NFS Litigation Weekly October 2 & 9, 2019

Forest Service summaries (which I have summarized further below):  0000000_2019_10_09_Litigation Weekly Email


The district court found plaintiffs lacked standing to challenge the NorthMet Project Land Exchange to allowing copper mining on the Superior National Forest.  (D. Minn.)  This case is discussed here.

The district court held that the administration of a special use permit for dam infrastructure on the Ocala National Forest is not subject to judicial review.  (M.D. Fla.)

The district court denied the government’s motion to dismiss or transfer to multiple courts the challenge to the 2015 decision by the BLM and FS to amend land management plan direction for sage-grouse affecting national forests in three regions.  (D. Idaho)

The district court remanded the decision on the Pilgrim Creek Timber Sale Project on the Kootenai National Forest to prepare a supplemental EIS and reinitiate consultation on grizzly bears regarding the effects of ineffective road closures.  The remand also requires reinitiation of consultation on the Forest’s “Access Amendment,” which is part of its revised forest plan.   (D. Mont.)  (More information is provided here.  An earlier court decision on similar issues on the same project was discussed here.)


The Supreme Court has agreed to hear this appeal of the order by the 4th Circuit Court of Appeals to vacate the Forest Service decision to permit construction of the pipeline across the George Washington and Monongahela National Forests and under the Appalachian Trail.

The district court denied a temporary restraining order regarding HUD’s authorizing the use of disaster relief funds to the Forest Service for logging on the Stanislaus National Forest and construction of a new biomass power plant.  (N.D. Cal.)


The complaint concerns a second iteration of the Pettijohn Project on the Shasta-Trinity National Forest, and includes claims of ten statutory violations related primarily to northern spotted owls and old growth.  (E.D. Cal.)

The complaint alleges that the Bridger-Teton and Caribou-Targhee National Forests are improperly allowing mountain bike use in two wilderness study areas and motorized use in one of them.  (D. Wy.)  (Discussed on this blog here.)


Claim: The Pike and San Isabel National Forest failed to relocate a motorized trail out of an area where it would affect the federally listed greenback cutthroat trout as it had documented in a decision notice.  (Discussed on this blog here.)

Claim:  The Beaverhead-Deerlodge National Forest failed to initiate consultation regarding the effects on bull trout of operation of the Flint Creek Ditch and fish screen by the Montana Department of Natural Resources, as the decision notice on the East Fork Fish Creek Screen had stated.

Claim:  The analysis of effects on Canada lynx for the John Wood Forest Management Project on the Caribou-Targhee National Forest failed to meet requirements of ESA and NEPA.



The Wilderness Society and Moncrief Oil and Gas Master LLC reached an out-of-court settlement resulting in the permanent retirement of a federal oil and gas lease in the Badger-Two Medicine area near Glacier National Park. The district court’s ruling and lease reinstatement had been appealed by multiple conservation, sportsmen and Blackfeet Nation stakeholders and their appeal was pending before the D.C. Circuit Court of Appeals when the settlement was reached. Williams (TWS), along with Peter Metcalf, executive director of the Glacier-Two Medicine Alliance, thanked the Wyss Foundation for its assistance in “making the lease retirement possible.”  This area has been previously discussed here (and I thought Sharon might be interested in this settlement).

Speaking of national monuments, the Western Environmental Law Center has filed a second lawsuit against the BLM for its decision to open 90% of this Monument to recreational target shooting, which has “irresponsibly damaged centuries-old saguaro cacti and irreplaceable petroglyphs.”


2 thoughts on “NFS Litigation Weekly October 2 & 9, 2019”

  1. The first case discussed above about the PolyMet Mine is worth some further comment after reading the opinion. Plaintiffs were denied standing because there remain many permits to obtain, and “Unless and until Poly Met Mining secures the permits needed to build a mine, nothing in the record indicates it intends any changes to the federal land after the land exchange that would result in negative effects to Canada lynx, gray wolves, or the northern long-eared bat” (or any other alleged effects). The record is actually replete with facts demonstrating that the exchange and the mine are connected actions under NEPA and interrelated actions under ESA meaning they must be addressed together. Including, “The sole purpose of the NorthMet land exchange is to resolve a conflict between the Forest Service and PolyMet concerning PolyMet’s right to conduct open-pit mining on lands for which it controls the subsurface mineral rights.” The court is apparently saying that the requirements of these laws are unenforceable until the last permit because no harm can occur until then (and apparently if you don’t get the state permits until last, you can avoid complying with federal laws entirely). (The court relies heavily on a Supreme Court decision, Summers, that held that agency appeal regulations don’t cause harm – a totally different situation.) The second two documents linked to this case are actually complaints in new lawsuits against the Corps of Engineers permit for the mine. If at first you don’t succeed …


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