NFS Litigation Weekly February 28, 2020

The Forest Service summaries are here:  Litigation Weekly February 28_2020_Final


A case filed by a ranch and Idaho state officials was voluntarily dismissed because the BLM and Forest Service subsequently submitted the 2015 sage grouse plan amendment decisions to Congress in accordance with the Congressional Review Act.

(Blogger’s note:  The Forest Service summary refers to the plan amendments once as the “Sage Grouse Rules.”  These court document do not use this term, and I don’t believe a court has ever determined that forest plans are “rules” requiring submission to Congress under the CRA.)


The plaintiffs are challenging the Darby Lumber Lands Phase II Project on the Bitterroot National Forest, which involves “restoration” of lands formerly owned and logged by the Darby Lumber Co., and changing forest plan management direction for elk.  (D. Mont.)  (More of the context is provided here.)

The plaintiffs bring various claims under ESA and NFMA related to the effects of management of the Apache-Sitgreaves National Forest riparian areas on the endangered New Mexico meadow jumping mouse and its critical habitat.  (D. Ariz.)  (More of the context, including a Forest Service response, is included here.)



  • More on sage grouse

(Update)  In response to a court ruling against the 2019 amendments to the 2015 amendments to sage grouse management in BLM land management plans in seven states, the BLM is publishing six draft supplemental environmental impact statements.  They are not proposing to change the 2019 decision.  (They are currently operating under the 2015 amendments in accordance with the court ruling.)  An article from Colorado is here.

  • Waters of the US (WOTUS)

(Notice of Intent)  More than a dozen conservation groups notified the Trump administration that it will challenge its compliance with the Endangered Species Act when it changed a federal rule aimed at protecting rivers and streams across the United States.  EPA’s new rule, announced January 23 and expected to go into effect in mid-March, would exclude ephemeral waters, such as washes, that do not flow year-round, plus “millions of acres of rivers, streams, lakes, wetlands, impoundments, and other waterbodies,” the groups wrote.  (This article includes a link to the notice through the CBD press release.)  We previously discussed this here.

(Court opinion)  The District of Columbia Circuit Court of Appeals has upheld a decision by the BLM to remove wild horses from the Caliente Complex in Nevada.  The court found that a challenge to the land management plan decision to not manage the area for horse was beyond the 6-year statute of limitations for litigating agency decisions.  It also found that the project “gathering” decision complied with the Wild Free-Roaming Horses and Burros Act and NEPA.

(Fallout) “Although Benson does not explain the decision to cancel the objection period in his written notice, and in a statement to the Beacon merely said it had been placed on hold and will be reinstated at a later date, Mike Garrity, executive director of the Alliance for the Wild Rockies, explained that a 2019 federal court decision surrounding his group’s lawsuit over a separate but adjacent timber project found that road closures were ineffective to protect the declining population of grizzly bears.”  That court decision on the Pilgrim project was provided in this Litigation Weekly.

(Update)   After the Supreme Court hearing, both sides seem to agree that the Court would allow the pipeline to be built on national forest land under the Appalachian Trail.  That’s assuming the other flaws in the process can be corrected (as discussed here).

A man in Colorado was cited for using a snowmobile in a designated wilderness on fragile bare ground.  The prosecution was partly the result of social media.

(New case)  The Federal Energy Regulatory Commission was sued by the Center for Biological Diversity for approving a permit for building reservoirs and associated infrastructure to generate electricity from pumped water.  It would affect lands on the Gila and Apache-Sitgreaves National Forests, and the San Francisco River is being considered for recommended protection under the Wild and Scenic Rivers Act in the Gila forest plan revision.

5 thoughts on “NFS Litigation Weekly February 28, 2020”

  1. Jon, you’re probably aware of this, but GAO has determined that forest plans are “rules” for the purpose of the CRA. The title of that letter is “Tongass National Forest Land and Resource Management Plan Amendment,” B-238859 (Oct. 23, 2017). This letter is an update to a 1997 GAO report that comes to the same conclusion regarding the original forest plan (as opposed to an amendment of the plan). I don’t believe this issue has been litigated, but at least GAO thinks forest plans (and amendments) are “rules.”

    • Thanks. Maybe this case shows why the Congressional Review Act’s application to forest plans hasn’t been litigated, though here the agreement may be because the political parties in both branches are the same.

    • Interesting that you would think of large scale hydro/dam-building projects, such as this 200 foot high dam proposal on the free-flowing San Francisco River (one of the last, best cradles of biodiversity in the Southwest), as “green energy,” Sharon.

      For Immediate Release, February 21, 2020

      Feds Urged to Deny Permit for 200-foot Dam on San Francisco River on Arizona-New Mexico Border

      PHOENIX— Conservation groups and business leaders urged a federal commission today to deny a preliminary permit for a 200-foot-tall dam planned for the San Francisco River at the Arizona-New Mexico border. The San Francisco River Pumped Storage Project, proposed within protected areas of two national forests, would damage or destroy dozens of miles of critical habitat for five endangered species.

      The project, which requires approval from the Federal Energy Regulatory Commission, would pump water from a new reservoir on the San Francisco River to a second one atop the adjacent canyon rim, generating electricity and revenue from downhill return flows when electricity prices are higher.

      “The free-flowing San Francisco River is one of the last, best cradles of biodiversity in the Southwest. This disastrous project would be its end,” said Taylor McKinnon, a public lands campaigner at the Center for Biological Diversity. “We’ll fight like hell to ensure this boondoggle is never built.”

      The project includes two reservoirs, power lines, buildings, roads, generators and other infrastructure. These would be located within protected roadless areas, the lower San Francisco River wilderness study area and portions of the river eligible for the National Wild and Scenic Rivers system. Management plans governing the Apache-Sitgreaves and Gila national forests call for those areas to remain in relatively pristine condition.

      “Many of our rivers in the Southwest have been dammed, diverted and dried up, so rivers such as the San Francisco that have flowing water, especially year-round flows, are precious and critical to sustaining all kinds of life, including threatened and endangered species. That’s why we can’t support this pumped hydro storage project,” said Sandy Bahr, director of Sierra Club’s Grand Canyon Chapter. “This project presents a false choice between protecting our rivers and storing energy. We can do both, but not with this project.”

      “To the aquatic, riparian and forest wildlife, indigenous communities, and outdoor recreationists that rely on protections we have already collectively given to the lower San Francisco River, its endangered and threatened species, and its surrounding recognized wilderness and roadless areas, dam construction and operation is intensively destructive,” said Kelly Burke, executive director of Tucson-based Wild Arizona. “A dam is a dam, and two dams are worse, regardless of the flashy technological context. This pumped storage proposal lacks any basis in reality, hydrologic, geomorphic, economic, environmental, societal or otherwise. It should be denied at the outset.”

      Tailwaters downstream from the San Francisco River dam would damage or destroy 44 river miles of proposed critical habitat for a threatened species, the narrow-headed garter snake, and 28 river miles of designated critical habitat for endangered loach minnows and spikedace. Recovery plans for both fish say that natural river flows are critical to their survival and competitive advantage against non-native fish. Loach minnow have been extirpated in tailwaters on the Gila and Salt rivers.

      Separately, the proposed reservoir would eliminate about 11 miles of critical habitat for loach minnow, spikedace and narrow-headed garter snakes. It would flood important habitat for the southwestern willow flycatcher and Mexican garter snake. Recovery plans for the endangered fish state that neither species can survive in lake habitats.

      “The San Francisco River has some of the most intact gallery forest and riparian habitat in the West. It also has several imperiled fish species, and provides vital habitat for such wide-ranging animals as puma, Mexican wolf, javelina and coatimundi,” said John Davis, executive director of The Rewilding Institute. “The San Francisco River and the larger Gila River watershed should be kept as whole and free-flowing as possible. No new dams or diversions should be allowed. The Gila, San Francisco, Blue, Black and Mimbres rivers should be protected under the Wild and Scenic Rivers Act.”

      “The San Francisco River is a well-known destination across the Southwest for recreationalists of all backgrounds,” said Logan Glasenapp, staff attorney with New Mexico Wilderness Alliance. “We are opposed to any effort to erect unneeded, under-studied, and unproven structures across a river known for its wild, scenic, and recreational qualities.”

      “As an outdoor gear company we support conservation of the limited resources for outstanding outdoor recreational opportunities such as those found in the beautiful San Francisco River area,” said Danny Giovale, president of Kahtoola in Flagstaff. “I personally spent a nearly a week there exploring this incredible area last spring. A project like this would be inappropriate and shortsighted.”

      “This proposal is the latest threat to the San Francisco River and its riparian ecosystem,” said Allyson Siwik, executive director of the Gila Conservation Coalition. “In addition to the diversion project contemplated under the Arizona Water Settlements Act, this project would further impact the natural flow of the San Francisco critical to the survival of several threatened and endangered species.”

      The San Francisco River Pump Storage Project is proposed by Pumped Hydro Storage LLC. The Phoenix-based company has proposed two similar projects on the Little Colorado River that would damage or destroy that river’s entire critical habitat for endangered humpback chub.

      The groups and businesses that filed today’s objection with the commission are the Center for Biological Diversity, New Mexico Wilderness Alliance, Wild Arizona, The Rewilding Institute, Kahtoola, Gila Conservation Coalition and Sierra Club.

      • Matthew, I’ve been following energy for a while and it looks like storage for intermittent sources (wind, solar) is important if we want to get off back up sources such as nuclear or natural gas. Water storage is one, and batteries (which require mining rare earth minerals so are not particularly environmentally friendly) are another one.


Leave a Comment

Discover more from The Smokey Wire : National Forest News and Views

Subscribe now to keep reading and get access to the full archive.

Continue reading