Litigation update – early May, 2020

(Court decision)  In Alliance for the Wild Rockies v. Marten, the Montana federal district court has lifted the injunctions against the Bozeman Municipal Watershed Fuels Reduction Project and the East Boulder Fuel Reduction Project on the Custer-Gallatin National Forest because they have properly consulted on critical habitat for Canada lynx for both the forest plan and the projects, and no supplemental EIS was required.  This was discussed most recently here.

(Court decision)  In Conservation Congress v. U. S. Forest Service, the Ninth Circuit Court of Appeals has affirmed the district court and upheld the Bagley Hazard Tree Abatement Project on the Shasta-Trinity National Forest against ESA and NEPA claims related to northern spotted owls.  A report on the hearing is here.  (And here is some discussion on this blog from 2013.)

(Court decision)  In Pacific Rivers v. BLM, the Ninth Circuit Court of Appeals affirmed the district court and the BLM and upheld the 2016 amendments to its western Oregon resource management plans against ESA and NEPA claims related to listed fish species.  (They’re not calling it WOPR any more, but I think this was what happened after BLM lost in court on the first try, discussed here.)

(Settlement)  In response to a lawsuit, the Office of Surface Mining Reclamation and Enforcement agreed to consult with the U.S. Fish and Wildlife Service to review the impacts of coal mining across the country on endangered species.  While plaintiffs seem most interested in West Virginia, active coal mining occurs on national forests in Colorado, Utah, Wyoming and Kentucky.

(New lawsuit)  Monroe County (IN) and two environmental groups filed a lawsuit to stop the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, which they believe will pollute Lake Monroe, a major drinking water source for the area, and harm the endangered Indiana bat.

(New lawsuit)  Public Employees for Environmental Responsibility and the Western Watersheds Project have sued the Trump Administration for illegally filling the positions of the directors of the BLM and National Park Service with temporary, non-confirmed appointments.


In other Endangered Species Act news:

(Update)  A federal judge has agreed that 17 states may be harmed by Trump Administration changes in the Endangered Species Act regulations, so their lawsuit against these changes may proceed.  However, he found that was not the case for environmental and animal-rights groups and dismissed their complaints.

Following litigation, the U. S. Fish and Wildlife Service has proposed the southern Sierra Pacific fisher for listing as endangered, but denied a similar petition for the northern California/southern Oregon population, where “threats were mitigated by fuel reduction projects aimed at reducing wildfire severity and partnerships with timber companies to limit logging in Oregon.”

The U. S. Fish and Wildlife Service has proposed designation of critical habitat in Arizona and New Mexico riparian areas for the narrow-headed garter snake and the northern Mexican garter snake.  While it excluded private lands with conservation agreements and other public lands with adequate protective measures in place, a study had concluded that generally, the Forest Service does a poor job of enforcing existing restrictions on grazing leases.

The last two cases suggest that improved conservation measures for national forest lands might have made a difference and avoided these designations.

7 thoughts on “Litigation update – early May, 2020”

  1. Since the roadside hazard tree project is old, has the road been closed for 7 years, pending the result of litigation? Or, were the trees cut years ago, and the issue is moot? I do think that the litigants learned something about the current reality of filing lawsuits against the Forest Service. (It’s not as ‘easy’ as it used to be, eh?)

    • It’s apparently complicated. The district court denied an injunction in 2016, but the roads were closed to the public at least until then.

      “But the Bagley Project was not implemented after it was approved. The Forest Service
      initially attempted to find contractors who would bid for the right to harvest the salvage timber
      from the hazard trees. Despite several rounds of advertising, the Forest Service received no bids, and no timber felling or salvage logging occurred. In fact, it appears highly unlikely that salvage logging will ever occur. “Because the quality of fire-killed trees depreciates rapidly following a fire, it is no longer possible to obtain commercial value from any of the fire-killed hazard trees.”

      In the summer of 2016, the Forest Service, still concerned about the hazard trees and
      attendant road closures, decided to try again. The Forest Service solicited bids to pay a contractor to fell the hazard trees in place along 22 miles of a “priority loop” that receives more traffic than the other affected NFS roads. Most of the work under that contract was focused on 6.4 segmented miles of road that received high burn severity and consequently had lots of hazard trees… The trees will not be salvage logged; they will simply be felled away from the road and left in place.”

      I’m not sure if anybody won this one.

  2. The FS has taken some action to avoid this problem of non merchantability of hazard trees. The FS has started to cut the hazard trees during the fire, and putting them in decks that are then sold.
    As a past purchaser I see this as a waste of taxpayers dollars, but better than letting them go to waste. If they could put up salvage sales immediately after the fire the work would paid for by the purchaser and the value of the timber recovered. I have seen many sales go no bid because it has taken to long to sell them and the timber has deteriorated to far.
    Seems like litigation of hazard trees fire salvage has dropped off, hopefully.

  3. Jon, thanks again for rounding these up and telling us about them. I don’t quite understand the States and the ESA reg.. if they don’t think it’s helpful to their State, can’t they pass their own that has all the bells and whistles they would like? It might be better for learning, as we could see how different states approach it and how well it would work to conserve species. It just seems odd for states to say “we need more regulation from the Feds.” I wonder what their arguments are.

  4. From the complaint: “The State Plaintiffs have a concrete interest in the Services’ lawful implementation of the ESA and its role in preventing harm to and promoting recovery of imperiled wildlife, resources that are owned and held in trust by many of the State Plaintiffs for the benefit of their citizens. Imperiled plants and animals protected by the ESA are found in all of the State Plaintiffs, along with critical habitat, federal lands, and non-federal facilities and activities requiring federal permits and licenses subject to the ESA’s section 7 consultation requirements.”

    Many states do have their own endangered species acts. However, they have no authority over federal actions, including actions on federal lands (national forests are mentioned several times in the complaint), nor over actions taken in other states that affect wildlife in their state. That requires federal law, and they are affected by changes in the level of federal protection.

    States also have a legitimate interest in having the feds do the heavy lifting: “The Final Rules weaken important backstop protections for listed species and critical habitat under the ESA and increases the burden on States to fill the regulatory and enforcement void left by the Services’ failure to adequately protect the nation’s irreplaceable biological resources… With the Final Rules’ weakening of federal protections, the responsibility for, and burden of, protecting imperiled species and habitats within State borders would fall more heavily on State Plaintiffs… This would detract from State Plaintiffs’ efforts and resources to carry out their own programs and impose significantly increased costs and burdens on the State Plaintiffs.”

    • Thanks, Jon! I suppose there is an argument that anything a neighboring state does also affects wildlife in a state so if State A doesn’t like what State B does, they can appeal to the Feds to make everyone do it the same. It seems like that would take a certain hubris, though.

      Some have argued that States’ druthers shouldn’t matter when the State wants certain activities to occur on federal land. But maybe that’s the difference between “influence” and legal standing. So State A is for a project.. their opinion shouldn’t matter. But if State A is against a project, they can litigate and their opinion will (therefore) matter if they win.

      But ESA will still make the feds do “heavy lifting” whether by Reg A or Reg B, because the beef of the work is in the statute, and (my understanding is that) regs are supposed to interpret them.


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