Jon Haber

Federal Lands Litigation – update through June 20, 2024

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FOREST SERVICE

New lawsuit:  WildEarth Guardians v. U. S. Forest Service (D. New Mexico)

On June 4, WildEarth Guardians, Western Watersheds Project and Caldera Action sued the Forest Service and Fish and Wildlife Service over continued trespassing by cattle from the Santa Fe National Forest onto the Valles Caldera National Preserve, managed by the National Park Service.  Plaintiffs allege several violations of the Endangered Species Act related to effects on the endangered Jemez Mountain salamander and New Mexico meadow jumping mouse, and the threatened Mexican spotted owl.  The article includes a link to the complaint.  Quote of the month:

Tuell (WWP) acknowledges that fence maintenance and other means of keeping the Valles Caldera free from trespass cattle is expensive. She proposes increasing grazing fees to cover the costs.  “The fee is decades old,” she said. “It’s $1.35 to graze a cow and a calf for a month. I challenge you to find another animal you could feed for $1.35. Maybe a goldfish?” 

End of the road for Sawtooth Mountain Ranch v. U. S. Forest Service

On June, 10 the U. S. Supreme Court refused to weigh in on whether plaintiff’s claim about a trail easement within the Sawtooth National Recreation Area is time-barred, or whether they have any relief available under the Fifth Amendment takings clause.  The district court opinion in favor of the government (upheld by the 9th Circuit) was discussed here.

New lawsuit:  Center for Biological Diversity v. U. S. Forest Service (D. Oregon)

On June 11, the Center filed a lawsuit to protect the federally threatened distinct population segment of Pacific marten from the detrimental effects of off-road vehicle activity in the Oregon Dunes National Recreation Area.  It claims that the Forest Service has failed to comply with ESA, NEPA and its land management plans for the Siuslaw National Forest and the Recreation Area in allowing motorized use to occur.  The complaint specifically targets Forest Service special use permits for large off-highway vehicle events.

New lawsuit:  Oregon Wild v. Warnack (D. Oregon)

On June 13, Oregon Wild and WildEarth Guardians filed a lawsuit against the Youngs Rock Rigdon project on the Willamette National Forest.  They object to the parts of the project that would occur in mature and old growth forests, “given the significant loss of carbon storage and impacts to threatened and endangered species such as the northern spotted owl.”  The complaint alleges violations of NEPA’s requirements for a hard look at environmental impacts and consideration of reasonable alternatives.  The press release includes a link to the complaint.

Court decision in WildEarth Guardians v. U. S. Forest Service (9th Cir.)

On June 18, the 9th Circuit affirmed the district court holding that reinitiation of ESA consultation was not required for the Forest Service’s 1995 national policy on black bear baiting because of increased grizzly bear populations or because two grizzly bears were killed by bear baiting 15 years ago.  (Meanwhile, another grizzly bear was killed by a hunter at a bait station on June 10.  And the new information is not so much that populations are growing but that their range is expanding, and this grizzly was “outside of the species’ known range.”)

BLM

New lawsuit:  Center for Biological Diversity v. Berger (D. Colorado)

Welcome to the world of AI summaries from Google – this is what it gave me for “Pawnee grassland lawsuit:”

“On June 10, 2024, the Center for Biological Diversity, represented by Advocates for the West, filed a lawsuit against the U.S. Bureau of Land Management (BLM) to challenge the agency’s authorization of drilling permits in Colorado’s Pawnee National Grassland. The suit claims that the BLM has failed to protect the grassland’s shortgrass prairie from oil and gas extraction, which is a threat to the area. The lawsuit also asks a federal judge to throw out a 2018 policy and 26 permits for wells on and near the grassland.  The lawsuit also claims that the BLM is violating its responsibilities under the Mineral Leasing Act and the Federal Land Policy and Management Act. The BLM stated that it lacked the authority to consider the potential harm to wildlife, air, water, dark skies, or the grassland’s visual character because the federal minerals would be extracted by horizontal fracking from wells built on private or state lands.”

Could be I’ll soon be obsolete.  (The news release has a link to the complaint.)

New lawsuit:  Utah v. Haaland (D. Utah)

On June 18, the states of Utah and Wyoming challenged the recently issued BLM regulations that authorized management of lands for conservation because the agency used a categorical exclusion to meet NEPA requirements.  BLM’s categorical exclusion covers “[p]olicies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.” 43 C.F.R. §46.210(i).  The complaint alleges that the rationale for applying this CE to this regulation, including  a summary dismissal of extraordinary circumstances, is inadequate and therefore arbitrary (and there is a link to the complaint in this article).

ENDANGERED SPECIES

Notice of Intent to Sue

On June 18, the Flathead-Lolo-Bitterroot Citizen Task Force filed a 60-day notice of intent to sue the state and the U. S. Fish and Wildlife Service over the state’s plan to capture grizzlies in the Northern Continental Divide Ecosystem and transport them to the Greater Yellowstone Ecosystem to improve the genetic health of the Yellowstone population and contribute to species recovery.  Plaintiffs allege this will harm those grizzly bears and no effects analysis was done. They also disagree with designating the translocated bears as “experimental” with the intent of decreasing their protection under ESA.

Notice of Intent to Sue

On June 20, Center for Biological Diversity, Bird Alliance of Oregon, Cascadia Wildlands, and Oregon Wild threatened to sue the Fish and Wildlife Service over its February decision pursuant to ESA to (again) not list the north Oregon coast population of red tree voles.  Tree voles are harmed by logging and fires, and the area involved is dominated by private lands and Oregon state forests, while the population’s stronghold is now on federal lands.  The news release includes a link to the Notice.

OTHER

Court decision

On June 7, Canada’s federal court determined that Canada’s Minister of the Environment and Climate Change took too long when he waited eight months to recommend the federal cabinet issue an emergency order to protect the northern spotted owl.  This was a violation of the Species at Risk Act.  As discussed here, the Canada population of spotted owls is about to flatline, and logging is still occurring in owl habitat.  According to the recent article,

Logging — alongside roads, railroads and hydro and gas lines — remain primary threats to the spotted owl, wrote the judge in his decision.  Roy said the spotted owl is threatened by climate change, noise disturbance, and competition over prey and habitat with the invasive Barred owl. But the evidence before the court, he said, identified the loss of mature old-growth forest habitat from logging as the primary reason for the owl’s decline.

(No mention of fire.)

Motion to dismiss denied in Atencio v. New Mexico (County of Santa Fe district court)

On June 10, a New Mexico judge cleared the way for a lawsuit filed a year ago to proceed that alleges the state has failed to meet its state constitutional obligations for protecting against pollution from oil and gas wells.  The State has in recent years adopted rule changes aimed at limiting emissions from the oil and gas industry; however, environmental groups have raised concerns about enforcement.  The complaint is here.

Criminal conviction

An individual has pleaded guilty to illegally digging at an archeological site on the DeSoto National Forest in Mississippi, violating the Archaeological Resources Protection Act.  According to court documents, the accused used a tractor to illegally dig at an archeological site that was later determined to have been labeled as a protected site because it contained material remains of past human activities that are of archeological interest.

 

 

 

 

 

 

 

 

 

Federal Lands Litigation – update through May 31, 2024

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To start your week (and month) off right …

FOREST SERVICE

Court decision in Murray v. United States (Court of Claims)

On June 5, 2023, the Court of Federal Claims dismissed this breach of contract claim involving an authorization by the Umatilla National Forest for snowmobile use in the parking lot of the Spout Springs ski area (the plaintiffs). The record indicated that “material interference” by snowmobiling with the contract began at least by 2013, so the lawsuit was not filed within the statute of limitations, and the case was dismissed.  (This case was introduced here, and someone inquired about the results, so I included it in this update.)

New lawsuit

On May 14, the Alliance for the Wild Rockies filed a lawsuit in U.S. District Court for the Eastern District of Washington seeking to stop the Sxwutn-Kaniksu Connections Trail Project, which calls for logging and burning on more than 36,000 acres over 20 years on the Colville National Forest.   The Forest partnered with the Kalispel Tribe of Indians, whose reservation adjoins the Forest.   The Forest Service has offered three timber sales that are part of the project, according to the complaint.  The plaintiff’s problems with the Project are described here.  We discussed this here.

Court decision in Patagonia Area Resource Alliance v. U. S. Forest Service (9th Cir.)

On May 15, the appeals court affirmed the district court’s denial of a preliminary injunction regarding two mines on the Coronado National Forest.  The court found that plaintiffs were unlikely to succeed on the merits of claims related to the cumulative effects of the Sunnyside and Flux Canyon projects on the Mexican spotted owl and groundwater.

New lawsuit:  Standing Trees v. U. S. Forest Service (D. New Hampshire)

On May 16, Standing Trees filed a lawsuit asking the court to halt the Tarleton and Peabody West integrated resource projects on the White Mountain National Forest.  The plaintiff alleges that the Forest Service failed to take the hard look at alternatives and effects as required by NEPA before approving nearly 3,000 acres of commercial logging based on an EA, and that the projects violated the forest plan.  Plaintiffs are concerned about  water quality, carbon storage, biodiversity, endangered species, mature and old growth forests, and flood resiliency.  (Here is additional background.)

  • Sawtooth NF ditch diversion ownership

Court decision in Hansen v. U.S.A. (D. Idaho)

Court decision in Mizer v. U.S.A (D. Idaho)

On May 20, the district court dismissed two cases with claims of ditch easement ownership by private parties who sought to prevent the Forest Service from subjecting the ditches on national forest lands to Endangered Species Act requirements.

Court decision in Friends of the Inyo v. U. S. Forest Service (9th Cir.)

On May 21, the circuit court reversed a district court holding and enjoined exploratory drilling on the Inyo National Forest.  The court found, based on Forest Service mineral regulations, that associated monitoring and restoration was part of the project.  Since that would continue for more than one year, a categorical exclusion for drilling projects was not available.  Neither was a CE that would have covered the restoration component, but not the drilling.  The court ultimately found that the Forest Service regulation establishing categorical exclusions “unambiguously prohibits combining CEs to approve a proposed action where no single CE could cover the proposed action alone.”  Plaintiffs were concerned about the bi-state sage-grouse and water for the endangered Owens tui chub. (The article includes a link to the opinion, which we also discussed here.)

Court transfer in Center for Biological Diversity v. U. S. Forest Service (now S.D. West Virginia)

On May 21, the federal district court for the District of Columbia granted the government’s request to transfer this case (introduced here) to the Southern District of West Virginia, holding that, “The final factor—the local interest in deciding local controversies at home—is ‘perhaps [the] most important factor’ (citing another case).  Moreover, “Just because a case “involves federal laws and could result in a decision with ‘national implications,’ these implications do not outweigh the significant interest of [local] residents” (citing another case).  (This is why we don’t see many national forest decisions litigated in the D. C. court.)

New lawsuit

The Center for Biological Diversity has filed a second lawsuit against the Tonto National Forest’s management of the Salt River herd of wild horses.  The first (discussed here) was dismissed with the expectation that it would be refiled after an intergovernmental agreement was renewed.

Notice of Intent to Sue under ESA

The Center for Biological Diversity has notified the Forest Service and Fish and Wildlife Service of its intent to sue them regarding (1) U.S. Fish and Wildlife Service’s December 29, 2023, Biological Opinion for the Reinitiation for Ongoing Livestock Management on the Sacramento and Dry Canyon Allotments, and (2) U.S. Forest Service’s reliance on this Biological Opinion on the Lincoln National Forest.  Riparian areas in the Sacramento Mountains are critical habitat for the endangered New Mexico meadow jumping mouse and Mexican spotted owl.  This is the third such notice involving these areas.

BLM

New lawsuit:  Western Energy Alliance v. Haaland (D. Wyoming)

On May 15, six oil and gas associations sued to overturn the BLM’s regulation that would raise royalty rates and toughen protection and cleanup requirements on public land.  They claim procedural violations in adopting the regulation and substantive violation of the Federal Land Management and Policy Act’s “obligations” to promote oil and gas development.   Additional background is here.

Post-litigation agency decision (and lawsuit promised)

On May 16, the BLM issued its final supplemental environmental impact statement and proposed amendment to its Buffalo Field Office land use plan, selecting a “no future coal leasing alternative” for the Powder River Basin in Wyoming and Montana.  The BLM was required by a 2022 court order to reevaluate its land use plan after local conservation groups successfully argued it had not fully considered environmental, climate and human health impacts. The area is the largest coal producer in the U. S., and existing leases would continue for decades.

Magistrate’s recommendation in Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

On May 24, the magistrate judge found that the BLM should have prepared an EIS for the “Integrated Vegetation Management for Resilient Land Program” (875,290 acres in southwestern Oregon). This was in part the result of the uncertainty about effects associated with the flexibility incorporated into the decision.

The judge also found that the “commercial logging portions” of the IVM Program violated FLPMA because they are inconsistent with the governing resource management plan.  The plan includes a standard that directs the BLM to apply logging treatments within late-successional reserves only if they do not preclude or delay the development of northern spotted owl nesting or roosting habitat by 20 years or more.  The BLM had tried to claim that the standard didn’t apply because this project promoted forest health.  The magistrate found that it “clearly applies to any proposed actions in the LSRs, irrespective of BLM’s stated purpose.”

The immediate effect is on the 830-acre Late Mungers commercial thinning project.  The scope of relief is to be determined later.   (The article includes a link to the magistrate’s findings and recommendations, which we also discussed here.)

ENDANGERED SPECIES

On May 29, the U. S. Fish and Wildlife Service designated critical habitat for the coastal distinct population segment of Pacific marten.  It includes federal lands in southwestern Oregon and northwestern California, but land owned by timber company Green Diamond Resources was ultimately excluded from the designation in exchange for the company’s agreement to perform monitoring and create a reserve. Yurok and Karuk tribal land was also excluded.  This follows a lawsuit from the Center for Biological Diversity over delaying the decision.  The article includes a link to the Federal Register notice.

OTHER

Court decision by the Oregon Court of Appeals

The state appeals court overturned a decision by the Oregon Land Use Board of Appeals that had approved a destination resort (on private land).  The court found that Deschutes County officials did not properly take into account the effects of water use on off-reservation treaty fishing rights of several Native American tribes.

New lawsuit

On May 14, WildEarth Guardians and Western Watersheds Project filed a complaint in the Montana federal district court focusing on livestock grazing permitted by the U. S. Fish and Wildlife Service in Red Rock Lakes National Wildlife Refuge in Montana.  The complaint alleges that the FWS “continues to renew commercial grazing permits that rely on a nearly three-decade-old environmental analysis.”  Concerns include effects on grizzly bears and Arctic grayling.  (A lawsuit against the FWS decision to not list the grayling as threatened or endangered is pending – described here.)

New lawsuit:  Defenders of Wildlife v. U. S. Fish and Wildlife Service (E.D. North Carolina)

On May 20, Defenders of Wildlife and the Sierra Club challenged a decision by the U. S. Fish and Wildlife Service to allow an experimental algaecide treatment using a toxic-to-birds product at Mattamuskeet National Wildlife Refuge in North Carolina.  The complaint alleges a violation of the National Wildlife Refuge System Improvement Act and several violations of NEPA.  It also included several claims that the promulgation of the 2020 (Trump Administration) changes to the CEQ NEPA regulations (which were in effect when this decision was made, but have since been replaced) violated the APA.

The latest and greatest NEPA requirements

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Image: Scout Environmental

For any NEPA nerds out there, the last few years have seen an unprecedented tug-of-war over the law’s requirements.  In 2020, the Trump Administration put its stamp on the CEQ regulations implementing NEPA, the first substantial editing of its procedural requirements since 1978.  Upon taking office, the Biden Administration began to undo many of the changes.  On October 7, 2021, CEQ finalized the first phase of its changes to the 2020 Regulations, in which the agency made a handful of targeted revisions.  On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA), which made a number of changes in the law itself, summarized here as follows:

  • Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
  • Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
  • Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
  • Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
  • Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
  • Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
  • Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
  • Establish a process for Federal agencies to use another agency’s categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
  • Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
  • Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).

On July 31, 2023, CEQ published proposed Phase 2 Revisions to the agency’s NEPA implementing regulations.   On May 1, 2024, the Council on Environmental Quality (CEQ) published its final Bipartisan Permitting Reform Implementation Rule (Final Rule).  These will be the NEPA requirements for the foreseeable future (that would be until January, 2025 anyway).  The Federal Register Notice with the final regulations may be found here.

Nossaman is providing a series of reviews of various aspects of the changes that have been made.  They provided this initial overview of what they think is noteworthy (their perspective seems usually be that of a private party):

  • Changes in the definition of “major federal action”;
  • Changes to the way federal agencies approach NEPA’s threshold question of whether the effects of a major federal action are “significant”;
  • Codifying environmental justice and climate change as among the effects that must be examined during the NEPA process;
  • Updated requirements relating to public engagement;
  • Codification of CEQ’s 2023 greenhouse gas guidance;
  • Additional flexibility for federal agencies to establish new categorical exclusions;
  • Codification of CEQ’s longstanding practice of relying on mitigated findings of no significant impact (FONSI);
  • Providing clarity on the requirements for mitigation to form the basis of a mitigated FONSI;
  • Removal of language added by the 2020 Regulations that sought to limit the ability of third parties to challenge NEPA determinations; and
  • Adoption of provisions intended to speed the NEPA review process.

The second installment, discussing the first two bullets, is found here (others will follow).  One of the topics it addresses is the criteria for “significance” that would require an EIS.  The new regulation mostly affirms past practices, but it explicitly recognizes a situation that may arise for “restoration” proposals on public lands.  In determining significance:

Agencies may also consider the extent to which an effect is adverse at some points in time and beneficial in others (for example, in assessing the significance of a habitat restoration action’s effect on a species, an agency may consider both any short-term harm to the species during implementation of the action and any benefit to the same species once the action is complete).  However, agencies shall not offset an action’s adverse effects with other beneficial effects to determine significance …

The Preamble warns:

In some circumstances, an effect may be significant due to the harm during one period of time regardless of the benefit at another.  For example, if implementation of a habitat restoration action may extirpate a species from the area, then an agency could not reasonably rely on long-term habitat improvements resulting from the action to determine that the overall effect to the species is not significant.

(I would like to say this is just an extreme example to make the point that if short term effects may be significant, you can’t discount them based on long-term benefits to avoid preparing an EIS.  However, they follow this with a comparison to mitigation, where it IS possible to offset adverse effects with beneficial mitigation to the point that they are no longer significant.)

“Indirect containment” for San Juan wildfire

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We’ve had some good discussion recently (which searches couldn’t find) of how to count acres burned by wildfires towards burning targets, and how to comply with project planning requirements (i.e. NEPA and ESA) for such actions.  An implication I got was that a national forest could count a lot of acres if it just let a wildfire burn, and there wouldn’t be any process requirements.

Well, this sounds like the opposite of that, and like what I think should be the proper way of doing this – a wildfire started in an area that had been “prepped” for a prescribed burn.  Assuming that “prepped” includes the usual public  participation and effects analysis.

Fire managers plan to expand the footprint of a 10-acre lightning-caused wildfire burning northeast of Dolores on the Haycamp Mesa next week, and could burn upward of 4,500 acres.

Last month, the Dolores Ranger District announced plans to burn 4,577 acres across Haycamp Mesa Units 5, 6 and 9. Fire managers plan to use existing roads as fire lines within which they would contain the blaze.

The Spruce Creek Fire started Tuesday afternoon along the northern perimeter of Unit 5.

“It’s all prepped and ready to go, conditions are ideal,” said Pat Seekins, prescribed fire and fuels program manager for the San Juan National Forest. “It’s low-intensity surface fire, it’s doing exactly what we need it to do.”

If the weather continues to cooperate, fire managers hope to burn between 4,000 and 5,000 acres. Seekins said crews have prepared around 5,600 acres to burn.

“With prescribed fire this spring, we’ve accomplished just shy of 4,000 acres, which is good – we’ve had a good spring,” Seekins said. “But we’re taking this opportunity to expand those acres.”

It’s not clear exactly how active they would be to “expand” those acres.  Interestingly,

Last year, fire managers used three natural blazes that began inside units already prepped for treatment to return fire to the landscape in the San Juan National Forest. With the help of firefighters, those three wildfires ultimately treated 4,000 acres of forest.

Is the San Juan just lucky, or well-prepared, or does this happen a lot?

Endangered Species Day

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The third Friday in May is Endangered Species Day, where we should “celebrate saving species.”

We could certainly talk about past successes at saving and recovering some species, but here is a story that suggests the inadequacy of ESA for the task of mitigating or reducing the effects of human climate disruption on many (maybe all) species.  This species has apparently become extinct in the Mule Mountains of southern Arizona – on BLM land under federal land management.

Over the last 3 million years — a million years longer than humans have been around — the Yarrow’s spiny lizards in the Mules adapted to live in cool mountain climates called sky islands.  Because the desert floor below is too hot, the lizards were essentially marooned at higher elevations, as if on an island, and cut off from other Yarrow’s populations in southern Arizona and northern Mexico.

In 2014, the team could not find any lizards below 5,700 feet. Up to that elevation the temperature in the mountains had gotten too hot. In 2021-22, they returned to the Mules to count lizards in the same spot. They were gone.  At that point, the lizards could only be found living much higher, at 7,100 feet, a cooler elevation.

In a scientific paper, Wiens and his colleagues calculated the rate at which the lizards were dying, concluding that it is among the fastest rates ever recorded.

But because the highest peak in the Mules is 7,700 feet, the Yarrow’s spiny lizards were quickly running out of elevations with cooler air. Based on its calculated rate of decline, and with nowhere else to go, Wiens projected the lizards would go extinct here by 2025 — a phenomenon that scientists call riding the “elevator to extinction.”

In March of this year, a survey trip into the mountains with CBS News proved his hypothesis correct, one year ahead of schedule. Wiens could no longer find any lizards, though it will take several more trips before rendering a conclusion.

This species was apparently never listed under ESA, or even petitioned.  The BLM could have petitioned to list the lizard.  You might think that a federal agency responsible for species on its lands would want all the tools available to provide for the species survival, but I think petitions to list a species by federal agencies are unheard of.

We know that species may be listed under ESA because of the effects of climate change (e.g. polar bears).  The ESA would then force federal agencies to modify their actions that would adversely affect listed species.  In this example, changing BLM management practices might have been necessary, but not sufficient, to save the species.

If the species had been listed, at least in theory, other actions that are causing the loss of habitat could have been modified or eliminated which could have benefitted federal lands ecosystems.  A Congressional Research Service Report from 2019 found that unlikely:

Judicial review has helped to ensure that the Services consider projected climate change effects on species in their ESA decisions. However, the courts have not required the Services to curb activities that may contribute to climate change to protect threatened or endangered species.

Stakeholders disagree on whether the ESA should play a role in addressing climate change, with some arguing that the ESA is not equipped to mitigate climate change effects. Other stakeholders believe that the Services can and should wield the ESA to protect further species threatened by climate change by curbing activities contributing to climate change. From the Services’ viewpoint, the best available scientific and commercial data have been insufficient to determine whether greenhouse gas emissions from a proposed activity cause detrimental effects on a species or its habitat. In light of the judicial deference afforded to the Services, the courts have not expanded the ESA as a tool to protect listed species by regulating activities that contribute to climate change.

Despite some success challenging BiOps, neither the courts nor the Services have found that climate change effects from a proposed federal action jeopardize the species or adversely modify its habitat.

Even though that is what happened here.  Federal actions authorizing greenhouse gas emissions have contributed to a baseline for this species that trended toward and resulted in extinction.  This same trend is occurring for many other species in less obvious ways.  Nothing to celebrate here.

But the CRS authors offer this (faint) note of hope:

From the Services’ viewpoint, the best available scientific and commercial data have been insufficient to determine that GHG emissions from a proposed activity cause detrimental effects on the species or its habitat. However, as climate modeling and technology advance, the Services may be able to predict the causes and effects from climate change on species with greater scientific certainty and data.

(Note:  This report was written at the end of the Trump Administration and discusses its changes in the ESA regulations, which have since been changed by the Biden Administration.  Also, I have not tried to update what’s been happening in the courts.)

 

New Flathead National Forest Supervisor interview

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Anthony Botello took the job as forest supervisor on the Flathead at the beginning of the year, and provided this extended interview to the Missoulian.  This may be paywalled, but I’ve pulled out a few quotes related to things I tend to talk about.

Staffing of NEPA specialists is especially hard:

We have staffing challenges all across our workforce, but the one that pops to mind right now — because much of what we do revolves around very smart people who lead our ID (interdisciplinary) teams through our NEPA (National Environmental Policy Act) process, and those are folks that are in high demand and we have very limited numbers of them that are interested in our jobs.

For example, we have three interdisciplinary teams on this forest that do the work all across the forest, and we plan projects that then we go and implement. It could be timber, it could be fuels reduction, recreation. And we need team leaders — we call them environmental coordinators or team leaders — to lead those teams to get us through that legal NEPA process. And we’re struggling, not just this forest but the forest I came from was struggling.

Condition-based NEPA:

Some projects have a very focused purpose and need, they’re very focused in what we’re wanting to do, and so we have more of the traditional, our specialists go out there and monitor and look at conditions and then use that for our analysis to determine.

And then we have some places where we want to look at bigger landscapes, we want to look at more adaptive management, so we pull into this idea of, let’s make conceptual decisions and then when we go to implement we’ll do more of the site-specific look at things.

A new forest plan is a good thing:

We’ve got really good strong language in our forest plan. The forest plan that we have here is a relatively new plan. In my career I’ve worked on forests with 20-, 30-year-old forest plans. The Payette had a relatively new plan when I was there, the Wallowa-Whitman had a pretty old plan.

And this one, thankfully, has been redone as of ’18. In that, we worked very closely with some of our U.S. Fish and Wildlife Service, Montana Fish, Wildlife & Parks partners to come up with the standards that are in there.

And our forest plan — through public involvement, through NEPA, through line officer decision — withstood all of those thresholds, which was good. And we’re implementing the forest plan. The forest plan does have some pretty good, strong, prescriptive language about all those things — about roads, about (recreation) sites, about grizzly habitat — it’s a very contemporary plan when it comes to that.

Litigation and policy decisions:

The role of a line officer is not to interpret any kind of court ruling, decision, etc. We wait for our agency to promulgate a rule or a regulation.

(Follow-up question)

Just to make sure I understand: In a situation where the forest plan or a project loses in court in a certain issue, any sort of reaction to that is not going to come from you as the forest supervisor, it’s going to come from higher-up in the agency with either a new rule or amendment to a plan? And then when that comes down, you simply keep following the plan or the rule? 

Kind of, yeah. Litigation, obviously, can affect the way we manage. But there’s a whole bunch of steps between that and changing our forest plan. We have a legal staff that advises us on that, and until that happens we’re managing the way our forest plan has guided us to manage.

There’s a whole bunch of steps that would happen between some theoretical court case and us changing our management, and we’ll do that when it goes through the process that it needs to go through before it changes something that we’ve already adopted.

Federal Lands Litigation – update through May 1, 2024

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FOREST SERVICE

New (to me) lawsuit

Last fall, Safe Alternatives for our Forest Environment, Conservation Congress and Klamath Forest Alliance sued the Shasta Trinity National Forest for its decision to approve the McFarland Project using a categorical exclusion for “wildlife habitat improvement.”  According to plaintiffs, the project would include commercial logging of over 2000 acres, most of which is in a late successional reserve that supports “one of the few successful breeding pairs of the northern spotted owl left in the Shasta Trinity National Forest.”

Court decision in Purgatory Recreation I, LLC v. United States (D. Colorado)

The substantive issue in this case is whether the Purgatory ski resort retained a right to an easement to divert and carry water across national forest land when it conveyed that land to the Forest Service as part of a land exchange.  In a quiet title action, the Forest Service objected on the basis that the diversion could detrimentally impact the native cutthroat trout population.  On April 15, the court held that, since the land exchange was completed in 1991, and Purgatory should have been aware at that time that there would be no easement, the 12-year statute of limitations for proceeding under the Quiet Title Act had not been met.  This doesn’t foreclose Purgatory using other means to access its water right.  Here is the court opinion.

Settlement

The parties have settled a case filed in September by Native Ecosystems Council and Alliance for the Wild Rockies against the Middleman Project on the Helena-Lewis and Clark National Forest.  The Forest can implement parts of the project that include 4.1 miles of temporary road construction and about 21 miles of road reconstruction, but will forego commercial timber harvest not already under contract.  The settlement also limits prescribed burning.

According to plaintiffs, “The settlement stops over 110 miles of road construction/reconstruction and over 5,000 acres of commercial logging in lynx and grizzly habitat.”  Michael Garrity is also reported to have said that while he appreciated the Forest Service settling the case, he wished they would have listened to the plaintiffs’ concerns when they commented on the project instead of forcing the issue to court.

New lawsuit:  Defenders of Wildlife v. U. S. Forest Service (D. North Carolina)

On April 18, Defenders of Wildlife, MountainTrue, Sierra Club and Center for Biological Diversity filed a lawsuit against the revised forest plan for the Nantahala-Pisgah National Forest.  The complaint alleges multiple violations of the Endangered Species Act with regard to the effects of the plan on four endangered bat species: the northern long-eared bat, the Indiana bat, the Virginia big-eared bat, and the gray bat.  Plaintiffs claim that the Forest provided misleading information to the Fish and Wildlife Service, and the FWS failed to consider the best available scientific information and drew arbitrary conclusions in its biological opinion, which plaintiffs seek to vacate.  A link to the complaint is provided.

Court decision in Rocky Mountain Wild v. Dallas (10th Circuit)

On April 19, the circuit court reversed the district court and upheld the 2019 Forest Service ROD and 2018 FWS Biological Opinion under ANILCA, NEPA, and the ESA, affirming the USFS’s grant of a right-of-way across Rio Grande National Forest land so that a private owner could develop a ski village on its own land.  This article reviews the long history of the case.  Plaintiffs said the developers still have other steps to complete before they can begin work, and a “concerned local citizenry will be actively engaged.”  Here is the court’s opinion.

New lawsuit:  Center for Biological Diversity v. U. S. Forest Service (D. Utah)

On April 24, the Center for Biological Diversity, Yellowstone to Uintas Connection, Alliance for the Wild Rockies and Native Ecosystems Council sued the Forest Service over the Ashley National Forest’s Aspen Restoration Project.  They allege it violates the Roadless Rule as well as NEPA.  With regard to the Roadless Rule, which requires that trees removed must be “generally small diameter,” the complaint says, “It places no limits on the size of trees to be removed, nor does it otherwise demonstrate or ensure that only generally small diameter trees would be removed. The Forest Service ignored repeated public requests that the agency explain how the project would comply with the Roadless Rule.”  Plaintiffs claim that the Forest Service did not provide details for the project necessary to determine compliance.  This press release includes a link to the complaint.

BLM

Court decision

A district court halted BLM’s practice of removing wild horses in areas where the agency has reached its planned population for the area.  The BLM had developed ten-year management plans for two areas, authorizing roundups for “maintenance,” even after achieving appropriate management levels.  The court said that new plans with public participation are necessary in this situation.  (Best play on words award, from plaintiffs:  “I’m hopeful that this decision will pull back on the BLM’s unbridled discretion to remove horses …”)

Court decision in Tohono O’odham Nation v. Department of the Interior (D. Arizona)

On April 16, the district court denied a preliminary injunction to halt construction on 50 miles of the 550-mile SunZia power transmission line from windfarms through the San Pedro River Valley (recently discussed here).  The court held that the tribes waited too long to challenge the NEPA sufficiency of the 2015 decision.  As for the National Historic Preservation Act, the court held, “BLM (1) complied with its obligation to identify historic properties, (2) considered measures to avoid adverse impacts to historic properties, and (3) consulted with Plaintiff Tribes during each phase of the PA.”  The court’s opinion is here.

“Notice of intent to sue”

An NOI is required by the Endangered Species Act, but not for other types of claims we usually see related to public lands.  The idea is to give the agency a chance to change its ways before being confronted in court.  That doesn’t seem likely with the recently released BLM Public Lands Rule – at least until after the election, but they are getting plenty of “We’ll see you in court” warnings.  From the Governor of Utah:

“The added layers of red tape and federal bureaucracy embedded in the BLM’s Public Lands Rule create new roadblocks to conservation work. The health of Utah’s lands and wildlife will suffer as a result. This rule is contrary to the bedrock principle of ‘multiple-use’ in the BLM’s governing law, the Federal Land Policy and Management Act.”

It will be interesting to see what specific legal claims they’ll make, given that the “multiple-use” requirement has always been interpreted to allow a lot of discretion, and the agency should get a lot of deference regarding what will promote “conservation.”  (The article also provides perspectives from environmental groups.)

ENDANGERED SPECIES

Notice of Intent to Sue

On April 22, the Fish and Wildlife Service received a notice written on behalf of Animal Wellness Action, the Center for a Humane Economy, Project Coyote, the Kettle Range Conservation Group, Footloose Montana, and the Gallatin Wildlife Association.  The parties object to the agency’s February 2, 2024 finding that western United States gray wolf does not warrant listing under the Endangered Species Act.  This is the third lawsuit filed against that decision (the other two are discussed here), and it is being attributed to a wolf-torturing incident in Wyoming that represented “everything that’s wrong with Wyoming’s handling of wolves.”  (Meanwhile, the U.S. House voted April 30 to end federal protection for gray wolves across the lower 48 states, but the legislation is not expected to be adopted.)

Preliminary injunction in Flathead-Lolo-Bitterroot Citizens Task Force v. State of Montana (9th Cir.)

On April 23, the circuit court affirmed the district court’s decision to limit the wolf trapping and snaring season in Montana to six weeks in January and February when grizzly bears are expected to be denning, based in part on effects of climate change shortening the denning season.  However, it also limited this restriction to areas where grizzly bears are known to live.  Grizzly bears are listed as threatened under the ESA, and they have been harmed by wolf traps.  Plaintiffs are now seeking a permanent injunction.  (The article includes a link to the opinion.)

Settlement in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On April 25, the parties agreed to a court-ordered deadline to complete overdue listing designations that the Fish and Wildlife Service had proposed for 10 species: two snapping turtles, the white-tailed ptarmigan, the Peñasco least chipmunk and six species of Texas mussels will receive federal protections by the end of the year. Three other species will also receive final designations of critical habitat, including Humboldt martens, and two mussel species will get an initial listing determination.  The Northwest’s tall western penstemon flower and Nevada’s Fish Lake Valley tui chub fish will get final protection decisions later.  (The article includes a link to the settlement agreement.)

OTHER

Preliminary injunction in National Wildlife Refuge Association v. Rural Utilities Service (W.D. Wisconsin)

On March 6, the NWRA, Driftless Area Land Conservancy and Wisconsin Wildlife Federation filed suit against a proposed land exchange that would facilitate construction of a transmission line across the Upper Mississippi River National Wildlife and Fish Refuge. The complaint alleges violations of NEPA and the National Wildlife Refuge System Improvement Act.  A  preliminary injunction was quickly granted.

Criminal sentencing

On April 23, a Missouri man was sentenced to two years and six months in federal prison without parole, and was required to pay $30,000 in restitution for cutting down and selling at least ten trees from the Mark Twain National Forest.

Court decision (10th Circuit)

On April 30, the circuit court affirmed the lower court’s denial of a preliminary injunction against the Department of Labor’s requirement that a minimum wage of $15 per hour be paid in federal contracts.  This case involved river outfitters operating under permits from the Forest Service and BLM which have typically used a flat fee.

Court decision in Juliana v. United States (9th Cir.)

On May 1, the circuit court issued an order to the district court to dismiss this high-profile case claiming that the government’s actions encouraging a fossil fuel economy, despite scientific warnings about global warming, is unconstitutional.

Federal Lands Litigation – update through April 8, 2024

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A little weekend reading.

FOREST SERVICE

Notice of Intent to Sue

On March 25, the Center for Biological Diversity notified the Forest Service and Fish and Wildlife Service of its intent to sue for failing to initiate consultation on its ongoing actions that may affect the coastal pine marten, listed as threatened in 2020.  They specifically target “rampant, unchecked off-road vehicle (“ORV”) use” in the Oregon Dunes National Recreation Area, and suggest that the Forest Service should “put up fencing to protect marten habitat, and more signage or enforcement of noise limits that could disrupt the martens’ critical day-to-day behaviors.”  The press release includes a link to the Notice; additional background is provided here.

New lawsuit

A new lawsuit has been filed against the Beaverhead-Deerlodge National Forest because it relocated a repeater antenna to a designated Wilderness Study Area.  The Forest’s decision was apparently based on a categorical exclusion for repair and maintenance of an administrative site.  No news sources without a paywall seem to have covered this story, but background was previously provided here.

Court decision in Greater Hells Canyon Council v. Wilkes (D. Oregon)

On March 29, the district court issued an order supporting the findings of the magistrate judge, previously discussed here.  The court said the Forest Service evaluation of eliminating the 21 inch diameter limit on logging in eastern Oregon and Washington “failed to take a hard look at the amendment’s change and its impact on aquatic species.”  We have already discussed the court’s decision here.  (Press coverage seems surprisingly limited, and I have not seen the actual order.)

Court decision in Friends of the Crazy Mountains v. Erickson (9th Cir.)

On April 8, the circuit court affirmed the district court’s ruling that the Forest Service had complied with NEPA requirements for specificity for this 2018 decision long ago because, “Both the 2006 EIS and the 2009 EA gave reasonable notice that the 2018 trail reroute fell within their respective scopes.”  Plaintiffs had failed to challenge those actions at the time.  The article includes a link to the opinion.  We covered the beginnings of this case here.

BLM/NPS

Court decision in Dakota Resource Council v. U. S. Department of Interior (D. D.C.)

On March 22, the district court upheld BLM’s compliance with NEPA and FLPMA for six oil and gas lease sales affecting nearly 120,000 acres in Wyoming and another 10,000 in several other states.  The court specifically rejected the plaintiff’s arguments that the BLM should combine all leases within each quarter in one decision process instead of separate EAs.  With regard to greenhouse gas issues, the court said:

“Operating at the frontiers of science, BLM reasonably exhausted available tools to analyze the lease sales’ environmental consequences:  It estimated the amount of GHG emissions from the lease sales; placed those projections in proper perspective; monetized the social cost of the emissions; described why it cannot predict the on-the-ground effects that this level of GHG emissions will have on the local ecosystem or global environment; and explained why, absent a government carbon budget or similar reference standard, it was not possible to determine whether the estimated emissions would have a “significant” impact on the environment.”

Court decision in Wilderness Society v. U. S. D. I. (D. D.C.)

In a second case on the same lease decisions, the same judge held that the BLM violated NEPA because it failed to adequately assess “the Wyoming sale’s impact on groundwater and wildlife,” specifically mule deer and the sage grouse, and failed to adequately explain how the effects on greenhouse gas emissions influenced its leasing decisions.  Notably, the court did not approve of the BLM relying on the analysis of wildlife effects in its resource management plan.  The court agreed with the BLM on other issues.  With regard to the greenhouse gas issue, the court said:

“After projecting the emissions and their social costs, though, the Bureau did not explain why it believed that a lease sale of this magnitude was nonetheless worthwhile and consistent with its statutory duties to steward federal lands for the public benefit. Rather, the Bureau appeared to back away from its analysis of GHG emissions when justifying its decision to move forward.”

Briefing on the remedy is pending.  (The article includes a link to both opinions.)

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (D. Nevada)

On March 25, plaintiffs went to court to try to force the BLM to develop plans for two national monuments in Nevada, Basin and Range and Gold Butte.  The monuments were established in 2015 and 2017 respectively, and beginning efforts at planning were abandoned.  FLPMA and the proclamations for the monuments require planning. Plaintiffs explained the problems with the delay:

“Some examples of impacts to the monuments from a lack of active management include the proliferation of human waste at recreation sites due to BLM’s failure to install sanitary facilities; a proliferation of unauthorized [off-highway vehicle] uses due to BLM’s failure to properly regulate and enforce laws on limitations to off road vehicular travel; and the ongoing illegal cattle grazing by Cliven Bundy in Gold Butte. These impacts cause habitat degradation and destruction which threaten wildlife like the desert tortoise.”

Solar projects were also mentioned.  This article provides an update on the Bundy cattle (from which one might infer a connection to the lack of BLM action there).  Plaintiffs recognize that completion of plans would not resolve the cattle trespassing issue, since they are already illegal.

Cert denied in American Forest Resource Council v. U. S. A. (Supreme Court)

On March 25, the Supreme Court declined to review the expansion of the Cascade-Siskiyou on O&C lands, and BLM’s 2016 Resource Management Plans for Western Oregon O&C lands, which had been upheld by the D. C. Court of Appeals.  (See also comments by Sean here.)  Only two justices indicated an interest in reviewing the case, and they may have only been interested in the narrower question of conflicts with the O&C Act rather than the Antiquities Act authority to designate monuments.  The door doesn’t appear to be closed to another challenge to the Antiquities Act.  (Coincidentally, the BLM has just released a new draft plan for managing the Monument.)

New lawsuit:  Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

On March 27, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands and Oregon Wild sued the BLM for its decision to authorize portions of the Rogue Gold Forest Management Project, which involves logging in late-successional reserves designated under a resource management plan.  The complaint alleges that the Project violates FLPMA because it is not consistent with that plan because, “Generating timber volume is not a permissible objective for logging within the LSR.”

This article provides some additional context regarding large trees and litigation in this area, including this comment from BLM that was something I hadn’t heard before:

“We work really hard to design timber sales and access roads to have the least amount of impact. We hear from our timber operators that they don’t want to cut those larger trees. It’s a safety issue. It increases the costs,” said Kyle Sullivan, a BLM spokesperson.

He said that there are barely any mills left in Oregon that can take old-growth sized logs and claimed those large trees that are felled are left on the forest floor to become wildlife habitat.

Court decision in Leigh v. Raby (D. Nevada)

On March 28, the district court ruled that the BLM “unreasonably delayed” completion of herd management area plans when it failed to adopt such a plan or conduct the necessary environmental review before 31 mustangs died during a roundup in the Pancake complex in eastern Nevada.  The court specifically rejected the argument that BLM’s broader resource management plans combined with individual roundup plans for overpopulated herds satisfies the requirement.  The court stated, “Engaging in the decision-making of an HMAP without actually preparing an HMAP could therefore deprive interested parties of the administrative review processes to which they are entitled.”  (This reasoning may be applicable to decisions that should be in forest plans but are made without following appropriate processes, or attempts to substitute some other process for actions that should be subject to NEPA.)  The court required completion of the Herd Area Management Plan within one year.

ENDANGERED SPECIES ACT

At the end of March, the U. S. Fish and Wildlife Service and NOAA issued a final rule largely reversing the changes the Trump Administration had made in the ESA listing and consultation processes.  This article explains the changes, and anticipates the litigation that will follow.

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On April 1, the Center sued the Fish and Wildlife Service for failing to respond to its petitions to list four bumblebee species under the Endangered Species Act within the required time period.  The species are the American bumblebee, the southern plains bumblebee, the variable cuckoo bumblebee and the blue calamintha bee.  American bumblebees were found in open areas across all of the lower 48 states except Washington.

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Montana)

New lawsuit:  Western Watersheds Project v. Williams (D. Montana)

On April 8, 14 plaintiffs filed two lawsuits against the decision by the U. S. Fish and Wildlife Service to not relist the gray wolves of the northern Rocky Mountains under the Endangered Species Act.  Both complaints argue that USFWS relied on flawed population models and underestimated the impact of aggressive wolf-reduction measures in Idaho, Montana and Wyoming.  The article has links to both complaints.

 

Bad and worse, from an environmental perspective

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NBC News

As the election campaign overheats, here are a couple critiques of current Biden and future Trump policies affecting the Forest Service.

WildEarth Guardians recently reviewed a FY 2022 Forest Service Report to Congress, which discusses “timber program performance.”  (I’d note that the context was “the unexpected increase in demand for lumber during the recent period of quarantine and social distancing due to the coronavirus pandemic…”)  WildEarth Guardians said,

The document outlines how the agency can increase logging in our national forests by at least 25 percent above current levels, to four billion board feet each year! The last time the Forest Service sold that much timber from our national forests was 1993, the year the agency started developing the Northwest Forest Plan to address habitat loss for the northern spotted owl caused by—that’s right—overlogging. That level of logging was not sustainable then and it isn’t sustainable now, especially in light of what we know now about the importance of protecting mature and old-growth forests to mitigate the effects of climate change. Nevertheless, the Forest Service wants to turn the clock back and actually spells out just how it wants to do that.

The remedy, according to the Forest Service, is not to stop proposing ecologically damaging timber sales that violate the law, but rather to ask Congress for “legislative fixes” that make it harder, if not impossible, to challenge ecologically damaging timber sales in court. Streamlining environmental reviews and limiting public input, the Forest Service says, “will help increase timber volume sold.”

We shouldn’t wonder why there is skepticism from these parts when the Forest Service says “trust us.”  As WildEarth Guardians summarized (with their emphasis):

Such perverse incentives are a stark reminder that timber production remains the overarching priority for the Forest Service while all other values, like wildlife or climate mitigation, are a distant second. As the Forest Service seeks to push timber production levels even higher, those of us who care about our national forests must be ready to speak up and tell the agency and lawmakers that we cannot turn the clock back to a time when unsustainable logging pushed species like the northern spotted owl to the brink of extinction.

An article in the Huffington Post focused on the Department of Interior (but has implications for national forests), and indicates the incentives would be even more perverse for management of our public lands under Trump II, requiring even more public oversight (if they don’t take away the ability to do that):

Pendley’s blueprint for Trump, if he should win in November, includes holding robust oil and gas lease sales on- and offshore, boosting drilling across northern Alaska, slashing the royalties that fossil fuel companies pay to drill on federal lands, expediting oil and gas permitting, and rescinding Biden-era rules aimed at protecting endangered species and limiting methane pollution from oil and gas operations.

Along with a series of actions to boost drilling and mining across the federal estate, Pendley calls for a future Republican administration to not only dismantle existing protected landscapes but limit presidents’ ability to protect others in the future. He advocates for vacating Biden’s executive order establishing a goal of conserving 30% of federal lands and waters by 2030; rescinding the Biden administration’s drilling and mining moratoriums in Colorado, New Mexico and Minnesota; reviewing all Biden-era resource management plans, which cover millions of acres of federal lands; and repealing the Antiquities Act, the landmark 1906 law that 18 presidents have used to designate 161 national monuments.

If that reads like a fossil fuel industry wish list, it’s because it is. Rather than personally calling for the keys to America’s public lands to be turned over to America’s fossil fuel sector, Pendley let the head of a powerful industry group do it for him.

“Beyond posing an existential threat to democracy, Project 2025 puts special interests over everyday Americans,” said Tony Carrk, executive director of Accountable.US, a progressive watchdog group that shared its research on Project 2025 with HuffPost. “The dangerous initiative has handed off its policy proposals to the same industry players who have dumped millions into the project — and who will massively benefit from its industry-friendly policies.”

“They could have found any number of mainstream conservatives to write their agenda for them. They didn’t,” Weiss said. “They picked the notorious anti-public lands extremist, because that is at the end of the day what they want.

 

Federal Lands Litigation – update through March 22, 2024

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An Easter egg for this morning, but I’ll be running a little behind for awhile.

FOREST SERVICE

I started the last litigation update with this, before discussing a district court opinion in the Rio Grande case: “I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other).”   Within a couple of days there were new opinions on both the Rio Grande and the Flathead revised forest plans.

Court decision in Defenders of Wildlife v. U. S. Forest Service (10th Cir.)

On March 11, the 10th Circuit Court of Appeals affirmed a district court opinion upholding the Rio Grande National Forest revised forest plan’s compliance with the Endangered Species Act for Canada lynx.  The circuit court did not directly offer an opinion on what the district court called “fundamental flaws” in the plaintiff’s arguments, but found that the determination of no jeopardy by the Fish and Wildlife Service was supported by the record and not arbitrary.

However, the circuit court did imply that there is no point in formally consulting on lynx on the Rio Grande because there are not enough lynx.  The court first established that, “When the record shows a subpopulation is particularly important to the species, the FWS may need to consider how the agency action affects that subpopulation to give a reasoned jeopardy opinion” on the listed species as a whole.  It then found that to not be the case for the subpopulation on the Rio Grande.   It found that the Species Status Assessment for lynx showed that the “Colorado subpopulation was a fraction of the estimated DPS population” (the population south of Canada), and pointed out “the RGNF’s small lynx population relative to the Colorado population.”  (The NFMA requirement for viability in a plan area is more protective of such “dispensable” populations.)

The court nevertheless proceeded to find that there was sufficient information in the administrative record about lynx habitat and use in the northern portion of the Forest (designated in the plan as a “low use” area for lynx) to uphold the FWS discounting of effects there.  This included discussion of the applicability of three research efforts, and the agency’s determination of what was the best available science for them to use (which was given considerable deference by the court).  It also upheld the analysis of effects on lynx in the low use areas, which it pointed out meant only looking at the effects of the revised plan, and did not require a comparison to the former plan.  It found that the FWS made reasonable assumptions about the amount and location of future vegetation management and deferred to its recognition that “complete analysis is not possible at this time” (but additional consultation would occur on specific projects).  (The court noted that “Defenders’ petition for review did not challenge the USFS’s design of the (new) VEG S7 standard,” but instead this case was about  the FWS effects analysis.)

Magistrate recommendations in Swan View Coalition v. Haaland (D. Montana)

This is the second lawsuit on the Flathead plan.  In the first, the district court remanded without vacatur to the agencies to reconsider how to comply with ESA, and the 9th Circuit dismissed an appeal as moot because the FWS had issued a superseding Revised Biological Opinion.  On March 12, in this lawsuit on that BiOp, the magistrate judge recommended another remand without vacatur to address the following ESA violations (the article includes a link to the recommendations):

“(T)he Revised BiOp failed to adequately consider the impact of ineffective road closures on the 2011 baseline and on grizzly bear populations as a whole. The Revised BiOp further failed to consider that the new take statement regarding culvert removal does not apply to roads rendered impassable under the Revised Plan. Therefore, the Forest Service violated the ESA to the extent it relied on the Revised BiOp’s flawed road density determinations and culvert removal analysis.”

A 2020 analysis of road closure devices found an average of 92% of them to be effective, and the Revised BiOp included a new section addressing illegal or unauthorized motorized use of closed roads in the environmental baseline.  However, the BiOp did not attempt to determine the actual effect of the failures and account for unauthorized use, instead stating that unauthorized motorized access is unpredictable, and its effects on grizzly bears are unknowable.  This reasoning had already been found insufficient in a prior case.

The Revised BiOp also included a new incidental take statement for bull trout, which assumes a take will result from road decommissioning in bull trout watersheds that did not remove culverts (referred to as “impassable” or “barrier” roads, which were expected to be more common than fully decommissioned roads).  The magistrate found, “given that removal of culverts is an effective sediment-prevention method for both barriered and decommissioned roads, it is inexplicable why FWS limited its analysis to the Forest Service’s abandonment of culvert removal requirements for decommissioned roads.”  Omitting the effects of leaving these culverts in place for these other roads was arbitrary and capricious.

The magistrate would uphold the Forest Service against other claims.  By not vacating the portions of the forest plan identified by plaintiffs, they point out, “while we appreciate that the judge has since sent them back to the drawing board, they’re still out there building roads on grizzly and bull trout habitat…”

New lawsuit:  John Muir Project v. U. S. Forest Service (E. D. California)

On March 22, John Muir Project of Earth Island Institute and the Plumas Forest Project asked the district court to require an EIS (rather than an EA) for a logging and burning project on the Plumas National Forest.  Plaintiffs say the 217,000-acre Central/West Slope Project will be among the largest logging authorizations in the forest’s history, and it will include cutting old-growth trees up to 400 years old.  The Forest Service says the project is intended to reduce wildfire impacts in several communities.

BLM

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (D. Arizona)

On March 12, the Center and Maricopa Audubon Society sued the BLM and Fish and Wildlife Service over unauthorized cattle grazing in the Agua Fria National Monument, and its effects on critical habitat for the endangered Gila chub and threatened yellow-billed cuckoo.  Plaintiffs specifically challenge the ESA consultation process for five grazing allotments, and also failure to develop and implement a program to conserve listed species impacted by BLM’s grazing program and unauthorized grazing, pursuant to §7(a)(1) of ESA.  A prior lawsuit was settled, but plaintiffs allege the settlement has not been properly implemented.  (The article includes a link to the complaint.)

Preliminary injunction denied in BlueRibbon Coalition v. U. S. Bureau of Land Management (D. Utah)

On March 20, the district court denied plaintiffs a preliminary injunction against the Labyrinth Rims/Gemini Bridges Travel Plan, finding that they had not demonstrated a likelihood of success on the merits of any of the four claims, discussed earlier here.  Per some of that discussion, the court found, “neither the law nor the record supports Plaintiffs arguments that BLM was creating a buffer zone or closing routes due to noise within the Labyrinth Canyon Wilderness.”  Additional background is provided here.

ENDANGERED SPECIES

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.)

On March 11, plaintiffs filed suit against the 2019 decision to not list the Arkansas mudalia, a freshwater snail, as threatened or endangered.  According to the Fish and Wildlife Service, four of the nine recently documented populations occur on the Ozark and Mark Twain National Forests.  They say, “Habitat modification and degradation is highly unlikely in these areas, as the USFS restricts many of the land practices that can be a threat or, when allowed, follows strict BMPs to reduce the impact of the practice on the environment.”  (Presumably these restrictions are in the forest plans so that the FWS can consider them “regulatory” in the listing process.)

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On March 19, plaintiffs sued the Fish and Wildlife Service for failing to protect additional critical habitat for Mount Graham red squirrels.  Original critical habitat for the squirrels was destroyed by construction of mountaintop telescopes and fires. A petition to designate the additional habitat was filed in 2017.  Part of the alleged problem is Forest Service special use permits for recreation cabins and an organizational camp in remaining habitat on the Coronado National Forest.  (The article incudes a link to the complaint.)

Court decision in Center for Biological Diversity v. Little (D. Idaho)

On March 19, the district court found that Idaho’s rules for trapping wolves violated the Endangered Species Act because the traps and snares are likely to harm grizzly bears.  The decision stated, “There is ample evidence in the record, including from Idaho’s own witnesses, that lawfully set wolf traps and snares are reasonably likely to take grizzly bears in Idaho.”  The court enjoined trapping and snaring during the non-denning season on public and private lands unless the State obtains an incidental take permit from the Fish and Wildlife Service for harm to grizzly bears.  (The article includes a link to the opinion.)

New lawsuit:  WildEarth Guardians v. U. S. Fish and Wildlife Service (C.D. California)

On March 20, plaintiffs sued the FWS for its 2023 decision to not list two species of Joshua trees as threatened under the Endangered Species Act.  The same court ruled in 2021 that a prior decision to not do so lacked scientific support.  Plaintiffs again claim the FWS did not properly account for the effects of climate change and wildfires on recruitment of young trees.  Agriculture and human developments near Joshua Tree National Park are also threats to the species.  (The article includes a link to the complaint.)

OTHER

New lawsuit (D. D.C.).

Three individuals have sued the National Park Service over its policy of not accepting cash payments at some of its sites across the country.   The suit asks the court for a declaratory judgment that the Park Service is in violation of U.S. law that “legal tender”—U.S. currency—is suitable “for all public charges.”  For those with only cash, “Go buy a gift card.”  This article also cites an example of a BLM site with a “no cash” policy, its Virgin River Recreation Area in Arizona.  (Coming to a national forest near you?)