Public Lands Litigation – update through March 23, 2023

Court-world has gotten a little busy lately, with some interesting cases.

Court decision in Capital Trail Vehicle Association v. U. S. Forest Service (D. Mont.)

On March 10, the district court determined that the Helena-Lewis and Clark National Forest had complied with NEPA, NFMA and the Travel Management Rule in adopting the Forest’s Travel Plan.  Plaintiffs were local nonprofit organizations that promote recreational motorized off-highway vehicles, and they objected to the Travel Plan’s restrictions on OHV use.

(The case addresses an interesting point that I’ve seen raised in relation to closing routes to motorized or mechanized uses – that there would be impacts on other users of concentrating that use in fewer areas.  Citing a 1996 9th Circuit case, Bicycle Trails Council of Marin v. Babbitt, which held that “NEPA does not require that an agency take into account every conceivable impact of its actions, including impacts on citizens’ subjective experiences,” this court concluded that possible overcrowding “does not qualify as an ‘environmental effect’ for the purposes of the NEPA cumulative effects analysis.”  It also added, “Adverse impacts caused by more concentrated OHV use may occur regardless because of the increasing demands on National Forests …”)

Court decision in Alliance for the Wild Rockies v. Cooley (D. Mont.)

On March 15, the district court ruled that the U.S. Fish and Wildlife Service unreasonably delayed implementing its plan from 23 years ago to introduce grizzly bears into the unoccupied Bitterroot recovery zone, and failed to prepare a supplemental environmental impact statement based on new information about recent occurrences of grizzly bears in this ecosystem.  The court required the FWS to do the latter.  (The article has a link to the opinion.)

Notice of Intent to sue

On March 16, the Center for Biological Diversity, WildEarth Guardians, and Friends of the Earth notified the Department of the Interior and the BLM of their intent to sue under the Administrative Procedure Act for failure to respond within a reasonable time to their “Petition to Reduce the Rate of Oil and Gas Production On Public Lands and Waters to Near Zero by 2035” submitted in January, 2022.  The petition “provides a policy framework for managing the decline of federal oil and gas production to near zero by 2035.”  Said Taylor McKinnon with the Center for Biological Diversity, “The climate deadline to end oil and gas extraction in the U.S. is 2034, and the natural place to start is on land the federal government controls.”

Proposed listing

On March 17, in response to a Center for Biological Diversity lawsuit, the U.S. Fish and Wildlife Service proposed protection for the Texas heelsplitter (endangered) and Louisiana pigtoe (threatened) found in five southern states, and designated 1,860 river miles as critical habitat.  The proposed rule states, “With regard to silvicultural operations that occur on forested areas across the range of the species, we recognize that private timber companies routinely implement State-approved best management practices.  However, it is important to recognize that while BMPs reduce timber harvest impacts, they do not eliminate impacts; therefore, sensitive species and their habitats may still be impacted even when BMP guidelines are followed.”  (The news release includes a link to the proposed rule.)

Court decision in Texas v. EPA (S.D. Tex.)

On March 19, the district court issued a preliminary injunction to temporarily halt the enactment of the Biden administration’s new waters of the United States (WOTUS) rule within the borders of Texas and Idaho.  On March 20, the rule became effective throughout the rest of the United States.  Background on this issue about the scope of the Clean Water Act and other related litigation is included here.  (The article includes a link to the opinion.)

Motion for a preliminary injunction in Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On March 20, the Center and four other conservation groups asked the district court to enjoin the construction of logging roads for the Knotty Pine Project on the Kootenai National Forest.  The project would allow more than 5,000 acres of commercial logging over 10 years, and the groups oppose the project because all but 1,200 acres of the project lies within core habitat of the Cabinet-Yaak Grizzly Bear Recovery Area.  The lawsuit was filed last June.  Here is some additional background.

Court decision in WildEarth Guardians v. U. S. Forest Service (D. Idaho)

On March 21, the district court held that the Forest Service had not violated ESA with respect to the use of bait for hunting black bears in Idaho and Wyoming.  The plaintiffs were concerned about effects on grizzly bears of baiting for black bears.  The Forest Service generally allowed this practice on the national forests based on a 1995 national policy that had replaced the practice of issuing individual special use permits for bear-baiting, and allowed states to regulate.  The history of the bear-baiting policy is complicated and included prior consultation on grizzly bears that was withdrawn, but the court specifically found that the 1995 policy was not an agency action and did not establish future criteria for action (that did not already exist), and therefore consultation under ESA was not necessary,

(But what if the agency action that allows states to regulate bear-baiting is the forest plan, which is where forest-level management policy is considered and decided, and where some forest plans have included direction to regulate hunting?  Forest plans are subject to ESA consultation and reinitiation requirements.)

Notice of intent to sue

On March 22, the Center for Biological Diversity and Nokuse Education, Inc. filed a formal notice of their intent to sue the U.S. Fish and Wildlife Service for denying Endangered Species Act protections to the eastern population of gopher tortoises in 2022.  These gopher tortoises have allegedly lost 97% of the longleaf pine savannas they historically inhabited in Florida, Georgia, South Carolina and most of Alabama.  (Gopher tortoises in limited parts of Louisiana, Mississippi and western Alabama are already protected by the ESA.)

Settlement in Center for Biological Diversity v. Daugherty (D. Or.)

On March 23, the Center for Biological Diversity announced settlement of this lawsuit against the Oregon Department of Forestry for the incidental take of coho Salmon in the Tillamook and Clatsop State Forests.  The settlement will increase no-cut buffers around streams to 120 feet and increase the number of non-fish bearing and seasonal streams that receive protections.  It will also require an inventory of forest roads in the next five years.  Both of these conditions are expected to be included in a state-wide habitat conservation plan (which is also discussed here).  (The news release includes a link to the agreement.)

Court decision

On March 23, the district court ruled against the Reno-Sparks Indian Colony, Summit Lake Paiute Tribe, and the Burns Paiute Tribe, who argued that the Bureau of Land Management violated several laws when it permitted the Thacker Pass lithium mine to Lithium Americas.  In particular they object to the tribal consultation, as discussed here.  Construction has begun.

  • Fire damage claims

Court decision in Strawberry Water Users Ass’n v. U. S. A. (D. Utah)

On March 24, the district court dismissed plaintiff’s claims of negligence and trespass by the Wasatch-Cache and Uinta National Forests under the Federal Tort Claims Act alleging it failed to adequately suppress two wildfires in 2018, the Bald Mountain Fire and the Pole Creek Fire, which damaged their property.  To avoid the discretionary function exception from such claims against the federal government, plaintiffs would have to show that the action taken was not within the employee’s discretion pursuant to agency policy.  The court cited forest plan guidelines for wildfire use, a “Default Initial Fire Response Map,” and national fire policy and guidance in holding that the agency actions met the requirements for a discretionary function exception.  The court admonished plaintiff’s attorney for trying to distinguish this case from binding precedents by, “blatantly twisting the government’s written policy statements to make the case that the Forest Service intended to burn non-National Forest lands.  Here is some background information.

Plaintiff attempted to attack the cited map, which allowed wildfire use in these areas, for not complying with the NEPA process when it was adopted, but NEPA violations are outside of the scope of the Federal Tort Claims Act (and therefore damages could not be recovered for this procedural claim, even if valid).  (This court refused to address the merits of the NEPA claim, but I believe that the development of a map that established different management of fires in one area from another should have followed the NFMA forest planning (amendment) process, including NEPA.  There is no mention of the public participation in the decision to potentially allow wildfire use, but it seems like there would have been a lot of interest.)

Court decision in Schurg v. United States (9th Cir.)

On March 28, the appeals court held that determining how to consult with private landowners during the Lolo Peak Fire about fire suppression activities on their properties near the Lolo National Forest “was precisely the type of decision the discretionary function exception was designed to shield,” and denied their damage claims under the Federal Tort Claims Act.


15 thoughts on “Public Lands Litigation – update through March 23, 2023”

  1. Same question as always: who funds these myriad organizations and the myriad lawsuits they churn out?

    It wouldn’t surprise me if it’s one or two billionaires who feel guilty about having plundered Australia for coal or Angola for oil and, with the profits, live in enormous McMansions in Teton County, Wyoming. It would be their effort to atone by employing thousands of environmental crusaders to make land management all but impossible for the federal government.

  2. The Lewis and Clark-Helena NF suit by Capital Trail Riders is a textbook example of the problems recreation folks have endured throughout Region One. Because the Forests aren’t required to numerically measure or rank the value of recreation activities, those activities have been treated as second class by Travel Plans and Forest Plans. I suspect there is internal direction to do so. Each plan takes away trail miles from motorized and mountain bike users. Gains and fair treatment have been elusive, so lawsuits happen. But previous judgements have set oppressive precedents and recreation has suffered. Bicyclists have lost access to about 1,500 miles of trail. Motorized has taken bigger losses but I don’t know the numbers at all. Two more Forest Plans to go! My theory is this unbalanced outcome to Forest and Travel plans has fostered great distrust in the FS, altered Montana politics, and has been fundamental to defunding the agency. Like I’ve said many times now, recreation needs an organic act and a value rating system equal to wilderness scoring for recommended wilderness. It should be retroactive. Distrust and defunding are the result of lopsided planning. Can’t the professionals figure this out? They may be blinded by the juicy prospects of more RWA closures.

    • I guess it all depends on your starting point. Some might say that we started out with all wilderness, and that motorized and mechanized uses have been “taking away travel miles” from wilderness users for a long time. They have “lost access” to a lot of wilderness. Maybe they are just getting a little of that back.

      • Yes, it does. And I hardly know where to begin with my own starting points. I’ll try:

        1. “We” (meaning almost all of us) “started out” on territory we dispossessed the original inhabitants of. Who are we to claim that we “started out” on something? We occupied it.

        2. Then “we” entered into a pretense that Wilderness (capitalized or not) was an Arcadian idyll that had remained untouched by humankind for millennia. Actually, we drove out first the native peoples and then the miners, prospectors, and homesteaders.

        3. Who exactly are these “wilderness users”? Right now, a dwindling, aging cohort of hikers. Plus luxury pack trip operators. It’s not a natural category of visitors; it’s one shaped by the contradictions and misinterpretations of the Wilderness Act.

        4. When a few thousands of the foregoing have exclusive access to a land area larger than all of California, it’s hard to envision that they have “lost access.” In fact, they have a private, taxpayer-funded playground that allows almost no human activities, even environmentally benign ones, other than walking or perching on a horse, while tolerating the environmental destruction caused by commercial packstock operations.

        In sum, Greg Beardslee’s complaints are well-taken.

        • I’m going to put in a word for “commercial packstock operations”- as a horse loving person without the wherewithal to own horses, those have been great opportunities to get outdoors and see these areas for me. People who use outfitters are not all rich. Or at least they haven’t been the past.

          • Fair enough, Sharon. You are the voice and reason and moderation. I respect your comments, including this one.

            I don’t harbor class resentments, and even if every commercial packstock Wilderness visitor were Bill Gates and Jeff Bezos, that wouldn’t bother me.

            But these for-profit operations do major damage to Wildernesses. Trails, meadows, streams are all impacted in unpleasant ways.

            On the principle that a stopped clock is right twice a day, Wilderness Watch has been complaining about this for years, with the Pasayten Wilderness in Washington as an excellent example (if it’s still on its website). Good for Wilderness Watch. Now if it only were reasonable about environmentally benign recreation that postdates the third century A.D.

            • Is there a case to be made that commercial outfitters are worse than groups of private horsefolk? I think this might be relevant to many kinds of commercial permits.

              • I don’t know. The commercial parties are larger; that is a factor. And maybe the private horse parties are more responsible; at least they’re not there to profit financially.

                I saw a horse-riding pack outfitter lead a train of a dozen or more heavily laden mules across a meadow in the Bridger Wilderness of Wyoming in 2013. Though annoyed at the damage he was doing (he didn’t want to stick to the nearby trail and was shortcutting across the meadow), I asked, How are you doing? I will not soon forget his response: “Living the dream.” Talk about ironic.

                One could also wonder what was in all of the large crates the mules were carrying. Wine, frozen salmon, and dessert? Comfortable mattresses? Though I lack class resentment, I do feel sarcastic about the ease some of these pack trips provide.

                In that area, the main trail was paralleled by a number of rather deep parallel ruts. It was unsightly. I doubt any hikers caused those, and if mountain bikers were allowed in, they wouldn’t either. It had to be horses and packstock.

                • Hmm. I remember a story on the Shoshone of a packstring sent to supply fire folks who were guarding (the way I heard the story) a very ecologically beneficial WFU fire. Or they could have been bringing supplies and tools for trail projects or…

                  Would you feel differently if they were carrying beer and Kraft Mac’n’cheese?

                  Another story.. 20 heartbeats. A large and important group in Colorado were on a (horse) trip at least partially in Wilderness; in this case I think they camped nightly by roads but not sure.. way above my pay grade. The question was if “if you split your group into 20 heartbeat segments, how far away do they have to be from each other? Do they each need to apply for separate permits?

                  I found this link from 1996 which was only 12 heartbeats in a party..

  3. Thanks again Jon, for a great round-up!

    Does anyone understand this?
    “failure to respond within a reasonable time to their “Petition to Reduce the Rate of Oil and Gas Production On Public Lands and Waters to Near Zero by 2035” submitted in January, 2022. The petition “provides a policy framework for managing the decline of federal oil and gas production to near zero by 2035.” Said Taylor McKinnon with the Center for Biological Diversity, “The climate deadline to end oil and gas extraction in the U.S. is 2034, and the natural place to start is on land the federal government controls.”
    Can anyone submit a policy framework and then sue if it’s not responded to? I wonder who set the “climate deadline”?

    Also this was an interesting one… listing coyotes?
    The Fish and Wildlife Service said Monday it is rejecting a petition to provide coyotes with federal Endangered Species Act protections.

    “In what seemed like a long shot from the start, 14 environmental groups had petitioned the agency to list coyotes under the ESA on the basis that they resemble Mexican wolves, which are endangered (Greenwire, Dec. 9, 2022).

    The environmental organizations stressed the fact that illegal killing is a leading cause of death for the Mexican gray wolf. The petition cited cases where Mexican wolves were killed by people who subsequently said they believed they were killing a coyote.”
    Not paywalled.

  4. From the petition:
    “Accordingly, pursuant to the right to petition provided in the First Amendment to the U.S.
    Constitution and the Administrative Procedure Act, we hereby petition you, as Secretary of the
    Interior, to promulgate regulations that (1) establish the maximum production rate and
    phasedown of existing onshore oil and gas wells under Section 17 of the Mineral Leasing Act
    and (2) establishes the maximum production rate and phasedown of existing offshore oil and gas wells under Section 107 of the Naval Petroleum Reserves Production Act.”

    APA: “Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule” (5 U.S.C. §553(e)).

    “Although Section 553(e) is only one sentence in length and provides very little detail, other sections of the APA contain some additional requirements for agencies with regard to receiving, considering, and responding to rulemaking petitions. An agency is not necessarily required to grant the petition or take the requested action, but the APA does require the agency to
    consider the petition and respond and to do so “within a reasonable time.”

    If the government responds “no,” I don’t think there’s any recourse. They also petition the President to issue an Executive Order. As far as I know that’s not covered by the APA. Anyone can petition the President, and it’s not unusual, but I’m not sure a response is legally required.

    • Regarding the a denial of a petition, maybe I should plead ignorance of this part of the APA. I’m not going to research the case law on this, but here is a current pending case that suggests there can be recourse in court for a petition denial.

      A coalition of food safety, environmental, and consumer advocacy groups filed a lawsuit against the U.S. Food and Drug Administration (FDA), claiming the FDA violated the Administrative Procedure Act when it denied a 2016 petition by the groups to ban the use of medically important antibiotics for disease prevention in livestock and poultry. They claim that The Federal Food, Drug, and Cosmetic Act requires FDA to withdraw approval for an animal drug if FDA finds, among other things, that the drug is not shown to be safe for the uses for which it was approved. They then claim, that “FDA’s final response to the Petition is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2).” This is the usual provision of APA applicable to agency actions. Note that there appears to be a substantive legal requirement involved here that may be an important factor.


Leave a Comment