NFS Litigation Weekly June 26, 2019


Forest Service summaries:  Litigation Weekly_June 26, 2019


The District Court of Idaho required the Forest Service to engage in formal consultation pursuant to the Endangered Species Act (ESA) concerning the effects of 23 surface water diversions and associated ditches and facilities located in the Sawtooth National Recreation Area and on the Sawtooth National Forest.  Here’s an article providing background.

The District Court of Oregon refused to enjoin the Forest Service’s Crystal Clear Restoration Project on the Mount Hood National Forest.  Additional background is here, and this case was brought up as example on this blog here.

The 9th Circuit Court of Appeals upheld the Forest Service’s designation of at-risk forest lands under the Healthy Forest Restoration Act, and its approval of the Sunny South Project on the Tahoe National Forest.


The 9th Circuit denied an emergency motion for injunction pending appeal by the plaintiffs for the Miller West Fisher Project on the Kootenai National Forest.  See Alliance for Wild Rockies v. Savage in last week’s summary.


The Decision Memorandum and Categorical Exclusion for the Willow Creek Vegetation Management Project on the Helena-Lewis and Clark National Forest violate NEPA.  The lawsuit is discussed in this article.  (D. Mont.)

The Tenmile South Helena Timber and Vegetation Management Project on the Helena-Lewis and Clark National Forest violates NFMA, the 2001 Roadless Rule and NEPA.  This is the second lawsuit against this project and it is discussed in this article.   (D. Mont.)

In Wilderness Society v. US Department of Interior, the complaint alleges that the Government violated the Freedom of Information Act by failing to provide records requested regarding the cancellation of a proposed mineral withdrawal in the Superior National Forest near the Boundary Waters  Wilderness Area.  This article provides some background.  (D. D.C.)






6 thoughts on “NFS Litigation Weekly June 26, 2019”

  1. Thanks for doing this, Jon. Much appreciated!

    Might the Center for Biological Diversity case have far-reaching effects?

  2. Yes it will- this case challenged the Chiefs ability under the 2014 Farm Bill to designate watersheds for treatment for insects and disease under a Categorical Exclusion. The suit claimed that the designation required NEPA; the courts said otherwise.

  3. Here’s a postscript on the Tenmile South case provided by the leadership of the Alliance for the Wild Rockies, suggesting a reason why litigation happens.

    Michael Garrity describes his participation in a collaborative group for this project (notable because AWR seems to be used as a frequent example of “extremists” who don’t participate in such groups), and how he believes the Forest Service “is going back on its word to both the City and the citizens in the Ten Mile Watershed Collaborative Committee.”

  4. I did enjoy reading about Earth Island and CBD losing in the Ninth Circuit Court. The Tahoe’s strategy should become a template for other time sensitive projects. It’s good to see so many loopholes closing, and more open minds in the Ninth Circuit, these days.

    • What’s interesting about the “Tahoe’s strategy,” was that the California spotted owl is a sensitive species, and the science the court was referring to was found in the biological evaluation required for that species. The NEPA CE process by itself apparently would have failed to show that there were no extraordinary circumstances, which could have invalidated the CE.

      This is captured by the court’s footnote: “The Forest Service takes the position that it need not engage in an extraordinary circumstances analysis at all. We need not address this issue because the Forest Service did conduct such an analysis, and its decision that the project was categorically excluded from NEPA compliance was not arbitrary or capricious.”

      By the way, the likelihood of having a record like this to help it in court would decline if the new Forest Service process eliminates scoping requirements for CEs (especially if the Forest Service believes it doesn’t have to consider extraordinary circumstances).


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