NATIONAL FOREST CASES
Court decision in Eagle County v. Surface Transportation Board (D.C. Cir.)
On August 18, the circuit court reversed a decision by the Board to allow construction of the Uinta Basin Railway connecting oil fields in Utah to a railroad along the Colorado River by 88 miles of track through the Ashley National Forest. The Forest Service had granted a permit for the railroad (but was not a party to this lawsuit). According to the court, the environmental impact statement, which largely limited its analysis to the effects of the new construction, failed to adequately study the potential of oil spills, trail derailments along the Colorado River and the potential for wildfire in communities along tracks. It also did not address the health of the Texas and Louisiana residents who would bear the brunt of increased air pollution near oil refineries. (This article has a link to the opinion.)
Court decision in Alliance for the Wild Rockies v. U. S. Forest Service (D. Mont.)
On August 23, the district court vacated the “Gorilla” (GRLA) Project on the Custer-Gallatin National Forest, which had authorized logging and thinning activities on approximately 21,871 acres, because it reduced the designation of lynx habitat without formal review. The forest plan includes direction applicable to “mapped lynx habitat” on this national forest. The Project NEPA analysis “could not rely on Canfield (2016)’s (modified) lynx habitat map without first reviewing Canfield (2016) under NEPA—either separately or as part of the Project EIS.” It referred to this as improper “tiering,” and held that the Forest violated NEPA by failing to take a hard look at the environmental effects of its revisions to the lynx habitat map. (I see the problem as one of amending the forest plan without a formal process, which would also be a violation of NFMA.) The court upheld the Forest on its determination of the wildland-urban interface to comply with exemptions from lynx management direction, and consideration of cumulative effects of a nearby timber sale on state lands. (The article includes a link to the opinion.)
Court decision in Friends of the Inyo v. U. S. Forest Service (9th Cir.)
On August 25, the circuit court reversed the decision of a lower court that would have allowed exploratory drilling in bi-state sage-grouse habitat on the Inyo National Forest. While a full opinion has not been released, the court apparently ruled against the use of categorical exclusions.
Magistrate findings in Greater Hells Canyon Council v. Wilkes (D. Or.)
On September 1, the district court reversed a plan amendment for national forests in eastern Oregon and Washington that would have allowed logging of trees greater than 21″ in diameter. (The link is to our extended discussion here.)
Court decision in Center for Biological Diversity v. U. S. Forest Service (9th Cir.)
On September 1, the circuit court refused to require the Forest Service to prohibit the use of lead shot by hunters in the Kaibab National Forest to protect endangered California condors. It specifically rejected the contention that the Forest Service inaction is violating the Resource Conservation and Recovery Act, a law that lets private organizations and individuals sue anyone who contributes to improper disposal of hazardous waste. The ruling said that even though the Forest Service has “broad authority to regulate hunting and fishing activities,” it rarely chooses to preempt state laws (see this post for background on this issue). This article includes a link to the opinion.
New lawsuit: U.S.A. v. Southern California Edison Company (C.D. Cal.)
On September 1, the federal government sued Southern California Edison for damages it sustained from the 2020 Bobcat Fire that burned over 100,000 acres of the Angeles National Forest. The Forest Service says it spent more than $56 million suppressing the fire, incurred property and natural resource damages of over $65 million, and spent $769,000 on burned area emergency response costs. Forest Service investigators determined the Bobcat Fire started when a tree came in contact with power lines. The article includes a link to the complaint. (Query: did the Forest Service count any of these burned acres as accomplishments?)
Notice of intent to sue
On September 6, the Center for Biological Diversity, Alliance for the Wild Rockies and Council on Wildlife and Fish notified the Custer-Gallatin National Forest and U. S. Fish and Wildlife Service of their intent to sue regarding the South Plateau Project’s effects on grizzly bears and Canada lynx. The notice also criticizes the use of condition-based process to identify treatments and the logging of mature trees, and it suggests that the project does not comply with the just-revised forest plan. (This article includes a map showing the results of the mature and old growth inventory for this part of Montana, and the mapping tool is available here.) The NOI is available here.
Court decision in Twin Metals Minnesota LLC v. U. S. A. (D. D.C.)
On September 6, the district court dismissed an attempt by the mining company to reinstate the company’s mineral leases for its planned copper-nickel mine near the Boundary Waters Canoe Area Wilderness in the Superior National Forest, which had been cancelled by the Bureau of Land Management. The land had then been withdrawn from mineral entry by the Department of the Interior. The court essentially found that the mining company had no legal rights to its lease. (The Forest Service was not a party to this case.)
Litigation follow-up
After losing two recent timber sale lawsuits (Ripley and Black Ram) involving the effects of roads on grizzly bears, the Kootenai National Forest is proposing to amend its forest plan to change the way roads are counted in areas outside of grizzly bear recovery zones (BORZ) to allow the use of temporary roads during logging projects to not count against road limits. After admitting that, “there’s no (timber sale) project that comes across my desk that gets denied,” the forest supervisor observed, “Getting a handle on the courts would help a lot.”
Settlement regarding restoration of national forest lands
While the state had previously agreed to remove the shipping containers it had placed as barriers along the Mexican border, and had done some restoration work, they have now also agreed to pay an additional $2.1 million to fully remediate the damage to national forest lands. Once that bill is paid, the case would be dismissed
BLM CASES
New lawsuit
The Applegate Siskiyou Alliance has challenged the BLM’s 10-year “integrated vegetation management for resilient lands program,” or IVM-RL, for more than 680,000 acres in the region, as well as the specific Late Mungers project, which involves 830 acres of commercial harvest and 7,500 acres of thinning. Up to 20,000 acres of commercial logging, 60,000 acres of small-diameter tree thinning, 70,000 acres of prescribed burning and 90 miles of road construction would be allowed over a decade. The BLM did not prepare an EIS and did not identify specific sites necessary for a site-specific evaluation, allegedly in violation of NEPA.
Post-litigation
As a result of previous court challenges and settlements, the BLM has produced a new proposal for a resource management plan for Colorado’s Western Slope, which is currently open for public comments. BLM says in the draft proposal it would bar industry access to lands with “no-known, low or medium” oil potential, as well as to acres that are striking for their wildlife, conservation or wilderness values. This would be a significant reversal of the current situation – it would mean closing 80 percent of the lands in the decision area managed by the Colorado River Valley Field Office to new oil leasing and 81 percent of the Grand Junction Field Office’s lands. It would keep 93 percent of the Colorado River Valley Field Office’s high oil and gas potential lands open to leasing, but in the Grand Junction Field Office only about 44 percent of the high oil potential area would be available for leasing. (Interestingly, per this article, the mountain bike industry is “neutral” – “if those companies weren’t there, the roads wouldn’t be either.”)
FISH AND WILDLIFE SERVICE CASES
New lawsuit: Center for Biological Diversity v. Haaland (D. Ariz.)
On August 22, the Center sued the Fish and Wildlife Service for reducing the previously proposed critical habitat by 90% for the narrow-headed garter snake and the northern Mexico garter snake; both are threatened species. The reduction was the result of eliminating unoccupied critical habitat. The riparian habitat they use is found on the Tonto, Coronado, Coconino and Prescott National Forests, and BLM and National Park lands, and occupied habitat there was designated as critical habitat. (The news release includes a link to the complaint.)
Court decision in Center for Biological Diversity v.U. S. Fish and Wildlife Service (S.D. N.Y.)
On September 6, the district court vacated the Fish and Wildlife Service’s decision to not list the eastern hellbender as threatened or endangered. The court found that the Service unlawfully relied on conservation measures that had not yet been implemented and determined effective and that did not address sedimentation, a primary threat to the species. The large salamander lives across the eastern U. S. It was previously listed as endangered in Missouri. (The news release includes a link to the opinion.)
(The Center for Biological Diversity doesn’t always win these listing/critical habitat lawsuits. Here, they lost their challenge to a 90-day negative finding by the FWS for listing the Tucson shovel-nosed snake, the court deferring to the use of genetic testing by the Fish and Wildlife Service to define the range of the subspecies.)
Great summary as always.. thank you Jon!
I don’t quite understand “The Project NEPA analysis “could not rely on Canfield (2016)’s (modified) lynx habitat map without first reviewing Canfield (2016) under NEPA—either separately or as part of the Project EIS.”
If the FS puts a map into a project EIS, why doesn’t that count as a NEPA review?
I’m kind of confused by this, too, which I think is because the plaintiffs here (and in the similar case they cite) pursued this as a NEPA tiering claim instead of an NFMA amendment claim. I think the simplest way to look at it, which the court did say, is that changing the maps has environmental effects (because they are part of plan decisions), and the project analysis did not evaluate the effects of changing the plan decisions. I think this would have required an alternative, maybe no-action, that used the old maps. But I think the best (maybe only legal) thing to do after a forest-wide mapping exercise that affects the forest plan is to evaluate the effects of that change at the time, and determine if some kind of additional NEPA disclosure is necessary (which there would be if you are actually changing the plan, as in this case).
(If I remember the history right, the Fish and Wildlife Service did not want the Forest Service to be able to regularly change lynx maps on a project-by-project basis, so the agencies agreed to set it up to have greater oversight.)