NFS Litigation Weekly April 13, 2018

Litigation Weekly April 13

Since there was no evidence that an access easement had been granted by the Helena-Lewis and Clark National Forest to a patented mining claim in-holding, the Forest Service could require a special use permit for the owners to use a road that was closed to public motorized use.  (D. Mont.)

(New case.)  Taking a cue from a 9th Circuit decision in 2013 on the Pilgrim Creek timber sale, which said that ineffective road closures would violate the Kootenai National Forest plan limits on open roads, plaintiffs identified numerous ineffective berms and open roads that had not been accounted for.  They have again challenged the Pilgrim Creek timber sale project for violating NFMA and NEPA, and also alleged violation of the incidental take provisions of ESA for grizzly bears for the project and the forest plan .  (D. Mont.)  This case was also mentioned here.

(Note:  Plaintiffs continue to refer to the “Access Amendment” to the previous forest plan, which was incorporated into the revised Kootenai forest plan in 2015.  While it may be true that the NFMA consistency requirement for this project is determined based on the old forest plan, if the court grants their request for reinitiation of consultation on access restrictions, that would mean reinitiating consultation on the revised forest plan.)

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