NFS Litigation Weekly June 18, 2021

Things were a little busier this time.  Forest Service summaries are here:  Litigation Weekly June 18 2021 Email

Court documents related to each case are provided by the links below.


Western Watershed Project v. U.S. Forest Service (D. Utah).  On June 2, the district court granted the Forest Service’s partial Motion to Dismiss one of several claims challenging the decision to not suspend and cancel grazing on three allotments on the Fishlake National Forest for the 2019 grazing season permits.  This case was introduced here.

Unite the Parks v. U.S. Forest Service (E.D. Cal.).  On May 28, the district court denied the plaintiffs’ motion for a preliminary injunction against 45 forest health projects on the Sierra, Sequoia and Stanislaus National Forests that may affect the Southern Sierra Nevada Pacific fisher.  Most of the claims were based on ESA after the fisher was listed as endangered on May 15, 2020.  Regarding the long-term benefits to fisher claimed by the agencies (discussed here), the court found little likelihood that plaintiffs could raise serious questions. The Forest Service and Fish and Wildlife Service received a second notice of intent to sue under ESA on June 10 containing different claims (not linked).

Short v. Federal Highway Administration (D. N.D).  On May 28, the district court dismissed the Forest Service from the case without prejudice, based on their role as a cooperating agency for Little Missouri Crossing Road and Bridge Project that encroaches on and crosses the Little Missouri National Grassland and the Dakota Prairie Grassland (as well as plaintiff’s property).

Center for Biological Diversity v. U.S. Forest Service (D. Idaho).  On June 4, the district court upheld the Bog Creek Road Project in the Selkirk Grizzly Bear Recovery Zone on the Idaho Panhandle National Forest, which will reopen the road for administrative use by Customs and Border Protection in monitoring the border with Canada.


  • Flathead revision/grizzly bear amendments

O’Neil v. Steele (D. Mont.).   On June 8, the magistrate judge issued a findings and recommendation favorable to the Forest Service regarding the Flathead National Forest 2018 revised Forest Plan and the Lolo, Helena-Lewis & Clark and Kootenai National Forests amended Forest Plans. These plaintiffs have claimed that the Forest Service did not consider the albedo effect and should have planned for more timber harvest.  (No court document was provided.)


Alliance for The Wild Rockies v. Pierson (D. Idaho).  On June 7, the plaintiff filed a complaint against the Forest Service’s October 11, 2018 Decision Memo (DM) and May 28, 2021 Supplemental DM (based on categorical exclusions) approving the Hanna Flats Project on the Idaho Panhandle National Forest.  The Supplemental DM was the result of the court’s remand on April 27 to address Wildland-Urban Interface boundaries (described here).

Save the Bull Trout v. U.S. Forest Service (D. Mont.). On June 4, the plaintiffs filed a complaint against the East Fork and Rock Creek Diversion on the Beaverhead-Deerlodge National Forest, alleging violations of the Endangered Species Act resulting from ongoing unpermitted incidental take of bull trout.


In a second NOI dated June 4 to the U.S. Fish and Wildlife Service and Forest Service (first NOI issued September 13, 2019), the Center for Biological Diversity and Maricopa Audubon Society expressed continued concerns that inadequate exclosure fencing (and monitoring of fencing) has resulted in cattle from two allotments entering protected areas that has resulted in destruction and modification of endangered New Mexico Meadow Jumping Mouse critical habitat, and other effects not considered in 2021 biological opinions for the allotments.


BLOGGER’S BONUS (links are to news articles)

(Notice of intent.) The Environmental Protection Information Center filed the notice along with the Center for Biological Diversity and the Klamath Siskiyou Wildlands Center on June 2. The NOI states that the U. S. Fish and Wildlife Service failed to explain why the West Coast population, which was petitioned for listing by the groups on this notice and found to warrant protection in 2004 and subsequent years, no longer warrants protection as a threatened or endangered species. A final listing rule made in May 2020 revised the West Coast population’s definition into two separate distinct population segments, the previously established Northern-California-Southern Oregon and Southern Sierra Nevada populations and only granting protection to the latter.  (See the Unite the Parks case above.)

(Update.) The U.S. Fish and Wildlife Service said on June 2 it will propose listing the Tiehm’s buckwheat as an endangered species, dealing a blow to ioneer Ltd’s proposed Rhyolite Ridge lithium mine on BLM land in Nevada.  This decision is in response to a court-imposed deadline (as discussed here).

(New case.) On June 3, a coalition of conservation groups sued the Department of Interior over the BLM’s decision to allow construction of a new four-lane highway through a national conservation area in southern Utah that includes protected habitat for the Mojave desert tortoise.  (The complaint in Conserve Southwest Utah v. USDI is here.)

(Update.) On June 4, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act finalized under the prior administration.  This includes the regulations at issue in the ESA litigation described here.

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