NFS Litigation Weekly March 27, 2020

The Forest Service summaries are here:  Litigation Weekly March 27_2020_For Email

This week there are no documents included with the summaries.  Where I’ve got something I’ve added a link.


The district court held that the Forest Service and the Bureau of Land Management violated NEPA in conjunction with the authorization of oil and gas leases and fracking on the Wayne National Forest.  (The CBD announcement link above includes a link to the opinion.  For an alternative view that uses this as an example of a need for NEPA reform, see this.)

The district court denied plaintiff’s motion for reconsideration of the court’s decision to lift the injunction against the Miller West Fisher Project on the Kootenai National Forest because the project has been halted while the access management direction in the forest plan is being reconsidered, as discussed here in conjunction with the Pilgrim II Project.

The district court dismissed this case concerning the Rocky Mountain Regional Forester’s authorization permitting the use of chainsaws to clear trails in designated wilderness on the San Juan and Rio Grande National Forests because the Forest Service formally withdrew the authorization.  (We previously discussed this issue here and here.)

The circuit court upheld the use of a HFRA categorical exclusion for the Smith Shields Forest Health Project on the Custer-Gallatin National Forest and the “Clean-up Amendment” to the Gallatin Forest Plan as it related to identification of old growth forest and elk hiding cover.

The district court found violations of NEPA, NFMA and ANILCA for the Prince of Wales Landscape Level Analysis Project and the Twin Mountain Timber Sale on the Tongass National Forest as discussed here.  (Earlier discussion of the invalidated “condition-based” management is found here.)

  • WildEarth Guardians v. Weber (D. Mont.)

The district court denied a motion to dismiss the claims against the Flathead revised forest plan related to areas designated as suitable for snowmobile use.

  • Thiessen v. Irwin (D. N.M.)

The district court dismissed this case because the plaintiffs incorrectly served the complaint against the Forest Service for cancelling a grazing permit.

  • Wilderness Watch v. Perdue (9th Cir.)

The circuit court affirmed the decision that there were NEPA and Wilderness Act violations from allowing helicopter operations to collect wolf data on the Salmon-Challis National Forest, but remanded to the district court to modify the injunction regarding use of the data.  (This was posted earlier here and the district court decision was discussed here.)

  • Native Ecosystem Council v. Marten (D. Mont.)

The district court held that the Custer-Gallatin National Forest violated the Endangered Species Act by failing to complete a biological assessment for the wolverine and violated the National Forest Management Act because its calculation of elk hiding cover violated the forest plan for North-Hebgen Multiple Resource Project.


  • Devil’s Garden Preservation Group v. U.S. Forest Service (E.D. Cal.)

The district court denied the plaintiffs’ motion to compel the Forest Service to provide documents through discovery on this case concerning the gathering of wild horses on the Modoc National Forest.


The complaint (linked to above) alleges that Idaho Panhandle National Forest and U.  S. Customs and Border Protection violated the forest plan and NEPA when approving the construction and maintenance of a new road and removing seasonal restrictions on five other roads near the Canadian border.  (More in this article.)


The Center for Biological Diversity claims the Forest Service violated The Endangered Species Act by not following requirements in the U.S. Fish and Wildlife Service’s biological opinions for 20 grazing allotments in the Coconino, Prescott, and Tonto national forest, and failing to reinitiate consultation on many species affected in riparian areas.  (This article includes pictures from the plaintiff’s monitoring.)

  • Custer-Gallatin bridge and trail

Paul and Cathy Donohoe of Nye Montana claim the Forest Service violated the Endangered Species Act regarding the effects on grizzly bears of construction of a bridge over the West Fork of the Stillwater River and the creation of a connector trail between the West Fork of the Stillwater Trailhead and the Castle Creek Trailhead Project.


  • Voyageur Outward Bound School v. United States (D. D.C.)

To resolve several consolidated cases involving the proposed Twin Metals Mine on the Superior National Forest, the district court upheld BLM’s reinstatement of 2004 leases.  (This proposal has been discussed here and here. According to this article, which summarizes the complicated history, an appeal is planned.)

The circuit court reversed a decision by the U. S. Fish and Wildlife Service to designate critical habitat for the endangered jaguar in southwestern New Mexico and southeastern Arizona.  (Another summary is here.)


The US Army Corps of Engineers, Bonneville Power Administration, and the Bureau of Reclamation produced a draft plan for hydrosystems operations in the Columbia River basin.  Once again it proposes to leave the Snake River dams in place.  Consultation will be required with the National Marine Fisheries Service on several listed salmon runs.  Courts have thrown out five similar plans since 2001 that were approved by NMFS.  I was involved in at least one of these because the Forest Service provides much of the spawning habitat, and has a responsibility to help mitigate the effects of these dams as long as they are in place.  (Here’s a second perspective.)


3 thoughts on “NFS Litigation Weekly March 27, 2020”

  1. Here’s more on NEC v. Marten on the Custer-Gallatin North Hebgen project:
    This case also involved the same forest plan amendment as that addressed in NEC v. Erickson above:
    “The parties agree that Plaintiffs’ first claim-that the agencies violated the ESA and APA by
    failing to consult on lynx and lynx critical habitat for Amendment 51 to the Forest Plan-is moot
    because the agencies have now completed a BA and biological opinion for Amendment 51.”

  2. Here’s a different story about dams:

    “Now, plans to demolish four hydroelectric dams on the Klamath’s lower reaches — the largest such demolition project in U.S. history — have placed those competing interests in stark relief. Tribes, farmers, homeowners and conservationists all have a stake in the dams’ fate.

    The project, estimated at nearly $450 million, would reshape the Klamath River and empty giant reservoirs, and could revive plummeting salmon populations by reopening habitat that has been blocked for more than a century.

    Backers of the Klamath Dam removal say the Federal Energy Regulatory Commission could vote this spring on whether to transfer the dams’ hydroelectric licenses from the current operator, PacifiCorp, to a nonprofit formed to oversee the demolition.”

    What’s different? “The demolition plan is good business for PacifiCorp, which holds the dams’ hydroelectric licenses. They’re expired, and renewing them would require more than $400 million in federally mandated modifications.”

    No mention of the Forest Service, but from the Klamath National Forest website, “Many of the tributary watersheds on the Klamath National Forest are designated as “Key” watersheds because they are in good to excellent condition, provide high quality water, and are critical for the protection and recovery of salmon and steelhead trout populations.” And they do their own “fish passage barrier removal.” You’d like to think they would be supporting this larger effort to help restore these national forest resources.

  3. I remember being down at the mouth of the Klamath. First I saw the seals, then the sports fishermen, the the tribes with their nets. It seemed like a pretty tough run for the salmon. If they remove the dams I hope it helps. On the Coquille river we have done a lot of restoration work and continue to, but there are fewer fish every year.


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