Forest Plan Litigation – early 2025 update

FOREST PLANS

There are not a lot of lawsuits involving forest plans, but oddly there has been news about three of them (and maybe four) in the last couple of months.  I’ve separated those out for this summary, partly because I thought the first one was worth covering at length for any planning nerds left out there.

• Rio Grande NF revised forest plan:  Rio Grande revision

Court decision in San Luis Valley Ecosystem Council v. Dallas (D. Colorado)

(Thanks to Susan Jane Brown for filling in this gap in my newsfeed.)

On December 13, the district court upheld the Rio Grande’s revised forest plan against challenges based on its treatment of the Canada lynx and the Uncompahgre fritillary butterfly (UFB).  Both species are federally listed as threatened under the ESA, but the claims were related to compliance with NFMA and NEPA.

Plaintiffs argued that the revised plan did not comply with the requirement of the Planning Rule for the UFB that plan components “provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species …” 36 C.F.R § 219.9(b)(1).  Key ecological conditions necessary for the UFB are large patches of snow willow located above 12,000 feet, and alleged threats to the UFB are from illegal collection, recreation, livestock grazing, and climate change.  Plaintiffs sought specific protection from these threats for colony sites and potential recovery areas.  The court conducted a granular review of the relevant forest plan components (and so will I).

It focused first on species-specific plan components that had been included in the draft plan, but not in the final plan, and plaintiffs believed this weakened the protection for these species beyond what NFMA requires.  The court found that these three plan components “may have been condensed into other components” in the final plan.  The court held, “Petitioners do not explain why condensing these three components into other components or removing them for redundancy was ‘a clear error of judgment’ sufficient to overcome the presumption of validity attaching to the agency’s action.

The court characterized a second argument as, “essentially that the final plan should have been identical to the draft plan because “neither the status review or Biological Assessment contain any different information than what was before the agency when it published the [draft] EIS.”  The court could find no “record evidence suggesting the eliminated species-specific components would have provided for butterfly recovery in a way that the remaining ecological plan components would not.”

The court then found that the discussion of the effects of other plan components (not specific to these species) showed they would meet the needs of these species, focusing on four desired conditions and one guideline.  The court found that the desired condition of “[m]aintain[ing] or improv[ing] habitat conditions that contribute to either stability or recovery” met the Planning Rule requirement to be “specific.”  The court added, “It certainly seems possible to measure whether the snow willow population in that area is ‘maintaining or improving,'” and that plaintiffs, “do not, however, provide any authority indicating what level of detail is required; nor was the Court able to locate caselaw defining that requirement.”

The court also found that two desired conditions for different “species of conservation concern” need not be disregarded because they may benefit the UFB even though they are not directed at that species.  Plaintiffs argued that a desired condition for connectivity was insufficient, to which the court responded that, “Petitioners point to no authority suggesting that desired conditions must be self-executing, or that each component must simultaneously address all possible threats to a given species.

With regard to the one guideline, the court discussed the programmatic nature of forest plans, and held:

“Petitioners do not provide any authority to support their assertion that the guideline insufficiently constrains the agency’s future management actions. They seem to believe that the 2020 Plan must be an exhaustive enumeration of all requirements for future site-specific actions….  The Court is thus unpersuaded by Petitioners’ request to, in effect, superimpose the requirements for approving site-specific projects onto its review of the more general Forest Plan at issue here.”

Finally, with regard to the adequacy of the ecosystem components leading to no need for species-specific plan components, “the Court finds the USFS exercised its prerogative to determine whether fine-filter components were necessary to provide for the key ecological conditions to contribute to the recovery of the UFB.”

As for NEPA, the court found that analyzing the effects of the winter motorized recreation plan components on lynx without first updating the 2018 lynx map for changes in snow compaction levels was not arbitrary or capricious.  While the court observed that plaintiff’s argument seemed reasonable, it said they didn’t do enough to overcome the Forest Service position that there were “no significant changes in the compaction routes and noted that it was committed to ‘remapping of compaction and the overlap with associated LAUs . . . as soon as practical.’”  The court held, “it is clear from the record that the USFS considered and applied what it considered to be the best available science…” and plaintiff’s argument was “more of a methodological quibble.”  For the UFB, the court referred to its analysis for the NFMA claim as determinative of the NEPA claim and found that “the analysis of the UFB” was adequate under NEPA.

Finally, plaintiffs claimed that the Forest should have considered an alternative that included two Special Interest Areas.  The court rejected an argument by the Forest Service that they could reject such an alternative because that would keep them from providing other multiple-uses.  However, the court then decided that these alternatives were not “significantly distinguishable from alternatives already considered.”  With regard to one of the areas, the court faulted plaintiffs for not showing that an existing alternative “would result in significantly different regulatory requirements.”  For the other area, the court found that the proposed Special Interest Area would either provide protection for lynx that already existed in the no-action alternative or if not, “would not have promoted the objectives of balancing competing interests in the plan area.”  Therefore, it was properly eliminated from detailed study as an alternative.

For those looking for insights into how the Supreme Court’s decision in Loper Bright could affect the deference that courts will give to federal land management agencies, that opinion was not briefed in this case, but the district court explained in a footnote: “But this Court has likewise found no basis to conclude it affects the analysis here, which—though it implicates the APA—does not involve any disputed statutory construction.”  However, with regard to the analysis of effects on wildlife species, “where that analysis ‘requires a high degree of technical expertise,’ the Court properly ‘defer[s] to the informed discretion of the responsible agency.’”  Overall, “a presumption of validity attaches to agency action.”

(For what it’s worth, I found a number of flaws in the court’s reasoning that I think could be worth an appeal, but I understand plaintiffs are not going to do that.)

• Flathead NF revised forest plan

Government drops its appeal in Swan View Coalition v. Haaland (9^th Cir.)

On February 20, the circuit court dismissed this case against the Flathead National Forest after the defendants opted not to appeal a lower court’s determination that the Forest Service violated the Endangered Species Act because it failed to adequately consider the effects on grizzly bears and bull trout of closed roads and unauthorized use of roads when it adopted its revised forest plan (discussed here).  Here is the order.

• Helena-Lewis and Clark NF revised forest plan

Court decision in Helena Hunters and Anglers Association v. Moore (9^th Circuit)

On February 25, the Ninth Circuit affirmed the district court decision (discussed here) to uphold the ESA consultation on the revised forest plan for the Helena-Lewis and Clark National Forest.  The circuit court addressed only the question of how the Fish and Wildlife Service must analyze the “removal” of ten standards for big game that were in the original plan and also protected grizzly bears.  It held:

“FWS was not required to spell out, separately and specifically, all changes between the 1986 Plan and the 2021 Plan and their incremental effects on grizzly bears. Instead, the text of the ESA and its implementing regulations requires a more wholistic approach that was satisfied here…  The analysis by FWS therefore captured the total net effect of implementing the entire forest plan.”

• Helena-Lewis & Clark timber project (and forest plan?)

New lawsuit:  Native Ecosystems Council v. Webber (D. Montana)

On February 18, the Alliance for the Wild Rockies, Native Ecosystems Council and Council on Fish and Wildlife sued the Forest Service over its approval of the Wood Duck Project on the Helena-Lewis and Clark National Forest.  It calls for 42 acres of clearcutting, 936 acres of additional commercial logging, and 263 acres of other logging in an area of widespread tree mortality.  Plaintiffs state that 195 acres is in old growth, and the area is important to grizzly bears and big game, and they allege violations of NEPA and NFMA.  According the plaintiffs, “The lawsuit raises challenges against the project, and also against the Forest Service’s failure to implement strong protections for public land elk habitat, grizzly bear travel corridors, and old growth forest across the Helena – Lewis and Clark National Forest.”  That sounds like they could also be initiating a lawsuit against the revised forest plan.  (I have not seen the complaint.)