It almost looks like there is some kind of quarterly incentive for plaintiffs to file cases and courts to decide them, resulting in a pile-up at the end of March that may take me a while to catch up from. See also separate posts on recent land management planning litigation and Endangered Species Act litigation.
FOREST SERVICE
Case dismissed: Mahler v. U. S. Forest Service (S.D. Indiana)
On March 25, the district court dismissed this case involving the Paoli Tornado Response and Research Project on the Hoosier National Forest: 138 acres of salvage logging, debris removal, deer fencing, and tree planting. The Forest employed three categorical exclusions. The court earlier rejected two motions for preliminary injunctions, and then dismissed the case as moot after logging was completed. This case did not meet the mootness exception for actions “capable of repetition but evading review.” While it may be difficult for plaintiffs to show harm with the limited administrative record for a CE, the court said “plaintiffs did not request evidence regarding irreparable harm in expedited discovery, did not prepare affidavits about irreparable harm, consult with third-party witnesses, or elicit testimony from any witnesses about irreparable harm at oral argument.” There was also, “no reasonable expectation that these Plaintiffs will again be subjected to the same challenged action.”
Case dismissed: Green Climate v. Rollins (D. D.C.)
On March 27, the district court found that Plaintiffs did not have standing to litigate the designation of national forests as being in an “emergency situation” through Secretary’s Memorandum 1078-006. Such designations authorize various “emergency actions” to respond to emergency situations. Green Climate alleged that its “mission will be directly harmed by significant additional harvesting of [National Forest Service] land that will result from” the Memo. according to the court, Green Climate’s allegations did not explain how the Memo “directly affected and interfered with” Green Climate’s “core business activities,” nor did it provide any indication that the Memo will harm specific members of the organization (emphasis by the court).
Court decision in Chattooga Conservancy v. U. S. Department of Agriculture (D. D.C.)
On March 30, the district court determined that annual national, regional, and unit timber targets established by the USDA are “not a discrete agency action subject to review under the Administrative Procedure Act,” but are considered high-level policy directives or performance indicators. While the court recognized the coercive effect of the targets on management, it characterized it as “a high-level policy directive to have a timber program” (court’s emphasis) that was then used for budgeting and subject to change at the agency’s discretion. We previously discussed this case here.
The court also upheld NEPA compliance for disclosing effects on carbon emissions of three specific timber projects: the Forest Health Initiative Project on the Mark Twain National Forest, the Buck Project on the Nantahala-Pisgah National Forest and the White Pine Management Project located on the Francis Marion/Sumter National Forest. The project analyses did discuss carbon emissions, and the court deferred to the agency’s “judgment call about how to undertake a cumulative impact analysis,” citing the Supreme Court’s recent Seven County opinion on NEPA indirect effects.
New lawsuit: Cabinet Resource Group v. U. S. Forest Service (D. Montana)
On March 31, Cabinet Resource Group, Clark Fork Coalition, Earthworks, Montana Environmental Information Center, Save our Cabinets and Yaak Valley Forest Council sued the Forest Service and the Fish and Wildlife Service for approving a copper and silver mining exploration project beneath the Cabinet Mountains Wilderness on the Kootenai National Forest. Exploration began here in the 1980s and it has had a history of litigation. The Libby Exploration Project would last 16 years, would extend an existing underground tunnel and construct additional tunnels, and would expand the existing storage area and build a second site. Plaintiffs are concerned about effects on grizzly bears, wolverines and bull trout, water quality and temperature, and the Wilderness. They argue that the EA, which was fast-tracked under the FAST Act, a 2015 law originally passed to streamline transportation projects, should have been an EIS. Plaintiffs also allege violations of the Endangered Species Act, as well as NFMA from violating a forest plan standard for grizzly bear core area. The complaint may be downloaded from the article.
Court decision in Alliance for the Wild Rockies v. Mulholland (D. Montana)
On March 31, the district court enjoined the Round Star Project on the Flathead National Forest (after previously denying a preliminary injunction). The project would include 580 acres of clearcuts and up to 6,324 acres of commercial logging. The court found that it could not determine compliance with forest plan requirements for lynx because of confusion as to which definition of the WUI boundary the Flathead National Forest used to determine compliance with the Lynx Amendment — the boundary defined in the local community wildfire protection plan or a WUI buffer as defined by the Healthy Forest Restoration Act. The court noted, “At worst, the agency relied on the Community Plan and a WUI boundary that was not compliant with HFRA.” The Project also violated NEPA by failing to consider cumulative effects of a nearby project that had not yet been approved. The court rejected some other claims, and enjoined but did not vacate the decision. The opinion may be downloaded from the article.
Court decision in Alliance for the Wild Rockies v. Anderson (D. Montana)
On March 31, the district court enjoined the Gold Butterfly Project on the Bitterroot National Forest. The Project would include 5,281 acres of commercial harvest treatments including 567 acres of old growth forest. The court determined that a December 2024 supplemental information report by the Forest Service, wasn’t sufficient because it had misrepresented some of the conclusions in the agency’s record of decision related to recent sightings of grizzly bears in the area. It concluded that, “The (Forest Service’s) determination that supplemental NEPA analysis was not necessary was premised on apparently inaccurate information.” The court found in favor of the Forest Service on several other issues. It enjoined but did not vacate the decision. The order is here.
BLM
Preliminary injunction denied in Grandmothers Growing Goodness v. Burgum (D. Alaska)
On March 18 the district court denied a motion for a preliminary injunction because the plaintiffs could not demonstrate the irreparable harm required for an injunction. Because the court in another case involving the same leases in the National Petroleum Reserve-Alaska has stated an intention to reach a decision in that case by October 2026, this court stated the same intent and only looked at activities that might occur before then. This excluded the winter activities of concern to the plaintiffs, and the court found that the effects of summer helicopter activities on caribou in a petroleum reserve did not rise to a level of irreparable harm to the plaintiff’s interests.
New lawsuit: Eagle County, Colorado v. U. S. Department of the Interior (D. D.C.)
On March 26, Eagle County filed a second lawsuit seeking to limit oil-train traffic along the Colorado River. Their challenge to the proposed Uinta Basin Railway led to the Supreme Court decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, which narrowed the NEPA obligations to consider indirect effects (discussed here).
Expansion of the Wildcat Loadout Facility would also facilitate greater oil-train traffic. This lawsuit alleges a “400% increase in the amount of oil transloaded from trucks to trains each day at the Facility. The complaint argues that both the DOI’s issuance of a ‘National Energy Emergency’ and the BLM’s approval of the Wildcat facility expansion violate FLPMA, NEPA, and the APA. According to the County’s attorney, “The county challenges BLM’s decision to approve the facility’s expansion using emergency procedures that bypass standard environmental review and public input requirements,” (a 14-day review) and, “The county is also challenging [the Interior Department’s] alternative procedures that allow the agency to fast-track approval of oil-related projects under the pretext that there is an ‘energy emergency’.” The lawsuit also alleges a violation of the Freedom of Information Act. The article includes a link to the complaint.
Court decision in Center for Biological Diversity v. Stone-Manning (D. Nevada)
On March 30, the district court rejected a motion for summary judgment by the plaintiffs, and allowed a lithium-boron mine to proceed on BLM land. The court held that the government complied with FLPMA, NEPA, and with regard to the endangered Tiehm’s buckwheat, the ESA. With regard to ESA, the court deferred to the Fish and Wildlife Service’s interpretation of conflicting scientific information. The opinion is here. On April 8, plaintiffs appealed the decision to the Ninth Circuit Court of Appeals. Meanwhile, the BLM is proposing to implement their Tiehm’s Buckwheat Outplanting Program to further ongoing conservation efforts for this species.
Court decision in Center for Biological Diversity v. U. S. Bureau of Land Management (D. Arizona)
On March 31, the district court ruled that the BLM and the Fish and Wildlife Service violated the Endangered Species Act by failing to take proper action to prevent unauthorized grazing by BLM-permitted cattle in the Agua Fria National Monument. This grazing results from ineffective fencing to prevent livestock from damaging critical habitat for the Gila chub and the yellow-billed cuckoo. The court found that the USFWS letters of concurrence that reissuance of grazing permits would not adversely affect the species were arbitrary and capricious, and ordered the agencies to reinitiate consultation on one allotment (four others are under separate litigation). The court’s order is linked to the news release.
New lawsuit
The Applegate Siskiyou Alliance and Klamath Forest Alliance have filed a lawsuit claiming the BLM has violated the National Environmental Policy Act by failing to examine the impacts of firewood cutting. The complaint alleges the BLM is implementing the Ashland Strategic Operations for Safety, or Ashland SOS project, in a “materially different manner” than was spelled out in its environmental assessment. Hardwood trees were supposed to be “promoted and retained” under the Ashland SOS project except where their removal was required for “safety or operational purposes.” ““Despite these restrictions, the BLM has permitted the contractors who purchased the Apple Saws and Holcomb Hollow timber sales to cut and remove hardwoods of all sizes and age classes across the Project area and sell these hardwoods commercially,” the lawsuit said
New lawsuit
A wireless infrastructure company is suing Rio Arriba County and the Board of County Commissioners for denying a Special Use Permit to build a communications tower on private land. They allege that it met all county requirements, and that denial violated the Telecommunications Act of 1996. Parties had suggested that BLM land in the area would be more appropriate, and they allegedly contacted the BLM, which the lawsuit says failed to respond to several telephone and email inquiries.
ENDANGERED SPECIES
Motion to dismiss denied in National Wildlife Federation v. National Marine Fisheries Service (D. Oregon)
On March 26, the district court denied the government’s motion to dismiss a case that has been ongoing for a “quarter-century.” The court rejected the government’s arguments that BPA’s involvement in the Columbia River dam system triggered the application of statutes that removed the district court’s jurisdiction to hear the case. (BPA is not a party to the lawsuit and its actions are not contested.)
Court decision in Center for Biological Diversity v. Haaland (D. Arizona)
On March 27, the district court upheld the Fish and Wildlife Service’s determination of critical habitat for the northern Mexican gartersnake and narrow-headed gartersnake. The final designation had reduced the amount of critical habitat by around 95% and 90% respectively from what had initially been proposed. Plaintiffs had objections to several specific scientific conclusions by the FWS, but the court held, “FWS relied upon the best available evidence and its critical habitat designation was not arbitrary or capricious. The court noted that, The 2021 final critical habitat designation “relied on approximately 200 studies and documents related to the gartersnakes,” and considered Plaintiff’s concerns, and all comments.
Case dismissed in Northwest Environmental Defense Center v. Federal Emergency Management Agency (D. Oregon)
On March 30, the district court found that a claim that FEMA is operating the National Flood Insurance Program in violation of the ESA, because the National Marine Fisheries Service has determined in a Biological Opinion that the Program, as operated, would jeopardize the continued existence of 16 species of anadromous fish and orca whales, was not ripe for judicial review. NMFS provided FEMA with “reasonable and prudent alternantives” (RPA) to avoid jeopardy, some of which would require NEPA procedures. Plaintiffs object to the process taking more than seven years, and assert that FEMA is failing to act by ignoring interim implementation deadlines in the RPA. However, according to the court, a “departure from the suggestions in the [BiOp] does not by itself constitute a violation of the ESA.”
Court decision in Friends of the River v. National Marine Fisheries Service (E.D. California)
On March 31, the district court addressed challenges to NMFS’ letter of concurrence for the Englebright Dam and biological opinion for the Daguerre Point Dam on the Yuba River, with regard to effects on Central Valley Spring Chinook Salmon, Central Valley Steelhead, and North American Green Sturgeon. These species depend on headwaters found on several national forests for critical spawning and rearing habitat, which has been disturbed by logging. The court upheld the ESA consultation process except for FWS’ failure to explain in its biological opinion why it failed to include a diversion structure as part of the agency action.
OTHER
Court decision in BASE Access v. Burgum (S.D. Texas)
On March 26, the district court dismissed a lawsuit against the “Aerial Delivery Rule,” which prohibits BASE jumping in national parks. The judge ruled that the BASE jumpers lacked the legal standing to pursue the challenge, finding that even if the ban was lifted, the jumpers still would not be able to legally BASE jump in national parks due to other regulations. The opinion and order is here.
Court decision in Center for Biological Diversity v. Mullin (D. Arizona)
On March 26, the district court affirmed the Secretary of Homeland Security’s authority under § 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act to facilitate the Arizona Border Wall Project by waiving all legal restrictions on construction of the border wall. The court rejected two claims that this law violated the U. S. constitution. Plaintiffs have documented that “a minimum of 93 species at risk of extinction will be further imperiled by construction of Trump’s border wall,” which could directly or indirectly affect federal land management.
Preliminary injunction denied in U. S. A. v. State of California (E.D. California)
On March 31, the federal district court upheld a state law that prohibits the approval of new oil or gas wells, or reworking existing wells within 3,200 feet of residences, schools and hospitals. The federal government argued that the state law interfered with federal land-use policy and wasn’t an environmental regulation as California claimed, but the judge found no conflict that would have allowed federal preemption of the state law. The opinion is linked to the article.
Over twenty years ago Congress passed the Tribal Forest Protection Act when this columnist was still living in the Black Hills. It authorized tribal nations to enter agreements with the Departments of Interior and Agriculture to protect public resources bordering or adjacent to reservations and trust lands that have biological, archaeological, historical, or cultural connections.
Then in 2012 the Sicangu Lakota Oyate or Rosebud Sioux Tribe raised some $10 million combined with contributions from the other members of the Oceti Sakowin the People of the Seven Council Fires purchased Pe’Sla, the property formerly called Reynold’s Prairie by the descendants of white settlers. In 2014 the Nations acquired the final 437 acres of the Heart of Everything That Is and in 2015 the Oyates began moving bison to the meadow with hopes to add many more after winning federal trust status but in 2020 the herd of sixty five was removed after whining from welfare ranchers who lease Forest Service land for domestic cattle grazing for pennies per head.
https://ndncollective.org/ndn-collective-files-lawsuit-against-us-forest-service/
About the FAST-41 eligibility.. looks like mining is eligible here
https://www.permitting.gov/projects/eligibility
Maybe someone knows more about why the plaintiffs think not?
That ain’t all. Canada-based Clean Nuclear Energy Corporation wants to drill through the water-bearing Inyan Kara Group on School and Public Lands property in Fall River County. The project is less than a mile from Craven Canyon where pictographs and rock art of the Lakota, Cheyenne, Mandan, Hidatsa, Ponca, eastern Dakota, and other Native American cultures are protected on the Black Hills National Forest.
The postponed Chord Project hearing is intended to determine the fate of a permit application by the subsidiary of Nexus Uranium Corp and was moved from Pierre to Hot Springs after requests from local commissioners and tribal organizers.
https://www.eenews.net/articles/blm-advances-contentious-south-dakota-uranium-mine/
Here’s what the law says is eligible: “construction of infrastructure for renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, manufacturing, semiconductors, artificial intelligence and machine learning, high-performance computing and advanced computer hardware and software, quantum information science and technology, data storage and data management, cybersecurity, carbon capture, energy storage, or any other sector as determined by majority vote of the Council that” (meets some other fairly loose sounding criteria).
It may be that the Council designating all “mining” as eligible goes beyond its statutory authority.
But didn’t the Council have a majority vote on mining? Or why would it be on their website?
Not sure I understand the question, but the only mining they could legally include is mining that meets the criteria in the law.