NFS Litigation Weekly November 6, 2020

The Forest Service summaries are here:  Litigation Weekly November 6 2020 FINAL

The Forest Service email indicated “no updates for November 13.”


Environmental Protection Information Center v. Carlson (9th Cir.).  On October 27, 2020, the 9th Circuit Court of appeals denied the Forest Service’s petition for panel rehearing and denied the intervenor’s (Sierra Pacific Industries) petition for en banc rehearing, concerning the improper use of the road maintenance categorical exclusion for Ranch Fire Tree Project on the Mendocino National Forest.

Bitterroot Ridge Runners Club v. Forest Service (9th Cir.).  On October 27, 2020, the 9th Circuit Court of Appeals upheld the Bitterroot National Forest’s 2005 Travel Management Plan’s closures to motorized and mechanized use.

High Country Conservation Advocates v. United States Forest Service (10th Cir.).  On October 29, 2020, the 10th Circuit Court of Appeals granted the plaintiffs’ Emergency Motion for Injunction Pending Appeal  concerning the West Elk Mine and the Colorado Roadless Rule’s  North Fork Coal Mining Area exception on the Grand Mesa, Uncompahgre, and Gunnison National Forests. The 10th Circuit’s order prohibits West Elk Mine’s use of new roads in the roadless area constructed in June 2020.  This article updates this complicated story.


Alliance for the Wild Rockies, v. Marten (D. Mont.).  On October 23, 2020, Alliance for the Wild Rockies filed a complaint in the District Court of Montana against the Forest Service and the U.S. Fish and Wildlife Service, concerning the Environmental Assessment, and Decision Notice for the Soldier-Butler logging project on the Lolo National Forest

Flathead-Lolo-Bitterroot Task Force v. U.S. Fish and Wildlife Service (D. Mont.).  On October 26, 2020, Flathead-Lolo-Bitterroot Task Force did the same.

This article on the lawsuit focuses on the designation of the area by the forest plan to be managed for connectivity between grizzly bear populations.

EarthJustice has filed a Notice of Intent to Sue the Secretary of Energy, Bonneville Power Administration, U.S. Corps of Engineers, U.S. Department of Interior, U.S. Fish and Wildlife Service,Bureau of Reclamation, Secretary of Commerce, and NOAA regarding the effects on listed salmon of their coordinated operation and maintenance of federal dams, reservoirs, and related facilities, power marketing and other actions in the Columbia River basin as reflected in their Joint Record of Decision for Columbia River System Operations dated September 28, 2020.  That was discussed further here.



On November 2, the U. S. Supreme Court held its hearing in Fish and Wildlife Service v. Sierra Club regarding an attempt to obtain draft biological opinions from the Fish and Wildlife Service for EPA regulations.  Its holding on how “Exemption 5,” which allows withholding predecisional and deliberative records, could affect how all federal agencies administer the Freedom of Information Act.

On October 31, the Federal District Court for Colorado denied a government motion to alter its judgment against the government in its efforts to delist the species where the Fish and Wildlife Service failed to explain why it changed it methodology for assessing the species.  The court held, “Because the Court is limited to assessing the explanation publicly provided by the FWS in its decision, not explanations proffered for the first time in litigation, the fact that the FWS has now tendered such an explanation now insufficient.”

The 4th Circuit Court of Appeals has granted another stay, this time holding up permits related to stream crossings that could result in effects on listed aquatic species.  Here is some interesting background on the role of the Forest Service in this controversial decision:

The Forest Service “was not in the driver’s seat” when it came to making a final decision, Peter Gaulke wrote in an email to colleagues. FERC was.

“It is fair to say there were pains of adjustment as we tried to merge our USFS way of business with the FERC way of business,” Gaulke wrote in a Nov. 28, 2017, review of the process.

“This was not easy and still has a level of discomfort for the Forest and the Regional Office,” the email stated.

Gaulke’s email, provided to The Roanoke Times in response to a Freedom of Information Act request, is “shocking and eye-opening,” said Rupert Cutler of Roanoke, who oversaw the Forest Service as assistant secretary of agriculture from 1977 to 1980.

“It proves that the Forest Service felt emasculated and victimized by the FERC-dominated MVP decision-making process,” Cutler said.

A part-time Colorado resident who documents his disrespect for public lands on social media was banned from entering millions of acres of U.S. Forest Service lands because he posted a picture on Instagram of himself defecating in Maroon Lake.

3 thoughts on “NFS Litigation Weekly November 6, 2020”

  1. Wow, I don’t know how you can be “shocked” that agencies disagree (I’d be shocked if all the professionals involved in all the agencies were in agreement).

    Kudos to Peter for getting his point across clearly and professionally.

    Let’s look at Cutler’s “It proves that the Forest Service felt emasculated and victimized by the FERC-dominated MVP decision-making process,” Cutler said.

    I’ll give an 87 year old a pass on using the term “emasculated.” But would he be equally concerned about say, EPA overruling the FS? If FWS disagrees with the FS, do you suppose the FS feels “emasculated and victimized?”

    I’ve felt like my voice didn’t carry the day, but I wouldn’t feel emasculated (obviously) and my only “victimization” would be that I was not the ultimate decisionmaker. If not making the final decision makes the rest of us “victims”, oh well.

  2. I think on paper the Forest Service gets to make decisions about use of National Forest System lands, and having that overridden is going to evoke a lot of turf-defense mechanisms. I’m less familiar with FERC, but I would imagine it should operate a lot like BLM leasing decisions on national forests where the Forest Service has a lot to say about what happens. In particular, forest plans govern, and that’s what the main issue was for this pipeline – it’s not consistent with the forest plans.

    There’s laws behind the Fish and Wildlife Service and EPA that they can wield and that the Forest Service is good at blaming. There may be some pipeline laws that change the agency relationships the same way (rather than politics), but if that were the case, that should have been Gaulke’s answer.

    (Maybe Cutler meant “emasculate” in the biblical sense.)


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