It’s been remarkably quiet on the litigation front for the Forest Service, apparently going almost a month without a new case or a court court decision (and we haven’t seen a Forest Service litigation summary since July 8). But here’s some things that involve other agencies or might affect national forests.
Court decision in Center for Biological Diversity v. Little (D. Idaho)
Plaintiffs contend that Idaho’s gray wolf trapping and snaring laws and regulations are reasonably certain to cause the unlawful “take” of grizzly bears and Canada lynx in violation of Section 9 of the Endangered Species Act. On August 22, the district court denied plaintiffs’ petition for a temporary restraining order because the evidence presented of past incidents occurring does not show that these new regulations are likely to cause future harm.
Notice of intent to sue.
On August 23, The Center for Biological Diversity notified the U.S. Fish and Wildlife Service that it intends to sue over the agency’s failure to develop a national wolf recovery plan as required by the Endangered Species Act. The planned lawsuit would seek to require the Service to draft a recovery plan that includes all populations of wolves in the contiguous United States. The news release includes a link to the notice. More information may be found here.
New case: (D. D.C.)
When we last heard about the proposed Twin Metals copper mine near the Boundary Waters Wilderness in the Superior National Forest, the Biden Administration had cancelled the necessary leases, and is considering a 20-year withdrawal from mineral entry. On August 22, the company filed a lawsuit against the Department of the Interior to void the lease cancellation.
Court decision in Price v. Garland (D.C. Cir.)
On August 23, the circuit court reversed a district court opinion (discussed here) that barred the National Park Service from requiring a permit for commercial film-making in national parks because “a filmmaker does not seek to communicate with others at the location in which he or she films, (so) the filmmaker does not use the location as a ‘forum’.” This article supports the dissenting opinion in the case.
New case: (D. Utah)
On August 24, the State of Utah filed a new lawsuit against President Biden’s actions to enlarge the boundaries of the Bears Ears and Grand Staircase-Escalante National Monuments. The complaint argues that the size of the monuments violates the Antiquities Act, and the state seeks instead a “congressional solution.”
Court decision in Baker Ranches v. Zinke (D. Nevada)
Plaintiffs bring claims for rights-of-way or easements within Great Basin National Park to service its irrigation structures found within the Park. The lands in question had until 2016 been part of the Humboldt-Toiyabe National Forest, and improvements were then under a special use permit. The Park was requiring a new permit, and associated environmental review, before allowing repair or maintenance activities. On September 1, the district court held that the claim of equitable estoppel could proceed to trial because there was some evidence that plaintiffs detrimentally relied on the Park’s prior allowance of its use of park lands to maintain and repair its irrigation pipelines. The court rejected all claims of any ownership rights by plaintiffs or any interference with use of the water by the Park.
On September 6, the federal government announced it had prevailed in a trespass suit against a ranch that had violated the terms of its permit (some related to illegally trapping a Mexican wolf while under a prior permit), and failed to remove the cattle from the Gila National Forest when ordered to do so. In its decision, the court determined that the ranch did not own a surface grazing estate on the allotment and that any alleged water rights on the allotment did not give them a right to graze livestock on the allotment.
New case: South Carolina Coastal Conservation League v. U. S. Army Corps of Engineers (D. S.C.)
On August 18, three environmental advocacy groups in South Carolina filed a lawsuit challenging a permit to fill wetlands for a proposed 9,000-acre community adjacent to the Francis Marion National Forest. They are primarily challenging the U. S. Army Corps of Engineers for issuing a Clean Water Act permit, but the U. S. Fish and Wildlife Service is also a defendant. The complaint alleges that Endangered Species Act consultation on the threatened red-cockaded woodpecker failed to consider the adverse effects on the woodpeckers found on the national forest resulting from the reduced ability to conduct prescribed burning due to the adjacent housing. The complaint is linked to the above article, and more information may be found here. (I found no indication on the Forest Service website that they have participated in this process, but this situation was discussed here in relation to a 2014 lawsuit involving other parties.)
New case: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Idaho)
On August 25, the Center and Idaho Conservation League brought this action against the Fish and Wildlife Service’s and U.S. Army Corps of Engineers’ authorization of the Idaho-Club Lakeside Marina Development project at the mouth of Trestle Creek on Lake Pend Oreille. The creek is considered one of the most important spawning streams for federally protected bull trout in the Pacific Northwest, and for the Idaho Panhandle National Forest (the Forest is not mentioned in the complaint, and there is no indication on the Forest Service website that the agency has been involved). The complaint alleges violations of ESA and NEPA. The news release above includes a link to the complaint, and more information may be found here.
INSTEAD OF LITIGATION, WHY NOT GO TO CONGRESS?
The litigation against the Trump Administration’s changes to the CEQ NEPA regulations apparently continues even though the Biden Administration has issued some new ones. That may, in part, be because of the possibility the Trump regulations could be reinstated pursuant to the Congressional Review Act. On August 4, the U. S. Senate voted to overturn the Biden Administration’s undoing those changes. However, while the CRA allows Congress to reverse a recently finalized rule by simple majority vote, this measure faces an uphill battle in the House, and, if necessary, Biden would veto it.
Rio Arriba County in New Mexico has called for a congressional hearing to investigate the revised Carson National Forest Land Management Plan, citing alleged violations of NEPA and Title VI of the Civil Rights Act. In an August 4 letter to Southwestern Regional Forester Michiko Martin and U.S. Senator Ben Ray Luján, Rio Arriba County Manager Lucía Sánchez and County Commission Chair James Martinez wrote that Martin failed to respond to and resolve county official’s objections during the process of revising the land management plan. The objections included concerns about fire risk and grazing reductions. The plan was released in July.
IN OTHER PLANNING NEWS
The Forest Service says it is restarting the forest plan revision process yet again for the Wallowa-Whitman, Umatilla and Malheur national forests. The Forest Service announced on Friday, Aug. 5 that the agency is putting together a team of agency employees to write draft separate management plans for each of the three national forests. We’ve discussed their revision process previously here
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