Public lands litigation – early September, 2022

As the weather cools down, things have heated up in court for the Forest Service.

New case:  Kentucky Heartwood v. U. S. Forest Service (E.D. Ky.)

On September 7, plaintiff conservation group sued the Daniel Boone National Forest over the South Redbird Wildlife Habitat Improvement Project, allegedly the largest timber project on the Forest in nearly 20 years.  Issues include the proper identification of old growth (which is allegedly being logged), the effects of landslides on aquatic species listed under ESA and loss of habitat for endangered bats.  (The news release includes a link to the complaint.  And a storymap!)

New case:  Berlaimont Estates v. U. S. Forest Service (D. Colo.)

On September 7, the developers behind the 19-home Berlaimont Estates development within the White River National Forest sued the Forest Service for failing to make a decision to approve a road on federal land to reach their planned 680-acre mountaintop community.  Plaintiffs have objected to the alternative proposed by the Forest Service, arguing the route violated their right to “adequate access” for “reasonable use” under ANILCA, and they may sue again if that becomes the final decision.  We’ve talked about this a couple of times, here and here.

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

On September 8, the Center for Biological Diversity, Living Rivers, Sierra Club, and Utah Physicians for a Healthy Environment petitioned the circuit court (having exclusive jurisdiction by statute) to review the U.S. Forest Service’s Record of Decision, issued July 14, 2022, authorizing, inter alia, the granting of a special use permit in response to a request for a right-of-way on National Forest System lands on the Ashley National Forest for the construction, operation, and maintenance of Uinta Basin Railway.  Plaintiffs allege that the proposed railway will spur increased oil production in the Uinta Basin, and that the climate impacts were not considered in the EIS prepared by the Surface Transportation Board.  The lawsuit also challenges the Forest Service’s failure to protect rare plants protected by the Endangered Species Act. Twelve miles of the railway would run through the Ashley National Forest on public lands protected by the Roadless Area Conservation Rule.  (The news release includes a link to the complaint.)

Court decision in Solenex v. Haaland (D. D.C.)

On September 9, the district court decided a case filed in 2013 in favor of a company with a 1982 oil and gas lease on a part of the Lewis and Clark National Forest that is south of Glacier National Park, and is considered sacred to Native Americans.  (All other leases in the area have been voluntarily relinquished.)  The lease was cancelled by the Department of the Interior in 2016 and this was upheld by the D. C. Circuit, but on remand the plaintiffs amended their complaint, and the district court agreed with them that the lease was properly issued and not subject to cancellation.  The article includes a link to the opinion, and the prior circuit court decision was noted here.

New case:  Western Watersheds Project v. Moore (D. Mont.)

On September 12, nine conservation organizations filed suit over the East Paradise grazing decision, which expanded livestock grazing in grizzly bear habitat on the Custer-Gallatin National Forest near Yellowstone National Park. The decision increases acreages and allows cattle to graze a month earlier than normal, allegedly increasing human-bear conflicts. The suit also names the U.S. Fish and Wildlife Service as a defendant for using out-of-date scientific information and failing to adequately consider the impacts of the grazing decision on grizzly bears.  The news release includes a link to the complaint, and this article includes maps.

New case:  Center for Biological Diversity v. Moore (D. Ariz.)

On September 13, the Center for Biological Diversity, Maricopa Audubon Society and Mount Graham Coalition sued the Forest Service and Fish and Wildlife Service for violating the Endangered Species Act when approving special use permits for an organizational camp (expired permit) and recreational cabins (2015 permit) on the Coronado National Forest in the only habitat for the endangered Mt. Graham red squirrel.  In the summer of 2017, the Frye Fire killed between 61-78% of the remaining red squirrel population and decimated a significant portion of its remaining habitat.  Consultation on both permits was completed in 2021.  The news release has a link to the complaint.

New case:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (N.D. Cal.)

On September 13, the Center for Biological Diversity, Environmental Protection Information Center and Klamath-Siskiyou Wildlands Center sued the Fish and Wildlife Service for denying Endangered Species Act protections for fisher populations in southern Oregon and northern California when it listed other populations in the southern Sierra Nevada as threatened in 2020.  The challenge is based on plaintiffs’ interpretation of the best available science, and largely related to threats from logging and fire.  (The article has a link to the complaint.)

Recently enacted Idaho water rights forfeiture laws create a state process where ranchers can potentially gain control of federal water rights already decided by a court. Ranchers have started using that process, and the Idaho Department of Water Resources this year, at the request of ranchers, initiated multiple actions against water rights claimed by the federal government based on those water rights not being put to beneficial use.

A lawsuit filed in June against Idaho and the Idaho Department of Water Resources by the U.S. Department of Justice contends that it does put the water to a beneficial use because it issues grazing permits to ranchers who in turn graze livestock that drink the water.  The federal government also argues that the state’s forfeiture procedure violates the U.S. Constitution’s supremacy clause, which states that federal law takes precedence over state law. The Justice Department also says the laws violate parts of the Idaho Constitution.  In a case with statewide ramifications for millions of acres of land in Idaho administered by the Forest Service and Bureau of Land Management, and their associated instream water rights, the Idaho legislature was granted intervention on September 15.

The Oregon Supreme Court has declined to hear an appeal from 13 counties in a long-running $1 billion lawsuit over timber revenue and what constitutes “the greatest permanent value” when it comes to state forest management.  The decision leaves in place a lower court ruling saying that Oregon can manage forests for a range of values that include recreation, water quality and wildlife habitat — not just logging revenue.  The Oregon Department of Justice, which represented the state government in the case called the Supreme Court’s decision a “victory for Oregon’s environment and for sound forest management in general.”

A lawsuit filed on September 8 in Sacramento County Superior Court on behalf of a family whose home was destroyed by the (aptly named) Mill Fire alleges that the Roseburg Forest Products mill in Weed failed to properly handle hot ash, which ignited a fire that burned 4,000 acres, killed two people and burned dozens of homes.


On September 14, the U. S. Fish and Wildlife Service proposed to list the tricolored bat as endangered, primarily due to the range-wide impacts of white-noise syndrome, caused by a deadly fungus affecting cave-dwelling bats across the continent.  Other threats include disturbance to bats in their roosting, foraging, commuting and wintering habitats and mortality at wind energy facilities. With regard to forests, the proposed rule said:

“While temporary or permanent suitable forested habitat loss may occur throughout the species’ range, impacts to tricolored bat typically occur at a more local scale (i.e., individuals and potentially colonies), and summer forested habitat continues to be widely available across the species’ range. Based on this information, forested habitat loss is not a major driver of the species’ status, and suitable forest habitat is not limiting for tricolored bat now nor is it likely to be limiting in the future. Therefore, we conclude that designating the forest habitat of the tricolored bat as critical habitat is not prudent.”

However, effects on the species would need to be consulted on for projects in bat habitat.  The tricolored bat is found east of the Rocky Mountains in 39 U.S. states and the District of Columbia.  This article provides more background and a link to the FWS announcement.


2 thoughts on “Public lands litigation – early September, 2022”

  1. Interesting news about the Berlaimont Estates issue. I just drove the 4×4 road they are considering improving to turn into the access road this past weekend. I was in the area and thought it would be interesting to explore and see what’s up there. The whole time I was driving the roads up there I was thinking how in the world are they going to turn this into a two lane paved road? A lot of it was a narrow shelf road that you’d have to blast away half the hillside to widen. Some of the roads up there were so overgrown they were barely there. It was a fun though very obscure 4×4 trail, but I can’t imagine trying to build a paved road there. I rather hope this whole development falls through, since it would completely ruin the character of the area.


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