Federal Lands Litigation – update through January 10, 2025

Kind of quiet at the turn of the year …

FOREST SERVICE

New lawsuit:  Mahler v. U. S. Forest Service (S.D. Indiana)

On December 16, a group of forest protection organizations, neighboring landowners, and regular users of the Hoosier National Forest challenged the Paoli Tornado Response and Research Project, three days after work on the Project allegedly commenced.  On December 23, the district court denied a request for a temporary restraining order.  Plaintiffs specifically allege that the Forest Service inappropriately used a CE and ignored cumulative effects of another project under NEPA, as well as Migratory Bird Treaty Act violations.  The court determined that plaintiffs had “not clearly shown that the risk of irreparable harm is so immediate that Defendants should not first be given an opportunity to be heard in opposition.”  A motion for a preliminary injunction is pending.

Court decision in Central Oregon Wild Horse Coalition v. Vilsack (9th Circuit)

On January 3, the circuit court affirmed the district court opinion, and upheld a herd management plan that involved removing two-thirds of a wild horse herd from the Ochoco National Forest.  The court found no violations of the Wild Free-Roaming Horses and Burros Act when adopting the plan.  The court found that plaintiffs’ objections to the data used by the Forest to show overutilization of forage (in lieu of a map plaintiffs had submitted) as “quibbling.”  The court also found that an EIS was not necessary.

New lawsuit:  Alliance for the Wild Rockies v. Mulholland (D. Montana)

On January 8, four conservation organizations sued the Flathead National Forest over its Round Star Vegetation Management Project decision.  The decision authorizes logging on 9,151 acres, including more than 6,300 acres of “core” habitat for lynx and grizzly bear, as well as nearly 20 miles of new permanent roads and trail and trailhead improvements.  Plaintiffs are concerned about cumulative effects of other projects encompassing 41,863 acres with more than 100 miles of new roads, especially on habitat connectivity.  Issues include violations of NEPA and NFMA, and identification of wildland-urban interface under HFRA, or see how the plaintiffs see it here.  The header article includes the complaint.

This complaint doesn’t include any ESA claims related to effects on lynx and grizzly bears.  It wouldn’t be surprising if these don’t follow after plaintiffs meet ESA notice requirements; this article addresses the use of the Endangered Species Act in litigation against the Forest Service.   (An interesting note:  “About 13% of forest projects receive legal challenges in the Northern Region, according to Cassie Wandersee, press officer with the Forest Service’s Northern Region.”)

Grizzly bears are in the spotlight, and the Fish and Wildlife Service decided on January 8 that grizzly bears should remain listed as threatened, rejecting petitions from Montana and Wyoming officials (and litigation from Idaho) to delist the species in specific recovery zones.  The FWS is affirming that there is a single grizzly bear population, so it will not base a decision on the status of individual subpopulations.  However, it is revising the listing to include a specific area for which grizzly bears are listed (parts of Montana, Wyoming, and Idaho and all of Washington), and to modify its requirements for incidental take to “give management agencies and landowners greater flexibility and tools to take bears in the context of research and conflict management.”

BLM

New court filings

On December 4, the State of Utah amended filings it submitted to the Supreme Court in August.  Originally, Utah asked justices to “[o]rder the United States to begin the process of disposing of its unappropriated federal lands within Utah” overseen by the Bureau of Land Management. It now says “Utah is not ‘ask[ing] this Court to exercise … the power to dispose of public lands,’” but to declare federal ownership of such lands unconstitutional,” and it targets the validity of “the portions of [the 1976 Federal Land Policy Management Act] that announce and implement an indefinite land-retention policy…”  This would leave it up to Congress to come up with a constitutional fix.  (One option not mentioned here would be to “appropriate” those lands, such as reserving them as national forests/grasslands.)

Post-litigation action following Conserve Southwest Utah v. USDI (D. D.C.)

On December 20, the BLM and Fish and Wildlife Service reversed their approval of construction of a four-lane highway through Red Cliffs National Conservation Area near St. George, Utah.  The court in this case (discussed here) ordered a new study of the right-of-way, which found that the highway would create risks to the threatened Mojave Desert tortoise and its critical habitat.  The article links indirectly to the Record of Decision.

Court decision in Wyoming v. U. S. Department of the Interior (D. Wyoming)

On New Year’s Eve, the district court held that the BLM had discretion to lease or not lease three parcels for oil and gas production, but that it had abused its discretion with regard to its failure to lease one of the three.  While the court found adequate rationale in the record for the two decisions to not lease, it found there was a “complete dearth of evidence in the administrative record” for the third.  Remedies have not been determined.  The article has a link to the opinion.

ENDANGERED SPECIES

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (E.D. California)

On December 30, the Center sued over the Fish and Wildlife Service decision that it was “not prudent” to designate critical habitat for the endangered Sierra Nevada red fox.  Such habitat may exist on the Stanislaus, Humboldt-Toiyabe, and Inyo National Forests. Plaintiff alleges that the Trump Administration rule governing the use of the “not prudent” exception violates the Endangered Species Act in this case, and that the red fox decision violates the ESA and the APA.  The article has a link to the complaint.

Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (9th Circuit)

On January 10, the circuit court affirmed a district court opinion that upheld the agency’s decision to not list the Tucson shovel-nosed snake, found in the northern Sonoran Desert of central Arizona.  After reconsidering its classification as a separate subspecies, the agency properly found that it falls into the same subspecies category as a larger group — the Sonoran shovel-nosed snake, so it “occupies a much larger range than previously believed,” and habitat loss is not a threat.  The article includes a link to the opinion.

OTHER

New lawsuit:  West Virginia Highlands Conservancy v. South Fork Coal Company, LLC (S. D. West Virginia)

On December 16, the West Virginia Highlands Conservancy and Appalachian Voices sued South Fork Coal Company for water pollution at five coal mines near the Monongahela National Forest and Cranberry Wilderness.  The claims include violations of the Clean Water Act and the Surface Mining Control and Reclamation Act.  They previously sued the Forest Service for authorizing the use of roads in the area for mining.  The article includes a link to the complaint.

New lawsuit:  Montana v. Haaland (D. Montana)

Also on New Year’s Eve, the State (through its governor, Montana Department of Livestock, and Montana of Fish, Wildlife and Parks) sued Yellowstone National Park over its plan to increase the number of bison in and around the park and establish greater tolerance for their presence outside its boundaries.  The complaint alleges its creation violated several provisions of NEPA and also the National Park Service Organic Act and Yellowstone National Park Protection Act.  The adjacent Custer-Gallatin National Forest supported the expansion.

  • Marijuana

It was not a merry Christmas for a couple of individuals.   On December 17, one man pleaded guilty in federal court to damaging land with toxic pesticides in habitat for the California condor on the Los Padres National Forest in pursuit of manufacturing and distributing marijuana plants in six grow sites.  He faces a maximum statutory penalty for each offense of 20 years in prison and a fine of $1,000,000, plus restitution.  Fixing the environmental damage to this area cost over $92,540 per site.  Another man was sentenced to two years in prison with five years’ supervised release on December 18 for illegally growing marijuana in southern Oregon and filing tax returns falsely claiming a religious tax exemption.  He was also ordered to pay more than $290,000 in restitution to the IRS and more than $12,000 in restitution to the Bureau of Land Management for damaging land with the marijuana grows.

3 thoughts on “Federal Lands Litigation – update through January 10, 2025”

  1. American Prairie (APR) near Malta in north-central Montana got its first American bison from Wind Cave National Park in occupied South Dakota in 2005. The group hopes to have native animals grazing on some 5000 square miles or about 3.2 million acres of private land including 63,000A. in Phillips County connected with corridors to federal land stewarded by the Bureau of Land Management and to the Charles M. Russell National Wildlife Refuge. Total land including the purchase of 36 ranches is as big as the State of Connecticut or the size of Yellowstone and Glacier National Parks combined.

    Adjacent is the Fort Belknap Reservation where the Nakoda and the Aaniiih manage a range with more than a thousand bison so building a tourist destination helps economic development for the entire region. Two recent acquisitions totaling 12,534 acres bring APR’s deeded and leased property to more than 475,000 acres despite an appeal by the State of Montana and a bunch of Earth haters who failed to stop the non-profit from grazing bison on eighteen BLM allotments in five counties. A recent decision by the BLM allows for 7,969 animal unit months at $1.35 per AUM of permitted use with a 1:1 conversion from cattle to bison.

    And, after Montana’s Earth hating governor lost his second appeal to stop American Prairie’s leases on public land he’s suing Yellowstone National Park over its planned expansion of bison territory into lands managed by the US Forest Service. That Republicans in Montana’s executive branch and welfare ranchers are angry about the Interior Department ruling means it’s the right thing to do. Since Republicans own the seats of power in Montana they whine YNP neglects its commitments to the management of the park’s buffalo population in order to decrease the spread of brucellosis to cattle but know wapiti spread it far more often than bison do.

    Instead of Montana Fish, Wildlife and Parks, the Department of Livestock is the governing arm for bison that leave the protections of the park and is party to the lawsuit.

    These days only about 500,000 bison inhabit North America and less than 1 percent of their historic range, just 3 percent of the Earth’s land surface remains untouched by human development and a sixth mass extinction is underway. So, with help from the InterTribal Buffalo Council that started with nineteen tribes and now enjoys the membership of 83 Nations who own 25,000 American bison in 22 states, the Eastern Shoshone Nation will apply a $3 million grant to grow their herd and enhance cultural resilience.

    In 2023 the National Park Service rehomed 300 bison in the South Unit of the Theodore Roosevelt National Park to the Mandan, Hidatsa and Arikara Nation and Standing Rock Sioux.

    In April, 2024 with Assistant Secretary for Indian Affairs Bryan Newland in attendance and in cooperation with Colorado State University ITBC moved five yearling bulls and five heifers with Yellowstone genetics to the Taos Pueblo. Then with ITBC efforts Grand Canyon National Park sent a hundred critters of some 380 from the North Rim to the Cheyenne River Sioux Tribe in September.

    Reply
  2. Excellent job, as always, Jon!

    I do wonder about this..
    “About 13% of forest projects receive legal challenges in the Northern Region, according to Cassie Wandersee, press officer with the Forest Service’s Northern Region.

    “These are generally challenges to the project planning process itself,” she said. “Analysis of impacts to ESA listed species such as grizzly bears and Canada lynx are other common areas of challenges.””

    I wonder what constitutes a “forest project”? I’ll ask Wandersee.

    Reply

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