NFS Litigation Weekly July 08, 2022

The Forest Service summaries are here:  Litigation Weekly July 08 2022 Email

Individual links are to court documents.

Court decision in Friends of the Clearwater v. Probert (D. Idaho)

On June 24, the district court reversed, remanded and enjoined the End of the World and Hungry Ridge Projects on the Nez Perce-Clearwater National Forest.  An EIS (instead of an EA) will be required for the End of the World Project and both projects failed to employ the forest plan’s definition of old growth or to properly analyze the cumulative effects on old growth.  We discussed that here.  The court did uphold other effects analysis, and the “no effect” determination for grizzly bears under ESA because they were not considered “occupied” by the species, even though bears may be present.

Court decision in Romey v. United States (D. Alaska)

On June 27, the district court granted the Forest Service motion to dismiss this case regarding a special use permit for the Wolf Creek Boatworks on the Tongass National Forest. The court determined that the plaintiffs lack standing because a land exchange had already taken place.

New case:  International Society for the Protection of Mustangs and Burros v. U.S. Department of Agriculture (D. Ariz.)

On June 28, 2022, the plaintiff filed a complaint alleging violation of NEPA (improper use of a categorical exclusion), the Wild Free-Roaming Horses and Burros Act of 1971, and the APA, following a March 21, 2022, notice of a planned capturing and removal of up to 20 feral horses on the Apache Sitgreaves National Forest.

New case:  Center for Biological Diversity v. U.S. Forest Service (D. Mont.)

On June 30, CBD, the Yaak Valley Resource Council and WildEarth Guardians filed a complaint against the Black Ram Project on the Kootenai National Forest.  It alleges NEPA violations related to grizzly bears and climate change and failure to prepare an EIS, and failure to comply with forest plan requirements for wild and scenic rivers and old growth.  We discussed that here.  Plaintiffs also notified the Forest Service and Fish and Wildlife Service of their intent to sue regarding effects on grizzly bears.

Court decision in Center for Biological Diversity v. Haaland and State of California v. Haaland (N.D. Cal.)

On July 5, the district court vacated the 2019 Endangered Species Act rules promulgated by the Trump Administration.  The Blanket Rule Repeal, 84 Fed. Reg. 44,753, eliminated the FWS’s former policy of automatically extending to threatened species the protections against “take” that Section 9 automatically affords to endangered species. And the Interagency Consultation Rule, 84 Fed. Reg. 44,976, changed how the Services work with federal agencies to prevent proposed agency actions that could harm listed species or their critical habitat.


On June 24, 2022, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service published a final rule rescinding the Trump administration’s 2020 final rule defining “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  We previously discussed this here.

The U.S. Department of Agriculture’s Wildlife Services has agreed to settle a lawsuit by completing an extensive environmental study on its methods of predator control in Idaho, and also agreed not to use poison gas cartridges or fire to kill wolf pups in dens in Idaho until the study is finished at the end of 2024.  This extends an existing suspension of predator control in wilderness and other areas to species other than wolves, and precludes Wildlife Services from killing predators to bolster deer and elk populations, pending the environmental analysis.  The Forest Service and BLM were also defendants in this case.

On June 28, the district court found that the proposed logging of the Benson Ridge parcel (a private parcel of land Defendants purchased from the State of Oregon, formerly part of the Elliott State Forest) would harm and harass threatened marbled murrelets, in violation of the federal Endangered Species Act prohibition against incidental take of listed species in the absence of a permit from the listing agency. The court’s ruling permanently enjoins logging of the occupied murrelet habitat.  The news release has a link to the opinion.  (This is the case referred to in Bob Zybach’s comments about attorney fees here.)  In response to a 2016 lawsuit, the Oregon Board of Forestry is in the process of developing rules to protect murrelet sites on state and private timber lands, which could lead to a permit for incidental take.

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