January 2021 Litigation

As I mentioned in conjunction with the February 18 NFS Litigation Summary, we missed a few things in January.  Here’s an attempt to catch up on that.  (You might get the impression that the last-minute efforts of the outgoing Trump administration have something to do with the flurry of new litigation.)

FOREST SERVICE

(New lawsuit.)  On January 8, 2021, several environmental organizations in the southeastern U. S. challenged the Forest Service’s November 19, 2020, adoption of new regulations implementing the National Environmental Policy Act (which we discussed here).  In particular, plaintiffs are concerned about the categorical exclusion allowing logging of up to 2800 acres without preparing an Environmental Assessment.  (We discussed this indirectly here.)

(New lawsuit.)  On January 8, 2021, the Alliance for the Wild Rockies filed a lawsuit claiming the Forest Service must reinitiate consultation with the U.S. Fish and Wildlife Service on the forest plan for the Helena-Lewis and Clark National Forest regarding new information about the impacts of illegal motorized road use on grizzly bears.

(New lawsuit.)  On January 11, 2021, the Forest Service issued a final Record of Decision that amends the Jefferson National Forest Land and Resource Management Plan to allow the Mountain Valley Pipeline project to move forward.  The ROD modifies certain standards in the Forest Plan to accommodate the pipeline construction.  Conservation groups sued just hours after the Forest Service decision was released.  In a separate proceeding before the Court of Appeals for the D. C. Circuit, the court refused to stay a decision by the Federal Energy Regulatory Commission allowing construction to begin elsewhere on the pipeline route.

(New lawsuit.)  On January 14, 2021, conservationists challenged the Stateline Range grazing project, a Forest Service decision that would allow livestock grazing across 271,665 acres of the Apache-Sitgreaves and Gila National Forests in Arizona and New Mexico over a 10-year period.

(Settlement.)  The federal government settled a lawsuit filed by the mining company regarding clean-up of existing mining waste on the site that is proposed for further development on the Payette and Boise National Forests.  The Nez Perce Tribe is continuing a separate Clean Water Act lawsuit against the company, and issued the statement linked above.

BLM

(Settlement.)  On January 6, 2021, the BLM agreed to stop drilling on more than 45,000 acres of oil and gas leases until officials revise land management plans in the Grand Junction and Colorado River Valley Field Offices.  The settlement results from a 2018 lawsuit challenging the agency’s failure to undertake site-specific environmental review when it approved the leases, instead relying on the allegedly inadequate resource management plans.

  • Fuel breaks (This news release has a link to the NOI.)

(Notice of Intent.)  On January 12, 2021, four conservation groups notified the BLM of its intent to sue for violations of the Endangered Species Act stemming from two decisions to build up to 11,000 miles of fuel breaks across 223 million acres of Bureau of Land Management public lands in the Great Basin.

(New lawsuit.)  On January 15, 2021.  The Colorado Department of Natural Resources filed a lawsuit in federal court challenging the Bureau of Land Management’s resource management plan for the Uncompahgre Field Office. The plan would open nearly one million acres of public lands to drilling and mining in southwest Colorado.  This case argues that, as in a case Montana won against the BLM, the decision is invalid because it was made by acting BLM Director William Perry Pendley who did not have authority to do so (discussed on this blog here).

  • Fracking:  WildEarth Guardians v. Bernhardt (D. D.C.) (This news release has a link to the complaint.)

(New lawsuit.)  On January 19, 2021, WildEarth Guardians and Physicians for Social Responsibility filed a complaint against BLM’s approval of 890 oil and gas leases encompassing over 1 million acres of public lands across Colorado, New Mexico, Utah, and Wyoming between March 2019 and December 2020.  This news release has also summarized recent and ongoing litigation against oil and gas leasing on public lands (but it didn’t include this additional case against the Pendley RMP decisions).

 

FISH AND WILDLIFE SERVICE

(Notice of Intent)  On January 5, 2021, the Center for Biological Diversity filed a Notice of Intent to Sue the U. S. Fish and Wildlife Service for delaying protection for 11 species that have been identified as warranting endangered status but were placed on a candidate list instead.  Included on that list is the northern spotted owl, which was found warranted for uplisting from threatened to endangered in December.

  • Salamander recovery plans: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.) (This news release has a link to the complaint.)

(New lawsuit.)  On January 13, 2021, The Center for Biological Diversity and Healthy Gulf sued the Trump administration today for failing to issue recovery plans for the endangered reticulated and frosted flatwoods salamanders.  The frosted flatwoods salamander is associated with the longleaf pine flatwoods that once extended across much of the Southeastern U.S. Today their range within Florida has been reduced primarily to the Apalachicola National Forest and a national wildlife refuge, and they are also found on the Francis Marion National Forest in South Carolina (and maybe others).

(New lawsuit.)  Seventeen states and New York City have filed a federal lawsuit against two final rules issued by the U. S. Fish and Wildlife Service in December that narrow the definition of “habitat” in a way that shrinks the amount of land designated as protected under the Endangered Species Act.

  • Migratory Bird Treaty Act:  National Audubon Society v. U. S. Fish and Wildlife Service (S.D. N.Y.)  (This article has a link to the complaint.)

(New lawsuit.)  On January 19, 2021, a coalition of national environmental groups filed litigation against a move by the U. S. Fish and Wildlife Service to eliminate longstanding protections for waterfowl, raptors, and songbirds under the Migratory Bird Treaty Act.  The new regulation applies MBTA protections only to the intentional killing of birds and not “incidental” killing from industrial activities, such as oil spills and electrocutions on power lines.

OTHER

(8th Supplemental Complaint.)  On January 19, 2021, a coalition of fishing and conservation groups and the State of Oregon returned to court to challenge the latest federal plan for hydropower operations on the Snake and Columbia Rivers, and its effects on endangered salmon and steelhead.  (Legislation has been proposed to remove the four dams that are at the heart of this litigation.)

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