Supreme Court declines review of Safari Club International v. Haaland (9th Cir. 2022)
In 2022, the Ninth Circuit upheld a 2016 Fish and Wildlife Service regulation that, among other things, prohibits brown bear baiting on the Kenai National Wildlife Refuge in Alaska. The circuit court had held that Congress has authority under the Property Clause of the Constitution to preempt state law and protect the wildlife on federal lands. The Supreme Court chose not to hear an appeal by the plaintiffs.
A federal magistrate judge in Alaska sentenced a Fairbanks man to pay a fine for unlawfully conducting a tour on BLM land without a permit. Federal law requires tour operators to have a Special Use Permit to sell or operate tours on federal land in order to protect visitors and the land.
New lawsuit: Colorado Off Road Enterprise v. USDA Forest Service (D. Colo.)
This case was filed on Februrary 13, and we have discussed it here.
- Multi-species ESA listing litigation
New lawsuit: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Ariz.)
On March 7, plaintiffs filed a complaint alleging noncompliance with various deadlines in the process for listing 12 plants and animals under the Endangered Species Act. They include two species of alligator snapping turtles, and a fish species threatened by lithium mining and geothermal development in Nevada. (The article includes a link to the complaint.)
The next day, one of the eastern freshwater mussel species involved in the lawsuit, the round hickorynut, was listed as “threatened” under the Endangered Species Act (along with another mussel species, the longsolid). Similar to the California spotted owl listing, an exemption from incidental take prohibitions was established, in this case for forest management that implements state-approved best management practices. (The “good” news is that these species are found “largely where federally protected mussels already occur, so any increased regulatory burden is expected to be minimal.”)
Partial court decision in Center for Biological Diversity v. Haaland (D. D.C.)
Also the next day, on March 8, in an ongoing similar case involving delayed protection of 231 species, the district court reduced the number of species because the listing determination had been completed for one species, listing petitions had been withdrawn for four species, and inadequate notice of intent to sue was given for one species. The court rejected a motion to dismiss the complaint with regard to 219 species because the violation of ESA’s continuing obligation to make 12-month finding prevents invoking the 6-year statute of limitations. (The article has a link to the opinion.)
Court decision in Friends of the Inyo v. U. S. Forest Service (E.D. Cal.)
On March 9, the district court allowed an exploratory gold drilling operation on the Inyo National Forest to proceed. The proposal would largely involve drilling deeper than prior exploration in the same area, but it is in an area which is habitat for the bi-state sage-grouse (currently proposed for listing under the ESA). The court approved the use of two separate categorical exclusions related to short-term mining impacts and wildlife habitat improvement.
On March 9, the U. S. Fish and Wildlife Service completed its review to comply with a September 20, 2021 court-ordered remand of the Service’s previous “not warranted” finding for the Joshua tree. It found again that the species is not warranted for listing.
New lawsuit: Wilderness Workshop v. Harrell (D. D.C.)
On March 13, Wilderness Workshop and Rocky Mountain Wild filed a lawsuit to overturn the White River National Forest’s Record of Decision for the Berlaimont Estates Road Improvement Project. Issued on Friday, March 10, this decision would facilitate a developer’s plan to build 19 new mansions on 680 acres surrounded by deer and elk winter range in the White River National Forest. (The article includes a link to the complaint.)
Sovereign Inupiat for a Living Alaska v. Bureau of Land Management (D. Alaska)
Center for Biological Diversity v. Bureau of Land Management (D. Alaska)
On March 13, the Biden Administration approved the Willow oil drilling project on the Naval Petroleum Reserve in Alaska. This followed a court reversal of a previous Trump Administration approval, and two new lawsuits were immediately filed by environmental and indigenous groups. There are ESA claims involving federally threatened polar bears and other species, and alleged violations of NEPA, including effects of greenhouse gases, and limiting the range of alternatives considered because of a “mistaken conclusion” that the agency lacked the authority to deny or significantly curtail the ConocoPhillips project, including failure to consider eliminating “special areas.” ANILCA and the Naval Petroleum Reserves Production Act are also implicated. (The article includes links to both complaints.)
In another case, applicable in part to the Willow project, the Alaska district court held that federal law preempted state law, and therefore that ConocoPhillips could withhold well data from the public for the duration of the lease (rather than a shorter time period provided by state law).
There was some news in a couple of ongoing Forest Service project lawsuits:
Oral argument in Ohio Environmental Council v. U.S. Forest Service (S.D. Ohio)
The Sunny Oaks project on the Wayne National Forest involves clearcutting white oak trees (discussed previously here). It also involved the interpretation of forest plan standards that require the agency to maintain 12 trees with loose bark per acre, like oaks and hickories, to provide habitat for endangered Indiana bats. At the hearing, the Forest Service attorney apparently argued that, in the project area, there aren’t that many trees with loose bark, and he said the agency has the flexibility to not follow the standard. (This reminds me of an argument that, because a project area didn’t meet an elk cover standard already, it was ok to remove more cover, which I don’t think was a winning argument.)
Plaintiffs’ brief filed in Los Padres Forest Watch v. U. S. Forest Service (C.D. Cal.)
This project on the Los Padres National Forest involves “removal of trees and native chaparral across 775 acres of a unique ridgeline that harbors rare plants and animals and is important to local Chumash tribes.” It is “one of the most controversial decisions ever issued in Los Padres National Forest.” In April, 2022, six environmental organizations, the City of Ojai and the County of Ventura, challenged the use of a categorical exclusion, as well as “failing to provide annual updates to Congress on how many times the agency has invoked the loophole.” The brief (a link is provided in the article) also addresses violations of the Endangered Species Act (California condors) and the Roadless Area Conservation Rule.
2 thoughts on “Public Lands Litigation – update through mid-March, 2023”
Jon, thanks again for this excellent round-up!
It seems like the plaintiffs think that the use of CEs is illegitimate- as a person who worked with CEQ, DOJ, and OGC on a CE that has stood up in court… I’d say CEs are a legitimate part of NEPA used by all agencies. From one of the articles.
“The approval was issued using two loopholes that allow the Forest Service to bypass normal requirements to prepare an environmental assessment. Instead, officials only prepared a series of “specialist reports” that were not made available to the public until today and did not evaluate any alternatives or mitigation measures that would reduce or avoid damage caused by the devegetation project. The loopholes also allow the agency to move forward without offering any formal public objection or appeal opportunity to address concerns.”
Do you know if the FS is required to annually report to Congress on its use of (a particular? some? all?). I don’t recall it being a requirement when I worked in NEPA in DC, perhaps that’s a new thing?
HFRA categorical exclusions require reporting. Here’s a report from 2019, and the introduction that explains why.
Legislated CESs don’t have to be based on anything about likely effects; they’re just a decree from Congress that neither an EIS nor an EA (and associated procedures) must be prepared. (As long as an action fits the category and there are no extraordinary circumstances.)