NFS Litigation Weekly May 7 & 14, 2021

The full Forest Service summaries are here:  Litigation Weekly May 7 and 14 2021_Email

Abbreviated summaries below include links to related court documents.


Alliance for the Wild Rockies v. Higgins, (D. Idaho) – On April 27, 2021, the district court remanded the Forest Service’s categorical exclusion and decision memo for the Hanna Flats project on the Idaho Panhandle NF to the Forest Service to issue a supplemental decision memo explaining the how the project falls under the definition of wildland-urban interface under the Healthy Forest Restoration Act.  The district court held that, “[b]y not using the statutory definition of a wildland-urban interface, the USFS violated HFRA, thus rendering its use of the categorical exclusion unlawful” and noted that the Forest Service never provided a clear explanation of how the entire project area could be defined as a “wildland-urban interface.”  (Plaintiff’s view of the decision is provided here.)

Blogger’s note:  It appears to be common for revised forest plans to refer to the WUI as a location for certain kinds of management, and they also fail to include maps or provide any basis for what areas are considered WUI.  While forest plans do not rely on HFRA categorical exclusions, this approach raises questions about whether the plans properly identify areas where plan components apply as required by 36 CFR §219.7(d) and (e).

2-Bar Ranch Limited Partnership v. USFS, (9th Cir.) – On May 6, 2021, the 9th Circuit Court of Appeals reversed the District Court of Montana’s partial grant of summary judgment to plaintiff rancher permittees concerning the decision to apply the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment on the Beaverhead-Deerlodge National Forest.  The court held that the 2009 revised forest plan allowed for continued application of range seasonal utilization requirements previously established through a site-specific allotment management plan and NEPA analysis instead of using newer forest plan default requirements that would have been more lenient to the permittees.  The 9th Circuit also held that the Equal Access to Justice Act does not provide for attorney fee recovery in Forest Service administrative proceedings.


Alliance for the Wild Rockies v. Lannom, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint concerning the Horsefly Project on the Helena-Lewis and Clark National Forest. The complaint alleges the project includes a forest plan Amendment to exempt the project from two forest plan standards that protect elk hiding cover because the project violates those standards.  The complaint also addresses old growth and goshawks.

Friends of the Clearwater v. Probert (D. Idaho) – On April 28, 2021, plaintiff filed a complaint challenging the approval of two logging projects known as the  “End of the World” (50,000 acres) and “Hungry Ridge” (30,000 acres) projects on the Nez Perce-Clearwater National Forests without preparing an EIS (for 19,000 acres of logging).  Issues include effects on old growth and several species, including listed grizzly bears, lynx, salmon and steelhead, and failure to consult under ESA for grizzly bears.

Alliance for the Wild Rockies v. Munoz, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint regarding approval of the Elk Smith Project on the Helena-Lewis and Clark National Forest, which is within an inventoried roadless area.  The project calls for the removal of small-diameter trees and prescribed burning in an area that burned in the Canyon Creek Fire of 1988.  (Additional background is provided here “Twin Metals Mine.”)


NorthMet Mining Project, Superior National Forest (not Region 1, as indicated in the Forest Service summary).  On April 28, 2021, the Minnesota Supreme Court ordered a remand to the state Department of Natural Resources to conduct a contested case hearing and to determine an appropriate definite term for the permit to mine as necessary.  (This appears to be related to prior discussions of mining near the Boundary Waters Wilderness we have discussed  previously, most recently here.)

Center for Biological Diversity v. Spellmon, (D. Mont.) – On May 3, 2021, plaintiffs filed a complaint alleging the Army Corps of Engineers violated the Endangered Species Act, National Environmental Policy Act, and Clean Water Act when it issued Nationwide Permit 12 for oil and gas pipelines.  (Additional background is provided here.)

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