NFS Litigation Weekly April 17, 2020

Forest Service summaries:  Litigation Weekly April 17_2020_email


In Native Ecosystem Council v. Martin, the 9th Circuit Court of Appeals affirmed the district court and upheld the Johnny Crow wildlife habitat improvement project on the Helena-Lewis and Clark National Forest based on a wildlife habitat improvement categorical exclusion.

In another Native Ecosystem Council v. Martin, the 9th Circuit Court of Appeals affirmed the district court and upheld the Moose Creek Vegetation Project on the Helena-Lewis and Clark National Forest based on a HFRA categorical exclusion.

In BARK v. U. S. Forest Service, the District Court of Oregon held that Crystal Clear Restoration Project on the Mt. Hood National Forest required an EIS.  (This was also included last week.)


In Mountain Pursuit v. U.S. Forest Service, plaintiffs filed an amended complaint (after their previous complaint was dismissed without prejudice) regarding ongoing motorized and mechanized use in wilderness study areas on the Bridger-Teton and Caribou-Targhee National Forests and its effects on ESA-listed species.  (D. Wyo.)

In Western Watershed Project v. Bernhardt, a second plaintiff is challenging the Upper Green River Area Rangeland Project on the Bridger-Teton National Forest regarding impacts on the grizzly bear and the Kendall Warm Springs dace.  The first case, filed by the Center for Biological Diversity, was summarized here.  (D. D.C.)


WildEarth Guardians and the Western Watersheds Project claim the Forest Service and Fish and Wildlife Service are violating ESA by authorizing livestock grazing on three allotments on the Colville National Forest without proper consultation on several listed and candidate species.

The Center for Biodiversity intends to sue the Forest Service and Fish and Wildlife Service concerning the impacts of region-wide restoration projects on the Mexican spotted owl in New Mexico and Arizona.  (The link actually goes to the Colville notice.)


(New case, BLM)  Advocates for the West and other plaintiffs say the Bureau of Land Management’s 2019 plan for the conservation area sanctioned destructive levels of livestock grazing on lands that were supposed to be protected.  (An NOI under ESA is pending.)  (D. Ariz.)

(Administrative objection)  Yellowstone to Uintas Connection and the Alliance for the Wild Rockies filed a formal Objection and a call for a full Environmental Impact Statement with the Manti La Sal National Forest, objecting to the Cottonwood Range Improvements Project, for the grazing allotment managed by The Nature Conservancy’s Dugout Ranch.

(Court decision involving FWS)  The Arizona federal district court has overturned the U.S. Fish and Wildlife Service’s approval of a permit for the proposed Rosemont copper mine in the Coronado National Forest because FWS improperly estimated the potential groundwater drawdown from the mine’s operations and how that might impact several endangered species in the Santa Rita Mountains.  An earlier court decision also reversed the decision based on terrestrial species.

(FWS action required by injunction) The U.S. Fish and Wildlife Service announced a 60-day public comment period to help determine the scope of its analysis for rewriting the rule for Mexican gray wolf management in Arizona and New Mexico.

(NOI, FWS)  Four conservation groups intend to sue the Fish and Wildlife Service over its decision in November 2019 that the California spotted owl did not warrant listing under the Endangered Species Act.

(NOI, FWS)  Three conservation groups intend to sue the Fish and Wildlife Service over its decision in December 2019 that the red tree vole, found in northwest Oregon, did not warrant listing under the Endangered Species Act.

(New case against the state forestry agency) The Wendell State Forest Alliance has filed a lawsuit in county court against the state Department of Conservation and Recreation’s selective harvesting of an 80-acre old oak stand.  The main issue is that older trees that would be cut sequester more carbon, but the DCR is putting a higher priority on the forest’s long-term health.

5 thoughts on “NFS Litigation Weekly April 17, 2020”

  1. Interesting that the wildlife CE held up:

    “Finally, NEC’s NEPA claims regarding Appellees’ decision to adopt the
    Project under a categorical exclusion and alleged tiering to a 1993 Landscape
    Analysis are also meritless. Appellees are entitled to deference with respect to
    their decision to proceed by way of categorical exclusion. Alaska Ctr. for the
    Env’t, 189 F.3d at 859. The record confirms that Appellees considered the
    appropriate factors when determining whether to proceed by way of categorical
    exclusion, including whether the cumulative effects and effects on the inventoried
    roadless areas presented extraordinary circumstances precluding application of the
    exclusion. Finally, there is no evidence in the record that Appellees unlawfully
    tiered their analysis.”

  2. A couple of probably important factors:
    1) It is located in the Elkhorn Wildlife Management Unit, a uniquely federally designated area. “The Helena National Forest Plan emphasizes maintenance and enhancement of big game habitat for elk, moose, mountain goats, and mule deer in the Elkhorn Mountains. Non-gamewildlife species are also emphasized.”
    2) “The proposed treatments include a combination of hand slashing conifer trees, (primarily less than 12 inch diameter-at-breast-height) and/or prescribed fire (depending on weather conditions)… No commercial product would be removed, access would remain unchanged and no road construction, reconstruction or maintenance would occur.”

  3. With all due respect to plaintiffs, how could anyone know what the “real” motives are behind the project? Certainly they disagree with the project, but there are either 1. Evidence from overhead discussions FOIAs or discorvery, or 2) an argument that a practice on a particular piece of ground is good for cows but not for wildlife.

    I guess someone could show up at one of these meetings and interview someone and get their side of the story.

    This is the first I’ve heard that prescribed burning should not be done because it can spread invasive plants.

  4. Nice isn’t it. If what you are proposing to do for wildlife is to increase forage, you don’t really have to say anything about how livestock would also benefit (or even benefit more). I think their issue should be with the grazing permit in the wildlife management area (but I also think it was basically grandparented in).

    I know cheatgrass often takes over in burned areas (but fire can also be part of treating it).


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