FOREST SERVICE
Supreme Court declines petition to review Blue Mountains Biodiversity Project v. Jeffries
On January 13, the Supreme Court declined to review a 9th Circuit holding involving the Walton Lake Restoration Project on the Ochoco National Forest (addressed here). The circuit court held that materials an agency deems “deliberative” are categorically excluded from the administrative record for judicial review, and the agency need not produce a privilege log identifying the withheld materials absent a showing the agency acted in bad faith or engaged in other misconduct in classifying the documents as deliberative. This should align with the FOIA exemption for predecisional deliberative documents. Links are provided to court documents including the 9/13/24 petition.
Preliminary injunction granted in BlueTriton Brands v. United States Forest Service (C. D. California)
On January 13, the district court allowed BlueTriton Brands, producers of bottled water, to keep using water pipelines in the San Bernardino National Forest while their challenge to the Forest Service’s permit denial continues. The permit was denied because of lack of information about how the water is being used. Background is provided with our discussion here.
Settlement in Kettle Range Conservation Group v. White (E. D. Washington)
On January 22, the court approved a settlement agreement and dismissed the case. It involved the Bulldog Project, where plaintiffs alleged violations of NEPA, NFMA and ESA. The Forest Service agreed to rescind the new (2020) lynx analysis unit boundaries in a larger area including the Project, and to modify the Project to address vegetation treatment with respect to LAUs, canopy cover and western redcedar. (The parties also settled on the amount of attorney’s fees due plaintiffs.) More background is here.
Legal standing approved in Center for Biological Diversity v. U. S. Forest Service (S.D. West Virginia)
An earlier summary here pertained to a lawsuit against mines near the Monongahela National Forest and mentioned an additional lawsuit against the Forest Service for granting a permit to use a road. This is that case. Plaintiffs are six environmental organizations, and they allege NEPA and ESA violations involving water quality and bat habitat. On January 22, the court denied a motion to dismiss for lack of standing.
BLM
Supreme Court action
On January 13, the Supreme Court turned down the State of Utah’s petition to declare that it is unconstitutional for the federal government to hold “unappropriated” acreage, referring to lands managed by the BLM. We discussed this most recently here.
Agency response to Center for Biological Diversity v. Haaland (D. Nevada)
On January 14, the Department of the Interior announced its intent to pull nearly 270,000 acres of public land adjacent to Nevada’s Ash Meadows National Wildlife Refuge from consideration for mineral and geothermal leasing, and also announced their intent to launch a public process to review a full 20-year mineral withdrawal of the area. An agency review in response to a lawsuit filed in 2023 found that drilling exploratory boreholes less than a mile from the refuge would likely cause adverse impacts on groundwater that supports refuge wetlands, and could potentially harm threatened and endangered species that rely on springs for survival. There appears to be widespread local support for the withdrawal. We discussed the lawsuit settlement here.
Court decisions in Montana Wildlife Federation v. Haaland and Western Watersheds Project v. Haaland (9th Circuit)
On January 17, the circuit court largely upheld two district court decisions from Montana and Idaho which invalidated oil and gas leases sold at multiple lease sales in multiple states. The panel said a 2018 instruction memoranda by the agency established during the first Trump administration was inconsistent with an objective in the 2015 greater sage-grouse resource management plans to prioritize oil and gas leasing outside of greater sage-grouse habitat, which led to reversal of a Wyoming lease in the Montana Wildlife Federation case. With respect to the Western Watersheds Project decision, the Ninth Circuit agreed that BLM violated FLPMA by shortening the public protest period, and violated NEPA by shortening the public comment period, for some Wyoming, Nevada and Utah lease sales. The circuit court did not vacate these leases, but enjoined surface-disturbing activity and remanded them to the BLM to “reconsider the leasing decisions in compliance with appropriate public participation process.” The article includes a link to the 90-page opinion (including a partial concurrence/dissent).
New lawsuit: U. S. Sportsmen’s Alliance Foundation v. Bureau of Land Management (D. D.C.)
On January 17, the Foundation, Safari Club International and National Rifle Association of America filed a lawsuit against the BLM over its Recreational Target Shooting Resource Management Plan Amendment for the Sonoran Desert National Monument in Arizona. This Amendment allegedly prohibits shooting on 99% of the Monument. Plaintiffs claim violations of the Dingell Act, FLPMA and NEPA. The article includes a link to the complaint.
New lawsuit: The Navajo Nation v. U. S. (D. New Mexico)
On January 17, the Navajo Nation filed a lawsuit against a 2023 decision to withdraw federal lands within a 10-mile radius of the Chaco Culture National Historical Park, a UNESCO World Heritage Site that is home to thousands of historical and spiritual artifacts. The move received strong support from the Pueblo and Hopi tribes. Plaintiffs seek an EIS from the BLM and consultation with plaintiffs about economic consequences in accordance with Department policy.
Executive order suspends project under litigation
On January 20, President Trump issued an executive order halting the development of the Lava Ridge Wind Project in southern Idaho, opposed in court by Idaho state officials, as discussed here. The Project would have included more than 200 turbines on over 100,000 acres. According to the Idaho Conservation League, there are no wind or solar projects on public lands in Idaho.
Court decision in Arizona Legislature v. Biden (D. Arizona)
An Arizona federal district judge has dismissed a challenge by the Arizona legislature to President Biden’s establishment of the Baaj Nwaavjo I’itah Kukveni Ancestral Footprints of the Grand Canyon National Monument. Plaintiffs said the monument would harm uranium mining and the state’s ability to manage state trust land. The court held that the state senate president and speaker of the house did not have standing to sue, a right held by the state’s executive branch.
Court decision
In a dispute between a county and a private ranch, the Colorado federal district court has reversed its earlier position on the status of a section of road providing access to BLM lands, deeming it to not be a public right-of-way. He found that the evidence of historic use of the road in its early days “lacks the frequency, and certainly the variety and intensity, of use that the Tenth Circuit had in mind in defining a public highway.” BLM was a party to the case, but not actively involved. However, it apparently took different positions under different administrations, being against it being a public road under the Biden Administration (allegedly because of BLM policy regarding claims of RS 2477 public roads made against BLM).
ENDANGERED SPECIES
Court ordered deadlines
On January 15, The Center for Biological Diversity and WildEarth Guardians secured court-ordered deadlines requiring the U.S. Fish and Wildlife Service to determine whether the Clover’s cactus and Rio Grande shiner warrant protection under the Endangered Species Act. The cactus primarily occurs on public lands subject to oil and gas development. The shiner is found on federal lands, including southwestern national forests, although the main threat to the species is from dams and river channelization.
New lawsuit (D. Nevada)
A lawsuit regarding the listing of the Kings River pyrg under the Endangered Species Act has been filed against the U.S. Fish and Wildlife Service by the Western Watersheds Project and People of Red Mountain, alleging that the agency has unlawfully delayed its decision to protect the species, putting it at risk from threats like the Thacker Pass Lithium Mine in Nevada. (This summary is pretty much an AI extraction from a paywalled article in E&E News.)
Post-litigation agency action
The U.S. Fish and Wildlife Service has proposed listing the Eastern hellbender as an endangered species. They had denied the initial request in 2019 and following litigation and a 2023 court ruling ordering the wildlife service to reconsider its denial (reported here), the agency reversed its position. The large salamander lives across the eastern U. S. It was previously listed as endangered in Missouri.
Intervention requested in Colosi v. Charlotte County (M.D. Florida)
On January 28, four conservation groups sought to intervene in a case brought on behalf of a private landowner by the Pacific Legal Foundation. The case involves the county’s habitat conservation plan to protect the jay, which requires developers to pay a fee that is used to purchase habitat. It is an effort to limit the Endangered Species Act to species that occur in multiple states through an interpretation of the U. S. Constitution’s Commerce Clause. One of the largest remaining populations of Florida scrub-jays is in Ocala National Forest. The article includes a link to the motion.
OTHER
Stay of court proceedings in Coalition for Sonoran Desert Protection v. Federal Highway Administration (D. Arizona)
On January 22, the district court stayed this case brought by conservation groups after the Federal Highway Administration and Arizona Department of Transportation agreed to reevaluate the Interstate 11 project’s compliance with environmental laws. We reported this case here. The alternative selected would be routed through the undeveloped desert between Saguaro National Park and the Ironwood Forest National Monument, and would affect the subsequently listed cactus ferruginous pygmy owl and other listed species.
Trump’s former Acting but unlawful Interior Secretary William Perry Pendley hates Natives, too.
After growing up in Wyoming and getting his law degree in Laramie Pendley was Deputy Assistant Secretary for Energy and Minerals at the Department of the Interior in the Reagan Cabinet but was reassigned in 1984 after underpricing coal mining leases in the Powder River Basin. He is a vocal propagandist in the Sagebrush Rebellion that calls for the seizures of tribal lands and even penned an essay for Hillsdale College.
In 2020 former Montana Governor Steve Bullock even sued to have Pendley removed. Morale at the Bureau of Land Management within the DoI cratered under the Trump Organization so Santa Fe-based Wild Earth Guardians joined other interested parties in suing the BLM to stop oil and gas encroachment on Chaco Culture National Historic Park.
When former Secretary Deb Haaland was the US Representative for New Mexico’s First District she was one of the sponsors of the Chaco Culture Heritage Protection Act of 2019 that would have codified the 10-mile buffer zone around Chaco Canyon. Haaland is a member of the Laguna Pueblo—just one of New Mexico’s Indigenous Nations who consider the Greater Chaco Wash as sacred. Santa Fe-based Wild Earth Guardians joined other interested parties and sued the Trump Organization’s Bureau of Land Management to stop oil and gas encroachment on Chaco Culture National Historic Park.
In 2021 New Mexico Senator Martin Heinrich asked Sec. Haaland to end leasing within a 10-mile radius of the park because Chaco is an International Dark Sky Park at risk to oil and gas flaring. So, in partnership with the Bureau of Indian Affairs BLM completed a draft resource management plan for Chaco and a decision released.
Citing the scarcity and fragility of water supplies in the region a three-judge panel on the 10th Circuit Court of Appeals ruled the BLM didn’t properly gauge long-term impacts under the National Environmental Policy Act so it suspended some 200 permits and blocked permits issued by the Trump Organization.
Pendley authored the Project 2025 section on the Department of the Interior and said a future conservative administration should abandon the withdrawal of lands from leasing in the Chaco buffer zone.
The Navajo, Hopi and Pueblo Tribes were harmed by this proposed withdrawal. They see it as another “take” from Native Lands, and it is “ right” to give them back their say-so. Hopi does not have casinos so their natural resources are very important to help offset costs. Unless you’ve visited these Tribes you will have no idea how much they need this option!
That’s not the way it has been reported: https://nmpoliticalreport.com/2023/06/02/lands-around-chaco-officially-withdrawn-from-oil-and-gas-leasing/
“The resolution rescinding support for the buffer zone states that the Navajo allottees who rely on income from oil and gas royalties will “be pushed into greater poverty” by the buffer zone.
But while the Tribe’s official position changed to oppose the buffer, many community members continue to support it.
The Pueblos, which trace their ancestry to Chaco Canyon, were among those pushing for the buffer zone. The All Pueblo Council of Governors, which represents 19 Pueblos, has called for the withdrawal of lands near Chaco from mineral leasing.
Hopi leaders have also voiced support for the buffer zone. The Hopi tribe traces its ancestry to Chaco Canyon as well.”
Of course if you like Project 2025, you would argue to “drill baby drill.” https://nmpoliticalreport.com/2024/09/19/chaco-canyon-buffer-zone-in-the-crossfires-of-project-2025/
Funny, that’s completely opposite of what the synopsis says….. If the Navajo liked so much why did they file to oppose? Do tell….
I know nothing about the inner workings of the Navajo Nation, but here’s a conspiracy theory for you – maybe some wealthy corporate drilling interests are financing the lawsuit.
Interesting writing about Hopi, however, they believe they originated from Anasazi, not Chaco culture. I was told this in Nation to Nation consultation a few years ago, and a quick Google search also points this out!
Great roundup as usual, Jon!
Interesting that the Biden Admin said they were trying to improve consultation and yet this court document says..
Maybe Tribes with certain views are more equal than other Tribes?
I’m sure that human and political biases can occur in implementing the federal responsibility to consult with native tribes and nations. My observation based on peripheral exposure to tribal consultation is that there are widely varying perceptions of what is “adequate,” and lots of latitude to interpret what that means. Judicial analysis in NHPA cases reminds me of the way courts look at NEPA adequacy, but with less guidance, and a good faith effort usually seems to be upheld.