NFS Litigation Weekly December 4, and December 23, 2020

The December 23 Forest Service summary is here:  Litigation Weekly December 11 18 23 2020 Email

Case materials are provided in the links below.

(There is no actual summary for December 4, but there was one case noted in the cover email.)

COURT DECISIONS

On December 1, 2020 the Eastern District Court of Washington issued a favorable decision to the Forest Service and the U.S. Fish and Wildlife Service, regarding the Mission Restoration Project and Forest Plan Amendment #59 on the Okanogan-Wenatchee National Forest.  The Project was consistent with the forest plan and did not violate NEPA (with an EA) or ESA (not likely to adversely affect grizzly bears).

On November 24, 2020 the District Court of Montana dismissed the case against the Gold Butterfly Project and a project-specific forest plan amendment as moot for lack of jurisdiction, since the Bitterroot National Forest withdrew the record of decision on August 28, 2020 to provide additional review and analysis.

On December 3, 2020, the District Court of Idaho issued another decision against the Forest Service on the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest, denying Defendants motion to alter or amend the court’s summary judgment in favor of plaintiffs, resulting in the total vacatur of the 2019 decision.  (The original court decision is provided here, with links to other discussions.)

NEW CASES

On November 30, 2020, WileEarth Guardians and Western Watersheds Project filed a complaint in the Eastern District Court of Washington against the Forest Service, challenging the authorization of domestic sheep grazing on seven allotments within the Okanogan-Wenatchee National Forest regarding continuing failure to reduce the risk of contact between domestic sheep and bighorn sheep, and alleging NFMA and NEPA violations.

On December 7, 2020, Center for Biological Diversity and Western Watersheds Project filed a complaint in the District Court of Colorado against the Department of Interior, U.S. Fish and Wildlife Service, Bureau of Land Management, National Park Service, and the Forest Service, regarding the Gunnison Basin Candidate Conservation Agreement’s Biological Opinion, for development, recreation, and livestock grazing authorizations in the Gunnison Basin, including the Grand Mesa, Uncompahgre and Gunnison National Forest.  More information can be found in this article.

On December 7, 2002 Conservation Northwest and WildEarth Guardians filed a complaint in the Eastern District Court of Washington against the Forest Service regarding the modification to the vehicle class use designations and the motor vehicle use maps, which opens 117 miles of roads in the Colville National Forest to vehicle uses.  They allege violations of ESA, NEPA and the Travel Management Rule.  This article provides more background, including on Conservation Northwest as an infrequent plaintiff.

OTHER CASES

  • Appalachian Voices v. U.S. Department of Interior ( 4th Cir.) (As described in the December 4 Litigation Summary email.) 

On November 18, 2020 the 4th U.S. Circuit Court of Appeals denied appellants motion for a temporary stay of activities on the Mountain Valley Pipeline where protected fish are located. However, this order does not lift a hold on permits issued by the U.S. Army Corps of Engineers on November 9, 2020, which prevents the Mountain Valley Pipeline from completing stream crossings.  (See next case.)

On December 1, 2020 the 4th U.S. Circuit Court of Appeals issued a stay on the use of a streamlined Nationwide Water Permit 12 (issued by the U.S. Corps of Engineers) for the Mountain Valley Pipeline in the Huntington, West Virginia on the Jefferson National Forest.

Blogger’s update:  The Forest Service has released its Final Environmental Impact Statement supporting eleven amendments to the forest plan and approving the permit to cross national forest lands.  Additional information may be found in this article.

 

BLOGGER’S BONUS

On September 14, Defenders of Wildlife filed a notice of intent to sue the Rio Grande National Forest (as well as the Fish and Wildlife Service) for violating the Endangered Species Act with its adoption of its revised forest plan.  They assert that, when it revised the plan, it, “abandoned key habitat protections that have been in place for more than a decade that significantly limited the logging allowed in important habitat for the threatened Canada lynx,” and that, “the new standards open up hundreds of thousands of acres of lynx habitat in the Rio Grande National Forest to largely unregulated logging, increasing the threat to the small and struggling Colorado lynx population.”

4 thoughts on “NFS Litigation Weekly December 4, and December 23, 2020”

  1. The Rio Grande/lynx one is fascinating… so you reintroduce lynx in the southern part of their range, assuming that climate change may be bad for them, and when they don’t do well.. the answer is to… stop logging.. And “largely unregulated” logging.. I don’t think that’s an accurate statement about any FS project.

    “Regardless of the precise numbers, this population is in trouble. It is completely isolated
    from all other lynx populations in the lower-48 and FWS has predicted that it is likely to be
    extirpated by the end of the century and potentially even by 2050. Lynx SSA at 227. Lynx in
    Colorado and across the West depend almost exclusively on habitat in national forests and other
    federal lands. Id. at 14, Table 2 (percentage of federal ownership in each geographic unit of the
    DPS). Given this dependence, logging on national forest lands poses one of the most significant
    immediate threats to the Colorado population and its habitat. Logging creates openings in the
    forest canopy that lynx avoid and reduces habitat that supports populations of snowshoe hares,
    the lynx’s primary prey.”

    Reply
    • “Largely” is in the eye of the beholder.

      This is the same issue that comes up for every species affected by climate change – since we can’t do much about that, we might as well just keep doing the other things we are doing that harm the species. That’s just not what ESA says. (And what ESA says includes introducing species where that is needed for recovery, even if the odds aren’t good.)

      Reply
      • But how does anyone decide if a reintroduction is “necessary for recovery”? And if you just need more critters, and the climate is changing, why not reintroduce them where they would be most likely to survive?

        Reply
        • FWS. They get to define what recovery is (numbers, distribution etc.), and are usually required to produce a recovery plan for how to get there (though implementing these plans is not mandatory). They must also usually designate critical habitat, which may include currently unoccupied habitat. If climate change is a relevant factor, they need to consider it.

          Reply

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