NFS Litigation Weekly March 6, 2020

Forest Service summaries:  Litigation Weekly March 06_2020 Email


The 6th Circuit Court of Appeals issued an Order in favor of the Forest Service concerning amenities at the Marsh Branch Boat Launching Facility in the Daniel Boone National Forest.  This was an attempt by an individual to compel the Forest Service to repair a security light and provide picnic tables because they charged a fee under the Federal Lands Recreation Enhancement Act.


Neighbors of the Mogollon Rim filed a complaint against the Forest Service and U.S. Fish and Wildlife Service regarding the allotment management plan and grazing permit for the Bar X and Heber-Reno Sheep Driveway Allotments on the Tonto National Forest involving the effects of grazing on the Mexican Spotted Owl and narrow headed garter snake.   (D. Ariz.)

Plaintiffs filed a complaint against the Forest Service regarding the Fossil Ridge II Land Exchange on the Gunnison National Forest, which would allegedly eliminate access to private property.  (D. Colo.)


The District Court of Idaho has required notice and comment rulemaking for the BLM to change its public comment process for oil and gas lease sales in sage grouse habitat, and failure to do so resulted in the court cancelling $125 million in recent lease sales in Nevada, Utah and Wyoming.  (More in this article.)



(Update.)  Three  environmental groups are suing the BLM over its decision to allow development of a gas field that overlaps with the state of Wyoming’s only recognized sage grouse winter concentration area and a migration path that’s used by pronghorn.  (More in this article.)  We have discussed the “path of the pronghorn,” which includes the Bridger-Teton National Forest, here.

(Update.)  As a result of a lawsuit by the Center for Biological Diversity, the U. S. Fish and Wildlife Service has designated critical habitat for the black pinesnake in the longleaf pine forests of Mississippi and Alabama, including the DeSoto National Forest, which comprises the majority of the habitat.

(New case.)  The Center for Biological Diversity has filed a new lawsuit against the Fish and Wildlife Service for failing to act on petitions to list 241 species as it had specified in a schedule it adopted in 2016.  The CBD press releases includes a link to a map that shows which species are found in each state (if you click on the state).  Many are found on national forests.  (More in this article.)

(New case.)  A Montana ranch as sued an individual for trespassing when he crossed from one piece of national forest land to another at a corner (with an 80-foot gap) where that land abuts private land.  The individual has claimed a prescriptive easement.  The Gallatin National Forest states that it has no position.

(New case.)  Surviving members of a family have sued the Forest Service for negligence, wrongful death, and negligent infliction of emotional distress because relatives were killed in a Tonto National Forest campground by a flash flood, and the Forest Service failed to provide a warning.


6 thoughts on “NFS Litigation Weekly March 6, 2020”

  1. Bailey case: interesting to see how a law I was in on the making of (FLREA) holds up in court. … but really, so much ado about a light not working? Must be a lot more to this story.

    • Teri, since you worked on FLREA, would you consider writing a guest post on..
      (1) what folks were thinking when they passed the legislation
      (2) how it has worked on in practice, in your view
      (3) changes to the statute, regulation or agency behavior that could make it work better.

      I’d be very interested in hearing your thoughts.

      • Right now I’m up to my ears with the Centennial of the 19th Amendment and League of Women Voters and heading into elections.

        Not sure how much I’d remember, except we were definitely trying to keep fee authority in the FS, which was being hammered for charging what looked like entrance fees. We went back to LWCFA for criteria to rein it in. Some forests—I’m looking at you, SoCal—refused to dial back their “fees everywhere” approach voluntarily and leadership wouldn’t take a stand. Chief Boswell said privately that he didn’t like rec fees and wish we wouldn’t charge them. Rep Greg Walden of OR (chair of House Natural Resources Committee) stepped up and created principles that he could live with and that made it all possible. I give Lynn Scarlett of DOI and Mark Rey a lot of credit for not throwing FS and USFWS under the bus when things got difficult. It was maddening that forests raking in fees for dispersed areas jeopardized the whole program and ultimately made administration much more difficult.

        I’ve really enjoyed visiting places like Sedona AZ, where the fees are a no brainer and have vastly improved the situation and experience.

        Guess I remembered a lot there after all.

        • Thanks, Teri. It does seem to be a FS cultural theme that it’s hard to rein in forests that color outside the lines to the detriment of all. I remember the same issue with “CE abuse.” Leadership is sometimes unwilling to enforce consistency. I’ve watched RF’s disagree with Forest Supes who culturally believed their boss (the RF) had no right to tell them what to do on resource issues (“undermining your employees”). I wonder whether others have observed this.


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