The Forest Service summaries are here: Litigation Weekly August 21_28 2020 Email Final
Related court documents are included as a link below.
COURT DECISIONS
Alliance for the Wild Rockies v. USFS (D. Idaho)- On August 11, 2020, the district court ruled against the Forest Service on the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest. The court held that the Forest failed to explain how changing the desired conditions (without amending the forest plan) would achieve the existing desired condition and therefore it violated the forest plan. (Plaintiffs version of the story is here. We had a long discussion of the Ninth Circuit’s decision on the original project here.)
- (No linked court documents)
United States of America v. Robertson (D. Montana) – On August 7, 2020, the district court of Montana found defendant liable for trespass and damages associated with the White Pine patented mining claim on the Beaverhead-Deer Lodge National Forest.
Klamath-Siskiyou Wildlands Center v. Grantham (E.D. Cal.) — On August 12, 2020, the district court issued a Stipulation for Dismissal without Prejudice regarding the Crawford Vegetation Project on the Klamath National Forest because the Forest Service withdrew the decision. (We discussed the issues in this case here.)
Los Padres Forest Watch v. U.S. Forest Service (C.D. Cal.) – On August 20, 2020, the district court upheld the Tecuya Ridge Shaded Fuelbreak Project on the Los Padres National Forest, which used the categorical exclusion for “timber stand and/or wildlife habitat improvement activities.” (We had an even longer discussion of this case here.)
NEW CASES
Center for Biological Diversity v. Leverete (D. D.C.) — On August 5, 2020 the plaintiffs filed a complaint against the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the Forest Service concerning the 4-year extension of 13 prospecting permits on the Superior National Forest to Twin Metals Minnesota LLC, for proposed sulfide-ore copper mine at the edge of the Boundary Waters Canoe Area Wilderness. (This is the latest of many lawsuits related to mining there, including this one (Campaign to Save the Boundary Waters) and this one (Wilderness Society. This article includes a map.)
Round v. USDA (D. Colo.)- On July 17, 2020, Plaintiff filed a complaint claiming property rights in grazing allotments and improvements on the Pike and San Isabel National Forest, Cimarron and Comanche National Grasslands.
State of Alaska, Department of Fish and Game v. Federal Subsistence Board (D. Alaska) — The Forest Service and BLM were included in this complaint filed on August 10, 2020 involving the operation and decisions of the Board regarding native and non-native hunting rights on federal lands.
Nez Perce Tribe v. Midas Gold Corp (D. Idaho) — On August 18, 2020 Midas Gold (defendant) in this case, filed a proposed Third Party motion against the Forest Service to join this case, or in the alternate, to consolidate this case with the action Midas Gold Idaho, Inc. v. United States, concerning the Stibnite Gold Project on the Payette and Boise National Forests and alleged violations of the Clean Water Act by the Forest Service.
OTHER CASES
- (No linked court documents, but the complaint is here.)
Citizens for a Healthy Community v. U. S. Bureau of Land Management (D. Colo.) – On August 19, 2020 the plaintiffs filed a complaint against the BLM, concerning the agency’s approval of a revised Resource Management Plan for BLM’s Uncompahgre Field Office (UFO) in southwestern Colorado, which opens 871,810 acres of BLM, other federal lands and private mineral rights to oil and gas leases. (Here is some local coverage.)
BLOGGER’S BONUS
(New case.) The Cottonwood Environmental Law Center has sued the Custer-Gallatin National Forest for failing to reconsider its 1987 forest plan direction based on new scientific information about the ineffectiveness of fuel treatments on wildfire prior to implementing these projects. (The forest plan is currently being revised.)
- Migratory Bird Treaty Act (this article includes a link to the opinion)
(Other agency court decision.) NRDC v. U. S. Department of the Interior – On August 11, 2020, a federal district court in New York ruled that the unintentional or incidental “take” of migratory birds is a crime under the Migratory Bird Treaty Act. The law is best known for its use in fining those responsible for large oil spills, with the money being used for restoration purposes, but it can come up in Forest Service litigation. The Forest Service has an MOU with the Fish and Wildlife Service obligating it to “address the conservation of migratory bird habitat and populations when developing, amending, or revising management plans for national forests and grasslands…”
Jon, didn’t we just talk about “not needing to update forest plans when conditions change?” how do you relate that discussion to the new Bozeman and North Bridger projects?
Hmm. latest science “showing that fuel treatments are not effective”.. that should be interesting, given all the other science and monitoring reports.
Yes, we did (bonus points for noticing that), and I think the court precedent would be a problem under NEPA, but since Cottonwood was the plaintiff/attorney that won on the same issue under ESA (reinitiating forest plan consultation), I assume they know what they are doing. Since the revised plan will likely be released during the lawsuit, and it should update the NEPA analysis based on the best available information, I’m guessing Cottonwood will be pursuing the fuel treatment arguments there, and this might be more of a delaying tactic for these two projects.
Re. case number 00005 above, the parties have settled this piece of the Boundary Waters mining litigation:
http://www.timberjay.com/stories/settlement-reached-in-prospecting-permit-lawsuit,17660
“Under today’s agreement, the BLM will conduct a scientific ecological review of the potential harms from extending prospecting permits in this area, within the context of the related mineral leases and Twin Metals’ mine proposal. After the required environmental analysis and endangered species consultation, the Forest Service will have the authority to not consent to the permit extensions and the BLM, as regulator of the mineral estate, will have the authority to cancel them.
The 13 prospecting permits would have allowed Twin Metals to drill holes, build roads and do other mining exploratory work throughout more than 15,000 acres of Superior National Forest. The permits would greatly expand the location where Twin Metals has proposed a copper mine and waste piles just upstream from the Boundary Waters’ protected public lands and waterways.”