on the Francis Marion National Forest.  According to the Center for Biological Diversity, the Bachman’s warbler was also lost to destruction of its bottomland forest habitat.

OTHER

• Mt. Hood highway Native American site

Settlement of Slockish v. U. S. Dept. of Transportation (Supreme Court)

This case involved the destruction of a Native American sacred site as part of a highway improvement project within the Mt. Hood National Forest.  The parties to the case, which included the Yakama and Grand Ronde tribes, the Cascade Geographic Society and the Mount Hood Sacred Lands Preservation Alliance, agreed that the U. S. government would plant nearly 30 trees on the parcel and maintain them through watering and other means for at least three years.  The government also agreed to help restore the stone altar, install a sign explaining its importance to Native Americans and grant tribal access to the surrounding area for cultural purposes.

• Idaho private road

A Bonner County District Judge recently upheld a decision by the Shoshone Board of County Commissioners denying a petition for road validation concerning a section of West Fork Pine Creek Road, which provides access to a section of BLM land with varying trails and roads throughout it – including “an area of specifically constructed off-road obstacles called the ‘Roller Coaster.’”  The result is that public can be denied access to public lands on this private road.

• Canada spotted owls

If anyone is wondering how the northern spotted owl might have fared without the protection of the Endangered Species Act, Canada is now facing that scenario.  Its Species at Risk Act requires an emergency order when an endangered species faces an imminent threat and before that threat materializes.  The scientific recommendation to do so for spotted owls in British Columbia was ignored for eight months, allowing further logging of the forest that supports the last remaining wild-born spotted owl in Canada.  A lawsuit was filed in June and heard in October.

The future of spotted owls in the U. S. might have looked like this:

“Today, however, only one wild-born spotted owl remains alive in all of Canada. Earlier this year, remains of two owls released from captivity in 2022 were found with their transmitters outside protected areas. The third was returned to the breeding centre where it is recuperating after being hit by a train…  Foy was part of a team that visited the Fraser Canyon forest sites at the end of May. He said they found logging had already started in places where critical spotted owl habitat was meant to be protected.”

FOREST SERVICE

• Coronado NF mines

Court decision in Patagonia Area Resource Alliance v. U. S. Forest Service (D. Ariz.)

On September 1, the district court denied a preliminary injunction against the Sunnyside and Flux Canyon exploratory drilling projects in the Patagonia Mountains on the Coronado National Forest.  The Sunnyside Project is a seven-year exploratory drilling project, requiring the construction of thirty drill pads within three drill areas occupying 7.5 acres.  The Flux Canyon Project is a twelve-month exploratory drilling project, requiring the construction of about 2,000 feet of road and six drill pads disturbing 1.8 acres of national forest land.  The court found plaintiffs would be unlikely to prove inadequate analysis of cumulative effects, effects on Mexican spotted owls and other species and water conditions in the EA for the Sunnyside Project or that Flux Canyon Project did not warrant a CE.

• Tongass NF roadless rule

New lawsuits:  Alaska v. U. S. Dept. of Agriculture (D. Alaska)

Inside Passage Electric Cooperative v. U. S. Dept. of Agriculture (D. Alaska)

Murkowski v. Vilsack (D. Alaska)

On September 8, the State of Alaska and two other groups of plaintiffs filed three separate federal lawsuits challenging the Forest’s Service’s repeal of the 2020 Alaska Roadless Rule and reinstatement of the national 2001 Roadless Area Conservation Rule on the Tongass National Forest, which restricts road construction.  The lawsuit focuses on “prospective geothermal and hydroelectric power plants, as well as hypothetical metal mines whose products could be used for green technologies.”  An attorney for a plaintiff said that logging companies aren’t part of these new lawsuits because logging is restricted under a new forest plan, and the prospects of changing the forest plan are limited (evidently referring to the 2016 “young growth” plan amendment).  (The article includes a link to all three complaints.)

• Nevada desert tortoise

New lawsuit:  Western Watersheds Project v. Haaland (D. D.C.)

On September 14, plaintiffs sued Clark County, NV and the Fish and Wildlife Service along with the Forest Service, BLM, and Park Service (and USDA and USDI) for failing to protect the Mojave desert tortoise and other rare species subject to the Clark County Multi-Species Habitat Conservation Plan (“MSHCP”). The Forest Service, BLM, NPS, and Fish and Wildlife Service all signed an Implementing Agreement, which binds them to implement the MSHCP.  The MSHCP was created to offset the development of nearly 170,000 acres of land on the outskirts of Las Vegas that would destroy habitat for imperiled desert species, in exchange for mandatory conservation measures, which have allegedly not been implemented.  Trespass grazing (by Cliven Bundy) and solar energy permits are among the activities being allowed to occur.  Plaintiffs seek reinitiation of ESA consultation on the effects of the incidental take allowed by the MSHCP, and supplemental NEPA analysis.

• Custer Gallatin NF South Plateau Project

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

On September 20, the Center for Biological Diversity, the Council on Wildlife and Fish, and the Alliance for the Wild Rockies sued to stop the South Plateau Landscape Area Treatment Project just west of Yellowstone National Park on the Custer Gallatin National Forest.  Plaintiffs say the 83 million board-feet of commercial timber expected to be removed is “significantly more than allowed under the Custer Gallatin National Forest Plan.”  The Project would log mature forests using a condition-based approach to NEPA compliance that does not identify specific locations.  However, it plans timber harvest or burning on 16,462 acres, including 5,531 acres of clear-cutting, 6,593 acres of other commercial harvest and 56 miles of roads in habitat designated for grizzly bears and Canada lynx.  The article includes a link to the complaint.  On September 6, the lawsuit parties also filed a notice of intent to sue under the Endangered Species Act (linked to this article).

• El Dorado Fire damages

New lawsuit

The Forest Service is suing three businesses alleging that smoke bombs — deemed illegal in California and used during an ill-fated gender reveal event — were defective, and sparked the deadly 2020 El Dorado fire in San Bernardino County.  The suit, which alleges negligence and health and safety violations, seeks unspecified monetary damages for fire suppression and investigative costs and various adverse environmental impacts.

• Bridger-Teton NF Roosevelt Fire damages

New lawsuit

Thirty-two Wyoming residents and organizations are suing the Forest Service for allegedly choosing to not suppress the 2018 Roosevelt Fire on the Bridger-Teton National Forest during “red-flag” fire conditions.  The fire consumed more than 65,000 acres and burned 55 homes.  Using an unplanned fire to achieve natural resource benefits isn’t authorized by federal law and violates the National Environmental Policy Act, the complaint says. The document also accuses the agency of failing to consult with the U.S. Fish and Wildlife Service under the Endangered Species Act and failing to harmonize the act with the Forest Plan.

BLM

• BLM grazing NEPA

New lawsuit:  Western Watersheds Project v. U. S. Dept. of Interior (D. D.C.)

On September 14, Western Watersheds and Public Employees for Environmental Responsibility filed a lawsuit accusing the Bureau of Land Management of failing to perform required grazing permit reviews across the West.  PEER analyzed data from 1997 to 2019 on land health evaluations for BLM’s 21,000 grazing allotments, and found the 27% had not been evaluated for environmental impacts pursuant to NEPA, with an even greater proportion in important natural areas and wildlife habitat, including for sage-grouse.  The plaintiffs argue that this violates 2014 and 2015 FLPMA amendment requirements to determine priority for environmental analysis and to conduct such analyses.  The article includes a link to the complaint.

• BLM Oregon Big Weekly Elk Project

New lawsuit:  Cascadia Wildlands v. U. S. Bureau of Land Management (D. Or.)

On September 19, Cascadia Wildlands and Oregon Wild went to court to stop the Big Weekly Elk Forest Management Project on the Coos Bay District.  The Project decision is based on an EA, and includes logging uncommon mature and old-growth forests and habitat for marbled murrelets and northern spotted owls.  The news release has a link to the complaint.

PARK SERVICE

• Yosemite National Park thinning

Court decision in Earth Island Institute v. Muldoon (9^th Cir.)

On September 12, the circuit court affirmed the district court’s denial of Earth Island Institute’s motion for a preliminary injunction to halt parts of two projects to thin vegetation in Yosemite National Park in preparation for controlled burns.  The court held that the projects fell under the “minor change” categorical exclusion because they were “changes or amendments” to the 2004 Fire Management Plan that would cause “no or only minimal environmental impact.”

• Sequoia/Kings Canyon National Parks fuels projects

New lawsuit:  Wilderness Watch v. National Park Service (E.D. Cal.)

On September 25, Wilderness Watch, Sequoia Forestkeeper and the Tule River Conservancy filed a complaint seeking to enjoin “Fuels Reduction Efforts to Protect Sequoia Groves in Sequoia and Kings Canyon National Parks from the Devastating Effects of High-Intensity Fire,” authorized by a decision memo and using emergency NEPA procedures.  Much of the tree cutting and burning would occur in designated wilderness, with Park Service arguing that is “necessary” to violate the Wilderness Act.  The article includes a link to the complaint.

EPA

• Pesticides and ESA

Settlement in Center for Biological Diversity v. Environmental Protection Agency (N.D. Cal.)

On September 12, the court approved a settlement agreement that commits the Environmental Protection Agency to develop a strategy to address the effects of over 300 active ingredients in herbicides, insecticides and rodenticides on ESA-listed species by 2025.  A biological evaluation to address the harms of eight especially hazardous organophosphate insecticides on endangered species is required by 2027.  The news release includes a link to the settlement and 2011 complaint.

FISH AND WILDLIFE SERVICE

• Foothill yellow-legged frog listing 

On August 31, the Fish and Wildlife Service listed four distinct population segments (DPSs, see map) of foothill yellow-legged frog under the Endangered Species Act.  In the final rule, the Service identified altered hydrology, agriculture, illegal cannabis cultivation, predation by nonnative species, diseases and parasites, mining, urbanization, recreation, severe wildfire, drought, extreme flooding, and the effects of climate change as severe threats to the Frog  The species is found on national forests, and was part of a recent lawsuit mentioned here.

• Grizzly bear litigation

Noah Greenwald, director of the Endangered Species program at the Center for Biological Diversity:

Grizzlies wouldn’t be roaming the greater Yellowstone ecosystem if it wasn’t for plentiful food, and the vast wildlands of the national park that offer protections from traps, bullets, chainsaws and bulldozers. But one of the most important places for grizzlies in recent decades has been the federal courthouse. I recently reviewed every lawsuit filed on behalf of grizzlies bears during the past 30 years and it’s clear that litigation has played a pivotal role in protecting these bruins under the Endangered Species Act, ensuring they survive and thrive.

When it passed the Endangered Species Act 50 years ago, Congress recognized that implementing the law would be difficult for agencies like the Forest Service and Fish and Wildlife Service because of the likelihood of direct conflicts with powerful special interests. As an antidote, a provision was included in the law that allows private citizens to go to court on behalf of species like bears that can’t speak for themselves.

Dozens of lawsuits have been filed during the last few decades to stop logging, mining, road building, livestock grazing and other destructive projects in grizzly bear habitat. Recently the Center for Biological Diversity, where I work, stopped two massive timber sales in the Kootenai National Forest in northwestern Montana that threatened the endangered Cabinet-Yaak population of bears.  The U.S. Forest Service wanted to clearcut hundreds of acres of old forest and construct miles of new roads, which would have had devastating consequences for the grizzly bears.”

And here’s the latest effort to protect grizzly bears in a federal courthouse.   The lawsuit alleges the Idaho Department of Fish and Game killed a grizzly bear cub without authorization from the U.S. Fish and Wildlife Service, which also is named as a defendant for allegedly permitting two other bears to be killed contrary to federal regulations.

NATIONAL FOREST CASES

• Uinta Basin Railway

Court decision in Eagle County v. Surface Transportation Board (D.C. Cir.)

On August 18, the circuit court reversed a decision by the Board to allow construction of the Uinta Basin Railway connecting oil fields in Utah to a railroad along the Colorado River by 88 miles of track through the Ashley National Forest. The Forest Service had granted a permit for the railroad (but was not a party to this lawsuit).  According to the court, the environmental impact statement, which largely limited its analysis to the effects of the new construction, failed to adequately study the potential of oil spills, trail derailments along the Colorado River and the potential for wildfire in communities along tracks. It also did not address the health of the Texas and Louisiana residents who would bear the brunt of increased air pollution near oil refineries.  (This article has a link to the opinion.)

• Custer-Gallatin NF Greater Red Lodge Area Vegetation and Habitat Management Project

Court decision in Alliance for the Wild Rockies v. U. S. Forest Service (D. Mont.)

On August 23, the district court vacated the “Gorilla” (GRLA) Project on the Custer-Gallatin National Forest, which had authorized logging and thinning activities on approximately 21,871 acres, because it reduced the designation of lynx habitat without formal review.  The forest plan includes direction applicable to “mapped lynx habitat” on this national forest.  The Project NEPA analysis “could not rely on Canfield (2016)’s (modified) lynx habitat map without first reviewing Canfield (2016) under NEPA—either separately or as part of the Project EIS.”  It referred to this as improper “tiering,” and held that the Forest violated NEPA by failing to take a hard look at the environmental effects of its revisions to the lynx habitat map.  (I see the problem as one of amending the forest plan without a formal process, which would also be a violation of NFMA.)  The court upheld the Forest on its determination of the wildland-urban interface to comply with exemptions from lynx management direction, and consideration of cumulative effects of a nearby timber sale on state lands.  (The article includes a link to the opinion.)

• Inyo NF gold mine

Court decision in Friends of the Inyo v. U. S. Forest Service (9^th Cir.)

On August 25, the circuit court reversed the decision of a lower court that would have allowed exploratory drilling in bi-state sage-grouse habitat on the Inyo National Forest.  While a full opinion has not been released, the court apparently ruled against the use of categorical exclusions.

• Eastside Screens forest plan amendments

Magistrate findings in Greater Hells Canyon Council v. Wilkes (D. Or.)

On September 1, the district court reversed a plan amendment for national forests in eastern Oregon and Washington that would have allowed logging of trees greater than 21″ in diameter.  (The link is to our extended discussion here.)

• Lead bullets on the Kaibab NF

Court decision in Center for Biological Diversity v. U. S. Forest Service (9^th Cir.)

On September 1, the circuit court refused to require the Forest Service to prohibit the use of lead shot by hunters in the Kaibab National Forest to protect endangered California condors.  It specifically rejected the contention that the Forest Service inaction is violating the Resource Conservation and Recovery Act, a law that lets private organizations and individuals sue anyone who contributes to improper disposal of hazardous waste.  The ruling said that even though the Forest Service has “broad authority to regulate hunting and fishing activities,” it rarely chooses to preempt state laws (see this post for background on this issue).  This article includes a link to the opinion.

• Bobcat Fire damages to the Angeles NF

New lawsuit:  U.S.A. v. Southern California Edison Company (C.D. Cal.)

On September 1, the federal government sued Southern California Edison for damages it sustained from the 2020 Bobcat Fire that burned over 100,000 acres of the Angeles National Forest.  The Forest Service says it spent more than $56 million suppressing the fire, incurred property and natural resource damages of over $65 million, and spent $769,000 on burned area emergency response costs.  Forest Service investigators determined the Bobcat Fire started when a tree came in contact with power lines.  The article includes a link to the complaint.  (Query:  did the Forest Service count any of these burned acres as accomplishments?)

• Custer-Gallatin NF South Plateau Project

Notice of intent to sue

On September 6, the Center for Biological Diversity, Alliance for the Wild Rockies and Council on Wildlife and Fish notified the Custer-Gallatin National Forest and U. S. Fish and Wildlife Service of their intent to sue regarding the South Plateau Project’s effects on grizzly bears and Canada lynx.  The notice also criticizes the use of condition-based process to identify treatments and the logging of mature trees, and it suggests that the project does not comply with the just-revised forest plan.  (This article includes a map showing the results of the mature and old growth inventory for this part of Montana, and the mapping tool is available here.)  The NOI is available here.

• Twin Metals mine on the Superior NF

Court decision in Twin Metals Minnesota LLC v. U. S. A. (D. D.C.)

On September 6, the district court dismissed an attempt by the mining company to reinstate the company’s mineral leases for its planned copper-nickel mine near the Boundary Waters Canoe Area Wilderness in the Superior National Forest, which had been cancelled by the Bureau of Land Management.  The land had then been withdrawn from mineral entry by the Department of the Interior.  The court essentially found that the mining company had no legal rights to its lease.  (The Forest Service was not a party to this case.)

• Kootenai NF grizzly bear forest plan amendment

Litigation follow-up

After losing two recent timber sale lawsuits (Ripley and Black Ram) involving the effects of roads on grizzly bears, the Kootenai National Forest is proposing to amend its forest plan to change the way roads are counted in areas outside of grizzly bear recovery zones (BORZ) to allow the use of temporary roads during logging projects to not count against road limits.  After admitting that, “there’s no (timber sale) project that comes across my desk that gets denied,” the forest supervisor observed, “Getting a handle on the courts would help a lot.”

• Mexican border wall on the Coronado NF

Settlement regarding restoration of national forest lands

While the state had previously agreed to remove the shipping containers it had placed as barriers along the Mexican border, and had done some restoration work, they have now also agreed to pay an additional $2.1 million to fully remediate the damage to national forest lands.  Once that bill is paid, the case would be dismissed

BLM CASES

• BLM Oregon IVM-RL Project

New lawsuit

The Applegate Siskiyou Alliance has challenged the BLM’s 10-year “integrated vegetation management for resilient lands program,” or IVM-RL, for more than 680,000 acres in the region, as well as the specific Late Mungers project, which involves 830 acres of commercial harvest and 7,500 acres of thinning.  Up to 20,000 acres of commercial logging, 60,000 acres of small-diameter tree thinning, 70,000 acres of prescribed burning and 90 miles of road construction would be allowed over a decade.  The BLM did not prepare an EIS and did not identify specific sites necessary for a site-specific evaluation, allegedly in violation of NEPA.

• BLM Colorado RMP mineral withdrawal

Post-litigation

As a result of previous court challenges and settlements, the BLM has produced a new proposal for a resource management plan for Colorado’s Western Slope, which is currently open for public comments.  BLM says in the draft proposal it would bar industry access to lands with “no-known, low or medium” oil potential, as well as to acres that are striking for their wildlife, conservation or wilderness values. This would be a significant reversal of the current situation – it would mean closing 80 percent of the lands in the decision area managed by the Colorado River Valley Field Office to new oil leasing and 81 percent of the Grand Junction Field Office’s lands.  It would keep 93 percent of the Colorado River Valley Field Office’s high oil and gas potential lands open to leasing, but in the Grand Junction Field Office only about 44 percent of the high oil potential area would be available for leasing.  (Interestingly, per this article, the mountain bike industry is “neutral” – “if those companies weren’t there, the roads wouldn’t be either.”)

FISH AND WILDLIFE SERVICE CASES

• Garter snake critical habitat

New lawsuit:  Center for Biological Diversity v. Haaland (D. Ariz.)

On August 22, the Center sued the Fish and Wildlife Service for reducing the previously proposed critical habitat by 90% for the narrow-headed garter snake and the northern Mexico garter snake; both are threatened species.  The reduction was the result of eliminating unoccupied critical habitat.  The riparian habitat they use is found on the Tonto, Coronado, Coconino and Prescott National Forests, and BLM and National Park lands, and occupied habitat there was designated as critical habitat.  (The news release includes a link to the complaint.)

• Eastern hellbender listing

Court decision in Center for Biological Diversity v.U. S. Fish and Wildlife Service (S.D. N.Y.)

On September 6, the district court vacated the Fish and Wildlife Service’s decision to not list the eastern hellbender as threatened or endangered. The court found that the Service unlawfully relied on conservation measures that had not yet been implemented and determined effective and that did not address sedimentation, a primary threat to the species.  The large salamander lives across the eastern U. S.  It was previously listed as endangered in Missouri.  (The news release includes a link to the opinion.)

(The Center for Biological Diversity doesn’t always win these listing/critical habitat lawsuits.  Here, they lost their challenge to a 90-day negative finding by the FWS for listing the Tucson shovel-nosed snake, the court deferring to the use of genetic testing by the Fish and Wildlife Service to define the range of the subspecies.)