NFS Litigation Weekly September 7, 2018

Forest Service summaries:  Litigation Weekly Sept 7

The District court adopted the magistrate judge’s recommendations to uphold the Lostine Public Safety Project on the Wallowa-Whitman National Forest.  (D. Or.)  (We didn’t receive the June 14 LW cited, but there is a brief summary and a link to an article here.)

A magistrate judge has recommended that the Santa Fe National Forest be required reinitiate ESA consultation on its 2012 travel management plan to address the subsequently listed Jemez Mountain Salamander.  (D. N.M.)

(Update.)  The district court denied plaintiffs’ motion for an injunction pending appeal of its decision to affirm the Beaver Creek Landscape Restoration Project on the Flathead National Forest.  (D. Mont.)

(Notice of intent to sue.)  Seven plaintiffs are seeking reinitiation of ESA consultation on grizzly bears and bull trout for the Rock Creek Mine on the Kootenai National Forest.



On August 13, the Montana district court granted a preliminary injunction against the North Hebgen Project on the Custer-Gallatin National Forest.  However, it was based on the Forest Plan Amendment 51 decision that changed a forest plan standard requiring the retention of 30% of”old growth” forest to a less-stringent standard pertaining to “over-mature” forest, which would allow the initially non-compliant project to comply with the forest plan. The court found that plaintiffs had raised questions about ESA consultation on Canada lynx sufficient to enjoin the project until completion of the litigation.  (This case was previously discussed here including my comments.)

There was no consultation on the amendment.  Consultation must occur if a federal agency action “may affect” a listed species.  Here, the record included statements by the Forest that Amendment 51 could have a “potential effect on wildlife associated with old growth,” and indications that lynx are one of these species. The Forest Service seemed to be arguing that consultation that occurred on the lynx amendment was sufficient because there are no new adverse effects, but that appeared to be contradicted by its record.   The court found that Plaintiffs have established “fair ground for litigation and thus for more deliberative investigation,” regarding whether Amendment 51 “may affect” lynx-” a relatively low threshold for triggering [Section 7] consultation.”

The Ninth Circuit rejected the U. S. Fish and Wildlife Service decision to not list this fish species as endangered in 2014.  It is found in a few lakes in southwest Montana on national forest lands, but the primary concern is the remaining river populations.  The court found the decision to be arbitrary and capricious because the FWS failed to supply evidence of increased population of the Arctic grayling in Montana rivers, and didn’t properly account for climate change effects on thermal refugia.


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