Jon Haber

FEATURED CASE

• CEQ NEPA regulations

Court decision in Marin Audubon Society v. Federal Aviation Administration (D.C. Cir.)

On November 12, the circuit court reviewed a decision by the FAA and the National Park Service to adopt an Air Tour Management Plan governing tourist flights over four national parks near San Francisco.  The agency decision used the Park Service’s categorical exclusion for “[c]hanges or amendments to an approved action when such changes would cause no or only minimal environmental impacts.”  Here is the holding:

“Petitioners, without invoking CEQ regulations, argue that the Agencies relied on an improper baseline for their environmental analysis by using the existing level of flights under interim operating authority as the baseline for assessing the environmental effects of the Plan. We agree and hold that it was arbitrary and capricious for the Agencies to treat interim operating authority as the status quo for their NEPA analysis.”

The court added that, “It was unreasonable for the Agencies to avoid fully treating the environmental effects of the Bay Area Parks Plan on the ground that those effects would minimally alter a status quo that itself has never been adequately assessed.”  This was especially relevant where the National Parks Act required that, “The objective of any [Plan] shall be to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts.”  The plan was vacated (despite the interim plan not including the new mitigation measures sought by the agencies, and vacatur was an outcome neither party had sought), but the court indicated a willingness to stay that order.

The court prefaced its holding in the case with an extensive discussion of why the categorical exclusion that was used by the agencies, and the CEQ regulations in their entirety, are invalid, despite this argument not being made by the parties to the case.  The court found that the CEQ had no statutory authority to promulgate binding regulations.  NEPA gave the CEQ authority, to “develop and recommend to the President national policies to foster and promote the improvement of environmental quality.”  The regulations were issued pursuant to executive orders from two presidents.  The court found that, “the Constitution does not permit the President to seize for himself the ‘law-making power of Congress’ by issuing an order that, ‘like a statute, authorizes a government official to promulgate . . . rules and regulations.’”  The court did not address the validity of NEPA regulations issued by individual agencies (which tend to include their categorical exclusions).

There is a dissenting opinion objecting to deciding the CEQ authority issue: “the court contravenes “our established ‘principle of party presentation’”” (of the issues to be decided).  There are differing opinions regarding how earthshaking this case will be, with even the possibility that, since it was not the basis of the court’s decision in the case, it could be regarded as non-binding dicta.  Here’s another take on this new uncertainty in the world of environmental law.

“The implications of this decision are highly uncertain. Many of the CEQ regulations have been legislatively adopted either in particular statutes or in 2023 amendments to NEPA in connection with the Fiscal Responsibility Act. Thus, there is a plausible argument that regardless of whether the CEQ regulations were lawful in the first instance, they may have been ratified by Congress. Furthermore, since so much caselaw has grown on the structure of the CEQ regulations, it is conceivable that little will change in the courts; instead they could conceivably treat the regulations as invalid but the principles as unchanging.”

(It’s probably worth pointing out that this is a circuit court opinion, and while the D. C. Circuit is often central to federal administrative law, this opinion is not binding on other circuits.)

FOREST SERVICE

• Thunder Basin NG plan amendment

Court decision in Western Watersheds Project v. Vilsack (D. Wyoming)

On October 28, the 10^th Circuit Court of Appeals reversed the 2020 plan amendment for the Thunder Basin National Grassland, comprised of 553,000 acres of USFS-managed land and more than one million acres of land that is either state or privately managed.  The amendment was intended to change management of habitat for black-tailed prairie dogs.  After several past changes in the plan to improve protection of the prairie dogs, this amendment would relax some of that protection, following a boom and bust (resulting from plague) in prairie dog population.  It changed the focus of a key management area from reintroduction of black-footed ferrets (which are endangered species dependent on prairie dog colonies that are being reintroduced to suitable grasslands), to managing the prairie dog population (including to better control population booms), and it reduced the size of this management area.  It also relaxed restrictions against lethal control of prairie dogs.

Plaintiffs argued that the reduced opportunity for black-footed ferret reintroduction was not in compliance with NEPA, ESA and NFMA, but the district court found no violations.  The NFMA claims were not raised on appeal, and the circuit court found that the amendment process violated NEPA, and that it could not rule on the ESA claim in light of the NEPA flaws.  The circuit court disagreed with the district court’s conclusions about each of the NEPA issues.

In a 2009 amendment, the Forest Service “specifically recognized that the combined effects of poisoning and recreational shooting could prevent prairie dog population recovery.”  In a 2013 study, the Forest Service found, “[p]oisoning and plague, along with other known threats, can each have a significant impact to prairie dogs. However, when these threats are combined, eradication of entire populations of prairie dogs is possible.”  The Forest Service based a 2015 amendment decision to further protect prairie dogs on this conclusion.

The population grew to well beyond the desired acreage in 2017, then crashed in 2018.  For the 2020 amendment, all action alternatives reduced the area to be managed for prairie dogs and increased the availability of poisons and recreational shooting of prairie dogs.

The court held that, “despite recognizing its obligation under the ESA to contribute to recovery of endangered and threatened species, and the particular need to support black-tailed prairie dog populations on Thunder Basin to enable the reintroduction of the endangered black-footed ferret, the USFS’s Purpose and Need statement limits the consideration of alternatives to those that will “increase the availability of lethal prairie dog control tools.”  Therefore, “the USFS has defined the Purpose and Need statement so narrowly as to ‘preclude a reasonable consideration of alternatives…’”

As for the range of alternatives, the court found that the record “does not provide an adequate explanation in its discussion of why expanding lethal control options was the only viable choice,” such as infeasibility of other options.  The court also found no adequate explanation for rejecting alternatives that would have increased the acreage of prairie dog colonies or reduced livestock grazing.  With regard to the no-action alternative, the court said, “USFS fails to provide an adequate explanation as to why it rejected those alternatives” (referring to the existing protection measures).  In sum the court found, the Forest Service violated NEPA by “failing to consider alternatives that ensured conservation …” (an “overarching” purpose).

The court also faulted the Forest Service for failing to discuss the combined effects of poisoning, plague, and recreational shooting on prairie dog populations in relation to its previous position that these things in combination could result in eradication of the prairie dogs.  While the Forest Service looked at effects individually, and documented an overall conclusion that “all activities combined” are “not likely to result in a loss of viability in the planning area,” there was no analysis or discussion of why.  Moreover, in the context of the agency’s prior positions, “This ‘[u]nexplained conflicting finding[] about the environmental impacts’ of the 2020 Plan Amendment violates the APA.”  The court notes in a footnote, “It may be true that, in light of information learned during the 2017-18 plague outbreak, the concerns expressed in prior years regarding the combined impacts of plague, poison, and recreational shooting are no longer scientifically sound. But this is never explained in the FEIS or ROD.”

There was a dissenting opinion in the case.  The court’s decision was remanded to the district court to determine whether the amendment decision should be vacated.  The article includes a link to the opinion.

• Los Padres NF forest health project

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

On November 12, the circuit court affirmed a district court holding in July that upheld the Reyes Peak Forest Health Project on the Los Padres National Forest.  The decision was based on Categorical Exclusion (e)(6): “Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction.”  According to the brief opinion from the court (a link is included in this article):

“Specifically, plaintiffs argue that the Forest Service did not properly evaluate the project’s potential impact on religious or cultural sites, the removal of large trees in the Sespe-Fraizer Inventoried Roadless Area, and the existence of potential wilderness. But the agency properly analyzed each of these resource conditions as required by 36 C.F.R. § 220.6(b), so the Forest Service’s determination that there are no extraordinary circumstances that preclude it from relying on CE-6 was not arbitrary or capricious.”

This case was discussed previously here. 

• Cherokee and Pisgah NFs Nolichucky River

New lawsuit:  American Whitewater v. U. S. Army Corp of Engineers (W.D. North Carolina)

On November 18, American Whitewater and American Rivers sued to stop work by CSX Transportation in the Nolichucky River Gorge to repair damage to its railroad from flooding in September.  Defendants are the Army Corps of Engineers, the Forest Service and the Fish and Wildlife Service.  Plaintiffs object to the use of rock from the river channel as riprap.  In allowing CSX’s ongoing work, the lawsuit alleges, the three federal agencies have collectively violated multiple environmental protection laws, including the Rivers and Harbors Act of 1899, the Administrative Procedure Act, the Clean Water Act, the Organic Act of 1897, the National Forest Management Act of 1976, the National Environmental Policy Act and the Endangered Species Act.  The complaint is here: (1) 2024-11-18 Complaint

• Malheur NF logging project

Court decision in Blue Mountains Biodiversity Project v. U. S. Forest Service (9^th Cir.)

On November 18, the circuit court affirmed the lower court’s summary judgment in favor of the Malheur National Forest’s Camp Lick Project.  The court found that “conditions in the Project Area necessitated a site-specific amendment, above and beyond conditions in the Malheur National Forest (“Forest”) as a whole,” which justified thinning stands to promote old growth.  The Forest also complied with NEPA regarding cumulative effects, an EIS was not required and a supplemental information report adequately addressed new information.

• Medicine Bow-Routt NF land exchange

New lawsuit (D.C. Wyoming)

An adjacent property owner has filed a lawsuit to stop the Britania land exchange on the Medicine Bow-Routt National Forest because it would cut off land used by the public, alleging violations of NEPA public participation and other requirements.  The land to be conveyed to private parties is, and provides access to, highly sought hunting activities, especially for bighorn sheep.  The land acquired would be more accessible to the public.

BLM

• Nevada BLM lithium mine

New lawsuit:  Center for Biological Diversity v. Haaland (D. Nevada)

On October 31, Center for Biological Diversity, Great Basin Resource Watch and Western Shoshone Defense Project sued the Department of the Interior, BLM and U. S. Fish and Wildlife Service over approval of the Rhyolite Ridge Lithium/Boron Mine in Nevada.  The complaint alleges that the decision:

“… among other things: failed to ensure that the Project will not jeopardize the continued existence of Tiehm’s buckwheat or adversely modify its critical habitat, as required under the ESA; failed to prevent unnecessary and undue degradation of the public lands, as required under FLPMA; failed to take a “hard look” at the Project’s environmental impacts, as required under NEPA and FLPMA; and relied on vague, generalized, and insufficiently developed minimization and mitigation measures, in violation of the ESA, NEPA and FLPMA.”

“The end use of minerals, whether for EV’s or solar panels, does not justify this disregard of Indigenous cultural areas and keystone environmental laws,” said John Hadder, director of Great Basin Resource Watch, in a statement.   We’ve talked about the Tiehm’s buckwheat a few times, such as here.

• Arizona BLM lithium exploration

Preliminary injunction in Hualapai Indian Tribe v. Haaland (D. Arizona)

On November 5, using language similar to the plaintiffs in the case above, the district court extended its temporary restraining order by granting a preliminary injunction against Phase 3 of the Sandy Valley Exploration Project that would explore for lithium on BLM land surrounding a hot springs the Tribe holds sacred.

“Lithium exploration is an important public interest at a time when the United States is striving to transition to renewable sources of energy. …  However, this interest does not outweigh the potential damage the Phase 3 drilling project may cause to Ha’Kamwe’, which is central to the Hualapai Tribe life-way.  Nor does it permit a federal agency to short-cut its regulatory consultation obligations or reasoned evaluation of the effects of its undertaking.”

The court found likely violations of the National Historic Preservation Act and NEPA’s requirements for a “hard look” at effects on groundwater and range of alternatives.  The article includes a link to the opinion.

• Oregon BLM timber sale

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

On November 19, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands and Oregon Wild filed a lawsuit against the BLM’s Last Chance Timber Sale, which would include commercial logging in “late-successional reserves” to promote the development of northern spotted owl habitat.  The complaint claims violation of FLPMA’s requirement for consistency with the resource management plan and that the EA violates NEPA for failing to disclose various effects.  Here’s a short article.

ENDANGERED SPECIES

• Barred owl shooting

New lawsuit:  Animal Wellness Action v. U. S. Fish and Wildlife Service (W.D. Washington)

On October 31, Animal Wellness Action and the Center for a Humane Economy filed a  lawsuit in U.S. District Court in Washington state challenging a plan by the U.S. Fish and Wildlife Service to kill as many as 450,000 barred owls over the next 30 years.  They allege violations of NEPA with regard to the impacts and range of alternatives.

New lawsuit:  Friends of Animals v. Morrison (D. Oregon)

On November 19, Friends of Animals filed a similar lawsuit in the District of Oregon.  These plaintiffs disagree with viewing the barred owl is an invasive species.  This release from the plaintiffs includes a link to their complaint.

• Montana/Wildlife Services grizzly bear agreement

Court decision in WildEarth Guardians v. Bucknall (D. Montana)

On November 7, the district court held that, “plaintiffs are correct that the [environmental assessment] failed to take a ‘hard look’ at the effects of Montana’s predator damage and conflict management on grizzly bears and an [environmental impact statement] is required.”  However, the court permitted grizzly bears to be killed while Wildlife Services prepares an EIS for its Montana program within two years.  Plaintiffs want them to address the effect on connectivity between recovery zones.  The article includes a link to the opinion.

OTHER

• Cumberland Island feral horses

Court decision in Horses of Cumberland Island v. Haaland (N.D. Georgia)

On November 8, the district court dismissed a case seeking removal of feral horses from Cumberland Island National Seashore because for the wellbeing of the horses and the ecosystem.  The court found no agency action that could be reviewed.

• Trump Administration litigation

It’s not too soon to start thinking about this – here’s one forecast: “The second Trump administration’s federal lands agenda is widely expected to promote fossil fuels development and reverse Biden administration conservation efforts, moves environmental groups say they’ll litigate at every opportunity.”

FOREST SERVICE

• Eastside Screens amendment

Appeal dropped in Blue Mountains Biodiversity Project v. Trulock (D. Or.)

The government’s appeal of the district court’s decision to keep the 21” diameter limit in eastern Oregon and Washington in place, discussed here, has apparently been dropped.  (I don’t have any documentation confirming this).

• Humboldt-Toiyabe NF horse sterilization plan

Court decision in Front Range Equine Rescue v. Vilsack (D. D.C.)

On October 11, the district court dismissed a challenge to a herd management plan on the Humboldt-Toiyabe National Forest, ruling the plaintiff organization didn’t have standing to sue because it hadn’t shown how the Forest Service and BLM decisions to use surgical sterilization impaired the plaintiff in its efforts to protect the species.

• Beaverhead-Deerlodge NF grazing

Court decision in Cottonwood Environmental Law Center v. Olson (9^th Circuit)

On October 25, the circuit court affirmed the district court’s dismissal of this case involving seven sheep-grazing allotments on the Beaverhead-Deerlodge National Forest.  The court found that issues raised by plaintiffs should have been raised in a prior lawsuit on the same allotments, and that alleged new information about domestic and bighorn sheep contact was not specific enough to warrant additional NEPA procedures.

BLM

• Oregon BLM wild horse gathering

New lawsuit:  Oregon Wild Horse Organization v. U. S. Department of the Interior (D. Oregon)

On October 1, Oregon Wild Horse Organization, Central Oregon Wild Horse Coalition and Western Watersheds Project sued the BLM over its plan to gather and reduce two herds of horses in southeast Oregon without first considering whether privately-owned livestock operations are to blame for degraded conditions.  The news release includes a link to the complaint, which alleges violations of NEPA, FLPMA and the Wild Free-Roaming Horses and Burros Act.

• Nevada BLM geothermal development

Settlement in Burning Man Project v. U. S. Department of the Interior (D. Nevada)

On October 7, plaintiffs announced settlement of their litigation against the BLM’s approval of the Gerlach Geothermal Exploration Project.  Under the terms of the agreement, Burning Man will buy back drilling leases issued by BLM to Ormat Technologies, and the exploratory drilling project will be canceled in an area that would be managed as a conservation area.  Development could continue outside of this area.  The original complaint, filed April 2023, is here.

• California BLM OHV plan

Court decision in Center for Biological Diversity v. Culver (N.D. California)

On October 15, the district court reversed BLM’s approval of land management plans that designate route networks for off-highway vehicles for 3.1 million acres in the Western Mojave Desert, a second iteration of plans that have been litigated since 2006.  The court found that the BLM failed to show how designating thousands of routes for off-road vehicles in critical desert tortoise habitat and conservation areas “aligns with the objective of minimizing impacts to this threatened species,” as required by BLM’s regulations pertaining to designation of OHV routes.  The court held that, “the 2019 OHV route network does not comply with the minimization criteria because the record does not affirmatively demonstrate how the BLM designated OHV routes with the objective of minimizing impacts on the desert tortoise, the Lane Mountain milk-vetch, and other resources, and because the BLM improperly relied on optional, post-designation “mitigation” measures to satisfy its obligation to designate OHV routes that complied with the regulatory criteria.”  The court upheld BLM’s NEPA procedures.  (The article includes a link to the opinion.)

ENDANGERED SPECIES

• Colorado wolves

Court decision in Colorado Conservation Alliance v. U. S. Fish and Wildlife Service (D. Colorado)

On October 10, the district court dismissed three claims against the State of Colorado’s actions related to the capture and release of gray wolves in Colorado.  Plaintiffs represent agricultural, and outdoor recreational interests, while conservation groups intervened as defendants on these claims.  The court dismissed a claim that NEPA applied because the reintroduction is primarily a state-led effort with limited federal involvement.  It dismissed an ESA claim related to taking wolves from Oregon and found no standing to sue over effects on Mexican wolves because plaintiffs had not shown that would harm their interests.  The opinion is here. A claim by conservation groups as plaintiffs remains pending.

OTHER

• Utah lithium project

New lawsuit

On October 15, Living Rivers, the Great Basin Water Network, a river guide and water rights holders filed a lawsuit in Utah’s Seventh Judicial District Court, seeking to overturn a decision by Utah’s Office of the State Engineer granting access to groundwater for the Green River Lithium Project.  The BLM had previously noted that the applicant had not yet sought a permit for the use of federal land.  The Bureau of Reclamation is concerned about protecting its water supply.

• Oregon state lands and school funding

Court decision in Jewell School District vs Mukumoto (Clatsop County Circuit Court)

On October 22, the county court dismissed a challenge by a school district to the adoption of the Western Oregon State Forest Habitat Conservation Plan, a decision by the Oregon Department of Forestry that would reduce the amount of timber harvest on State Trust Lands that provides funding to the school district.  The court found that it could not grant relief that would necessarily provide additional funding to the school district.  The article includes a link to the opinion.

• California housing development

Court decision in California v. County of Lake (California appeals court)

On October 23, the California court of appeals vacated Lake County’s analysis of impacts from a proposed 16,000-acre wine country property development.  The court found that the single paragraph in the environmental impact report required by the California Environmental Quality Act did not adequately analyze wildfire risks.  The article includes a link to the opinion.  According to plaintiffs, “This is the first time a California appeals court has set aside an environmental review because the agency failed to look at wildfire ignition risk. This ruling is a clear signal to those who continue to push for building low-density development in California’s wildfire-prone areas.”

• Supreme Court

There’s some additional interest in Seven County Infrastructure Coalition v. Eagle County, Colorado, the case involving a railroad through the Uinta National Forest that the Supreme Court has accepted for review this term.  Following critiques of other Supreme Court justices for conflicts of interest, Justice Gorsuch is now being asked to recuse himself because of his prior association with Philip Anschutz, the owner of a company that would benefit “heavily” from construction of the railroad (heavily enough to file an amicus brief).  Gorsuch served as counsel to Anschutz and his companies in the early 2000s, has detailed annual hunting retreats on Anschutz’s estates and bought an investment property with Anschutz business associates.  The Supreme Court will hear this case on December 10.

FOREST SERVICE

• Fremont-Winema NF logging projects

Court decision in Oregon Wild v. U. S. Forest Service (9^th Cir.)

On September 25, the circuit court affirmed the district court’s decision that the Freemont-Winema National Forest had correctly applied a categorical exclusion to three logging projects because it was not subject to any acreage limitation.  However, the circuit court reversed and remanded the lower court’s dismissal of a claim that the CE had been improperly adopted.  The article includes a link to the complaint.  We have previously discussed this opinion here.

• Ozark NF restoration project

Court decision in Buffalo River Alliance v. U. S. Forest Service (W.D. Arkansas)

On September 30, the district court upheld NEPA compliance in an EA for the Roberts Gap Project, immediately upstream from the Buffalo National River, on the Ozark National Forest.  The Project includes regeneration harvest, thinning, burning and herbicide use in an effort to restore more open forest.

The court credited the EA for “tiering” to the forest plan EIS discussion of effects on the Buffalo National River and herbicide use in karst topography based on the Project’s compliance with forest plan standards.  It similarly accepted tiering to a forest plan amendment for Indiana bats, which were discovered on the national forest after the project decision was made, but which had been anticipated.  NEPA did not require additional public comment opportunities for this new information, or for protective measures that were added to the project after completion of the NEPA process.  The court quoted a prior case: “a reduction in the environmental impact is less likely to be considered a substantial change relevant to environmental concerns than would be an increase in the environmental impact.”  The court also held that an EIS was not required.

BLM

• Nevada BLM wild horses

Court decision in Leigh v. U. S. Department of the Interior (D. Nevada)

On September 23, in response to litigation following a specific wild horse “gather,” the district court held that BLM must be compelled to prepare a herd management area plan (HMAP) in one year for the Blue Wing Complex of five wild horse herd units, but that the agency did not violate NEPA, and that summary judgment is not appropriate as to First Amendment claims.  The latter claims, which would go to trial, involve BLM’s restrictions on public access to post-gather holding facilities.  While there is no firm deadline for preparing HMAPs under the Wild Free-Roaming Horses and Burros Act, in this case the BLM had unreasonably delayed it (under the Administrative Procedure Act) for 38 years.

• Oregon BLM logging project

New lawsuit:  Cascadia Wildlands v. U. S. Bureau of Land Management (D. Oregon)

On September 27, Cascadia Wildlands and Oregon Wild sued the BLM over the Roseburg District’s Blue and Gold logging project.  “Not only will this logging permanently remove unique old-growth habitat relied upon by federally protected species, but the conversion of these areas into plantations will eliminate carbon stores and exacerbate wildfire risk and hazard in the region,” the complaint said.  The press release said that the BLM misrepresented the age of targeted forests and removed biologists from oversight roles.  The project would allegedly violate the resource management plan, and therefore FLPMA, especially regarding northern spotted owls and marbled murrelets, and plaintiffs said the BLM should have prepared an EIS.  The press release includes a link to the complaint.

• Alaska BLM gold mine

Court decision in Orutsararmiut Native Council v. U. S. Army Corps of Engineers (D. Alaska)

On September 30, the district court ruled that the Corps of Engineers, who granted a permit needed under the Clean Water Act to build the Donlin Gold Mine, failed to properly consider the risks of a dam failure and catastrophic release of mine waste in their EIS.  While it discussed the risk of a dam failure, it did not consider its effects.  The BLM, a cooperating agency, had granted a right-of-way across its land to the privately owned mine site, and the court reversed the analysis for its permit under ANILCA for the same reason.  The court ordered supplemental briefing on the remedy.  The article includes a link to the complaint.

ENDANGERED SPECIES

•  Francis Marion NF WUI development

Preliminary injunction denied in South Carolina Coastal Conservation League v. U. S. Army Corps of Engineers (D. South Carolina)

On September 19, the district court upheld a decision by the Corps of Engineers to grant a Clean Water Act permit to fill wetlands for a housing development near the Francis Marion National Forest.  Plaintiff’s claims included failure to properly consider the effects on the national forest related to Indiana bats, red-cockaded woodpeckers and prescribed burning.  The FWS Biological Opinion supported a decision to not include the national forest in the effects action area and showed minimal effects of the development on these species.  For the woodpeckers, the BiOp stated that, “[t]he FMNF population is not dependent on the Action Area population.”  With regard to prescribed burning, the court concluded that the federal agencies involved, “coordinated with the USFS to analyze the ability of FMNF to continue conducting prescribed fires on FMNF” and “anticipated that FMNF can continue to conduct prescribed fires as planned even with the proposed development in regard to smoke management.”

• Gualala Redwood logging

Court decision in Friends of Gualala River v. Gualala Redwood Timber (9^th Cir.)

On September 30, the circuit court determined that the claim of illegal “taking” of several endangered species by the defendants was moot:  “Appellants brought their suit under section 9, not section 7. Section 9 does not authorize the Court to impose mitigation measures on a private party in an ESA case. Rather, it allows only injunctive relief, which Appellants failed to receive in the district court and have not appealed here.”

• Washington salmon hatcheries

Settlement of Wild Fish Conservancy v. National Marine Fisheries Service (W.D. Washington)

The Washington Department of Fish & Wildlife is closing two southwest Washington hatchery programs and lowering releases at another to settle this case (among other more procedural agreements).  Wild Fish Conservancy Northwest and The Conservation Angler had sued NMFS and Washington State agencies in April over Lower Columbia River hatcheries allowing returning hatchery salmon to spawn with wild fish listed as threatened or endangered at levels that violate standards in a prior Biological Opinion.  Hatcheries are viewed as one of the factors that contribute to the declining status of wild migratory salmonids in streams on national forests where their habitat requires protection.

OTHER

• Gas pipeline

Court decision in New Jersey Conservation Foundation v. FERC (D.C. Cir.)

On July 30, the circuit court vacated the Federal Energy Regulatory Commission’s order approving Transcontinental Gas Pipe Line Company’s Regional Energy Access Expansion Project. This project involves the construction and operation of approximately 36.1 miles of new natural gas pipeline facilities associated with a pipeline running through New Jersey, New York, Delaware, Maryland, and Pennsylvania.  The court found that FERC had violated the APA because it failed to explain why it did not make a significance determination regarding the environmental impact of the project’s greenhouse gas emissions.  The blog post includes a link to the opinion.

• California oak tree

New lawsuit:  Center for Biological Diversity v. City of Jurupa Valley (Riverside County, CA)

On October 4, the Center for Biological Diversity, the California Native Plant Society, Endangered Habitats League and Friends of Riverside’s Hills sued the City of Jurupa Valley in Riverside County Superior Court in California for approving an industrial, commercial and residential development approximately 500 feet from the Jurupa Oak, described as “Earth’s oldest living oak.” A Palmer’s oak, it’s a sprawling shrub reaching nearly 80 feet in length that is estimated to be 13,000 to 18,000 years old, and is considered the third oldest plant on earth.  Plaintiffs allege that the city’s environmental review for the project violated the California Environmental Quality Act by overlooking threats to the Jurupa Oak’s watershed, and other risks to the tree’s survival. The article includes a link to the complaint.

• Supreme Court overview

E &E News has provided (apparently not paywalled) this overview of the upcoming Supreme Court term, including cases that it has accepted and others where Supreme Court review has been sought (generally a low probability).  The former includes the NEPA challenge to the railroad through the Uinta National Forest (upheld by the circuit court).  The latter includes the Utah challenge to BLM lands and the Tonto National Forest copper mine proposed for a Native American sacred site.

FOREST SERVICE

• Tonto NF mine expansion

New lawsuit:  Grand Canyon Chapter of the Sierra Club v. Bosworth (D. Arizona)

On September 5, the Sierra Club and Maricopa Audubon Society sued the Forest Service and Fish and Wildlife Service for violating the National Environmental Policy Act and the Endangered Species Act in approving expanded operations at the Pinto Valley Mine, on the Tonto National Forest.  The mining would allegedly reduce flows to nearby Pinto Creek and destroy habitat for the western yellow-billed cuckoo and the southwestern willow flycatcher.  The complaint also alleges a violation of 36 CFR §228 (which implements the Forest Service’s Organic Act) by failing to protect fisheries and wildlife habitat, and using water without a state authorization.  (The press release includes a link to the complaint.)

• Bitterroot NF logging project

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

On September 9, Alliance for the Wild Rockies and Native Ecosystems Council filed a second lawsuit against the Gold Butterfly Project and associated forest plan amendments on the Bitterroot National Forest.  The original project was withdrawn four years ago (as described here).  The current lawsuit alleges violations of NEPA and revolves around excepting the project from forest plan requirements for old growth and elk, violating other forest plan requirements for elk, and inadequately addressing several other wildlife species and whitebark pine.  It also includes a claim that violating the forest plan is also a violation of the Healthy Forest Restoration Act’s requirement to be consistent with the forest plan.  The complaint is here.

• Bitterroot NF road building

Notice of Intent to Sue

On September 10, the law firm Earthjustice sent a notice of its intent to sue the Forest Service on behalf of Friends of the Bitterroot, Friends of the Clearwater, Native Ecosystems Council and WildEarth Guardians over its decision to amend the Bitterroot National Forest Plan to reduce its limitation on open road densities without complying with the Endangered Species Act for grizzly bears and bull trout.  (The article includes a link to the NOI.)

• Hoosier NF vegetation project

New lawsuit (again):  Monroe County Board of Commissioners v. U. S. Forest Service (S. D. Indiana)

On September 11, the County, Indiana Forest Alliance, Hoosier Environmental Council, and Friends of Lake Monroe filed a third lawsuit against the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, allegedly, “the single largest project to log and burn the Hoosier National Forest in its 89-year history.”  This court had previously found that an EA contained inadequate analysis of the effects on the water quality of the Lake Monroe watershed, a drinking water source, and similar NEPA claims have been raised again.  Plaintiffs ask the court to require an EIS.  (The article includes a link to the complaint.)

• Thunder Basin NG black-footed ferrets

Hearing in Western Watersheds Project v. Vilsack (10^th Cir.)

On September 23, environmental appellants argued to reverse a September 2023 district court decision that upheld a 2020 amendment to the Thunder Basin National Grassland’s land management plan that removed measures protecting prairie dogs from poisoning and recreational shooting.  They claim violations of NEPA and ESA’s duty to conserve the black-footed ferret.  (The article includes a link to their brief.)

BLM

• Wyoming BLM oil & gas drilling

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

On September 13, the district court enjoined he Converse County Oil and Gas Project, which would allow for 5,000 new oil and natural gas wells to be built across 1.5 million acres of brushland near the borders of Nebraska and South Dakota. The BLM acknowledged miscalculating the effects on local aquifers by a factor of 10,000; “the drastically higher specific storage value used by BLM may have resulted in ‘substantial underestimation’ of groundwater drawdown,” the judge wrote.  There will be further briefing on whether to vacate the decision.  (The article includes a link to the opinion.)

• Idaho BLM wind turbines

New lawsuits

The State of Idaho has recently filed two lawsuits against the Lava Ridge wind turbine project proposed for BLM lands.  They have asked the 9^th Circuit to find that the Federal Aviation Administration’s review of low-level flight hazards was inadequate.  The second suit was filed in federal district court for the District of Idaho, related to the FAA’s incomplete response to a Freedom of Information Act request regarding the “hazard” evaluations.

ENDANGERED SPECIES

•  Black-footed ferret reintroduction

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

On September 5, the district court determined that the regulation designating black-footed ferrets as a “nonessential” experimental population in Wyoming was proper under the ESA, that the designation does not include an improper subdelegation of the FWS’s statutory duties to the Wyoming Game and Fish Dept., and that the FWS complied with the requirements of NEPA with the EA it prepared when it adopted the rule.  A determination that the population is “nonessential” relaxes the ESA’s prohibitions on taking and the requirement that federal agencies engage in formal consultation with the FWS before taking an action that might affect the species.

• Malathion

New lawsuit:  Pesticide Action Network North America v. Williams (N.D. California)

On September 9, the Center for Biological Diversity, Center for Food Safety, and Pesticide Action Network North America sued the U.S. Fish and Wildlife Service for failing to adequately protect more than 1,500 species of wildlife and plants from the insecticide malathion.  They are challenging a 2022 biological opinion the FWS prepared for EPA’s registration of malathion which found no jeopardy to any of the species.  Malathion is used in Forest Service programs to control insect pests in pine seed orchards and to control mosquitoes on lands managed by the Forest Service.  (The news release has a link to the complaint.)

• Gray wolf delisting

Government appeal in Defenders of Wildlife v. U. S. Fish and Wildlife Service (9^th Circuit)

On September 13, the Biden Administration endorsed the Trump Administration’s attempt to delist the gray wolf by filing an appeal of a district court decision that reinstated Endangered Species Act protections for gray wolves across most of the U.S.  According to the government brief, “At its core, this appeal is about whether the purpose of the ESA is to recover endangered and threatened species to the point where they are no longer in danger of extinction, or whether it goes beyond that objective to require that a species be restored to its historical range before delisting.”  (The article includes a link to the brief.)

It’s worth noting that the government is pursuing national delisting (based on recovery) in advance of its planned national recovery plan for gray wolves, which it announced on February 2.  (That announcement coincided with a decision to not relist the Northern Rocky Mountain region gray wolf, which has garnered at least three lawsuits.)

New lawsuit:  U. S. Sportsmen’s Alliance Foundation v. Haaland (W.D. Michigan)

Meanwhile, on September 9, the U. S. Sportsmen’s Alliance Foundation, Michigan Bear Hunters Association, Upper Peninsula Bear Houndsmen Association, and Wisconsin Bear Hunters Association filed a lawsuit against the Fish and Wildlife Service for failing to respond to two petitions they submitted to remove ESA protections from gray wolves.  One seeks delisting of gray wolves in the western Great Lakes states of Michigan, Wisconsin and Minnesota, plus areas in adjoining states.  The other seeks to downgrade partially recovered and rapidly growing West Coast wolf populations in western Washington, western Oregon and California from endangered to threatened, while continuing to protect wolves in the lower 48 states that are not part of an established population group.  (Even if the species as a whole were delisted, it may be possible to list “distinct population segments” under ESA.)  (The article includes a link to the complaint.)

• Glacier NP bull trout introduction

New lawsuit:  Friends of the Wild Swan v. Hammond (D. Montana)

On September 16, Friends of the Wild Swan and Council on Wildlife and Fish sued the National Park Service and the Fish and Wildlife Service over plans to introduce an “experimental population” of bull trout into an alpine lake in Glacier National Park that was historically fishless.  The complaint alleges the agencies violated NEPA and ESA because they failed to properly consider the consequences of collecting bull trout from their native habitat, and conditions that changed over the course of the project.  ESA also requires specific procedures to permit populations outside of a species’ native range that were allegedly not followed.  (The article includes a link to the complaint.)

Meanwhile, on September 13, the Fish and Wildlife Service completed the five-year review of bull trout status required by ESA, and determined that listing as a threatened species is still warranted due to remaining threats, such as “climate impacts, past and current habitat threats, and expanding distribution of non-native fishes.”

• Apache trout 

Delisting

On September 4, the U. S. Fish and Wildlife Service announced that after more than five decades of recovery efforts by federal, state and Tribal partners, and with $5.1 million from President Biden’s Investing in America agenda, the Apache trout is being removed from the federal list of threatened species. It is the first sportfish and the first trout delisted due to recovery.  It is found on the Apache-Sitgreaves National Forest, and the Forest Service will continue to be part of the 2021 Apache Trout Cooperative Management Plan (with shared responsibilities by the Arizona Game and Fish Department, White Mountain Apache Tribe, U.S. Fish and Wildlife Service, and Trout Unlimited), which “provides for long-term management when delisted to maintain a recovered status while providing sportfishing opportunities for the citizens of Arizona,” according to the State.   Apache trout were originally listed because of “watershed alterations related primarily to forestry, livestock grazing, reservoir construction, agriculture, road construction, and mining” according to the species recovery plan.  

FOREST SERVICE

Most Endangered Species Act litigation against the Forest Service is about the consultation process and the substantive jeopardy and critical habitat requirements of ESA (§7(a)(2)).  Another requirement is found in §7(a)(1), which imposes a duty on federal agencies to “utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species.”  There is a logical link between recovery plans for listed species, forest plans for national forests and “programs” for species conservation.  This has not shown up in any earlier Forest Service court cases that I can remember, but here it is twice in the last month – the first two cases below.

• Coronado NF road construction/opening

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

On August 19, the Center for Biological Diversity, Chiricahua Regional Council, Natural Allies, Wild Arizona, and Conservation CATalyst sued the Coronado National Forest over its proposal to build three miles of new road for recreational access to 20 miles of forest roads that are currently closed.  The lawsuit says the Forest Service and the U.S. Fish and Wildlife Service violated the Endangered Species Act by failing to comply with jaguar and spotted owl recovery plans, as well as violating the forest plan.  Regarding recovery plans,  which are generally considered to be non-mandatory, the complaint says this:

“First, the Coronado Forest Plan provides that “[a]ctivities occurring within federally listed species habitat should apply habitat management objectives and species protection measures from approved recovery plans.”

“Because the recovery plan for the jaguar represents the only existing program for the conservation and recovery of jaguars, the Forest Service violated its affirmative duties under Section 7(a)(1) of the ESA by failing to carry out programs for the conservation of the jaguar.”

The press release includes a link to the complaint.

• Tonto NF wild horse cost-sharing plan

Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Arizona)

On August 26, the district court dismissed plaintiff’s claims that the agency’s cost-sharing agreement with the Arizona Department of Agriculture to partially fund a position related to wild horse management violated NEPA and ESA because of the effects of an overpopulation of horses.  The court found, “Plaintiffs have not pointed to any evidence that the AZDA would have altered any aspect of its horse management in light of a discontinuation or alteration to conditions of funding,” and it therefore dismissed claims of NEPA violations and failure to consult under ESA.

Plaintiffs also alleged violations of Section 7(a)(1) of ESA regarding conservation of the yellow-billed cuckoo, southwestern flycatcher, and Yuma Ridgway’s rail.  The Forest Service relied on its forest plan for the Tonto National Forest, and the ESA §7(a)(2) consultation on that, where the FWS opined that the plan “was likely to result in net beneficial effects to federally listed species in the Tonto National Forest.”  The court determined that “a plan placing affirmative constraints on future projects ‘counts’ under Section 7(a)(1),” and that the Tonto forest plan did so and the Forest had complied with ESA.

(I have always thought that a forest plan, especially its mandatory standards, should be evaluated against the requirements of Section 7(a)(1)) (and recovery plans).  Dismissal of this claim here is also an example of how consulting on forest plans can benefit the Forest Service, and an argument against (Cottonwood) legislation that would eliminate it.)

• Kaibab NF cow on the road

Court decision in Parthasarathi v. U. S. A. (D. Arizona)

On August 22, the district court found that the discretionary-function exception in the Federal Tort Claims act protected the Kaibab National Forest from liability for consequences of an auto accident caused by a cow (under a grazing permit) on a highway.  The Forest Service was under no obligation to construct a fence to keep cows off the highway, despite its prior NEPA decision to authorize one.  Its failure to build a fence and rejection of the state’s proposal to do so qualified for the exception because it, “balanced environmental costs with public safety and determined that the need to protect the natural state of the land outweighed the need to build a right-of-way fence.”

• Flathead NF revised forest plan

Swan View Coalition v. Haaland appealed

On August 27, the federal government appealed the adverse district court decision on the Flathead National Forest revised forest plan to the 9th Circuit Court of Appeals.  This case involves evaluation of effects of roads on grizzly bears and bull trout, and was discussed here.

• Shasta-Trinity NF logging project

New lawsuit:  Klamath Forest Alliance v. U. S. Fish and Wildlife Service (E. D. California)

On August 28, Klamath Forest Alliance, Conservation Congress, Environmental Protection Information Center and Shasta Bioregional Ecology Center challenged the South Fork Sacramento Public Safety and Forest Restoration Project on the Shasta-Trinity National Forest.  They allege that the Project’s logging activities would violate the ESA because they would diminish the likelihood of the northern spotted owl’s survival and recovery.  According to the complaint, “The FWS concluded that such activities would take up to 12 owls from two of the longest occupied territories in a 2.5-million-acre area—including two reproductively successful owl pairs and multiple years of offspring.”

• Idaho water rights laws

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

On August 28, the federal district court agreed with the federal government that state requirements that the federal government own cattle in order to acquire water rights for livestock use violated the Supremacy Clause of the U. S. Constitution.  However, the court agreed that the federal government should be subject to Idaho’s forfeiture-related laws if it fails to use its water rights.  The article includes a link to the court’s decision and order.

• Monongahela NF timber trespass

New lawsuit

A federal lawsuit has been filed against a West Virginia logger and his logging company for trespassing and harvesting timber in Monongahela National Forest.  While logging on adjacent private land, the loggers allegedly encroached on nearly 10 acres of national forest lands.

• Black Hills NF discrimination case

A federal judge recently denied the federal government’s request to reconsider a case decided by a jury a year ago that awarded damages to a Black Hills NF district ranger for gender discrimination.  The employee alleged in her lawsuit that she had been subjected to a hostile work environment, excluded from working on special assignments given to male colleagues, excluded from management’s communications with male colleagues, subjected to a verbal threat, and had her ideas routinely dismissed in meetings by male managers. She was ultimately reassigned to another unit in position with decreased authority and duties.  (The article includes a link to an earlier article that provides more details.0

BLM

• Wyoming BLM wild horse reduction

Court decision in American Wild Horse Campaign v. Stone-Manning (D. Wyoming)

On August 14, the district court approved amendments to BLM’s Green River and Rawlins resource management plans, which would enable the agency to remove two wild horse herds, significantly scale back a third and leave a fourth area intact.  BLM approved the plan last year following a legal settlement with the Rock Springs Grazing Association, which had sued BLM demanding that the bureau remove hundreds of wild horses that were grazing on its property within a roughly 2-million-acre federal grazing allotment in southern Wyoming in a checkerboard pattern of land ownership. “Ultimately, however, the Court finds that each contention fails for either conflating the [BLM’s Resource Management Plan amendment] with a removal decision, misconstruing BLM’s obligations, or [because it is] contradicted by the record,” the judge wrote.  The article includes a link to the opinion.  Plaintiffs have appealed it to the 10^th Circuit.

• Arizona BLM lithium mine

TRO in Hualapai Indian Tribe v. Haaland  (D. Arizona)

On August 19, the district court granted a temporary restraining order against exploratory drilling for lithium on BLM land near the tribe’s sacred spring, as described here.  The court found it likely that BLM violated NEPA and the National Historic Preservation Act.  The article includes a link to the 2-page order.

• New Mexico BLM dolomite mine

Court decision in Friends of the Floridas v. U. S. Bureau of Land Management (D. New Mexico)

On August 27, the district court upheld the proposed American Magnesium Foothill Dolomite Mine Project in Luna County, New Mexico against multiple claims of NEPA and FLPMA violations by the BLM.  However, it found that the BLM had not taken the NEPA-mandated “hard look” at the water quality impacts arising from magnesium sludge at the off-site processing mill.  The court remanded the case without vacatur for further analysis.  The article includes a link to the opinion.

• Utah BLM oil and gas leases

New lawsuit:  Southern Utah Wilderness Alliance v. U. S. Department of the Interior (D. D.C.)

On August 28, the Southern Utah Wilderness Alliance filed a lawsuit against a May decision by the BLM to reaffirm 35 oil and gas leases originally proposed by the Trump Administration in the San Rafael Desert in south-central Utah, including one in what later became the Labyrinth Canyon Wilderness.  The review was the result of a settlement of a prior lawsuit.  In addition to NEPA claims, the new lawsuit challenges BLM’s failure to provide a reasoned explanation for its decision to reverse course and not prepare oil and gas planning and analysis for the San Rafael Desert, which the BLM had previously deemed a necessary prerequisite before authorizing future leasing and development in this area.  The article includes a link to the complaint.

OTHER

• Montana Fish Wildlife and Parks conservation easements

New lawsuit

On August 12, WRH Nevada Properties, backed by Gallatin Gateway-based Citizens for Balanced Use filed a lawsuit to stop the state of Montana from approving a conservation easement that would prohibit development (but allow logging and public access) on almost 33,000 acres of land owned by Green Diamond Resource Company in northwestern Montana.  The Forest Service had pledged $20 million from its Forest Legacy Program.  WRH owns mineral rights on about half of the land.  They say that the Montana Environmental Policy Act process was not followed appropriately, and that the underlying authorities for the state’s Forest Legacy program are not statutorily authorized.

• Minnesota lynx consent decree

Court decision in Center for Biological Diversity v. Strommen (8^th Cir.)

On August 14, the 8^th Circuit Court of Appeals agreed with the district court that a consent decree which requires Minnesota to take additional steps to comply with the Endangered Species Act and protect Canada lynx was fair and reasonable, even though a coalition of trappers who intervened in the lawsuit disagrees.  The decree required Minnesota to put “additional restrictions” on snare and foothold traps in a Lynx Management Zone within 40 days “[b]y whatever regulatory means are necessary, including expedited emergency rulemaking.”  Minnesota allows shortcutting the public rulemaking process when urgent circumstances warrant it, and the court agreed that this situation would qualify.  The court also pointed out that, “nothing prevents (trappers) from challenging the validity of the new regulations in a separate state-court action.”

• San Pedro River water rights

New lawsuit:  Center for Biological Diversity v. Hobbs (Maricopa County Superior Court)

On August 15, the Center for Biological Diversity, San Pedro 100, and Robin Silver sued the governor of Arizona and the Arizona Department of Water Resources over its decision to approve a guaranteed water certificate for a 7,000-home development project that would affect the San Pedro Riparian National Conservation Area on BLM lands.  They claim that the BLM has prior federal reserved water rights that have not been accounted for in the process, and seek to revoke the permit because it would infringe on those rights.  (The BLM had objected earlier in the process, but is not involved in this lawsuit.)

• Montana trapping and grizzly bears

Summary judgment denied in Flathead-Lolo-Bitterroot Citizen Task Force v. Montana (D. Montana)

On August 28, the district court determined that this case must go to trial after continued disputes over expert witnesses.  Plaintiffs challenge the State’s authorization of recreational trapping and snaring for wolves and coyotes, alleging that future take of grizzly bears in legal wolf and coyote traps is reasonably certain to occur under the State’s regulatory scheme.  The court concluded:  “Because the parties dispute most of the material facts related to the evidence regarding when and where grizzly bears are likely to be out of their dens and the impact the State’s regulations have on grizzly bears, (see Doc. 68), those facts must be established at trial.”