FOREST SERVICE
Most Endangered Species Act litigation against the Forest Service is about the consultation process and the substantive jeopardy and critical habitat requirements of ESA (§7(a)(2)). Another requirement is found in §7(a)(1), which imposes a duty on federal agencies to “utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species.” There is a logical link between recovery plans for listed species, forest plans for national forests and “programs” for species conservation. This has not shown up in any earlier Forest Service court cases that I can remember, but here it is twice in the last month – the first two cases below.
New lawsuit: Center for Biological Diversity v. U. S. Forest Service (D. Arizona)
On August 19, the Center for Biological Diversity, Chiricahua Regional Council, Natural Allies, Wild Arizona, and Conservation CATalyst sued the Coronado National Forest over its proposal to build three miles of new road for recreational access to 20 miles of forest roads that are currently closed. The lawsuit says the Forest Service and the U.S. Fish and Wildlife Service violated the Endangered Species Act by failing to comply with jaguar and spotted owl recovery plans, as well as violating the forest plan. Regarding recovery plans, which are generally considered to be non-mandatory, the complaint says this:
“First, the Coronado Forest Plan provides that “[a]ctivities occurring within federally listed species habitat should apply habitat management objectives and species protection measures from approved recovery plans.”
“Because the recovery plan for the jaguar represents the only existing program for the conservation and recovery of jaguars, the Forest Service violated its affirmative duties under Section 7(a)(1) of the ESA by failing to carry out programs for the conservation of the jaguar.”
The press release includes a link to the complaint.
Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Arizona)
On August 26, the district court dismissed plaintiff’s claims that the agency’s cost-sharing agreement with the Arizona Department of Agriculture to partially fund a position related to wild horse management violated NEPA and ESA because of the effects of an overpopulation of horses. The court found, “Plaintiffs have not pointed to any evidence that the AZDA would have altered any aspect of its horse management in light of a discontinuation or alteration to conditions of funding,” and it therefore dismissed claims of NEPA violations and failure to consult under ESA.
Plaintiffs also alleged violations of Section 7(a)(1) of ESA regarding conservation of the yellow-billed cuckoo, southwestern flycatcher, and Yuma Ridgway’s rail. The Forest Service relied on its forest plan for the Tonto National Forest, and the ESA §7(a)(2) consultation on that, where the FWS opined that the plan “was likely to result in net beneficial effects to federally listed species in the Tonto National Forest.” The court determined that “a plan placing affirmative constraints on future projects ‘counts’ under Section 7(a)(1),” and that the Tonto forest plan did so and the Forest had complied with ESA.
(I have always thought that a forest plan, especially its mandatory standards, should be evaluated against the requirements of Section 7(a)(1)) (and recovery plans). Dismissal of this claim here is also an example of how consulting on forest plans can benefit the Forest Service, and an argument against (Cottonwood) legislation that would eliminate it.)
Court decision in Parthasarathi v. U. S. A. (D. Arizona)
On August 22, the district court found that the discretionary-function exception in the Federal Tort Claims act protected the Kaibab National Forest from liability for consequences of an auto accident caused by a cow (under a grazing permit) on a highway. The Forest Service was under no obligation to construct a fence to keep cows off the highway, despite its prior NEPA decision to authorize one. Its failure to build a fence and rejection of the state’s proposal to do so qualified for the exception because it, “balanced environmental costs with public safety and determined that the need to protect the natural state of the land outweighed the need to build a right-of-way fence.”
Swan View Coalition v. Haaland appealed
On August 27, the federal government appealed the adverse district court decision on the Flathead National Forest revised forest plan to the 9th Circuit Court of Appeals. This case involves evaluation of effects of roads on grizzly bears and bull trout, and was discussed here.
New lawsuit: Klamath Forest Alliance v. U. S. Fish and Wildlife Service (E. D. California)
On August 28, Klamath Forest Alliance, Conservation Congress, Environmental Protection Information Center and Shasta Bioregional Ecology Center challenged the South Fork Sacramento Public Safety and Forest Restoration Project on the Shasta-Trinity National Forest. They allege that the Project’s logging activities would violate the ESA because they would diminish the likelihood of the northern spotted owl’s survival and recovery. According to the complaint, “The FWS concluded that such activities would take up to 12 owls from two of the longest occupied territories in a 2.5-million-acre area—including two reproductively successful owl pairs and multiple years of offspring.”
Court decision in U. S. A. v. State of Idaho (D. Idaho)
On August 28, the federal district court agreed with the federal government that state requirements that the federal government own cattle in order to acquire water rights for livestock use violated the Supremacy Clause of the U. S. Constitution. However, the court agreed that the federal government should be subject to Idaho’s forfeiture-related laws if it fails to use its water rights. The article includes a link to the court’s decision and order.
New lawsuit
A federal lawsuit has been filed against a West Virginia logger and his logging company for trespassing and harvesting timber in Monongahela National Forest. While logging on adjacent private land, the loggers allegedly encroached on nearly 10 acres of national forest lands.
A federal judge recently denied the federal government’s request to reconsider a case decided by a jury a year ago that awarded damages to a Black Hills NF district ranger for gender discrimination. The employee alleged in her lawsuit that she had been subjected to a hostile work environment, excluded from working on special assignments given to male colleagues, excluded from management’s communications with male colleagues, subjected to a verbal threat, and had her ideas routinely dismissed in meetings by male managers. She was ultimately reassigned to another unit in position with decreased authority and duties. (The article includes a link to an earlier article that provides more details.0
BLM
Court decision in American Wild Horse Campaign v. Stone-Manning (D. Wyoming)
On August 14, the district court approved amendments to BLM’s Green River and Rawlins resource management plans, which would enable the agency to remove two wild horse herds, significantly scale back a third and leave a fourth area intact. BLM approved the plan last year following a legal settlement with the Rock Springs Grazing Association, which had sued BLM demanding that the bureau remove hundreds of wild horses that were grazing on its property within a roughly 2-million-acre federal grazing allotment in southern Wyoming in a checkerboard pattern of land ownership. “Ultimately, however, the Court finds that each contention fails for either conflating the [BLM’s Resource Management Plan amendment] with a removal decision, misconstruing BLM’s obligations, or [because it is] contradicted by the record,” the judge wrote. The article includes a link to the opinion. Plaintiffs have appealed it to the 10th Circuit.
TRO in Hualapai Indian Tribe v. Haaland (D. Arizona)
On August 19, the district court granted a temporary restraining order against exploratory drilling for lithium on BLM land near the tribe’s sacred spring, as described here. The court found it likely that BLM violated NEPA and the National Historic Preservation Act. The article includes a link to the 2-page order.
Court decision in Friends of the Floridas v. U. S. Bureau of Land Management (D. New Mexico)
On August 27, the district court upheld the proposed American Magnesium Foothill Dolomite Mine Project in Luna County, New Mexico against multiple claims of NEPA and FLPMA violations by the BLM. However, it found that the BLM had not taken the NEPA-mandated “hard look” at the water quality impacts arising from magnesium sludge at the off-site processing mill. The court remanded the case without vacatur for further analysis. The article includes a link to the opinion.
New lawsuit: Southern Utah Wilderness Alliance v. U. S. Department of the Interior (D. D.C.)
On August 28, the Southern Utah Wilderness Alliance filed a lawsuit against a May decision by the BLM to reaffirm 35 oil and gas leases originally proposed by the Trump Administration in the San Rafael Desert in south-central Utah, including one in what later became the Labyrinth Canyon Wilderness. The review was the result of a settlement of a prior lawsuit. In addition to NEPA claims, the new lawsuit challenges BLM’s failure to provide a reasoned explanation for its decision to reverse course and not prepare oil and gas planning and analysis for the San Rafael Desert, which the BLM had previously deemed a necessary prerequisite before authorizing future leasing and development in this area. The article includes a link to the complaint.
OTHER
New lawsuit
On August 12, WRH Nevada Properties, backed by Gallatin Gateway-based Citizens for Balanced Use filed a lawsuit to stop the state of Montana from approving a conservation easement that would prohibit development (but allow logging and public access) on almost 33,000 acres of land owned by Green Diamond Resource Company in northwestern Montana. The Forest Service had pledged $20 million from its Forest Legacy Program. WRH owns mineral rights on about half of the land. They say that the Montana Environmental Policy Act process was not followed appropriately, and that the underlying authorities for the state’s Forest Legacy program are not statutorily authorized.
Court decision in Center for Biological Diversity v. Strommen (8th Cir.)
On August 14, the 8th Circuit Court of Appeals agreed with the district court that a consent decree which requires Minnesota to take additional steps to comply with the Endangered Species Act and protect Canada lynx was fair and reasonable, even though a coalition of trappers who intervened in the lawsuit disagrees. The decree required Minnesota to put “additional restrictions” on snare and foothold traps in a Lynx Management Zone within 40 days “[b]y whatever regulatory means are necessary, including expedited emergency rulemaking.” Minnesota allows shortcutting the public rulemaking process when urgent circumstances warrant it, and the court agreed that this situation would qualify. The court also pointed out that, “nothing prevents (trappers) from challenging the validity of the new regulations in a separate state-court action.”
New lawsuit: Center for Biological Diversity v. Hobbs (Maricopa County Superior Court)
On August 15, the Center for Biological Diversity, San Pedro 100, and Robin Silver sued the governor of Arizona and the Arizona Department of Water Resources over its decision to approve a guaranteed water certificate for a 7,000-home development project that would affect the San Pedro Riparian National Conservation Area on BLM lands. They claim that the BLM has prior federal reserved water rights that have not been accounted for in the process, and seek to revoke the permit because it would infringe on those rights. (The BLM had objected earlier in the process, but is not involved in this lawsuit.)
Summary judgment denied in Flathead-Lolo-Bitterroot Citizen Task Force v. Montana (D. Montana)
On August 28, the district court determined that this case must go to trial after continued disputes over expert witnesses. Plaintiffs challenge the State’s authorization of recreational trapping and snaring for wolves and coyotes, alleging that future take of grizzly bears in legal wolf and coyote traps is reasonably certain to occur under the State’s regulatory scheme. The court concluded: “Because the parties dispute most of the material facts related to the evidence regarding when and where grizzly bears are likely to be out of their dens and the impact the State’s regulations have on grizzly bears, (see Doc. 68), those facts must be established at trial.”