NFS Litigation Weekly August 21, 2019

The Forest Service is now providing these short overviews in their cover email, which serve the same purpose as the summaries I have been providing here, so I’m just going to copy them and add the links to the relevant documents.

Forest Service Summaries:  2019_08_21_Litigation Weekly_Email

Court Decisions:

Timber & Minerals | Region 6

Animal Legal Defense Fund v USA et al Region 6

Animal Legal Defense Fund, et al. v USA, et al. (18-1860, D.OR.) Region 6—On July 31, 2019 the District Court of Oregon issued an opinion and order in favor of the United States in which the Department of Agriculture is a party concerning commercial logging and mineral extraction contribution to climate change. This is the second climate change case that was filed after the Juliana v. United States (15-1517, D. OR., 18-36082, 9th Cir.). The Federal Government urged the district court to restrain “from dictating environmental policy by creating a “right to wilderness” and argued that the plaintiffs lacked standing to bring such a broad claim.”

Litigation Update:

Nothing to report

New Cases:

Recreation | Region 4

Sawtooth Mountain Ranch v USFS_Region 4

Sawtooth Mountain Ranch LLC et al. v. United States Forest Service et al. (19-00118, D. Idaho) Region 4— On August 8, 2019, plaintiffs filed an amended complaint in the District Court of Idaho against the Forest Service concerning plans to construct the Redfish to Stanley Trail (Trail) on the Sawtooth National Recreation Area (Sawtooth National Forest).

Notice of Intent:

Wildlife | Region 1

NOI Neighbors Against Bison Slaughter_Region 1

NOI (dated August 16, 2019 and received August 20, 2019) by Neighbors Against Bison Slaughter (NABS) alleging the Forest Service and National Park Service (NPS) violated the Yellowstone National Park Act (YNPA), National Forest Management Act (NFMA), Multiple-Use Sustained Yield Act (MUSYA), National Environmental Policy Act (NEPA), and Interagency Bison Management Plan (IBMP) by not imposing reasonable restrictions on the migrating and hunting of wild bison in Beattie Gulch on the Custer-Gallatin National Forest (CGNF) — Region 1.

Natural Resource Management Decisions Involving Other Agencies:

Pipeline | Region 8 & 9

Wild Virginia et al v USDOI Region 8_9

Wild Virginia, et al. v. U.S. Department of Interior, et al. (19-1866, 4th Cir.)-Region 8 and 9—On August 12, 2019 the petitioners filed a request for appeal with the 4th Circuit Court of Appeals concerning the Mountain Valley Pipeline on the Monongahela, George Washington and Jefferson National Forests. The petitioners are appealing pursuant to the Administrative Procedures Act, 5 U.S.C. 702, Section 19(d)(1) of the Natural gas Act to review the U.S Fish and Wildlife Service’s Biological Opinion (BO) and Incidental Take Statement (ITS) dated November 21, 2017 for the Mountain Valley Pipeline.

Mining | Region 1

Nez Perce Tribe v Midas Gold Corp Region 1

Nez Perce Tribe v. Midas Gold Corp, et al (19-307, D. Idaho)-Region 1— On August 8, 2019 the plaintiff filed a complaint in the District Court of Idaho against the defendants (Midas Gold Corp., Midas Gold Idaho, Inc., Idaho Gold Resources Company, LLC, and Stibnite Gold Company) concerning the Stibnite Gold Project on the Payette National Forest. Plaintiff’s complaint alleges violations under the citizen enforcement provision of the Federal Water Pollution Control Act (Clean Water Act-CWA). An initial Notice of Intent was sent to the defendants on June 5, 2019



An additional document was included with this summary, but was not summarized.  It is an amended complaint filed on August 7 in WildEarth Guardians v. Weber, which is one of two lawsuits filed against the revised Flathead National Forest Plan.  They have dropped their claims of violations of NFMA and the Planning Rule and added claims related to the Endangered Species Act.


Colville cows

The Maryland-based Center for a Humane Economy filed a suit in King County Superior Court, to prevent the state of Washington from killing more wolves from a pack that is preying on cattle. The Lands Council, a Spokane-based conservation group, said it may be time to move the cattle off of the Colville National Forest.  (However, the Forest Service is not a defendant in the lawsuit.) 

3 thoughts on “NFS Litigation Weekly August 21, 2019”

  1. I thought #166 was interesting in WEG vs. Weber
    “The 2011 baseline is derived from the 2013 draft NCDE Conservation Strategy, and subsequently, the 2018 final NCDE Conservation Strategy. Reliance on the 2011 baseline fails to account for changed conditions since December 31, 2011.
    Reliance on the 2011 baseline fails to account for or consider important factors such as food resource availability to the NCDE grizzly bear population since December 31, 2011. Reliance on the 2011 baseline fails to account for or consider important factors such as increased mortalities to the NCDE grizzly bear population since December 31, 2011. Reliance on the 2011 baseline fails to account for or consider important factors such as wildfire impacts to the NCDE grizzly bear population since December 31, 2011. Reliance on the 2011 baseline fails to account for changes in the NCDE grizzly bear population’s size since December 31, 2011. Reliance on the 2011 baseline fails to account for changes in the NCDE grizzly bear population’s distribution since
    December 31, 2011. Reliance on the 2011 baseline fails to account for changes in the NCDE grizzly bear population’s rate of population change since December 31, 2011.”

    Since forest plans (under the 2012 Rule, which didn’t seem designed to expedite planning IMHO) take so long, won’t there always be things that are out of date (or could be argued in court that they are out of date) leading to legal hooks that can get litigants and DOJ behind closed doors to settle (without any public involvement in the final decisions?).

    • The role of the “baseline” in this decision is unique and can be confusing. In #164, “The Revised Plan adopts a 2011 baseline by which to measure road density and secure core habitat in the future.” They are saying those conditions are good enough to serve as a floor for meeting requirements for recovery under ESA. This is not the same as the typical NEPA process case where the question is whether these are the appropriate conditions for the purpose of comparing effects of alternatives (or whether the new information is significant enough to require a supplemental EIS). I think the substantive aspect of this question here justifies a court taking a closer look at whether the agencies disregarded important factors that they were aware of.

      The second part of your question is about settlements. As we have discussed in the past, any settlement is highly unlikely to change the decision, but rather would require more process that includes public participation. A settlement would probably also address whether any projects would be enjoined while that is occurring. The “request for relief” includes a remand to the agencies to comply with the law, and “any other relief, including preliminary or permanent injunctive relief that Plaintiffs may subsequently request.”

  2. Anyone wondering whether law reform is needed might want to read the opinion and order in Animal Legal Defense Fund v. USA (link above). I quote:

    “Plaintiffs ask this Court to, among other things, direct the government to ‘phase out fossil fuel extraction, animal agriculture, and commercial logging of old-growth forests on federal lands,’ consider impacts on wilderness in making family planning policy decisions, . . . and appoint a special master to review and designate wilderness areas.”

    . . . .

    “Plaintiffs urge this Court to engage in ‘nothing short of revolutionary thinking’ by recognizing ‘a right to wilderness’ under the First, Fifth, Ninth, and Fourteenth Amendments [to the United States Constitution]. [Citation.] Plaintiffs further ask that the Court order government actors to adopt certain policies in order to combat climate change.”

    . . . .

    “They allege that climate instability and increased frequency and severity of wildfires interfere with their ‘constitutional right to find solitude’ and ‘sacred time’ in the wilderness.”
    . . . .

    “Plaintiffs cite no legal authority to support their theory that there is a substantive due process right to be free from government. To the contrary, ‘[t]here is no recognized fundamental right to live free of governmental regulation.’ [Citation] Even where there is a fundamental liberty interest at stake, the government may infringe upon it if ‘the infringement is narrowly tailored to serve a compelling state interest.’ [Citation] Further, Plaintiffs’ asserted fundamental ‘right to wilderness’ lacks foundation in this ‘Nation’s history, legal traditions, and practices’ and is unlike other fundamental rights the Supreme Court has enumerated. [Citation] Plaintiffs also fail to provide a ‘careful description’ of the asserted right. [Citation] Instead, they endorse a broad philosophical concept with no legal definition or tangible scope.”

    . . . .

    “Because the harm Plaintiffs seek to redress is a diffuse, global phenomenon that affects every citizen of the world, Plaintiffs’ harm is not individualized and they lack standing. Additionally, the lower courts—bound by rule of law—are not the forum for the ‘revolutionary’ thinking that Plaintiffs articulately espouse in their briefing. Indeed, this Court has previously declined invitations to create new fundamental rights that are not enumerated in the constitution or found in Supreme Court precedent. [Citation] Because there exists no clearly established ‘right to wilderness,’ Plaintiffs have failed to state a claim upon which relief can be granted.”

    Small wonder the Forest Service struggles to attend to pressing issues, when its staff are distracted by this kind of litigation.


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