Litigation summary supplement, April-May 2021

These recent case developments are evidently not covered in a Forest Service litigation summary.

Court decision (Forest Service):  Ksanka Kupaq Xa’lcin v. U. S. fish and Wildlife Service (D. Mont., April 14, 2021) (The news release includes a link to the opinion.)

The district court vacated the decision to permit construction of an evaluation adit for the Rock Creek Mine Project under the Cabinet Mountains Wilderness on the Kootenai National Forest without considering the effects of mine development, operations and reclamation in the biological opinion prepared pursuant to the Endangered Species Act.  The court found that, while the Forest Service has the authority to limit its current authorization as it sees fit, the Fish and Wildlife Service was required to explain adequately “why a comprehensive biological opinion addressing later development would be unproductive in assessing the impacts of the Project,” and “not only was a more comprehensive biological opinion possible, but that such opinions had already been completed” (in earlier iterations where the project had been considered as a whole).  The history of this project showed that mine operations are “reasonably certain to occur,” so their effects must be evaluated, even though the Forest Service had not formally permitted those operations to occur.

Court decision (Agricultural Research Service):  Western Watersheds Project v. U. S. Sheep Experiment Station, (D. Idaho, April 16, 2021)  (The court’s opinion is here.)

In the latest action in litigation that began in 2007, the court held:  “The Sheep Station/ARS acted arbitrarily and capriciously under the APA by failing to take the required hard look mandated by NEPA at the impacts of the project by (1) not adequately addressing its direct and indirect effects on non-ARS allotments (including on the Caribou-Targhee National Forest), (2) not sufficiently examining its impacts on bighorn sheep and grizzly bears, and (3) not objectively analyzing alternatives.”

Court decision (Forest Service):  WildEarth Guardians v. Bail, (E.D. Wash., April 20, 2021)  (This case was previously discussed here.)

The court denied plaintiffs’ motion for a preliminary injunction against sheep grazing on four allotments (of the seven under litigation) on the Okanogan-Wenatchee National Forest.  The court found no “significant threat of irreparable injury in the absence of injunctive relief,” because domestic sheep would still be grazed on proximate private and state-owned lands, and therefore the court did not address the merits of the case.  Those are related to delay in addressing new information about the effects on bighorn sheep until after the forest plan is revised.

New lawsuit (BLM):  Center for Biological Diversity v. U. S. Bureau of Land Management, (D. Idaho, filed April 27, 2021).  (This article has a link to the complaint.)

The proposed Caldwell Canyon Mine in southeast Idaho’s “Phosphate Patch” would extract the raw material to make glyphosate, which is primarily used in Bayer’s Roundup herbicide.  The three plaintiffs claim BLM’s approval of the mine violates the National Environmental Policy Act with its inadequate EIS reviews of effects on sage grouse and selenium pollution.  (No mention of the effects of using Roundup, which to me would be similar to NEPA requiring evaluation of the use of fossil fuels that results from oil and gas leasing.  But maybe it’s because EPA is responsible for that.)

Update (Fish and Wildlife Service):  The U. S. Fish and Wildlife Service has announced that it has delayed a decision on northern spotted owl critical habitat until December.  Plaintiffs in litigation opposing the vast acreage reduction adopted by the Trump administration are happy; plaintiffs in litigation opposing the delay in adopting the new designation are not.  (Those cases are discussed here.)

Interestingly, the Fish and Wildlife Service under the Biden administration has just followed through on the reduction of critical habitat for the northern Mexican garter snake from its original proposal in 2013 of 421,423 acres to 20,326 acres.  The remaining units of critical habitat include lands on the Tonto, Coronado, Coconino and Prescott National Forests.  (That is summarized here, with a link to the Federal Register notice.)

New lawsuit (National Park Service):  The State of South Dakota is suing the Park Service for failing to grant a permit for a fireworks show on the Fourth of July.  While the Trump administration had signed a Memorandum of Understanding for such permits, the Park Service determined:

“Potential risks to the park itself and to the health and safety of employees and visitors associated with the fireworks demonstration continue to be a concern and are still being evaluated as a result of the 2020 event… In addition, the park’s many tribal partners expressly oppose fireworks at the Memorial. These factors, compiled with the COVID-19 pandemic, do not allow a safe and responsible fireworks display to be held at this site.”


3 thoughts on “Litigation summary supplement, April-May 2021”

  1. Jon, thank you for posting this and all other litigation roundups. I appreciate the effort you put into it!


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