Busy time for Forest Service lawyers, others – not so much.
FOREST SERVICE
Amended complaint in Patagonia Area Resource Alliance v. U. S. Forest Service (D. Arizona)
On September 24, the district court revived this case against the Sunnyside and Flux Canyon mines on the Coronado National Forest (discussed here) by accepting an amended complaint. The complaint is based on new information obtained via the Freedom of Information Act about cumulative effects on at-risk wildlife and water quality related to the Hermosa Mine. The amended complaint is here.
Court decision in Miller v. U. S. Forest Service (D. Alaska)
On September 30, the district court disagreed with the agency’s interpretation that a regulation requiring the Tongass National Forest to manage the Mendenhall Glacier Recreation Area “principally for recreation” is “necessarily a directive to enable as many visitors as possible to come to the MGRA.” This linterpretation led to improperly limiting the range of alternatives considered in its 2023 EIS to expand services, especially those related to commercial use special use permits. The purpose and need is “to accommodate future visitor use resulting from a projected 2% increase in the number of visitors over the next 30 years with a projection of 1 million visitors by 2050.” (This despite the Glacier receding by 2050 to the point that it won’t be visible from the visitor center.) The court held that the Forest Service predetermined that it would provide a level of special use authorizations to commercial operators commensurate with this projection.
The plaintiff owns property adjacent to the road access to the MGRA. The remedy has not been determined. The court affirmed the Forest Service’s treatment of effects on municipal waste facilities, mitigation, and its recreation capacity analyses.
New lawsuit: (D. Idaho)
On October 3, Friends of the Clearwater expanded its litigation against logging in the Nez Perce-Clearwater National Forest by challenging six new projects and broadening its attack on two ongoing projects (discussed previously here). Plaintiffs claim that the Forest Service failed to account for the cumulative impact of cutting a total 45,000 acres, which would degrade grizzly bear habitat and old growth forests while violating multiple federal laws. According to the group, the logging will result in 25 square miles of clearcuts.
Court decision in American Whitewater v. U. S. Forest Service (9th Circuit)
On October 17, the circuit court affirmed the district court’s approval of the Forest Service’s NEPA compliance in an EA for post-fire salvage logging on nine national forests in California. The court held that, given the project’s reasonable purpose of prioritizing safety, one action alternative was sufficient. The Forest Service did not improperly tier to the agency’s “Hazard Tree Guidelines.” The EA also adequately considered effects on northern spotted owls, cumulative effects and wild and scenic rivers. Regarding the latter, the failure to provide a relevant specialist report to the public was “harmless error” because the lack of the report “did not change the substance of” plaintiffs’ claim. The article includes a link to the short opinion.
New lawsuit: Western Watersheds Project v. U. S. Forest Service (E.D. Washington)
On October 20, Western Watersheds Project, Kettle Range Conservation Group and WildEarth Guardians sued the Colville National Forest over its approach to livestock grazing in its 2019 revised forest plan, and its project-level implementation of grazing decisions under that plan. With regard to the forest plan, plaintiffs allege violation of the 1982 planning regulations’ requirements for determining and identifying capability and suitability for grazing, failure to consider capability and suitability determinations in the plan’s decisions and the analysis of grazing’s effects (including on the plant and animal diversity required by NFMA), failure to consider alternative suitability determinations in the EIS, and failure to acknowledge in its effects analysis that needed changes in allotment plans or permits would be unlikely to occur during the life of the plan. With regard to renewed permits and ongoing grazing projects, the complaint claims the Forest has failed to comply with the NFMA requirement that such actions be made consistent with the revised plan as soon as practicable.
The complaint states concerns about effects of overgrazing and conflicts with at-risk wildlife species, and seeks to enjoin the Forest Service from continuing to authorize grazing until these errors are corrected. They do not ask that the forest plan be vacated, but do ask that the court retain jurisdiction over compliance with the court’s orders. The complaint is here.
Court decision in Purgatory Recreation I, LLC v. U.S.A. (10th Circuit)
On October 21, the circuit court upheld a 2024 district court decision that dismissed the ski resort’s claims against the Forest Service. As part of a land exchange in 1991, plaintiff retained ownership of certain water rights that are accessible only through the land conveyed to the federal government, but the conveyance documents did not mention these water rights or provide the predecessor with any right of access over the conveyed land, leaving the ski area without a court–recognized right to develop its water rights. The Forest Service has since denied requested permits that it said could reduce stream flows in Hermosa Creek and threaten habitat for the Colorado River cutthroat trout, a sensitive species. The court dismissed the case with regard to application of the Quiet Title Act and the Declaratory Judgment Act, stating, “In deciding this case on statute of limitations and jurisdictional grounds, we do not address whether Purgatory would otherwise be entitled to its asserted right of access or whether Defendants have complied with applicable state and federal law.” The article includes a link to the opinion
Court decision in Wilderness Watch v. U. S. Forest Service (D. Montana)
On October 23, the district court held that the Custer Gallatin National Forest violated the Wilderness Act when it decided to apply poison to 45.5 stream miles and 11 surface acres of a lake in the Absaroka-Beartooth Wilderness north of Yellowstone National Park. To protect downstream (including the national park) Yellowstone cutthroat from hybridization the project would eradicate non-native rainbow trout and replace them with Yellowstone cutthroat trout, including in areas that were historically fishless. Crews would be allowed to build multiple remote field camps, use helicopters to deliver gear and rotenone poison into the wilderness, build and use a radio repeater in the wilderness, put fish barriers at Hidden Lake, and apply the rotenone with motorized pumps for up to five years. The court held:
“According to the Forest Service, poisoning the rainbow trout and restocking the area with Yellowstone cutthroat trout will improve the area’s wilderness character. That conclusion runs counter to both agency guidance and the record in the case.”
“The wilderness neither depended on Yellowstone cutthroat trout for ecological balance nor contributed them to the watershed as a whole. As a result, conserving them serves no wilderness purpose.”
The court’s decision rejected some of the magistrate judge’s recommendations, which would have upheld the Forest Service decision. The article includes a link to the opinion.
Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Montana)
On October 27, the district court enjoined and remanded the Knotty Pine Project (following a preliminary injunction in 2023). The commercial timber harvest and prescribed burning project would have added 3.76 miles of an undetermined road, 1.2 miles of temporary road construction and 35 miles of road maintenance. The court found that the Forest Service had violated the National Environmental Policy Act by failing to take a hard look at the impact of unauthorized road use on grizzly bears. It also held that the forest plan requires illegal roads and roads with ineffective barriers to be considered to have adverse effects on road densities. The agencies must also reinitiate Endangered Species Act consultation on the forest plan because illegal road use has contributed to exceeding the incidental take allowances in the biological opinion. The court upheld the analysis of effects of precommercial thinning treatments and the cumulative effects analysis under NEPA.
The “qualitative analysis” in the Biological Opinion from the Fish and Wildlife Service violated ESA because it failed to include illegal road use in its calculations of road density. According to the court,
“By excluding illegal roads, FWS makes an ‘unsupported assumption’ that illegal roads have no effect on grizzly bears. Such an assumption fails to ‘err on the side of the bear.’”
The article includes a link to the court’s order.
New lawsuit: MountainTrue v. U. S. Forest Service (W.D. North Carolina)
On November 6, the Southern Environmental Law Center, on behalf of the Center for Biological Diversity and MountainTrue, initiated a lawsuit against the Poplar timber sale on the Nantahala-Pisgah National Forest, alleging that the Forest Service failed to prepare an environmental document, as required under the National Environmental Policy Act and failed to comply with the forest plan, as required by the National Forest Management Act. The project is proceeding using “emergency procedures” pursuant to NEPA in response to Hurricane Helene, but is allegedly not included in the area approved for such projects. This area is in a North Carolina Natural Heritage Natural Area along the Nolichucky River and under the forest plan is supposed to be managed as a backcountry preserve to protect old-growth forest. The complaint is here.
ENDANGERED SPECIES
New lawsuit: Center for Biological Diversity v. U. S. Fish and Wildlife Service (W.D. Washington)
On October 29, The Center claimed in federal court that the government violated the Endangered Species Act by failing to meet a statutory decision deadline after it petitioned the Olympic marmot for listing in May 2024. The species resides almost entirely within the alpine meadows of the Olympic National Park. According to plaintiffs, climate change is shrinking their meadow habitat, adding to losses to increasing numbers of coyotes (which are no longer controlled by wolves). The article includes a link to the complaint.
New lawsuit
On October 30, Friends of Animals, WildEarth Guardians, and Western Watersheds Project filed a lawsuit against the U.S. Fish and Wildlife Service for listing the Great Basin silverspot butterfly subspecies as threatened rather than endangered in 2024, and for failing to designate critical habitat. The current ‘threatened’ listing allows livestock grazing to continue in their wet mountain meadow habitat in Colorado, New Mexico, and Utah. At the time of listing, the butterfly had been designated as “sensitive” in Forest Service Regions 2 and 3.
New lawsuit: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)
On November 6, the Center sued the Fish and Wildlife Service for missing its May 2025 deadline to determine if the gray cats-eye warrants listing under the Endangered Species Act. Gray cat’s eyes are a plant species that is found exclusively on dunes along the Columbia River in central Washington, including on BLM lands. It is threatened by habitat loss to dams, agriculture and off-road vehicles, invasive species (particularly cheat grass), altered fire regimes, loss of pollinators, altered sand supplies and climate change. The news release includes a link to the complaint.
OTHER
Supreme Court declines to review Iron Bar Holdings, LLC v. Cape
On October 20, the U. S. Supreme Court declined to consider an appeal of this case involving hunters crossing a corner of private land to reach another section of public land. The circuit court opinion upholding the right to cross the corner was discussed here).
Preliminary injunction granted in American Federation of State County and Municipal Employees v. U. S. Office of Management and Budget (N.D. California)
On October 28, the district court issued a preliminary injunction blocking layoffs of some workers during the shutdown until the lawsuit is resolved. That includes about 2,000 Interior Department employees, many from BLM.
The U.S. Senate Committee on Agriculture, Nutrition, and Forestry passed Alabama Senator Tommy Tuberville’s Talladega National Forest Expansion Act, which would expand the proclamation boundary of the Talladega National Forest by approximately 50,000 acres in three East Alabama counties.
More on the shutdown fallout: out-of-office message hijacking ruled unconstitutional. (Department of Education)
https://www.npr.org/2025/11/08/nx-s1-5602859/education-department-out-of-office-emails-ruling?fbclid=IwY2xjawN–bBleHRuA2FlbQIxMABicmlkETF0S3FmaVg3S2d6bm0yT0dJc3J0YwZhcHBfaWQQMjIyMDM5MTc4ODIwMDg5MgABHjqT2ZziPzr4LCdeS-31w4M9ubuv1ilgqFCeYeMSYEy7c6q0OSeiVASb8ip5_aem_gOpg1QYC1t7cUhjnumL6hA