NOT the NFS Litigation Weekly July 2, 2021

The Forest Service has had “nothing to report” the last two weeks, but so you don’t feel like you’re missing something, here is what apparently didn’t make the cut.  (Links are primarily to news articles.)


In response to the lawsuit summarized here (Conservation Northwest v. U.S. Forest Service), on April 30, 2021, the Colville National Forest withdrew its action that changed the vehicle use class designations for 26 road segments from open to highway legal vehicles only to open to all vehicles, which opened those roads to use by all-terrain vehicles.  On June 7, the court dismissed the case.

On April 20, Central Oregon LandWatch and Oregon Wild filed a lawsuit challenging the Black Mountain Project on the Ochoco National Forest (introduced here).  On June 14, the court approved a settlement which, according to plaintiffs, will require the Forest Service to “exclude sensitive riparian habitat…”


(New lawsuit, between private parties.)  On June 1, a group comprised of hikers, hunters, fishermen and other users of the Jefferson National Forest sued a private landowner under a state statute in a Virginia county court for blocking historic access to the national forest.  The Forest Service had chosen to not pursue the matter in 2008.

On June 21, the 9th Circuit Court of Appeals held that the ownership of an abandoned railroad right of way near Noxon, Montana reverted to the federal government under the National Trails System Improvement Act.  An adjacent private landowner had brought a quiet title action against the Forest Service.


Four California conservation groups filed a formal notice of intent to sue the Forest Service for failing to clean up hazardous waste associated with trespass cannabis grows on Forest Service lands in California.  While trash and other solid waste is often removed from grow sites after law enforcement, deadly pesticides are routinely left at the former grow site because of the cost and complexity of removal.

Meanwhile, on June 29, a grower pleaded guilty to cultivating marijuana on the Sierra National Forest.


(Court decision.)  On June 22, the Montana federal district court upheld the Bull Trout Recovery Plan in Save the Bull Trout v. Williams.  The court held the content of recovery plans is largely discretionary, and that the Fish and Wildlife Service could use a matrix addressing management of threats to bull trout instead of population numbers to determine recovery.  (That could raise the stakes for what forest plans should do to protect bull trout.)  (The article includes a link to the opinion.)  Plaintiffs have filed an appeal to the 9th Circuit.

(New case.)  Following up on their notice of intent to sue in March (provided here), five conservation groups sued the Fish and Wildlife Service for listing only a Missouri distinct population segment as endangered rather than the entire species.  The species occurs on several eastern national forests.  Additional background and a link to the complaint are here.

  • Listing actions

Following a petition and lawsuit from the Center for Biological Diversity, the U.S. Fish and Wildlife Service announced that the beardless chinchweed will receive protection as endangered.  One of the remaining populations is found in the area that would be affected by the proposed Rosemont Copper Mine on the Coronado National Forest.  (Litigation related to the mine is discussed here.)

On June 15, the USFWS delisted the water howellia, an aquatic plant, citing (among other things) the protective measures in the Flathead National Forest revised forest plan and the Mendocino National Forest plan.  The delisting notice also states, “The USFS anticipates that water howellia will be given the status of ‘‘species of conservation concern’’ in both plans when the species is delisted.”

On June 24, the U. S. Fish and Wildlife Service proposed downlisting the smooth coneflower from endangered to threatened.  It is found on the George Washington and Jefferson National Forests in VA, Sumter National Forest in SC, and Chattahoochee-Oconee National Forest in GA.  The listing notice emphasized that, “there are currently 16 protected, resilient smooth coneflower populations, and, “These populations are protected on Federal lands from the threats of ecological succession or destruction due to development, primarily because Federal partners are vested in the protection of the species under their management plans.”

2 thoughts on “NOT the NFS Litigation Weekly July 2, 2021”

  1. Jon, thanks so much for rounding these up!!

    As to the Ochoco one, I found a copy of the settlement agreement here. I would be curious to know the differences between the original decision and this decision and what Infish requires (like why wouldn’t that be enough, and if they weren’t doing it, wouldn’t the decision be illegal anyway?

    Anyway, we had discussed settlement agreements being among a few folks at the end of several cycles of public involvement. I think it would be interesting to know who from the Ochoco was in those meetings.. in fact who was there at all? I’m assuming plaintiff’s attorneys and DOJ but who else? Not that I think it’s necessarily a bad outcome, but I think that it would be important to know how these things work.

    This one also goes on the list of ” settlements that change the outcome on the ground” and aren’t just “do more NEPA”.

  2. I would not lump this with “settlements that change the outcome on the ground.” This settlement incorporates a decision to not implement parts of the original decision. It’s not uncommon to withdraw units from project decisions, and I think that has been upheld in court as not a problem under NEPA (maybe because it reduces adverse environmental impacts).

    There is not necessarily a direct relationship between settlement terms and legal issues. It is likely that the government attorneys found some things that would be difficult to defend based on a weakness in the administrative record. It may or may not have had to do with Infish, but here is the language that could have been at issue, and maybe the record didn’t make a good case for compliance (these are the circumstances that would allow timber harvest in RHCAs):
    “b. Apply silvicultural practices for Riparian Habitat
    Conservation Areas to acquire desired vegetation
    characteristics where needed to attain Riparian
    Management Objectives. Apply silvicultural practices in a
    manner that does not retard attainment of Riparian
    Management objectives and that avoids adverse effects
    to inland native fish (Page 7).


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