It seems like plaintiffs have been picking on some other folks lately.
FOREST SERVICE
Intervention denied in Wilderness Watch v. Jackson (D. Idaho)
In this case involving the use of airstrips in the Frank Church-River of No Return Wilderness, described here, the court denied a motion to intervene filed by the Idaho Aviation Association, Idaho Recreation Council, and an individual on November 20. They had argued that, without intervention, the Forest Service would be free to settle its dispute with Plaintiffs, which may result in termination of access by their members to the airstrips. The court found that the interest claimed by intervenors was limited to use of the airstrips, which was adequately represented by the State of Idaho with stronger interests and the Forest Service, and that Intervenors would not be needed in any settlement discussions or be required to approve any settlement between the parties.
On November 30, there was a hearing in the Eastern District of Washington district court in this case (described here). It is a case that directly challenges the Okanogan-Wenatchee’s use of “condition-based” NEPA, which we have discussed in some depth, and is described further in this article. (A new twist to me was the plaintiff’s argument that the use of condition-based management makes the project a “de facto amendment” to the Okanogan-Wenatchee Forest Plan.)
Court decision in Earth Island Institute v. U. S. Forest Service (9th Cir.)
On December 7, the Ninth Circuit affirmed the district court and upheld the Three Creeks logging project on the Inyo National Forest against claims of NEPA violations. The opinion’s introduction includes a short summary of the court’s holdings on specific issues.
BLM/NPS
Amended complaint in Wilderness Watch v. National Park Service (E.D. California)
The John Muir Project has joined this lawsuit as a plaintiff, and the new complaint adds an alleged violation of the Wilderness Act by replanting of sequoia trees in burned areas within designated wilderness areas (including the use of helicopters and dynamite). Chad Hanson also argues that replanting after the fires is unnecessary. (The original lawsuit was reported here.)
Partial court decision in Western Watersheds Project v. Secretary of the Interior (D. Oregon)
On December 4, the district court adopted a magistrate’s recommendations to dismiss portions of this case involving grazing permits for the Hammond Ranch on four allotments in southeastern Oregon. The BLM had declined to renew them after two of the ranch owner and operators were convicted on criminal charges stemming from allegations that they intentionally set fire to public lands. On January 19, 2021, on his last day in office, then-Secretary of the Interior, David Bernhardt, issued a decision authorizing the grant of grazing permits. The lawsuit was filed on February 25, 2021, and the magistrate made his recommendations on November 8, 2022. With this dismissal of claims related to the protest period and the validity of the EA (since the BLM is now preparing an EIS), the case will continue to consider issues regarding awarding the permit to an unqualified applicant under FLPMA, whether the permit complied with applicable land use plans, and whether issuing the permit violates the Steens Act by not adequately protecting the Steens Management Area.
Settlement of Center for Biological Diversity v. Haaland (D. Nev.)
On December 8, the parties submitted a joint stipulated dismissal reflecting an agreement by BLM to provide public notice for all new exploration or mining projects near the Ash Meadows National Wildlife Refuge in Nevada for the next 12 months. Two weeks after the lawsuit was filed in July, the BLM had rescinded their approval because they determined that a lithium exploration project less than a mile from the refuge would likely cause damage to the groundwater that feeds the meadows.
Court decision in Center for Biological Diversity v. Haaland (S.D. Florida)
On December 11, the district court stated, “Federal Defendants do not dispute that they violated NEPA and ESA’s Section 7(a)(2) and agree that Eleventh Circuit jurisprudence warrants vacatur” of the National Park Service’s decision to release land-use restrictions it held on private property so that it could be developed. As a result, the court did not address an ESA Section 7(d) claim. (I assume this is viewed as similar to disposition of federal lands.)
FISH AND WILDLIFE SERVICE
Court decision in Center for Biological Diversity v. Haaland (9th Cir.)
On December 4, the Ninth Circuit reversed a district court decision involving groundwater pumping by the Fort Huachuca Army base in Arizona because the analysis of effects on the San Pedro River improperly assumed that a conservation easement it had obtained for mitigation purposes would reduce future water use. The court held that the conservation effects of the easement were not “reasonably certain to occur” because there was a lack of evidence that the property would ever have been used for agriculture that would require the water. Plaintiffs contend (in this article) that ongoing operation of the military base is depleting the groundwater. (This issue reminds me of evaluating carbon offsets.)
Settlement of Center for Biological Diversity v. Haaland (D. D.C.)
On December 13, the parties stipulated to a settlement agreement that establishes a 2-year deadline for completing a draft recovery plan, and an additional year for a final recovery plan, for gray wolves where they are still a listed species.
OTHER CASES OF INTEREST
Preliminary injunction in Flathead-Lolo-Bitterroot Citizens Task Force v. Montana (D. Montana)
On November 21, the district court granted a preliminary injunction preventing the use of wolf traps and snares in areas of occupied grizzly bear habitat across Montana, “except during the time period when it is reasonably certain that almost all grizzly bear will be in dens: January 1, 2024, to February 15, 2024.” The season was scheduled to open in November. The court found plaintiffs “have established serious questions on the merits and a reasonably certain threat of imminent harm to grizzly bears should Montana’s wolf trapping and snaring seasons proceed as planned,” which would violate the ESA’s prohibition against incidental take of listed species. The press release includes a link to the opinion.
New lawsuit: Friends of Alta v. Utah Department of Transportation (D. Utah)
On December 4, the Friends of Alta, the International Outdoor Recreation Asset Alliance and several individuals filed a complaint against the Department of Transportation’s gondola project planned to address traffic bottlenecks in Little Cottonwood Canyon, the location of popular ski resorts. Plaintiffs allege violations of NEPA, including that “UDOT received ‘a list of 16 Forest Service sensitive species that are known or suspected to occur in the Salt Lake Ranger District’ from [Forest Service] representatives […] but according to UDOT, ‘General field surveys conducted prior to the release of the Draft EIS did not identify any of the species listed.’” (The first link in this article will take you to another article that includes the complaint.)
New lawsuit: WildEarth Guardians v. BNSF Railway Company (D. Montana)
On December 14, WildEarth Guardians and Western Watersheds Project sued the Burlington Northern Santa Fe Railway over continuing grizzly bear deaths from trains running through the Northern Continental Divide Ecosystem and Cabinet-Yaak grizzly bear recovery zones. In 2004, 2020 and again in 2023 following the most recent bear mortalities, BNSF applied to the U.S. Fish and Wildlife Service for an Incidental Take Permit and formally submitted a Habitat Conservation Plan outlining measures it would take to reduce train-caused grizzly mortalities in the region. “None of these habitat conservation plans nor incidental take permits has been finalized,” the lawsuit states. (The Fish and Wildlife Service has not been sued.) (The article includes a link to the complaint.)
New lawsuit: Coalition for Sonoran Desert Protection v. Federal Highway Administration (D. Arizona)
On December 14, Coalition for Sonoran Desert Protection, Center for Biological Diversity, Friends of Ironwood Forest, and Tucson Audubon Society sued over the proposed Interstate 11 208-mile corridor in Arizona (the news release includes a link to the complaint and the complaint includes a map). They accuse the FHA of violations of NEPA, and failing to consult with the Fish and Wildlife Service on threatened and endangered species. They also allege an inadequate evaluation required by the U. S. Department of Transportation Act, which FHWA must prepare before it authorizes the use of a public park, historic site, or wildlife refuge for a highway project. The National Park Service has expressed concerns.
New (to this blog) lawsuit
A year ago, the federal government filed suit against the state of Idaho in federal district court, saying that the Forest Service and BLM should hold stockwater rights on federally administered grazing allotments rather than the permittees. The State of Idaho maintains that it is the permittees because they are the ones putting the water to beneficial use, as required by state water law. The federal government seeks to invalidate 2007 state laws that codified this arrangement.
BREAKING NEWS (that may not have broken yet)
The Colorado Cattlemen’s and Gunnison County Stockgrowers’ associations filed a lawsuit in federal court against Colorado Parks and Wildlife and U.S. Fish and Wildlife to try to force a NEPA analysis of the planned reintroduction of gray wolves into Colorado. (Which we have discussed, such as here.) A hearing was held on December 14. As of noon today, “The Associated Press has withdrawn its story about a ruling in a lawsuit regarding the reintroduction of gray wolves in Colorado. A judge has not yet ruled on a request that would delay Colorado’s plan to begin the program this month.” (The actual heading of this webpage is “Judge denies cattle industry request…” A “9News” post reporting that the court had allowed the program to proceed has also been removed.)
Colorado wolf reintroduction update: The court did deny the plaintiffs’ motion for a temporary restraining order and injunction today. This news release includes links to the complaint and the order. As for the NEPA issue, it relates to ESA §6(c) cooperative agreements, and “the Court finds it likely that FWS’s determination triggering the renewal of the Cooperation Agreement was nondiscretionary” and therefore did not trigger NEPA requirements. With regard to harm to plaintiffs’ interests, “Petitioners’ concerns regarding potential harm to livestock and to Gunnison sage-grouse are too speculative to support a finding of irreparable harm,” and, “The Court also finds that potential losses to livestock are primarily economic losses that are compensable with money damages.”
https://westernlaw.org/court-denies-livestock-industry-attempt-to-immediately-halt-wolf-reintroductions/
Thanks, Jon, another great roundup!
Having spent much taxpayer funded time working on highly speculative analyses, to my mind, I am curious as to what about wolves harming livestock is actually speculative.