The Forest Service summaries may be found here: Litigation Weekly June 26_July 3_2020_Final Email
COURT DECISIONS
High Country Conservation Advocates, et al. v. United States Forest Service. On June 15, 2020, the District Court of Colorado issued an order vacating the Colorado Roadless Rule’s North Fork Coal Mining Area exception on the Grand Mesa, Uncompahgre, and Gunnison National Forest, per the 10th Circuit Court of Appeals March 2, 2020, order. (Meanwhile, Arch Coal has built a road into the Sunset Roadless Area during the delay in the lower court’s order.)
Solenex LLC v. Bernhardt. On June 16, 2020, the District of Columbia Court of Appeals found the Bureau of Land Management’s cancellation of the Solenex oil and gas lease in the Badger-Two Medicine Area on the Helena-Lewis and Clark National Forest was not arbitrary and capricious. (Here is some background.)
Western Watershed Project, et al. v. Bernhardt. On June 19, 2020, the District Court for the District of Columbia issued a memorandum opinion order denying the plaintiff’s request for a preliminary injunction concerning the Upper Green River Area Rangeland Project on the Bridger-Teton National Forest, which plaintiffs allege unlawfully impacts the grizzly bear, and the Kendall Warm Springs Dace. (Discussed here.)
Southeast Alaska Council v. Forest Service. On June 24, 2020, the District Court for Alaska issued a remedy order against the Forest Service concerning the Prince of Wales Landscape Level Analysis Project on the Tongass National Forest which vacates the portions of the March 16, 2019, record of decision for the project that authorize vegetation management and road construction activities; and vacates the portion of the October 19, 2018, Final Environmental Impact States as applied to vegetation management and road construction activities.
The judge explicitly rejected the Forest Service argument that, if this can’t be the only NEPA process for this large landscape “condition-based” decision, “the project EIS’s shortcomings do not necessarily prevent it from serving as a programmatic EIS, to which future site specific analyses could tier, potentially without further amendment…” (The court’s original ruling was discussed here.)
NEW CASE
WildEarth Guardians v. U.S. Forest Service. On June 17, 2020, the plaintiffs filed a complaint in the District Court of Eastern Washington against the Colville National Forest, primarily concerning the state listed gray wolf. The plaintiffs claim that Forest Service abdicated its authority on livestock ranching activities to ranchers in both its recently revised forest plan and ongoing grazing authorizations, which has incited conflict with the gray wolf. The plaintiffs also claim violations of section 7 of the Endangered Species Act, concerning ranching activities on the several listed species. (We have previously discussed this case here.)
NOTICE OF INTENT
On June 22, 2020, Klamath Siskyou Wildlands Center, Klamath Forest Alliance, and EPIC sent a 60-day Notice of Intent to Sue pursuant to the Endangered Species Act for alleged failure to reinitiate consultation on the Crawford Vegetation Project on the Klamath National Forest regarding effects on northern spotted owls.
BLOGGER’S BONUS
Here are some updates related to past and pending litigation.
The lawsuit recently filed against the U. S. Fish and Wildlife Service for failing to complete the ESA listing process for wolverine has been settled, with the FWS agreeing to complete the process by the end of August. This process is in response to a court invalidating their prior decision to not list the species.
We have discussed extensively, including here. After President Trump shrank the Bears Ears and Grand Staircase-Escalante National Monuments several lawsuits were filed and consolidated. Here is a summary of the arguments presented in a seminar at that time. The plaintiffs filed an amended complaint in late 2019 and asked the court for summary judgment. The briefing was just completed for this case.
While cases continue in federal court (see here), the Campaign to Save the Boundary Waters announced it is filing a lawsuit under the Minnesota Environmental Rights Act asking a judge to order the Minnesota Department of Natural Resources “to initiate a public process to amend state non-ferrous mining rules” that would would effectively kill the copper-nickel mine that has been proposed in a watershed that includes the Boundary Waters Canoe Area Wilderness on the Superior National Forest. The article also mentions federal legislation that has been introduced to ban mining on national forest lands in the watershed.
After the Tenth Circuit Court of Appeals ruled that the Forest Service had not made a final decision on mountain goat management, and therefore there was no final agency action to challenge, plaintiffs have continued to monitor the effects of the non-native goats on a research natural area. They plan to provide the information to the Manti-La Sal National Forest plan revision process this summer as a way of forcing action on the issue.
ps – High Country decision on West Elk Mine and the Colorado Roadless Rule and subsequent road-building
https://www.gjsentinel.com/news/western_colorado/state-mine-may-have-bulldozed-lands-without-stormwater-permit/article_af9ab0fa-e880-11ea-ab48-6bfecc2c4602.html
A state agency has informed the West Elk Mine in the North Fork Valley that it may have violated the law by failing to get a stormwater permit when it built a road and well pads in a national forest roadless area this year… She said she wouldn’t be surprised if people reached the conclusion that “perhaps the reason the company didn’t seek these permits was because they were trying to stay under the radar as they went out there and bulldozed,” or failed to comply due to the haste to do that work.