Jon Haber

FOREST SERVICE

• Manti-LaSal NF restoration project

New lawsuit:  Alliance for the Wild Rockies v. U. S. Forest Service (D. Utah)

On February 18, the Alliance, Native Ecosystems Council, Council on Wildlands and Fish, and Wildlands Defense sought judicial review of the Manti-La Sal Restoration and Fuels Reduction Project.  According to a plaintiff, “the project calls for logging, mastication (grinding trees with huge machines), and burning across 952,115 acres (1,487 square miles) including 454,452 acres (710 square miles) of roadless areas in habitat for bighorn sheep, mule deer, elk, bears, raptors, and birds, including the imperiled pinion jay.”  They allege violations of NEPA with regard to effects on the pinion jay, effects on big game winter range, and cumulative effects.  The also claim violations of the Roadless Rule and NFMA’s requirement for consistency with the forest plan’s standards for winter range.  The article includes a link to the complaint.

• Okanogan-Wenatchee NF restoration project

Court decision in North Cascades Conservation Council v. U. S. Forest Service (9^th Circuit)

On May 2, the 9^th Circuit affirmed in part and reversed in part the district court’s summary judgment in favor of the Forest Service’s approval of the Twisp Restoration Project, a forest thinning project on the Okanogan-Wenatchee National Forest.  According to the court (quoting the Forest Service Landscape Evaluation), “The evaluation determined that previous management in the Twisp Restoration Project area ‘has caused widespread degradation of forest, rangeland, watershed condition and stream habitat, and has increased the risks of uncharacteristically severe wildfire …’”  Then there was a fire.

The court ruled against the Forest Service’s evaluation of cumulative effects.  The original project had been split into two projects after the draft EA because the Cedar Creek Fire affected portions of it, but the final Twisp EA did not address the information that was available about the other project.

The court agreed that the Forest Service did not need to reopen the public comment process because the modified Twisp Project simply eliminated treatment areas (including those affected by the fire), reducing the size of the Twisp Project by 69%.  This meant that there were unlikely to be environmental effects of the Project that had not already been addressed.  As the court said, “Where a change to a proposed action only lessens the environmental impact, we are less likely to consider it a substantial change.”  The court also found that the purpose and need was not too restrictive and that one action alternative was sufficient. Plaintiffs also criticized the discussion of desired conditions and how those would be achieved by the project, but the appeals court did not review this issue because it had not been raised in the district court.

The court also addressed “condition-based management” and found that the environmental analysis for this project complied with NEPA.  The final project included non-commercial understory vegetation thinning on up to 13,812 acres and commercial overstory vegetation treatments on up to 8,151 acres during a twenty-year timeframe.  The Forest Service considered the maximum potential effects of the Project, assuming all possible treatments are implemented.  This was sufficient because the question with an EA is whether effects may be significant, the affected area was “fairly small,” and “the Forest Service identified specific methods of understory thinning, overstory treatments, and fuels reduction and provided unit-by-unit maps of the maximum effects of each treatment.”  The court expressed concern, however, calling it a “close case.”  The court also agreed with the Forest Service that an alternative that instead used a “phased” approach over time would not be effective because it would delay implementing treatments.

This case seems to align with our prior discussion of  of the Ashland Watershed/Navickas case regarding the size of the area and specific criteria for treatments, and the EA/EIS distinction made in the Tongass case.  And we also discussed condition-based management thoroughly here.

• Fire retardant

New lawsuit:  Forest Service Employees for Environmental Ethics v. U. S. Forest Service (D. Montana)

On May 7, AFSEE sued the Forest Service and the two Endangered Species Act regulatory agencies over use of aerial fire retardants laced with toxic heavy metals, including cadmium, selenium, and chromium.  Plaintiffs allege violations of ESA consultation requirements because the Forest Service failed to inform the regulatory agencies of the content of fire retardant, and the biological opinions from the regulatory agencies failed to consider the effects of heavy metals on listed species and their critical habitat.  This case was introduced here, with a link to the complaint.  It’s also linked to this article, which quotes plaintiffs:

“We do it because it looks good on CNN. It’s the cowboy coming over the ridge,” Stahl said. “Everybody’s real excited. And they see the retardant bomber arrive and the red stuff come out of the plane. They think, ‘Oh, my God, we’re saved.’ Yeah, not so much.”

• Rio Grande NF grazing

Court decision in WildEarth Guardians v. U. S. Forest Service (10^th Cir.)

On May 9, the 10th Circuit ruled in favor of WildEarth Guardians and Western Watersheds Project on their NEPA “hard look” claim against the Forest Service regarding the creation of the Wishbone Allotment for domestic sheep grazing on the Rio Grande National Forest. The 10th Circuit agreed with the conservation groups that the Forest Service arbitrarily adjusted the risk of contact between domestic sheep and wild bighorn sheep from “high” to “moderate” based on “local factors” such as geographic features and temporal separation without scientific or factual support (modeling showed a “high” risk of contact). The court held, “In the absence of any science or data suggesting that project design criteria could become effective in combination with other features such as spatial or temporal separation, the USFS’s reliance on untethered ‘logic’ alone is insufficient to satisfy NEPA’s ‘hard look’ requirement.”  Additional background may be found here.

• Tonto NF mining land exchange

Preliminary injunction granted in Apache Stronghold v. U. S. A. (D. Arizona)

On May 9, the district court enjoined the transfer of lands from the Tonto National Forest known as Oak Flat to Resolution Copper for a copper mining project.  The injunction will be in place until the U.S. Supreme Court determines whether to hear an appeal by plaintiffs from an adverse circuit court decision. The Ninth Circuit’s opinion was discussed here.  The article includes a link to the order.

Motion for preliminary injunction in San Carlos Apache Tribe v. U. S. Forest Service (D. Arizona)

On May 14, plaintiffs in another lawsuit against the same land exchange asked the district court for a broader injunction, until final resolution of the Tribe’s claims.  They state that the Forest Service is attempting to renege on a prior stipulation, saying that they will execute the land transfer immediately after publishing the FEIS, instead of providing an opportunity for meaningful review. They ask the court to enjoin the Forest Service from publishing the FEIS and from executing the land transfer until the Tribe’s claims are fully resolved on the merits.  The article includes a link to the filing.

• Expanded logging FOIA

New lawsuit:  Center for Biological Diversity v. Department of Commerce (D. D.C.)

On May 16, the Center sued the Departments of Agriculture, Interior and Commerce, and the Forest Service to obtain records relating to Section 3 of Executive Order 14225, “Immediate Expansion of American Timber Production,” issued in March.  The complaint states, “The Center and the public are unaware of the Federal Agencies’ responses to this EO. Specifically, the Center and the public are unaware of the new or updated guidance documents the Federal Agencies will issue regarding tools to facilitate increased timber production. The Center and the public are also unaware of the regulations, orders, guidance documents, policies, settlements, consent orders, and other agency actions that DOC, USDA, and DOI have determined “impose an undue burden on timber production.”  The request was submitted on April 3, and the departments had 20 working days to respond.  The article includes a link to the complaint.

• Cerro Pelado Fire liability

In late April, lawyers representing 20 plaintiffs, including individual property owners and the Jemez Pueblo and Jemez Mountains Electric Cooperative, filed a lawsuit against the Forest Service over the 46,000-acre Cerro Pelado Fire in the Jemez Mountains, alleging that the agency was negligent in failing to monitor the area for still-burning embers in the pile of thinned trees and brush it ignited after the snowpack had melted.  “The [Forest Service’s] cover-up of the actual cause and origin of the wildfire resulted in the victims of the fire being left out of the Hermit’s Peak Calf Canyon Fire Assistance Act,” the lawsuit alleges.  The article includes extensive discussion of the legislative and legal actions related to these fires.

BLM

• Nevada BLM pinon juniper project

Court decision in Western Watersheds Project v. U. S. Department of the Interior (D. Nevada)

On March 31, the district court upheld the BLM’s decision to treat more than 380,000 acres of pinion juniper forest near Great Basin National Park.  On May 5, Western Watersheds Project and the Center for Biological Diversity filed an appeal with the 9^th Circuit.  The news release provides a link to the notice of appeal (but not a copy of the district court opinion).

• Oregon BLM grazing and sage-grouse

Preliminary injunction granted in Oregon Natural Desert Association v. Raby (D. Oregon)

On April 30, the district court preliminarily enjoined livestock grazing on 22,000 acres of sage-grouse research areas in Oregon.  The court found likely violations of NEPA and FLPMA when the BLM reduced the number of areas that would exclude livestock grazing for sage-grouse research purposes.  The court stated, “In the absence of a preliminary injunction, any research that scientists could conduct using ungrazed land would be statistically insignificant and therefore of little to no probative value in the sage-grouse conservation efforts for which the [research natural areas] were created in the first place,” and “the public interest in preserving nature and avoiding irreparable environmental injury outweighs economic concerns.”

• California BLM Chuckwalla National Monument

New lawsuit:  Torongo v. Burgum (D. Michigan)

On May 1, a Michigan resident (a miner in the area of the Monument, represented by the Texas Public Policy Foundation) and the BlueRibbon Coalition challenged the January 2025 designation of the Chuckwalla National Monument as a violation of the Antiquities Act, and the Antiquities Act as a violation of the U. S. Constitution.   They add that, “The designation, as a national monument, of over 600,000 acres of California desert is a political matter for which there is no clear congressional authorization.”  The article provides a link to the complaint.

• Oregon BLM salvage logging project

New lawsuit:  WildEarth Guardians v. Hoffman (D. Oregon)

On May 6, plaintiffs sued over The Hotcase Lane Salvage Project within the 2020 Riverside Fire perimeter. Guardians seeks a declaration that the BLM violated NEPA, FLPMA, and their implementing regulations by failing to prepare an EA or EIS, failing to take a “hard look” at and publicly disclose the Project’s environmental impacts, and failing to comply with the governing resource management plan. The complaint specifically faults BLM for approving salvage logging in riparian reserves where it is prohibited by the plan.  It also alleges that the BLM misapplied guidelines for determining whether trees are dead or dying.  The press release contains a link to the complaint.

ENDANGERED SPECIES

• Joshua tree listing

Court decision in WildEarth Guardians v. U. S. Fish and Wildlife Service (C.D. California)

On May 12, the district court set aside the 12-month finding by the Fish and Wildlife Service that the Joshua tree did not warrant listing under the Endangered Species Act.  The court found that the agency’s use of climate change science was arbitrary and capricious, writing in the decision that “the Service has not provided a rational explanation as to why climate change alone does not threaten the species to become threatened or endangered.  The Service provides no explanation as to why it did not use current trends and standards regarding greenhouse gas emissions as a basis for its decision, when this data currently is available.”  It was also arbitrary to define the “foreseeable future” as the middle of the century when most scientific assessments of climate effects consider the end of the century, especially because, “It is essential that the Service considers climate change’s effect on habitat suitability in relation to young Joshua trees, and not just the persistence of stronger, adult Joshua trees.” FWS also failed to consider cumulative threats properly and made an arbitrary determination that the species was not threatened in a “significant portion of its range.”  The article includes a link to the opinion.

OTHER

• Vermont oil and gas climate damages

New lawsuit:  U.S.A v. Vermont (D. Vermont)

On May 1, the U. S. and the Environmental Protection Agency sued the State of Vermont over its Climate Superfund Act, which would make fossil fuel companies responsible for damage that climate change has caused.   The complaint (linked to this article) asserts that, “The Superfund Act is preempted by the Clean Air Act, exceeds the territorial reach of Vermont’s legislative power, unlawfully discriminates against interstate commerce, conflicts with federal interstate commerce power, and is preempted by federal foreign-affairs powers.  The Trump Administration is taking similar actions against Hawaii, Michigan and New York.

• Arrowhead bottled water

Court decision in Blue Triton Brands v. California State Water Resources (Fresno County Superior Court)

On May 5, the company that sells Arrowhead brand bottled water won a court ruling from a California court overturning a decision by California water regulators, who in 2023 ordered it to stop piping millions of gallons of water from the San Bernardino National Forest.  The Forest Service denied the company’s permit application last year and ordered it to shut down the water pipeline and other infrastructure, and that decision is being challenged in federal court.  The Forest Service is also being sued by a local non-profit organization.

• Oil and gas fast-track permitting

New lawsuit:  Washington v. Trump (W.D. Washington)

On May 9, 15 states sued the Trump Administration over its executive order declaring an “energy emergency,” and urging oil and gas expansion through federal use of eminent domain and the Defense Production Act, which allows the government to use private land and resources to produce goods deemed to be a national necessity.  The complaint states, “The Executive Order is unlawful, and its commands that federal agencies disregard the law and in many cases their own regulations to fast-track extensive categories of activities will result in damage to waters, wetlands, critical habitat, historic and cultural resources, endangered species, and the people and wildlife that rely on these precious resources.”  The article provides a link to the executive order and the complaint.

• USDA climate web pages

Forest Service reverses its decision in Northeast Organic Farming Association of New York v. U. S. Department of Agriculture (S.D. New York)

On May 12, the Forest Service wrote to the court that it “will restore the climate change-related web content that was removed post-Inauguration, including all USDA webpages and interactive tools enumerated in Plaintiffs’ Complaint,” which includes the Forest Service’s “Climate Risk Viewer,” a “one-stop shop for climate-related geospatial data” with over 140 data layers.  A link to the USDA letter is provided.  We discussed this case here.

• Bundy prosecution

Court decision in Idaho v. Bundy (Idaho Supreme Court)

On April 1, the Idaho Supreme Court upheld Ammon Bundy’s conviction for trespassing and resisting arrest when he refused to move out of reserved seats at a special legislative session where he was protesting COVID-19-related public health measures in August 2020.  He was sentenced to 3 days in jail, 40 hours of community service and a $1089 fine.  Bundy and his family first made national headlines in 2014 when they forced the Bureau of Land Management and the Las Vegas Metropolitan Police Department into an armed standoff in Nevada over grazing rights, followed by instigating another armed confrontation over federal land management issues at the Malheur National Wildlife Refuge in Oregon in 2016.  The article links to another that has a link to the opinion.

FOREST SERVICE

• Beaverhead-Deerlodge NF vegetation management project

New lawsuit

On April 3, the Alliance for the Wild Rockies, Council on Wildlife and Fish and Native Ecosystems Council filed a lawsuit against the Greenhorn vegetation management project in the Gravelly Mountains on the Beaverhead-Deerlodge National Forest, which is an area connecting the Yellowstone area to other mountain ranges in Montana. They seek to protect habitat for grizzly bears, lynx, and sage grouse.

• Caribou-Targhee NF pipeline

New lawsuit (D. Idaho)

On April 14, in a second challenge to the portion of the Crow Creek natural gas pipeline that requires a right-of-way across Caribou-Targhee National Forest lands, the Alliance for the Wild Rockies and Yellowstone to Uintas Connection said the supplemental EIS that the Forest Service agreed to prepare didn’t comply with NEPA, including not considering reasonable alternatives.  The previous lawsuit, discussed here, focused on several roadless areas that would be affected.

• Deschutes NF homeless camps

New lawsuit and court decision in Bradshaw v. Jewkes (D. Oregon)

On April 18, four disabled homeless people and two service providers sought a temporary restraining order to block an area closure for the Cabin Butte Vegetation Management Project, which encompassed their camping sites, alleging failure of the USDA to respond to their discrimination complaints.  The lawsuit complaint is included with this article.  On April 29, the district court denied their request.  The closure was planned to begin May 1.

BLM

• Oregon BLM grazing and sage-grouse

New lawsuit:  Oregon Natural Desert Ass’n v. Raby (D. Oregon)

On March 13, plaintiffs sued the BLM for a second time over its failure to implement the decision in its 2015 sage-grouse conservation plan to close 13 research natural areas to grazing that were intended to serve as reference sites for sage-grouse management.  In 2022 the court found unreasonable delay and ordered the BLM to stop authorizing grazing in these areas.  This lawsuit is against a January 2025 decision by the BLM that reduces the closure area and provides no additional assurance of implementation.  The article includes a link to the complaint.  (I found it convenient that in its reported argument against a preliminary injunction, the BLM explained that there would be harm to the agency and ranchers because of its low staffing.)

• Colorado BLM oil and gas leases

New lawsuit:  Wilderness Workshop v. U. S. Bureau of Land Management (D. Colorado)

On April 10, Wilderness Workshop and Center for Biological Diversity filed a lawsuit seeking to terminate 22 federal oil and gas leases in the Pilot Knob, Huntsman Ridge, and South Shale Ridge areas of Colorado because the leases have been on the books for more than two decades but the leaseholders haven’t brought them into production.  Under the federal Mineral Leasing Act, such leases should automatically expire after 10 years unless the lessee has begun qualifying drilling operations, if a well is producing in paying quantities, or if the lease receives an allocation of production from an off-lease well.

• Utah BLM travel management plan

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

On April 10, the BlueRibbon Coalition sued the BLM over the Henry Mountains/Dirty Devil Travel Management Plan in southern Utah.  The Plan is one of 11 travel plans the BLM is completing over the next few years as part of a 2017 court-supervised settlement agreement between the agency, conservation organizations, and ORV groups. Plaintiff ORV group alleges violations of the 2025 EXPLORE Act (expansion of recreation on public lands).  According to plaintiffs (the complaint is linked to the above release), the decision closed recreation access to 612 miles of roads and trails.  According to the Southern Utah Wilderness Alliance, it designates 1,670 miles of motorized vehicle routes, opening 114 miles of routes that were previously closed to vehicles.

• Oregon BLM landscape plan

Court decision in Cascadia Wildlands v. Adcock (D. Oregon)

On April 24, the district court ordered the BLM to prepare an EIS using site specific data, both of which they had failed to do for the Siuslaw Harvest Land Base Project, a two-decade logging plan for 13,225 acres of the Oregon Coast Range.  The court found that BLM’s approach of tiering to a resource management plan EIS, but without site-specificity, resulted in a failure to address potentially significant issues (including sensitive soils, special status species, and noxious weeds), and that, “substantial questions exist over whether the Siuslaw Plan may have significant impact,” which means an EIS must be prepared.

The court said the landscape plan violated NEPA because, “this is a logging plan where the location of the areas to be logged is well-suited to standard site-specific analysis,” and, “the BLM cannot rely on future site-specific field surveys because such surveys would occur only once the BLM has made a determination of NEPA adequacy (“DNA”)—which is not a NEPA document.”  With  regard to special status species, the court noted that, “Although a larger programmatic EIS need not conduct site-specific analysis, an EA that tiers to such programmatic EIS must conduct site-specific analysis where ‘a critical decision has been made to act on site development,’” and, “The BLM’s repeated statements in the Siuslaw Plan EA that the Siuslaw Plan would not cause a trend towards listing are conclusory, speculative, and devoid of any site-specific analysis.”  The article has a link to the opinion.

ENDANGERED SPECIES

• Glacier NP bull trout introduction

Voluntary remand in Friends of the Wild Swan v. Hammond (D. Montana)

On April 9, the National Park Service and U.S. Fish and Wildlife Service filed documents saying that both agencies would voluntarily rescind approval for the introduction of bull trout, genetically pure strains of westslope cutthroat trout, and mountain whitefish into Gunsight Lake in Glacier National Park (previously discussed here).  The court has granted a voluntary remand.

• Brook floater mussel listing

New lawsuit:  Center for Biological Diversity v. Burgum (D. D.C.)

On April 17, the Center sued the Fish and Wildlife Service for denying Endangered Species Act protections to the brook floater mussel in 2019.  According to plaintiffs, the mussels were once found along the East Coast from Canada to Georgia, and the species is threatened by dams, water pollution, oil and gas drilling, logging, mining and climate change.

OTHER

• Nevada USDA Wildlife Services

Court decision in WildEarth Guardians v. USDA Animal and Plant Health Inspection Service (9^th Circuit)

On April 21, the circuit court reversed a lower court holding, and held that the EA allowing the USDA’s Wildlife Services program to operate on Nevada’s federally protected wilderness areas was “deficient in several ways,” and failed to provide a convincing statement of reasons to explain why the program’s impacts were not significant.  In addition to APHIS, defendants included the Forest Service and the BLM.  Until a new review process is completed, the USDA cannot operate its program in Nevada’s 65 wilderness areas and 62 wilderness study areas.  The circuit court found no violation of the Wilderness Act.  The article includes a link to the opinion.

• EPA climate endangerment finding FOIA

New lawsuit:  Center for Biological Diversity v. U. S. Environmental Protection Agency (D. Arizona)

On April 14, the Center sued the EPA for failing to provide any records within the required 20 days on the agency’s plans to reconsider its 2009 scientific finding that greenhouse gasses endanger public health.  On Feb. 20, the Center had requested records that document EPA’s recommendations on the “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.”  Section 202(a) of the Clean Air Act (CAA) requires EPA to regulate air pollutants if it finds that they “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”  The EPA formally announced the reconsideration on March 12.  EPA also intends to reconsider all of its prior regulations and actions that rely on the Endangerment Finding.  The release includes a link to the complaint.

• Energy executive order FOIAs

New lawsuit:  Center for Biological Diversity v. Department of Interior (D. D.C.)

On April 16, the Center sued the departments of Interior, Commerce, Agriculture and the EPA for failing to provide any records on the agencies’ response to Executive Order 14154, “Unleashing American Energy.” Section 3(b) of the Order directs the heads of all federal agencies to “develop and begin implementing action plans” to eliminate a wide range of “agency actions” identified as impediments to energy development. They filed a Freedom of Information Act request on Feb. 20, and FOIA requires a response within 20 days.  The release includes a link to the complaint.

New lawsuit:  Center for Biological Diversity v. U. S. Army Corps of Engineers (D. D.C.)

On April 29, the Center sued the Army Corps of Engineers for failing to provide any records on emergency Clean Water Act and Rivers and Harbors Act wetlands permitting actions and related Endangered Species Act consultation activities taken by the Corps pursuant to President Trump’s January 20, 2025, Executive Order 14,156 entitled “Declaring a National Energy Emergency.”  They previously sent a notice of intent to sue, and a Freedom of Information Act request on March 4.  The release includes a link to the complaint.

• Employee rights

Court decision in American Federation of Government Employees v. U. S. Office of Personnel Management (N.D. California)

On April 18, the district court found that, “the United States Office of Personnel Management unlawfully directed the mass termination of thousands of probationary employees in all federal agencies.”  The court held that, “No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies, and that, “the government fails to rebut evidence drawn from a broad swathe of agencies proving that they were operating under OPM direction.”  A Forest Service employee and briefing paper were cited as evidence by the court.

Court decision in National Employees Treasury Union v. Trump (D. D.C.)

On April 25, the district court issued an order (linked to this article) that temporarily blocks the Trump administration from revoking the union rights of federal workers based on their having intelligence or national security as a primary function.  One of the agencies included was the BLM.

Trump Administration future litigation targets

Here’s a couple of E&E articles speculating on future litigation triggered by recent administration actions regarding energy development.

NEPA shortcuts

“The Interior Department unveiled a plan Wednesday to reduce the length of reviews for some coal and hardrock mines, oil and gas drilling, geothermal development and biofuel projects on public land — while excluding wind and solar energy — from a year or more to a maximum of 28 days.”

“You can speed up all the permitting, you can reduce NEPA all you want, but if you’re leaving … the potential for liabilities because corners have been cut, there are still challenges for the industry,” said Joshua Ballard, CEO of USA Rare Earth, a rare earth company. “There’s still massive risk there.”

Oil and gas leases

“The Interior Department could face a fresh round of lawsuits after officials said Thursday they would no longer require the Bureau of Land Management to create an environmental impact statement for more than 3,200 oil and gas leases across seven states in the West.

The agency’s decision to forgo the multistate environmental review undertaken by the Biden administration still leaves BLM on the hook to do more environmental analysis of the challenged leases, said Kyle Tisdel, a senior attorney at the Western Environmental Law Center, which represented environmental and public health groups opposing the lease sales.

“We obviously have multiple court decisions and settlement agreements that BLM has entered into that say they’ve got to do something,” Tisdel said.

And here’s the rest of the stories …

FOREST SERVICE

• Stibnite gold mine

New lawsuit:  Save the South Fork Salmon v. U. S. Forest Service (D. Idaho)

On February 18, six environmental organizations sued the Forest Service, the two ESA consultation agencies and three federal departments regarding their review and approval the Stibnite Gold Project, an open-pit gold mine.  Much of it would occupy land on the Payette and Boise National Forests near the Frank Church–River of No Return Wilderness Area in the South Fork Salmon River watershed.  They allege violations of NEPA, the ESA regarding listed Chinook salmon, steelhead, and bull trout, and the Forest Service Organic Act and its 36 C.F.R. §228 regulations by failing to protect water quality and fisheries.  Also, a violation of NFMA for being inconsistent with a forest plan standard that prohibits road construction in riparian areas where there are other alternatives.  Among a total of nine claims.  The article includes a link to the complaint.

• Kootenai NF timber project

Court decision Center for Biological Diversity v. U. S. Forest Service (9^th Cir.)

On February 24, the circuit court affirmed the district court on two of its holdings against the Kootenai National Forest’s Black Ram Project and reversed the district court on four others.  The court agreed that the Forest Service violated NFMA by failing to demonstrate that the project complied with a forest plan standard governing road use in grizzly bear habitat.  It found that unauthorized road use must be included in road density calculations, and, “the record belies the federal defendants’ blanket assertion that unauthorized road use is sporadic and temporary.”  It held, “Given the uncertainty as to the extent of ineffective closures and chronic unauthorized road use, it is impossible to discern actual, baseline motorized access conditions.” This failure to properly explain the baseline assumptions also led to a violation of NEPA’s requirement for a “hard look” at the effects of unauthorized road use.  The court upheld the Fish and Wildlife Service’s determination of the grizzly bear population, and the Forest Service’s reliance on that, and the determination that the project would not jeopardize grizzly bears.  The article includes a link to the complaint.

• Tongass NF timber program

New lawsuit:   Alaska Forest Association v. Rollins (D. Alaska)

On March 6, the Alaska Forest Association and two of its members filed a lawsuit against the Forest Service, seeking to force the agency to sell timber as allegedly required by the Tongass Timber Reform Act.  The other two claims are that, “The Southeast Alaska Sustainability Strategy—altering the substantive requirements of the 2016 Management Plan—is functionally a rule that required notice and comment rulemaking,” and that it is arbitrary under the APA to “illegally deviat(e) from the 2016 Management Plan without considering Plaintiffs’ reliance interests” in timber production.  The 2016 plan referred to was an amendment to the forest plan that adopted a strategy for transitioning to a “young growth” timber program.  The article includes a link to the complaint.

• Bitterroot NF vegetation project

On March 7, the Bitterroot National Forest responded to a notice of intent to sue by the Center for Biological Diversity over its Eastside Forest and Habitat Improvement Project and its effects on species listed under the Endangered Species Act.  The project covers most of the east side of the Forest.  The letter stated that the Forest had reinitiated ESA consultation on the effects of the Project on grizzly bears, wolverines and bull trout, so that claims of an ESA violation are now moot.

BLM

• Wild horse adoption program

Court decision in American Wild Horse Campaign v. Burgum (D. Colorado)

On March 3, the district court overturned the BLM’s Adoption Incentive Program (AIP) for wild horses, which pays individuals $1,000 to adopt wild, unhandled wild horses and burros.  The court held that the 2022 Instruction Memorandum establishing the AIP violated both the APA and NEPA, writing that: “an agency cannot avoid its notice and comment obligations by simply clothing instruction memoranda in permissive language, only to then treat them in practice as mandatory.”  The article includes a link to the opinion.

• Utah BLM travel plan

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

On March 5, the BlueRibbon Coalition, Sage Riders Motorcycle Club and a landowner challenged 665 miles of route closures established by the approval of the San Rafael Swell Travel Management Plan.  They claim that the decision violates the Dingell Act’s prohibition of “buffer zones” around wilderness areas in the vicinity of this plan, and that the decision violates the APA for several reasons, including that the “minimization criteria” used are not authorized by FLPMA (invoking a 2024 Supreme Court decision that regulations must have a clear statutory basis).  They also claim that the decision to issue an EA/FONSI instead of an EIS was based on CEQ regulations that are not valid.

ENDANGERED SPECIES

• Chinook salmon listing deadline

New Lawsuit:  Center for Biological Diversity v. National Marine Fisheries Service (D. Oregon)

On February 18, five conservation organizations filed a lawsuit over NMFS missing its 1-year deadline to determine if coastal spring-run Chinook salmon in Oregon, Washington, and Northern California warrant protection under the Endangered Species Act.  NMFS found that federal protections “may be warranted” for the three salmon populations in 2023 but has made no further decisions.  In their complaint, plaintiffs state that the threats to the species include “habitat degradation from logging.”  The article includes a link to the complaint.

• ESA regulations

New lawsuit:  Rocky Mountain Elk Foundation v. U. S. Department of the Interior (D. Montana)

On March 10, RMEF and the and the Property and Environment Research Center challenged the 2024 regulation (referred to as the “Blanket Rule”), under which the ESA’s prohibitions for endangered species apply automatically to newly listed threatened species.  Plaintiffs assert, the language of ESA, as well as the ESA’s structure, “authorizes the Service only to issue regulations in response to each species’ listing and tailored to each species based on science, the species’ unique conservation needs, and the incentives needed to recover that species.”

OTHER

• Climate information purge

New lawsuit:  Northeast Organic Farming Association of New York v. U. S. Department of Agriculture (S.D. New York)

On February 24, the Northeast Organic Farming Association of New York, Natural Resources Defense Council, and Environmental Working Group sued the USDA, accusing the Department of deleting “climate-related policies, guides, datasets, and resources from its websites.”  Examples cited in the lawsuit include the Forest Service deleting an interactive map that allowed users to see where federal agencies have conducted climate change vulnerability assessments.  The lawsuit claimed that in deleting the materials so quickly and without notice, USDA violated the Paperwork Reduction Act, which requires agencies to provide notice when terminating “significant information dissemination products,” and the Freedom of Information Act.  (If you can read the Washington Post, an article is here.)

• Dakota Access Pipeline

On February 24, the trial began in a lawsuit in a North Dakota state court by Energy Transfer Partners against the environmental organization Greenpeace.  They allege that Greenpeace orchestrated protests against the Dakota Access Pipeline, and defamed the company, and sued them in 2017 for $300 million.  Earlier in February, Greenpeace International filed an anti-intimidation suit in a Dutch court against Energy Transfer, saying the company acted wrongfully and should pay costs and damages resulting from its “meritless” litigation.  Legal experts call the case a strategic lawsuit against public participation (SLAPP), aimed at silencing critics through costly litigation rather than seeking legitimate damages, and believe it could set a precedent for how courts handle free speech protections, especially in environmental cases.

• Francis Marion NF car accident

Court decision in Murray v. U.S.A. (D. South Carolina)

This case involves an accident caused by a large hole in a Forest Service designated dirt road on the Francis Marion National Forest.  On February 24, the federal district court dismissed the case because the government is immune from suit under the Federal Tort Claims Act’s discretionary function exception.  The court held that the exception to tort liability applies because the Forest Service Manual and Handbook “does not contain mandatory directives requiring FS officials to inspect, maintain, or repair FS roads or warn of potential hazards in a certain manner or under a particular schedule,” and that decisions about such things must “consider a multitude of policy considerations.”

• Employee terminations

Temporary restraining order granted in American Federation of Government Employees v. U. S. Office of Personnel Management (N.D. California)

On February 28, the district court held that, “No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies,” and also that OPM violated the APA because the notice was arbitrary and capricious, and by not providing for public notice and comment.  Western Watersheds Project was one of the plaintiffs granted standing to bring this case based on “its members’ legally protected interest in the recreational enjoyment of federal lands and the flora and fauna therein.”  The court considered harm to those interests “irreparable.”  The court ordered that,  “OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and FWS are unlawful, invalid, and must be stopped and rescinded.”  The government has since agreed that the TRO should be converted to a preliminary injunction, and is attempting to avoid having the Director of OPM testify.

FOREST SERVICE

• California roadside hazard tree project

In the news:  Klamath Forest Alliance v. U. S. Forest Service (N.D. California)

On July 20, 2023, seven environmental organizations sued the Forest Service over its Region 5 Post-Disturbance Hazardous Tree Management Project, which would remove roadside hazard trees from nine national forests in northern California.  (We discussed that decision here – but apparently missed the lawsuit.)  Here is the complaint.

On August 23, 2024, the lower court found that the three EAs complied with NEPA and held that the Forest Service’s policy choice in the purpose and need statement to focus on burned trees’ chance of endangering traffic on public roads “was well within its considerable discretion.”  Here is the opinion.  An appeal is now pending in the 9^th Circuit.

This case and that holding have recently appeared as a basis for speculating about how the Supreme Court’s Loper Bright decision overruling deference to agency interpretations of the law might affect the Forest Service.  I’m not convinced this case is a good example (but this article does quote a couple of Smokey Wire contributors.)

• Gila NF cattle removal

Court decision in New Mexico Cattle Growers v. U. S. Forest Service (D. New Mexico)

On January 29, the district court upheld the authority of the Forest Service to shoot feral cattle on the Gila National Forest.  The case turned on the determination that feral cattle do not meet the Forest Service’s definition of livestock — animals that humans keep or raise for use or pleasure.  Even though the species is domesticated, these cows are descendants of a herd abandoned in the 1970s, so have had no human connection for decades.  The news release (from the Center for Biological Diversity, on the side of the Forest Service) has a link to the opinion, and this article provides other perspectives.

• Hoosier NF timber salvage project

Preliminary injunction denied in Mahler v. U. S. Forest Service (S. D. Indiana)

On February 10, the district court rejected a motion to enjoin the Paoli Tornado Response and Research Project in the Paoli Experimental Forest on the Hoosier National Forest.  The Project involves salvage logging of 138 acres and other clean-up within the boundaries of another planned project, and it was approved using three categorical exclusions.  It began operating in December.  The case involved a trial with witnesses (instead of being based entirely on the administrative record), which the Forest Service objected to, and the court sustained the objection except with respect to evidence they provided relevant to irreparable harm.  The court relied on testimony from Forest Service employees to find that there would not be irreparable harm to listed tricolored bats, or historic sites, nor would irreparable harm be likely to remaining old growth trees.

The larger project area is for the Buffalo Springs Project, which is still pending, and has attracted considerable opposition, including from Republican Indiana Governor Mike Braun, and a film called, “Saving the Hoosier: A Fight for the Lungs of America.”  More on that here.

• Apache-Sitgreaves/Gila NF grazing and wolves

Court decision in Western Watersheds Project v. Washington (9^th Circuit)

On February 11, the circuit court upheld a lower court decision that the Forest Service adequately considered effects of the Stateline Project on the federally endangered Mexican gray wolf population, and that the EA complied with NEPA.  The Project reauthorized livestock grazing on allotments in the Apache-Sitgreaves and Gila National Forests. Plaintiffs had raised issues concerning effects of livestock-related wolf removals and prey displacement, but they also found, “You know, the Forest Service started doing a much better job at this right after we filed our first lawsuit on this case.”  The article includes a link to the short opinion.

• Fishlake NF grazing requirements

New lawsuit

On February 12, cattle ranchers alleged the Forest Service promulgated arbitrary grazing rules for livestock allotments in the Fishlake National Forest.  The agency didn’t use the best available science when setting legal grass heights for allotments that overlap the habitat of the greater sage-grouse, according to a complaint filed in the US District Court for the District of Utah.  The ranchers are challenging the environmental impact statement published last year for the Southern Monroe Mountain Allotments Livestock Grazing Authority.  These allotments have been subject to prior litigation from Western Watersheds Project, and the Forest is implementing a new decision.  (This was the only information I found and could access on the new lawsuit.)

• Arson prosecutions

Two recent arson prosecutions revealed the motivations behind some arson fires.  One man has been indicted for setting fires on the Osceola National Forest because he was “trying to do the Forest Service a favor” by conducting a controlled burn, and claiming that he was a “sovereign citizen,” meaning that “he had the authority to do what he wanted.”  A former southeastern Ohio fire department administrator will serve 18 months in federal prison after admitting to starting dozens of wildfires in Wayne National Forest in order to “give the boys something to do.”

BLM

• Bears Ears NM grazing improvements

Stay granted by administrative law judge

The Nature Conservancy holds grazing permits for its Dugout Ranch within Bears Ears National Monument on national forest and BLM lands.  Their proposal to add 13 reservoirs for cattle and additional fencing has been stayed in response to an objection by Western Watersheds Project, who is concerned about grazing being introduced to new parts of the Monument.  The BLM’s ALJ held, “Given that the only stated purpose in the (environmental analysis) for constructing 13 reservoirs and five fences is to redistribute livestock, BLM had an obligation to analyze how optimized livestock distribution would impact rangeland health.”  (The opinion was not provided.)

• Utah BLM oil and gas drilling

Case dismissed:  Southern Utah Wilderness Alliance v. U. S. Department of the Interior (D. Utah)

On February 4, the district court found that claims challenging four oil and gas leasing decisions were not ripe for judicial review because the leases at issue were suspended, and dismissed the case without prejudice.  The court held that, even though the leases have been issued, “the BLM’s suspension and active reconsideration of its leases mean that its decision is not yet “final.””  Judicial review would be available if and when “the BLM decides to uphold some or all the leases after it has completed its NEPA Analysis and supplemental EIS.”

• California BLM oil and gas drilling

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

On February 5, the Center for Biological Diversity, Wilderness Society, Friends of the Earth, Sierra Club and Central California Asthma Collaborative sued the BLM over permits it issued for 29 oil and gas wells on public lands in the San Joaquin Valley.  The BLM prepared three separate EAs.  This case follows at least two prior lawsuits (one settled, one still pending) that seek a review of the cumulative effects of continuing development in the area, which is heavily polluted.  Claims include violations of the Clean Air Act, the National Environmental Policy Act, the Federal Land Policy and Management Act, and the Mineral Leasing Act.  With regard to FLPMA, the complaint alleges, “The agency should have analyzed these impacts when it prepared its Resource Management Plan (“RMP”) for the region, but ultimately failed to do so.”   The article has a link to the complaint.

ENDANGERED SPECIES

• 76 species

Stipulated settlement in Center for Biological Diversity v. Haaland (D. D.C.)

On January 15, the district court approved a settlement agreement regarding 76 remaining species (of 241 originally) that CBD had petitioned for listing or critical habitat designation.  The agreement establishes a schedule for completing petition findings by the end of Fiscal Year 2029.  (It does include this caveat allowing renegotiation of deadlines that now seems pretty relevant: “The Parties acknowledge that the Service has entered into this Agreement based on the Service’s projection that it will have sufficient resources to fulfill the requirements of the Agreement.”)

• Railroad grizzly HCP

Post litigation action:  WildEarth Guardians v. BNSF Railway Company (D. Montana)

On February 12, the U. S. Fish and Wildlife Service issued an incidental take permit that will allow the Company’s trains to take 19 grizzly bears near Glacier National Park over a seven-year period, based on a recently adopted habitat conservation plan.  Under the new plan, BNSF will use a “rapid response protocol” to quickly remove any grain spills or carrion; inspect grain cars for leaks and set out any leaking cars; manage vegetation in the right-of-way to reduce attractants; and fund fencing to prevent livestock from accessing sections of the railbed. BNSF will also fund three new grizzly technicians.

• Utah plant species listing

New lawsuit:  WildEarth Guardians v. Burgum (D. D.C.)

On February 17, WildEarth Guardians challenged the U.S. Fish and Wildlife Service’s decision to deny Endangered Species Act protections for three plants found only near Arches National Park: cisco, stage station, and Isely’s milkvetches.  Threats to these plants include climate change, oil and gas extraction, energy and transportation corridors, motorized recreation, and invasive vegetation.  The press release includes a link to the complaint.

OTHER

• Francis Marion NF adjacent development

Preliminary injunction denied in South Carolina Coastal Conservation League v. U. S. Army Corps of Engineers (4^th Circuit)

On January 31, the circuit court upheld the decision of a lower court denying a preliminary injunction that would have stopped development on the Cainhoy peninsula that could eventually encompass over 9,000 residential units.  Plaintiffs sought to void a permit granted by the Corps of Engineers.  The area involved is shares a two-mile border with the Francis Marion National Forest (a map is provided here), which was a factor considered by the court.  The court agreed that listed northern long-eared bats are unlikely to be measurably harmed, “considering the fact that the 263,904-acre Francis Marion National Forest is adjacent to Cainhoy, all of which is in a protected status” (my emphasis, wondering how this was determined).  Also, an EIS was not necessary because (among other reasons) plaintiffs failed to make the case that the EA had not adequately addressed, “the impact on the Francis Marion National Forest, including making it more difficult for the Forest to execute necessary prescribed fires for maintenance.”  More of the story is here.

• CEQ Regulations

Court decision in Iowa v. Council on Environmental Quality (D. North Dakota)

On February 4, 21 Republican attorneys general were successful in vacating the CEQ’s current regulations used by all federal agencies to implement NEPA.  In invalidating the Biden Administration’s Phase II regulations, the district court repeated a finding made in an earlier case where the issue was not raised by plaintiffs (featured here) – but these plaintiffs did.  The district court ruled that Congress never gave the CEQ authority to issue binding regulations — and that the president could not claim such authority through an executive order.  The article has a link to the opinion (ABC is not the news site – it’s Associated Builders and Contractors).  While this may reinstate the previous Trump Administration CEQ regulations, they are also based on his Executive Order to CEQ, so could be vacated for the same reasons, and Trump has since rescinded the 1977 executive order granting CEQ rulemaking authority.  (More about “chaos” in the NEPA world, too.)

• Federal employee firing

New lawsuit:  National Treasury Employees Union v. Trump (D. D.C.)

On February 12, five unions sued the President to stop terminations of probationary federal employees, including about 3400 in the Forest Service.  A representative for the plaintiffs stated that “They’re being terminated, essentially for a performance issue, even though their performance appraisals have been fully successful.” The lawsuit also alleges that the federal administration has pressured employees to voluntarily resign, and the large-scale reduction in federal workforce violates the law.  This article about effects in Alaska includes a link to the complaint.