Litigation update – end of April

I haven’t seen a Forest Service summary for awhile, but here’s some things from my list that are becoming old news:

COURT DECISIONS

In Dobbs v. U. S. Forest Service, the Tenth Circuit Court of Appeals upheld a decision by the Forest Service to deny a request for a special use permit to build a gravel access road through the Upper Kiamichi River Wilderness in the Ouachita National Forest in Oklahoma.  The court accepted the Forest Service’s determination that a foot trail would provide “adequate access” under the requirements of the Wilderness Act.

But with or without a road or cabin, Dobbs can use his property to the same extent that most of the other inholders in the area use their own inholdings. And if Dobbs eventually decides to build a cabin, the agency concluded that he can do so with pack animals and helicopter to transport materials. Given that this is a “technical . . . matter[] within the [Forest Service’s] area of expertise,” we owe their decision “especially strong” deference.

This trend, it noted, was consistent with practices nationwide because a review of National Forests found that “motorized vehicles were only allowed on roads that existed prior to the area’s wilderness designation.” Id. That same national review found “no cases of new road construction . . . except in the rare instance where a new road was authorized by wilderness legislation.” Id.

In NRDC v. McCarthy, the Utah federal district court held that an environmental review under the NEPA was not required before the BLM lifted a temporary closure order for the Factory Butte area in southern Utah.  The purpose of the closure was to protect threatened and endangered cacti species that had been or were at risk of being adversely impacted by OHV use.

The Tenth Circuit Court of Appeals has recognized that the BLM’s implementation of “such [temporary] closures are nondiscretionary,” meaning that the action is exempt from the NEPA’s environmental review requirements. The plain language of (43 CFR) § 8341.2(a) supports a conclusion that lifting of a temporary closure order is also a nondiscretionary action of the BLM which is exempt from the NEPA.

There were concurrent changes being made in the area’s Resource Management Plan, and the court addressed the question of why this particular situation didn’t have to be addressed as part of that process.

“[The] exemption of [temporary] OHV travel restrictions from the [RMP] process reflects the realities of public land management and allows the BLM to timely comply with its statutory mandate to `take any action necessary to prevent unnecessary or undue degradation of the lands.'” And the exemption of lifting temporary OHV travel restrictions from the RMP process enables the BLM to comply with its statutory directive to “manage the public lands . . . in accordance with the [RMP].”

(Note:  That quote in the last sentence should not be read as allowing site-specific travel planning decisions to remove OHV travel restrictions without complying with NEPA.  At most, it should be limited to cases like this one where a temporary closure is being lifted, and Forest Service regulatory authorities would be different.)

SETTLEMENT

The Tahoe National Forest has agreed to limit e-bikes to trails open to motorized vehicles in response to the lawsuit filed by the Backcountry Horsemen and others in a case filed in October and discussed here.

NEW CASES

A coalition of wildlife advocacy groups filed a lawsuit charging the U.S. Forest Service with continuing to grant elk feeding permits on the Bridger-Teton National Forest without adequate environmental analysis, a move ordered by the U.S. District Court of Wyoming in 2018.

As promised in the NOI described here, two environmental groups filed a federal lawsuit to stop a proposed underground natural gas pipeline from Idaho to Wyoming in the Caribou-Targhee National Forest, saying it would harm protected grizzly bears and other wildlife and would create a road through six roadless areas.  Here is the plaintiffs’ perspective.

The Wilderness Society has gone to court to obtain a draft EA related to this possible mine on the Superior National Forest (as we discussed here) through the Freedom of Information Act.

“While federal decision-making is supposed to be based on “substantial evidence,” there is little question that political calculations occasionally play a role as well. In this case, however, environmental critics of Twin Metals contend that the decision was not just partially political, but entirely so, and they believe it was directly at odds with the evidence developed as part of the two-year study.”

A complaint was filed in the federal court in January against USDA Secretary Sonny Perdue and the U.S. Forest Service alleging gender discrimination and harassment and retaliation against a woman who worked for the Green Mountain National Forest and claims a colleague harassed her.

 

3 thoughts on “Litigation update – end of April”

  1. Jon, thanks for this excellent round-up. I also appreciate your adding the discrimination case.

    I was involved in a pipeline case (Bull Mountain Pipeline) and, as I remember, the judge in that case determined that a linear construction zone for putting in a pipeline is not a road, at least in removing an injunction against proceeding. Somewhere along the line I think there may have been a settlement with $ to Colorado wildlife folks? I tried to look it up online but there are so many court cases with companies fighting with each other and anti-trust cases, I couldn’t locat the case history.

    Anyway, that pipeline got built. That’s one of the reasons the Colorado Roadless Rule restricts them. It will be interesting to see how this case, with different facts, and different judges, but some of the same issues, turns out.

    I think it’s also interesting in the AP story that Mike Garrity is quoted as saying ““There are exactly zero benefits to public lands or wildlife from this project,” said Mike Garrity, executive director of the Alliance for the Wild Rockies.” But that could be said of many projects I would think, from trails to permits for cell phone towers, to wind farms to….. Seems like an extraordinarily high bar.
    In fact, if we expanded that bar to National Parks, we could argue that there are zero benefits to public lands or wildlife from allowing people into them.

    Reply
    • https://scholar.google.com/scholar_case?case=4613646808618286035&q=bull+mountain+pipeline&hl=en&as_sdt=3,27

      “As we have noted, the Roadless Rule defines the term “road” as “[a] motor vehicle travelway over 50 inches wide, unless designated and managed as a trail.” “In particular, defendants effectively interpreted the term “travelway” as excluding “construction zones,” such as the 100-foot right-of-way necessary in this case for installation of the Bull Mountain Pipeline. Defendants’ interpretation is entitled to deference.”

      This case was in Colorado, but under the national roadless rule at the time. The new case would interpret the Idaho roadless rule language.

      Reply

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