NFS Litigation Weekly November 1 & 6, 2019

Forest Service summaries:  2019_11_1 and 6_Litigation Weekly_Final


The district court denied the Rosemont Copper Company’s motion for reconsideration of its decision to enjoin a proposed copper mine on the Coronado National Forest.  (D. Ariz.)

The district court granted a joint stipulation of both parties to dismiss the case for the Pier Fire Roadside Hazard Tree Mitigation Project on the Sequoia National Forest.  (E.D. Cal.)  (This was another case involving the road maintenance CE and salvage logging – see also EPIC v. Carlson.)

The 9th Circuit Court issued an order affirming in part and remanding in part the appeal of the district court’s 2018 order dissolving the permanent injunction against the Miller West Fisher Project on the Kootenai National Forest. The case was remanded to the district court for the limited purpose of reconsidering whether the Miller Project complied with the ESA in the Cabinet Face grizzly bear area as a result of the recent ruling on the Pilgrim Project.)  (9th Cir.)


The district court denied the Forest Service’s motion to dismiss this case involving the Rock Creek Mine on the Kootenai National Forest.  (D. Mont.)


The plaintiffs request a Declaratory Judgment of their ownership of property adjoining the White River National Forest.  (D. Colo.)  (These are the same parties who filed a suit in the Court of Claims, discussed here.)

The plaintiffs filed a complaint concerning the allowed use of Class 1 e-bikes on non-motorized trails on the Tahoe National Forest.  (E.D. Cal.)  (More in this article.)


The Notice concerns ESA consultation on the Mission Project on the Okanogan-Wenatchee National Forest with regard to salmon, steelhead, bull trout and Canada lynx.  (A lawsuit has already been filed addressing other issues, summarized here.)



The Supreme Court of New Hampshire has affirmed a state commission’s determination to reject this proposal, which would have cut through the White Mountain National Forest.  (There is no indication on the Forest Service website that the agency ever engaged on this.)

The Center for Biological Diversity sued the BLM protect the world’s only population of Tiehm’s buckwheat (Eriogonum tiehmii) from harm related to mineral exploration and a proposed open-pit mine for lithium and boron (fyi – not “rare earth” minerals).  They have also petitioned the U. S. Fish and Wildlife Service to list the species under ESA.  CBD asserts that “the proposed mine’s project area includes the entire area where Tiehm’s buckwheat is known to grow,” and that, “the BLM has designated the wildflower as a special status species, intended to promote its conservation and reduce its chances of being listed as threatened or endangered.”

CBD and other conservation groups notified the U.S. Fish and Wildlife Service of their intent to sue the agency for failing to finalize Endangered Species Act protection for Humboldt martens in northern California and southern Oregon.  They were proposed for protection in October 2018 and should have received final protection by October 2019.

In May 2019, after 12 years of protection, the BLM opened up the desert around Factory Butte to ORVs, and they are being sued for failing to follow any NEPA process.

  • Crazy Mountains

The judge in the Friends of the Crazy Mountains case, discussed here,  refused to dismiss it.  Meanwhile the Custer-Gallatin National Forest has proposed a land exchange to address problems associated with the checkerboard ownership.

4 thoughts on “NFS Litigation Weekly November 1 & 6, 2019”

  1. Jon, thanks for finding the related news articles.. not sure I’ve ever seen a “joint stipulation of both parties to dismiss the case”.. what does that mean? Does it have to do with who pays the costs? Is there some kind of agreement to do something outside of Legal World?

  2. It’s a voluntary dismissal (it has to be jointly agreed if it has gone beyond some point in the process, as in this case). The applicable federal rule of procedure doesn’t tie it to costs (in this case the court ordered each to pay their own). If there was some other agreement that led to this it’s not under the court’s jurisdiction.

    There’s a paragraph in the Forest Service summary linked above that says this is the result of proceedings in a prior similar case before this court, which deferred to the Forest Service. While the summary seems to suggest the 9th Circuit decision on that case was a factor in this dismissal, the case was considered moot at that point because the project had been implemented and so the 9th Circuit did not address the merits. The EPIC case mentioned above as currently pending on the same CE is in a different district court (and all of these cases may be part of larger strategies on both sides).

  3. A little bit of science related to the e-bike lawsuit and effects on elk:
    “In Oregon, radio telemetry studies showed that elk generally keep a 350-meter distance from either side of a trail used by hikers, a 550-meter buffer around a trail used by bicyclists, and a 1350-meter buffer on either side of a trail used by off-road-vehicles. The more energy elk use fleeing from humans, the less time they have to put on fat reserves and the less energy they have to survive winter and avoid predators”


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