NFS Litigation Weekly October 25, 2019

Forest Service summaries:  000000_2019_10_25_Litigation Weekly


The district court denied the plaintiffs’ Motion for Preliminary Injunction sought for the Tenmile South Helena Timber Management Project on the Helena-Lewis and Clark National Forest.  (D. Mont.)


The district court approved a stipulation to modify the injunction against projects affecting Mexican spotted owls pending further consultation with the USFWS.  (D. Ariz.)  Discussed in detail here and here.


Plaintiffs contend the Forest Service is asserting federal ownership of Plaintiff’s ten acres adjacent to the White River National Forest.  (Court of Federal Claims)

This case involves several projects related to the Ranch Fire on the Mendocino National Forest and Barryessa-Snow Mountain National Monument where the Forest Service has used a categorical exclusion for road maintenance to salvage timber from 7000 acres.  (D. N.D. Cal.)  A similar case was discussed here.

Plaintiffs claim violations of NEPA and NFMA for the Mission Restoration Project and Forest Plan Amendment #59, which authorized logging, burning, and road building on the Okanogan-Wenatchee National Forest based on an EA.  (E. D. Wash.)

This lawsuit was filed against the National Park Service and the Forest Service concerning the continued allowance of hunting bison that have migrated out of the Yellowstone National Park to the Custer Gallatin National Forest.  (D. D.C.)  Here’s a background article.


Grazing permittees assert that a biological opinion by the National Marine Fisheries Service addressing 29 allotments on the Malheur National Forest violated the ESA.

The Alliance for the Wild Rockies has supplemented its NOI for the Hanna Flats Project on the Idaho Panhandle National Forest to include violations of ESA associated with consultation on grizzly bears for the forest plan Access Amendment.  (This may be related to the outcome of the Pilgrim lawsuit, discussed here.)


The district court has enjoined the BLM from implementing the 2019 BLM Sage-Grouse Plan Amendments because of NEPA violations.  This was explained here.



  • BLM Grazing

The Western Watersheds Project has filed a lawsuit seeking information (presumably via FOIA) from the BLM about a 2017 grazing initiative affecting six states.  Also, a new lawsuit was filed that challenges parts of the 2019 sage-grouse amendment that allow grazing of research natural areas.  

A court has remanded the decision by the FWS that the species is warranted for listing but precluded by higher priorities for an explanation of why its priority was lowered.  The species is found in high-elevation streams and lakes of the Rio Grande, Canadian and Pecos rivers in Colorado and New Mexico.

  • Mining

The Idaho Conservation League and Greater Yellowstone Coalition are asking a federal court to stop the Kilgore Gold Project on the Caribou-Targhee National Forest.   In Montana, the district court refused to dismiss claims against the Rock Creek Mine on the Kootenai National Forest.

  • Oregon state forests

Counties and other taxing districts have sued because the state has not managed forests for the most long-term, sustainable income as required in a decades-old contract.  Instead, the state is operating under a management plan based on a definition of greatest forest value that includes factors such as recreation, wildlife enhancement and water quality.  Meanwhile, the state is trying to develop a new plan that would gradually increase the number of harvestable acres after adopting a habitat conservation plan for at-risk species.

18 thoughts on “NFS Litigation Weekly October 25, 2019”

  1. Cutthroat listing would be a death sentence to the fish. The main threat to the fish is competition with invasive brown trout in remote streams. Recovery efforts include raising awareness of the cutthroat’s cultural significance in villages, whose younger generations know nothing about the fish and are beginning to coalesce around the idea of saving it in the interest of heritage. ESA listing, if packaged with land use restrictions, would make the fish a villain instead of a hero. The 2013 Rio Grande Cutthroat Restoration Strategy charts a path forward, and professionals from CO and NM are making restoration gains every year, which we catch up on once a year at a rangewide status meeting. Point being, people are on the job, money’s being raised, and we’re making progress.

  2. Toner, thanks for speaking up for the folks working on restoration! Maybe you can explain, I found it a bit puzzling. It sounds like the judge is asking why the FWS changed its mind about the numbers needed for not-listing between 2008 and 2014? That would possibly have been changing to the “not-listing decision” during the Obama Administration? What do you think happened between 2008 and 2014?
    Would you be interested in writing a post for The Smokey Wire about what you all are doing? If not, can you provide some links to reports or other write-ups? Thanks!

    • Hi Sharon,
      I could write something up, but I think I would have to get input from NM and CO game and fish folks about where I’m allowed to tread. They’re proceeding with caution after the latest developments, which I appreciate, but I think we’re all a little frustrated about how the cutthroat’s predicament is being portrayed. Basically, the most vocal proponents – and I use the term loosely given their apparent lack of genuine concern about the fish – haven’t cared enough to learn about all that’s being done and all the progress that’s been achieved.

      I don’t know what happened during that period, and I don’t know how the criteria for listing or not listing is mandated or decided upon (ESA standard or lawsuit?). I do know that using population numbers as a sole criterion for listing reflects ignorance of the cutthroat’s current situation. I believe I saw a population standard of 2500 individual fish; whoever proposed such a number as indicative of species health is unaware that most occupied streams (1-5 cfs) don’t even support that much fish biomass, and quite possibly can’t.

      Also, going by numbers would suggest that simply raising that many hatchery fish and stocking all RGCT streams – or lakes in their watersheds – would be sufficient for delisting. Without addressing brown trout as well (in NM, brook trout in CO), assessing species health on population would be worthless.

      In my opinion, occupied stream miles and watershed representation (streams and tribs) are better guides to cutthroat health and long term persistence. The Rio Chiquito in NM has two miles of occupied habitat left, where the cutthroat are doing really well (not 2500 fish well, but well). When I was a kid there were probably ten miles. The 2013 Strategy focuses on extending occupied habitat, whatever carrying capacity individual watersheds may support.

      • I need to correct my summary. The 2014 decision that it was not warranted for listing at all (not just a lower priority). That was a change from 2008 where it was warranted for listing but precluded by higher priorities.

        Toner brings up some biological points and questions that I hope are addressed by the 2014 listing determination:

        He also mentions the 2013 Conservation Strategy, which was considered by the FWS, and may have been another factor in changing its determination:

        “In our PECE analysis, we found that the conservation efforts in the Rio Grande Cutthroat Trout Conservation Agreement and Strategy have a high level of certainty of
        implementation and effectiveness because of the demonstrated ability of the participants in carrying out an effective conservation program for this subspecies. Therefore, we considered these efforts as part of the basis for our listing determination for the Rio Grande cutthroat trout under the Act.”

        A good track record is a good thing, but not necessarily sufficient. The Forest Service is a signatory to the Conservation Assessment and Strategy, but my question is whether this “strategy” has been incorporated into the forest plans. The FWS should not be able to assign a “high level of certainty” to actions that are not based on forest plans.

        • Here’s a link the court opinion:

          The court does note that “the Conservation Agreement project has demonstrated several additional successful implementations since 2008.”

          On the “population” question, it’s not clear that the “numbers” were changed. The court just says, “The 2014 Determination concluded that some 55 populations were in “best” or “good” condition based on, essentially, the same criteria” as the 2008 determination that 8 populations were “secure.” The FWS lost because the judge couldn’t tell what happened between 2008 and 2014.

          • Thanks, Jon. Great to be in the room with this group. I appreciate the fine-toothed approach. Inasmuch as the Strategy goes into desired conditions, which it kind of does, the forest plans kind of mirror it. We would like to see cutthroat special management areas, which we won’t likely get in the Carson or Santa Fe. Focusing on the riparian component (and headwater wetlands) is plan B.

            • What I have seen that I liked in aquatic species conservation strategies and recovery plans is a set of criteria for viability described in terms of number and distribution of “secure” populations (which generally means the risks have been minimized), which I think has been done for this species. I would fault a forest plan that did not directly reflect that in some way in its desired conditions, and also add objectives, standards and guidelines that are need to achieve that outcome. That would normally involve identifying which areas would provide those populations. It may not require labeling them as “management areas” the way the FS wants to use that term, but they should have the “same set of applicable plan components” for aquatic resources (see definition of “management area” in 36 CFR §219.19). In the northwest they are called something like “conservation watersheds” or “priority watersheds” and they get appropriate management direction (except in the Flathead revision example it’s cosmetic.)

          • I thought it was worth quoting the court: “The 2008 Determination explains that theService believed that a population was required to have at least 2,500 fish to be considered stable and healthy. See 73 Fed. Reg. at 27,904 (“there is relative certainty that populations below 2,500 are likely at risk and may not be contributing to long-term persistence of the subspecies”). The 2014 Determination’s classification of populations as “good” or “best” allowed a population to obtain that label with as few as 501 fish.” Reading between the lines, I think what happened between 2008 and 2014 was that the FWS decided that some populations that were not “secure” (“affected by one or more risk factors”) should count as “good” enough. What is unknown is whether they changed their minds because of a change in scientific understanding (perhaps as suggested by Toner) or because they arbitrarily no longer liked the answer that science was giving them. I assume that a remand to “explain the Service’s reason” can’t go beyond what is already in the administrative record. (This court earlier noted “After-the-fact rationalization by counsel in briefs or argument will not cure noncompliance by the agency,” and I think that should be true for the agency as well.)

            • Here are some ideas that I don’t think are mutually exclusive, though you might disagree. 1) If we can beat back invasive trout and strategically install some barriers, we are in a good position to establish stable and reproducing populations that could sustain themselves far into the future. 2) I’d be willing to bet that many (including me) RGCT fanatics feel the fish will always be “endangered” until it occupies significant mileage in some larger rivers like the Pecos, Chama, Conejos, and even the Rio. Since I know almost nothing about the actual mechanisms of the ESA, my question to you, Jon, is how would listing positively impact this situation?

              • You put “endangered” in quotes, which is appropriate. ESA has a lower bar in this case, where the species would apparently (from the Conservation Strategy) not be considered threatened or endangered even though it is not found in the larger rivers. If the species were listed, there should be a recovery plan, but I’m assuming it would resemble the Conservation Strategy, which doesn’t appear to address this. (From the CS: “it is not known if Rio Grande cutthroat trout historically had a migratory form when there was greater connectivity among watersheds…”)

                The most obvious benefits from ESA come from prohibiting actions, and the threats to this species are mostly not that kind. (Even existing roads, which are arguably a discretionary action, don’t seem to be an issue there.) That said, the benefit of listing is not directly one of the five threat-based listing criteria

                • Jon, thanks for tracking this! Apparently the plaintiffs must feel that there is a benefit to listing or they wouldn’t have the lawsuit. I guess we’ll find out if they win, which sounds like will be based- not on a discussion of what recovered sufficiently would look like-, but rather how complete the documentation is for the change in thinking.
                  For me, this is why sometimes courtrooms don’t seem to be the place to get the best result for conservation.

                  • I tend to view things through a public lands lens, but the §9 of ESA prohibits incidental take (harm) of listed species by anyone without a permit. A permit requires a habitat conservation plan, approved by the listing agency, which can add some leverage for making things happen. For example, one of the threats is existing water diversions, and an HCP might lead to changing or removing them. This result of listing may be more effective than a voluntary approach prior to listing.

                    • I assume incidental take includes fishing? And could an HCP actually compel something like a water diversion?

                    • (Since I can’t seem to reply to Toner below – a column-width limit?)
                      “Compel” is probably not the right term. HCPs go through a NEPA/ESA process that provides leverage to “negotiate” the terms, especially for “mitigation” measures. I know Idaho has a permit from NMFS that allows it to license steelhead fishing. There are penalties for individuals who kill listed species. (But this is getting beyond my experience/comfort zone.)

                    • Just a couple more after-thoughts. The incidental take prohibitions apply to all endangered species by law, but only to threatened species where included in a listing regulation. Re. diversions – it is fairly common for HCPs to “change” them by requiring screening to prevent entrainment of fish.

  3. Jon, thanks for posting these.

    (1) With regard to the grazing RNA part of the case, the plaintiffs say “The conservation and scientific importance of the closure of RNAs to grazing was essentially undisputed during the public process. ”
    And yet a simple search showed that this does not seem to be true.
    Also, the fact that the D governor was apparently OK with the changes. It seems pretty dubious to me that keeping cattle out of RNA’s in Oregon will yield necessary scientific information that’s more important than the zillions of studies already done on sage grouse in various places.

    Of course, it’s not part of the legal process to check claims made by plaintiffs or others for accuracy..

    (2) I guess I hadn’t realized that the focal area change to the 2015 sage grouse amendment had been litigated.
    “On March 31, 2017, the United States District Court for the District of Nevada held that the BLM violated NEPA by failing to prepare a supplemental EIS for the designation of Sagebrush Focal Areas (SFA) in the Nevada and Northeastern California Greater Sage-Grouse RMP Amendment in Nevada. The court directed the BLM to prepare a supplemental EIS to address SFAs in Nevada. In order to comply with the court’s order and to address issues raised by various interested parties, the BLM intends to consider the possibility of amending some, all, or none of the BLM land use plans that were amended or revised in 2014 and 2015 regarding Greater Sage-Grouse conservation in the states of California, Colorado, Idaho, Nevada, Oregon, Wyoming, North Dakota, South Dakota, Utah, and Montana (“2015 Sage-Grouse Plans”).” So it turns out that the 2019 changes were the result of a lawsuit. Remembering that the focal areas seemed to be a change by some politicals in DC as told in the story here.

    (3) CE for road maintenance up to 200 feet. It sounds like the plaintiffs may think it is OK to cut down trees for road safety, but just not to sell them- “salvage logging” is somehow worse than “pile and burning”? So the FS would come back with an EA or EIS, and all this is to what ultimate end? This sounds like the kind of thing that gets frustrating for the folks involved in documenting the decision. Also the fact that this would not be considered to be lawsuit-worthy in many parts of the country. I’d love to sit down with these folks and say, “the FS can analyze til the cows come home, what do you really want to get out of this? A change to the project? If so, what? This project seems like it would have been great for publicly documented mediation efforts.

  4. (1) It IS “part of the legal process to check claims made by plaintiffs or others for accuracy.” The government will file an answer that may dispute some of the facts. Resolution of factual disagreements is normally based on what’s in the administrative record (but otherwise that is a purpose of a trial).

    (2) The 2019 changes went well beyond what was required by the original lawsuit for focal areas. The purpose and need is “to incorporate new information to improve the clarity, efficiency, and implementation of the 2015 Greater Sage-Grouse Plan Amendments, including better alignment with BLM and state plans, in order to benefit greater sage-grouse conservation at the landscape scale.” Most of the changes appear to be “a change by some politicals in DC.”

    (3) From the complaint: “Logging in the Ranch Fire area has the potential to adversely affect habitat for the Northern spotted owl, federally-listed as threatened under the Endangered Species Act, as well as various Forest Service Sensitive Species.” A closer look than a CE would determine the significance of these effects and potentially mitigate them through alternatives. Plaintiffs say that they would support removal of “imminently hazardous trees along essential public travel corridors to avert public safety concerns,” but suggest that much of the project area includes closed roads. Also, “The Forest Service has acknowledged that cutting hazard trees and leaving them on site to conserve soils and avoid erosion or other disturbances has fewer impacts than hazard tree removal.” Preparing an EA/EIS with more public involvement would be closer to “publicly documented mediation efforts” than a CE.


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