Public Lands Litigation – update through July 28, 2023


New lawsuit:  Earth Island Institute v. Moore (E.D. Cal.)

On July 13, Earth Island Institute and Sequoia Forestkeeper initiated a lawsuit against the Nelder Grove Fuels Reduction Project in a sequoia grove on the Sierra National Forest, authorized along with other projects in a 2022 decision memo.  It is the result of the 2017 Railroad Fire which burned 80% of the Nelder Grove Historical Area.  The complaint alleges that the project is not consistent with the forest plan requirements to protect the sequoia grove (both the plan it was prepared under and the recently revised plan).  Plaintiffs assert that the ongoing project is killing the giant sequoias that regenerated as a result of the Railroad Fire by logging in that portion of Nelder Grove.


On July 17, the federal government signed off on an agreement to settle four lawsuits brought by states and environmental organizations against diverting funds for construction of the Mexico border wall during the Trump Administration.  The government agreed to redirect the funding to military construction projects and to undertake several actions promoting wildlife connectivity and conservation to mitigate damage caused by the wall.  This includes the construction of 24 wildlife passages in remote areas on public lands and opening of nine stormwater gates along the wall, funding to acquire a 1,300-acre chunk of critical wildlife habitat east of San Diego, and additional funding for endangered and threatened wildlife conservation research.  (The article has a link to the settlement agreement; specific locations of wall gaps are redacted.)

New lawsuit:  Center for Biological Diversity v. Federal Emergency Management Agency (D. Or.)

On July 17, the Center and Cascadia Wildlands sued FEMA and the U. S. Fish and Wildlife Service over plans to use federal disaster funding to rebuild a logging road in the Tillamook State Forest (Oregon) due to the harm it would cause protected coho salmon and marbled murrelets.  The complaint alleges violations of NEPA and ESA.  (The article includes a link to the complaint.)

Court decision in American Forest Resource Council v. U.S.A. (D.C. Cir.)

On July 18, the circuit court issued an opinion affirming the expansion of the Cascade-Siskiyou National Monument (which agrees with a previous 9th Circuit opinion).  The legal arguments in these cases hinged on whether the Oregon and California Lands (O&C) Act committed approximately 40,000 acres of the monument expansion to commercial logging, making those BLM lands ineligible for inclusion in a monument.  This court concluded, “The goal of the O&C Act, then, was to ‘provide conservation and scientific management for this vast Federal property…’ and the Monument’s expansion is itself consistent with sustained yield forestry.”  (More background is provided in this press release.)

Court decision in County of Ventura v. U. S. Forest Service (C.D. Cal.), City of Ojai v. U. S. Forest Service (C.D. Cal.), Los Padres Forestwatch (and 6 others) v. U. S. Forest Service (C.D. Cal.)

On July 19, the district court determined that the city of Ojai and Ventura County did not have legal standing to challenge the Reyes Peak Forest Health Project on the Los Padres National Forest, finding that effects on tourism and tax revenue were “speculative.”  The court found that the 755-acre chaparral treatment project was consistent with the forest plan, and complied with the Roadless Area Conservation Rule’s limitations on logging larger trees and with the Endangered Species Act, and that a categorial exclusion was sufficient environmental review.  According to the plaintiffs, the Forest Service received more comments on this proposal than any other project in the history of the Los Padres.

  • BLM wild horses

Settlement of Wild Horse Fire Brigade v. U. S. Bureau of Land Management (D. D.C.)

On July 19, the U.S. Department of Justice settled the lawsuit brought against the BLM involving the roundup of wild horses within and adjacent to the Pokegama Herd Management Area in southern Oregon.  BLM agreed to conduct an excess determination as required by the Free Roaming Wild Horse and Burro Act, and to follow NEPA procedures before continuing a roundup.  The article includes a link to the original complaint (and tells us more about their arguments).

(In yet another plot twist for the fire/fuels management debate: “the herd of wild horses owned and managed by local rancher/researchers (William Simpson & Michelle Gough) in conjunction with Wild Horse Fire Brigade, were instrumental in aiding CALFIRE during the deadly 2018 Klamathon Fire via wildfire fuels reductions prior to the onset of the wildfire, by creating and maintaining areas of reduced grass and brush fuels.”)

New lawsuit

In eastern Nevada, activists have sued the BLM after 21 horses died during a roundup in the Antelope Complex.

Notice of intent to sue

On July 19, the Center for Biological Diversity and Maricopa Audubon Society notified the U.S. Fish and Wildlife Service that the agency is in violation of the Endangered Species Act due to its unreasonable delay in proceeding with a proposed rule to revise the existing critical habitat designation for the endangered Mount Graham red squirrel.  Past logging of its habitat on the Coronado National Forest contributed to its listing, and Forest Service actions in its habitat have been challenged.  

Withdrawal of project litigated in Center for Biological Diversity v. Haaland (D. Nev.)

On July 20, two weeks after the lawsuit was filed, the BLM halted a proposed lithium mining operation near Ash Meadows National Wildlife Refuge over concerns that the drilling could impact the groundwater, the river it feeds and endangered and threatened species that depend on it.  Rover Metals will be required to submit a plan of operations with more information to BLM so the bureau can determine if it’s possible to mine without damaging the refuge or surrounding area.

Court decision in Rocky Mountain Wild, Inc. v. U. S. Bureau of Land Management (D. Colo.)

Plaintiffs alleged that, with regard to their 2019 FOIA request, “ongoing FOIA violations by Defendants have prejudiced RMW’s ability to fully participate in ongoing federal land management decisions, including the National Environmental Policy Act (“NEPA”) processes for the Tres Rios Resource Management Plan (“RMP”) Area of Critical Environmental Concern (“ACEC”) Amendment Process” specifically with regard to the Gunnison sage-grouse, and “under the heightened standard of the FOIA Improvement Act of 2016.”  In an earlier decision, the court required a more specific “Vaughn Index” documenting the nature and harm of documents withheld and redacted under the deliberative process exemption (Exemption 5), and required a more diligent search for records.  Unlike the Corps of Engineers case discussed here, this magistrate judge found on July 20 that, by adding additional context for the records, “The agency thus linked the harm to the specific information in the withheld documents.”  The use of “universal search terms” produced 803 more documents, and the court found it to be a “good faith effort.”  (However, the explanation for one of those documents did not measure up to those in the revised Vaughn Index and the court required its release.)

Court hearing in Oregon Wild v. U. S. Forest Service (D. Or.)

On July 21, the district court heard oral arguments in a lawsuit against three projects on the Fremont-Winema National Forest:  the South Warner, Bear Wallow and Baby Bear projects.  Plaintiffs object to the agency’s use of a categorical exclusion for timber stand and wildlife habitat improvement activities that would cover 29,000 acres, and assert that if CE-6 applied to this scale of effects, it would be invalid.  The article includes a link to the July 2022 complaint.

Settlement in Center for Biological Diversity v. Haaland (D. D.C.)

On July 24, the U. S. Fish and Wildlife Service agreed to dates by which it would complete 12-month findings regarding whether 33 species should be listed as threatened or endangered, most by the end of this year.  Two of the species are found in the southwestern U. S. and the rest in the southeast, and they include eight crayfish, six freshwater mussels, five cave beetles, four crustaceans, three fish, three salamanders, two plants, and two mammals.  The mammals are the eastern spotted skunk and the Texas kangaroo rat.  The press release includes a link to the settlement agreement.  (Presumably some of these are found on federal lands.)  This case is an offshoot of a 2019 notice of intent to sue over listing and critical habitat delays for 274 species.

Notice of intent to sue

On July 25, on behalf of Defenders of Wildlife, the Center for Biological Diversity, The Wilderness Society, MountainTrue, and the Sierra Club, the Southern Environmental Law Center notified the Forest Service and Fish and Wildlife Service of their intent to sue over the effects of the recently revised forest plan for the Nantahala-Pisgah National Forest on four threatened or endangered bat species and flaws in the required consultation process.  We discussed this here.  The news release includes a link to the notice.

Supreme Court decision in The Wilderness Society v. U. S. Forest Service

On July 27, the Supreme Court vacated the 4th Circuit’s decision to grant the Wilderness Society’s motions to stay construction on the Mountain Valley Pipeline pending that court’s possible review of the Forest Service’s amended forest plan for the Jefferson National Forest, and BLM’s approval of the pipeline permit.  The article includes links to the results from both courts (which provide no rationales).  This is only a decision about the stay, and the D.C. Circuit could still rule on the constitutional questions related to the Fiscal Responsibility Act legislation which purportedly authorized the pipeline to proceed.

New lawsuit:  Center for Biological Diversity v. Moore (D. Ariz.)

On July 28, the Center and Maricopa Audubon sued the Forest Service over its grazing practices on the Coronado National Forest, and the approval by the U. S. Fish and Wildlife Service of various grazing allotments.  Plaintiffs claim that failure to fence livestock out of riparian areas is harming the threatened Yellow-billed cuckoo and Sonora chub.  The news release includes a link to the complaint.

New lawsuit:  Albany County Conservancy v. Novotny (D. Wyo.)

On July 28, the Conservancy and a former Fish and Wildlife Service eagle biologist filed a lawsuit against BLM’s approval of a transmission line to connect the Rock Creek Wind project to two larger transmission lines that will export wind energy out of the state.  The lawsuit alleges that the approval was done without any public notification, comment or other forms of public participation required by NEPA, and that the EA is legally flawed, particularly the cumulative effects analysis of wind energy development on wildlife.  The article includes a link to the complaint and to a “Renewable Rejection Database,” which records 574 renewable energy proposals being blocked nationally since 2014.

In another article, the same author describes how, “The Bureau of Land Management is withholding oil and gas drilling permits on leased acres on public land, if the leased acres are in litigation.”

Notice of intent to sue

Columbia Riverkeeper, Idaho Rivers United, Idaho Conservation League and the Northwest Sportfishing Industry Association formally notified the Army Corps of Engineers on Friday that it intends to file a lawsuit against operation of four Snake River dams because they are primarily responsible for high water temperatures the effects on migrating salmon.  The potential plaintiffs argue that congressional authorizations for federal dams do not create exemptions to the Endangered Species Act and cannot prevent the dams from being prohibited and removed.

9 thoughts on “Public Lands Litigation – update through July 28, 2023”

  1. “This is only a [Supreme Court] decision about the stay [about the Mountain Valley Pipeline], and the 4th Circuit could still rule on the constitutional questions related to the Fiscal Responsibility Act legislation which purportedly authorized the pipeline to proceed.”

    Incorrect. Congress, having had enough of the Fourth Circuit Court of Appeals’ judicial activism against the pipeline, included a proviso that only the D.C. Circuit Court of Appeals may adjudicate any constitutional questions. Click on the link below.

    Also, there are no constitutional questions that have any conceivable merit. Congress has full authority to direct the pipeline’s completion and to specify how the courts are to consider (or be divested of jurisdiction to consider) relevant issues.

    The legislation didn’t “purport[ ]” to direct the pipeline to be completed. It directed it.

    People are tired of the litigation-obstruction complex and of the Fourth Circuit’s misbehavior in defying Congress with its recent actions, and that now includes the Supreme Court.

    • I don’t understand why the MVP triggered so much angst.. it seems disproportional to the project impacts. Almost as if it were an important symbol to some groups, rather than just a pipeline. I don’t get it.

      • Sharon, as I’m sure you know, there is real conservationism/environmentalism and there is a Luddite religious movement that calls itself conservationist/environmentalist but is faith-based rather than science-based. The pipeline galvanized the latter forces.

    • Corrected, thanks. The 4th Circuit has the ball back, but not much they can do with it. I assume a new case would have to be filed (in the D.C. Circuit Court).

      • You’re welcome. Yes, it would have to be filed in the D.C. Circuit Court. I doubt it would survive long there. I can’t think of any constitutional challenge that wouldn’t be frivolous.

          Plaintiffs haven’t given up, and here is the interpretation I was going with originally:
          “If the court (4th Circuit) decides to dismiss the cases, the environmental groups could potentially pursue legal recourse through the D.C. Circuit Court, which was the court Congress granted jurisdiction through the debt ceiling bill. But if the court decides not to dismiss the lawsuits, the environmental groups could try to halt construction again as their cases continue to work through the court.”

          The constitutional argument against dismissing the case (despite the legislation) is that “Congress didn’t have the constitutional authority to reassign (judicial review) authority over the pipeline.”

  2. Great round-up Jon!
    I wonder from the LA Times article on the Los Padres project.. what does it mean when a judge dismisses the suit “with prejudice”?
    Here’s the FS side of the story..
    “That location was designated because of insect and disease treatment,” Forest Service project manager Katherine Worn told The Times in 2020. “And it’s on a ridge top, and that’s where you would put a fuel break.”

    I thought AFRC did a nice job of reporting on some of these in their newsletter:

    Interestingly, the court explained that the President’s Monument expansion was “modest” because it only affected 40,000 acres out of the two million acres of O&C lands. Opinion at 24. The court also went on to explain that although the O&C Act discusses management for “permanent forest production” in conformity with the principle of sustained yield, “the Act also authorizes the Secretary to manage the O&C land for uses other than the production of timber.” Opinion at 25. The court interprets the O&C Act, including its history, to give the Secretary “flexibility to decide how best to carry of the program of ‘sustained yield’ management.” Opinion at 26. The court concluded that the Monument is consistent with sustained-yield forestry because, among other things, it “provides vital habitat connectivity, watershed protection, and landscape-scale resilience for the area’s critically important natural resources.” Opinion at 27. The court ultimately equates a permanent source of timber supply with maintaining a forest’s vitality via protecting watersheds and endangered species.
    The court concluded, stating: “In sum, the O&C Act provides the Secretary three layers of discretion: first, discretion to decide how land should be classified, which includes discretion to classify land as timberland or not, second, discretion to decide how to balance the Act’s multiple objectives, and third, discretion to decide how to carry out the mandate that the land classified as timberland be managed ‘for permanent forest production.’ 43 U.S.C. § 2601.” Opinion at 27 (emphases added).
    2016 RMPs Appeals. AFRC et al. argued that the 2016 RMPs violated the O&C Act by placing large portions of O&C lands into reserves, e.g., late-successional reserves and riparian reserves, where sustained-yield management is prohibited. The court quickly dismissed this argument for similar reasons as the Monument appeal—finding that the 2016 RMPs is a permissible exercise of the Secretary’s discretion under the Act.
    Again, the court found that the creation of reserves “can reasonably be viewed as an exercise of the Secretary’s discretion to reclassify O&C land as non-timberland, thus removing it from the O&C Act’s ‘permanent forest production’ mandate.” Opinion at 28. In addition, the court found that the creation of the reserves is a balance of the Act’s “several objectives,” including protecting watersheds and regulating streamflow. Opinion at 28-29. Oddly, the court stated that the reserves also “advance the Act’s principal objective—providing a permanent source of timber supply—because a failure to protect endangered species (and their critical habitat) and water quality, both necessary for the continuing vitality of the forest ecosystem, would eventually limit the lands’ timber production capacity.” Opinion at 29.
    *** That is a bizarre reading/and or interpreting of “the science” IMHO**

    Swanson III Appeal. The last issue before the court is whether the BLM violated the O&C Act by failing to sell or offer for sale the ASQ under the previous 1995 RMP. The Government argued that the O&C Act’s requirement to sell the ASQ is not enforceable under the Administrative Procedure Act (APA).
    Under the APA, courts are able to review agency actions that are unlawfully withheld but a claim may only proceed if the plaintiff asserts that the agency failed to take a “discrete agency action that it is required to take.” The court found that the timber volume that the BLM offers to sell each year is not a discrete agency action under the APA; rather, “it is a measurement—a synthesis of multiple sales made over several years.” Opinion at 32.

    Category 6 and thinning/wildlife habitat improvement on the Fremont-Winema

    “Throughout the hearing, Judge McShane approached the application of CE-6 with favorable deference to agency expertise and acknowledgment of the need to treat these areas because of the heightened risk and severity of wildfires. At the conclusion of argument, Judge McShane indicated that plaintiffs have an “uphill battle,” and it will be “tough” for them to succeed on their claim that these three Projects are too large to qualify for approval under CE-6. The Baby Bear Project authorizes up to 3,000 acres of the 4,774-acre project area for commercial thinning; the Bear Wallow Project authorizes up to 10,000 acres of the 17,000-acre project; and the South Warner Project authorizes up to 16,000 acres of the 69,567-acre project area. All three Projects include non-commercial thinning and vital post-treatment prescribed burning throughout the project areas, and are designed to address the need to improve forest health and
    wildlife habitat.
    In our remarks, AFRC argued that the question before the court is a narrow one: if the projects each satisfy the plain regulatory text of CE-6, and if their silvicultural activities fall within the scope of CE-6, the court’s inquiry ends there. Judge McShane asked plaintiffs whether they are attempting to get the court to revisit the Ninth Circuit’s 2022 favorable decision in Mountain Communities for Fire Safety v. Elliot, where the Ninth Circuit found that CE-6 “unambiguously” permits commercial thinning, stating that much of plaintiffs’ arguments in briefing appear to have been taken from the dissent in that case. Mt.Cmtys., 25 F.4th 667, 672 (9th Cir. 2022). The Government pointed out to the court that the Ninth Circuit denied a petition for hearing en banc, thereby declining to revisit its decision in Mountain Communities under the specter of unlimited commercial harvest.
    Judge McShane also asked why the court should set an acreage limit for CE-6 when the Forest Service, in its expertise, deliberately did not include one in the text of the agency’s regulation but did so for others.
    Plaintiffs argued that a smaller size is contemplated for in CE-6 and referred to a series of cases that discuss CE-4 (36 C.F.R. § 220.6(4)(4)), the Forest Service’s road maintenance CE, which also does not have an acreage limitation. In those cases, one of which was decided by Judge McShane, two of the projects were ultimately enjoined (though another was allowed to proceed with some limits). But Judge McShane countered that the issue there was not the size of the project but whether the types of trees authorized for commercial harvest qualified under CE-4’s scope and were actually hazard trees near the road. Judge McShane also asked whether the size of the three projects here is actually appropriate because the threat of wildfire on the Fremont-Winema is at the landscape level.
    Judge McShane stated he would give plaintiffs’ second claim some more thought, particularly the Government’s argument that the second claim is time barred since it was brought years after the
    regulation was promulgated. The Government’s position, which AFRC supports, is that the six-year statute of limitation has run, and plaintiffs are barred from bringing that challenge. Judge McShane closed the hearing by stating he hoped to issue a ruling in the next two weeks. /

    • When cases are dismissed without prejudice, they can be refiled. This is sometimes done voluntarily and may be done to allow correcting correctable errors. With regard to the local government plaintiffs, I think the court found no way that they could achieve standing to sue do dismissed this case with prejudice. (The rules courts use to decide what should be done where seem pretty gray to me, but maybe someone else has a more precise answer.)

      I don’t find this “bizarre” at all: “because a failure to protect endangered species (and their critical habitat) and water quality, both necessary for the continuing vitality of the forest ecosystem, would eventually limit the lands’ timber production capacity.” It follows logically (scientifically or legally) from any concept of sustainability. I think the downward trend in timber production since the ’80s is pretty good evidence of that.

      The 6-year statute of limitations is problematic for decisions (like regulations and forest plans) that will implemented over long periods of time and may not become ripe (in the sense of someone being affected enough to sue) for many years. It seems like it should be ok to invalidate the use of the this CE for this project because the analysis to support the CE did not include circumstances similar to how it’s being applied in this case (i.e. too large of an area). That would different than invalidating the CE.

      • Well, I see two problems with the judge’s point of view.
        1. there are regulations on BLM land that require protecting endangered species and water quality. So the destruction envisioned is not going to happen. The court case was not about removing ESA nor CWA protections.
        2. At the risk of being heretical here, the forests could lose many endangered species before trees could tell the difference. The judge seems to be operating from a philosophy of holism that does not reflect reality.
        The two of them taken together seem bizarre to me as conceivably those judges would be the first to hear if the BLM actually went against ESA or CWA regulations. Then infusing hizzer personal philosophy into deciding a case .. as if that philosophy had a well recognized empirical basis.. . Yes bizarre.

        I agree that whether or not a project uses a CE appropriately is appropriate for litigation. At the same time, the judge seems to be saying that there is no reason it doesn’t fit based on the language and Mountain Communities for Fire Safety v. Elliot.


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