Public Lands Litigation – update through September 25, 2023


Court decision in Patagonia Area Resource Alliance v. U. S. Forest Service (D. Ariz.)

On September 1, the district court denied a preliminary injunction against the Sunnyside and Flux Canyon exploratory drilling projects in the Patagonia Mountains on the Coronado National Forest.  The Sunnyside Project is a seven-year exploratory drilling project, requiring the construction of thirty drill pads within three drill areas occupying 7.5 acres.  The Flux Canyon Project is a twelve-month exploratory drilling project, requiring the construction of about 2,000 feet of road and six drill pads disturbing 1.8 acres of national forest land.  The court found plaintiffs would be unlikely to prove inadequate analysis of cumulative effects, effects on Mexican spotted owls and other species and water conditions in the EA for the Sunnyside Project or that Flux Canyon Project did not warrant a CE.

New lawsuits:  Alaska v. U. S. Dept. of Agriculture (D. Alaska)

Inside Passage Electric Cooperative v. U. S. Dept. of Agriculture (D. Alaska)

Murkowski v. Vilsack (D. Alaska)

On September 8, the State of Alaska and two other groups of plaintiffs filed three separate federal lawsuits challenging the Forest’s Service’s repeal of the 2020 Alaska Roadless Rule and reinstatement of the national 2001 Roadless Area Conservation Rule on the Tongass National Forest, which restricts road construction.  The lawsuit focuses on “prospective geothermal and hydroelectric power plants, as well as hypothetical metal mines whose products could be used for green technologies.”  An attorney for a plaintiff said that logging companies aren’t part of these new lawsuits because logging is restricted under a new forest plan, and the prospects of changing the forest plan are limited (evidently referring to the 2016 “young growth” plan amendment).  (The article includes a link to all three complaints.)

New lawsuit:  Western Watersheds Project v. Haaland (D. D.C.)

On September 14, plaintiffs sued Clark County, NV and the Fish and Wildlife Service along with the Forest Service, BLM, and Park Service (and USDA and USDI) for failing to protect the Mojave desert tortoise and other rare species subject to the Clark County Multi-Species Habitat Conservation Plan (“MSHCP”). The Forest Service, BLM, NPS, and Fish and Wildlife Service all signed an Implementing Agreement, which binds them to implement the MSHCP.  The MSHCP was created to offset the development of nearly 170,000 acres of land on the outskirts of Las Vegas that would destroy habitat for imperiled desert species, in exchange for mandatory conservation measures, which have allegedly not been implemented.  Trespass grazing (by Cliven Bundy) and solar energy permits are among the activities being allowed to occur.  Plaintiffs seek reinitiation of ESA consultation on the effects of the incidental take allowed by the MSHCP, and supplemental NEPA analysis.

New lawsuit:  Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On September 20, the Center for Biological Diversity, the Council on Wildlife and Fish, and the Alliance for the Wild Rockies sued to stop the South Plateau Landscape Area Treatment Project just west of Yellowstone National Park on the Custer Gallatin National Forest.  Plaintiffs say the 83 million board-feet of commercial timber expected to be removed is “significantly more than allowed under the Custer Gallatin National Forest Plan.”  The Project would log mature forests using a condition-based approach to NEPA compliance that does not identify specific locations.  However, it plans timber harvest or burning on 16,462 acres, including 5,531 acres of clear-cutting, 6,593 acres of other commercial harvest and 56 miles of roads in habitat designated for grizzly bears and Canada lynx.  The article includes a link to the complaint.  On September 6, the lawsuit parties also filed a notice of intent to sue under the Endangered Species Act (linked to this article).

New lawsuit

The Forest Service is suing three businesses alleging that smoke bombs — deemed illegal in California and used during an ill-fated gender reveal event — were defective, and sparked the deadly 2020 El Dorado fire in San Bernardino County.  The suit, which alleges negligence and health and safety violations, seeks unspecified monetary damages for fire suppression and investigative costs and various adverse environmental impacts.

New lawsuit

Thirty-two Wyoming residents and organizations are suing the Forest Service for allegedly choosing to not suppress the 2018 Roosevelt Fire on the Bridger-Teton National Forest during “red-flag” fire conditions.  The fire consumed more than 65,000 acres and burned 55 homes.  Using an unplanned fire to achieve natural resource benefits isn’t authorized by federal law and violates the National Environmental Policy Act, the complaint says. The document also accuses the agency of failing to consult with the U.S. Fish and Wildlife Service under the Endangered Species Act and failing to harmonize the act with the Forest Plan.


New lawsuit:  Western Watersheds Project v. U. S. Dept. of Interior (D. D.C.)

On September 14, Western Watersheds and Public Employees for Environmental Responsibility filed a lawsuit accusing the Bureau of Land Management of failing to perform required grazing permit reviews across the West.  PEER analyzed data from 1997 to 2019 on land health evaluations for BLM’s 21,000 grazing allotments, and found the 27% had not been evaluated for environmental impacts pursuant to NEPA, with an even greater proportion in important natural areas and wildlife habitat, including for sage-grouse.  The plaintiffs argue that this violates 2014 and 2015 FLPMA amendment requirements to determine priority for environmental analysis and to conduct such analyses.  The article includes a link to the complaint.

New lawsuit:  Cascadia Wildlands v. U. S. Bureau of Land Management (D. Or.)

On September 19, Cascadia Wildlands and Oregon Wild went to court to stop the Big Weekly Elk Forest Management Project on the Coos Bay District.  The Project decision is based on an EA, and includes logging uncommon mature and old-growth forests and habitat for marbled murrelets and northern spotted owls.  The news release has a link to the complaint.


Court decision in Earth Island Institute v. Muldoon (9th Cir.)

On September 12, the circuit court affirmed the district court’s denial of Earth Island Institute’s motion for a preliminary injunction to halt parts of two projects to thin vegetation in Yosemite National Park in preparation for controlled burns.  The court held that the projects fell under the “minor change” categorical exclusion because they were “changes or amendments” to the 2004 Fire Management Plan that would cause “no or only minimal environmental impact.”

New lawsuit:  Wilderness Watch v. National Park Service (E.D. Cal.)

On September 25, Wilderness Watch, Sequoia Forestkeeper and the Tule River Conservancy filed a complaint seeking to enjoin “Fuels Reduction Efforts to Protect Sequoia Groves in Sequoia and Kings Canyon National Parks from the Devastating Effects of High-Intensity Fire,” authorized by a decision memo and using emergency NEPA procedures.  Much of the tree cutting and burning would occur in designated wilderness, with Park Service arguing that is “necessary” to violate the Wilderness Act.  The article includes a link to the complaint.


Settlement in Center for Biological Diversity v. Environmental Protection Agency (N.D. Cal.)

On September 12, the court approved a settlement agreement that commits the Environmental Protection Agency to develop a strategy to address the effects of over 300 active ingredients in herbicides, insecticides and rodenticides on ESA-listed species by 2025.  A biological evaluation to address the harms of eight especially hazardous organophosphate insecticides on endangered species is required by 2027.  The news release includes a link to the settlement and 2011 complaint.


On August 31, the Fish and Wildlife Service listed four distinct population segments (DPSs, see map) of foothill yellow-legged frog under the Endangered Species Act.  In the final rule, the Service identified altered hydrology, agriculture, illegal cannabis cultivation, predation by nonnative species, diseases and parasites, mining, urbanization, recreation, severe wildfire, drought, extreme flooding, and the effects of climate change as severe threats to the Frog  The species is found on national forests, and was part of a recent lawsuit mentioned here.

Noah Greenwald, director of the Endangered Species program at the Center for Biological Diversity:

Grizzlies wouldn’t be roaming the greater Yellowstone ecosystem if it wasn’t for plentiful food, and the vast wildlands of the national park that offer protections from traps, bullets, chainsaws and bulldozers. But one of the most important places for grizzlies in recent decades has been the federal courthouse. I recently reviewed every lawsuit filed on behalf of grizzlies bears during the past 30 years and it’s clear that litigation has played a pivotal role in protecting these bruins under the Endangered Species Act, ensuring they survive and thrive.

When it passed the Endangered Species Act 50 years ago, Congress recognized that implementing the law would be difficult for agencies like the Forest Service and Fish and Wildlife Service because of the likelihood of direct conflicts with powerful special interests. As an antidote, a provision was included in the law that allows private citizens to go to court on behalf of species like bears that can’t speak for themselves.

Dozens of lawsuits have been filed during the last few decades to stop logging, mining, road building, livestock grazing and other destructive projects in grizzly bear habitat. Recently the Center for Biological Diversity, where I work, stopped two massive timber sales in the Kootenai National Forest in northwestern Montana that threatened the endangered Cabinet-Yaak population of bears.  The U.S. Forest Service wanted to clearcut hundreds of acres of old forest and construct miles of new roads, which would have had devastating consequences for the grizzly bears.”

And here’s the latest effort to protect grizzly bears in a federal courthouse.   The lawsuit alleges the Idaho Department of Fish and Game killed a grizzly bear cub without authorization from the U.S. Fish and Wildlife Service, which also is named as a defendant for allegedly permitting two other bears to be killed contrary to federal regulations.

9 thoughts on “Public Lands Litigation – update through September 25, 2023”

    • This should be in every public discourse going forward, on top of “Agenda Driven Science” and what the agenda-driven ‘scientists’ themselves put forth in response to that paper (bad look to email and attack a grad student).

      “The Institute argues that the Projects are “highly controversial” because some scientists dispute the Agency’s position that tree-thinning aids fire prevention and management—some going so far as to say that thinning can increase the risk of severe fires. In support of its position, the Institute offers declarations from Dr. Chad Hanson, a research ecologist at the Institute. Dr. Hanson asserts that “[p]ost-fire logging and clearcutting, which Defendants are in fact doing in the Park through the challenged logging projects . . . is perhaps the most highly controversial of all forest management activities.” He explains:

      Unlike prescribed fire, managed wildfire, and thinning of genuinely small trees and underbrush, commercial logging operations like commercial thinning and post-fire logging fundamentally change the microclimate of a forest and often tend to increase overall fire severity and tree mortality. In fact, research by U.S. government scientists that promotes commercial thinning . . . acknowledges this, such as Prichard et al. (2021).
      As an initial matter, Dr. Hanson overstates the relevant controversy by mischaracterizing the Projects. According to Dr. Hanson, there is significant scientific controversy surrounding “commercial thinning” and “post-fire logging.” But contrary to Dr. Hanson’s assertion, the Agency is not “in fact doing” these things. First, the Agency represents that “no entity profits from the sale of any timber cut during project work,” explaining that the “minimal monies received from collecting small trees and biomass are dedicated entirely to offsetting project costs and cover a small fraction of project expenses.” Other than Dr. Hanson’s conclusory accusations, there is no evidence to the contrary. Second, the thinning contemplated by the Projects is in preparation for a prescribed burn and accordingly is not appropriately characterized as post-fire logging.

      Similarly, the literature on which Dr. Hanson relies as evidence of scientific disagreement does not criticize thinning of the sort contemplated by the Projects. For example, Dr. Hanson cites a paper by Susan J. Prichard et al. as evidence of the purportedly relevant controversy. But that paper discusses the deficiencies of thinning conducted without subsequent prescribed burns—not thinning conducted in preparation for prescribed burns. See Susan J. Prichard et al., Adapting Western North American Forests to Climate Change and Wildfires: 10 Common Questions, 31 Ecological Applications, no. 8, Dec. 2021, at 10 (“On most sites, thinning alone achieves a reduction of canopy fuels but contributes to higher surface fuel loads [that] . . . can contribute to high-intensity surface fires.” (emphasis added)). The paper in fact supports the Agency’s position, concluding that “although the efficacy of thinning alone as a fuel reduction treatment is questionable and site dependent, there exists widespread agreement that combined effects of thinning plus prescribed burning consistently reduces the potential for severe wildfire across a broad range of forest types and conditions.” Id.”

      • Hanson is simply not a trustworthy source of information. Apparently, he continues to lie about salvage logging and thinning, but he refuses to bring that ‘evidence’ (which would win his lawsuits) into the courts. We’ve seen his efforts to show clearcuts in USFS projects. He seems to have trouble knowing where he is on a map. Multiple times he has presented pictures, which I thoroughly debunked. He has shown private land clearcuts, pretending it is Forest Service. He has also failed to provide actual Google Maps locations of his claims, too.

      • “… thinning can increase the risk of severe fires.”

        To be honest, there are some shreds of scientific truth in there. A thinned forest, burned, or un-burned, can allow rapid fire movement via light and flashy ground fuels. Such a fire could rapidly reach more concentrated fuels, making a fire more severe.

        However, against the small ‘harms’ are many benefits to selective thinning of overstocked forests. I would have to look at the documents and plans to decide what is legal within Yosemite National Park. Being a big fan of the Park, I would be concerned about the cutting of old growth, unless that “old growth” is a 16″ dbh tree.

        Truthfully, it sounds more like a donations generator. It’s much better to lie to potential donors than to a Judge.

  1. In the case of grizzly bears. What are the facts. Did the US Fish and Wildlife folks say that the projects would threaten the bears or they would have devastating effects on the bears. – Did the Judge say they would do either of the above or was the case based on “process” failures by the agency.

  2. I was going to point out the treatment by the court of Hanson’s declaration that Anon did above. Hanson did not make the case that his science was compelling enough in this fact setting to constitute scientific “controversy” about the effects of this decision that would require a more rigorous NEPA process. I found the court’s definition of “(non)commercial” to be interesting (“minimal monies received from collecting small trees and biomass are dedicated entirely to offsetting project costs and cover a small fraction of project expenses), but I wonder how this relates to environmental effects. I said some things about this case when it was filed, and thought I should do some follow-up here. If you like NEPA-nerdy legalese read on.

    One was about the use of “tiering” when using a CE. In a footnote, the court says, “We have held that agencies are permitted to refer to prior environmental analyses when invoking a categorical exclusion,” citing a prior case. Both opinions seemed to not want to nitpick this issue.

    This is actually kind of an intriguing case, especially from a planning perspective. It gets into the difference between a programmatic decision and a project. The 9th Circuit relies heavily on a prior case involving power plant leases (Pit River) where, the programmatic EIS had “not address[ed] the environmental implications” of approving power plant development “in particular locations,” leaving such site-specific analyses to be prepared “for each lease area prior to any leasing action.” In contrast, in the Yosemite case, “the Plan considered the environmental impacts of performing the relevant fuel-reduction techniques in specifically identified parts of Yosemite.” Also, “the Fire Management Plan is not purely programmatic; instead, it contains both programmatic and site-specific elements.”

    The issue in this case arose because these “projects” deviated from the fire plan by authorizing treatments in different (small) areas than those already evaluated site-specifically, and allowed larger trees to be removed than the original plan did. The court rejected Plaintiffs claim that this was implementation of the plan rather than changes to it.

    The court does not discuss any Forest Service plan cases, and It kind of makes my head hurt to think about this under the Forest Service plan/project scheme, so it’s a little hard for me to agree that, “The challenged Projects are easily characterized as “changes” or “amendments” to the Fire Management Plan.” (It’s not clear whether these changes, and effects, would also apply to future projects, which would make it look more like a programmatic decision, but I would infer they would not because plaintiffs did not raise that question.)

    It makes the most sense to me to view the Fire Management Plan as more akin to a Forest Service project than to a national forest plan because it provided a site-specific analysis for activities it authorized. I assume that if there were no deviations from the plan, these projects could have proceeded without even a categorical exclusion.

    So, what this “plan” really looks like to me is more akin to Forest Service “condition-based” project NEPA. Even though the fire plan doesn’t talk about future “conditions” that would govern projects, deviation has occurred because of changes in those conditions. The process used to change the fire plan for these projects in response to those changes should be similar to what the Forest Service would need to do to address the new site-specific information when it gets to actually looking at site-specific projects following its condition-based approach. However, the Forest Service does not have the CE that the Park Service used.

    The NPS actually, “expressly considered the impact that the Projects will have on twenty-nine resources” to demonstrate that the effects were minor, which allowed them to use the categorical exclusion. (That seems to defeat the purpose of a CE, but whatever.) They even consulted with the Fish and Wildlife Service. (The court chided the NPS for considering the effects of the entire project rather than just the changes.)

    • I’ve seen in other NPS ‘Fuels Projects’ where, instead of logging, prescribed fire was used during warm and dry weather to ‘achieve’ a desired amount of tree mortality. It sure doesn’t seem very precise or effective at getting exactly what is needed, for better ‘ecosystem functioning’.

      (Yes, it is kind of a pet peeve of mine that the National Park Service can light prescribed burns during dry and hot summer days.)

    • An addendum to that last (sentence). The changes from the plan were the result of changes on the ground in factors that drove the development of the plan, so arguably the effects of the entire plan should have been reconsidered, and the plan should have been changed for all future projects.


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