Federal Lands Litigation – update through March 10, 2024

(Links are to additional background and/or court documents.)

FOREST SERVICE

• Chequamegon-Nicolet NF project implementation

In Februrary, the Environmental Law and Policy Center sent a letter to the Chequamegon-Nicolet National Forest supervisor requesting that operations in the Sunfish Timber Sale, which are part of the controversial Fourmile logging project, be stopped because they had violated terms of a government contract by conducting work when the ground was unfrozen and illegally clearcutting parts of the forest with mature and old growth trees.  This has led to an exchange between the ELPC and the Great Lakes Timber Professionals Association, but no response yet from the Forest Service.  (I’d question whether there would be standing to sue to enforce contract compliance, but this suggests NEPA issues as well.)

• Idaho Panhandle NF logging project

Partial dismissal of Alliance for the Wild Rockies v. U. S. Forest Service (D. Idaho)

On February 22, the district court dismissed four of the six claims in this case against the Buckskin Saddle Integrated Resource Project on the Idaho Panhandle National Forest because plaintiffs had failed to identify the relevant issues during the administrative objection process.  The Project authorizes approximately 13,005 acres of commercial logging and 6,469 acres of noncommercial logging and fuels reduction.  The remaining claims involve effects on old-growth habitat and whether the Project would move the forest towards the desired conditions laid out in the forest plan.

• Sequoia NF/ Giant Sequoia National Monument logging projects

New lawsuit: Sierra Club v. U. S. Forest Service (N.D. California)

On February 22, the Sierra Club, Earth Island Institute and Sequoia Forestkeeper challenged two projects in and around the Giant Sequoia National Monument that would remove dead and live trees from about 13,000 acres following the Castle and Windy Fires in 2020 and 2021. The presidential proclamation that created the monument states that aside from some uses as firewood, trees may be removed there only “if clearly needed for ecological restoration and maintenance or public safety.” Differing views about what that means and how to go about it are the crux of the lawsuit.  Plaintiffs allege failure to comply with NEPA and the forest plan for the Monument.

• Timber targets and carbon

New lawsuit:  Chattooga Conservancy v. U.S.D.A. (D. D.C.)

On February 26, the Chattooga Conservancy, MountainTrue, and an individual in Missouri challenged the use of timber targets in the Southern and Eastern regions of the Forest Service.  See our discussion here.

• Tonto NF mining land exchange

Court decision in Apache Stronghold v. U. S. A. (9^th Cir.)

On March 1, a divided en banc decision of the 9^th Circuit (with a 6-5 majority, and seven different written opinions) rejected Native American religious freedom claims seeking to stop a legislated land exchange that would facilitate copper mining near the Tonto National Forest.  The exchange would transfer the Oak Flat sacred site from the national forest to a mining company, and subsurface mining would collapse the site into a crater.  The court held that the First Amendment Free Exercise Clause allows federal land managers to burden religious practices, as long as there is no “tendency to coerce” them “into acting contrary to their religious beliefs.” The religious liberty law firm Becket representing plaintiffs stated, “The Supreme Court has a strong track record of protecting religious freedom for people of other faiths, and we fully expect the Court to uphold that same freedom for Native Americans who simply want to continue core religious practices at a sacred site that has belonged to them since before the United States existed.”  (If you’re keeping score, the 9^th Circuit panel had 6 Trump appointees, one of whom sided with the minority along with all of those appointed by Democrats.)

• Los Padres NF fuelbreak project

Court decision in Los Padres ForestWatch v. U. S. Forest Service (9^th Cir.)

On March 1, the 9^th Circuit affirmed the district court opinion, and approved the Tecuya Ridge Shaded Fuelbreak Project on the Los Padres National Forest.  The remaining issue concerned the Roadless Rule’s requirement that logging in part of the area be “generally small diameter timber.”  The court found that a 21-inch diameter could reasonably be considered “small” where the predominant Jeffrey pine can grow to 60-90 inches.  The district court opinion was provided here.

USDI

• Oregon BLM plan amendment

Lawsuit settlement follow-up

On February 16, the BLM State Director for Oregon and Washington approved an amendment to the Southeastern Oregon Resource Management Plan.  According to the BLM, “The plan amendment was undertaken in response to adverse court rulings and a resulting settlement agreement, in which the BLM committed to evaluate specific issues.”  About 10% of the 4.6 million acres will be managed to protect wilderness characteristics, and about 40,000 acres will be available for off-road vehicle use.  The Oregon Natural Desert Association (one of the plaintiffs in the lawsuit), Pew and the Theodore Roosevelt Partnership have all made supportive comments.

ESA

• Southwestern willow flycatcher listing

Court decision in New Mexico Cattle Growers Assn’ v. U. S. Fish and Wildlife Service (D. D.C.)

On February 28, the district court upheld the decision to list the southwestern willow flycatcher as a federally endangered species.  Plaintiffs had claimed that a new research study shows it is not a valid subspecies that could be subject to listing, but the court agreed with the Fish and Wildlife Service that this “outlier reanalysis of existing data” in 2017 was not the best available science, and did not justify changing a subspecies classification that had been recognized since 1948.  The bird is found in riparian areas in the southwest where its habitat is damaged by livestock grazing.

• Northern spotted owl critical habitat

Court decision in American Forest Resource Council v. Williams (D. D.C.)

On March 5, the circuit court affirmed the district court decision that plaintiff’s case against the Biden Administration’s delaying of the Trump Administration’s reductions in northern spotted owl critical habitat was moot.  The delays had expired and a new rule had been adopted, so invalidating the prior rules imposing the delays would provide no relief.

• Oregon Habitat Conservation Plan

A series of lawsuits filed against the State of Oregon alleging violations of the Endangered Species Act has led to the State’s approval of a new 70-year Habitat Conservation Plan for protecting listed species from logging on about 700,000 acres of state forest land.  It may reduce logging by 20-30%.  It still needs to be reviewed for ESA compliance by the federal agencies.

OTHER STUFF

• Columbia Basin Restoration Initiative

On December 14, the Biden Administration announced an agreement that seeks to move away from the continuing litigation over the Columbia River’s salmon.  On February 24, four tribal and two state leaders signed the agreement, which would commit federal resources to improve fish habitat and sponsor tribal clean energy projects, and would agree to adjustments in dam operations to promote fish survival.

Most notably, the federal government “would undertake or help fund studies of how the transportation, irrigation, and recreation services provided by the four Lower Snake River dams could be replaced, to help inform Congress should it consider authorizing dam breach in the future.”  “The Administration, however, is not making a judgment on whether to breach the dams, nor does it have the authority to do so; that authority resides with Congress.”  Local representatives in Congress quickly agreed to participate in such studies and the search for alternatives that would work for their constituents – of course not.  One denounced “secret negotiations” led by White House senior adviser and climate envoy John Podesta, saying he and other officials “worked behind closed doors with a select group of radical environmentalists to develop a secret package of actions and commitments” that “advance efforts to remove the four Lower Snake River dams.”

• Los Padres NF Thomas Fire liability

In the largest recovery obtained by the U.S. attorney’s office in Los Angeles for firefighting costs incurred by the Forest Service, Southern California Edison has agreed to pay $80 million to settle a civil lawsuit that blamed the utility’s equipment for the 282,000-acre Thomas Fire 2017.

• Crimes on federal lands

In April 2023, a Nevada federal court dismissed a criminal indictment after finding that a provision of the Federal Land Policy and Management Act of 1976 (FLPMA) unconstitutionally delegated Congress’s legislative power to write crimes to a federal agency, the Bureau of Land Management. The government has appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit.  In this case the crime was failure to use a taillight at night while riding a dirt bike in a remote desert area.  The court objected to FLPMA granting BLM unfettered power to issue any “regulations necessary to implement the provisions of th[e] Act with respect to the management, use, and protection of the public lands” backed by criminal penalties.  This opinion is apparently bucking Supreme Court precedent, but the Federalist Society is salivating over how this might limit federal authorities.

• Grand Teton NP dirt bike race

Another possible example, a federal district court in Wyoming has sentenced a Utah man who allegedly held illegal dirt bike races within the boundaries of Grand Teton National Park to 18 months of unsupervised probation and fined almost $10,000.

• Horse theft

Then there’s good old-fashioned horse theft (which was presumably prosecuted under federal law rather than agency regulations).  On February 26, a retired U.S. Forest Service law enforcement officer was sentenced for stealing government horses and mules, ammunition and more.  He was sentenced to two years of probation with six months of home confinement, and must pay almost $12,000 in restitution.  He had switched two of his own horses for two belonging to the government, and “did knowingly receive, conceal and retain” two government mules.”