NFS Litigation Weekly June 12, 2020

The Forest Service summary may be found here:  Litigation Weekly June 12_2020_Email


On June 3, 2020, the District Court of Montana issued a favorable decision in Alliance for the Wild Rockies v. Marten on the consolidated challenges against two Healthy Forest Restoration Act categorical exclusion projects—Willow Creek Project on the Helena-Lewis and Clark National Forest and the North Bridgers Project on the Custer-Gallatin National Forest.


BLOGGER’S BONUS (since there’s some space to fill this week)

(Court decision, this article includes a link to the opinion.)  On May 27, 2020,  in Montana Wildlife Federation v. Bernhardt, the District Court of Montana held that a 2018 Instructional Memorandum (IM) implementing the 2015 sage-grouse amendments to BLM resource management plans (RMPs), as well as oil and gas leases, in Montana and Wyoming were inconsistent with the RMP requirements to prioritize leases to protect sage grouse, and therefore violated the Federal Land Policy and Management Act.

The RMPs at issue included the following language:

“Priority will be given to leasing and development of fluid minerals outside of [priority and general habitat]. When analyzing leasing and authorizing development of fluid mineral resources in PHMA and GHMA, and subject to applicable stipulations for the conservation of [sagegrouse], priority will be given to development in nonhabitat areas first and then in the least suitable habitat for [sage-grouse].”

The Record of Decision for the amendments and a 2016 IM emphasized the importance of encouraging new development in areas that would not conflict with sage-grouse. The 2018 IM dispensed with that priority, except when there was a leasing backlog.  The court held determined that the 2018 IM violated the FLPMA requirement for agency actions to conform to land use plans because it conflicted with the plain language of the RMPs. The court then held, “The lease sales either explicitly, or in effect, follow the same rationale as the 2018 IM and thus also violate the FLPMA,” and it vacated the lease decisions:

“The Court sees no reason to leave the 2018 IM in place. BLM’s errors undercut the very reason that the 2015 Plans created a priority requirement in the first place and prevent BLM from fulfilling that requirement’s goals. As for the lease sales, the errors here occurred at the beginning of the oil and gas lease sale process, infecting everything that followed.”


2 thoughts on “NFS Litigation Weekly June 12, 2020”

  1. There seemed to be a great deal of kitchen-sinkery in the plaintiffs’ case in Alliance for the Wild Rockies v. Marten. Interesting read.

  2. It’s great too see the Forest Service prevail in correctly using the tools Congress gave the agency, in the Montana case. This is yet another example of the frivolous waste of time these ideologues indulge in. I wonder what kind of attorney fees and other compensation the government is entitled to, and as a taxpayer I hope they are substantial.


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