Public Lands Litigation – update through July 14, 2023

I left some recent mining cases out of this one – to follow in a separate post.

Court decision in Friends of the River v. U. S. Army Corps of Engineers (D. D.C.)

On June 21, the district court required the Corps to release documents about dam operations that it had tried to withhold using the deliberative process exemption (Exemption 5).  That exemption requires that a record be pre-decisional and deliberative, and also that its release would cause foreseeable harm.  The Corps provided mostly “generalized explanations” for not providing the records, and did not articulate “[a] link between the specified harm and the specific information contained in the material withheld,” as required by the Freedom of Information Act (such as emails, in particular).  FOIA applies government-wide and this type of response from agencies is not unusual (says a former Forest Service regional FOIA coordinator).

  • ESA delays

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Ariz.)

On June 22, the Center for Biological Diversity sued the U. S. Fish and Wildlife Service for failure to meet statutory ESA deadlines related to listing 13 species.  The claims include failure to issue final rules to list the cactus ferruginous pygmy owl, Peñasco least chipmunk, Mt. Rainier white-tailed ptarmigan, 4 unlisted distinct population segments (“DPS”) of the foothill yellow-legged frog, 6 Texas freshwater mussels and the wider ranging pyramid pigtoe mussel; failure to issue an initial timely 12-month finding for the tall western penstemon; and failure to finalize critical habitat protection for the Pacific marten coastal DPS.  The article on mussels provides access to the complaint.

Court decision in Chapman v. U. S. Forest Service (E.D. Cal.)

On June 23, the district court “screened” a case from a plaintiff not represented by an attorney (“pro se”) challenging special use roadway permits for a commercial recreational development on private land, adjacent to the Stanislaus national forest and adjacent to plaintiff’s property.  The court held,

Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8, 18 and 20 and fails to state a cognizable claim upon which relief may be granted. As Plaintiff is proceeding pro se, the Court will grant Plaintiff an opportunity to amend his complaint to cure these deficiencies to the extent he is able to do so in good faith

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

On June 26, the district court held that the Kootenai National Forest failed to adequately analyze the effects of the Ripley vegetation management project on grizzly bears and Canada lynx, especially the cumulative effects of roads on grizzly bears, both public and private.  The record provided no evidence that lynx were not present in the area.  The court also stated, “The court and the public should not have to embark on a scavenger hunt through a nearly 30,000 page administrative record to find information that the biological opinion itself was supposed to disclose.”  More in this article.

  • Red Rocks Lake Wilderness water diversion

New lawsuit

On June 26, Wilderness Watch, Alliance for the Wild Rockies, Gallatin Wildlife Association, and Yellowstone to Uintas Connection filed a lawsuit against the U.S. Fish and Wildlife Service, challenging its plan to construct and operate a water-diversion pipeline to help arctic grayling within the Red Rock Lakes Wilderness Area in a national wildlife refuge in southwestern Montana.  They allege violations of the wilderness act, especially in light of other measures that could be taken to help the species, and question the science.  Fishery groups have supported the proposal.  (Interesting how the two articles had different takes and quotes on the issue.)

Dismissal and attorney fees for Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Ind.)

On June 27, after the court granted a preliminary injunction against the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest (discussed here), the Forest Service agreed to dismiss the case and pay attorney fees of $70,000.

Court decision in Blue Mountains Biodiversity Project v. Jeffries (9th Cir.)

On July 3, the circuit court affirmed the district court decision and upheld the Ochoco National Forest’s approval of the Walton Lake Restoration Project against claims of NEPA violations.  (The opinion includes a short summary.)  Also, in relation to deliberative documents, such as those subject to the FOIA ruling above, the court held that they need not be included in the administrative record in litigation.

Court decision in Donohoe v. U. S. Forest Service (9th Cir.)

On July 6, the circuit court dismissed NEPA claims as moot for the “Bridge Project” and the “Trail Project” on the Custer-Gallatin National Forest because they had been completed, and ESA claims were dismissed additionally because of failure to give the agency a notice of intent to sue.

  • Mountain Valley Pipeline

Continuing saga

On July 10, the 4th Circuit Court of Appeals halted construction of the last section of the 303-mile Mountain Valley pipeline to run through the Jefferson National Forest while it considered a petition for review by parties who have been opposing the project from its outset.  On July 14, attorneys for the pipeline asked the Supreme Court to vacate the stays ordered by the circuit court based on language in the federal debt ceiling legislation.  Opponents of the pipeline argue that Congress acted outside its constitutional authority because the Mountain Valley debt deal provision (discussed here) effectively determined the outcome of cases still before the courts, a separation of powers issue.

Policy update

In the “not yet news” category, “The BLM is reviewing the court’s decision and has not issued any new guidance regarding corner crossing,” says the agency referring to the issue of walking between isolated sections of public land.  On the other hand, its director says, “Our solicitors think it’s pretty clear.”  The view from the outside?  “Until we get a declaration from the 10th Circuit yay or nay, we’re still going to do a little bit of head scratching.”

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