NFS Litigation Weekly June 11, 2021

It seems like this is becoming more of a “litigation monthly” (maybe because the litigation business is slow?), but here’s what they’ve got:  Litigation Weekly June 11 2021_Email


Conservation Congress v. U.S. Forest Service (E.D. Cal.).   On May 17, the district court upheld the Pettijohn Project on the Shasta-Trinity National Forest concerning alleged impacts on the northern spotted owl under ESA, NEPA, HFRA and NFMA.  A local story is here.

Gallatin Wildlife Association v. U.S. Forest Service (9th Cir.).  On May 18, in a 4-page opinion, the 9th Circuit affirmed the District Court of Montana’s decision, which upheld the allotment management plans on 7 domestic sheep allotments, on the Beaverhead-Deerlodge National Forest, and the Forest Service’s use of a coarse filter methodology in assessing the risk of domestic sheep grazing to bighorn sheep.

BAR K Ranch v. United States (D. Mont.).  On May 10, in a quiet title action brought against the Forest Service and BLM, the district court granted the Forest Service’s motion that the several public and private rights-of-way over roads on the Beaverhead-Deerlodge National Forest constitute Forest Service roads.


Kettle Range Conservation Group v. U.S. Forest Service (E.D. Wash.) On May 12, the plaintiff filed a complaint concerning the Sanpoil Project on the Colville National Forest. The complaint alleges failure of the EA to include a meaningful (including site-specific) analysis of the impacts of timber harvests, controlled burns and road work within 47,956 acres of the Colville National Forest. Due to the proximity to tribal trust lands of the Colville Tribe, the project was proposed under the Tribal Forest Protection Act.  Plaintiffs further challenge the Forest Service’s final decision approving the 2019 Colville Forest Plan, because it fails to protect old-growth trees from logging through projects such as the Sanpoil Project.

Klamath Forest Alliance v Blower (D. Or.).   On May 21, the plaintiffs filed a complaint against the Slater Fire Safe Re-entry Project, after fires in 2020 on the Rogue River-Siskiyou National Forest, challenging the use of the road repair and maintenance CE for a project of this scope (along 85 miles of roadway).  Additional claims under ESA may be added pending response to a 60-day Notice of Intent to Sue.



On May 17, 2021, the United States Court of Appeals for the Ninth Circuit held that a new Trump administration U.S. Fish and Wildlife Service rule requiring that affected states receive a 30-day notice of an intent to file a petition to list a species as endangered or threatened is inconsistent with the Endangered Species Act.  The specifics of this case involve the Pryor Mountains on the Custer-Gallatin National Forest.  They also involve a petition to list a particular “Old-World Spanish genetic lineage” of wild horse, which the Fish and Wildlife Service rejected for failure to comply with this new requirement.

  • Sage grouse

In February, the district court of Idaho overturned a Trump administration action to cancel a prior effort to ban mining and allow mining and other development on 10 million acres that are considered important for the survival of sage-grouse.  In May the Biden administration announced it would consider a new ban.

  • Flathead forest plan revision

On May 27, a hearing was held in the district court of Montana in the lawsuit against the revised Flathead National Forest Plan involving grizzly bears and bull trout.  Local articles summarizing the hearing discussions are here, here, and here.

2 thoughts on “NFS Litigation Weekly June 11, 2021”

  1. Thanks for doing this, Jon! A few quotes from the links you provided related to our ongoing discussions.
    “Judge Mendez issued his decision Monday in U.S. District Court in Sacramento, ruling in favor of the forest service.

    “Plaintiffs go to great lengths to challenge different aspects of the forest service’s analyses of wildfires and tree removal and their effects on spotted owl habitat and greenhouse gas emissions, but in doing so, they miss the forest for the trees,” Mendez wrote in his opinion.

    “So long as the Forest Service considered the relevant factors and articulated a rational connection between the facts found and choices made, the court must uphold the agency decision,” Mendez wrote.”

    As we’ve seen, in other cases, judges decide the FS didn’t consider the factors “adequately” or the connection wasn’t “rational” enough in the eye of the judge. And of course, the FS can go back and reanalyze many times and end up with the same decision.

    I agree with Fite that 13 years of planning for “logging and thinning 774 acres of commercial-sized trees” it is an outlier.. and it would be interesting for someone to study these outliers and see what they have in common.

    She also said that as part of the project the forest service would be logging trees more than 150 years old when they are limited by law to logging timber no more than 80 years old.

    There were some interesting quotes from Boggs..
    “She also said that as part of the project the forest service would be logging trees more than 150 years old when they are limited by law to logging timber no more than 80 years old.

    “I am tired of the forest service violating the law. And frankly, I’m just tired of these judges that aren’t doing their job. And I’m tired of the media giving them a free pass,” Boggs said.”

    Does anyone understand what she means that the FS is “limited by law to logging timber no more than 80 years old?”

    From the Laura Lundquist Flathead story..

    “The federal attorneys argued it has to be all or nothing – rewrite the entire plan or keep the entire plan. Preso said previous court rulings have allowed for the invalidation of parts of policies and procedures. Molloy asked Preso why his ruling should limit only the parts of the Forest Plan the wildlife groups don’t like.

    “I would say the part that’s lawful and poses no threat should stay and the part that’s unlawful and poses a clear threat should go,” Preso said.”

    I also thought if the problem is people illegally using closed roads, maybe a solution would be for the FS to do a better job of law enforcement on those roads. It seems like we are confronting a question of “keeping people from doing illegal things that bothergrizzlies” is the solution keeping them out entirely (in this case, by ripping up roads)? or enforcing the laws?


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