NFS Litigation Weekly October 2, 2020

It’s been pretty quiet, so not very “weekly.  Here is the latest Forest Service summary:  Litigation Weekly October 2 2020_FINAL

NEW CASES

Center for Biological Diversity  v. U.S. Forest Service (D. Ariz.). On September 17, the plaintiffs filed a complaint based on recent monitoring by plaintiffs that alleges that livestock grazing on the Prescott, Coconino, and Tonto National Forests has impacted 14 threatened and endangered species dependent on aquatic and riparian habitat, and the Forest Service and Fish and Wildlife Service have failed to reinitiate and complete ESA Section 7 consultation to ensure ongoing livestock grazing does not jeopardize listed species or destroy or adversely modify critical habitat.  (This article provides a local perspective.)

 

BLOGGER’S BONUS

(Court decision in Swomley v. Schroyer.)  On September 3, the district court of Colorado rejected an attempt by 21 residents and landowners to halt the Upper Frying Pan logging project on the White River National Forest, holding that an EA for the project was sufficient.  (The article includes a link to the opinion.)

(Update.)  The Colorado Division of Reclamation, Mining and Safety, which had ordered Arch Resources to cease road-building and other surface-disturbing activity in the Sunset roadless area on the Grand Mesa, Uncompahgre, and Gunnison National Forest because it hadn’t shown it had maintained its legal right of entry, partly lifted that order after the Forest Service and BLM indicated Arch Coal is legally allowed to continue such work as it pertains to a road that environmental plaintiffs claim is illegal.  Plaintiffs are renewing their court efforts.  (The High Country Conservation Advocates Case was most recently discussed here.)

(New case.)  Three conservation groups filed a lawsuit against the Forest Service for allowing “excessive” cattle grazing on the Colville National Forest through their 2019 decision to adopt a revised forest plan.

(Court decision, BLM.)  The district court in Colorado upheld a 2009 decision by the BLM, also affecting the White River National Forest, to cancel undeveloped drilling leases in the Thompson Divide area.  (Ex-acting BLM Director Pendley’s Mountain States Legal Foundation represented the lessee.)

(Update, BLM case.)  After the district court issued a preliminary injunction on this project to reduce conifer encroachment into sagebrush habitat, the BLM has withdrawn that part of the decision for lands that had not yet been treated, mooting the case.

(New case, U. S. Fish and Wildlife Service.)  On August 18, three conservation groups sued the U. S. Fish and Wildlife Service for deciding to not list the California spotted owl as endangered in November, 2019.  According the complaint (linked in the article), “Since the early 1990s, the volume of commercial logging of mature trees on public land in the Sierra Nevada has declined, but “fuel reduction” in the form of mechanical thinning and salvage logging continue, both of which continue to degrade the owls’ habitat.”  The complaint also says:

“The Species Status Assessment also concluded the California spotted owl may be extirpated from the Lassen and El Dorado regions of the Sierra Nevada in the foreseeable future. See Species Status Assessment 95, fig. 22 (California Spotted Owl Regional Future Scenario 2 Condition). It further concluded that the Plumas, Tahoe, Stanislaus, Humboldt-Toiyabe, Inyo, Sierra, and Sequoia National Forest regions will deteriorate in condition to low or low-moderate condition, id., which means that they will “have low resiliency and may not be able to withstand stochastic events because of significant declines in occupancy, survival, fecundity, or habitat quality.” Id. at 69.”

(New case, BLM.)  On August 19, several conservation groups sued the BLM for its decision on the Uncompahgre Field Office Resource Management Plan for central and southern Colorado, released in April.  They alleged that expanded drilling would hasten climate change and affect endangered species, including the razorback sucker, greenback cutthroat trout and, Gunnison sage grouse.

(New case against a private timber owner.)  On September 15, the Center for Biological Diversity and a local conservation group sued the Gualala Redwood Timber Company in federal district court to protect a private redwood forest near Northern California’s Gualala River.  They allege that an incidental take permit from the regulatory agencies is needed for the threatened and endangered species that would be harmed:  Northern California steelhead, Central California Coast coho salmon, California red-legged frogs, and northern spotted owls.  (This CBD press release includes a link to the complaint.)

(New case and Notice of Intent to Sue CEQ.) On August 28, 2020, a coalition of 23 state attorneys general filed a lawsuit against the Administration’s Final Rule on NEPA procedures.  On September 22, plaintiffs notified the CEQ that they would add a claim that the Final Rule violated the Endangered Species Act by failing to consider the impact on endangered and threatened species or consult with the federal wildlife agencies.

6 thoughts on “NFS Litigation Weekly October 2, 2020”

  1. Thanks for doing such a nice job on this, Jon!

    Of all these, I wonder how a NEPA reg in and of itself can have an impact on ESA compliance. Conceivably, ESA compliance requires certain things. NEPA might well require different things. Isn’t the test of a reg how well it fits with its own statute?

    Reply
  2. 50 CFR §402.02 defines agency “action” for ESA to include “the promulgation of regulations,” so ESA §7 consultation is required. Regulations can be more or less substantively restrictive, and that has effects. For example, when the Forest Service tried to reduce the species viability protection in its planning regulations (2005/2008) the court faulted them for not considering the effects of the reduced protection (not sure whether that was a NEPA or ESA violation, or it might have been both).

    Even if there are no substantive effects (and I haven’t looked at the NEPA regs for that), an agency can fail to adopt regulations properly. This article mentioned an allegation that the agency did not provide adequate public involvement opportunities.

    Reply
    • I get that an agency could “not provide adequate public involvement opportunities.” That seems odd to me.. in the planning regulations. Changing the species viability provision could (perhaps) lead to reduced protection for non T&E species- I suppose- but I don’t know how anyone could meaningfully analyze such a set of “might-could”s (and somehow separate the impact of the change in reg from climate change, increased population visitation through time and so on).

      Reply
      • The NEPA test is “reasonably foreseeable” impacts. I think the bar is pretty low for effects that are hard to predict, but if an agency says nothing at all they are likely to lose. (Back to ESA, failure to consult amounts to saying nothing.)

        Reply
        • I don’t think so..I remember judges wanting an analysis of the impacts of additional coal when a) you don’t know who would buy it, b) you don’t know what they would do if they couldn’t buy it, c) you don’t know what the overall impacts of climate change are, and d) you don’t know what a minimal impact might be since you don’t know what the overall impacts are.

          None of this is “reasonably foreseeable” in my plain English view. I seem to remember an agency using the “wrong” air quality model.. so I think the bar may be generally set low, but pops up from time to time in an apparently random way.

          Reply
          • Probably appearing more “random” to the general public than to the legal experts, but (as this week is making painfully clear) there are differences among judges. (The choice of models is probably a “best available science” issue.)

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