What Are Your Top Ten Famous/Infamous Court Decisions Affecting FS and BLM?

Professor Kass asks a fascinating question below. I’m sure other TSW readers, including me,  would be interested.  There are two options.. put your thoughts in the comments below, or email me and I can put each list as a separate post.  Of course, you can just email Professor Cass, but we’d miss your thoughts and the discussion?


Dear Smokey Wire Readers,

I am looking to develop a list of the most famous/infamous federal court decisions impacting federal lands, specifically the Forest Service and BLM. Today’s post noted the impact of Robbins Gulch Road litigation in passage of the National Forest Management Act. If you have thoughts on federal cases that have had similarly significant impacts — for good or for bad — I would be very interested in hearing your views. I can be reached directly at [email protected].

I look forward to your thoughtful and enlightening responses! What cases would be on your top 10 list?

20 thoughts on “What Are Your Top Ten Famous/Infamous Court Decisions Affecting FS and BLM?”

  1. Oh this is fun! Here are my three but I look forward to other responses.


    o The case that produced NFMA.


    o The case that eviscerated challenges to programmatic litigation


    o The case that severely curtailed plan-level litigation.

    Make no mistake – I dislike 2 of these 3 decisions (readers can guess which). But these three decisions sent the river of land management litigation into a different channel.

    I would probably add the NWFP cases, which were most directly relevant to my work, but I think the above linked cases may have had greater long term impact.

    • As a person late to the legal end of the forest space, I have never understood what Ohio Forestry says about legal challenges to plans..
      “Review now would require timeconsuming consideration of the details of an elaborate, technically based Plan, which predicts consequences that may affect many different parcels of land in a variety of ways, and which effects themselves may change over time. That review would have to take place without benefit of the focus that particular logging proposals could provide. And, depending upon the agency’s future actions to revise the Plan or modify the expected implementation methods, review now may turn out to have been unnecessary.”
      Which seems commonsensical.. and yet we see many plans litigated. Perhaps someone can explain how all this worked out.

      • Plans are typically litigated in conjunction with a project, as suggested by the Ohio Forestry decision. I think that decision is only relevant for parts of a plan that are similar to the timber sale requirements challenged in Ohio Forestry (which require project information). I don’t think that decision necessarily applies to plan components used to meet the NFMA forest-wide diversity requirement. I think that is still TBD.

        • Exactly. The Supremes’ theory in Ohio Forestry was that a plan by itself does not provide enough facts for the court to adjudicate the dispute (thus, the case was not “ripe” for decision). The Court gave an example of how a plan could be challenged directly – I believe the example involved designated a road as closed (or open) to motorized travel. In that case, the agency would have no further decision to make (there is no “project” for allowing OHVs on a particular road). This may be why the Forest Service now makes such decisions in a separate Travel Management Plan (although I’m just guessing on that).

          • So I do think Plans (which don’t make final decisions, or do they) should not be litigatable under NFMA.. that’s where I get lost, because people do litigate them

              • Logically. if planning is not something that impacts the environment without an intermediary step, then it wouldn’t have an impact on species without an intermediary step?

                • In the case of NEPA, as Jon points out, the Ohio Forestry court specifically stated that those cases can be litigated as soon as the plan is approved. The idea is that NEPA is a procedural law, and the agency will have followed (or violated) NEPA upon approving the plan. No subsequent set of facts could possibly be relevant, so there is no reason for the courts to wait.

                  These cases generally focus on the adequacy of the EA/EIS, not the provisions of the plan itself.

                  • I ran across this law review article from 2000 by Gregory https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3205&context=cklawreview. I

                    “The lawsuit raised the question of whether planning regulations rather than site-specific actions were suitable for review by the Court.
                    The issue had arisen in several courts, resulting in a split over whether or not these Forest Plans were justiciable at the planning stage. 6 In a
                    unanimous decision, the Supreme Court held that they were not justiciable, agreeing with the Eighth and Eleventh Circuits that without site-specific, on-the-ground activities the Forest Plans were not ripe for judicial review.”

                    So the NEPA for the plan (the process of developing it) is justiciable, but the plan itself is not?

                    • I try not to oversell what SCOTUS did in Ohio Forestry. Procedural claims are ripe, but claims that require a project in order to evaluate are not (at least until that project comes along). Because the NFMA planning process is a *process*, claims involving whether a plan complies with the 2012 planning rule – which do not require a project to evaluate – should also be ripe.

                    • These are very good points (as were Jon’s earlier regarding OHVs &c.). I might argue that the mere fact this case has generated this many comments is evidence that the Supremes might have done us all a favor by issuing a less murky opinion.

                    • Ha.. I see it as evidence that the discussion and decision, when lifted out of the hurly-burly of the disagreements that this community (legal and practitioners) deals with, became so abstract that they were unable to do anything less murky. Maybe the murky problems is really NFMA (1976), its ideas about rational planning, and its sometimes impenetrable regulations. But maybe the best place to resolve these disputes is not actually the courtroom?

                    • Where were you running when you ran across a law review article? I see this “murk” as an example of what can happen when a court decides to say something about issues that are not before it that it knows nothing about – i.e. whether other forest planning procedures or decisions would be justiciable.

          • The Ohio Forestry Court did not decide the OHV issue. Plaintiffs argued this: At the same time, in areas designated for logging, “affirmative measures to promote undisturbed back country recreation, such as closing roads and building additional hiking trails,” will not take place. However, the court dismissed this claim for failure to raise it earlier in the case.

            The Forest Service had conceded that closing an area to off-road vehicles (as opposed to failure to close roads, argued by plaintiffs) would have immediate effects. The Court then speculated about “allowing motorcycles into a bird-watching area or something [like that],” (which is another different issue), saying such a decision would be ripe. So it has no precedential value (as well as being really muddled).

            I think this kind legal thinking by the Forest Service predated this case, but certainly after this case they have consistently tried to keep these kinds of decisions out of forest plans. 36 CFR §219.2(b)(2) says “a plan does not regulate uses by the public.”

  2. My list focuses on cases that changed public land management practices on the ground. In doing so, I pass over several consequential cases that are process or rules-of-the-court oriented, such as Ohio Forestry and SUWA, mentioned above. Not that these aren’t important decisions, but their sweep is broader than public land policy, which just happened to be the vehicle used by the Supreme Court in these cases to make the courthouse door narrower. Of course, Monongahela would make my list, but it’s already taken. The order below is arbitrary.

    1) Citizens against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908 (D. Ore. 1977). This case and its progeny all but ended aerial herbicide spraying, putting a wrench in industrial-style timbering of federal land.

    2) Seattle Audubon Soc. v. Evans, 771 F. Supp. 1081 (W.D. Wash. 1991). “The argument that the mightiest economy on earth cannot afford to preserve old growth forests for a short time, while it reaches an overdue decision on how to manage them, is not convincing today. It would be even less so a year or a century from now.” Need I say more?

    3) California v. Block, 690 F.2d 753 (9th Cir. 1982). Tossed the RARE II environmental impact statement precipitating a political crisis that galvanized Congress to enact state-wide wilderness bills in many western states.

    4) National Wildlife Federation v. United States Forest Service, 592 F. Supp. 931 (D. Ore. 1984). Largest injunction against federal land logging at the time, proving to green groups that the Timber Industry/Government complex could be defeated through science-based litigation.

    5) Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988). Reversed FWS’s political decision to deny spotted owl T&E listing. This and its critical habitat companion case wrote the playbook followed by Center for Biological Diversity in its scorched-earth litigation campaign against FWS.

  3. This is a great request! As a professor of Forest Law and Policy myself, I’m also particularly interested in these cases (so far, all of them show up on my syllabus). Please keep them coming and share with TSW in addition to Prof. Kass!

  4. Tongass national forest litigation deserves a special call-out. Here are my top two Tongass cases and one honorable mention:

    1) Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985). The Forest Service thought that the Alaska Lands Act’s RARE II EIS “sufficiency language” gave it carte blanche to log the Tongass with impunity. Not so, said the Ninth Circuit, in what would be the beginning of a 35-year Timber War that has all but ended Tongass timbering.

    2) SE Alaska Conservation Council v. United States Forest Serv., 443 F. Supp. 3d 995 (D. Alaska 2020): This case is the last whimper in the 35-year Tongass Timber War and the first court decision to reject condition-based NEPA analysis.

    Honorable mention goes to Alaska Pulp Corp. v. United States, 59 Fed. Cl. 400 (U.S. Claims 2004). DOJ attorneys defended the U.S. against a shuttered pulp mill’s claims that the Forest Service owed the mill up to $8.7 billion for breach-of-contract associated its 50-year timber deal. DOJ lawyers built a compelling case of a failed company summarized by the Court: “[B]y the time the contract was breached, APC’s longstanding agreement with the Forest Service was a losing contract. The market for its primary product, rayon-grade dissolving pulp, had diminished. Although the company had survived down markets over the years, its current problems were the result of market trends and other adverse circumstances that it determined would not improve in the 20 or so years remaining on its contract.” Final result: “Plaintiff is entitled to no damages for the Government’s breach of contract.”


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