Public Lands Litigation – through February, 2023

State court decision in McGibney v. Missouri Department of Natural Resources (Missouri Court of Appeals)

The Forest Service holds a conservation easement near the Mark Twain National Forest along the Eleven Point River where it has been designated a Scenic River under the National Wild and Scenic Rivers Act.  In a lawsuit by private owners of other property also subject to the easement, the state appeals court reversed a district court opinion, and held that the purchase of the eased property by the DNR was consistent with DNR’s statutory authority to acquire new lands for park purposes, even without public access to the 625 acres subject to the easement.  That is because the public could enjoy views of the river and the eased land from other areas of the park.  (The Forest Service was not a party to this case, but there’s “more United States Forest Service land than any county in the state of Missouri;” additional background on the controversy may be found here.)

New lawsuit:  Wilson v. Booz Allen Hamilton, Inc. (E.D. Va.)

On February 11, a proposed class-action lawsuit was filed in the U.S. District Court for Eastern Virginia, and it asks the court to order Booz Allen Hamilton, Inc., which operates the site providing access to federal lands, to refund to consumers processing, lottery, and cancellation fees.  The main issue is whether these “junk” fees are allowed under the Federal Lands Recreation Enhancement Act (FLREA).

Stay granted in The Fallon Paiute-Shoshone Tribe v. U. S. Department of the Interior (D. Nev.)

On February 14, the district court agreed with the BLM and granted a stay in the litigation because the results of reinitiating ESA consultation on a modified proposal for a geothermal development, reducing its size from 60 MW to 12 MW, would be “essential to Plaintiffs’ claims” related to the newly listed Dixie Valley toad.  (We’ve been following this case, most recently here.)

State court decision

On February 16, the Colorado Court of Appeals upheld a 2019 notice of violation issued by Garfield County against the operator of a gravel pit on BLM land just above the city of Glenwood Springs.  The question was whether the mine operations were under state or county jurisdiction.  The BLM is separately considering allowing the mine to expand.

  • Thacker Pass lithium mine

New lawsuit

On February 16, a week after the federal district court largely upheld BLM’s decision to permit Lithium America’s Thacker Pass lithium mine in Nevada, three Native American tribes filed a new lawsuit. The tribes are alleging BLM withheld information from the Nevada State Historic Office, “and lied about the extent of tribal consultation in order to secure legally required concurrence about historic properties” at Thacker Pass.  Earlier in Februrary, The Reno Sparks Indian Colony and Summit Lake Paiute Tribe submitted an application to list both the 1865 massacre site and the whole of Thacker Pass, which tribes are calling the “Thacker Pass Traditional Cultural District,” under the National Register of Historic Places.

Court decision

On March 1, the Ninth Circuit Court of Appeals refused to block construction of the mine while it considers an appeal of the district court decision, after the district court also refused to grant an injunction pending appeal.  (This is a continuation of the ongoing lawsuit, discussed here; not the new lawsuit described above.)

A trailer for a documentary on this controversy may be viewed here. (The full documentary may also be available from this site, but I didn’t request it.)

New lawsuit: Buffalo River Watershed Alliance v. U. S. Forest Service (W.D. Ark.)

On February 21, filed a complaint alleging that the Ozark-St. Francis National Forest violated NEPA in making its decision on the Roberts Gap Project, a prescribed burn, logging, and chemical herbicide treatment within the Buffalo River watershed.  Eighty-six percent of the project area allegedly contains trees 70 years old or more, and habitat for the endangered Indiana bat.  (The summary contains a link to the complaint.)

New lawsuit/decision:  New Mexico Cattle Growers’ Association v. U. S. Forest Service (D. N.M)

On February 21, this association, the Humane Farming Association, the Spur Lake Cattle Company and two individuals sued the Forest Service and Animal and Plant Health Inspection Service over their plans to aerially shoot an estimated 150 feral cattle in the Gila Wilderness Area on the Gila National Forest.  They alleged failure to give adequate notice, lack of statutory authority, improper procedures for trespassing cattle and failure to prepare an EA or EIS under NEPA.  On the next day, the district court denied a request for a temporary restraining order (the link above is to that opinion).  More background is here.

Court decision in Center for Biological Diversity v. Strommen (D. Minn)

On February 21, the district court approved a consent decree between the parties to enforce a prior court decision by changing Canada lynx trapping regulations, including prohibiting snares, for the Lynx Management Zone in northeastern Minnesota (including the Superior National Forest).  The agreement was opposed by intervenor trapper associations.  Plaintiff’s news release is here.

New lawsuit:  Center for Biological Diversity v. Office of Management and Budget (D. D.C.)

On February 21, the Center sued OMB and the Office of Information and Regulatory Affairs under the Freedom of Information Act to obtain agency records regarding compliance with the Endangered Species Act’s legal obligation in §7(a)(1) that all federal agencies “shall utilize their authorities” to carry out “programs for the conservation of endangered species and threatened species.”  This relates to their roles in delaying ESA protections for species (which the Center has frequently litigated), and in this case red knots (a coastal shorebird).  (The news release includes a link to the complaint.)

Notice of intent to sue

On February 22, the Center for Biological Diversity notified the Forest Service that it would be sued for violating the same §7(a)(1) of the Endangered Species Act regarding gray wolves, which are protected by the ESA in Colorado, but not in Wyoming.  They are asking the Medicine Bow-Routt National Forest to ban wolf hunting and trapping on the Forest in both states.  This is in response to pioneering wolves in Colorado apparently being shot by Wyoming hunters.

An editorial mocked an investigation by BLM into movement of rocks on BLM desert land to form a yin and yang sign sitting at one vertex of a 50 foot triangle, with a second vertex containing a smiling face with a unique hat.

Kirsten Cannon, the spokesperson for BLM’s Southern Nevada District, huffed, “Permits are issued for land art such as this,” voicing concern about protecting the environment. She added, “Land art can increase visitation to an area, so proper site location and a permit are important.”


3 thoughts on “Public Lands Litigation – through February, 2023”

  1. Thanks for another excellent round-up, Jon!

    Two thoughts.. a Tribal view seems to have been overruled in the Nevada geothermal plant case. So back to my post on consultation, I’d have to say there seems to be a trend to think Tribal views are important as long as they align with (some) ENGO’s perspective. Otherwise.. not so much.

    The feral cattle story was interesting. I’m generally a fan of grazing animals and I do like horses especially, but why is it OK to shoot feral cattle but not feral (wild) horses? And it does seem like it would require some kind of notice and comment- I wonder what the FS side of this story is?

    • I might cynically say that tribal views are important as long as they align with the agency’s views.

      One difference between cows and horses is that privately owned cows are managed under a lot of regulations that involve permits, and unpermitted cows are considered to be trespassing. Wild horses have their own set of laws.

      Literally everything requires NEPA, at least checking the CE box, but I haven’t seen anything more on that.

      • I don’t think BLM in terms of employees doesn’t have a dog in this fight, it’s pretty much the Admin (Thacker Pass).


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