FOREST SERVICE
I’ll “feature” the first case because it delves into the relationship between NFMA and NEPA, and claims for damages under the Federal Tort Claims Act and its discretionary-function exception to government liability (and a Smokey Wire contributor was involved). The FTCA is a federal law that allows people to receive compensation from the United States for damages caused by federal government employees’ negligence or wrongful acts, but not for acts where those employees have discretion to act.
Court decision in Strawberry Water Users Ass’n v. U. S. A. (10th Cir.)
On July 30, the Tenth Circuit Court of Appeals affirmed a district court’s dismissal of claims against the Forest Service for damages to private property from two 2018 fires on the Uinta-Wasatch-Cache National Forest that were initially managed to contain rather than suppress the fires. The court held that the Federal Tort Claims Act exception for discretionary functions of government applied in this case to prevent jurisdiction by the court.
The court examined the provisions in the applicable forest plans, which allowed for wildland fire use. Forest Plan guidelines also require the Forest Service to produce annually a “Default Initial Fire Response Map,” referred to as the “Red/Green Map,” which communicates to the public the “areas in which fire starts might be considered as a means to meet Forest Plan objectives.” The Bald Mountain Fire and Cold Creek Fire started in areas where fire use could occur, and an incident decision was made to monitor and contain the fires after considering many factors. Unexpected winds caused the fires to burn over 100,000 acres over the next month.
Plaintiffs alleged that the Forest Service acted outside of its authority by burning lands outside of its jurisdiction, and therefore this was not a “discretionary function.” Plaintiffs relied heavily on “a declaration by its expert, Franklin Carroll, a retired Forest Service policy analyst, to support the contention that ‘the Forest Service implemented a national strategy of purposefully using anticipated natural wildfire to immolate private and nonfederal public lands and communities, forcing upon them its vision for people beyond its boundaries to live with wildland fire.’”
The court disagreed, stating that NFMA “expressly requires the Forest Service to develop and maintain Forest Plans that permit the limited use of wildfires,” and pointing out the National Cohesive Wildland Fire Management Strategy’s authority to “use fire where allowable.” The court concluded “there is no evidence to indicate that the Forest Service intended to burn land outside the UWC National Forest.”
Plaintiffs also contended that NEPA compliance was necessary for the Red/Green Map, and without that the Forest Service had no discretion and must suppress fires. The court pointed out that, “The relevant statutes, National Strategy, and Forest Plans do not declare that extinguishing fires is the default action,” and held that,
The Forest Service’s authority in responding to wildfires does not come from the Map, but from the FLAME Act and the NFMA. Those statutes grant the Forest Service the clear discretion to manage wildfires that arise on its lands. The Red/Green Map merely functions as a means to communicate to the public “areas in which fire starts might be considered as a means to meet Forest Plan objectives.” It is far from “specific and mandatory.” Whether or not the Red/Green Map was properly promulgated, the Forest Service still had the discretion necessary for application of the discretionary-function exception.
(And in any case, NEPA compliance must be determined under the Administrative Procedure Act rather than the Tort Claims Act.)
Here’s what I take home from this (which should not be considered legal advice):
- Compliance with NEPA has no bearing on the authority for discretionary functions under the Tort Claims Act.
- If a forest plan (or larger policy) made fire suppression mandatory (for all or part of a national forest), then deciding to not suppress a fire there could expose the agency to liability under the Tort Claims Act because the discretionary-function exception would not apply.)
TRO imposed and lifted in Salt River Wild Horse Management Group v. U. S. Department of Agriculture (D. Arizona)
On August 2, the district court found that plaintiffs were unlikely to succeed on the merits of their argument that the Apache-Sitgreaves National Forest did not give proper notice to the public that they would sell 13 horses considered to be feral. The court did require a new 5-day notice, which may enable plaintiffs to acquire the horses and prevent their potential slaughter. According to this article (which has a link to the order):
Since 2022, the forest service has been removing horses, known locally as the Alpine herd, at the request of the Center for Biological Diversity and other conservation groups who say the horses — who disappeared from the fossil record during the last ice age before their return alongside the Spaniards — are now destroying the native ecosystem that evolved in their absence.
New lawsuit: BlueTriton Brands v. U. S. Forest Service (D. D.C.)
On August 6, the company producing Arrowhead 100% Mountain Spring Water sued the Forest Service for denying its application for a new permit to continue to pipe water from Strawberry Creek on the San Bernardino National Forest. (The article includes a link to the complaint.) State officials determined last year that the company has been unlawfully diverting much of the water without valid water rights. The Forest Service had also been unable to verify how the water was actually being used. They ordered BlueTriton to remove their infrastructure a month after a local environmental group, Save Our Forest Assn., filed a lawsuit against the Forest Service arguing the agency was illegally allowing the company to continue operating under a permit that was past its expiration date.
New lawsuit: Center for Biological Diversity v. Moore (D. New Mexico)
On August 12, the Center for Biological Diversity and Maricopa Audubon Society sued the Forest Service for the third time over its authorization of livestock grazing on the Sacramento Allotment on the Lincoln National Forest. The complaint alleges that the Biological Opinion improperly assumes that conservation measures that have failed in the past will protect the New Mexico jumping mouse from cattle grazing in riparian areas. The news release includes a link to the complaint.
BLM
New lawsuit: Hualapai Indian Tribe v. Haaland (D. Arizona)
On August 2, the Hualapai Tribe and Earthjustice sued to stop the BLM from allowing 131 test holes to be drilled over 613 acres to find lithium in the Big Sandy River watershed. The site surrounds tribal land that includes Ha’Kamwe’, a hot springs, which has long been central to Hualapai culture and traditions, and there is a particular concern about effects on water resources. The article includes a link to the complaint, which alleges violations of NEPA and the National Historic Preservation Act.
New lawsuit: Washington County, Utah v. U. S. Department of the Interior (D. Utah)
On August 6, plaintiffs filed a lawsuit against the BLM and Fish and Wildlife Service for withdrawing their Biological Opinion and reinitiating consultation on a proposed highway through the Red Cliffs National Conservation Area and its effects on the Mohave desert tortoise. The county also alleges violations of Section 10 of ESA, which governs a habitat conservation plan the county prepared to allow incidental take of the species. The withdrawal of the Biological Opinion was the result of settlement of a prior lawsuit brought by conservation groups, discussed here. (The article includes a link to the complaint.)
ENDANGERED SPECIES
Notice of Intent to Sue
On July 15, Wilderness Watch, Western Watersheds Project, WildEarth Guardians, and Friends of the Clearwater sent a notice of intent to sue the State of Idaho for violations of the Endangered Species Act over state hunting authorizations that put grizzly bears at risk. Idaho allows hunters to attract black bears to baiting sites in some parts of the state, which has resulted in killings and habituation of threatened grizzly bears. This lawsuit, alleging illegal incidental take by the State under the ESA, was filed shortly after a previous lawsuit against the Forest Service (discussed here) was dismissed because “new information” was not sufficient to require reinitiation of consultation by the Forest Service on their 1995 national policy on bear-baiting. (That dismissal occurred on the same day that another grizzly bear was mistakenly shot at a bait station.) This notice was not sent to the Forest Service.
- 2024 ESA regulations
New lawsuit: Center for Biological Diversity v. U. S. Department of the Interior (N.D. Cal.)
On August 1, the Center for Biological Diversity, Sierra Club and WildEarth Guardians challenged the Biden Administration’s revised Endangered Species Act regulations, focusing on the portions that retained some of the changes previously made by the Trump Administration in 2019. They seek to reinstate the pre-2019 Regulations.
New lawsuit: National Hydropower Association v. U. S. Fish and Wildlife Service (D. D.C.)
On August 2, the National Hydropower Association and Northwest Hydroelectric Association challenged the same regulations. They seek to reverse the new requirement to include mitigation measures as a condition of obtaining a hydro license. They allege that this is outside of the authority granted to the regulatory agencies by the Endangered Species Act.
(Both articles include links to the complaints.)
Court decision in Center for Biological Diversity v. Haaland (D. Montana)
On August 6, the district court reversed the decision by the U. S. Fish and Wildlife Service to not list the Upper Missouri River Distinct Population Segment of Arctic Grayling under the Endangered Species Act. The judge faulted the FWS’ reliance on the benefits of a voluntary conservation program set to expire in two years, and its flawed analysis of the stability of the species in the Ruby River. The few remaining populations face a variety of threats, including irrigation withdrawals that reduce flows and raise stream temperatures, climate change, and habitat degradation due to livestock grazing, roads and agriculture. The article includes a link to the ruling.
OTHER
Court decision in Xerces Society for Invertebrate Conservation v. Shea (D. Oregon)
On August 2, the district court invalidated the Animal and Plant Health Inspection Service’s program to control grasshopper and Mormon cricket populations, which allowed insecticide spraying on millions of acres rangelands, much of it public lands. The court held that the 2019 EIS and associated Record of Decision, as well as associated state-level EA/FONSIs for Oregon, Idaho, Wyoming, and Montana, violated NEPA. The court found APHIS failed to consider preventative strategies (not just pesticides), the baseline conditions of butterflies, moths and native bees in spray areas, and the cumulative effects of its program when combined with other pesticide spraying in these areas. The news release has a link to the opinion.