Public Lands Litigation Update – through February 15, 2023

Now that we are no longer receiving the Forest Service’s updates, my goal is to provide a summary of relevant lawsuits twice a month.  (Did you know that “bi-monthy” can mean either twice a month or every other month?  That’s pretty useless.)  I’ll try to include a link to the court document in or via the header when I’ve got that.

My sources of information are pretty hit-or-miss, so some of them may be a little late.  Still, if it looks like I missed something you think should be included, let me know about it.  (There’s one of those included here – thanks!)

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

This court had (for the second time) previously granted summary judgment on Plaintiff’s challenge to a travel planning decision in 2017 allowing motorized use of the Fish Lake Trail trail in a Recommended Wilderness Area on the Clearwater National Forest, finding violations of elk habitat standards in the forest plan, and “minimization” requirements of the Travel Management Rule.  On December 1, the court vacated the exception in the travel plan for that particular trail, meaning that the trail would no longer be designated as open to motorized use, and therefore such use would be prohibited.  The court found “no reasonable justification” for the more than seven-year failure to comply with the first remand order in 2015, in particular with no end in sight for completing the revised forest plan.  It established a June 1, 2024 deadline for completing the remand and it required interim reporting to the court.

  • Oil and gas leasing delays

Intervention:  State of Wyoming v. U. S. Department of Interior (D. Wyo.).

In December, Wyoming and two industry trade groups challenged the Bureau of Land Management’s decision to not hold lease sales during parts of 2021 and 2022.  Plaintiffs claim the agency has an “unwritten policy” pausing leasing and want the court to order the Department of the Interior (DOI) and the BLM to hold lease sales every three months across the west.  On February 9, 17 conservation organizations were granted intervention (per the motion attached to this news release).  An earlier case in Wyoming held that the federal government has broad authority to postpone sales to address environmental concerns (see Western Energy Alliance v. Biden (D. Wyo.)).

Intervenor briefing in State of North Dakota v. U. S. Department of Interior (D. N.D.)

In January, North Dakota also sued the BLM for postponing oil and gas leases and not issuing them every three months, mimicking the Wyoming lawsuit and its own similar lawsuit in 2021.  This press release includes a link to a brief filed by conservation group intervenors on February 9.

Court decision:  Dine´ Citizens Against Ruining Our Environment v. Haaland (10th Cir.)

On February 1, the circuit court ruled on the adequacy of an “EA Addendum,” prepared after a previous loss in district court, and 81 individual Environmental Assessments.  The circuit court held that the BLM again violated NEPA by failing to account for the impacts – including health effects – of toxic air pollution from oil and gas drilling and fracking, and the impacts of added carbon pollution to the climate.  The court also ordered a halt to new drilling permits.  (The article linked above includes a link to the decision.)

The district court had upheld the decision, and this reversal by the 10th Circuit is the first time it has ruled in favor of citizen groups on these issues.  This article explains the reasoning:  

Arguably the most noteworthy element of the ruling was that the BLM could, and indeed should have compared the volume of greenhouse gasses emitted by permitted wells to the levels budgeted by the Intergovernmental Panel on Climate Change. 

On appeal, the BLM had claimed that “incremental contribution to global (greenhouse gasses) from a proposed land management action cannot be accurately translated into effects on climate change globally or in the area of any site-specific action.”

“(The BLM) is not free to omit the analysis of environmental effects entirely when an accepted methodology exists to quantify the impact of GHG emissions from the approved (Applications for Permits to Drill),” the court ruled.

The court did not see this preapproval as an unlawful predetermination, given the BLM’s willingness to revoke permits if the wells were found to violate the final environmental analysis.

Partial court decision in Center for Biological Diversity v. Haaland (D. Minn.)

On February 1, in the latest iteration of this case, the district court dismissed parts of a claim that the U. S. Fish and Wildlife Service and Army Corps of Engineers should have reinitiated consultation on the land exchange that removed the site from the Superior National Forest, and on a Clean Water Act permit.  It allowed the case to proceed with this claim, but limited it to determining if reinitiation was necessary to address the recent decline in the northern long-eared bat population, and alleged changes in the mine proposal.  (There are also additional claims remaining in this case.)

New lawsuit:  Wilderness Watch v. Halter (D. Minn.)

On February 3, Wilderness Watch sued the Forest Service for failing to implement a 2015 settlement agreement where it agreed to study and correct excessive motorized towboat use to shuttle canoes farther into the Superior National Forest wilderness.  (The article includes a link to the complaint.)

Court decision in Bartell Ranch v. McCullough (D. Nev.)

On February 6, the district court held that the BLM complied with NEPA for the Thacker Pass mine, and met its tribal consultation obligations, but violated FLPMA as it relates to the approximately 1300 acres of land that Lithium Nevada intends to bury under waste rock because BLM did not first make a mining rights validity determination as to those lands.  The court did not vacate the decision while BLM makes this determination.  (A link to the opinion is provided at the end of the article.)  We most recently discussed this case here.

On February 7, the Center for Biological Diversity filed a notice of intent to sue the Fish and Wildlife Service for unlawfully delaying final listing decisions for species it had proposed for listing:  Peñasco least chipmunks, Mt. Rainier white-tailed ptarmigans, South Llano Springs moss, bog buck moths, cactus ferruginous pygmy owls, tall western penstemons, four distinct populations of foothill yellow-legged frogs, and eight freshwater mussels. The notice also opposes the delay in finalizing critical habitat protection for Humboldt martens.   The marten was discussed here, and the yellow-legged frogs here.  More on the pyramid pigtoe is here.

The Penasco least chipmunk was proposed for listing as endangered in 2021 with proposed critical habitat.  The chipmunk is native to the Sacramento and White Mountains in south-central New Mexico in and around the Lincoln National Forest, but remains only in the White Mountains, with about half of the habitat in a wilderness area.  In its listing proposal, the Fish and Wildlife Service said it was especially threatened by recreational activities in the area, and livestock grazing is also implicated.

New lawsuit:  Center for Biological Diversity v. Haaland (D. Fla.)

On February 8, the National Park Service was sued for failing to prepare an EIS or to consult with the Fish and Wildlife Service before removing land-use restrictions to allow construction of Miami Wilds waterpark, hotel, and retail development, where 17 threatened or endangered species may occur, including some critical habitat.  Miami-Dade County received these lands in the 1970s and 1980s from the U.S. Department of the Interior and NPS through conveyances that required the county to use and maintain the land for public park or public recreational purposes, along with other terms, covenants, and restrictions.  The NPS decision at issue, an agreement with Dade County, would transfer those restriction to lands outside of this project area.  (The article has a link to the complaint.)

The Minnesota Court of Appeals has ruled that construction of a new wood products plant requires preparation of an EIS and reconsideration of effects on two public wetlands.   The Leech Lake Band of Ojibwe challenged the decision by the Cohasset City Council because of perceived threats to wild rice in Blackwater Lake and two eagle nests, and an imperiled fern — called the goblin fern — in its Chippewa National Forest old-growth habitat.  (The Forest Service was apparently not a party to the lawsuit.)

We have previously discussed the use of southern forests to produce wood pellets for energy generation.  Last fall, a Georgia judge allowed a case to proceed with claims that the permit for the Spectrum Energy pellet mill in Adel, GA violated the Civil Rights Act because the Georgia Environmental Protection Division discriminated against minority residents of a small town by approving an air pollution permit for manufacturing wood pellets.

The BLM is offering a $2,000 reward for information leading to a conviction of anyone responsible for graffiti vandalizing the Moccasin Mountain Dinosaur Tracksite located southwest of Kanab.


13 thoughts on “Public Lands Litigation Update – through February 15, 2023”

  1. That Fish Lake trail case confuses me. The Forest Service can draw management area boundaries however it likes. If it wanted to keep that trail open, why didn’t it just cherry stem that out of the recommended wilderness area and elk management area in the forest plan to begin with? All of this litigation could have been avoided if it hadn’t included a valuable motorized route in a recommended wilderness area in the first place.

    I also almost guarantee motorized groups protested that and pointed out the management problems that would cause back when the forest plan was written and the forest ignored them. We’re trying to head off a similar management disaster with the GMUG NF forest plan revision, which in the last draft put most of its most popular motorized trails in non-motorized ROS zones. It’s like the forest service planning staff never even bother to do a basic sanity check on these things to avoid nonsensical and contradictory management prescriptions.

    • if the Plan puts motorized trails in non-motorized zones, then does it need to do another travel management plan to close them? To me it’s not clear exactly what the ROS will do in terms of existing uses.. without a later decision of some kind. And then what if that decision says “keep em open”, would there be a plan amendment to change the ROS?

      • That’s exactly what we’re wondering. During public meetings forest employees said they don’t actually intend to close those roads or make any changes to the travel plan. But the last draft plan did not include any language protecting existing motorized routes in non-motorized zones. We’ve already seen non-motorized groups force the Forest Service to redo its travel plan and close roads in designated non-motorized areas in the Pike San Isabel NF. We’re worried that the same thing will happen in the GMUG unless they either fix their maps or include language explicitly protecting existing motorized routes in non-motorized zones.

        • “During public meetings forest employees said they don’t actually intend to close those roads or make any changes to the travel plan.” It sounds like that would violate NFMA (see response to Sharon).

          • Sorry I wasn’t clear. What they actually said was that they didn’t intend putting roads in non-motorized areas to result in the closure of existing roads, but that the ROS zones were meant to only apply to future road/trail construction. But of course there was nothing in the actual language of the draft forest plan saying that, which is why we were concerned about it. Absent explicit language grandfathering existing designated routes, putting them in non-motorized ROS zones likely would require their closure whether the FS intended that or not. This issue actually received some media coverage which you might find interesting:

            The roads at issue included Black Bear, Imogene, and Ophir Passes, which are some of the most famous 4×4 roads in the state. They’re also all recognized as county roads with joint jurisdiction with the Forest Service, so it’s doubtful the Forest Service even has the authority to close them if it wanted to. The Forest Service claimed it was all a mistake that will be corrected in the final version of the forest plan, but we’ll see. I don’t have a lot of confidence in their ability to not screw this up at this point.

          • This is actually a reply to Patrick about his link but I ran out of nested replies.
            In the corrections part of the article, it says..

            “The Forest Service reached out to clarify that these potential plans will not close existing designated routes, adding that it’s allowable to have a motorized trail in a non-motorized setting.

            I think that confuses me even more…

      • If a forest plan puts motorized trails in non-motorized zones, and that is inconsistent with the existing travel plan, that travel plan would now be inconsistent with the revised forest plan and the travel plan would have to be changed per NFMA in accordance with 36 C.F.R. §219.15(e). (Timeframe not specified, but the Fish Lake Trail case might be relevant, even though it was about the actual closure step.) And a subsequent travel plan could not be approved it is not consistent with the forest plan (the plan would have to be amended to do so).

        I don’t know whether they could close a trail to comply with a forest plan if that closure was inconsistent with the existing travel plan. I would lean towards legally they could (certainly for emergency closures), but their policy would be to not do that.

  2. The existing Clearwater forest plan was completed in 1987 (Reagan Administration, if that matters). It seems possible to me that the Forest did not want to keep the trail open. Maybe it was a less valuable motorized route 35 years ago (maybe there were more alternative routes?), or maybe relevant interest groups were less influential, but you would probably have a better feel for that.

  3. Sharon (quoting): “The Forest Service reached out to clarify that these potential plans will not close existing designated routes, adding that it’s allowable to have a motorized trail in a non-motorized setting.”

    Plans do not close existing routes; true, that requires a project-level closure action. However, they establish an intent to do so. This is from the Planning Handbook (§23.23a): “Although the designation of specific travel routes is not a land management plan decision, ROS provides the framework where specific recreational opportunities, activities and expected experiences are integrated to ensure compatibility with the landscape’s natural and cultural resource values.” The Handbook also refers to ROS as a “desired” condition. That has to mean that the intent is to bring nonconforming uses into consistency with the specified ROS. The Handbook also requires suitability designations in the plan consistent with the ROS, which would make non-motorized ROS categories unsuitable for motorized uses. It would be difficult to force the Forest to take steps to implement this by closing roads, but if they are saying now that they don’t intend to ever implement the plan, a court might not like that.


    Coincidentally, a Fish Lake trail (likely the same one?) came up in this article on the Nez Perce-Clearwater (Idaho) forest plan revision and the Great Burn on the Montana border (some of which is a formal Wilderness Study Area in Montana). With regard to areas closed by the 2012 Travel Plan, the article starts out by saying, “The new plan will likely reopen some areas of the Great Burn to motorized winter use.” It can’t do that. The Forest Service prohibits forest plans from making these kinds of site-specific decisions. It would have to amend the travel plan first, using the NEPA process to consider the effects. Then, I think it would require an “opening order” (and maybe more NEPA, similar to a closure order). I don’t think I’ve ever heard of the latter – maybe they could roll it into a travel plan, but if they can’t do that for closures I don’t see how they could justify it for openers.)

    • I’m pretty sure new travel plans are implemented simply by issuing new MVUMs. At least that’s what the record of decision for the Pike San Isabel travel plan said, that it would take effect when revised MVUMs are issued.


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