NFS Litigation Weekly February 19, 2021

The Forest Service summaries are here:  Litigation Weekly February 19, 2021 EMAIL

(The last summary we received was dated January 8, so we’ve missed a few things.)

Links for each case are to court documents.


WildEarth Guardians v. U.S. Forest Service (D. Utah).  On February 5, 2021, the District Court of Utah upheld the authorizations for a 400-well oil and gas development project on the Ashley NF with regard to NEPA, NFMA, Mineral Leasing Act, Roadless Rule, Clear Water Act and APA claims.

Idaho State Snowmobile Association v. U.S. Forest Service (D. Idaho).  On February 10, 2021, the District Court of Idaho reversed and remanded a travel management decision involving snowmobile access and closure of 72,447 acres of the Sawtooth NF because the research relied on did not support the conclusions about wildlife in the EA.


Arizona Mining Reform Coalition v. U.S. Forest Service (D. Ariz.).  On January 22, 2021, the plaintiff filed a complaint in the District Court of Arizona, regarding the conveyance of Oak Flat Parcel as part of the “Southeast Arizona Land Exchange and Resolution Copper Mine Project” on the Tonto National Forest that was approved on January 15, 2021.

Friends of the Clearwater v. Cheryle Probert (D. Idaho).  On February 4, 2021, the plaintiff filed a complaint in the District Court of Idaho, challenging a October 2017 Travel Planning Record of Decision, which allows motorized use along the Fish Lake Trail within a Recommended Wilderness Area on the Nez Perce-Clearwater National Forest.


On January 26, 2021, Western Watersheds Project and Rocky Mountain Wild alleged violation the Endangered Species Act and National Forest Management Act regarding the Final Record of Decision and the Final Environmental Impact Statement for the Thunder Basin National Grassland 2020 Plan Amendment because of the failure to carry out programs to conserve the black-footed ferret.


Montana Environmental Information Center vs. Bernhardt (D. Montana).  On January 25, 2021, the Montana District Court denied Plaintiff’s Motion for Preliminary Injunction regarding the Rosebud Mine expansion in southeast Montana and its effect on the endangered pallid sturgeon. (The Forest Service is not a named party in this litigation nor are any mining operations on NFS lands. The summary was provided for information purposes.)

Price v. Barr (D. D.C.).  On January 22, 2021, the District Court entered a declaratory judgment and permanent injunction against permit and fee requirements for commercial filming in a national park because they are unconstitutional under the First Amendment (as we discussed here).

Natural Resources Defense Council v. U. S. Department of the Interior (N.D. California).   On January 25, 2021, NRDC, filed a complaint for Declaratory and Injunctive Relief in the Northern District of California against the U. S. Fish and Wildlife Service, challenging the decision to remove the gray wolf from the list of threatened and endangered species.

4 thoughts on “NFS Litigation Weekly February 19, 2021”

  1. I thought that this was interesting on the snowmobile suit:

    “In response, the Forest Service begins by noting that “high-quality scientific
    evidence” is not a standard under the NEPA. The Court agrees. ISSA does not cite any
    authority for this proposition that high-quality scientific evidence is required and, to the
    contrary, the Ninth Circuit has found that NEPA does not require the Court to decide
    whether the Forest Service used perfect, flawless, or even “the best scientific methodology
    available.” The Lands Council, 537 F.3d at 1003. Instead, the Court is tasked with ensuring
    the Forest Service made no “clear error of judgment” that would render its action “arbitrary
    and capricious.” Id.; see also Marsh, 490 U.S. at 378 (the reviewing court “must consider
    Case 1:19-cv-00195-DCN Document 34 Filed 02/10/21 Page 26 of 36
    whether the decision was based on a consideration of the relevant factors and whether there
    has been a clear error of judgment”). Were the Court to require something more,
    “government actions affecting the environment, positively or negatively, could be
    hamstrung by the need for unattainable scientific certainty.” Idaho Wool Growers Ass’n v.
    Vilsack, 816 F.3d 1095, 1109 (9th Cir. 2016). So, while the Court is not looking for any
    specific “high-quality scientific evidence,” it must nevertheless determine whether the
    choices made by the Forest Service were rationally related to the evidence in the record. ”

    It doesn’t seem to me to be consistent with the 9th Circuit decision on the Mt. Hood project that scientists disagreeing made for scientific controversy that needed to be addressed. I’m sure I’m missing some subleties…

    The discussion of the need to protect critters that aren’t there is also interesting.

  2. Without looking too deeply, I see two different issues. This case is about whether data is good enough, and the other is about how to address conflicting data. The APA “arbitrary and capricious” standard for sufficiency would apply to both questions, though. I think in both cases it would be arbitrary to ignore or dismiss credible data without a reasonable rationale.

    CEQ NEPA regulations seem less demanding on the substance of “best available science” than either the NFMA Planning Rule or ESA. The latter two actually use the word “best,” while CEQ regulations require only “scientific integrity.” This court states the NEPA requirement as, “an agency must use detailed and quality information so that it will “not act on incomplete information, only to regret its decision after it is too late to correct.” ” If an agency ignored relevant “detailed and quality information,” I think that would be arbitrary.

    But in this case, the court actually decided that the Forest Service had misused available data, which does not in fact support the agency decision. The court said, “the Court is not impermissibly substituting its judgment for that of the agency,” but it is saying that the agency’s judgment was arbitrary.

    • It seems to me that when courts want to substitute their own judgment, they always say it’s arbitrary. Perhaps the Oregon case just means that the FS has to write more stuff about how they considered the specific paper involved and why they don’t think the information is “best available”.

  3. I read the opinion and I agree with you that the court decided to be a biologist, saying:
    “it is hard to accept the Forest Service’s conclusion that there are likely two wolverine dens in the Analysis Area when none have been observed there for decades,” and saying:
    “To conclude that such (historic lynx presence several miles away) is sufficient to prohibit OSV use in order to protect lynx strains reason.”

    But where everybody missed the boat in this case is that the decision was following forest plan direction to protect these species. According to the Forest Service (per the court), “The Sawtooth National Forest Land and Resource Management Plan (the “Forest Plan”), outlines that proactive measures should be taken to maintain lynx habitat and promote opportunities for lynx connectivity even though the likelihood of lynx occurring in the area was low.” Also, “the Forest Plan specifically outlines one of its goals is to protect mountain goat habitat and mitigate human disturbances.” The court can’t ignore the legal significance of the forest plan by saying the Forest was arbitrary because it followed its forest plan to justify project decisions. (These seem like challenges more appropriately directed at the forest plan.)

    And then there’s the standing issue, where the court seemed to agree that NEPA was intended to protect these “aesthetic and recreational interests” that cause harm to the natural environment.


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