NFS Litigation Weekly June 10, 2022

Maybe the Forest Service weekly summaries are quarterly now – the last one we received was dated March 11.

Here is the summary:  “Nothing to Report.”



We have had several discussions of the “villainous” behavior of oil and gas companies.  The harm caused by their role in climate change misinformation is being litigated in a number of lawsuits across the country.  The defendants have initially hung them up for as long as five years arguing against hearing the cases in state and local courts.  If companies can keep the lawsuits in federal courts, they’re more likely to be dismissed under federal laws such as the Clean Air Act.  On February 28, a Hawaii court became the first to decide that state courts are the appropriate venue.

That long-fought battle over the appropriate venue is evidence of the lengths companies will go to in throwing up hurdles before trial, Lewis & Clark Law School professor Lisa Benjamin said.

“The disclosure of deceptive information and misinformation will be one of the most reputational damaging parts of this litigation, even if the cases themselves are not successful, so I think companies will be very sensitive to that,” Benjamin said.

Another case filed by the city of Baltimore is currently in federal court to determine which court it should be in.

A federal district court issued an order on May 17 requiring a private ranch to allow the public and the government to use Teaters Road to access the BLM North Fork Crooked River area and the Ochoco National Forest while litigation is ongoing.

Cascadia Wildlands v. Adcock (D. Or.)

On May 25, Cascadia Wildlands and Oregon Wild challenged the Bureau of Land Management’s Siuslaw Field Office’s plan to log public lands across seven watersheds in Oregon in the agency’s “N126 Late Successional Reserve Landscape Plan Project” without completing an environmental impact statement.  The plan is designed to generate 380 million board feet of lumber.  Logging of over 16,000 acres of Late-Successional Reserves and Riparian Reserves is also alleged to be inconsistent with the applicable resource management plan and therefore a violation of the Federal Land Policy and Management Act.  (The news release includes a link to the complaint.)

  • Sierra fishers

Unite the Parks v. U. S. Forest Service (E.D. Cal.)

In late May, the district court again denied a request by conservation groups to stop 31 logging projects in Pacific fisher habitat on the Sierra and Sequoia national forests after the Forest Service completed further review on remand from the Ninth Circuit (which was discussed here).

The Idaho Conservation League and Greater Yellowstone Coalition filed a lawsuit in a U.S. district court in early June to stop Excellon Idaho Gold’s Kilgore Gold Exploration Project in the Caribou-Targhee National Forest west of Yellowstone National Park.  The Forest Service had produced a new plan after losing a lawsuit in 2018.  Plaintiffs allege violations of the Forest Service Organic Act and NEPA, where the Forest Service used the Trump administration’s 2020 rewrite of the CEQ regulations and did not prepare an EIS.

The U. S. Supreme Court announced June 6 it would hear Wilkins v. United States, a case regarding the Quiet Title Act, next term.  The plaintiffs in the case claim that the Forest Service exceeded the scope of a previously agreed upon easement by providing public access across their properties to the Bitterroot National Forest.  The Supreme Court will decide whether a statute of limitations precludes a court from considering such claims.  The Ninth Circuit opinion is here.

On June 7, the U. S. Fish and Wildlife Service proposed a change in its rule governing the reintroduction of listed species.  (The article includes a link to the proposed rule.)

“To provide for the conservation of certain species, we have concluded that it may be increasingly necessary and appropriate to establish experimental populations outside of their historical range if the ability of the habitat to support one or more life history stages has been reduced due to threats, such as climate change or invasive species.”

Center for Biological Diversity v. Williams (E.D. Ill.)

On June 8, The Center for Biological Diversity and Hoosier Environmental Council sued the U.S. Fish and Wildlife Service for denying Endangered Species Act protections to the Kirtland’s snake.  It is found in forested riparian areas in Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio and Tennessee (and has been extirpated in Wisconsin and Pennsylvania, as well as over half the counties where they were once found).  (The press release has a link to the complaint.)

Almond Alliance of California v. Fish and Game Commission 

On May 31, reporters were handed a gift by a California court:

Is a bee a fish? California court says it could be

California Court Rules that Bees are a Type of Fish

When Is a Bumblebee a Fish? When a California Court Says So

“If it looks like a duck, walks like a duck and quacks like a duck, it’s probably a duck. But a new California court ruling means that if it looks like a bee, flies like a bee and buzzes like a bee — it’s a fish.”

California’s Third Appellate District Court of Appeal ruled that bees could be protected under a state law to protect endangered species because bees meet the state’s legal definition of fish.”

Read on for a lesson in how a court interprets laws and regulations.

2 thoughts on “NFS Litigation Weekly June 10, 2022”

  1. At this stage in their proceedings, the Ochoco and Bitterroot cases turn on the same legal question the Supreme Court has agreed to decide: Is the Quiet Title Act’s 12-year statute-of-limitations jurisdictional? Although of little consequence to most, it is a big deal to private property owners fighting government easements across their property.

    The Prineville case involves tire magnate Les Schwab’s granddaughter who wants to block public access along a BLM road that crosses her private ranch. With the family’s $3 billion net worth, she’s got the deep pockets necessary to fight the world’s largest law firm. The magistrate judge recommended dismissing her case on jurisdictional grounds, i.e., precisely the issue the Supreme Court has agreed to review in the Bitterroot case. My crystal ball says she’s going to get her day in court.

    Whether she succeeds in blocking long-standing public use of BLM’s road across her ranch is another matter. The local BLM’s back-and-forth on the issue, which likely reflects the oversized political influence the Les Schwab family enjoys, has not helped the government’s case.


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