Federal Lands Litigation – update through July 9, 2024


Settlement in Chattooga Conservancy v. U. S. Forest Service (W.D. North Carolina)

On June 21, a letter from the Nantahala-Pisgah National Forest documented a decision “not to implement” the shelterwood treatment, temporary road construction or the designated post-harvest prescribed burn within 15-acres of the Southside Project that is located in a Special Interest Area next to the Whitewater River.  Plaintiff organizations then dismissed the lawsuit.  (The article includes a link to the letter.)

A major problem with management proposed for this site was consistency with the recently revised forest plan, which is also under litigation.  This article discusses the interplay between collaboration and litigation related to the forest plan.  Some quotes:

Martin Nie (policy analyst):  “Collaboration doesn’t make the Forest Service immune from the panoply of environmental statutes they have to follow.  If there are projects that potentially undermine those protections you’re going to get litigation.”

Plaintiff SELC attorney Sam Evans:  “If the Forest Service had been willing to listen to the collaborative solutions this would be unnecessary.  I know that some people see us as being unreasonable at this point, but it’s never unreasonable to ask a federal agency to follow the law.”

From a representative of the Fish and Wildlife Conservation Council:  “We’ll fight over the last acre if we have to defend restoration and wildlife management…”

My favorite quote, from a member of American Whitewater: “Forest planning has always been about the cool stuff we can do to make things better on the ground for people and the forest.”

New lawsuit:  Save Our Forest Association v. U. S. Forest Service (C.D. California)

On June 25, Save our Forest Association filed a lawsuit against the Forest Service over its decision to allow BlueTriton Brands (producer of Arrowhead bottled water) to pipe water out of the San Bernardino National Forest Lands under a special use permit, and the dewatering of Strawberry Creek and its tributary streams.  A state order to stop the diversions due to lack of water rights is suspended by other court proceedings.  (The article has a link to the complaint, and describes the long history of this case.)

Court decision in Alliance for the Wild Rockies v. Lannom (D. Montana)

On June 27, the district court adopted a magistrate judge’s findings that the Helena-Lewis and Clark National Forest violated NEPA and NFMA when it approved the Horsefly Project authorizing timber harvesting, thinning, and prescribed burning as well as aspen and meadow restoration.  The Forest failed to disclose data showing decline of the northern goshawk (a management indicator species) in the area based on monitoring data, and likely harm to the goshawks from the project.  It also failed to evaluate monitoring results as required by the forest plan.  The Forest was not able to cure these violations by presenting new data to the court, but must complete additional disclosure required by NEPA, and the project was enjoined until that is done.  The court upheld the project decision with regard to forest plan requirements for elk and old growth, effects on grizzly bears, and a plan amendment affecting elk.  (The article includes a link to the court order.)

Meanwhile, a hearing in another Montana Forest Service case occurred (see Pintler Face Project on the Beaverhead-Deerlodge National Forest here.)  It led to this account of the current state of environmental attorneys:

When Christensen asked why the plaintiffs waited until this past February to file a lawsuit, Smith said the plaintiffs would have filed earlier but no environmental attorneys, including herself, were available. Smith said “it was a matter of supply and demand.” After the Trump administration rolled back many environmental protections, environmental attorneys have been in high demand.


Settlement in Center for Biological Diversity v. U. S. Forest Service (D. Utah)

In a letter dated “July 2024,” the Ashley National Forest withdrew the decision notice for the ANF Aspen Restoration Project.  The notice refers to the project as “a condition-based management approach” for 147,000 acres that would have authorized “prescribed burning; selectively cutting conifers, aspen, or both; girdling conifers in aspen stands; root separation; protecting aspen from wildlife and livestock browsing; planting aspen and controlling competing vegetation; and/or inventory and monitoring.” It would have included designated roadless areas, without limiting the size of trees to be logged.  The Center referred to the Ashley as “the most important deciduous forest in western North America.”  The news release includes a link to the withdrawal letter (as well as the complaint); here is some news coverage.

  • Mining and religion

En banc hearing requested in Apache Stronghold v. U. S. A. (9th Cir.)

The 9th Circuit opinion was summarized hereThis article from a Mennonite news source demonstrates the wider interest in the First Amendment Free Exercise Clause interpretation that allowed mining to impair Native American religious practice on national forest lands.  “The Mennonite Church USA Executive Board and MC USA’s Pacific Southwest Mennonite Conference filed a friend-of-the-court brief April 25.  Nineteen additional churches and organizations — including Mennonite Mission Network, Mennonite Men and numerous MC USA-affiliated congregations — also signed on as friends of the court.”


Court decision in Earthworks v. U. S. Department of the Interior (D.C. Cir.)

On June 25, the circuit court affirmed (by a 2-1 vote) a district court holding that unlimited amounts of federal land are available to mining companies for mill sites for processing and waste disposal.  The decision backs the BLM’s interpretation of the 1872 mining law that limited such sites to 5 acres, but did not explicitly limit how many sites could be claimed. (Deference was not an issue here because the court (or at least its majority) considered the statute to be unambiguous.)  A copy of the opinion is here.


New lawsuits:  Alaska v. BLM (D. Alaska), ConocoPhillips Alaska v. Interior (D. Alaska), and North Slope Exploration LLC v. Interior (D. Alaska)

Three lawsuits were filed last week against the decision by the BLM to close about 11 million acres of the 23.5 million-acre National Petroleum Reserve to oil and gas extraction.  The Naval Petroleum Reserves Production Act directed the department to lease the reserve to oil drillers.  The BLM’s rule aims to protect environmentally sensitive wetlands along Alaska’s North Slope and protect caribou herds, migratory birds, and other wildlife. Of note regarding judicial deference, in one of the complaints:  “The company said the Interior Department’s implementation of the law governing the NPR-A is subject to judicial review according to the US Supreme Court’s June ruling in Loper Bright Enterprises v. Raimondo. The ruling said courts no longer need to defer to federal agencies’ interpretation of ambiguous federal laws.”  (The article includes links to all of the complaints, but they are paywalled.)

Lawsuit follow-up.

After conservation groups sued in 2020 over drilling approved (by the Trump Administration) that included the soon-to-be Labyrinth Canyon Wilderness Area, the BLM (under the Biden Administration) agreed to review the decision. Now the agency has upheld most of its previous decisions by reaffirming 51 oil and gas leases, including the helium well.  The prospects for finding anything valuable appear to be low.


Court decision in Cascadia Wildlands v. Scott Timber Co.  (9th Cir.)

On June 26, the circuit court affirmed a district court ruling that logging 49 acres of mature and old growth trees on private forest lands would violate the Endangered Species Act because it would impair breeding of the marbled murrelet, causing illegal “take.”  The opinion may be found here. “It’s the first time a private timber operator has been held to account under the Federal Endangered Species Act,” Nick Cady, Cascadia Wildlands legal director, said.

Settlement in Center for Biological Diversity v. Williams (E.D. Illinois)

On July 1, the U. S. Fish and Wildlife Service agreed to to reconsider Endangered Species Act protections for the Kirtland’s snake by June 30, 2026.  Kirtland’s snakes occupy moist, open meadow or wet prairie habitats, and old fields, and are found almost exclusively in the Midwest.  Within the Eastern Region of the Forest Service, the Kirtland’s snake is designated as a Regional Forester Sensitive Species on the Hoosier National Forest in Indiana and on the Huron-Manistee National Forest in Michigan, and it may be adversely affected by mowing, burning, and logging.  However, according to the Forest Service, most of the known populations of Kirtland’s snakes currently reside in urban areas.


Supreme Court review of Eagle County v. Surface Transportation Board (D.C. Cir.)

The Supreme Court will take a rare look at NEPA requirements in this case involving construction of an 88-mile railway through the Ashley National Forest that would allow vastly increased oil production in Utah by shipping it along the Colorado River in Colorado.  As discussed here, the circuit court found that various effects had not been addressed in the EIS.  (The Forest Service is not a party.)

The U. S. Supreme Court has broadened the vulnerability of federal agencies to lawsuits by expanding the statute of limitations for challenging agency action under the Administrative Procedure Act.  The six-year time period does not begin to run until the specific plaintiff in question has been injured instead of when the agency action became final.  This case, Corner Post v. Board of Governors of the Federal Reserve, involved a regulation establishing the maximum interchange fees for debit card transactions, but the APA applies to every agency’s actions. The opinion focused on “new entrants to a regulated space,” meaning parties who were not aware of the decision they want to challenge because they were not in a position to be affected by it until now.  It’s not hard to see that reasoning applying to land management regulations, or possibly even other long-term decisions like forest plans, including those where the opportunity to exhaust administrative remedies is long past.






Leave a Comment

Discover more from The Smokey Wire : National Forest News and Views

Subscribe now to keep reading and get access to the full archive.

Continue reading