FOREST SERVICE
- California roadside hazard tree project
In the news: Klamath Forest Alliance v. U. S. Forest Service (N.D. California)
On July 20, 2023, seven environmental organizations sued the Forest Service over its Region 5 Post-Disturbance Hazardous Tree Management Project, which would remove roadside hazard trees from nine national forests in northern California. (We discussed that decision here – but apparently missed the lawsuit.) Here is the complaint.
On August 23, 2024, the lower court found that the three EAs complied with NEPA and held that the Forest Service’s policy choice in the purpose and need statement to focus on burned trees’ chance of endangering traffic on public roads “was well within its considerable discretion.” Here is the opinion. An appeal is now pending in the 9th Circuit.
This case and that holding have recently appeared as a basis for speculating about how the Supreme Court’s Loper Bright decision overruling deference to agency interpretations of the law might affect the Forest Service. I’m not convinced this case is a good example (but this article does quote a couple of Smokey Wire contributors.)
Court decision in New Mexico Cattle Growers v. U. S. Forest Service (D. New Mexico)
On January 29, the district court upheld the authority of the Forest Service to shoot feral cattle on the Gila National Forest. The case turned on the determination that feral cattle do not meet the Forest Service’s definition of livestock — animals that humans keep or raise for use or pleasure. Even though the species is domesticated, these cows are descendants of a herd abandoned in the 1970s, so have had no human connection for decades. The news release (from the Center for Biological Diversity, on the side of the Forest Service) has a link to the opinion, and this article provides other perspectives.
Preliminary injunction denied in Mahler v. U. S. Forest Service (S. D. Indiana)
On February 10, the district court rejected a motion to enjoin the Paoli Tornado Response and Research Project in the Paoli Experimental Forest on the Hoosier National Forest. The Project involves salvage logging of 138 acres and other clean-up within the boundaries of another planned project, and it was approved using three categorical exclusions. It began operating in December. The case involved a trial with witnesses (instead of being based entirely on the administrative record), which the Forest Service objected to, and the court sustained the objection except with respect to evidence they provided relevant to irreparable harm. The court relied on testimony from Forest Service employees to find that there would not be irreparable harm to listed tricolored bats, or historic sites, nor would irreparable harm be likely to remaining old growth trees.
The larger project area is for the Buffalo Springs Project, which is still pending, and has attracted considerable opposition, including from Republican Indiana Governor Mike Braun, and a film called, “Saving the Hoosier: A Fight for the Lungs of America.” More on that here.
Court decision in Western Watersheds Project v. Washington (9th Circuit)
On February 11, the circuit court upheld a lower court decision that the Forest Service adequately considered effects of the Stateline Project on the federally endangered Mexican gray wolf population, and that the EA complied with NEPA. The Project reauthorized livestock grazing on allotments in the Apache-Sitgreaves and Gila National Forests. Plaintiffs had raised issues concerning effects of livestock-related wolf removals and prey displacement, but they also found, “You know, the Forest Service started doing a much better job at this right after we filed our first lawsuit on this case.” The article includes a link to the short opinion.
New lawsuit
On February 12, cattle ranchers alleged the Forest Service promulgated arbitrary grazing rules for livestock allotments in the Fishlake National Forest. The agency didn’t use the best available science when setting legal grass heights for allotments that overlap the habitat of the greater sage-grouse, according to a complaint filed in the US District Court for the District of Utah. The ranchers are challenging the environmental impact statement published last year for the Southern Monroe Mountain Allotments Livestock Grazing Authority. These allotments have been subject to prior litigation from Western Watersheds Project, and the Forest is implementing a new decision. (This was the only information I found and could access on the new lawsuit.)
- Arson prosecutions
Two recent arson prosecutions revealed the motivations behind some arson fires. One man has been indicted for setting fires on the Osceola National Forest because he was “trying to do the Forest Service a favor” by conducting a controlled burn, and claiming that he was a “sovereign citizen,” meaning that “he had the authority to do what he wanted.” A former southeastern Ohio fire department administrator will serve 18 months in federal prison after admitting to starting dozens of wildfires in Wayne National Forest in order to “give the boys something to do.”
BLM
Stay granted by administrative law judge
The Nature Conservancy holds grazing permits for its Dugout Ranch within Bears Ears National Monument on national forest and BLM lands. Their proposal to add 13 reservoirs for cattle and additional fencing has been stayed in response to an objection by Western Watersheds Project, who is concerned about grazing being introduced to new parts of the Monument. The BLM’s ALJ held, “Given that the only stated purpose in the (environmental analysis) for constructing 13 reservoirs and five fences is to redistribute livestock, BLM had an obligation to analyze how optimized livestock distribution would impact rangeland health.” (The opinion was not provided.)
Case dismissed: Southern Utah Wilderness Alliance v. U. S. Department of the Interior (D. Utah)
On February 4, the district court found that claims challenging four oil and gas leasing decisions were not ripe for judicial review because the leases at issue were suspended, and dismissed the case without prejudice. The court held that, even though the leases have been issued, “the BLM’s suspension and active reconsideration of its leases mean that its decision is not yet “final.”” Judicial review would be available if and when “the BLM decides to uphold some or all the leases after it has completed its NEPA Analysis and supplemental EIS.”
New lawsuit: Center for Biological Diversity v. U. S. Bureau of Land Management (E.D. California)
On February 5, the Center for Biological Diversity, Wilderness Society, Friends of the Earth, Sierra Club and Central California Asthma Collaborative sued the BLM over permits it issued for 29 oil and gas wells on public lands in the San Joaquin Valley. The BLM prepared three separate EAs. This case follows at least two prior lawsuits (one settled, one still pending) that seek a review of the cumulative effects of continuing development in the area, which is heavily polluted. Claims include violations of the Clean Air Act, the National Environmental Policy Act, the Federal Land Policy and Management Act, and the Mineral Leasing Act. With regard to FLPMA, the complaint alleges, “The agency should have analyzed these impacts when it prepared its Resource Management Plan (“RMP”) for the region, but ultimately failed to do so.” The article has a link to the complaint.
ENDANGERED SPECIES
Stipulated settlement in Center for Biological Diversity v. Haaland (D. D.C.)
On January 15, the district court approved a settlement agreement regarding 76 remaining species (of 241 originally) that CBD had petitioned for listing or critical habitat designation. The agreement establishes a schedule for completing petition findings by the end of Fiscal Year 2029. (It does include this caveat allowing renegotiation of deadlines that now seems pretty relevant: “The Parties acknowledge that the Service has entered into this Agreement based on the Service’s projection that it will have sufficient resources to fulfill the requirements of the Agreement.”)
Post litigation action: WildEarth Guardians v. BNSF Railway Company (D. Montana)
On February 12, the U. S. Fish and Wildlife Service issued an incidental take permit that will allow the Company’s trains to take 19 grizzly bears near Glacier National Park over a seven-year period, based on a recently adopted habitat conservation plan. Under the new plan, BNSF will use a “rapid response protocol” to quickly remove any grain spills or carrion; inspect grain cars for leaks and set out any leaking cars; manage vegetation in the right-of-way to reduce attractants; and fund fencing to prevent livestock from accessing sections of the railbed. BNSF will also fund three new grizzly technicians.
New lawsuit: WildEarth Guardians v. Burgum (D. D.C.)
On February 17, WildEarth Guardians challenged the U.S. Fish and Wildlife Service’s decision to deny Endangered Species Act protections for three plants found only near Arches National Park: cisco, stage station, and Isely’s milkvetches. Threats to these plants include climate change, oil and gas extraction, energy and transportation corridors, motorized recreation, and invasive vegetation. The press release includes a link to the complaint.
OTHER
Preliminary injunction denied in South Carolina Coastal Conservation League v. U. S. Army Corps of Engineers (4th Circuit)
On January 31, the circuit court upheld the decision of a lower court denying a preliminary injunction that would have stopped development on the Cainhoy peninsula that could eventually encompass over 9,000 residential units. Plaintiffs sought to void a permit granted by the Corps of Engineers. The area involved is shares a two-mile border with the Francis Marion National Forest (a map is provided here), which was a factor considered by the court. The court agreed that listed northern long-eared bats are unlikely to be measurably harmed, “considering the fact that the 263,904-acre Francis Marion National Forest is adjacent to Cainhoy, all of which is in a protected status” (my emphasis, wondering how this was determined). Also, an EIS was not necessary because (among other reasons) plaintiffs failed to make the case that the EA had not adequately addressed, “the impact on the Francis Marion National Forest, including making it more difficult for the Forest to execute necessary prescribed fires for maintenance.” More of the story is here.
Court decision in Iowa v. Council on Environmental Quality (D. North Dakota)
On February 4, 21 Republican attorneys general were successful in vacating the CEQ’s current regulations used by all federal agencies to implement NEPA. In invalidating the Biden Administration’s Phase II regulations, the district court repeated a finding made in an earlier case where the issue was not raised by plaintiffs (featured here) – but these plaintiffs did. The district court ruled that Congress never gave the CEQ authority to issue binding regulations — and that the president could not claim such authority through an executive order. The article has a link to the opinion (ABC is not the news site – it’s Associated Builders and Contractors). While this may reinstate the previous Trump Administration CEQ regulations, they are also based on his Executive Order to CEQ, so could be vacated for the same reasons, and Trump has since rescinded the 1977 executive order granting CEQ rulemaking authority. (More about “chaos” in the NEPA world, too.)
New lawsuit: National Treasury Employees Union v. Trump (D. D.C.)
On February 12, five unions sued the President to stop terminations of probationary federal employees, including about 3400 in the Forest Service. A representative for the plaintiffs stated that “They’re being terminated, essentially for a performance issue, even though their performance appraisals have been fully successful.” The lawsuit also alleges that the federal administration has pressured employees to voluntarily resign, and the large-scale reduction in federal workforce violates the law. This article about effects in Alaska includes a link to the complaint.
The Cattle Growers’ Association is not known for accuracy or precision. Whether it’s American Prairie’s bison grazing on BLM ground in Montana, the US Department of Agriculture killing cattle on the Gila or feds shooting goats in the Tetons socialized grazing just isn’t enough to keep some Republicans happy.
Whoa, feds shooting goats in the Tetons was to protect bighorn sheep, not cows.
The comment was meant as a reflection of the selective outrage partisan bias uses to shoot wolves, coyotes and cougars to soothe voters in red states.
I don’t understand what you mean.
Be thankful you live in a blue state where the legislature sees wolves as an essential antidote to chronic wasting disease while lawgivers in Wyoming and Montana want apex predators to just go away while elk herds spread disease to bison and cattle grazing for pennies on public ground.
Thanks for this, Jon! Outstanding as always!