Federal Lands Litigation – update through March 12, 2025

And here’s the rest of the stories …

FOREST SERVICE

• Stibnite gold mine

New lawsuit:  Save the South Fork Salmon v. U. S. Forest Service (D. Idaho)

On February 18, six environmental organizations sued the Forest Service, the two ESA consultation agencies and three federal departments regarding their review and approval the Stibnite Gold Project, an open-pit gold mine.  Much of it would occupy land on the Payette and Boise National Forests near the Frank Church–River of No Return Wilderness Area in the South Fork Salmon River watershed.  They allege violations of NEPA, the ESA regarding listed Chinook salmon, steelhead, and bull trout, and the Forest Service Organic Act and its 36 C.F.R. §228 regulations by failing to protect water quality and fisheries.  Also, a violation of NFMA for being inconsistent with a forest plan standard that prohibits road construction in riparian areas where there are other alternatives.  Among a total of nine claims.  The article includes a link to the complaint.

• Kootenai NF timber project

Court decision Center for Biological Diversity v. U. S. Forest Service (9^th Cir.)

On February 24, the circuit court affirmed the district court on two of its holdings against the Kootenai National Forest’s Black Ram Project and reversed the district court on four others.  The court agreed that the Forest Service violated NFMA by failing to demonstrate that the project complied with a forest plan standard governing road use in grizzly bear habitat.  It found that unauthorized road use must be included in road density calculations, and, “the record belies the federal defendants’ blanket assertion that unauthorized road use is sporadic and temporary.”  It held, “Given the uncertainty as to the extent of ineffective closures and chronic unauthorized road use, it is impossible to discern actual, baseline motorized access conditions.” This failure to properly explain the baseline assumptions also led to a violation of NEPA’s requirement for a “hard look” at the effects of unauthorized road use.  The court upheld the Fish and Wildlife Service’s determination of the grizzly bear population, and the Forest Service’s reliance on that, and the determination that the project would not jeopardize grizzly bears.  The article includes a link to the complaint.

• Tongass NF timber program

New lawsuit:   Alaska Forest Association v. Rollins (D. Alaska)

On March 6, the Alaska Forest Association and two of its members filed a lawsuit against the Forest Service, seeking to force the agency to sell timber as allegedly required by the Tongass Timber Reform Act.  The other two claims are that, “The Southeast Alaska Sustainability Strategy—altering the substantive requirements of the 2016 Management Plan—is functionally a rule that required notice and comment rulemaking,” and that it is arbitrary under the APA to “illegally deviat(e) from the 2016 Management Plan without considering Plaintiffs’ reliance interests” in timber production.  The 2016 plan referred to was an amendment to the forest plan that adopted a strategy for transitioning to a “young growth” timber program.  The article includes a link to the complaint.

• Bitterroot NF vegetation project

On March 7, the Bitterroot National Forest responded to a notice of intent to sue by the Center for Biological Diversity over its Eastside Forest and Habitat Improvement Project and its effects on species listed under the Endangered Species Act.  The project covers most of the east side of the Forest.  The letter stated that the Forest had reinitiated ESA consultation on the effects of the Project on grizzly bears, wolverines and bull trout, so that claims of an ESA violation are now moot.

BLM

• Wild horse adoption program

Court decision in American Wild Horse Campaign v. Burgum (D. Colorado)

On March 3, the district court overturned the BLM’s Adoption Incentive Program (AIP) for wild horses, which pays individuals $1,000 to adopt wild, unhandled wild horses and burros.  The court held that the 2022 Instruction Memorandum establishing the AIP violated both the APA and NEPA, writing that: “an agency cannot avoid its notice and comment obligations by simply clothing instruction memoranda in permissive language, only to then treat them in practice as mandatory.”  The article includes a link to the opinion.

• Utah BLM travel plan

New lawsuit:  BlueRibbon Coalition v. Bureau of Land Management (D. Utah)

On March 5, the BlueRibbon Coalition, Sage Riders Motorcycle Club and a landowner challenged 665 miles of route closures established by the approval of the San Rafael Swell Travel Management Plan.  They claim that the decision violates the Dingell Act’s prohibition of “buffer zones” around wilderness areas in the vicinity of this plan, and that the decision violates the APA for several reasons, including that the “minimization criteria” used are not authorized by FLPMA (invoking a 2024 Supreme Court decision that regulations must have a clear statutory basis).  They also claim that the decision to issue an EA/FONSI instead of an EIS was based on CEQ regulations that are not valid.

ENDANGERED SPECIES

• Chinook salmon listing deadline

New Lawsuit:  Center for Biological Diversity v. National Marine Fisheries Service (D. Oregon)

On February 18, five conservation organizations filed a lawsuit over NMFS missing its 1-year deadline to determine if coastal spring-run Chinook salmon in Oregon, Washington, and Northern California warrant protection under the Endangered Species Act.  NMFS found that federal protections “may be warranted” for the three salmon populations in 2023 but has made no further decisions.  In their complaint, plaintiffs state that the threats to the species include “habitat degradation from logging.”  The article includes a link to the complaint.

• ESA regulations

New lawsuit:  Rocky Mountain Elk Foundation v. U. S. Department of the Interior (D. Montana)

On March 10, RMEF and the and the Property and Environment Research Center challenged the 2024 regulation (referred to as the “Blanket Rule”), under which the ESA’s prohibitions for endangered species apply automatically to newly listed threatened species.  Plaintiffs assert, the language of ESA, as well as the ESA’s structure, “authorizes the Service only to issue regulations in response to each species’ listing and tailored to each species based on science, the species’ unique conservation needs, and the incentives needed to recover that species.”

OTHER

• Climate information purge

New lawsuit:  Northeast Organic Farming Association of New York v. U. S. Department of Agriculture (S.D. New York)

On February 24, the Northeast Organic Farming Association of New York, Natural Resources Defense Council, and Environmental Working Group sued the USDA, accusing the Department of deleting “climate-related policies, guides, datasets, and resources from its websites.”  Examples cited in the lawsuit include the Forest Service deleting an interactive map that allowed users to see where federal agencies have conducted climate change vulnerability assessments.  The lawsuit claimed that in deleting the materials so quickly and without notice, USDA violated the Paperwork Reduction Act, which requires agencies to provide notice when terminating “significant information dissemination products,” and the Freedom of Information Act.  (If you can read the Washington Post, an article is here.)

• Dakota Access Pipeline

On February 24, the trial began in a lawsuit in a North Dakota state court by Energy Transfer Partners against the environmental organization Greenpeace.  They allege that Greenpeace orchestrated protests against the Dakota Access Pipeline, and defamed the company, and sued them in 2017 for $300 million.  Earlier in February, Greenpeace International filed an anti-intimidation suit in a Dutch court against Energy Transfer, saying the company acted wrongfully and should pay costs and damages resulting from its “meritless” litigation.  Legal experts call the case a strategic lawsuit against public participation (SLAPP), aimed at silencing critics through costly litigation rather than seeking legitimate damages, and believe it could set a precedent for how courts handle free speech protections, especially in environmental cases.

• Francis Marion NF car accident

Court decision in Murray v. U.S.A. (D. South Carolina)

This case involves an accident caused by a large hole in a Forest Service designated dirt road on the Francis Marion National Forest.  On February 24, the federal district court dismissed the case because the government is immune from suit under the Federal Tort Claims Act’s discretionary function exception.  The court held that the exception to tort liability applies because the Forest Service Manual and Handbook “does not contain mandatory directives requiring FS officials to inspect, maintain, or repair FS roads or warn of potential hazards in a certain manner or under a particular schedule,” and that decisions about such things must “consider a multitude of policy considerations.”

• Employee terminations

Temporary restraining order granted in American Federation of Government Employees v. U. S. Office of Personnel Management (N.D. California)

On February 28, the district court held that, “No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies,” and also that OPM violated the APA because the notice was arbitrary and capricious, and by not providing for public notice and comment.  Western Watersheds Project was one of the plaintiffs granted standing to bring this case based on “its members’ legally protected interest in the recreational enjoyment of federal lands and the flora and fauna therein.”  The court considered harm to those interests “irreparable.”  The court ordered that,  “OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and FWS are unlawful, invalid, and must be stopped and rescinded.”  The government has since agreed that the TRO should be converted to a preliminary injunction, and is attempting to avoid having the Director of OPM testify.