NFS Litigation Weekly July 30, 2021

The Forest Service summary is here:  NFS Litigation Weekly July 30 2021 Email

(The last previous “weekly” summary was July 9.)

COURT DECISIONS

• 0001_20210723_SGA_v_UnitedStates_04-786_USCourtFederalClaims_SacromentoAllotments_Lincoln_opinion_order

Sacramento Grazing Association, Inc. v. United States (U.S. Court of Federal Claims) – On July 23, 2021 the U.S. Court of Federal Claims reconsidered the court’s 2017 liability determination that the Forest Service “effected a physical taking of plaintiffs right to beneficial use of stock water sources under New Mexico law” in the Sacramento Allotments of the Lincoln National Forest. The Court found that the plaintiffs did not possess a right to beneficial use of stock water sources under New Mexico water law at the time of the alleged taking.

• 0002_20210723_AllianceWildRockies_v_Pierson_21-244_DIdaho_IdahoPanhandleNF_HannaFlatsProj_order_grantingPI

Alliance for The Wild Rockies v. Pierson, (D. Idaho) – On July 23, 2021 the district court granted a preliminary injunction (for a second time) on the Hanna Flats Project on the Idaho Panhandle National Forest because the Forest Service failed to apply HFRA’s definition of WUI, and instead relied exclusively on Bonner County’s community wildfire protection plan’s determination of the WUI, which is inconsistent with HFRA’s definition and cannot provide a justification for a NEPA categorical exclusion under HFRA.  (Here is an AP news article.)

LITIGATION UPDATES

• Motion to Alter or Amend Judgment

WildEarth Guardians v. Steele and Swan View Coalition v. Steele (D. Mont.)- On July 22, 2021 the plaintiffs filed a motion to amend the district court’s June 24, 2021 decision against the Flathead National Forest revised land management plan by requesting the court to vacate new road management requirements, and to reinstate the requirements of the former forest plan to protect grizzly bears and bull trout.

NEW CASES

• 0003_Wilderness Complaint

Wilderness Watch v. Marten (D. Mont.) – On July 22, 2021, the plaintiff filed a complaint in the district court against the Forest Service regarding the North Fork Blackfoot River Westslope Cutthroat Trout Conservation Project on the Lolo National Forest. The project would authorize large-scale helicopter-assisted stream poisoning to remove previously stocked fish, followed by the stocking of Westslope cutthroat trout in the Scapegoat Wilderness, including in areas that were likely historically fishless.  (We discussed this project here, and here is a local news article.)

BLOGGER’S BONUS

• Tonto grazing

(Court decision.)  Neighbors of the Mogollon Rim, Inc. v. U.S. Forest Service (D. Ariz., June 30, 2021)

The district court denied a motion for a preliminary injunction against the Tonto National Forest’s allotment management plan and grazing permit for the Bar X allotments and Heber-Reno Sheep Driveway.  Plaintiffs are owners of land in private enclaves within an area of national forest lands that was reopened for grazing.  The court’s ruling is based entirely on the balance of harm and does not address the merits of the case.

• Colville grazing

(Notice of Intent.)  Lands Council v. U. S. Forest Service (E.D. Wa.)  Three conservation groups notified the Colville National Forest on July 10 of their intent to add a claim to their existing lawsuit against the issuance of a 10-year grazing permit for two allotments that will challenge the failure to consult with the Fish and Wildlife Service concerning effects on bull trout and critical habitat.  (The linked article includes a link to the NOI.)

• BLM horse gathering

(Court decision – BLM.)  Friends of Animals v. U. S. Bureau of Land Management (D. D.C., July 13, 2021)

The district court denied a motion for a preliminary injunction to stop BLM’s gather and removal of wild horses inside and adjacent to the Onaqui Mountain Herd Management Area in Utah.  The court found that Plaintiff’s likelihood of success on the merits was low, and that due to the extreme drought, “Allowing the horses to remain on the range could imperil their health and the ecological well-being of the range.”

• BLM grazing

(Notice of Intent – BLM.)  The Center for Biological Diversity and the Maricopa Audubon Society have filed a “60-Day Notice of Endangered Species Act Violations” with the Bureau of Land Management over cattle trespassing along the San Pedro River in the San Pedro Riparian National Conservation Area in Arizona.  Listed species that may be adversely affected are the western yellow-billed cuckoo, the northern Mexican garter snake and especially the Huachuca water umbel, an aquatic plant.

• Trump un-dos

ESA regulations:  Trump-era changes to the regulations implementing the Endangered Species Act are currently subject to three lawsuits.  The Biden Administration’s Spring 2021 Unified Agenda provides general timeframes for changing them, each of which will go through a notice and comment rulemaking process.

Northern spotted owl critical habitat:  The U. S. Fish and Wildlife Service is proposing to redesignate northern spotted owl critical habitat, restoring protection to all but about 200,000 acres of the 3.4 million acres removed by the Trump Administration.  (That decision is currently under litigation, as is the Biden Administration’s delay in implementing it, as described here).

Tongass old growth:  In addition to its efforts to reapply the Roadless Area Conservation Rule to the Tongass National Forest (discussed here), the Biden Administration has announced it is freezing any remaining old growth timber sales from the Forest and will pivot to investing in other sectors of Southeast Alaska’s economy.

• Law enforcement

Bull trout poaching:  A fourth poacher was convicted of illegally taking threatened bull trout from the Metolius River in the Deschutes National Forest.

Arrowhead theft:  Two men were convicted of unlawfully removing and damaging archeological resources on the Kisatchie National Forest.  The excavation site was designated by the United States government as a known Archeological Site, and the defendants uncovered various Native American artifacts, including arrowheads and some chips of Native American tools or utensils.

Maple tree theft:  A jury convicted Justin Andrew Wilke of conspiracy, theft of public property, depredation of public property, trafficking in unlawfully harvested timber, and attempting to traffic in unlawfully harvested timber from an illegal maple logging operation on the Olympic National Forest.  Wilke claimed the wood he sold to a Tumwater mill had been harvested from private property with a valid permit.  However, at trial, Richard Cronn, Phd., a Research Geneticist for the USDA Forest Service, testified that the wood Wilke sold was a genetic match to the remains of three poached maple trees investigators had discovered in the Elk Lake area. This was the first use of tree DNA evidence in a federal criminal trial.   (For Sharon!)

Off-road drivers:  Off-road drivers are damaging the Bankhead National Forest, and officials say they are struggling to stop the activity.  The Forest Service estimated only about 3% of the illegal riders are ever caught. He said it is usually a group of riders and they usually have lookouts with walkie-talkie radios to warn the drivers. In the rare event they are caught, the drivers face up to $5,000 in fines, six months in the county jail and a federal court appearance.