NFS Litigation Weekly April 30, 2021

Well, this first “weekly” we’ve received from the Forest Service since March 5 has a summary of one new Notice of Intent to Sue:  Litigation Weekly April 30, 2021_Email

On April 15, 2021, Friends of the Clearwater sent a 60-day notice of intent to sue the Forest Service alleging violation of the Endangered Species Act for approving the Hungry Ridge Restoration Project on the Nez Perce National Forest without consulting on grizzly bears, which “may be present” in the project area.  (The Summary also mentions a similar NOI received on February 22, 2021, on the End of the World Project).


But here are a few other things that were going on during the first part of April.

Court decision:  Natural Resources Defense Council v. McCarthy (10th Cir., April 8 2021)

The circuit court affirmed a decision by the District Court for the District of Utah, and held that the BLM was not required by NEPA to evaluate the effects reopening an area it had temporarily closed to off-highway vehicles.  (However, BLM did apparently consult with the Fish and Wildlife Service about effects on the Wright fishhook cactus, which was the reason for the original closure.)  The court held that, under BLM’s temporary closure regulation, BLM had no discretion to retain the closure once it determined that adverse effects could no longer occur. The court also found that the closure was not consistent with the Resource Management Plan’s designation of the area as open to off-highway vehicles, and this also limited BLM’s discretion to maintain the temporary closure.

The district court decision was described here.

Court decision:  Center for Biological Diversity v. Bernhardt, (D. Nev., April 21, 2021).  (The news release contains a link to the court’s order.)  We previously discussed this case here.  

The district court gave the U. S. Fish and Wildlife Service 30 days to decide whether or not to list the Tiehm’s buckwheat and designate critical habitat under the Endangered Species Act because they failed make a timely 12-month finding on the plaintiffs’ petition.  A proposed lithium mine on BLM land would destroy as much as 90% of the global population.  The court dismissed the claim against BLM because they are under no obligation to respond to a petition from plaintiffs nor do they have a duty to act with regard to their planning requirements.  The FWS has now said they can’t meet this timeline, as explained here.

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C., filed April 15, 2021)  (The article includes a link to the complaint.)

The FWS released a plan in 2016 to address a portion of the more than 500 species waiting for Endangered Species Act protection in the U.S, but plaintiffs say the agency neglected to make dozens of findings every year since because of interference from the Trump administration.  In this case plaintiffs complain about delays in listing decisions for nine species, including the Franklin’s bumblebee from Oregon, the Sierra Nevada red fox and Hermes copper butterfly from California, and Bartram’s stonecrop and Beardless chinchweed from Arizona; and critical habitat decisions for eight plants and the Suwannee moccasinshell found in Florida, and the pearl darter fish in Mississippi.

An Arkansas man pleaded guilty in federal court in Missouri to cutting timber and damaging trees in the Mark Twain National Forest, including removal of 27 walnut and white oak trees.  He may be sentenced to up to 10 years in federal prison without parole.  “The value of the timber was placed at approximately $20,269, and the ecological damage value of the trees cut from the national forest and remediation costs to the U.S. Forest Service totaled more than $44,000.”  (Does that say something about the economics of timber sales there?)

1 thought on “NFS Litigation Weekly April 30, 2021”

  1. To answer your question in the last sentence, no. This says nothing about the economics of timber sales there as the situation is a timber theft, not a sale. It is possible that the thief caused significantly more resource damage than a timber purchaser governed by a FS timber sale contract might have. Also, if the remediation work was performed directly by the FS, chances are it was more costly than it would have been if similar work was performed by a timber purchaser. Also, perhaps the thief constructed the access he needed (causing lots of expensive damage), but was caught before he could cut too many walnut trees (lower the value of timber cut). Like your speculative question, this is also speculation because the article doesn’t give us any of the details.

    However, your insinuation that FS timber sales are uneconomical because remediation costs exceed the value of the timber is unfounded. If that was the case, the FS would not sell any timber because remediation is required to be performed by the purchaser. I think what you may be thinking of is the high cost of NEPA contributing to an uneconomical timber program at the program scale. Basically, the Forest Service has insane overhead costs that are not passed on to the purchaser. Some folks seem to cry out for more and more regulation and then complain out of the other side of their mouth that the FS timber program is uneconomical. Really, wow! I wonder why??


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