FOREST SERVICE
New lawsuit: Idaho v. U. S. Forest Service (D. Idaho)
On July 28, the Idaho Attorney General’s Office sued the Forest Service over its denial of a public records request seeking policies and interpretations used by the Forest Service in managing wildfires and using prescribed burns. The State filed a FOIA request on February 5, and argues that its request has been “constructively denied” by failure provide the records. The Forest Service responded to the request by blaming the delay on a “large backlog” dating back to 2020.
- Tonto NF copper mine
New lawsuit: Lopez V. U.S.A. (D. D.C.)
On July 24, four Apache women filed the fourth lawsuit seeking to stop the Forest Service from conveying the Oak Flat spiritual site from the Tonto National Forest in order to develop a copper mine. The suit claims the land exchange violates the Religious Freedom Restoration Act, the plaintiffs’ First Amendment-guaranteed religious rights protections and two environmental laws. It follows the release by the Forest Service of an updated EIS for the land exchange, and two recent Supreme Court decisions that may be relevant. The article includes a link to the complaint and summarizes the history of litigation – to which we add …
Court decision in San Carlos Apache Tribe v. U. S. Forest Service (D. Arizona)
On August 15, in a case filed by tribal and environmental interests (and most recently discussed here), the district court refused to stop the land exchange that will allow the Resolution Copper Mine to destroy the Oak Flat site. The complaint alleged violations of NEPA, NFMA, and appraisal and tribal consultation requirements.
Although the Record of Decision is currently a draft, and the lawsuit therefore premature under the APA, the court addressed the likelihood of prevailing on the merits. The NFMA claim involved the public notice requirements associated with the 16 forest plan amendments it belatedly decided it needed to approve the mine. The court agreed that it was a project-specific amendment subject to the requirements of 36 C.F.R. § 219.16(b), and that the change in agency position about the need for amendments was appropriately presented. The judge was skeptical of the NEPA claims.
Importantly, the court held, “Nevertheless, statute contemplates that the land exchange will occur within 60 days of, and regardless of the analysis set forth in, the FEIS,” and therefore because Congress considered all possibilities, he said “it follows that there is a public interest in allowing the land exchange to proceed on the expedited timetable Congress contemplated” despite any negative effects. This decision has been appealed to the Ninth Circuit (a prior injunction will expire on August 19). This article incudes a link to the complaint.
New lawsuit: Native Ecosystems Council v. Mulholland (D. Montana)
On July 28, Native Ecosystems Council, Alliance for the Wild Rockies, Council on Wildlife and Fish, and Yellowstone to Uintas Connection filed a lawsuit to stop the Cyclone Bill Project, a logging project on the Flathead National Forest adjacent to another project, Round Star, which they are also litigating. NEPA issues they raise focus on the cumulative effects of the two projects, particularly related to the effects of roads on grizzly bears, and the effects of logging on old-growth dependent wildlife. They also allege that logging old growth and effects on connectivity would violate the forest plan. They include a claim against the Fish and Wildlife Service for failing to consider the effects of private land management and the best available science. The complaint is here.
BLM
Court decision in Kane County, Utah v. U. S. A. (D. Utah)
On July 23, the district court resolved claims to two roads across federal lands in favor of the State of Utah. The judge noted a lengthier decision is coming that will address 15 other “bellwether” RS 2477 road claims, and that his decision on Hole-in-the-Rock and House Rock Valley roads was not indicative of how the court will rule on the remaining claims. Pending claims to state rights based on an 1866 mining law include nearly 36,000 miles of 12,000 roads in Utah. State rights-of-way may affect federal management as roadless or Wilderness areas; the Southern Utah Wilderness Alliance calls them “hoax highways.” The article includes the complaint.
New lawsuit: Southern Utah Wilderness Alliance v. U. S. Dept. of the Interior (D. Utah)
On August 7, SUWA filed a second lawsuit over plans to mine brine from under the crust of Sevier Dry Lake. After the first round, Peak Minerals modified its proposal and extended the timeline for its planned operations, and BLM approved the plan based on its NEPA review for the 2019 proposal. Plaintiffs allege that this violates several requirements of NEPA. The article includes a link to the complaint.
ENDANGERED SPECIES
Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D.C. Circuit)
On August 1, the circuit court, in a split decision, affirmed the district court and found that the agency had complied with the Endangered Species Act when it shifted the designation of North America’s largest carrion beetle from “endangered” to “threatened” in 2020. Originally found in most eastern states, and currently at least on the Ouachita National Forest, the species is threatened by land use changes and climate change. Following a request in 2015 from the oil and gas industry, the Fish and Wildlife Service found that the beetle had recovered parts of its historical range in eight states. The article includes a link to the opinion.
Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Montana)
On August 5, the district court issued an order overturning a determination made by the U.S. Fish & Wildlife Service that (re)listing the gray wolf in the western United States is not warranted. The court held that the Service erred by failing to consider the entirety of the wolf’s historical range when determining whether the population is in danger of extinction “in a significant portion of its range,” as required under the ESA. The court also held that the Service erred by failing to use the best scientific and commercial data available in making its determination, in particular, questioning the state methods for estimating populations. The court also held that the Service failed to consider the inadequacy of regulatory mechanisms in Idaho and Montana, and specifically, how negative public attitudes in those states would impact regulatory mechanisms to maintain minimum wolf populations. While the denial of protection has been vacated, the wolf remains unlisted. The article includes a link to the opinion.
New lawsuit: Center for Biological Diversity v. Burgum (D. D.C.)
On August 7, plaintiffs challenged the U. S. Fish and Wildlife Service’s decision to deny Endangered Species Act protection to the Florida pinesnake. The species is found in Florida, South Carolina, Georgia and Alabama, and the snakes live in “sandy, open-canopied pine upland ecosystems” of the region’s coastal plain. They are threatened by logging and suppression of natural fire cycles, along with urbanization and highway vehicles. The article includes a link to the complaint.
Government refuses to defend its listing decision
On August 12, a Texas federal district judge granted the Fish and Wildlife Service’s request to vacate the 2022 rule listing two populations of lesser prairie chickens. One population group, located in Colorado, Kansas, Oklahoma and parts of the Texas Panhandle was listed as threatened; the other, located in New Mexico and the southwest Texas Panhandle, was listed as endangered. The State of Texas sued in 2023, and the Department of the Interior argued in a May motion that the Fish and Wildlife Service didn’t actually have the evidence to establish those two “distinct population segments,” making the entire decision moot. The court agreed and vacated the decision. (This is primarily a private lands issue, but it shows how “sue and settle” could work for either side.)
OTHER
Settlement in shareholder lawsuit
Compass Minerals has agreed to settle a lawsuit from investors who say the company misled them about the safety and approval status of its magnesium chloride-based fire retardant. The settlement, announced in May, comes after a failed contract with the U.S. Forest Service, aircraft corrosion incidents, and a 23% stock plunge.
Court decision in Kāpa‘a v. Trump (D. Hawaii)
On August 8, the district court addressed a letter issued by NOAA purporting to allow fishing in the Pacific Islands Heritage Marine National Monument. It found that NOAA has conceded that the Administrative Procedure Act required it to use the process of notice-and-comment rulemaking regarding what restrictions are needed to ensure that commercial fishing in the Monument Expansion is appropriately managed. The court’s opinion is here. The additional allegations of violations of the Antiquities Act remain for possible subsequent litigation.
New lawsuit: Center for Biological Diversity v. U. S. Office of Management and Budget (D. D.C.)
On August 12, plaintiffs asked the district court to compel disclosure of public records on actions related to what the Trump Administration has called an “energy emergency.” Plaintiffs cite an executive order, wherein they say Trump directed various agencies to submit to the OMB summary reports of “all emergency actions to expedite energy production and bypass the regular protections of the Endangered Species Act, Clean Water Act, and other environmental laws.” Two FOIA requests for these reports were submitted in April, and OMB estimated a response in “36-48 months.” The news release includes a link to the complaint.
American burying beetle, ABB: the nemesis of T and E species for the National Forest management in Arkansas! However, one of their important habitats occurs on Potato Hill, the same Potato Hill that serves as Paladin 155 mm Howitzer impact zones in Ft. Chaffee. Once the military finished their Consultation, it was determined the Military action did not pose a threat to the ABB! 🤣🤣🤣
We live about 15 miles from Potato Hill and our house shakes every time one of these “bad boys” detonate. It should also be mentioned, a new Wing of 30, F-35’s and F-22’s will routinely use old “Spud Hill” in their bombing range…..
ABB – one tough beetle….🤣🤣
Thanks, Jon, excellent round-up as always. Some thoughts..
1. CBD, OMB and the EO. I don’t remember any EO such as is claimed.. “all emergency actions to expedite energy production and bypass the regular protections of the Endangered Species Act, Clean Water Act, and other environmental laws.” Most EOs have language about following laws… I wonder which one that was (and why a FOIA wouldn’t be the first step?).
2. Fire retardant- I wonder if the owners of the corroded airplanes are suing Compass, or whether they’re suing the USG for approving it, or not suing anyone at all?
3. Oak Flat-Congress and the President ought to figure out a way to decide things without involving the FS in a seemingly endless do loop of environmental documentation and litigation. I am not a fan of the project, but it seems to me like separation of powers wise, this shouldn’t still be in court and there might have been a way to write the bill so it never went to court.
4. RS 2477. “State rights-of-way may affect federal management as roadless or Wilderness areas; the Southern Utah Wilderness Alliance calls them “hoax highways.””
I thought that this was an interesting article also a photo that looks like a “non-hoax” y road. How many of these roads are in current roadless or Wilderness areas? Seems like that would be rare.
https://www.stgeorgeutah.com/news/federal-judge-partially-sides-with-utah-officials-in-backcountry-roads-lawsuit/article_807f2387-d23a-4fa6-9b74-bbd5379f6ce9.html
“House Rock Valley Road
House Rock Valley Road is one of the primary access points into the popular tourist destination known as “The Wave,” Kane County Commissioner Celeste Meyeres told St. George News. The road, if not adequately maintained, also poses a danger to tourists when flash flooding occurs, she said.
Efforts to upgrade House Rock Valley Road that would reduce flash flooding near The Wave have been stalled due to the legal disputes surrounding RS 2477 rights, federal permitting, and opposition from groups like the Southern Utah Wilderness Alliance. While the county has long argued it has the right to maintain the road, the Bureau of Land Management and SUWA opposed improvements like culvert installation, citing environmental protections.”
“1. CBD, OMB and the EO. I don’t remember any EO such as is claimed.” Really??? The timber and energy EOs push for the use of emergency S7 consultation for energy and timber projects. This is what the FOIA is seeking info on. Historically, emergency consultation has been limited to situations where there wasn’t time to complete a S7 due to threats to human life and property (e.g., wildfire response). Instead of providing a BO that justifies no-jeopardy, FWS line officers have been directed to notify HQ if they have concern of an energy or timber “emergency” project appreciably reducing the likelihood of survival or recovery of a listed species. Realistically, what do you suppose would be the outcome for the line officer and the likely final decision in the event a line officer was to suggest a timber project was going to possibly result in jeopardy? Also, when do these “emergencies” end and what is to prevent there from being EOs defining a housing emergency, water emergency, farming emergency, grazing emergency? At what point does this bypass the law?
So there is an emergency situation that calls for different consultation, kind of an equivalent of NEPA emergency situations? I think the FS was using ESDs for NEPA projects based on the need for fuel treatment during the last Admin.
I suspect that “”when is it an emergency” may be ultimately litigated (by CBD)? and then the Congress will have an opportunity to clarify if they feel the need.
CRS had an interesting roundup on emergency authorities when the Prez was considering declaring a climate emergency. https://www.congress.gov/crs_external_products/IN/PDF/IN11972/IN11972.1.pdf
1. The EO says “bypass the REGULAR protections” of environmental laws, using “lawful authorities.” Those laws do provide criteria for when regular protection is not required, which I would expect to see litigated. Also the question of whether an agency ignored the best available science due to political pressure.
The EO:https://www.whitehouse.gov/presidential-actions/2025/01/declaring-a-national-energy-emergency/
Yes, well in my humble scientific opinion BAS is in the eye of the beholder, and the last place to figure it out would be a courtroom. 🙂
If it’s in the eye of a beholder, then it’s just an opinion, so whomever has the power gets to do what they want. In this country, the last place to figure it out IS the courtroom – “it” being whether whomever has the power is being arbitrary or capricious. I think that’s a better system.
3.
I should have waited a day on the Oak Flat decision – the 9th Circuit has enjoined it for now.
https://gilaherald.com/san-carlos-apache-tribe-welcomes-appeals-court-order-temporarily-preventing-the-u-s-forest-service-from-giving-sacred-oak-flat-to-china-backed-resolution-copper/
I agree this process seems kind of ridiculous, where the Forest Service has no discretion to say no, but it has to pass NEPA muster first. But maybe allowing judicial review was part of one of those “compromises” that gets a bill passed – leaving the agencies involved to deal with the mess it makes.
4.
I think you know as well as anyone how roads may be found in roadless and Wilderness areas.
Yes,in Roadless, but I thought they were cherry-stemmed out of Wilderness? My point is that I’m not clear how the roads’ RS condition would influence those situations.
Were recognized public roads cherry-stemmed out of inventoried roadless areas, or was the presence of such a road a barrier to that designation? SUWA probably wouldn’t like either case.
A little more on Oak Flat.
The district court has denied a motion for preliminary injunction (and an injunction pending appeal) in the new Lopez case, finding plaintiffs unlikely to succeed on any of their claims. Interestingly one of the NEPA claims was a violation of the new page limits in the recent NEPA amendment, to which the court replied: “Plaintiffs likely cannot show ‘they were injured by receiving more information than they were otherwise entitled to.'”
https://scholar.google.com/scholar_case?case=4857727648695035424&hl=en&lr=lang_en&as_sdt=6,27&as_vis=1&oi=scholaralrt&hist=rFm12-cAAAAJ:17345887200784456013:AAZF9b-AsodPkGuJJbKAcSXmwLIb&html=&pos=0&folt=kw
And a couple of opinions on the 9th Circuit injunction in the Apache Stronghold case:
It got someone’s attention on Truth Social: **A Copper Mine in Arizona, “Resolution,” was just delayed by a Radical Left Court for two months — 3,800 Jobs are affected, and our Country, quite simply, needs Copper — AND NOW! They are looking to do an Expedited Appeal before the Ninth Circuit, but it is so sad that Radical Left Activists can do this, and affect the lives of so many people. Those that fought it are Anti-American, and representing other Copper competitive Countries. We can’t continue to allow this to happen to the U.S.A.! **
https://truthsocial.com/@realDonaldTrump/posts/115056962817663370
Dominican Sister of Peace Susan Leslie said: “the question remains: Which is more important? Respecting the ageless and undying dignity, rights, beauty and faith of the Apache Nation, or mining copper for financial gain for the proliferation of temporary creature comforts and for the eventual destruction of Mother Earth?”
https://www.globalsistersreport.org/environment/sisters-activists-praise-appeals-court-order-oak-flat-case?site_redirect=1