Public lands litigation news, early July, 2020

While we (maybe) await further news of what the Forest Service thinks is news, here’s some of what I’ve seen.  Some others we’ve looked at already:

Bi-state sage-grouse

Mexican spotted owl

North Cascades grizzly bears  (see comments)


In a case that has been discussed here a number of times (such as here) The Montana federal district court found that the Forest Service had acted in “bad faith” on the Ten Mile-South Helena project on the Helena-Lewis and Clark National Forest, finding that it would require reconstruction of old roads in an area protected by the Roadless Area Conservation Rule.   The judge refused to defer to the agency:

“The matter is not one that involves specialized or expert knowledge,” Christensen wrote. “The problem is basic geometry. A vehicle with a wheelbase 9 to 11 feet wide requires a road similarly wide. The Lazyman area does not contain a network of preexisting roads 9 to 11 feet wide. Therefore, bringing this equipment into the area will require the Forest Service to widen the roads.”

The judge also held that the project would require additional NEPA analysis after changing it to allow mechanized logging equipment, and the Forest would need to consult with U.S. Fish and Wildlife Service on the impacts to grizzly bears of proposed trails that would allow mountain bikes.  Plaintiffs’ takes on the opinion are here and here.

The first week of July, the Friends of the Clearwater and the Alliance for the Wild Rockies filed a lawsuit against the Lolo Insect and Disease Project on the Nez Perce-Clearwater National Forest, which calls for logging across 3,380 acres in 30 harvest units.  The Plaintiffs’ perspective, focusing on the threatened Snake River Basin steelhead, is here (the National Marine Fisheries Service is a co-defendant).

Remember that pipeline that the Supreme Court just said could be built on national forest lands and under the Appalachian Trail (in Cowpasture River Preservation Association v. U. S. Forest Service)?  On July 5, developers of the Atlantic Coast natural gas pipeline announced they are canceling the project, blaming legal setbacks and economic uncertainty.


On June 29, the Center for Biological Diversity and Healthy Gulf filed a notice of intent to sue the U. S. Fish and Wildlife Service for failing to develop recovery plans for the endangered reticulated and frosted flatwoods salamanders.  (The lack of a recovery plan for the latter was an issue during the Francis Marion National Forest’s forest plan revision, and arguably influenced its ability to contribute to recovery.)

On July 1, WildEarth Guardians and Wilderness Workshop sued the U. S. Fish and Wildlife Service over its failure to take any action in response to a 2016 court order striking down the agency’s exclusion of Canada lynx habitat in the species’ entire southern Rocky Mountain range from designation as critical habitat.

The U.S. Supreme Court ruled on July 9 in McGirt v. Oklahoma that much of Oklahoma’s tribal lands had never been rescinded, and that the state had no criminal jurisdiction over those lands. However, some Indian law experts believe the ruling may lead to more civil and regulatory oversight by tribal governments on land within historic reservation boundaries.  This article cites an example of Mt. Graham, now part of the Coronado National Forest.

On July 14, conservation and landowner groups filed a new lawsuit challenging the Trump administration’s approval of the Keystone XL tar-sands pipeline to be constructed on federal BLM lands in Montana. The complaint asserts that the reviews by the BLM and the Fish and Wildlife Service under the National Environmental Policy Act and Endangered Species Act are riddled with the same errors and omissions as earlier versions deemed insufficient by a federal court in 2018.

4 thoughts on “Public lands litigation news, early July, 2020”

  1. I’m sorry, Jon, I know you’ve explained this but lynx were reintroduced fairly recently to southern Colorado so how does the idea of “critical habitat” fit. Lynx weren’t there. So they were reintroduced. So now that habitat is critical, but if it were critical in a plain English sense, wouldn’t the fact that the species hasn’t been there mean that the species would have been extinct? I think it’s the difference between the plain English and the ESA term of art that has me confused.

    If they hadn’t been reintroduced, would it still be critical? What determines criticality? Like I said, I know you’ve explained this. Maybe you could start a separate post just on this that you could refer me (and probably others) back to in the future.

  2. Here’s a short blurb from FWS on critical habitat.,require%20special%20management%20and%20protection.

    The key language from the statute is “essential for conservation of the species,” which translates into “needed for recovery.” The fact that a species is not where it used to be is often a reason it is considered “in danger of extinction,” while it may be barely hanging on in other places. Unoccupied habitat may be designated as “critical,” and I would expect it to be fairly common for listed species to need to expand their existing ranges in order to recover.

    • I guess my question is the definition of recovery. Because lynx seems to be around therefore recovered. Many species are not where they used to be.. bison for example. Does that mean Wyoming Nebraska, Kansas and so on are all critical habitat?

      • Recovery is when the statutory listing factors no longer lead to a determination of threatened or endangered. Court cases have been clear that ESA doesn’t require species to be everywhere they used to be – just in enough places to be secure as a species (this is an issue regarding delisting gray wolves completely). All based on the best scientific and commercial data available. Critical habitat is a subset of the range needed for the species (and is not necessarily required for every species). (Bison are not a good example, since they are not listed, though some want them to be.)


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