Public Lands Litigation – update through October 5, 2023

I wanted to wrap up the latest before my own “blogging break.”  Not a lot where the Forest Service is a party, and mostly related to the Endangered Species Act, but should be relevant and hopefully interesting.

FOREST SERVICE

• Helena-Lewis & Clark NF Middleman Project

New lawsuit

On September 25, Native Ecosystems Council and Alliance for the Wild Rockies filed a lawsuit in the Montana federal district court to oppose the Middleman Project on the Helena-Lewis and Clark National Forest.  The complaint says the project area encompasses 141,799 acres and includes 53,151 acres of tree cutting and burning, 46 miles of new temporary road construction and 90 miles of road reconstruction.  The effects of roads on grizzly bears, changes in mapping of lynx habitat and effects on elk habitat are issues raised by plaintiffs, who allege violations of NEPA and NFMA.

ENDANGERED SPECIES ACT

• North Cascades grizzly bears

Litigation follow-up to Center for Biological Diversity v. Bernhardt (D. D.C.)

On September 28, the U.S. Fish and Wildlife Service and National Park Service released a draft plan and EIS analyzing options to restore grizzly bears to the North Cascades in Washington. This step follows the Center for Biological Diversity’s litigation challenging the Trump administration’s 2020 termination of a previous restoration plan.  The draft plan and the lawsuit complaint are linked to this news release.  (Plaintiffs refer to the litigation as “successful,” but I haven’t found a court opinion.)

• Los Padres NF steelhead

Supreme Court review denied in San Luis Obispo Coastkeeper et al. v. Santa Maria Valley Water Conservation District (9^th Cir.)

On October 2, the U. S. Supreme Court denied a request from the operators of Twitchell Dam to avoid measures to protect the endangered Southern California steelhead in the Santa Maria River system.  The decision leaves in place a ruling by the 9th Circuit Court of Appeals that the Bureau of Reclamation and the Santa Maria Valley Water Conservation District can release water from Twitchell Dam to comply with the Endangered Species Act.   Said ForestWatch executive director Jeff Kuyper, “With simple changes to the Dam’s water release schedule, we can give fish a fighting chance at reaching their historic spawning grounds in Los Padres National Forest while maintaining plentiful water supplies for our farms and communities.”   (The 9th Circuit opinion is here.)

• Red wolf “non-essential” designation

New lawsuit:  Center for Biological Diversity v. Haaland (E.D. N.C.)

On October 4, plaintiffs challenged the Fish and Wildlife Service’s failure to respond to their 2016 petition to change the designation of the population of the 13 remaining wild red wolves as “non-essential” and restrict red wolf shootings by private landowners.  The Endangered Species Act defines an experimental (reintroduced) population as ‘essential’ if the loss of the population would significantly reduce the likelihood of the species’ survival in the wild.  Additional background is provided here.

• Proposed ESA listings

Two species have recently been proposed for listing under ESA by the Fish and Wildlife Service, both after lawsuits initiated by the Center for Biological Diversity.

On September 29, the FWS proposed listing the northwestern and southwestern pond turtles, found throughout Washington, Oregon and California, as a threatened species.  They may be found at elevations up to 6500 feet.  The CBD news release is here and the Federal Register Notice is here.

On October 2, the FWS proposed listing the short-tailed snake as threatened.  The short-tailed snake has adapted to live primarily underground in sandy upland sandhill, scrub and hammock habitat in central and north Florida.  Silviculture is among the threats to its persistence.  This news release includes a link to the Federal Register notice.

• Six Rivers NF Lassic lupine final ESA listing

On October 5, the Fish and Wildlife Service listed the Lassics lupine as endangered, and designated 512 acres of critical habitat on the Six Rivers National Forest.  It is found at high elevations only along the California-Nevada border.  Said Vicky Ryan, of the Arcata Fish and Wildlife Office, “We’re grateful for our partnership focused on Lassics lupine conservation and habitat management with Six Rivers National Forest.”  The article includes a link to the notice (and it does not mention the Center for Biological Diversity).

• Listing reversals vetoed

On September 26, President Biden vetoed two Republican-sponsored Senate joint resolutions seeking to undo Endangered Species Act protections for the northern long-eared bat and the lesser prairie-chicken, which became effective in January, 2023.  While the prairie chicken is primarily found on private, non-forested lands, the effect of up-listing the bat to endangered status could affect logging and federal lands.  (This legislative procedure is authorized by the Congressional Review Act.)

IRONIC HEADLINE OF THE MONTH:  “PRESCRIBED BURNS PLANNED FOR SMOKEY BEAR RANGER DISTRICT”