NFS Litigation Weekly October 16, 2020

The Forest Service summaries are here:  Litigation Weekly October 16 2020 Email

Links for individual cases are to related documents.


North Dakota v. United States of America (D. N.D.).   The court agreed with McKenzie County that several roads were established as county roads by 20 years of public use under R.S. 2477 and N.D.C.C. § 24-07-01 prior to the federal government reacquiring the underlying lands in the later 1930s.


Three conservation groups have asserted that the Rim Fire Project on the Stanislaus National Forest requires reinitiation of consultation under ESA to address impacts on the Pacific fisher, which was federally listed on May 15, 2020.

WildEarth Guardians and Conservation Northwest are threatening to sue the Forest Service and Fish and Wildlife Service for failure to formally consult on the modification to the vehicle class use designations and the motor vehicle use maps for the Colville National Forest because it authorizes increased vehicle traffic, which would affect listed species.



  • Snake River dams

In late September, federal agencies operating dams on the Columbia River issued a decision on operations that did not include removing the dams.  They had made similar decisions in 2003, 2005, 2009, 2011 and 2016, and they were sued and lost each time.  While another lawsuit is possible, there are signs that governors of Northwest states, particularly Democrats in Oregon and Washington, are looking for a negotiated solution.  In the broader arena of renewable energy, there is a new agreement among some conservationists and hydropower producers to work together on planning for the role of hydropower in mitigating climate change.  Leaving more dams in place in salmon habitat affects national forest management because it puts more of a burden on addressing other threats to salmon, such as roads and logging in spawning habitat.  In fact, part of the broader agreement is to “Advance Effective River Restoration through Improved Off-Site Mitigation Strategies.”

PacifiCorp, one of the Northwest’s biggest private utilities, faces a class action lawsuit for allegedly failing to maintain power lines that caused a significant portion of the catastrophic Labor Day wildfires in Oregon.  An attorney for plaintiffs said the weather and fire conditions across the state amounted to the perfect storm, but PacifiCorp had plenty of time to safely shut off power to prevent sparking more wildfires.  Presumably the federal government will take a similar approach for damages and costs to national forests.

Mark Allen James, 23, of Twin Falls, Idaho, repeatedly harvested timber from the Deadline Ridge Summer Home area of the Sawtooth National Forest without a lawfully obtained permit to do so. James would sell the illegally obtained timber online. He confessed to harvesting twelve cords of firewood and selling it for $140 per cord.  James was sentenced in U.S. District Court to three years of probation for theft of government property, and was required to pay $1,680 in restitution.

Public Employees for Environmental Responsibility has filed a Freedom of Information Act lawsuit against the Forest Service for failing to release its audit of Tongass National Forest timber sales, which was requested last year.

  • Wildlife Services

WildEarth Guardians has sued USDA Wildlife Services for failing to prepare an EIS for its activities in New Mexico, which include almost one million acres of national forest lands, and for relying on outdated EAs.  The Forest Service has an MOU with Wildlife Services that discusses NEPA compliance for wildlife damage, invasive species, and wildlife disease management activities.

10 thoughts on “NFS Litigation Weekly October 16, 2020”

  1. Nice to see a county actually winning an RS 2477 case. I wonder if this North Dakota case will have any affect on the big RS 2477 Bellwether case in Utah that is winding toward a decision around the end of the year.

    • I would be surprised if it would. These cases are very fact-specific for each road, and evidence supporting facts from long ago can be really variable. Roads for national forests reserved in the early 1900s in Utah also have a different history and may be harder to prove prior public use of than roads in these national grasslands reacquired in 1930.

  2. I wish the BLM and the FS would make it easier to buy firewood and other forest products you can harvest with a pickup truck and chainsaw. It would create more employment opportunities in the rural communities and might make for more honest thieves.

  3. But wait, I thought climate change was the worst environmental thing, and dams are the main source of renewable energy in Washington and Oregon as per EIA statistics. If that electric power were instead generated by new wind and solar, wouldn’t that have worse environmental impacts, not only from the land area used but the mining and energy associated with the buildout? Plus hydropower is a reason that energy is less costly there.. wouldn’t that have social justice impacts?

    This could be a problem with setting policy via litigation- lots of ways to say no, but not clear that plaintiffs need to come up with a “yes.” And no evaluation of alternatives and their impacts.

    • I have no knowledge of plaintiffs’ strategy but part of it might be to keep the pressure on to negotiate a solution. Operation of the dams has often been under court ordered restrictions while these lawsuits have been pending.

    • That’s why I have such a hard time taking climate alarmists seriously. If environmentalists were really as worried about climate change as they claim to be, they would support dramatically expanding both nuclear and hydroelectric power, which are the best ways we have of providing consistent, large amounts of carbon-free electricity. Instead they oppose them. At the very least since they claim to support wind and solar, they should not have any objections to putting wind and solar farms on public lands. But nope! That impairs wilderness qualities, or threatens some endangered species or other, or whatever.

      Everything that could potentially provide some positive benefit to humanity, they oppose. At what point do they admit this isn’t actually about solving climate change, but just anti-humanism?

      • Actually I think the Sierra Club supports wind siting on federal land that is not Wilderness or’s a fairly nuanced document about it.
        “The Sierra Club opposes development in protected areas such as national and state parks, national monuments, wilderness areas, wildlife refuges, designated roadless areas, critical habitat and designated habitat recovery areas for wildlife, and areas of cultural significance, sacred lands, and other areas that have special scenic, natural or environmental value.” I haven’t reviewed other organizations’ positions.
        It’s interesting given this conversation “what is a protected area?” that they mention designated roadless areas as being protected areas.

        I think they haven’t come out against the Chokecherry-Sierra Madre project on BLM and private in Wyoming. It’s apparently in sage grouse habitat but not critical or a “designated habitat recovery area.” But again, I’d think everyplace is special to someone or something.

        Again, though, if there is perceived to be a need to increase “protected areas” and if wind siting can’t occur there, it seems to me that there might be a tension between meeting climate and protected area goals.

          • But given that, the need and siting is still controversial.
            “Regarding California’s 33% RPS, the state already has acheived 30% presently, according to Karen Douglas, chair of the California Energy Commission speaking in fron of the Inyo County Board of Supervisors on February 27. She admitted that the state had overshot their solar goals, and now had to wait to decide how to move forward. But she was not clear that this was due to the build-out of utilty-scale solar onto the grid, causing grid congestion. What is needed now is not more renewable energy in the desert, but more storage, as would be provided by rooftop solar in cities coupled with advanced batteries. We are not hearing the whole story. There is no need to open up the DRECP for more renewable energy.”
            I think there are local groups that usually don’t want industrial development be it wind, solar or gas. Then there are national groups who have different views, but generally like wind and solar but not gas. Sierra Club changed its mind about gas, apparently based on local groups. Before that they thought of it as a bridge fuel and better than coal.

            My point being that environmental groups have different views. Also there can be the idea that, say, windfarms are preferable, but not in a specific location.


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