Early spring litigation summary

Rosemont Mine

(Update to Tohono Oodaham v. USFS and two other cases discussed here.)

A FOIA request unearthed EPA comments to the Army Corps of Engineers regarding effects of the Clean Water Act permit. And the mining company response, which is partly to demand a “statistical analysis” of impacts before calling them “significant.”

Mountain yellow-legged frogs, Sierra Nevada yellow-legged frogs, and Yosemite toads

(D. C. District Court decision in California Cattlemen’s Association v. U. S. Fish and Wildlife Service.)

Farming and ranching groups were not able to establish standing to sue under ESA by claiming that critical habitat designation led the Stanislaus National Forest to reduce permitted grazing, partly because that occurred before the critical habitat decision. The Regulatory Flexibility Act also did not apply.  Additional information here.

Greater sage grouse

(New lawsuit, Western Watersheds v. Bernhardt, in the District of Idaho.)

Plaintiffs who were already litigating allegedly inadequate protections for sage grouse adopted in BLM land management plans in 2015 (discussed here as Western Watersheds v. Zinke) are now suing the BLM for weakening them. The Forest Service adopted similar measures but has not yet changed them.  Additional information here.

Cascade-Siskiyou National Monument

(District of Oregon court decision in Murphy Company v. Trump)

The court found that the Oregon and California Lands Act, which applied to lands included in an expansion of the national monument, did not conflict with the Antiquities Act and did not prohibit inclusion of O & C ands in the monument.

Badger-Two Medicine

(Update on two lease cancellation cases)

The Department of Interior is withdrawing its appeal of a district court decision favoring leaseholders in one of two cases involving cancellation of oil and gas drilling leases on the Helena-Lewis and Clark National Forest adjacent to Glacier National Park and the Blackfeet Indian Reservation.   Environmental and tribal intervenors are maintaining their appeal, and the second appeal by all parties remains pending.

Colorado oil and gas

(District of Colorado decision in Citizens for a Healthy Community v. U. S. Bureau of Land Management)

The BLM and Forest Service illegally approved two adjacent natural gas drilling plans in western Colorado, because they did not adequately analyze wildlife and climate impacts.

Mt. St. Helens

(New lawsuit.)

The Cascade Forest Conservancy filed a lawsuit against the Forest Service and BLM over the agencies’ decision to allow exploratory drilling near the Mount St. Helens National Volcanic Monument in the Gifford Pinchot National Forest on lands acquired using the Land and Water Conservation Fund.

Court fees and costs

The Montana District Court awarded fees based on Endangered Specie Act’s fee shifting provision to two attorneys who litigated Native Ecosystems Council v. Krueger, (see discussion of Beaverhead-Deerlodge forest plan). The award was due because plaintiffs were the “prevailing party” on a claim involving Canada lynx:   “By obtaining an enforceable judgment against the Forest Service that preserved the Court’s 2012 injunction pending consultation under the ESA, Plaintiffs obtained sufficient success for an award to be appropriate for the legal work in its entirety.” (These are the attorneys who frequently represent plaintiffs against the Forest Service in Montana, and you might find the court’s discussion of the value of their services to be interesting.)

The Oregon District Court awarded costs “other than attorney’s fees” to the government and intervenors as the “prevailing parties” in accordance federal court rules in BARK v. Northrop.   They were reimbursed for costs associated with preparing the records needed for the litigation. Courts can deny such costs, but this court was not convinced by these plaintiffs to do so.

Bagley Fire project

(Eastern District of California court decision in Conservation Congress v. U. S. Forest Service)

The court upheld the Bagley Hazard Tree Abatement Project on the Shasta-Trinity National Forest. It involves felling and removal of hazard trees along roads in the area burned by the 2012 Bagley Fire. The court held:

• The EA adequately adequately addressed cumulative effects because it stated, “[a]dditional impacts to the [NSO] and Sensitive species . . . could occur from the disturbance generated during implementation overlapping in space and time with private actions (highlighted to point out that a precedent cited by the court had held, [“g]eneral statements about `possible’ effects and `some risk’ do not constitute a `hard look’”).
• The EA properly discounted effects on inventoried roadless areas because it characterized them as “substantially roaded” and “having minor roading,” as well as having very small proportions of the areas affected. (This is an example of the difference between IRAs and areas with roadless characteristics, discussed here.)
• Effects on northern spotted owls in Late Successional Reserves and critical habitat were not significant because the BA states that there would be adequate numbers of snags remaining in treated areas, and, “the [Project] impacts would not affect the function of the habitat.”
• The Forest was not required to consider an alternative that avoided IRAs and owl habitat because that would have excluded almost all of the project area, similar to no action. While not explicitly identified as an alternative, the EA also considered reducing the distance from roads to be included, which would have reduced the effects on these areas.
• The Fish and Wildlife Service properly considered the spotted owl recovery plan as one of several pieces of information constituting best available science for its concurrence that there would be no adverse effects.