FOREST SERVICE
On May 20, the Beaverhead-Deerlodge National Forest withdrew its decision for the Greenhorn Project, following a lawsuit filed on April 3 by the Alliance for the Wild Rockies, Council on Wildlife and Fish and Native Ecosystems Council.
- Tonto NF land exchange
Supreme Court petition review in Apache Stronghold v. United States (Supreme Court)
On May 27, the Supreme Court turned down the petition by Apache Stronghold to review the Resolution Copper land exchange at Oak Flat on the Tonto National Forest. The reasoning was not provided, but Justice Gorsuch released a dissenting opinion, which is linked to this article.
Temporary stay granted in San Carlos Apache Tribe v. U. S. Forest Service (D. Arizona)
On June 9, the district court denied motions for preliminary injunctions as “premature” in two consolidated cases also involving the Oak Flat land exchange. However, the court issued an order enjoining the exchange until 60 days after release of a final EIS and decision because the Forest Service had agreed to it. The Forest Service has now released the FEIS.
This article includes a link to the statute “authorizing and directing” the land exchange, which includes provisions regarding the EIS. Here is the San Carlos court’s description of the issue:
“In 2014, Congress passed the National Defense Authorization Act for Fiscal Year 2015 (“NDAA”). Section 3003 of the NDAA, known as the Southeast Arizona Land Exchange and Conservation Act (“SALECA”), authorizes the exchange of 2,422 acres of federal land in the Tonto National Forest for land held by a private company, Resolution Copper.
Congress supplemented the ordinary NEPA requirements for such statements and required that the [FEIS] for the land transfer also assess the effects of the mining on cultural and archaeological resources in the area and identify measures to minimize potential adverse impacts on those resources. The [FEIS] was then to form the basis for all decisions under Federal law related to the proposed mine, such as the granting of any permits, rights-of-way, and construction approvals.” Id. (cleaned up). “The statute commands that the land transfer take place `[n]ot later than 60 days after’ the publication of the [FEIS]. Nowhere in § 3003 does Congress confer on the Government discretion to halt the transfer.”
On May 23, Southern California Edison (SCE) agreed to pay the United States $82.5 million – the largest-ever wildfire cost recovery settlement by the United States in the Central District of California – to resolve claims on behalf of the Forest Service to recoup costs and damages associated with the 2020 Bobcat Fire in the Angeles National Forest. It caused years of closure of more than 100 miles of trails and numerous campgrounds, and had a detrimental impact on wildlife and habitat, including to the federally endangered yellow-legged frog, and cultural and heritage resources. The United States alleged that the Bobcat Fire ignited when trees that were not properly maintained by SCE and its tree maintenance contractor came into contact with power lines, causing the blaze to ignite.
Decision withdrawn in Alliance for the Wild Rockies v. U. S. Forest Service (D. Utah)
On June 9, the Forest Supervisor of the Manti-La Sal National Forest withdrew the approval of the Restoration and Fuels Reduction Prescribed Fires Project, following litigation filed on February 18 (described here). The article includes a link to the withdrawal letter, which confirms the scope of the project.
BLM
Reconsideration in Southern Utah Wilderness Alliance v. U. S. Department of the Interior (D. Utah)
On May 19, the district court reversed its February 4 decision to dismiss this case involving 145 oil and gas leases covering more than 200,000 acres of public lands in Utah. The court decided that these were in fact final agency actions that are ripe for judicial review because some drilling permits had been issued.
Court decision in Tohono O’Odham Nation v. U. S. Department of the Interior (9th Cir.)
On May 27, the appeals court reversed the district court dismissal of the case, finding that plaintiffs presented enough evidence to support a claim that the agency violated the National Historic Preservation Act by giving SunZia Transmission permission to begin construction of the 515-mile project, including crossing about 180 miles of land managed by the Bureau of Land Management. The BLM issued two limited notices to proceed (LNTPs, which are final agency actions) to Pattern Energy to build the transmission line before satisfying its obligations to consult with plaintiffs. The case was remanded to the district court to address the merits. The article includes a link to the opinion. Much of the construction has been completed, according to this article.
New lawsuit: Friends of Nevada Wilderness v. U. S. Bureau of Land Management (D. Nevada)
On May 28, Friends of Nevada Wilderness and Basin and Range Watch filed a complaint arguing decisions by Bureau of Land Management, the U.S. Fish and Wildlife Service and the National Park Service authorizing portions of a power line violated NEPA and ESA. Greenlink West is a 472-mile-long overhead power line, with a series of connected substations, slated to span between Las Vegas and Yerington and come online in 2027. The article includes a link to the complaint.
Court order in Orutsararmuit Native Council v. U. S. Army Corps of Engineers (D. Alaska)
On June 10, the district court issued an order for the federal government to provide additional analysis of the risks of a catastrophic dam failure at the Donlin gold mine in western Alaska. This was in response to the court’s earlier finding that the EIS was inadequate. However, the court did not vacate the permits already granted. The article includes a link to the order and the prior decision.
Court decision in Center for Biological Diversity v. U. S. Bureau of Land Management (9th Cir.)
On June 13th, the circuit court mostly upheld the federal approvals for ConocoPhillips’ Willow Project in Alaska. The court upheld compliance with NEPA, ESA and the Reserves Act governing the National Petroleum Reserve, but found the BLM violated the APA because “it never explained in the [record of decision] how its chosen alternative complied with full field development.” This issue was viewed as “procedural” so it did not warrant vacating the approval of the project while the issue was being addressed.
ENDANGERED SPECIES
New lawsuit: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)
On May 28, the CBD filed a lawsuit claiming the agency missed its legal deadline to finalize Endangered Species Act protections for the Railroad Valley toad. The FWS had found the species may be warranted for listing in January, 2024. It is found in one wetland in Nevada’s Great Basin, and is threatened by oil and gas and mineral developments on nearby BLM lands. The BLM (and others) also filed water rights protests with the Nevada State Engineer, objecting that the proposed use of water for a proposed lithium production project would harm the spring habitats that the Railroad Valley toad lives in. The article includes a link to the complaint.
New lawsuit: Desert Tortoise Council v. Burgum (D. Arizona)
On June 4, Desert Tortoise Council, Tucson Herpetological Society, Western Watersheds Project, and WildEarth Guardians challenged the U.S. Fish and Wildlife Service in federal court for (again) denying Endangered Species Act protections for the Sonoran desert tortoise in 2022. Sonoran desert tortoises are found in desert scrub habitats in Arizona and Mexico, east and south of the Colorado River, and threats to the species include livestock grazing. Issues involve the use of best available science. The news release includes a link to the complaint.
Today, arguments are being heard in the Montana federal district court in three related lawsuits challenging the 2024 decision denying petitions to restore federal Endangered Species Act protections for wolves in the northern Rockies. The news release provides background on the cases and related links.
OTHER
Emergency appeal in U.S. Doge Service v. Center for Responsibility and Ethics in Washington (Supreme Court)
On May 21, the Trump Administration asked the Supreme Court to block lower court orders requiring Elon Musk’s Department of Government Efficiency to turn over records related to its operations to CREW. Its requests included a list of the employees and positions for which DOGE had recommended termination. In March, a district judge found that DOGE’s role is likely more than just advisory, and therefore is not exempt the Freedom of Information Act’s requirements to provide documents. The blog post includes links to court filings.
New lawsuit: Kāpa‘a Conservation Council for Hawaii v. Trump (D. Hawaii)
On May 22, the Council and the Center for Biological Diversity sued the Trump Administration over its April 17 proclamation opening the Pacific Islands Heritage Marine National Monument to commercial fishing. The proclamation would rescind protections put in place by President Obama in 2014. Plaintiffs challenge the proclamation as a violation of the Antiquities Act (which provides authority for the President to establish national monuments), and violations of other laws, including NEPA and ESA. The article includes a link to the complaint. Here is some further discussion of recent policy developments and likely future national monument litigation.
New lawsuit: Urban Sustainability Directors Network v. U. S. Department of Agriculture (D. D.C.)
On June 5, three federal grant recipients sought to overturn “the U.S. Department of Agriculture’s policy, pattern, and practice of unlawfully terminating hundreds of grants issued to nonprofit organizations, farmers, ranchers, universities, cities, and states.” These specifically include the Forest Service’s Urban and Community Forestry Assistance program. Plaintiffs argue “these actions violate Plaintiffs’ constitutionally protected right to due process, as well as USDA’s own regulations.” They also allegedly violate the APA and, “for certain awards, violates the U.S. Constitution’s Separation of Powers provision and is ultra vires because these terminations exceed executive authority and usurp legislative authority.”
New lawsuit: Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin Department of Natural Resources (State of Wisconsin circuit court)
On June 6, a Wisconsin county court denied a northern Wisconsin tribe’s request to temporarily halt state approval of a mining company’s plans to drill for copper and gold on the Chequamegon-Nicolet National Forest based in improper permitting procedures. The Forest Service had already approved its permit. The article includes a link to the opinion.