Public Lands Litigation – update through May 31, 2023

A number of high-level court decisions here.

New lawsuit:  Kettle Range Conservation Group v. Smolden (E.D. Wash.)

On May 12, the plaintiff challenged the Bulldog logging, thinning and prescribed burning project on close to 44,000 acres over many years on the Colville National Forest.  The area is considered a stronghold for the threatened Canada lynx, and the complaint alleges failure to properly consult with the U. S. Fish and Wildlife Service on how the project may affect lynx.  It also claims violations of NEPA and failure to ensure compliance with the forest plan’s lynx habitat requirements.

Notice of intent to sue

On May 15, the Center for Biological Diversity filed a formal NOI with the U. S. Fish and Wildlife over its failure to protect the Railroad Valley toad in Nevada under the Endangered Species Act.  The BLM has leased out land around the toad’s habitat to oil companies.  (The press release includes a link to the notice.)

  • Mountain Valley Pipeline

Forest Service action in response to a prior court decision

On May 15, the Forest Service issued a record of decision allowing the Mountain Valley Pipeline project to proceed through a 3.5-mile stretch of the Jefferson National Forest.  The decision amends the forest plan 11 times to allow the pipeline to cross the Forest and provides terms and conditions to include in a decision by the BLM to grant permits under the Mineral Leasing Act.  The pipeline is mostly complete, including some tree clearing on the national forest.  The U.S. Fourth Circuit Court of Appeals threw out two past Forest Service approvals of the Jefferson National Forest crossing in July 2018 and January 2022 (discussed previously here).

Court decision in Sierra Club v. Federal Energy Regulatory Commission (D.C. Cir.)

On May 26, the circuit court held that FERC had inadequately explained its decision to not prepare a supplemental analysis on erosion and sedimentation along the pipeline’s right-of-way.   It ordered FERC to either to prepare a supplemental environmental impact statement or to better explain why one isn’t necessary.  However, the court allowed construction to continue “in areas adjacent to wetlands.”  (The article includes a link to the opinion.)

HOWEVER, this long-running controversy may become moot if the debt ceiling legislation is approved as currently proposed.  According to the Washington Post on May 29, “The new legislation could nullify that decision and other outstanding court orders, experts said. Legislative language prohibits court oversight of decisions on MVP permitting from FERC and other federal agencies. It says Congress ratifies all permits and gives the Army Corps of Engineers 21 days after the bill’s passage to issue those permits.”

Court decision in Alliance for the Wild Rockies v. Petrick (9th Cir.)

On May 16, the circuit court reversed the district court and dismissed some issues for failure to provide sufficient notice to the government of its concerns that it violated the Healthy Forests Restoration Act, but remanded that the Hanna Flats project on the Idaho Panhandle National Forest.  The court agreed with the district court’s ruling that the Forest Service’s reliance on Bonner County’s Community Wildfire Protection Plan was insufficient to apply a categorical exclusion, but it disagreed with the way the district court defined “wildland urban interface.”  This led it to lift the injunction against the project while the district court addresses the remand.  (The article includes a link to the opinion.)

Court decision in Center for Biological Diversity v. U.S. Fish & Wildlife Service (9th Cir.)

On May 17, in a split decision, the circuit court set aside parts of the U.S. Fish and Wildlife Service’s 2014 designation of critical habitat for the jaguar in southeastern Arizona.  CBD had challenged the biological opinion on the Rosemont Mine on the Coronado National Forest, and Rosemont Mine had cross-claimed that the FWS had improperly designated two areas as critical habitat.  The court concluded that, based on its record, FWS improperly designated Unit 3 as “occupied” critical habitat (as of the time of listing in 1972) and that neither this nor another unit met the more demanding requirements to qualify as “unoccupied habitat.”   The court remanded the critical habitat designation, and so it could not address the effects of the mine on critical habitat.  (The article includes a link to the complaint.)  (A related case on the Rosemont Mine was discussed here.)

Notice of intent to sue

On May 18, the Environmental Protection Information Center notified the Fish and Wildlife Service that it is challenging an incidental take permit issued by that agency to Sierra Pacific Industries to “take” northern spotted owls when logging their land under a habitat conservation plan.  EPIC argues that the extent of take allowed would violate ESA by jeopardizing the northern spotted owl’s long-term survival. (The news release includes a link to the notice.)

Supreme Court decision in Sackett v. Environmental Protection Agency

On May 25, the Court limited the scope of federal jurisdiction under the Clean Water Act.  It decided in favor of private landowners who wanted to build a house on land including wetlands that would need to be filled, and for which the EPA would require a permit because they were “near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.”  The Court held that the permit was unnecessary because the wetlands lacked a “continuous surface connection” to “waters,” defined as “geographic[al] features that are described in ordinary parlance as `streams, oceans, rivers, and lakes'” (not “wetlands”).  There were no dissenting opinions but multiple disagreements with the reasoning in the opinion.  There has been a lot written about this issue, and here and here are a couple of takes on this decision.

Federal land management is subject to the Clean Water Act, and this holding could, for example potentially reduce the scope of the potential violations in the fire retardant case, especially if, as the first article suggests, it does preclude inclusion of all ephemeral features and the vast majority of tributaries  …

  • Fire retardant and the Clean Water Act

Court decision in Forest Service Employees for Environmental Ethics v. U. S. Forest Service (D. Mont.)

On May 26, the district court found that the Forest Service had conceded that it violated the Clean Water Act when it aerially dropped fire retardant, a pollutant, into waterways without a permit.  However, the court did not enjoin the activity while a permit is being sought.  We’ve discussed this case here (where there is a link to the opinion).

Court decision in Western Watersheds Project v. Haaland (10th Cir.)

On May 25, the circuit court reversed a district court decision and reversed a decision by the Bridger-Teton National Forest authorizing livestock grazing for 10 years on land in the Upper Green River Area Rangeland (“UGRA”) in Wyoming.  The Forest Service and Fish and Wildlife Service violated the Endangered Species Act because the FWS biological opinion (BiOp) failed to “consider (1) a limit on lethal take of female grizzly bears, and (2) the UGRA Project’s likely contribution to the already-existing mortality sink (where mortality exceeds or nearly exceeds survival) for female grizzly bears in the Project area.”  The incidental take statement permitted “the killing of up to 72 grizzly bears” (as the plaintiffs put it), and did not distinguish females nor consider the more serious effects of female mortality.   This article provides more background on this issue.  (The news release provides a link to the opinion.)

The court also found that the project violated the forest plan and NFMA because the record contradicted the Forest’s conclusion that the project would provide adequate forage and cover for migratory birds.  It upheld the application of the forest plan’s forage utilization requirement to sensitive amphibians.  The court remanded the decision to the agencies “to address the deficiencies in the BiOp and the ROD,” but did not vacate the decision because “deficiencies in the BiOp and the ROD are curable upon remand to the agencies, and vacatur would cause disruption.”

A year after the hunters were declared not guilty in Wyoming criminal court, a federal judge ruled that the four Missouri residents didn’t trespass when they corner-crossed through the airspace over private land in Wyoming during their 2020 and 2021 hunting trips. The judge noted that “corner crossing on foot in the checkerboard pattern of land ownership, without physically contacting private land and without causing damage to private property does not constitute an unlawful trespass.” The wealthy landowner had sought more than $7 million in alleged damages, but the judge said that even if they had trespassed, any damages to the plaintiff would be “nominal.”  We discussed this case here.

A California man was convicted of obstructing an investigation into why his plane crashed, apparently into the Los Padres National Forest.  Blame it on YouTube.

5 thoughts on “Public Lands Litigation – update through May 31, 2023”

  1. Thanks Jon! Another great round-up! I wonder about the Upper Green River grazing. Conceivably, grazing has been going on for a long time. This is from an article on the same case only last year when apparently the results were different.

    “Five environmental groups sued, saying the habitat should be prioritized for grizzlies. The groups included the Center for Biological Diversity, Sierra Club, Western Watersheds Project, Alliance for the Wild Rockies and the Yellowstone to Uintas Connection.

    “The Forest Service and the livestock grazing permittees, they know that grizzly bears are in this area,” John Persell, a staff attorney with the Western Watersheds Project, said. “They know that this is grizzly bear habitat, yet they put their cattle up there in these remote areas. We disagree that the federal government should be subsidizing the livestock industry by killing these grizzly bears for their benefit.”

    But haven’t they always grazed in “these remote areas”? And aren’t grizzlies.. expanding their range? It seems that the populations are growing into other areas.. but if that’s the case, is the species still endangered?

    If a previous judge said that grizzlies could sustain 72 deaths,

    this article says
    “Environmental groups say this decision means 10 percent of the Greater Yellowstone Ecosystem grizzlies will die. The current estimated population in the area is more than 1,000.”
    72 is not 10 percent of 1000. I understand that different people have different ways of measuring, but still..

    According to the AP article Jon cited above:
    “The plan said wildlife managers could kill up to 72 grizzlies — or about seven bears a year — over 10 years of grizzlies continuing to attack grazing livestock. The total would be double the number of grizzlies killed in the area over the previous 20 years.” That makes it sound as if killing grizzlies was increasing, but this handy USGS animated image of grizzly bear range expansion makes it look like grizzlies might not have been there for the past 20 years.

    It’s also interesting that this is a reversal of an earlier court decision that seemed to think the BiOp was OK? The whole thing seems like it would be best negotiated outside a court of law. IMHO.

    • Sharon, I helped litigate this Upper Green case throughout all of its stages. This recent decision came from a unanimous three-judge panel of the 10th Circuit Court of Appeals. The panel reversed last year’s lower court decision on four main points, meaning it reached different conclusions than the Wyoming District Court based on the record before it. The 10th Circuit ruled that FWS’s BiOp violated the ESA by failing to consider limits on the lethal removal of female bears and the existing mortality sink in the area for female bears (female survival is key to species recovery), and that the Forest Service violated the ESA by relying on FWS’s flawed BiOp. The 10th Circuit also ruled that the Forest Service violated NFMA by failing to ensure that the level of grazing authorized for the allotments was consistent with forest plan direction to retain adequate forage and cover for wildlife (migratory birds here, specifically).

      Agencies must base their decisions on the record before them at that time. Courts generally review agency decisions based on the same record. The official Greater Yellowstone grizzly bear population estimate identified in the challenged BiOp was 718, with a population growth rate as low as 0%, hence the 10% possibility. The BiOp also stated that 35 grizzly bears were lethally removed from the allotments between 2010 and 2018, and that FWS had been issuing BiOps for the area since 1999.

      Only if history begins in the late 1800s have domestic livestock “always grazed these remote areas.” Grizzly bears inhabited this area for time immemorial until they were purposefully and systematically eradicated to accommodate domestic livestock ranching. Grizzly bears have been a federally protected species in the Lower 48 since the 1970s and have slowly repopulated parts of their historic range in the Greater Yellowstone Ecosystem. Grizzly bears have been documented in the Upper Green area since the mid-1990s at least.

      The groups that challenged FWS’s BiOp and the Forest Service’s grazing decision extensively participated in all available public processes to secure a better outcome for grizzly bears and other wildlife before seeking relief from the courts.

      • I found this info on the Jackson Hole Conservation Alliance website, which is why I had a more robust view of grizzly survival
        “As of 2021, the GYE grizzly bear population was estimated at 1,069 individuals inside the demographic monitoring area (DMA; Figure 2; USFW, 2021). This is 2-3 times the estimated population size of about 136 – 300 grizzly bears at the time of listing as threatened under the Endangered Species Act in 1975. Grizzly bears currently occupy about 98 percent of the suitable habitat in the DMA and their geographic range has been expanding year over year for the past decades. Currently, 30 percent of the GYE grizzly bears’ distribution occurs beyond the DMA. Over the years, as the habitat reaches carrying capacity or ‘fills up with bears,’ the population slowly expands its range outward. Grizzly bears have tripled the extent of their occupied range in the GYE since the early 1980’s (USFW, 2021). Check out this animation of GYE grizzly bear distribution from 1990 – 2020 (Figure 2).”

        Aren’t they discussing whether the GYE grizzly has actually recovered? If 35 bears were removed ( between 2010 and 2019 and population is expanding, then would your group have been OK with a ceiling of, say 40 instead of the 72?

        • I commented to clarify certain facts and the record on which the 10th Circuit panel based its opinion. The challenged decisions were issued in 2019. It would be inappropriate to weigh in on hypotheticals. The 10th Circuit panel remanded the decisions to the agencies to correct the identified errors.

          • So the case is appealed at this point..four years after the decision? At this rate it would be hard to the agency to adapt based on the latest science..


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