Jon Haber

Public lands litigation notes – May 2022

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Since we’re featuring the Kootenai National Forest here, a clearcut (at least that’s what the public would call it) near the OLY project on that Forest. (Randy Beacham photo)

 

Links provide more information

On April 19, the Council on Environmental Quality finalized the first of two phases of rulemaking to replace the Trump administration’s 2020 rewrite of NEPA procedures. The Phase I Regulations address three primary issues: (1) how to prepare a purpose and need statement in NEPA documentation; (2) the scope of agency-specific NEPA implementation regulations; and (3) the definition of “effects” and “cumulative impacts.”  (The article includes a link to the new rule.)  The second phase is expected to be broader.  Five lawsuits currently pending on the Trump rule will continue.  Litigation also continues against the Forest Service NEPA regulations adopted in 2020.

On May 5, eight conservation groups notified the Custer Gallatin National Forest and the U. S. Fish and Wildlife Service of their intent to sue over the East Paradise Range Allotment Management Plan, which authorized grazing on three of the six allotments described in the plan.  The notice states that the agencies failed to take a “hard look” at the plan’s impacts on grizzly bears in the Greater Yellowstone Ecosystem.

Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (9th Cir.)

On May 12, the 9th Circuit affirmed the district court of Arizona’s decision that the Forest Service acted arbitrarily and capriciously in approving the plan of operations for the Rosemont Copper Mine on the Coronado National Forest based on its misunderstanding of Section 612 of the Surface Resources and Multiple Use Act of 1955, and on its incorrect assumption that Rosemont’s mining claims are valid under the 1812 Mining Law.  (This article provides additional information.)  The Copper World Mine on adjacent private land is proceeding.

Court decision in Desert Survivors v. U. S. D. I. (N.D. Cal.)

On May 16, the district court overturned the U.S. Fish and Wildlife Service’s withdrawal of a proposed Endangered Species Act listing and section 4(d) rule for the “bi-state population” of the greater sage grouse found along the California-Nevada border (including the Humboldt-Toiyabe National Forest).  The court held that the agency failed to adequately explain their determination that the species did not warrant listing based on the available science.  The court reinstated the 2013 proposal to list the species as threatened and required a new listing decision.  (The article includes a link to the opinion.)

New case:  Friends of the Flathead River v. U. S. Forest Service (D. Mont.)

On May 16, a newly founded nonprofit filed a suit claiming the Flathead National Forest is violating the Wild and Scenic Rivers Act, the Forest Service Organic Act and the Administrative Procedure Act by not updating a 1985 comprehensive management plan for the Wild and Scenic River to better manage heavy use.

New case:  Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On May 17, five conservation groups filed suit against the Knotty Pine timber project on the Kootenai National Forest.  The project would include roughly 3,000 acres of commercial logging as well 40 miles of road maintenance and road building.  Plaintiffs allege violation of forest plan requirements to provide habitat security for grizzly bears.  (An ESA claim may be added.)  (A link to the complaint is at the end of this article.)

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

On May 17, the district court upheld the Upper Green River Area Rangeland Project’s approval of continued livestock grazing on six allotments on the Bridger-Teton National Forest.  The court held that the Forest Service and Fish and Wildlife Service properly determined that 72 grizzlies could be taken as a result of grazing conflicts within 10 years without specific guidelines for age and sex.  (Note:  the characterization of incidental take as being a “threat” to these bears is not inappropriate as suggested here.)

Court decision in Citizens for a Healthy Community v. U. S. Department of the Interior (D. Colo.)

On May 19, the district court remanded a master development plan for oil and gas development in Colorado’s North Fork Valley.  The court said the BLM and Forest Service had admitted that they did not comply with recent executive orders and other rulings that they must weigh any proposal’s contributions to greenhouse gases and climate change.  (Additional background is in this article.)

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

On May 24, the U. S. Fish and Wildlife Service agreed to reconsider its decision in 2019 to reverse itself and not list the red tree vole under the Endangered Species Act.  The voles are found in old-growth forests on the Oregon coast.  (A link to the original complaint may be found here.)

Court decision in Public Employees for Environmental Responsibility v. National Park Service (D. D.C.)

On May 24, the district court found that the Park Service had failed to comply with NEPA when it authorized e-bikes to travel on trails and roads used by conventional bicycles without preparing an EIS or EA.  However, the judge did not block their use pending NEPA compliance.  (The article includes a link to the opinion.)

On May 24, The Xerces Society and Center for Biological Diversity filed a notice of intent to sue the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service for failing to properly consider harms to endangered species caused by insecticide spraying across western grasslands.  The most popular insecticide, diflubenzuron, is used to control gypsy moths and pine beetles, as well as grasshoppers on rangelands.  There are more than 230 listed species in the 17 states encompassing the spraying and legal challenge, ranging from bull trout to sage grouse. In Oregon, the federal government is accepting bids to spray 30,000 acres of public lands.

Court decision in Alliance for the Wild Rockies v. Gassman (D. Mont.)

On May 25, the district court enjoined the Ripley timber project (including 10,854 acres of commercial logging and 238 acres of clearcutting), on the Kootenai National Forest in a lawsuit filed by the Alliance for the Wild Rockies for failing to adequately consider the effects of associated roads on grizzly bears. There would be 13 miles of permanent roads and six miles of temporary roads, as well as maintenance or reconstruction on 93 miles of existing roads.

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

On May 26, the district court vacated the U. S. Fish and Wildlife Service’s 2020 withdrawal of a proposed rule to list wolverines as threatened or endangered.  In November, 2021, the FWS had filed a motion for voluntary remand of the withdrawal without vacatur.  Vacating the 2020 decision means the prior proposed listing rule is in effect, and wolverines receive ESA protections as a proposed species; the agency has 18 months to submit a new listing decision.  (There is a link to the opinion on this web page.)

New case:  Swan View Coalition v. Haaland (D. Mont.)

On May 31, plaintiffs filed a complaint against the U. S. Fish and Wildlife Service for failing to properly re-evaluate the effects of the Flathead National Forest’s revised land management plan on grizzly bears and bull trout.  The re-evaluation was required by the district court in its June 2021 decision discussed here and pertains to changes in road management.  (The article includes a link to the complaint.)

 

Public lands endangered species news

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50TH! anniversary in 2023

 

Links provide additional information.

COURT CASES

On April 15, the Tenth Circuit Court of Appeals affirmed the district court and upheld the designation of critical habitat for the New Mexico meadow jumping mouse, which is found in dense riparian vegetation in the southwest.  Plaintiffs were federal grazing permittees.  The court was largely deferential to the Service’s consideration of economic impacts and the benefits of excluding some areas that it had decided to include.  (The opinion in Northern New Mexico Stockman’s Association v. U. S. Fish and Wildlife Service is here.)

On April 19, the Center for Biological Diversity moved to intervene as a defendant in a case filed in the District of Columbia district court on December 13, 2021 by the New Mexico Cattlegrowers’ Association against the U. S. Fish and Wildlife Service for denying their petition to delist the endangered southwestern willow flycatcher.  The species is found in riparian forests in the southwest, and has been the subject of litigation against cattle grazing on public lands.  Plaintiffs allege that the bird is not a valid subspecies that is eligible for listing.

On April 21, the Center for Biological Diversity filed a lawsuit against the U. S. Fish and Wildlife Service in the district court of Arizona for delaying a determination of whether to list the Suckley’s cuckoo bumblebee as threatened or endangered.  These parasitic pollinators were once common in prairies, meadows and grasslands across the western United States and Canada.  Suckley’s cuckoo bumblebees are threatened by declines in their host species, habitat degradation, overgrazing, pesticide use and climate change.  The survival of Suckley’s cuckoo bumblebees is dependent on the welfare of their primary host, western bumblebees, who have declined by 93%. The Center is also working to obtain Endangered Species Act protection for western bumblebees.

In response to three lawsuits brought by the Center for Biological Diversity, the U.S. Fish and Wildlife Service agreed to dates for decisions on whether 18 plants and animals from across the country warrant protection as endangered or threatened species under the Endangered Species Act. The Service will also consider identifying and protecting critical habitat for another nine species.  The species include the wide-ranging monarch butterfly and tri-colored bat, and two salamanders found on the Sequoia National Forest.

Another species is the eastern gopher tortoise, and the U.S. Fish and Wildlife Service will determine by Sept. 30 whether gopher tortoises in Florida, Georgia, South Carolina and eastern Alabama should be listed.  Gopher tortoises are already listed as threatened in Louisiana, Mississippi and western Alabama.  “The tortoises need large, unfragmented, long-leaf pine forests to survive,” the center said Tuesday in an announcement about the settlement. This lawsuit, which was filed last year in federal court in Washington, D.C., said the Fish and Wildlife Service found in 2011 that gopher tortoises merited listing because of threats “including habitat fragmentation and loss from agricultural and silvicultural practices inhospitable to the tortoise, urbanization, and the spread of invasive species.”  However, they were not given a high priority for listing by the agency.  (This article discusses the gopher tortoise.)

WildEarth Guardians and Wilderness Workshop have settled their lawsuit against the U. S. Fish and Wildlife Service for designating insufficient critical habitat for Canada lynx (leaving out parts of Montana) in 2014.  The reconsideration of critical habitat will occur by the end of 2024.  This comes after the Biden administration reversed a U.S. Fish and Wildlife Service decision to propose delisting the lynx in 2017 during the Trump administration. (Following that, another group of conservation organizations reached an agreement with the agency in November 2021 to write a draft recovery plan for lynx by the end of 2023.)

LISTING ACTIONS

On March 2, the U. S. Fish and Wildlife Service proposed designating two freshwater mussel species as threatened, and also proposed critical habitat.  The western fanshell is found on the Mark Twain and Ouachita national forests, and the Ouachita fanshell on the Ouachita.

Following litigation, on March 23, the U. S. Fish and Wildlife Service reversed its position and proposed to up-list the currently threatened northern long-eared bat to endangered status, primarily as a result of continued losses to the white nose syndrome disease.  The important change that will result is the removal of exceptions to incidental take requirements that are available for threatened species but not for those classified as endangered.  This will mean more involved consultation procedures for any actions that remove trees in the 38 eastern states in which the species is found.

On April 13, The Center for Biological Diversity and two other conservation organizations notified the U. S. Fish and Wildlife Service of their intent to sue for delaying a determination of whether the thick-leaf bladderpod should be listed under the Endangered Species Act.  This follows the failure of the BLM in southeastern Montana to act on its staff recommendations to close an area to mining to protect this species they classify as “sensitive” from potential gypsum mining.  Off-road vehicle use is also a factor.  (This news release has a link to the NOI).

On May 12, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue for delaying making listing decisions for 11 species.  One of these is the whitebark pine, found at high elevations in seven western states.  Two plants are threatened by cattle grazing in the southwest, and the slickspot peppergrass by grazing in southwest Idaho.  The sickle darter (a fish) is allegedly affected by logging near rivers in Tennessee and Virginia.

Congress agreed to again include in its fiscal year 2022 appropriations bill the rider that prohibits the U. S. Fish and Wildlife Service from listing sage-grouse under the Endangered Species Act.  This language has been included since 2014, allegedly as the result of oil and gas industry lobbying.  It became law on March 15.

OTHER WILDLIFE NEWS

On April 22, a county judge in Ventura County upheld two local ordinances that designate standards for development and require environmental reviews for projects that may hinder wildlife connectivity.  The ordinances help protect the wildlife corridors that connect the Los Padres National Forest, Santa Monica Mountains and Simi Hills.  Habitat connectivity is crucial for the survival of mountain lions, gray foxes, California red-legged frogs and other wildlife in the region, and the Forest Service participated in identifying the corridors.

The Shawnee National Forest has temporarily closed Service Road No. 345 to allow safe passage for many species of amphibians and snakes during a critical time of migration.

Opponents of conservation invoke NEPA

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Image: Scout Environmental

I have made several comments recently about situations that should not trigger NEPA procedures because they do not have adverse effects on the physical environment.  I became interested in this topic in 1986 when I noticed that development interests were arguing that forest plans adversely affected “community stability” (a euphemism for social and economic impacts), and this was being addressed as an “environmental” impact in NEPA documents.  Given that the goal of NEPA was better environmental protection, I could see how inferring that social and economic impacts of protecting the environment must be addressed through a NEPA process could lead to less environmental protection.

As an example of that actually happening, let’s talk about the proposal to conserve 30% of the nation’s lands (America the Beautiful/30 x 30).

Property rights advocate Margaret Byfield’s strategy for defeating the Biden administration’s aggressive conservation pledge comes with a twist: She wants landowners to embrace the nation’s bedrock environmental law.

Byfield, the executive director of American Stewards of Liberty — and daughter of the late E. Wayne Hage, an icon of the Sagebrush Rebellion II movement — sees the National Environmental Policy Act as a cudgel in her campaign to upend the “America the Beautiful” program.

But Byfield emphasized Friday that the strategy must also embrace NEPA, arguing the Biden administration has skirted its responsibility to execute “a programmatic” environmental review of its “America the Beautiful” plan.

“This is the environmentalists’ great law that they use as a weapon against productive agriculture and actually any kind of project,” Byfield said. “They use it to slow down and stop projects, they use it as a weapon.”

Byfield asserted that the Biden administration has skirted NEPA by moving forward without an environmental review.

“They also know if they do NEPA right, it’s going to take them three, maybe six, maybe nine, maybe 10 years to complete the study the way they make us do it. So why aren’t they living under the same laws they force us to follow?” she asked.

The obvious reason is that NEPA was not passed by Congress to protect “agriculture and actually any kind of project.”  The ASL seeks to turn NEPA on its head.  The interesting thing is that the Center for Biological Diversity did not mention this, instead stating that the President and executive orders are exempt from NEPA, and actually inferred that the future site-specific conservation actions could require NEPA procedures.

The law regarding application of NEPA to non-environmental consequences of environmental protection measures is less clear than it should be.  The Supreme Court framed this question in Metropolitan Edison Co. v. People Against Nuclear Energy in 1983

But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.

But, here’s a confusing discussion by the Ninth Circuit in the 2000 case of Kootenai Tribe of Idaho v. Veneman, which challenged the procedures used to adopt the Forest Service’s Roadless Area Conservation Act (the “Roadless Rule”).  (Other plaintiffs in this case were Boise Cascade Corporation, motorized recreation groups, livestock companies, and two Idaho counties.)  The Forest Service did not appeal the district court’s injunction of the Roadless Rule, but an appeal was filed by environmental intervenors, who argued that the Rule did not alter the natural physical environment and require an EIS under NEPA.

Under NEPA, a federal agency is required to prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (emphasis added). “Human environment,” in turn, is defined in NEPA’s implementing regulations as “the natural and physical environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14. See also Wetlands, 222 F.3d at 1105. The dispositive issue here is whether the Roadless Rule sufficiently affected the quality of the human environment to trigger the procedural requirements of NEPA.

We have explained that NEPA procedures do not apply to federal actions that maintain the environmental status quo. See Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116-17 (9th Cir.1981) (NEPA does not apply when an agency financed the purchase of an airport already built); Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343-1344 (9th Cir. 1995) (NEPA does not apply when agency transferred title to wetlands already used for grazing); Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1446 (9th Cir.1996) (closure of bicycle trails does not trigger EIS). In other words, “an EIS is not required in order to leave nature alone.” Douglas County, 48 F.3d at 1505 (citation and internal quotation marks omitted). The touchstone of the EIS requirement is whether the change in the status quo is “effected by humans.” Id. at 1506.

Because human intervention, in the form of forest management, has been part of the fabric of our national forests for so long, we conclude that, in the context of this unusual case, the reduction in human intervention that would result from the Roadless Rule actually does alter the environmental status quo.

This perverse rationale (for this “unusual” case) has no citations, and I think it is only justified by a desire to decide the case on the merits of the EIS (which it upheld) rather than on a procedural question.  Moreover, it ignores the additional requirement that the environmental status quo must be adversely affected (the term “adverse” is used many times in the CEQ NEPA regulations).  Here is a 2012 paper on “beneficial effects” under NEPA.  Its conclusion echoes my concern from 35 years ago (which has become a reality).

Third, the policies underlying NEPA are in tension with a Beneficial Impact EIS requirement. Such a requirement would produce unnecessary cost and delay for environmentally beneficial projects and create perverse incentives for federal agencies without any compensating informational benefits.

Agencies that are using NEPA to justify delaying environmental protection are probably not violating the words of NEPA, but clearly violate its spirit.  Moreover, anti-environmental plaintiffs should not be able use the courts to facilitate this violation.

Public Lands Litigation Update – April 2022

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Links in the headers are to documents or provide further links to them.

On February 28, the Center for Biological Diversity and the Maricopa Audubon Society notified the Forest Service and Fish and Wildlife Service of their intent to sue regarding ongoing grazing on the Coronado National Forest and a Biological Opinion on that from September 30, 2021.  The species subject to ESA and allegedly affected by damage from cattle grazing in riparian areas are the yellow-billed cuckoo, northern Mexican gartersnake, Chiricahua leopard frog and Sonora chub.  Here is a long background article.

Court decision in Oregon Natural Desert Association v. Bureau of Land Management (D. Or.)

On March 29, the district court denied a motion for a temporary restraining order against the BLM’s authorization of livestock grazing on pastures containing 13 Research Natural Areas for the 2022 season without providing fencing to exclude grazing from these areas, as required by the 2015 Oregon Greater Sage-Grouse Record of Decision/Approved Resource Management Plan Amendment.  The court held that plaintiffs are unlikely to suffer irreparable harm to their use and enjoyment of the land, their interest in scientific research or to the sage-grouse population if the pastures are grazed this summer.

Court decision in Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Indiana)

On March 30, the district court reversed and remanded the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest because it failed to fully evaluate the potential effects of the Forest’s largest ever logging and burning project on the water quality of Lake Monroe (an important drinking water source).  The court also denied claims related to the range of alternatives considered and effects on endangered bats.  More information may be found in this article.

  • Kilgore Gold Exploration Project

New filing in Idaho Conservation League v. U. S. Forest Service (D. Idaho)

Following a court loss in 2020, involving Yellowstone cutthroat trout (discussed here), the Caribou-Targhee National Forest approved a new plan put forward by the company involving road building and 130 drill stations for the Kilgore Gold Exploration Project.  According to this article, plaintiffs contend they should be allowed to file a supplemental complaint because the new decision essentially repeats what the court previously rejected and violates various environmental laws.

On April 1, an administrative judge for the government’s Merit Systems Protection Board found that a seasonal firefighter was entitled to a hearing regarding his claims of retaliation against him for posting on social media about what he perceived as the agency’s lax COVID-19 rules during the pandemic, which could have endangered the health of his young son.  The Forest Service agreed to award him $115,000 in back pay and remove him from “do not rehire” lists.

Court decision in Native Ecosystems Council v. Lannom (D. Mont.)

On April 4, the district court reversed the Castle Mountains Project decision on the Helena-Lewis & Clark National Forest for failure to comply with the forest plan requirement for elk that recommendations from the Montana Department of Fish, Wildlife and Parks “will be followed.” (Note:  I think the Forest Service might have argued that such a standard is invalid because it defers forest plan decisions to a third party without public participation.)

The Forest misrepresented the recommendations regarding the effects of temporary roads, and failed to demonstrate that elk habitat effectiveness would be maintained or enhanced in accordance with those recommendations.   They also improperly treated the forest travel plan as a fait accompli, even though it had largely not been implemented, and therefore it could not serve as a baseline for the effects of temporary roads.  The court also held that the agency record “does not show that the agency complied with either NFMA or NEPA in relation to the undisputed decline in goshawk nesting territory.”

The court also construed the Roadless Rule’s exception that allows timber harvesting when “needed … [t]o maintain or restore the characteristics of ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period.”  “Need” does not require existing conditions to be outside of the range of variability, and the exception applied to “meadows restoration” and “whitebark pine restoration” in this case.

Court decision in Upper Green River Alliance v. U. S. Bureau of Land Management (D. Wyo.)

On April 5, the district court upheld BLM’s decision to allow Jonah Energy to continue its development of the 145,000-acre, 3,500-well Normally Pressured Lance gas field, which crosses the pronghorn migration route discussed here, and would occupy important sage-grouse habitat.  The court found that the BLM met NEPA requirements for evaluating the effects.  (Shortly afterwards, the same Department of Interior announced a $250,000 grant that will help secure a conservation easement in the wildlife corridor north of the future well-field.  This article also discusses the lawsuit.)

On April 7, the U.S. Fish and Wildlife Service (“Service”) issued an emergency rule under Section 4(b)(7) of the ESA listing the Dixie Valley toad (Anaxyrus williamsi) as endangered, and on the same day the Center for Biological Diversity filed a Notice of Intent to Sue the BLM and the company behind the Dixie Meadows Geothermal Utilization Project in Nevada, being developed in the toad’s only habitat.  A prior (and still pending) lawsuit was discussed here, and this article provides additional background.

  • Stanislaus NF grazing

Court decision in Central Sierra Environmental Resource Center case (9th Cir.)

As reported in this article, on April 8, the Ninth Circuit Court of Appeals affirmed the district court, and found that the Stanislaus National Forest had not violated reporting or discharge restrictions under the Clean Water Act regarding permits for their grazing allotments.  Instead, a state agency is responsible for determining Forest Service compliance.  (This case was discussed when it was filed here.)

Settlement agreement in The National Trust for Historic Preservation v. Haaland (D. Ariz.)

On April 21, the district court approved a stipulated settlement requiring BLM to re-examine its decision to allow target shooting in 90% of Sonoran Desert National Monument.  They must consider an alternative that protects several areas of the monument.  (The news release includes a link to the settlement agreement and the original complaint.)

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

On April 21, four conservation groups sued to stop the construction of a 280-mile long corridor for Interstate 11, including desert lands between between Saguaro National Park and Ironwood National Monument.  According to the plaintiffs, the National Park Service, U.S. Bureau of Land Management, U.S. Forest Service, and U.S. Bureau of Reclamation raised concerns that the selected route would permanently and severely harm wildlife populations and public lands.

New lawsuit:  State of Alaska v. United States of America (D. Alaska)

On April 26, the State of Alaska filed a complaint in the Alaska federal district court to quiet title regarding ownership of land under navigable waters and submerged lands in Alaska.  The state is also issuing trespassing orders to federal agencies, including the Forest Service, with structures such as docks on such lands without state permits.   This article includes a counter-argument.

New lawsuits:  County of Ventura v. U. S. Forest Service (C.D. Cal.), City of Ojai v. U. S. Forest Service (C.D. Cal.), Los Padres Forestwatch (and 6 others) v. U. S. Forest Service (C.D. Cal.)

On April 27, three complaints were filed against the Reyes Peak Forest Health and Fuels Reduction Project in the Los Padres National Forest.  Plaintiffs object to the use of a categorical exclusion from NEPA disclosure to approve the project.  The Decision Memo states that trees between one inch and two feet in diameter will be “thinned.”  Plaintiffs are also suing the United States Fish and Wildlife Service for violating the Endangered Species Act and the APA by falsely concluding that the project would not harm California condors and their critical habitat, and the Forest Service and Secretary of Agriculture for violating the HFRA and the APA by failing to issue annual reports pertaining to the use of categorical exclusions.  The link above includes links to each of the complaints.  This article includes more information about the project, and a link to the Decision Memo.

  • Daniel Boone NF Red Bird Project

On April 28, Kentucky Heartwood filed a notice of intent to sue the U.S. Forest Service to protect endangered species in the South Red Bird Wildlife Enhancement Project on the Daniel Boone National Forest.  The threatened or endangered species include snuffbox mussels, the Kentucky arrow darter and three bat species. The Forest Service says the purpose is to create more young forest habitat for deer, elk, grouse and turkey, and will leave behind seven to 20 trees per acre.  There are also concerns about damage to and possible logging of large old trees (including potential damage to a “champion” red hickory), white oak regeneration (see our recent discussion here), landslides, and invasive species.  Logging for game species at the expense of at-risk species came up here.

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

On April 29, plaintiffs filed a complaint against the Fish and Wildlife Service and the Departments of Interior and Agriculture to seek documents under the Freedom of Information Act related to “communications within the federal agencies and with non-federal entities discussing changes or revisions to the regulatory requirements for programmatic consultations under Section 7 of the U.S. Endangered Species Act.”  This concerns legislation proposed to codify currently temporary language that exempts the Forest Service from the requirement to reassess land-management plans after a species is listed or critical habitat is designated on the affected national forest. This resulted from the “Cottonwood” litigation, we discussed here.

A woman who accidentally dropped her cellphone into the hole of an outhouse in the Olympic National Forest, and fell in while trying to retrieve it, had to be rescued by firefighters.

“No real advancement on forest revision plans”

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I actually took this headline from an article about the status of the Salmon-Challis forest plan revision, but it pretty much describes planning in the Forest Service as a whole.  With the exception of a batch of mostly Region 3 forests nearing the end of their planning journey, not much is happening.  There are no signs of any new forests moving into the pipeline as the aforementioned revisions are completed.

The national status chart (source of this graphic – the last column shows the age of the plan) was updated April 1 (was there an inside joke here?).  It doesn’t include where each forest is in the process, so I checked each of their planning web pages and produced the summary below (roughly in order of where they are from the end to the beginning).

  • Carson – Currently reviewing objections, final plan projected in spring 2022
  • Cibola – Currently reviewing objections, final plan projected in 2022
  • Santa Fe – Currently reviewing objections, final plan TBD
  • Nantahala-Pisgah – Currently reviewing objections, final plan TBD
  • Tonto – 60-day objection period began March 25, final plan TBD
  • Nez Perce-Clearwater – FEIS/draft ROD projected Fall 2021 (yes, that is the projection on the web page)
  • Ashley – FEIS/draft ROD projected October 2022
  • Grand Mesa Uncompahgre and Gunnison – FEIS/draft ROD projected late 2022 or early 2023
  • Gila – FEIS/draft ROD TBD
  • Lincoln – FEIS/draft ROD TBD
  • Sierra/Sequoia – FEIS/draft ROD TBD
  • Manti-La Sal – DEIS/draft plan TBD
  • Salmon-Challis – Notice of initiation 2018, NOI TBD
  • Malheur/Wallowa-Whitman/Umatilla – FEIS/draft ROD withdrawn in 2019, draft plan/NOI TBD
  • Black Hills – Currently in Assessment phase, NOI TBD

There is more information available in these charts, but they have not been updated for over a year (note the individual charts for each “service group,” the national “new planning model.”  I used it to check out the forests that, at least at one time, appeared ready to start revision.  From this list of forests that should have been “in revision” or “pre-revision” sometime this year, the only references to plan revision I found on any of the web pages have been quoted below.  So there’s going to be a big gap in completed revisions.

  • In revision 2021:  Shasta-Trinity, Mendocino, Six Rivers, Klamath, Rogue River-Siskiyou
  • In revision 2022: Cimarron Comanche, Bridger-Teton, Midewin, Humboldt-Toiyabe
  • Pre-revision in 2022: Fremont-Winema, Umpqua, Siuslaw, Willamette, Lolo, Caribou-Targhee, Curlew, NFs inTexas, NFs in Florida, Kistachie, Wayne, Allegheny

Bridger-Teton, – “unlikely that BTNF will receive funding to begin Forest Plan Revision until 2022.”

Humboldt-Toiyabe – “Work on Forest Plan revision has been suspended as resources and personnel are devoted to travel management, environmental analysis of grazing, fire and fuels management, and implementation of the American Recovery and Reinvestment Act.”

There is also this note from the Wayne explaining why they have stopped revising their forest plan.

Meanwhile the Bitterroot National Forest is doing some planning of another kind that is fairly unusual (but may be becoming more common), recently releasing a draft climbing management plan.  Issues being addressed include the placing of permanent anchors (including in wilderness areas) and the need to buffer nesting raptors.  However, “Work on a final NEPA-approved climbing plan will have to wait until the agency’s Washington office completes a set of national directives focused on climbing. Those could come as soon as this summer.“

Public Lands Litigation Update – March 2022

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The last Forest Service “weekly” we received was dated March 11.  In lieu of their summaries for the rest of the month …

(Links are to court documents or articles.)

Court decision in Alliance for the Wild Rockies v. Munoz (D. Mont.)

On March 8, the district court ruled that the logging in the Elk-Smith Project did not violate the Roadless Area Conservation Rule because logging 1393 acres within a roadless area was “incidental” to the fuel treatment purpose in accordance with the exception provided by the Rule:  “The Forest Service has limited its proposed timber cutting in several well-delineated ways to ensure that it remains secondary to the primary purpose of the controlled burn.”  The court first held that this exception could be used for fuel reduction projects even though there is another exception that specifically mentions fuel reduction.

Court decision in Montana Wildlife Federation v. Bernhardt (D. Mont.)

On March 11, the district court replicated an earlier decision by ordering that an additional five oil and gas lease sales (“hundreds” of leases) in Wyoming and Nevada be vacated because they did not comply with the 2015 sage grouse conservation plan’s requirements to prioritize leases outside of sage-grouse habitat.  (The press release includes a link to the opinion.)

Court decision in Friends of the Clearwater v. Probert (D. Idaho)

On March 12, the district court invalidated motorized use of a trail in a recommended wilderness area (for a second time) because it violated the forest plan, stating, “The Forest Service’s decision to allow continued motorized vehicle use of Fish Lake Trail — which at minimum keeps (elk habitat effectiveness) at 90% and prevents (elk habitat effectiveness) from improving to 95% — equates to non-compliance with the Forest Plan,” which favors elk habitat.  While new analysis indicated motorized use would not diminish elk habitat, the court said the forest officials could not retroactively apply new data as a basis for a decision that was not available at the time the decision was made.  The judge also said agency officials did not properly document how they planned motorized use on the Fish Lake Trail so as to minimize damage to the environment as required by the Travel Management Rule.  (See also this article.)

Court decision in Friends of Alaska National Wildlife Refuges v. Haaland (9th Cir.)

On March 16, in a split decision, the circuit court reversed the Alaska district court’s decision and approved a land exchange that would allow construction of an 11-mile road across the Izembek National Wildlife Refuge to facilitate air transportation for residents of King Cove (whose native corporation would provide lands for the exchange). The exchange was found to be in compliance with the Alaska National Interest Lands Conservation Act, and met APA requirements because it adequately explained the change in the government’s position, but other hurdles remain because the exchange decision does not “authorize” the road.  (The article includes a link to the opinion.)

Settlement in U. S. A. v. The Durango & Silverton Narrow Gauge Railroad Company (D. Colo.)

On March 21, the railroad agreed to pay $20 million to the federal government, and has agreed to hire a fire management officer, submit an annual fire prevention plan to the U.S. Forest Service, consult with experts on fire mitigation and prevention, and to deposit $100,000 annually into a self-insured catastrophic wildfire fund to cover future costs of putting out wildfires thought to be sparked by the train. However, the train company continues to deny responsibility for the fire or that the U.S. is entitled to fire suppression costs. (The article contains a link to the consent decree. The private lawsuit referred to has also been settled.)

Court decision in Klamath Siskiyou Wildlands Center v. U. S. Fish and Wildlife Service (D. Oregon)

On March 23, the district court denied an injunction sought against a Biological Opinion from July 2020 assessing the likely effects of the Bear Grub Project and Round Oak Project, proposed by BLM’s Medford District, on the northern spotted owl and its designated critical habitat. The court agreed with or deferred to the FWS regarding long-term effects, non-resident “floater” owls, the experimental barred owl control program, certainty of mitigation measures and incidental take provisions.

Sierra Snowmobile Foundation v. U. S. Forest Service (E.D. Cal.)

Also in March, WildEarth Guardians and the California Wilderness Coalition intervened in a lawsuit brought by snowmobiling interests in October that is challenging the Forest Service’s decision to designate over-snow vehicle (OSV) trails and use areas on the Stanislaus National Forest because the Forest Service allegedly has not properly considered the impacts on an endangered population of the Sierra Nevada red fox.  (The article includes a link to a prior press release that links to the complaint and the brief supporting intervention.)

 

NFS Litigation Weekly March 11, 2022

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The Forest Service summary is here (ignore the date on the Summary):  Litigation Weekly March 11 2022 EMAIL (1)

Links are provided to court documents.

COURT DECISIONS

Friends of the Crazy Mountains v. Erickson (D. Mont.) – On February 18, 2022, a Magistrate Judge in the District Court of Montana recommended granting summary judgment to the Forest Service regarding its decision to relinquish claims to public access rights on trails on the Custer Gallatin National Forest and to reroute the trails.

BONUS:  The potential implications of allowing the agency to not enforce its rights as a result of this case have been brought up in Congress by Senator Martin Heinrich New Mexico: “These decisions affect access in every state in the nation. Why is the Forest Service and DOJ changing its position on public rights of access on that trail in particular, and what does that mean for trails everywhere in the U.S.?”

Grand Canyon Trust v. Provencio (9th Cir.) – On February 22, 2022, the Ninth Circuit Court of Appeals affirmed the district court’s summary judgment that intervenor Energy Fuels held a valid existing right to operate the Canyon Mine to produce uranium on the Kaibab National Forest in an area near the Grand Canyon that had been withdrawn from new mining claims.  The issue of validity involved the costs used in determining profitability.  (The Havasupai Tribe was one of the plaintiffs, as mentioned here.)

Sawtooth Mountain Ranch LLC v. United States of America (D. Idaho) – On February 24, 2022, the District Court of Idaho upheld the construction of the Stanley Redfish Trail on a public trail easement across plaintiffs’ property to the Sawtooth National Forest and National Recreation Area.  Here is some additional background.  The opinion on the Quiet Title claims is here.

Cottonwood Environmental Law Center v. Gianforte (9th Cir.) — On March 2, 2022, the 9th Circuit Court of Appeals affirmed the district court’s denial of a preliminary injunction sought against the Interagency Bison Management Plan for the area in and around Yellowstone National Park, including the Custer Gallatin National Forest, alleging the likelihood of increased tribal bison hunting and associated NEPA violations.

Friends of the Clearwater v. Petrick (D. Idaho) – On March 2, 2022, the District Court of Idaho found that the Fish and Wildlife Service did not provide an explanation for how it determined that grizzly bears were not “present” for the purpose of ESA consultation on the Brebner Flat project on the Idaho Panhandle National Forest, but it did not vacate the decision while such explanation is being provided.

NEW CASES

Klamath Forest Alliance v. Vilsack (D. Oregon) – On February 3, 2022, Plaintiffs filed a complaint in the District of Oregon claiming the Forest Service violated NEPA when using a categorical exclusion to authorize the paving of Forest Service Roads 20, 20A, 40S30 and 40S30A on the Mt. Ashland/Siskiyou Peak Botanical Area on the Klamath National Forest.

BONUS:  As explained here, the Forest was surprised to discover that the roads had never been paved, which made the project ineligible for the funding it expected to use, and they have rescinded this paving decision.

Capital Trail Vehicle Association v. U.S. Forest Service (D. Montana) – On February 25, 2022, Plaintiffs filed a complaint in the District Court of Montana claiming the Divide Travel Plan on the Helena-Lewis and Clark National Forest would close 144 miles of roads to all vehicle use without proper analysis of its environmental and social impacts.

OTHER AGENCY CASES

Komor v. United States (D. Arizona) ‐ On February 14, 2022, Plaintiff filed a complaint alleging violations of the Fifth, Ninth and Tenth Amendments to the U. S. Constitution for actions resulting in the generation of greenhouse gasses.  The complaint specifically refers to the Department of Energy.

BONUS:  In other climate litigation, a case in Montana involving the state constitution’s right to “a clean and healthful environment” may be the first climate change case to go to trial (a year from now).

 

BLOGGER’S BONUS

Court decision in Board of County Commissioners of San Miguel v. United States BLM (D. Colo.) – On February 9, 2022, the district court found that the BLM had violated the Endangered Species Act when it failed to consult with the Fish and Wildlife Service prior to approving oil and gas leases in southwest Colorado in habitat for the threatened Gunnison sage-grouse.  The court held that prior consultation on the resource management plan was insufficient because there was new information available for the leasing decision.  (The article includes a link to the opinion.)

Court decision in Defenders of Wildlife v. U. S. Fish and Wildlife Service (N.D. Cal.) – On February 10, 2022, the district court restored Endangered Species Act protections to gray wolves in most of the lower 48 states.  The court found the government improperly relied on gray wolf recoveries in the Great Lakes and Northern Rocky Mountains to decide wolves across the contiguous U.S. no longer qualify for federal protection.  (The article includes a link to the opinion.)

New case:  Center for Biological Diversity v. Surface Transportation Board (D.C. Cir.) – On February 11, 2022, five environmental organizations petitioned the court of appeals for review of the Board’s authorization to construct and operate an approximately 85-mile rail line in the Uinta Basin, including portions of the Ashley National Forest, much of it in roadless areas.  (This news release includes a link to the complaint.)

Court decision in Friends of Animals v. U. S. Fish and Wildlife Service (9th Cir.) – On March 4, 2022, the Ninth Circuit Court of Appeals approved permits for private logging companies to incidentally take spotted owls while killing barred owls on their lands to determine how that would benefit spotted owls. The panel found the government’s experiment would yield important information that would help it create a policy to better protect northern spotted owls, thus complying with the “net conservation benefit” requirement under the Endangered Species Act.  (The article includes a link to the opinion.)

A defendant pleaded guilty and was given a $2,000 fine and 3-year ban from being on the Bridger-Teton National Forest for use or occupancy of National Forest System lands for residential purposes.

Forest Service law enforcement has located and cited 3 individuals harvesting wood without a permit on the Six Rivers National Forest.

A California man was sentenced to 21 months in prison for burglarizing fee collection sites on the Coronado National Forest.  He also admitted breaking locks to commit 42 similar burglaries in multiple states.

Avoiding litigation:  In January, the Environmental Protection Agency announced will take a systematic approach to evaluating pesticides’ harmful effects instead of being forced to comply by lawsuits (particularly with regard to ESA).

Timber sustained-yield requirements for forest plans

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In our recent discussion of the Nantahala-Pisgah forest plan revision, Sharon said, “Jon, that raises a question, how is sustained yield considered in the 2012 Rule and regulations?”  Nicholas Holshauser did a pretty good job at answering there, but I want to provide a little more context because it’s a really good question with a complicated answer. I’ve highlighted terms to keep an eye on to help understand this.

Here are the relevant sections of NFMA:

  • 1604(e)

In developing, maintaining, and revising plans for units of the National Forest System pursuant to this section, the Secretary shall assure that such plans—

(2) determine forest management systems, harvesting levels, and procedures in the light of all of the uses set forth in subsection (c)(1) of this section, the definition of the terms ‘‘multiple use’’ and ‘‘sustained yield’’ as provided in the Multiple-Use Sustained-Yield Act of 1960, and the availability of lands and their suitability for resource management.

  • 1611(a)

The Secretary of Agriculture shall limit the sale of timber from each national forest to a quantity equal to or less than a quantity which can be removed from such forest annually in perpetuity on a sustained-yield basis: Provided, That, in order to meet overall multiple-use objectives, the Secretary may establish an allowable sale quantity for any decade which departs from the projected long-term average sale quantity that would otherwise be established…  Provided further, That any such planned departure must be consistent with the multiple-use management objectives of the land management plan. Plans for variations in the allowable sale quantity must be made with public participation as required by section 1604(d) of this title (procedures for plan revisions).

The law does not define sustained yield, and other language used here is not self-explanatory.  That is most likely because it merely codifies the historic practice of the agency in its timber management planning, which was thoroughly understood by everyone at the time.  Wilkinson and Anderson take this view in their contemporaneous examination of NFMA where they state:  “The Forest Service has always placed a ceiling on each national forest’s annual timber sales from the suitable land base to insure a perpetual yield of timber” (p. 122), and, “the NFMA requires the Forest Service to follow NDEF policy (see below), with some exceptions.”   That historical understanding was reflected in the 1982 planning regulations, and is still included in the Forest Service timber management planning handbook (§2409.13, Chapter 30).

Thus, sustained yield was always, and would be under NFMA, determined by identifying the land that would be used for timber production (suitable acres) and the volume per acre that would be yielded over time (including any reductions to accommodate other uses), and projecting the maximum harvest that could be achieved per decade over time without declining between any two decades (perpetually).  Sustained yield thus required non-declining even flow of timber volume (NDEF), which was characterized as the “base sale schedule” for a forest plan.  A declining flow would be referred to as a “departure” from this schedule and from non-declining flow.  Because the parameters determining timber volume (acreage and competing uses) would change for each forest plan alternative, the sustained yield would also be different.

The 2012 Planning Rule states:

  • 219.11(d)(6)

“The quantity of timber that may be sold from the national forest is limited to an amount equal to or less than that which can be removed from such forest annually in perpetuity on a sustained yield basis. This limit may be measured on a decadal basis. The plan may provide for departures from this limit as provided by the NFMA when departure would be consistent with the plan’s desired conditions and objectives. Exceptions for departure from this limit on the quantity sold may be made only after a public review and comment period of at least 90 days. The Chief must include in the Forest Service Directive System procedures for estimating the quantity of timber that can be removed annually in perpetuity on a sustained-yield basis, and exceptions, consistent with 16 U.S.C. 1611.

Planning Handbook now states

  • (§63.41)

 “The Responsible Official shall determine of the sustained yield limit as the amount of timber that could be produced on all lands that may be suitable for timber production, assuming all of these lands were managed to produce timber without considering other multiple uses or fiscal or organizational capability.

This new “sustained-yield limit” is obviously an entirely different beast.  The acreage used includes lands that are not suitable for timber management, and the projected volume does not reflect other multiple-use decisions made in a forest plan (including such NFMA requirements as plant and animal diversity).  The SYL does not vary by alternative, and would obviously be much higher than under existing forest plans.  And since the replacements for ASQ (PTSQ and PWSQ) are supposed to be based on expected resource conflicts and financial constraints, volume targets based on these figures could never exceed that “capacity.”

The sustained yield “limit” is not actually a limit, and does not serve the purpose intended by NFMA of sustainable harvest volumes through its non-declining flow requirement.  In fact, the Rule (despite requiring consistency with NFMA language) refers to “departures from this limit” instead of departures from NDEF.  While the sustained yield “limit” may be non-declining, there is no determination that the actual harvest volume (PTSQ/PWSQ) could be sustained (unlike the former ASQ).  Consequently, harvest levels (over time) have not been determined for the plan based on all multiple uses or based on NDEF, as required by NFMA.  This seems especially problematic on the Nantahala-Pisgah, where they admit they calculated the sustained yield based on lands suitable for timber production that they claim will never be harvested; that’s an inherent contradiction.  Until someone does the correct analysis, it’s hard to say how these changes affect this plan’s timber volume or whether there is a departure from NDEF that they should have disclosed to the public.

While there was some public involvement in developing the Planning Handbook (much less than for the 2012 Planning Rule), this radical break from tradition (and possibly from NFMA), was not made apparent to the public.  It was only acknowledged in comments when the final Handbook was published.  The Administrative Procedure Act requires effective public notice when an agency changes its procedures to this degree.  There are therefore both substantive and procedural questions about this change in how timber management is being addressed in this and other forest plans.

It has always looked to me like this was a search for the “holy grail” of having their trees and logging them, too.  More to the point, a national forest would have a much expanded land base relative to their expected timber volume targets, so they have a much easier job finding where to meet them.

 

 

 

Coordination with Counties – Lincoln National Forest Plan Revision

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Since Sharon has invoked my name twice recently, and not particularly correctly, with regard to the role of local interests in national forest management, I thought I would refocus that discussion on how this is supposed to work for local governments during forest planning using a current example that came along.  It involves the participation (or lack thereof) by a county in New Mexico in the forest plan revision process for the Lincoln National Forest (where a final revised plan is expected soon).

The 2012 Planning Rule §219.4 requires “coordination with other public planning efforts.”  It requires a review of “the planning and land use policies of … local governments, where relevant to the plan area,” which must be displayed in the EIS for the revised forest plan.  It concludes, “(3) Nothing in this section should be read to indicate that the responsible official will seek to direct or control management of lands outside of the plan area, nor will the responsible official conform management to meet non-Forest Service objectives or policies.”

On March 1, the Eddy County Board of County Commissioners approved a resolution opposing the revised plan.  They stated that, “it is clear that the USFS failed to review, consider and identify planning conflicts between Eddy County and the proposed plan.”  Those alleged conflicts include:

  • would increase restrictions for cattle ranchers with reduced cattle grazing levels and increased financial burdens on cattle producers
  • “creates large areas restricted and potentially inaccessible to the County to fulfill its public health and safety duties”
  • “creates areas that will no longer allow proper wildlife management control increasing the danger to Eddy County citizen’s lives and property”

Eddy County’s resolution asked for a “coordination agreement” between the County and the Forest Service, “To establish roles and responsibilities for both parties, ensuring the citizens of Eddy County are still provided with the necessary services they depend on.”

I would agree that these are all arguably things that should be considered by the Forest Service, depending on what the specific plans or policies of the County say regarding these issues.  (Unlike some earlier attempts at county “coordination,” they do not attempt to claim they have their own plans for national forest lands.)  There is also nothing wrong with a “coordination agreement” to establish roles and responsibilities for “planning efforts,” but this is not something recognized by the Planning Rule, and is not a requirement.  Moreover, the roles and responsibilities for national forest management are established in federal law and regulations; what local residents “depend on” does not dictate national forest management (as indicated by the highlighted language above from the Rule).

In this case, it appears that the County is also trying to close the barn door too late.  According to the Forest, “In 2019 we reached out to Eddy County, inviting them to become a cooperating agency (in accordance with NEPA), which would have allowed them to be more deeply involved in the process of developing the plan, however we received no response from the county. Additionally, Eddy County did not provide any official comments on the forest plan to us.”  (Failure to comment on the plan about the omissions they claim here would disqualify them from filing an objection and probably from suing.)

 

 

Litigation loose ends – Januaryish 2022

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These are a few things missed between the last Forest Service summaries.  Links are to court documents or articles.

FOREST SERVICE COURT DECISIONS

Unite the Parks v. U. S. Forest Service (9th Cir.)

On January 25, the Ninth Circuit Court of Appeals ordered a district court to reconsider its denial of a preliminary injunction against 31 logging projects in endangered Pacific fisher habitat on the Sierra and Sequoia National Forests.  The district court decision had not properly taken into account recent information.  (The 9th Circuit did not issue its own injunction, however.)   (The article includes a link to the opinion.)

Neighbors of the Mogollon Rim v. U. S. Forest Service (D. Ariz.)

On January 26, in a case filed by intermingled private landowners, the Arizona district court upheld the decision to restart livestock grazing on inactive allotments and the Heber-Reno Sheep Driveway on the Tonto National Forest with a new allotment management plan and term permit based on an EA.  The court found no violation of NEPA or ESA.  It found the decision consistent with the forest plan even if it did “not move the Tonto National Forest towards the long-term resource goals set out in the Forest Plan,” because, “the Proposed Action would not have a significant adverse effect on these elements, and because, “grazing is a permissible and contemplated use under the Tonto Forest Plan.”  (I don’t see the logic here, since neither of these reasons address the issue raised by plaintiffs.)

SETTLEMENT

Center for Biological Diversity v. Bernhardt (D. Nevada)

On January 19, the parties settled this case, allowing the implementation of the Lee Canyon Ski Area Master Development Plan on the Humboldt-Toiyabe National Forest (introduced here).  The settlement agreement calls for habitat buffer zones where construction of mountain bike trails would not be allowed under most circumstances and a $250,000 pledge from the resort to UNLV for research.

NEW CASES

Strawberry Water Users Association v. U.S.A. (D. Utah).

On January 3, plaintiff sued the Forest Service for allegedly letting two lightning-ignited wildfires burn on the Uinta-Wasatch-Cache National Forest in 2018, resulting in $200 million in damage to its water infrastructure.  (Details on the fires are available here.)

Center for Biological Diversity v. Haaland (D. Minn.)

On January 25, five plaintiff organizations sued USDI, the Forest Service, Fish and Wildlife Service, and the Army Corps of Engineers over decisions to exchange lands and permit the PolyMet copper mine on the Superior National Forest based on a 2016 Biological Opinion’s conclusions that the Project is not likely to jeopardize the Canada lynx, gray wolf, or northern long-eared bat, and is not likely to adversely modify the designated critical habitat for the Canada lynx or gray wolf.  (The article includes a link to the opinion.)

Meanwhile, a second mine on the Superior National Forest was derailed on January 26, when the Interior Department’s principal deputy solicitor, wrote in a legal opinion that the Trump administration fell short in its legal obligations by conducting an inadequate environmental analysis and by sidestepping the Forest Service in its decision-making regarding the proposed Twin Metals project.

OTHER AGENCIES

Friends of the Earth v. Haaland (D. D.C.)

On January 27, the District of Columbia district court vacated a sale of 1.7 million acres of oil and gas leases in the Gulf of Mexico because the Interior Department miscalculated the greenhouse gas emissions from drilling.  It held that the 5-year program EIS should not have concluded that emissions would be higher under the no-action (no drilling) alternative because, “the record in this case includes papers from the Stockholm Environment Institute that underscore the likely decrease in foreign consumption and provides a methodology for translating the reduction in barrels of oil into a reduction in greenhouse gas emissions…” (my emphasis).  (The question of substitution effects has come up on this blog.)   (Here is an article discussing the case.)

Louisiana v. Biden (W.D. La.)

However, on February 11, the Western District of Louisiana enjoined an Executive Order that would have required government agencies to also account for the social benefits of reducing carbon pollution, such as changes in net agricultural productivity, human health, property damage from increased flood risk, and the value of ecosystem services.  The court held that, “the President lacks power to promulgate fundamentally transformative legislative rules in  areas of vast political, social, and economic importance,” he failed to follow rulemaking procedures required by the APA, and the estimates included in the order are arbitrary and capricious.

Bradford v. U. S. Department of Labor (D. Colo.)

On January 24, the Colorado district court dismissed a lawsuit filed by Colorado rafting companies seeking to block a new rule that raised the minimum wage for federal contractors to $15 an hour. (The article includes a link to the opinion.)

ESA LISTING BONUS

On January 25, the U. S. Fish and Wildlife Service proposed listing the Sacramento Mountains checkerspot butterfly as an endangered species under the Endangered Species Act.  Primary threats include unregulated off-road vehicle use and fire suppression on the Lincoln National Forest.  (Comments are due march 28.)  (The article includes a link to the Federal Register Notice.)

On December 27, 2021, the U. S. Fish and Wildlife Service proposed listing four of six distinct population segments (see map) of the foothill yellow-legged frog under the ESA – the South Sierra and South Coast DPSs as endangered and the North Feather and Central Coast DPSs as threatened.  Logging and grazing are among the threats to the species, and the North Coast and North Sierra populations were not listed in part because of the Forest Service requirements for sensitive species (which will go away when forest plans are revised), and because, “the species in northern portions of California and the species’ range in Oregon on National Forest or BLM lands currently receive protection through conservation measures and best management practices under the Northwest Forest Plan’s Survey and Manage program” (which is currently required by forest plans).  (Quoting the Federal Register Notice linked to this news release.)  (The comment period is closed.)