Public Lands Litigation – update through August 17, 2023


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

On August 3, the district court found that consultation with the Fish and Wildlife Service on the recently revised Helena-Lewis & Clark forest plan did not properly account for the “amount and effects on grizzly bears of unauthorized motor vehicle access, failures of road closures, and roads that were supposed to be closed according to travel plans on the Forest that are still physically open.”  The analysis ignored substantial available evidence of motorized use of roads that were considered closed in the analysis, and it significantly underestimated both the amount of actual road use and the impacts on grizzlies.  The court required reinitiation of consultation on the forest plan, as well as for four travel management plans for road-related effects.  For two of the travel plans, this was required to address new information about unauthorized motorized use, and the other two violated incidental take requirements by counting physically open roads as closed.  (The article includes a link to the opinion.)

Court decision in Idaho Conservation League v. U. S. Forest Service (D. Idaho)

On August 4, the district court upheld the Caribou-Targhee National Forest’s second try at authorizing Excellon Idaho Gold’s Plan of Operations for the Kilgore Gold Project.  The court found that an EIS was not necessary and that the EA adequately addressed impacts, primarily related to water.  It also found no substantive violation of the Forest Service’s Organic Act.  (The article links to the proponent’s website for a link to the opinion.)

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

On August 4, the district court allowed the Fremont-Winema National Forest to proceed with nearly 30,000 acres of logging under the categorical exclusion from an EIS fortimber stand and wildlife habitat improvement.”  We discussed that here.

Court decision in Appalachian Voices v. U. S. Department of the Interior, The Wilderness Society v. U. S. Forest Service, Wilderness Society v. Bureau of Land Management (4th Cir.)

On August 11, the circuit court dismissed this long-running case in response to Congressional intervention, but not without two concurring opinions criticizing the process.  (The article has a link to the opinion.)  “I think this is the end of the potential legal challenges, really, when it comes down to it,” said attorney Jared Margolis of the Center for Biological Diversity, one of several groups challenging the project in court.

But wait!  Private owners of land the pipeline would cross continue to contest the use of eminent domain on their properties.  They now argue that Congress cannot deprive them a constitutional right of judicial review of FERC allowing private companies to condemn their private property for the pipeline.

New lawsuit:  Friends of the Big Bear Valley v. U. S. Forest Service (C.D. Cal.)

On August 15, three environmental groups, also including The John Muir Project and the San Bernardino Valley Audubon Society, filed a lawsuit against the North Big Bear Landscape Restoration Project on the San Bernardino National Forest.  They allege violations of NEPA, NFMA and administrative objection regulations. Chad Hanson characterizes the disagreement as about whether fuel reduction should occur “in the remote wildlands” or immediately around homes.  (The article includes a link to the complaint.)

Notice of intent to sue

On August 17, the Center for Biological Diversity filed a notice of intent to sue the Forest Service and Fish and Wildlife Service over the Mud Creek Project on the Bitterroot National Forest.  The project would arguably affect listed bull trout and pioneering grizzly bears, recently reappearing in the Selway-Bitterroot recovery zone.  The news release describes a condition-based environmental analysis: “The Forest Service approved the timber sale without identifying the locations, timing or scope of the logging units or roads. Instead, the agency said it will make those decisions when crews are on the ground, which inhibits analysis of potential harm to protected species and prevents public involvement.”  (The news release includes a link to the NOI.)

Court decision in Center for Biological Diversity v. U. S. Forest Service (and a consolidated case) (D. Mont.)

On August 17, the district court vacated the Kootenai National Forest’s decision on the Black Ram vegetation management project because it violated NEPA, ESA and NFMA.  The issues primarily involve grizzly bears in the Cabinet-Yaak recovery zone, their declining population and the effects of unauthorized motorized use.  (The article includes a link to the opinion.)

While the Payette National Forest considers a proposal to reopen and expand operations of the Stibnite mine (gold, silver, antimony), the new operator has settled a Clean Water Act lawsuit by the Nez Perce Tribe related to ongoing pollution from the existing mine on patented private land.  Perpetua Resources will pay $5 million to the Tribe to fund water quality improvement projects on the South Fork of the Salmon River and cover litigation costs.  The settlement leaves unanswered the degree to which the company is or is not responsible for legacy pollution at the site.  (The Forest Service was not a party to this case.)

Criminal conviction under the Archaeological Resources Protection Act of 1979

ARPA is a federal law that governs the excavation of archaeological sites on federal and Indian lands in the United States, and the removal and disposition of archaeological collections from those sites.  The defendant in this case was convicted of using a tractor to illegally excavate an archeological site within the Desoto National Forest that had been designated as a protected site because it contained material remains of past human activities that are of archeological interest.  (Sentencing has not yet occurred, but the indictment sought forfeiture of his Massey Ferguson tractor.)


New lawsuit:  Southern Utah Wilderness Alliance v. United States Department of the Interior (D. Utah)

On July 31, SUWA challenged the BLM’s authorization of the Sevier Playa Potash Project, near Sevier Lake (south of, and similar to, Great Salt Lake), alleging NEPA violations.  Potash is used in fertilizer, and world supply has been disrupted by the war in Ukraine.  Plaintiffs would have supported development of the southern portion of the project, which would avoid impacting wetlands.

Court decision in Western Watersheds Project v. U. S. Bureau of Land Management (10th Cir.)

On August 7, the circuit court affirmed the lower court’s approval of the BLM’s decision to allow Jonah Energy to drill 3500 natural gas test wells over 10 years in the “Path of the Pronghorn” (discussed here) and sage-grouse habitat, and its compliance with the “National Environmental Protection Act.”  Applications for permits to drill will still need to address site-specific effects.  (The article has a link to the opinion.  This article discusses the claims in more detail.)

Court decision in Western Watersheds Project v. U. S. Bureau of Land Management (D. Ariz.)

On August 9, plaintiffs were given partial relief in response to their lawsuit over BLM’s management of livestock grazing in the Sonoran Desert National Monument.  This is the second time a court has remanded the 2012 resource management plan due to flawed assumptions in the analysis of the effects of grazing (pursuant to NEPA).  The court upheld compliance with the National Historic Preservation Act and the Federal Land Management Policy Act.  (The article contains a link to the court’s order.)

The FLPMA claim included various substantive allegations that the RMP “failed at the programmatic level to protect Monument objects.”  The court concluded that grazing decisions were similar to the logging decisions addressed by the Supreme Court in the Forest Service Ohio Forestry case, and since site-specific protection could still occur, the question of adequate protection would not be ripe until a specific grazing project is proposed.  Here is the court’s understanding:

“Plaintiffs argue that BLM’s decision to “punt grazing management to future allotment-level decisions” will obscure larger-scale impacts of grazing across allotments, but the record does not reflect that BLM would make implementation-level decisions without considering each decision’s impact on the Monument as a whole.”

  • Wild horses

A federal judge in a Nevada case has allowed a wild horse gather to continue despite the deaths of 31 horses among 2500 gathered.  He could not find “there are inhumane treatments with these incidents.”  A representative of the plaintiff Wild Horse Foundation gives their perspective here.  Among other things, they’d like to see more management planning for habitat preservation.

A new lawsuit has been filed in Oregon by The Cloud Foundation seeking more transparency in wild horse roundup activities.  The plaintiff is pushing for the use of non-obtrusive cameras at all aspects of the roundup including on helicopters, at trap sites, and temporary holding pens.


Court decision in Garfield County v. Biden (and a consolidated case) (D. Utah)

On August 11, the district court dismissed two cases from Utah state and local government entities and other parties challenging President Biden’s restoration of the Grand Staircase–Escalante and Bears Ears National Monument boundaries in Utah:  “President Biden’s judgment in drafting and issuing the proclamations as he sees fit is not an action reviewable by a district court.”  Plaintiffs could not point to anything that waived the president’s sovereign immunity from litigation.  They are appealing this decision.  (The article includes a link to the opinion.)

Court decision in State of Wyoming v. U. S. Environmental Protection Agency (10th Cir.)

On August 15, the circuit court affirmed EPA’s approval of plans to reduce air pollution at two Wyoming coal plants affecting national parks and wilderness areas designated as Class 1 under the Clean Air Act.  It remanded a third that it found to be overly restrictive based on an error in EPA’s evaluation.  Environmental intervenors had argued that the plans were not restrictive enough, as explained in this article (which includes a link to the opinion.)

FISH AND WILDLIFE SERVICE – update next week





2 thoughts on “Public Lands Litigation – update through August 17, 2023”

  1. The San Bernardino NF considers all their lands (excluding Wilderness ) to be in the WUI. I would tend to agree. For information, the nearest lumber mill is FIVE hours north (one way), located in Terra Bella (an hour north of Bakersfield).

  2. “Using big machines to cut down tens of thousands of trees out in the remote wildlands, as opposed to focusing on the homes themselves and the zone immediately around the homes.”

    Ummmm, most of the lands ‘immediately around homes’ are not on Forest Service lands. In addition, has Hanson applied his claim that fires travel faster through private lands thinned of excess fuels? Is that where (next to homes) we want fires to travel faster?

    I think large buffer zones with shaded fuelbreaks along boundary lines would be a good idea, where practical. I’ll bet property owners would be in favor of meaningful fuels reductions in the National Forest.


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