Federal Lands Litigation – update through March 10, 2024

(Links are to additional background and/or court documents.)

FOREST SERVICE

In Februrary, the Environmental Law and Policy Center sent a letter to the Chequamegon-Nicolet National Forest supervisor requesting that operations in the Sunfish Timber Sale, which are part of the controversial Fourmile logging project, be stopped because they had violated terms of a government contract by conducting work when the ground was unfrozen and illegally clearcutting parts of the forest with mature and old growth trees.  This has led to an exchange between the ELPC and the Great Lakes Timber Professionals Association, but no response yet from the Forest Service.  (I’d question whether there would be standing to sue to enforce contract compliance, but this suggests NEPA issues as well.)

Partial dismissal of Alliance for the Wild Rockies v. U. S. Forest Service (D. Idaho)

On February 22, the district court dismissed four of the six claims in this case against the Buckskin Saddle Integrated Resource Project on the Idaho Panhandle National Forest because plaintiffs had failed to identify the relevant issues during the administrative objection process.  The Project authorizes approximately 13,005 acres of commercial logging and 6,469 acres of noncommercial logging and fuels reduction.  The remaining claims involve effects on old-growth habitat and whether the Project would move the forest towards the desired conditions laid out in the forest plan.

New lawsuit: Sierra Club v. U. S. Forest Service (N.D. California)

On February 22, the Sierra Club, Earth Island Institute and Sequoia Forestkeeper challenged two projects in and around the Giant Sequoia National Monument that would remove dead and live trees from about 13,000 acres following the Castle and Windy Fires in 2020 and 2021. The presidential proclamation that created the monument states that aside from some uses as firewood, trees may be removed there only “if clearly needed for ecological restoration and maintenance or public safety.” Differing views about what that means and how to go about it are the crux of the lawsuit.  Plaintiffs allege failure to comply with NEPA and the forest plan for the Monument.

New lawsuit:  Chattooga Conservancy v. U.S.D.A. (D. D.C.)

On February 26, the Chattooga Conservancy, MountainTrue, and an individual in Missouri challenged the use of timber targets in the Southern and Eastern regions of the Forest Service.  See our discussion here.

Court decision in Apache Stronghold v. U. S. A. (9th Cir.)

On March 1, a divided en banc decision of the 9th Circuit (with a 6-5 majority, and seven different written opinions) rejected Native American religious freedom claims seeking to stop a legislated land exchange that would facilitate copper mining near the Tonto National Forest.  The exchange would transfer the Oak Flat sacred site from the national forest to a mining company, and subsurface mining would collapse the site into a crater.  The court held that the First Amendment Free Exercise Clause allows federal land managers to burden religious practices, as long as there is no “tendency to coerce” them “into acting contrary to their religious beliefs.” The religious liberty law firm Becket representing plaintiffs stated, “The Supreme Court has a strong track record of protecting religious freedom for people of other faiths, and we fully expect the Court to uphold that same freedom for Native Americans who simply want to continue core religious practices at a sacred site that has belonged to them since before the United States existed.”  (If you’re keeping score, the 9th Circuit panel had 6 Trump appointees, one of whom sided with the minority along with all of those appointed by Democrats.)

Court decision in Los Padres ForestWatch v. U. S. Forest Service (9th Cir.)

On March 1, the 9th Circuit affirmed the district court opinion, and approved the Tecuya Ridge Shaded Fuelbreak Project on the Los Padres National Forest.  The remaining issue concerned the Roadless Rule’s requirement that logging in part of the area be “generally small diameter timber.”  The court found that a 21-inch diameter could reasonably be considered “small” where the predominant Jeffrey pine can grow to 60-90 inches.  The district court opinion was provided here.

USDI

Lawsuit settlement follow-up

On February 16, the BLM State Director for Oregon and Washington approved an amendment to the Southeastern Oregon Resource Management Plan.  According to the BLM, “The plan amendment was undertaken in response to adverse court rulings and a resulting settlement agreement, in which the BLM committed to evaluate specific issues.”  About 10% of the 4.6 million acres will be managed to protect wilderness characteristics, and about 40,000 acres will be available for off-road vehicle use.  The Oregon Natural Desert Association (one of the plaintiffs in the lawsuit), Pew and the Theodore Roosevelt Partnership have all made supportive comments.

ESA

Court decision in New Mexico Cattle Growers Assn’ v. U. S. Fish and Wildlife Service (D. D.C.)

On February 28, the district court upheld the decision to list the southwestern willow flycatcher as a federally endangered species.  Plaintiffs had claimed that a new research study shows it is not a valid subspecies that could be subject to listing, but the court agreed with the Fish and Wildlife Service that this “outlier reanalysis of existing data” in 2017 was not the best available science, and did not justify changing a subspecies classification that had been recognized since 1948.  The bird is found in riparian areas in the southwest where its habitat is damaged by livestock grazing.

Court decision in American Forest Resource Council v. Williams (D. D.C.)

On March 5, the circuit court affirmed the district court decision that plaintiff’s case against the Biden Administration’s delaying of the Trump Administration’s reductions in northern spotted owl critical habitat was moot.  The delays had expired and a new rule had been adopted, so invalidating the prior rules imposing the delays would provide no relief.

A series of lawsuits filed against the State of Oregon alleging violations of the Endangered Species Act has led to the State’s approval of a new 70-year Habitat Conservation Plan for protecting listed species from logging on about 700,000 acres of state forest land.  It may reduce logging by 20-30%.  It still needs to be reviewed for ESA compliance by the federal agencies.

OTHER STUFF

On December 14, the Biden Administration announced an agreement that seeks to move away from the continuing litigation over the Columbia River’s salmon.  On February 24, four tribal and two state leaders signed the agreement, which would commit federal resources to improve fish habitat and sponsor tribal clean energy projects, and would agree to adjustments in dam operations to promote fish survival.

Most notably, the federal government “would undertake or help fund studies of how the transportation, irrigation, and recreation services provided by the four Lower Snake River dams could be replaced, to help inform Congress should it consider authorizing dam breach in the future.”  “The Administration, however, is not making a judgment on whether to breach the dams, nor does it have the authority to do so; that authority resides with Congress.”  Local representatives in Congress quickly agreed to participate in such studies and the search for alternatives that would work for their constituents – of course not.  One denounced “secret negotiations” led by White House senior adviser and climate envoy John Podesta, saying he and other officials “worked behind closed doors with a select group of radical environmentalists to develop a secret package of actions and commitments” that “advance efforts to remove the four Lower Snake River dams.”

In the largest recovery obtained by the U.S. attorney’s office in Los Angeles for firefighting costs incurred by the Forest Service, Southern California Edison has agreed to pay $80 million to settle a civil lawsuit that blamed the utility’s equipment for the 282,000-acre Thomas Fire 2017.

In April 2023, a Nevada federal court dismissed a criminal indictment after finding that a provision of the Federal Land Policy and Management Act of 1976 (FLPMA) unconstitutionally delegated Congress’s legislative power to write crimes to a federal agency, the Bureau of Land Management. The government has appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit.  In this case the crime was failure to use a taillight at night while riding a dirt bike in a remote desert area.  The court objected to FLPMA granting BLM unfettered power to issue any “regulations necessary to implement the provisions of th[e] Act with respect to the management, use, and protection of the public lands” backed by criminal penalties.  This opinion is apparently bucking Supreme Court precedent, but the Federalist Society is salivating over how this might limit federal authorities.

Another possible example, a federal district court in Wyoming has sentenced a Utah man who allegedly held illegal dirt bike races within the boundaries of Grand Teton National Park to 18 months of unsupervised probation and fined almost $10,000.

Then there’s good old-fashioned horse theft (which was presumably prosecuted under federal law rather than agency regulations).  On February 26, a retired U.S. Forest Service law enforcement officer was sentenced for stealing government horses and mules, ammunition and more.  He was sentenced to two years of probation with six months of home confinement, and must pay almost $12,000 in restitution.  He had switched two of his own horses for two belonging to the government, and “did knowingly receive, conceal and retain” two government mules.”

Rio Grande National Forest Plan Revision Litigation

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).  Two lawsuits were filed against the Rio Grande in November 2021.  One of them (Defenders of Wildlife v. U. S. Forest Service) was decided a year ago by the district court and is on appeal to the 10th Circuit.  That case is worth some discussion, so here it is.  There has not yet been a district court hearing for the other case (San Luis Valley Ecosystem Council v. Dallas).  (The Colville revised plan litigation involved the previous 1982 planning regulations.)

On January 27, 2023, the district court upheld the Rio Grande revised forest plan’s compliance with the Endangered Species Act and NEPA for Canada lynx.  The judge framed the issue in this case as whether the Forest failed to “protect the lynx by inadequately limiting logging in the Forest under a revised forest plan in violation of the ESA, the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).”  The court found no violation of ESA in the Biological Opinion by the Fish and Wildlife Service, and it summarily dispensed with the NEPA and ESA claims against the Forest Service as being based on “substantially the same arguments.”

The case involves changing forest plan management direction for Canada lynx from that included in the Southern Rockies Lynx Amendment in response to insect-killed trees and blowdown over a large portion of the Forest.  The opinion asserts at the outset that, “Petitioner’s position is fundamentally flawed for at least three reasons.”  Two of these are troubling.

The court minimizes (or perhaps rejects) the need for ESA consultation on national forest plans because they are “programmatic,” and (citing the BiOp), “no immediate consequences occur directly to Canada lynx caused by the proposed action,” and therefore “implementation cannot be said to jeopardize the lynx directly.”  If plan cannot jeopardize a species, then there should be no need to consult.

These statements and this conclusion would be contrary to national Fish and Wildlife Service policy on consultation on “programmatic” or “tiered” decisions.  Forest plans are decisions that both promote activities that could adversely affect species through desired conditions and objectives, and limit those activities through standards and guidelines.  Consultation on such decisions is based on the effects that would be allowed to occur using the “design standards” in the decision.  There is no requirement that consequences potentially leading to jeopardy be “immediate.”

The court’s conclusion is also at odds with other cases, which emphasized the broad scope of agency “actions” subject to ESA.  The 10th Circuit has determined that, “Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes “action” under § 7(a)(2) of the ESA.”  Forest Guardians v. Forsgren, 478 F.3d 1149, 1154 (2007).  The 9th Circuit held, “RMPs are actions that “may affect” the protected salmon because the plans set forth criteria for harvesting resources within the salmon’s habitat.”  Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (1994).  A requirement to consult on forest plans must presume that there could be some basis for finding substantive violations of ESA, so this court’s finding of a fundamental flaw here seems fundamentally flawed.

A second “fundamental flaw” results from the fact that, “lynx habitat in the Forest amounts to just over 2 percent of the lynx habitat in the contiguous United States,” and “none of that habitat was designated as critical.”  Therefore, “even if the lynx were extirpated in the Forest, that would not significantly affect the status of the lynx across the contiguous United States.”  This raises questions about the effectiveness of applying ESA’s requirements to wide-ranging species if no individual project or even a forest-wide plan could be viewed as capable of causing jeopardy.  This is a reason why the western lynx amendments were applied across ranges of the lynx, and consultation occurred on multiple national forests simultaneously.  The reasoning the court applied here highlights the risk of now disassembling a regional strategy on a forest-by-forest basis.  Doing so on one forest should arguably trigger the need to reinitiate consultation across the range of lynx (in this case the southern Rockies national forests).

This court’s view of ESA highlights the need to challenge species conservation provisions of forest plans under the viability requirement of the 2012 Planning Rule, even for listed species.  The requirements pertaining to species viability must be met based on their probability of persistence in the “plan area.”  Various statements cited by the court would support a conclusion that lynx are not likely to persist on the Rio Grande National Forest plan area over time.  This argues for strict scrutiny of forest plan components that would allow any adverse effects to occur from management activities.  Similar to ESA, the viability requirement contemplates long-term consequences of multiple activities over time, and effects need not be direct or immediate.  (In another context, the court points out that, “the revised forest plan is intended to remain in effect only until about 2036,” but it may be that management actions during the life of this plan would contribute to the “long-term” decline, which is the test applied by the 2012 Planning Rule).

There is a counter-argument that the 2012 Planning Rule applied the viability requirement explicitly only to “species of conservation concern,” which are defined to not include listed species, for which the requirement is to “contribute to recovery.”  However, at the point at which the species recovers, it should immediately become an SCC (see Planning Handbook §12.52d.2.b) and would need to meet the viability requirement.  Regardless, logic requires that what is needed to “contribute to recovery” should be something beyond what is needed to maintain viability after recovery, and that plan components for listed species must at least provide habitat for viable populations.

This outcome would be consistent with court interpretations of the NFMA diversity requirement under the 1982 planning regulations.  When the Forest Service argued that it did not have to meet the viability requirement for listed species, the 9th Circuit found, “The effect of the Forest Service’s position in this litigation, were it to be adopted, would be to reward the Forest Service for its own failures; the net result would be that the less successful the Forest Service is in maintaining viable populations of species as required under its regulations, the less planning it must do for the diversity of wildlife sought by the statute. This is directly contrary to the legislative purpose of the National Forest Management Act.”  Seattle Audubon Society v. Evans, 952 F.2d 297, 301 (1991).  (The San Luis Valley Ecosystem Counsel claims against the Rio Grande plan include NFMA violations for lynx and the Uncompahgre fritillary butterfly, but relative to the “contribute to recovery” requirement for listed species, and not the viability requirement.)

The third “overarching flaw” appears to derive from judicial deference principles.  The court specifically notes that, “the Court does not find that the presumption of validity that attaches to agency action is overcome merely because the revised forest plan changes the way the SRLA was previously applied in the Forest.”

The remainder of the opinion discusses the scientific rationale provided by the agencies for their effects analysis and decisions, and finds that they properly address questions raised by plaintiffs, and the court was “not persuaded that implementation of the revised forest plan is likely to make conditions worse for the lynx.”  (Perhaps under stricter scrutiny called for by the NFMA plan area viability requirement the court might have been persuaded.)  So maybe the court’s findings of “fundamental flaws” were just window dressing?

On January 17, 2024 the 10th Circuit held a hearing (listen here) in this case.  I have not read the briefs, but the hearing did not discuss the overarching issues reviewed above, so it appears that they are assuming (and apparently the government did not object) that the Rio Grande revised plan could theoretically cause jeopardy to lynx.

The hearing was narrowly focused on two issues, and particularly on the question of whether the northern portion of the Rio Grande should be managed as an area of low lynx use with less protection, as it is in the revised forest plan.  That turned on the question of best available science.  The only research on lynx that included the northern portion (Ivans) concluded that there could be high lynx use.  The Fish and Wildlife Service concluded otherwise based on discussions with unnamed biologists that were not specifically documented.  Importantly, there is no record of the reasons why the Ivans study was not accepted by the FWS (or the Forest Service).  If there were no conflicting information in the record, the unattributed sources might be sufficient, but that is not the case here.  The FWS conclusions could be considered arbitrary.

The second issue was about the importance of the lynx population on the Rio Grande, and/or the importance of the Colorado lynx population to the listed species.  The record indicated that the Rio Grande lynx are important to the Colorado population.  The FWS had also said elsewhere that all six populations in the lower 48 (the listed entity) are important, but then discounted the current importance of the Colorado lynx population because it was not historically important.  Ultimately the question appeared to be whether the FWS properly considered the importance of these lynx in its jeopardy determination for the species.

We await a decision.

 

 

 

Federal Lands Litigation – update through February 21, 2024

National Monument creation

On February 12, leaders of both houses of the Arizona legislature, the State Treasurer, Mohave County and two towns sued President Biden and the Department of the Interior over designation of Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument.  The complaint alleges the designation exceeds the authority of the Antiquities Act, the Arizona-New Mexico Enabling Act reserved state authority to manage State Trust Land encompassed by the Monument, and Defendants lack the power to change the designated use for former wilderness study areas governed by the Arizona Wilderness Act of 1984.  Plaintiffs are particularly interested in regaining the opportunity for uranium mining within the Monument boundaries.  (The article has a link to the complaint.)

On February 12, a second lawsuit was filed by a rancher whose private land is partly included within the Monument boundaries.  He alleges “severe regulatory burdens and the threat of criminal penalties for engaging in everyday conduct on his ranch.”  (The article has a link to the complaint.)

If the conduct is “on his ranch,” I’m not sure of how Monument designation could criminalize actions on private property.  Along the same lines, the state claims in its lawsuit, “The Ancestral Footprints Monument will restrict and prohibit uses on State Trust Land by making State Trust Land inaccessible, impacting water rights, prohibiting new mining claims, prohibiting new grazing leases, limiting new construction of infrastructure and other property improvements, and affecting other uses of State Trust Land that had previously been allowed.”  I’m not sure how Monument designation could “disallow” these uses of State land.

FOREST SERVICE

On Nov. 28, 2023 wildlife conservation groups submitted a petition asking the Forest Service to immediately ban the aerial killing of wildlife in Idaho national forests.  This was in response to the Idaho Wolf Control Board approving funding for this purpose.  On February 15, 30 organizations sent a follow-up letter to five national forests, the Intermountain Region and the national office.  They allege violations of the Federal Airborne Hunting Act, the Endangered Species Act (grizzly bears, lynx and wolverine), the Wilderness Act and NFMA and Forest Service regulations.  (Maybe this should be viewed as a notice of intent to sue.)

New lawsuit

On February 16, Yellowstone to Uintas Connection, Native Ecosystems Council and Alliance for the Wild Rockies filed a complaint in the Montana federal district court against the U.S. Forest Service and asked for an injunction to stop the Pintler Face Project on the Beaverhead-Deerlodge National Forest.  The project would log or burn more than 11,000 acres, including large clearcuts, along the southeastern edge of the Anaconda Pintler Wilderness over the course of five to 10 years.   Issues involve effects on lynx and grizzly bears.  (The article refers to a recent court precedent involving remapping of lynx habitat on the Custer-Gallatin National Forest, which is referring to the Greater Red Lodge Area project discussed here.)

BLM

Court decision in True Oil LLC v. BLM (D. Wyoming)

In this case, the district court determined that, where the federal government owns subsurface mineral rights, it can require a permit for an easement to drill through that property, even though no minerals would be removed, and even where they do not own the surface estate.  A permit requirement would allow the government to protect its mineral interests.

New lawsuit:  Glenwood Springs Citizens Alliance v. U. S. Department of the Interior (D. Colorado)

On February 15, plaintiffs filed a Freedom of Information Act lawsuit against the BLM.  They are seeking documents related to ongoing mining operations, and proposed major expansion of, a large limestone mine directly above Glenwood Springs, CO, known as the Mid-Continent Mine.  Many documents had been withheld or redacted, and appeals of these had not been resolved.  Plaintiffs contend that the end use for that limestone does not comply with the federal permit under which that mine is operating.  (The article includes a link to the complaint.)

Court decision in Citizens for Clean Energy v. U. S. Department of the Interior (9th Circuit)

On February 21, the appellate court reversed a district court decision that had rejected the Trump Administration’s restarting of coal leasing on federal lands after the Obama Administration had imposed a moratorium.  It found that since the Biden Administration had revoked the order to restart leasing, the case was moot.  That leaves no moratorium in place, but also nothing compelling leasing to resume, and plaintiffs are still hoping for “a long overdue review of the federal coal leasing program,” including NEPA compliance.   (The article includes a link to the opinion.)

FISH AND WILDLIFE SERVICE

Court decision in Atchafalaya Basinkeeper v. Bernhardt (M.D. Louisiana)

On January 29, the district court approved the 2016 decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the list of threatened species.  National forest lands are considered suitable but unoccupied.  The court found that the FWS had properly considered the five listing/delisting factors using the best available science.  It added this closing comment: “The Court commends Plaintiffs’ extraordinary efforts in defense of this remarkable mammal. Would that every species received the same indefatigable support as the Louisiana black bear.”

In January, the U. S. Fish and Wildlife Service denied a 2022 petition by the Center for Biological Diversity (link provided) seeking to reintroduce endangered jaguars on the Gila National Forest.  There are presently only two known jaguars north of the Mexican border.  The FWS determined that reintroduction in New Mexico “would not further the conservation of the species.”  (Does the Center ever sue?)

Notice of Intent to Sue

On February 7, within a week after the U. S. Fish and Wildlife Service decided not to relist gray wolves in the northern Rockies under the Endangered Species Act, fourteen organizations gave their notice of intent to sue in two letters to the FWS.  (Links to both are included in this article.)

On February 15, the U. S. Fish and Wildlife Service published a notice that it would list a southwestern subspecies of silverspot butterfly as a threatened species.  No populations are known to occur on national forest lands, but the elevational range of the subspecies includes some lower elevation USFS land, and they are a sensitive species in regions 2 and 4.  Two known colonies occur on BLM lands, one of which is managed for this species in the land management plan.  (The press release has a link to the Federal Register notice.)

INCIDENTAL TAKE

These cases don’t directly relate to federal lands, but federal land management activities require a comparable investigation of incidental take and approval in an incidental take statement.  (I’ve wondered why federal land managers shouldn’t have to also refer to a habitat conservation plan, which might be a land management plan, for these take statements.)

Court decision in Allegheny Wood Products v. U. S. Fish and Wildlife Service (N. D. W. Virginia)

On February 12, the district court found that the administrative record supported a decision by the FWS to not provide an incidental take permit necessary to avoid liability for possible harm to seven listed species that might be affected by the plaintiff’s forest management activities.  Following a back-and-forth process that began in 2006, the court agreed with the FWS that the 2021 draft habitat conservation plan did not provide information necessary to determine the extent of take and develop mitigating measures.  This included not providing “sufficient project details at scales relevant to the impacted species” to constitute a “complete description of the activity sought to be authorized.”

Court decision in Center for Biological Diversity v. Regan (D. D.C.)

On February 15, the district court issued an order vacating the U.S. Environmental Protection Agency’s approval at the end of the Trump Administration of the state of Florida’s application to assume permitting authority from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act within the state.  This would have allowed future permits to avoid review under the Endangered Species Act.  The court found flaws in the biological opinion and incidental take statement prepared by the Fish and Wildlife Service for the transfer of authority.  Of particular concern are Florida panthers near the Florida Panther National Wildlife Refuge in the western Everglades. (The article includes a link to the opinion.)

Court decision in Puyallup Tribe of Indians v. Electron Hydro, LLC (W.D. Washington)

On February 16, the district court found that a “temporary” rock structure (which had been there for several years) in the Puyallup River was interfering with migration of listed fish species and causing incidental take of these species (and orcas) without an incidental take permit, in violation of ESA.  The court ordered removal of part of the structure.  In this case, the National Marine Fisheries Service had indicated that harm would occur, but they were not a party to the lawsuit.  (This press release includes a link to the opinion.)

OTHER CASES OF INTEREST

Criminal plea deal

A man whose family’s gender reveal photo shoot sparked the El Dorado Fire that killed a firefighter in 2020 has pleaded guilty to involuntary manslaughter.  His sentence includes one year in jail, two years of felony probation and 200 hours of community service.  His wife was sentenced to a year of probation and 400 hours of community service. The couple was also ordered to pay $1,789,972 in restitution.

On February 2, the Forest Service burn boss arrested in Oregon in conjunction with an escaped fire was indicted by a grand jury on a misdemeanor count of reckless burning, and arraignment in the county court was February 16.  A plea haring is set for April 1. He is being represented by private attorneys paid by the U.S. Department of Justice.  The Forest Service and the National Federation of Federal Employees have expressed their support for the accused.

 

 

 

 

 

 

New available science for wildlife connectivity

National Parks Conservation Association

Federal lands are separated by highways all over the west.  Those highways are a barrier to many species of wildlife, including species listed under the Endangered Species Act and those identified as Species of Conservation Concern (SCC) in national forest planning. Climate change is recognized as increasing the importance of wildlife movements.

Forest Service planning regulations pertaining to designation of SCC require consideration of all threats to the species’ persistence in the plan area, whether or not the threats occur within the plan area or are the result of national forest management.  Often, significant threats to these at-risk species come from outside of the federal lands; one of these is the effect of highways on connectivity.   The Forest Service could improve prospects for some species to persist in the plan area by making it easier for them to get to and from it.  They can do two things to promote that.  They can 1) collaborate with other agencies managing land, wildlife and transportation to identify the most important areas to jointly manage for connectivity, and 2) manage their lands in or near these areas to minimize barriers to wildlife movement, first by recognizing them as such in forest plans.

There’s a new tool from the Center for Landscape Conservation that could help with identifying the important areas consistently across the west.  As with any newly available science, the agencies involved should be looking at this mapping tool and determining whether and how they will use it, and ideally documenting the rationale, especially for disregarding this new information.  National forests should be checking their forest plans to see whether their assigned management areas would make these connectivity areas less attractive to wildlife movement, and amending plans as needed.

The study that produced these maps also found that “1,523 of the CC (“collision and connectivity”) segments (338 mi) have enough collisions to make it more cost-effective to build a wildlife crossing than to do nothing,” and land management agencies should support such efforts and manage their lands to facilitate their use by wildlife.

Public Lands Litigation – update through February 2, 2024

FEATURED CASE

Court decision in North Cascades Conservation Council v. U. S. Forest Service (E.D. Washington)

On January 17, the district court granted summary judgment to the Forest Service with regard to the Twisp Restoration Project on the Okanogan-Wenatchee National Forest.  The proposed project stated that most of the thinning and prescribed fire treatments would use a “condition-based management strategy.”  The court held that the project complied with NEPA requirements related to the proposed action, alternatives, cumulative impacts, public participation and the significance of effects.  The latter two issues implicated the issue of condition-based management, where the court held:

“At the heart of Plaintiff’s challenge is the Forest Service’s use of condition-based management. Plaintiff has not shown that this approach violates NEPA as a matter of law. Here, the Final EA disclosed detailed decision criteria that will be applied during the TRP implementation to ensure the actual conditions on the ground meet the expected conditions disclosed in the Final EA. If they do, the approved treatment will be applied. If they do not, the treatment will not be applied.

 In this case, the Final EA’s description of condition-based management details the decision criteria for each approved activity, specific prescriptions that will be applied if those decision criteria are met, maps identifying where those prescriptions would be applied, and estimates of the timing of implementation.

The Court finds that the use of condition-based management is not arbitrary or capricious as a matter of law and as applied in this case.”

The highlighted language is why I think “this case” may represent a different kind of “condition-based” management than other project we have seen, some of which have lost in court.  This statement means the action will not be changed from how it has been described (other than possibly reducing the scope of the action and its effects), and it limits the likelihood that unanticipated environmental effects may occur (if they do become evident later, the project would still be subject to NEPA’s new information requirements).  Overall, the specificity of the decision seems to be in greater detail than other projects labeled “condition-based,” and in this regard is more similar to the Ashland Municipal Watershed case upheld by a court and discussed in my comments here (though the project area of 24,000 acres is larger). While the Twisp Project court carefully recognizes that such management is legal “as applied in this case,” this implicitly recognizes that it might not be if done with less specificity or without the limit that was imposed.

OTHER FOREST SERVICE CASES

Court decision in Alliance for the Wild Rockies v. Higgins (D. Idaho)

On January 10, the district court held that plaintiffs had waived their right to sue for a violation of the Healthy Forests Restoration Act by failing to object to the intended use of a categorical exclusion for WUI projects during their participation in administrative proceedings.  Qualifying projects are exempt from formal objections; however, there was an opportunity for plaintiffs to notify the agency during scoping of its disagreement about HFRA compliance, which they did not do in their “more than 100 pages” of scoping comments.

New lawsuit:  Chattooga Conservancy v. U. S. Forest Service (W.D. North Carolina)

On January 31, five conservation groups sued the Nantahala-Pisgah National Forest over its Southside logging project.  The project was developed under a forest plan that has been recently revised, and the complaint alleges that the project is not consistent with the revised plan.  The revised plan places the 15-acre timber stand at issue in a Special Interest Management Area based on its high ecological values, and also protects the scenic integrity of lands adjacent to the Whitewater Scenic River where the stand is located.  The complaint alleges that the logging contested in the lawsuit, that intends to create “early successional habitat,” does not meet the specific criteria established in the forest plan.  (The article includes a link to the complaint.)

BLM CASE

Withdrawal of the subject of Willamette Riverkeeper v. Teitzel (D. Oregon)

On December 14, the BLM announced the withdrawal of this project following litigation commenced in November “in order to incorporate additional aquatics data and analysis,” likely including the effects on the chinook salmon of concern to plaintiffs.  Plaintiffs then dismissed the lawsuit.

FIRE FALLOUT

Freres Lumber Co. has sued the Forest Service for $33 million for not trying hard enough to put out the 2020 Beachie Creek Fire.  The plaintiff alleges that this case clears the high bar for liability under the Federal Tort Claims Act because of the Willamette National Forest’s “negligent failure to follow its own mandated fire attack plan.”  It burned over 5000 acres of the company’s timberlands.

On January 21, “yet another utility lawsuit” was filed over the 2020 fires in Oregon.  Law firms representing 238 victims who lost homes and property in the Holiday Farm fire sued the Eugene Water and Electric Board, Lane Electric, and Bonneville Power Administration in federal court for their roles in the  fire, which burned both national forest and BLM lands east of Eugene.

A California man has pleaded guilty to setting several fires on the Shasta-Trinity National Forest in 2021, including some behind firefighters who were actively fighting the Dixie Fire.  (The article includes a link to the plea agreement.)

An Alaska charter fishing company has paid $900,000 to settle a lawsuit brought by the U.S. government alleging one of its guides started a wildfire in 2019 by failing to properly extinguish a campfire at a campground on the Klutina River. The funds will help cover the costs incurred by state and federal firefighters to extinguish the fire, which burned about 0.28 square miles.

FISH AND WILDLIFE SERVICE

  • Wolverine listing

Notice of Intent to Sue

On January 26, Montana Fish, Wildlife and Parks filed a notice of intent to sue the U.S. Fish and Wildlife Service within 60 days if it does not overturn its November decision to list wolverines as a threatened species under the Endangered Species Act.  The complaint alleges the agency did not use the best available science.  This listing decision followed previous litigation for not listing the species (last discussed here).  Idaho’s Office of Species Conservation filed a similar notice on the same day.  (The articles have links to the notices.)

On February 2, the U. S. Fish and Wildlife Service announced that it would reiterate the decision by Congress to delist the gray wolf in the northern Rocky Mountains.  The FWS rejected arguments that hunting initiated by the states where it had been delisted constituted a threat that warranted relisting the species.  At the same time, the FWS announced that it will undertake a process to develop a first-ever nationwide gray wolf recovery plan by December 12, 2025.  A FWS appeal of a district court decision that relisted wolves outside of the Northern Rockies is pending.  The article includes a link to the press release covering these actions.

OTHER CASES OF INTEREST

  • Chevron deference and the 1872 Mining Law

On January 17, the Supreme Court heard two cases against the National Marine Fisheries Service rules pertaining to monitoring on fishing boats, but which could make it harder for all federal agencies to regulate.  The “Chevron Doctrine” is the result of a 1984 case supported by conservatives at that time as a curb on “unelected liberal judges” overruling federal agencies.  It required courts to defer to interpretations of statutes by federal agencies if the statute is ambiguous and the agency interpretation is reasonable.  Now it appears this conservative court would rather make the interpretations itself instead of “unelected federal bureaucrats” who are more responsive to a liberal administration (which was elected).  Here is a short overview of the statements made by the Supreme Court at the hearing.

How might that affect federal land management?  As an initial point, an agency’s interpretation of its own regulations is governed by another court case (Auer) that would not necessarily be affected.  A forest plan’s compliance with the 2012 Planning Rule should be governed by that.  On the other hand, the Planning Rule itself could be reviewed under whatever standard the Supreme Court comes up with to modify or replace Chevron.  There is a question in my mind of whether regulations like this that govern agency actions like planning, rather than directly affecting the public, would be viewed the same way.

As a real example, on January 16, the D. C. Circuit Court of Appeals conducted a hearing in Earthworks v. U. S. D. I., a case filed in 2009.  It concerns a 2003 regulation implementing the 1872 Mining Law that allows mining companies to claim an unlimited amount of federal land around a mining site for mining-related activities like chemical processing and waste dumping.  If there is any ambiguity in the statute, the court would have to defer to the Interior Department’s decision, as per the Chevron doctrine.  The issue then becomes whether the statute is ambiguous, and the courts get to decide that (even though the judges know less about the subject matter than the agency expert).  Here’s what the law says:

“Where nonmineral land is needed by the proprietor of a placer claim for mining, milling, processing, beneficiation, or other operations in connection with such claim, and is used or occupied by the proprietor for such purposes, such land may be included in an application for a patent for such claim, and may be patented therewith subject to the same requirements as to survey and notice as are applicable to placers. No location made of such nonmineral land shall exceed five acres and payment for the same shall be made at the rate applicable to placer claims which do not include a vein or lode.”  (30 U.S.C. 42(b))

At the hearing, the parties offered their interpretations of whether this language is ambiguous, and whether it limits nonmineral land inclusion in a claim to five acres, and therefore whether or not BLM’s current regulation imposing no limits is valid.

On January 26, Puckett Land Co. filed a motion to dismiss (and the court granted it) its diligence application for conditional water rights to avoid abandoning water rights that date to 1966.  The conditional rights were associated with the planned construction of a 23,983-acre-foot reservoir on BLM land within the boundaries of an area (Thompson Divide) that the Forest Service and BLM are proposing to withdraw from eligibility for new oil and gas leases.  The reservoir would have been used for shale-oil production in that area.  (The federal agencies had not filed a statement of opposition to the water right.)

POST-LITIGATION FOLLOW-UPS

Two national forest travel management plans were recently completed that respond to prior litigation.

In 2007, a lawsuit resulted in a court order that barred motorized over-snow vehicles from the entirety of the caribou’s recovery zone on the Idaho Panhandle National Forest, cutting off access to about 250,000 acres (most recently addressed here).  The Kaniksu Over-Snow Vehicle Use Designation Project won’t go into effect until the Forest Service publishes a final map, which is expected before next winter.  It reopens some areas to snowmobile use, and closes areas earlier in the spring to protect grizzly bears.  On the horizon?  A spokesman for WildEarth Guardians said, “We’re still evaluating the decision and considering our options while trying to balance out a lot of litigation priorities.  Sadly, there are a lot of bad decisions out there. This is one of them, and we’re taking a close look.”

The Nez Perce-Clearwater National Forest has prepared a Draft Record of Decision and Final Supplemental Environmental Impact Statement for the Clearwater National Forest Travel Planning Project to comply with the District of Idaho’s December 2022 remand order and prohibition of motorized use of the Fish Lake Trail (most recently discussed here).  It would again amend the forest plan and reinstate summer motorized use on the Fish Lake Trail.

A proposed resource management plan from the BLM in Arizona would limit recreational shooting to 5,295 acres of the 486,400-acre Sonoran Desert National Monument. Currently, target shooting is permitted on 435,700 acres.  The plan is the result of a series of lawsuits and an April 2022 court settlement that required the BLM to reassess how it handled recreational target shooting on the monument (most recently discussed here).

More on the Nez Perce-Clearwater-Lolo revision (and the Great Burn)

Here’s a little more (added to this) on the Nez Perce-Clearwater revised forest plan.  Mostly I wanted to share this graphic of how they are “reaching out” to the public.  They ask an important question:  “What can you do?”  The obvious meaning seems to be what can you do about the forest plan, and the answer for most people is “nothing.”  They say that the plan is in the objection period, but don’t tell us that the only people who can participate are those who have already done so.  They invite us to “learn more,” about this nearly-done deal, which they misleading label as a “draft Forest Management Plan.”  (At the draft EIS stage, the Planning Rule refers to it as the “proposed plan,” and at the objection stage it is just the “plan.)   While they have must have included similar outreach at earlier stages in the process, for those encountering this for the first time, it’s almost disingenuous.

But while I’m at it , there was also another article recently that focused on the State Line Trail, which runs through the Hoodoo Recommended Wilderness Area in the Great Burn between Idaho and Montana.  (I’ve been there but haven’t been directly involved in the planning, so know only what I read.)

“It used to be a marquee backcountry ride for mountain bikers, too. That ended in 2012 when the Nez Perce-Clearwater National Forest, which controls the Idaho side of the trail, approved a new travel management plan that barred bicycles from its portion of the trail. On the Montana side, the Lolo National Forest has long allowed bicycles on the trail.”

A new revised forest plan for the Nez Perce-Clearwater could change that, by determining that bicycles are an appropriate use in the portions of Idaho around the trail, which would mirror access on the Montana side. If the changes in the plan are finalized, possibly later this year, that would set the stage for the Nez Perce-Clearwater to revisit and alter its 2012 travel plan to formally re-allow bicycles on the trail.”

The rationale behind these changes, according to the forest supervisor, don’t seem to include consistency (more on that later):  “We have these types of very primitive, amazing, out in the middle of nowhere experiences that you can get to no matter what your matter of conveyance is.”  No apparent agency recognition that the conveyance is part of the experience for those who encounter it, and for some it makes it feel unpleasantly more like “somewhere.”

One of the supporters added, “It’s a small segment of the sport that this is going to appeal to,” he said. “It’s not that close to Missoula. It’s hard. The trail’s in deteriorating condition. But this opportunity is, for certain people, something they really, really want.” That small segment of certain people (who apparently want to deteriorate the trail even more) must be pretty special to get this kind of personalized attention.

“Some mountain bikers are drawn to remote, rugged, and challenging backcountry trail experiences on wild and raw landscapes,” a group of supporters commented. “These are places where it is uncommon to see other trail users, and where riding requires a high level of physical fitness and technical skill — in many cases it involves pushing a bike instead of riding at all.”  That would be like hiking, wouldn’t it?  So, it’s not like closing the area to this use would exclude these physically fit people from these wild and raw landscapes.  I’ll admit that I don’t understand the rationale of wanting to experience a “wild and raw landscape” on a machine, which (to me) reduces the rawness and wildness of the experience.

The aura of personal opinion and politics behind these wilderness debates is why I focus my energy on other things.  Here there is also talk about snowmobiles and mountain goats, and why mountain goats are treated differently in adjacent national forests.

As for the effects of snowmobiles on mountain goats, the Idaho Department of Fish and Game blamed them for disappearance from one part of this area, but the founder of the Backcountry Sled Patriots says otherwise (citing other research).  The Lolo National Forest cited the negative effect of motorized over-snow machines as reason for designating them a species of conservation concern.  The Nez Perce-Clearwater is not concerned about mountain goats.  The Forest Service minimizes the importance of the areas at issue to mountain goats (though they apparently used to be some places they are not found now).

About the Lolo, Marten, the regional forester, who determines which species are SCC, wrote:

“Compared to other ungulates, the species appears particularly sensitive to human disturbance. Motorized and non-motorized recreation, as well as aerial vehicles, are well documented to affect the species, particularly during winter and kid-rearing season, with impacts ranging from permanent or seasonal (displacement), to changes in behavior and productivity.”

The regional director for ecosystem planning said that she didn’t see the different listing decisions as being in conflict with each other. Rather, she said, they reflect that mountains goats are doing better overall on one forest than the other.  This may be technically/legally possible since SCC are based on persistence in an individual forest plan area.  However, it doesn’t make a lot of sense to me to manage one national forest to increase the risk to, and to contribute to SCC designation on, another forest.  Moreover, the Planning Handbook states that “species of conservation concern in adjoining National Forest System plan areas” should be considered by the regional forester in making this designation.  This all has kind of an arbitrary ring to it.

As for consistent management across national forest boundaries, The Nez Perce-Clearwater plans to change the shape of the Hoodoo RWA to remove the key snowmobile areas from it, so that boundary between the national forests becomes a boundary for the RWA.  The Forest Service points out that the plan revision process in the hands of forest supervisors, not the regional office.  The forest supervisors disclaim any obligation for consistency, and even suggest that travel planning may produce a different result, and “forest plans and travel management plans are continually updated and amended” so they could change again.  That doesn’t square well with history.  The every-third-of-a-century Forest plan revision should be the time to get it right.  Even if the regional forester doesn’t want to say what the plans must do, that person could simply order them to be consistent along this boundary.

Public Lands Litigation – update through January 12, 2024

It was relatively quiet in court over the holidays (but interesting).  (What will the new year bring?)

FOREST SERVICE

Magistrate recommendations in Center for Biological Diversity v. Moore (D. New Mexico)

On November 17, the magistrate judge recommended dismissing this challenge to livestock grazing on the Sacramento Allotment on the Lincoln National Forest as moot.  Regarding compliance with the Endangered Species Act for the New Mexico meadow jumping mouse, the judge determined, “The new BiOp issued by FWS on or before December 31, 2023 … will moot Petitioners’ claims regarding the validity of the 2021 BiOp,” because it “will include substantive regulatory changes,” which respond to changed circumstances.  (No word on whether this actually happened.)

New lawsuit:  Gallatin Wildlife Association v. Erickson (D. Montana)

On December 4, plaintiffs in Center for Biological Diversity v. U. S. Forest Service (discussed here) agreed to avoid a preliminary injunction hearing when the Custer Gallatin NF agreed to not take further action on the South Plateau Project until summer.  On December 18, Gallatin Wildlife Association, Native Ecosystems Council, and WildEarth Guardians filed a lawsuit against the same project.  They allege violations of ESA and NEPA for the project, which would involve clearcutting 5,551 unspecified acres of forest, including mature trees; commercial thinning of 6,500 acres of forest; 2,500 acres of non-commercial thinning; 1,800 acres of fuels treatment; and up to 56.8 miles of temporary roads, based on an EA.  The project is in an area described by plaintiffs as a grizzly bear “sink,” where the population is struggling.  Plaintiffs question the science used to consider effects on grizzly bears, challenge the project’s “condition-based” management under NEPA, and also allege a violation of President Biden’s executive order that requires the Forest Service and Bureau of Land Management to conserve mature and old-growth forests.  (The article includes a link to the complaint.)

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

On January 10, six conservation organizations sued the Monongahela National Forest to protect the federally endangered candy darter (a fish) and two endangered bats from a commercial Forest Service road use permit to haul coal from the Rocky Run Mine on private land and to move mining equipment and supplies.  The plaintiffs claim that the Forest failed to consult with the Fish and Wildlife Service or follow procedures to comply with NEPA.  Plaintiffs assert:  “Without the Forest Service’s authorization of the Permit, the Applicant would not be able to operate Rocky Run Mine. Surface coal mining operations, such as Rocky Run Mine, can cause significant environmental damage, including erosion, sedimentation, pollution of ground and surface waters, contamination of soils, loss of habitat, and loss of biodiversity.”  (The article includes a link to the complaint.)

New lawsuit:  Alliance for the Wild Rockies v. Vilsack (D. Montana)

On January 11, five conservation groups filed a lawsuit against the Mud Creek Vegetation Management Project on the Bitterroot National Forest, which could take place over up to 20 years and would involve 13,700 acres of commercial logging, 26,000 acres of non-commercial logging, 40,000 acres of prescribed burns, and the building of around 40 miles of temporary and specified roads.  It is another challenge to “condition-based” NEPA (based on an EA):  “Rather than surveying the project area and analyzing site-specific information to determine which management activities are appropriate to which area before approving and finalizing a project, the Forest Service approved all logging and burning over large swaths of the Project area, leaving the actual decision of what is appropriate until after the project is finalized, when the public may no longer participate in the decision-making process.”  The complaint also challenges the continued use of project-specific amendments to the forest plan for road density and old growth, and failure to use the forest plan definition of old growth.  There are also ESA claims related to bull trout and whitebark pine.  (The article includes a link to the complaint.)

BLM/NPS

Amicus curiae briefs filed in American Forest Resource Council v. U.S.A. (Supreme Court)

On December 18, members of Congress and six organizations filed amicus curiae briefs in support of a petition for Supreme Court review of two circuit court decisions upholding the Obama-era expansion of the Cascade-Siskiyou National Monument and the Bureau of Land Management’s 2016 Resource Management Plans for Western Oregon O&C lands.  In April, the 9th Circuit decided Murphy Company v. Biden (discussed here), and in July, the D. C. Circuit decided the AFRC case.  These courts held that the Antiquities Act could be used to designate a national monument that reduced the area of O&C lands where timber may be produced, and that the BLM can eliminate timber production on such lands.  (Links to the briefs are included.)

New lawsuit:  Blue Ribbon Coalition v. Bureau of Land Management (D. Utah)

On December 22, The BlueRibbon Coalition, Colorado Off-Road Trail Defenders and Patrick McKay, who is the vice president of the latter organization, filed a complaint in federal district court after the Interior Board of Land Appeals denied their stay request in that administrative hearing.  They are challenging the BLM’s travel management plan and EA for the Labyrinth Rims/Gemini Bridges Travel Management Area, which would close 317 miles of routes that were previously open to motorized use in the 300,000 acre area because vehicles posed a danger to sensitive habitats, riparian zones and cultural sites. The complaint alleges violations of NEPA, the APA, the Dingell Act, and the Appointments Clause of the Constitution.  (The article includes a link to the complaint, the IBLA appeal, and a map of the area.)

OTHER

In late December, two lawsuits were filed against the Federal Emergency Management Agency for failing to respond in a timely manner to claims from 24 of over a thousand victims of the largest fire in New Mexico history, started by the Forest Service in 2022

A federal judge in Oregon has rejected a U.S. Department of Justice request to dismiss a 2015 lawsuit brought by young people that alleges the federal government knew the dangers posed by carbon pollution but that it has continued through policies and subsidies to support the fossil fuel industry.

A man must pay $180,000 after federal officials said he started a wildfire in the Molino Basin target shooting area of the Coronado National Forest using a shotgun loaded with flaming, incendiary rounds of ammunition.

An adjacent landowner is facing criminal charges he illegally cut down at least 299 trees that were part of the Green Mountain National Forest and were designated for protection.  He said he had removed a USFS property boundary marking Carsonite post because he believed it was inaccurate. “The tree cutting was inconsistent with the guidelines contained in the GMNF Plan.”

On January 12, Great Old Broads for Wilderness, GreenLatinos, Sierra Club and Western Watersheds Project filed an amicus brief in the 10th Circuit proceedings involving trespass claims against hunters who used a ladder to cross between parcels of public land connected at the corner.  “The public — not just hunters but everyone — should have the same right of reasonable access to their lands as private landowners have,” said Erik Molvar, executive director with Western Watersheds Project, in a press release. (The article includes a link to the brief.  We have discussed this case previously here, and the district court decision here.)

 

 

 

 

 

 

 

The Endangered Species Act turns 50

You can read any number of articles right now about this that say ESA was adopted by a nearly unanimous Congress and signed by President Nixon on December 28, 1973.  Its supporters find success in its protection of 99% of the species listed from extinction, while critics complain that only 3% have been recovered.  To me, that’s apples vs oranges, because it is much easier for a law to stop bad things from happening than to make good things happen.  I’d love to see those who complain about ESA out there arguing for more money to implement recovery plans.  (And I fail to see the logic of opposing additional listings because recovery is unlikely, when recovery without listing is even less likely.)

But I was curious about what the Forest Service might have to say about this momentous anniversary, and this posting showed up on their website.  It’s written about California, but must represent the agency’s perspective.  The current priority is evident in the second paragraph:

Large, extremely hot fires have ripped through many of these lands, charring if not destroying habitat crucial to species survival. To help reduce the risk of large, devastating fires, the Forest Service is working to remove vegetation that could feed a fire and is working with the U.S. Fish and Wildlife Service to simultaneously support the conservation of listed species.

That would be listed species that depend on “vegetation that could feed a fire,” which would be removed.  We’ve seen that with spotted owls, the Fish and Wildlife says this should mean focusing fuel reduction projects on areas that are less important to the species.  It would be interesting to hear about how this approach is being implemented through agency policy, forest plans, and/or implementation strategies.  This explanation by the Forest Service falls a little short of a “strategy” for accomplishing this.

The U.S. Fish and Wildlife Service, which manages the species program, often partners with the Forest Service on steps to protect species listed under the act. Collaborative efforts carry intertwined goals forward. Wildlife specialists and biologists from each agency review project plans, survey forests for species populations, collect data, and analyze the best available science. The Forest Service often includes wildlife conservation measures in as part of land management planning, which means on-the-ground activities needed to increase forest resilience align with the needs of wildlife.

For example, specific types, sizes and heights of trees are left in areas of a forest known to be actively used as nesting or denning sites by threatened or endangered species. The Forest Service plans work to occur during times of the year that will not disrupt key life stages, such as mating season or when adults are caring for young. The Fish and Wildlife Service reviews these plans before work is started to ensure that species needs are being met.

I like that they recognize the importance of forest plan standards as a key tool for protecting species, but I’d like to know more about “Collaborative efforts carry intertwined goals forward.”

 

Public Lands Litigation – update through December 15, 2023

It seems like plaintiffs have been picking on some other folks lately.

FOREST SERVICE

Intervention denied in Wilderness Watch v. Jackson (D. Idaho)

In this case involving the use of airstrips in the Frank Church-River of No Return Wilderness, described here, the court denied a motion to intervene filed by the Idaho Aviation Association, Idaho Recreation Council, and an individual on November 20.  They had argued that, without intervention, the Forest Service would be free to settle its dispute with Plaintiffs, which may result in termination of access by their members to the airstrips.  The court found that the interest claimed by intervenors was limited to use of the airstrips, which was adequately represented by the State of Idaho with stronger interests and the Forest Service, and that Intervenors would not be needed in any settlement discussions or be required to approve any settlement between the parties.

On November 30, there was a hearing in the Eastern District of Washington district court in this case (described here).  It is a case that directly challenges the Okanogan-Wenatchee’s use of “condition-based” NEPA, which we have discussed in some depth, and is described further in this article.  (A new twist to me was the plaintiff’s argument that the use of condition-based management makes the project a “de facto amendment” to the Okanogan-Wenatchee Forest Plan.)

Court decision in Earth Island Institute v. U. S. Forest Service (9th Cir.)

On December 7, the Ninth Circuit affirmed the district court and upheld the Three Creeks logging project on the Inyo National Forest against claims of NEPA violations.  The opinion’s introduction includes a short summary of the court’s holdings on specific issues.

BLM/NPS

Amended complaint in Wilderness Watch v. National Park Service (E.D. California)

The John Muir Project has joined this lawsuit as a plaintiff, and the new complaint adds an alleged violation of the Wilderness Act by replanting of sequoia trees in burned areas within designated wilderness areas (including the use of helicopters and dynamite).  Chad Hanson also argues that replanting after the fires is unnecessary.  (The original lawsuit was reported here.)

Partial court decision in Western Watersheds Project v. Secretary of the Interior (D. Oregon)

On December 4, the district court adopted a magistrate’s recommendations to dismiss portions of this case involving grazing permits for the Hammond Ranch on four allotments in southeastern Oregon.  The BLM had declined to renew them after two of the ranch owner and operators were convicted on criminal charges stemming from allegations that they intentionally set fire to public lands.  On January 19, 2021, on his last day in office, then-Secretary of the Interior, David Bernhardt, issued a decision authorizing the grant of grazing permits.  The lawsuit was filed on February 25, 2021, and the magistrate made his recommendations on November 8, 2022.  With this dismissal of claims related to the protest period and the validity of the EA (since the BLM is now preparing an EIS), the case will continue to consider issues regarding awarding the permit to an unqualified applicant under FLPMA, whether the permit complied with applicable land use plans, and whether issuing the permit violates the Steens Act by not adequately protecting the Steens Management Area.

Settlement of Center for Biological Diversity v. Haaland (D. Nev.)

On December 8, the parties submitted a joint stipulated dismissal reflecting an agreement by BLM to provide public notice for all new exploration or mining projects near the Ash Meadows National Wildlife Refuge in Nevada for the next 12 months.  Two weeks after the lawsuit was filed in July, the BLM had rescinded their approval because they determined that a lithium exploration project less than a mile from the refuge would likely cause damage to the groundwater that feeds the meadows.

Court decision in Center for Biological Diversity v. Haaland (S.D. Florida)

On December 11, the district court stated, “Federal Defendants do not dispute that they violated NEPA and ESA’s Section 7(a)(2) and agree that Eleventh Circuit jurisprudence warrants vacatur” of the National Park Service’s decision to release land-use restrictions it held on private property so that it could be developed.  As a result, the court did not address an ESA Section 7(d) claim.  (I assume this is viewed as similar to disposition of federal lands.)

FISH AND WILDLIFE SERVICE

Court decision in Center for Biological Diversity v. Haaland (9th Cir.)

On December 4, the Ninth Circuit reversed a district court decision involving groundwater pumping by the Fort Huachuca Army base in Arizona because the analysis of effects on the San Pedro River improperly assumed that a conservation easement it had obtained for mitigation purposes would reduce future water use.  The court held that the conservation effects of the easement were not “reasonably certain to occur” because there was a lack of evidence that the property would ever have been used for agriculture that would require the water.  Plaintiffs contend (in this article) that ongoing operation of the military base is depleting the groundwater.  (This issue reminds me of evaluating carbon offsets.)

Settlement of Center for Biological Diversity v. Haaland (D. D.C.)

On December 13, the parties stipulated to a settlement agreement that establishes a 2-year deadline for completing a draft recovery plan, and an additional year for a final recovery plan, for gray wolves where they are still a listed species.

OTHER CASES OF INTEREST

Preliminary injunction in Flathead-Lolo-Bitterroot Citizens Task Force v. Montana (D. Montana)

On November 21, the district court granted a preliminary injunction preventing the use of wolf traps and snares in areas of occupied grizzly bear habitat across Montana, “except during the time period when it is reasonably certain that almost all grizzly bear will be in dens: January 1, 2024, to February 15, 2024.”  The season was scheduled to open in November.  The court found plaintiffs “have established serious questions on the merits and a reasonably certain threat of imminent harm to grizzly bears should Montana’s wolf trapping and snaring seasons proceed as planned,” which would violate the ESA’s prohibition against incidental take of listed species.  The press release includes a link to the opinion.

New lawsuit:  Friends of Alta v. Utah Department of Transportation (D. Utah)

On December 4, the Friends of Alta, the International Outdoor Recreation Asset Alliance and several individuals filed a complaint against the Department of Transportation’s gondola project planned to address traffic bottlenecks in Little Cottonwood Canyon, the location of popular ski resorts.  Plaintiffs allege violations of NEPA, including that “UDOT received ‘a list of 16 Forest Service sensitive species that are known or suspected to occur in the Salt Lake Ranger District’ from [Forest Service] representatives […] but according to UDOT, ‘General field surveys conducted prior to the release of the Draft EIS did not identify any of the species listed.’” (The first link in this article will take you to another article that includes the complaint.)

New lawsuit:  WildEarth Guardians v. BNSF Railway Company (D. Montana)

On December 14, WildEarth Guardians and Western Watersheds Project sued the Burlington Northern Santa Fe Railway over continuing grizzly bear deaths from trains running through the Northern Continental Divide Ecosystem and Cabinet-Yaak grizzly bear recovery zones.  In 2004, 2020 and again in 2023 following the most recent bear mortalities, BNSF applied to the U.S. Fish and Wildlife Service for an Incidental Take Permit and formally submitted a Habitat Conservation Plan outlining measures it would take to reduce train-caused grizzly mortalities in the region.  “None of these habitat conservation plans nor incidental take permits has been finalized,” the lawsuit states.  (The Fish and Wildlife Service has not been sued.)  (The article includes a link to the complaint.)

New lawsuit:  Coalition for Sonoran Desert Protection v. Federal Highway Administration (D. Arizona)

On December 14, Coalition for Sonoran Desert Protection, Center for Biological Diversity, Friends of Ironwood Forest, and Tucson Audubon Society sued over the proposed Interstate 11 208-mile corridor in Arizona (the news release includes a link to the complaint and the complaint includes a map).  They accuse the FHA of violations of NEPA, and failing to consult with the Fish and Wildlife Service on threatened and endangered species.  They also allege an inadequate evaluation required by the U. S. Department of Transportation Act, which FHWA must prepare before it authorizes the use of a public park, historic site, or wildlife refuge for a highway project. The National Park Service has expressed concerns.

New (to this blog) lawsuit

A year ago, the federal government filed suit against the state of Idaho in federal district court, saying that the Forest Service and BLM should hold stockwater rights on federally administered grazing allotments rather than the permittees.  The State of Idaho maintains that it is the permittees because they are the ones putting the water to beneficial use, as required by state water law.  The federal government seeks to invalidate 2007 state laws that codified this arrangement.

BREAKING NEWS (that may not have broken yet)

The Colorado Cattlemen’s and Gunnison County Stockgrowers’ associations filed a lawsuit in federal court against Colorado Parks and Wildlife and U.S. Fish and Wildlife to try to force a NEPA analysis of the planned reintroduction of gray wolves into Colorado.  (Which we have discussed, such as here.)  A hearing was held on December 14.  As of noon today, “The Associated Press has withdrawn its story about a ruling in a lawsuit regarding the reintroduction of gray wolves in Colorado. A judge has not yet ruled on a request that would delay Colorado’s plan to begin the program this month.”  (The actual heading of this webpage is “Judge denies cattle industry request…”  A “9News” post reporting that the court had allowed the program to proceed has also been removed.)

 

Public Lands Litigation – update through November 17, 2023

FOREST SERVICE

New lawsuit:  Wilderness Watch v. U. S. Forest Service (D. Mont.)

On November 8, Wilderness Watch filed a complaint against the Buffalo Creek Project in the Absaroka-Beartooth Wilderness Area on the Custer Gallatin National Forest.  The Project would use helicopters to supply rotenone to poison non-native rainbow trout in over 40 miles of stream, and introduce Yellowstone cutthroat trout.  Yellowstone cutthroat trout were not naturally found in this stream reach, but removing rainbow trout would benefit native Yellowstone cutthroat downstream in Yellowstone National Park.  Plaintiffs allege violations of the Wilderness Act.  (The article includes a link to the complaint.)

Court decision in Central Oregon Wild Horse Coalition v. Vilsack (D. Oregon)

On November 14, the district court adopted a magistrate judge’s findings and agreed that the Ochoco National Forest did not violate the National Environmental Policy Act or the Wild Free-Roaming Horses and Burros Act by approving a forest plan amendment for the Big Summit Wild Horse Territory that would reduce its current wild horse population by more than half.  (The article includes a link to the opinion.)

BLM

Court decision in Powder River Basin Resource Council v. U. S. Dept. of Interior (D. D.C.)

On November 6, the district court denied a preliminary injunction sought against the Converse County Oil & Gas Project in Wyoming’s Powder River Basin, comprised of 407 separate applications for permits to drill, and a land-use-plan amendment to the Casper RMP.  The court determined that plaintiffs did not have standing to bring claims against the APDs, “because they have not alleged an affected area for any of the APDs they challenge, and therefore have not alleged that any of their members use the affected areas such that enjoining the APDs would provide the relief they seek.”  That the APDs “collectively contribute to a vast affected area which can be gleaned from Defendants’ environmental analysis in their final EIS” was insufficient to establish standing.

However – plaintiffs did have standing to make NEPA claims against the plan amendment and its EIS because they had established use of the larger “project area.”  The court found a low likelihood of success or irreparable harm and did not issue an injunction.  (One of the factors in the harm analysis was plaintiff’s delay in bringing the lawsuit, in part because they “lacked the financial and human capital” to do so for two years.)

This is the second recent case by this judge where standing was denied for failure to establish effects on plaintiffs from specific locations (see the New Mexico and Wyoming drilling case here).  (Judge Chutkan is also the judge presiding over the January 6 case against former president Trump.)

New lawsuit:  Willamette Riverkeeper v. Teitzel (D. Oregon)

On November 7, Willamette Riverkeeper, Cascadia Wildlands and Oregon Wild filed a lawsuit against the Bureau of Land Management over the agency’s authorization of the Big League Project in the Calapooia and Mohawk River Watersheds.  The Project includes over 1000 acres of timber harvest, and was based on an EA.  Issues include impacts on endangered salmon, recently burned forest, spotted owl habitat and carbon storage in older forests.  (This article has a link to the complaint.)

Court decision in Sovereign Inupiat for a Living Arctic v. Bureau of Land Management (D. Alaska)

On November 9, the district court dismissed two challenges against ConocoPhillips’ Willow project within the National Petroleum Reserve-Alaska, saying plaintiffs failed to show that the federal government made significant mistakes when it approved the project.  This lawsuit followed a successful challenge in 2020 to block the project after the Trump administration approved it.  After that suit, federal agencies involved in the approval process revised their analysis, and in March the Biden administration approved a project slightly smaller than the one approved by Trump.  The main issues involved greenhouse gases, and the judge found, “there is a limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region.”  (The article includes a link to the opinion.)

Court decision

The Nevada federal district court has dismissed claims by three local Native American tribes against the Thacker Pass lithium mine on BLM lands.  The plaintiffs had argued that the BLM had failed to consult with the tribes.  The court agreed with the government’s argument that the consultation is ongoing and therefore not ripe for legal challenge (despite the fact that construction of the mine is also ongoing).  An earlier district court decision is currently on appeal to the 9th Circuit.  (Some of our earlier discussion of this project is here.)

Criminal conviction

The Nevada federal district court sentenced a Nevada man to six months in prison to be followed by one year of supervised release and $7,303.05 in restitution for damaging and removing part of a centuries-old petroglyph at Gold Butte National Monument in southeastern Nevada, a felony violation of the Archaeological Resources Protection Act.

New lawsuit

A second lawsuit has been filed regarding the management of the Stone Cabin herd of wild horses on BLM and national forest land east of Tonopah, Nevada.  In October, a rancher sued the BLM because they weren’t moving fast enough to round up horses on land where he has permits to graze cattle. Wild Horse Education has now challenged BLM’s 10-year horse gather decision for the herd based on an EA.  They allege it ignores a 1983 Herd Management Area Plan, and seek to stop any further roundups.  They say the BLM “will often jump into a settlement with a permittee without hesitation.”

Court decision/settlement in Conserve Southwest Utah v. U. S. Dept. of the Interior (D. D.C.)

On November 17, the district court agreed to the BLM and Fish and Wildlife Service’s request to remand the BLM’s grant of a right-of-way to the Utah Department of Transportation for construction of a new four-lane highway through the Red Cliffs National Conservation Area in southwest Utah, a critical habitat for the Mojave Desert tortoise.  The Utah Department of Transportation and Washington County, Utah (intervenors) had opposed the settlement, and the court did not vacate the right-of-way.  This press release includes links to the opinion and the announcement of the review by the agencies.

OTHER

On November 7, the U.S. Fish and Wildlife Service finalized the designation of an experimental population of gray wolves in Colorado under section 10(j) of the Endangered Species Act. This was in response to a statewide voter-led initiative passed in November 2020, which we discussed here.  The designation provides greater management flexibility.

New lawsuit:  Mountain Valley Pipeline v. Daniel Guidry and Ashley Stecher Wagner (W.D. Virginia)

On November 8, the developers of the Mountain Valley Pipeline sued two protesters it says blocked construction by illegally attaching themselves to the land and construction equipment being used to build a segment of the pipeline in the Jefferson National Forest last month.  The developer is asking for undisclosed compensatory and punitive damages, and an injunction barring Guidry and Wagner from entering the construction area, blocking access to it or helping others interfere with construction.  (The article includes a link to the complaint.)

New lawsuit:  Center for Biological Diversity v. U. S. Office of Surface Mining and Enforcement (D. D.C.)

On November 8, CBD and Appalachian Voices alleged that the Office and the Fish and Wildlife Service are violating the Endangered Species Act by allowing continued harm from coal mining to the endangered Guyandotte River crawfish, threatened Big Sandy crawfish, and the endangered candy darter (a fish).  The species are found in West Virginia, Virginia and/or Kentucky.  The claims revolve around a 2020 Biological Opinion addressing permits to mine private land pursuant to the Surface Mining Control and Reclamation Act.   Coal mining facilities can impact species up to 12 miles downstream.  (The article includes a link to the complaint.)

New lawsuit:  Environmental Protection Information Center v. U. S. Fish and Wildlife Service

On November 9, plaintiffs targeted a September 2020 incidental take permit issued to Sierra Pacific Industries for its plans to conduct logging operations on more than 1.5 million acres of Northern California over a 50-year period.  The permit would allow death from logging activity of 115 northern spotted owls and 649 California spotted owls.  Plaintiffs argue that additional protection is needed due to climate change.  More in this article.

New lawsuit

The Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources filed a lawsuit against 13 tire manufacturers in U.S. District Court in San Francisco alleging that toxic concentrations of 6PPD-quinone, a chemical that extends the life of tires, is killing coho salmon, Chinook salmon, steelhead trout and other wildlife.  They allege that ESA requires an incidental take permit before allowing such harm to these listed species.

Court decision in California Construction and Industrial Materials Association v. County of Ventura (California Court of Appeal)

On November 13, the California Court of Appeals, upheld a set of land use ordinances to protect creeks, rivers, and other pathways used by wildlife to travel between key habitat areas including the Los Padres National Forest.