Jon Haber

NFS Litigation Weekly December 17, 2021

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The Forest Service summaries are here: Litigation Weekly December 17 2021 EMAIL

The shorter summaries below include a link to court documents.

COURT DECISIONS

On December 6, the district court issued a decision regarding the plaintiffs Motion to Compel Completion of the Administrative Record in the case against the Forest Service rule adopting new NEPA regulations, filed in January, and summarized here.

On December 1, the district court issued dismissed plaintiff’s complaint regarding government authority over the Rock Fall and Crooked Arroyo grazing allotments within the Pike and Isabel National Forest on the Comanche National Grasslands because of failure to invoke the Quiet Title Act.

  • Cascadia Wildlands v. U.S. Forest Service (D. Oregon):  (no link, but it appears to be the case discussed here.)

On December 3, the district court issued a preliminary injunction against the Lang Dam and Hwy 46 Vegetative Management Projects on the Willamette National Forest, where plaintiffs alleged the Forest Service modified logging contracts after the 2020 fires without going through the proper environmental review process and without notifying the public.

On December 6, the district court upheld the revised 2018 Flathead National Forest Plan and the amended Lolo, Helena-Lewis & Clark and Kootenai National Forests Forest Plans because the Forest Service adequately considered the forest plan’s climate change impacts and Plaintiff’s concerns about the “albedo effect”.

On December 6, the district court upheld a special rural subsistence hunt authorized by the FSB at the beginning of the COVID pandemic and the Forest Service closing certain federal lands to non-federal qualified subsistence users.

NEW CASES

On December 9, the plaintiffs filed a complaint against the U.S. Department of Agriculture, Animal and Plant Health Inspection Service-Wildlife Services, Bureau of Land Management and Forest Service, regarding compliance with NEPA and the Wilderness Act for Nevada’s Wildlife Services’ 2020 Final Environmental Assessment and associated decision notice approving a statewide predator damage management program.

(No Forest Service summary.)  On November 18, Western Watershed Project, Rocky Mountain Wild and WildEarth Guardians filed a lawsuit opposing an amendment to the Thunder Basin National Grasslands Land and Resource Management Plan.  The amendment removes protection of prairie dogs, allegedly adversely affecting other species and reducing the opportunity to reintroduce and recover the endangered black-footed ferret.  Plaintiffs views are here; the Medicine Bow-Routt National Forest view is included here.

NOTICE OF INTENT TO SUE

Dated November 26, the second NOI filed in this case alleges the Forest Service and FWS violated ESA by failing to ensure the project does not jeopardize the Canada lynx, and by failing to reinitiate consultation considering new information.

 

BLOGGER’S BONUS

  • State of Alaska v. USDA (D.C. Cir.)

Court decision:  On November 16, the court of appeals held that an appeal of a lower court decision approving the application of the Roadless Rule to the Tongass National Forest is moot because the Trump administration had removed those protections – despite the likelihood that they may be reinstated.  A link to the complaint is included in this article.

Notices of intent:  On November 17, the Center for Biological Diversity filed two formal notices of intent to sue the U.S. Fish and Wildlife Service for denying or delaying Endangered Species Act protections for 10 species. Species that were denied are the Burrington jumping slug in Washington and Oregon, rubber boa in southern California, Black Creek crayfish in Florida and Virgin River spinedace in Utah.  Species that were delayed are the dunes sagebrush lizard in Texas and New Mexico, Temblor legless lizard in California, longsolid and Canoe Creek clubshell mussels in the Southeast, Marrón bacora plant in the Virgin Islands and Siuslaw hairy necked tiger beetle in Oregon.

  • Slockish v. U. S. Department of Transportation (9th Cir.)

Court decision:  On November 24, the court of appeals dismissed a case from Northwest tribal leaders, based on the government’s claim that no one knows what happened to the stones from a millennia-old altar.  In 2008, the government widened U.S. Highway 26, which runs over Mt. Hood (the photo with this article is of the Mt. Hood National Forest, but the article does not say this occurred on national forest land) and the government bulldozed an ancient stone altar, cut down the trees sacred to the tribes and medicinal plants that surround the area, and covered the whole thing with a dirt berm.

Large landscape connectivity – could the Forest Service be a leader?

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I watched a webinar provided by the Center for Large Landscape Conservation titled “Legal Protections for Large Landscape Conservation,” part of which focused on “Habitat Connectivity and the U. S. Forest Service.”  That segment can be seen here from 4:15 to 19:05.  The presentation goes over the elements of Forest Service planning that could be useful for habitat connectivity.  It includes a couple of examples of “innovations” from the Flathead and Carson/Santa Fe forest plan revisions, but concludes that few plan components that address connectivity are likely to be very effective.  It cites a familiar refrain that the agency is “unwilling to commit to specific direction,” and “lack of commitment and interest from line officers.”  However, the presenter observed that the movement of the Forest Service toward more centralized planning organizations might provide an opportunity to look at connectivity as a broader regional issue, and to develop regionally consistent approaches to planning for connectivity.

What if the Forest Service was actually interested in conserving the species that use its lands but require connectivity across other jurisdictions and ownerships (as it is required to do, “in the context of the broader landscape,” a phrase used seven times in the 2012 Planning Rule ), and what if the Forest Service played a leadership role in facilitating such cross-boundary connectivity by promoting large-landscape conservation strategies?

Maybe it would look something like what the Yellowstone to Yukon Initiative has accomplished since it began promoting large-scale landscape conservation in 1993.  As Rob Chaney reports in the Missoulian, they have recently evaluated the effectiveness of their program in “Can a large-landscape conservation vision contribute to achieving biodiversity targets?”  They found that in the Y2Y region where landscape connectivity was actively promoted, more public lands were dedicated to protection, more private lands were protected, wildlife highway crossing structures proliferated, and occupied grizzly bear habitat (as a proxy for actual benefits to wildlife) expanded.

Come to think of it, wouldn’t that be a great assignment for the Biden Administration to give the Forest Service (both the National Forest System and State and Private Forestry divisions) to promote its 30 X 30 conservation agenda?

 

 

NFS Litigation Weekly November 19, 2021

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The full Forest Service summaries are here:  NFS Litigation Weekly November 19 2021 EMAIL

The abbreviated summaries below include links to court documents.

NEW CASES

Defenders of Wildlife v. U.S. Forest Service (D. Colorado) — On November 8, the plaintiff filed a complaint against the revised Rio Grande Forest Plan and revised biological opinion concerning effects on Canada lynx.   (The Forest Service summary incorrectly states that critical habitat is also involved, but there is no lynx critical habitat designated in Colorado.)

San Luis Valley Ecosystem Counsel v. Dallas (D. Colorado) – On November 8, the San Luis Valley Ecosystem Counsel, San Juan Citizens Alliance, the Wilderness Society and WildEarth Guardians, filed a complaint against the revised Rio Grande Forest Plan. The plaintiffs claim the plan violated: (1) NFMA by not contributing to the recovery of the Umcompahgre Fritillary Butterfly or the Canada lynx, and by not providing for sustainable winter recreation opportunities; (2) the Travel Management Rule by including language that allows unregulated over-snow vehicle use on the Forest; and (3) NEPA, including management of two special interest areas.

We’ve recently discussed lynx and these lawsuits here.

OTHER AGENCY CASES

Klamath-Siskiyou Wildlands Center v. U.S. Bureau of Land Management (D. Oregon) — On November 11, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands, Oregon Wild, and  Soda Mountain Wilderness Council filed a complaint against the BLM regarding the Lost Antelope Vegetation Management Project in Jackson County, Oregon (Ashland Field Office of the Medford District).  It involves logging in late successional reserves and consistency with the Northwest Forest Plan, effects on spotted owls, and analysis of fuels, fire, hazard, and fire risk.

Alliance for Wild Rockies v. Cooley (D. Mont.) — On November 5, the Alliance for Wild Rockies and Native Ecosystems Council filed a complaint against the U.S. Fish and Wildlife Service regarding reintroduction of grizzly bears into the Bitterroot Ecosystem and failing to take any action since 2001.

BLOGGER’ BONUS

For those who remember the “My Ding-a-Ling” song …

A lawsuit from the Center for Biodiversity resulted in the U. S. Fish and Wildlife Service proposing to list the alligator snapping turtle as an endangered species. The turtle has been found in parts of at least 14 states in the midwest and southeast.  From the proposed rule:

Several National Forest lands are within the range of the alligator snapping turtle. Forestry activities on National Forests within the range of the alligator snapping turtle, including timber harvest and activities that may increase sedimentation or erosion when not following best management practices, could have adverse impacts on the species.

NFS Litigation Weekly November 12, 2021

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The Forest Service summaries are here:  NFS Litigation Weekly November 12 2021 EMAIL

COURT DECISION

Cascadia Wildlands v. Warnack and Forest Service Employees for Environmental Ethics v. Warnack (D. Oregon) — On November 5, the district court granted the plaintiffs’ motion for preliminary injunction regarding the Willamette 2020 Fires Roadside Danger Tree Reduction Project on the Willamette National Forest because the court was bound by the 9th Circuit Court of Appeals EPIC decision not allowing the use of Road Maintenance CE 4 for hazard tree removal greater than a tree length away from the roadway and for projects of large scale and scope, concluding, “The commercial logging allowed here does not remotely resemble grading or repaving roads, cleaning culverts, or removing brush (without the use of herbicides) near roads.”

NEW CASE

Wildlands Defense v. Brummett (D. Idaho) — On November 2, the plaintiffs filed a complaint against the Forest Service for violating NEPA when authorizing the Sage Hen Integrated Restoration Project on the Boise National Forest.  The “project” is an “extensive 20 year project involving dozens of separate not-yet planned actions on tens of thousands of acres,” and no EIS was prepared.  It implicates prior cases involving condition-based management, as we discussed most recently here. 

 

BONUS

Federal prosecutors obtained a $15,000 fine against a rancher who pleaded guilty to three federal misdemeanors for grazing illegally rebranded cattle from California on the Bridger-Teton National Forest that did not belong to the permit holder.

BLM ReRelocation

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Just one of the many Trump Administration actions that the Biden Administration is trying to undo, but rebuilding the BLM will be more complicated than rewriting a regulation.  (Back then we were saying this.)

Two years after President Donald Trump decided to move the bureau’s headquarters to Grand Junction, a small city in the mountains of Colorado with no direct flight links with D.C., Biden plans to bring it back. But the agency remains severely depleted, according to interviews with more than 20 current and former Interior Department employees, hobbling the Biden administration’s work.

With the BLM, Interior Department leaders are now confronting a particularly daunting version of a task that is familiar in many corners of the federal bureaucracy: rebuilding institutions that Trump spent four years breaking down.

Trump “destroyed the effectiveness of the agency,” said a BLM employee, one of the 41 former headquarters staffers who relocated to Western posts. “Everything’s broken down.”

There are now situations in which an employee from Salt Lake City reports to a supervisor in Denver, who reports to a supervisor in Grand Junction, who reports to a supervisor in D.C., when previously all four of them were in the nation’s capital.

New people hired into headquarters positions often came from state agencies or were promoted from jobs in the field and are unfamiliar with the ways of Washington. Employees say budget discussions that once might have taken hours take days or weeks as new managers struggle to navigate unfamiliar terrain.

Haaland later said the “real cost” of the move was the loss of more than 200 “valued, experienced career employees who felt that they couldn’t uproot themselves the way the administration wanted them to.”

The impact on minority employees has been particularly stark.

The move decimated the ranks of the planning staff responsible for establishing multi-decade rules for how the country’s public lands can be used, including setting the balance between fossil fuel extraction and conservation. That division had more than 20 headquarters positions during Trump’s first year in office. Just four of those people remained after the move.

“It’s like they intensely wanted to create dysfunction in the agency. And they did. They succeeded in that.”

And so, Tracy Stone-Manning has been set up to fail, and we shouldn’t expect a whole lot for awhile from BLM’s plans for “a multiyear shift from fossil fuels to renewable energy on public lands.”

National Forest Planning News

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As Matthew just posted, the Rio Grande National Forest has reached the penultimate phase of forest planning – the courtroom.  Here’s a few other updates that address some things we have discussed here.

Helena-Lewis and Clark decision

The Helena-Lewis and Clark National Forest has released its final revised forest plan after “a more than six year planning process.” This article provides highlights. In reference to travel planning, the forest supervisor indicated that since it had been completed in recent years, the Forest Service did not revisit those decisions in the forest plan (which doesn’t get the relationship quite right because travel plan designation decisions are not made in a forest plan, which I alluded to in a comment here).

Among the more controversial changes from the old forest plan are the replacement of elk hiding cover standards. According to the forest supervisor,

The standards became difficult and in some cases impossible to meet, Avey has said, due to changes on the ground such as high insect mortality in the forest.  The 2021 plan uses “security areas,” defined as blocks of habitat away from roads and guidelines, rather than standards, for tree cover. The changes provide the agency more flexibility as land use or ecology changes, he said. Wildlife advocates have pushed back for years on the shift from hiding cover standards to security areas, saying the standards are both scientifically proven and enforceable.

The Forest wants “flexibility” and the Montana Wildlife Federation wants the plan to be “enforceable.” “MWF is looking forward to addressing this glaring oversight with the Forest.”

Here is the forest supervisor’s take on the 2012 Planning Rule:

Drafting the plan fell under a 2012 Forest Service planning rule, which Avey believes made for a much improved finished product that takes a more holistic approach at the landscape. The rule directs the agency to define “desired conditions,” with subsequent decisions needing to move towards those goals.

“It’s much more powerful and easier to understand, I think, for the public and our staff,” he said. “It will also keep these plans fresher into the future as opposed to how dated our ’86 plans were.”

GMUG draft comments

The Outdoor Alliance has submitted comments on the Grand Mesa, Uncompahgre, and Gunnison National Forests Draft Revised Forest Plan that focus on recreation issues that we have discussed.  One is high levels of dispersed recreation use, for which the Alliance has proposed designation of specific areas for high use “recreation emphasis.”  Another is the effect (or not) of dispersed recreation on wildlife, stating that “the research on the effect of non-motorized, trail-based recreation on wildlife populations remains inconclusive,” so the Forests should “reconsider the limits on non-motorized, trail-based recreation within Wildlife Management Areas.”

Black Hills initiates revision

We’ve discussed (such as here) the new information about timber inventories on the Black Hills National Forest, and they have officially initiated the revision of the forest plan, which should produce a definitive answer based on the best available scientific information that will make everyone happy.  To summarize:

Just after the last update was introduced in 2006, the Mountain Pine Beetle Epidemic ravaged forest vegetation for over 10 years.  Jeff Tomac, Forest Supervisor of Black Hills National Forrest, discussed the impact this event had on the ecosystem.  “Timber sustainability on the Black Hills National Forest will be one of the assessments that we will be working through and a lot of interest top many people in and around the Black Hills,” he said.

It is interesting that, while many forest plans have never been revised (and are over 30 years old), a few are on their second revision (the Wayne is another).

 

NFS Litigation Weekly November 5, 2021

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The Forest Services says, “Nothing to Report.”

So here’s some loose ends from in or around October.

On September 29, the Blue Mountains Biodiversity Project persuaded the district court to enjoin 78 acres of a logging project adjacent to the Walton Lake Recreation Area on the Ochoco National Forest.  The Forest Service had failed to adequately consider site-specific impacts.  (This case was introduced here.)

  • Griffin Half Moon timber sale

Attorneys for plaintiffs in Klamath Siskiyou Wildlands Center v. U. S. Bureau of Land Management have announced that the district court for the District of Oregon has enjoined the Griffin Half Moon timber sale in southwest Oregon because of the BLM’s failure to properly analyze the effects of the project on the great gray owl.  The BLM had argued that, because it tiered to the 2016 FEIS for its resource management plan (RMP), it was therefore entitled under NEPA to not prepare further analysis regarding the owls.  Having not seen the opinion from the district court, I don’t know whether the district judge adopted all of the magistrate’s specific reasoning, but the magistrate judge had concluded in January that:

“In sum, while the 2016 RMP allocates a large network of reserve lands for great gray owls and predicts a long-term increase in species habitat, it-fails to contain a site-specific Project area analysis of effects on great gray owls… Although the Project implements a timber management plan directed under the 2016 RMP and FEIS, the BLM’s approach to assessing effects on the great gray owl – within the REA (project EA) and through tiering – is not supported under NEPA”.

WildEarth Guardians, Western Watersheds Project, and Rocky Mountain Wild are suing the U.S. Fish and Wildlife Service over their management of endangered black-footed ferrets in Wyoming as a “nonessential experimental population.”  Lack of reintroductions, coupled with the proposed rollback of protections for a previously reintroduced population in Thunder Basin National Grassland, motivated the group to challenge Wyoming’s arrangement with the Fish and Wildlife Service.

On October 29, the parties in Friends of the Wild Swan v. Haaland adopted a settlement agreement which halted efforts by the U. S. Fish and Wildlife Service to delist the Canada lynx based on shortening the time span for considering climate change threats, from 2100 to 2050, because of what officials said were uncertainties in long-term climate models.  Instead, the FWS will prepare a recovery plan by December 2024.  (This news release includes a link to the agreement.)

  • Canada lynx trapping

The Center for Biological Diversity has filed a 60-day notice of intent to sue USDA’s Animal Services division over the inadequate analysis of the risks to lynx as a result of the agency’s wolf-trapping program in Minnesota.

In Montana, after legislation promoting trapping of wolves, the state has agreed to abide by a previous settlement whereby it managed two lynx protection zones covering occupied lynx habitat in northwest Montana and the Greater Yellowstone area where special trapping regulations were designed to protect lynx, and indirectly, grizzlies.

On October 25, the U. S. Fish and Wildlife Service published a proposed rule to designate critical habitat for the coastal distinct population segment of Pacific marten on 1,413,305 acres of land in northwestern California and southwestern Oregon.  (The article includes a link to the proposed rule.)

On September 28, the U. S. Fish and Wildlife Service proposed to list the Penasco least chipmunk as an endangered species, and proposed critical habitat in New Mexico.  The species is found on the Lincoln National Forest, almost exclusively in designated wilderness.

A snowboarding social media prankster who has repeatedly sparked the ire of the National Forest Service, including one incident in which he was photographed purportedly defecating in the waters of the off-limits Maroon Lake near Aspen, was found guilty Monday of breaking into a closed area and snapping pictures of himself doing jumps on a snowmobile to promote his ski-gear company.  The magistrate judge found him guilty of taking photos on National Forest Service lands to sell merchandise without getting a permit.”   (Apparently no first amendment problems with these photos.)

In October the federal court in Jackson, Wyoming found convicted an individual of three misdemeanor citations: residing on forest lands, leaving a campfire unattended and leaving a campsite in unsanitary conditions on the Caribou-Targhee National Forest.

Kellogg’s may be in a jam after a $5 million class-action lawsuit was filed over the alleged lack of the berry in the company’s frosted strawberry-flavored Pop-Tarts. The complaint filed in August claimed that Kelloggs gives “consumers the impression the fruit filling contains a greater relative and absolute amount of strawberries than it does” because “its filling contains a relatively significant amount of nonstrawberry fruit ingredients – pears and apples – shown on the ingredient list.”

 

NFS Litigation Weekly October 29, 2021

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Actually weekly again.  The Forest Service summary is here:  NFS Litigation Weekly October 29 2021 Email

Shorter summaries below include a link to court documents.

COURT DECISION

Florida Defenders of the Environment v. U.S. Forest Service (11th Cir.) – On October 25, the 11th Circuit Court of Appeals issued a decision favorable to the Forest Service regarding the Kirkpatrick Dam, Rodman Reservoir, and Eureka Lock and Dam located, in part, on the Ocala National Forest, and the associated 1994 special use permit (SUP) that expired in 2002, concluding that enforcement action or inaction by the Forest Service, and the Forest Service’s decision on the related petition for Rulemaking are at the Agency’s discretion, and not subject to judicial review.  (The district court decision was addressed here.  This article provides more background.)

NEW CASES

Sierra Snowmobile Foundation v. U.S. Forest Service (E.D. Cal.) — On October 13, the plaintiff organizations and individuals filed a complaint regarding the over-snow vehicle (OSV) use designation on the Stanislaus National Forest, which would eliminate historic OSV-use areas.

Friends of the Inyo v. U.S. Forest Service (E.D. Cal.) — On October 21, Friends of the Inyo, Western Watersheds Project, Center for Biological Diversity, and Sierra Club filed a complaint regarding the the Kore Mining project in Inyo National Forest’s Long Valley area, which was based on a categorical exclusion for one year or less of mineral exploration and a separate CE for reclamation, and may affect the Bi-State sage grouse and Owens tui chub.

 

BLOGGER’S BONUS

  • Fish and Wildlife Service cases

Northern spotted owl:  American Forest Resource Council v. Williams (D. D.C.) – On October 13, plaintiffs, a trade association and several local governmental entities located in the Pacific Northwest, were denied a preliminary injunction by the district court against two regulations delaying the elimination of northern spotted owl critical habitat because they failed to show any concrete and imminent injury that an injunction would remedy.

Mexican wolf:  Center for Biological Diversity v. Haaland (D. Ariz.) – On October 14, the district court remanded the 2017 Mexican Wolf Recovery Plan to the Fish and Wildlife Service because it failed to include “objective, measurable criteria to assess the threat of human-caused mortality; the threat from inadequate regulatory mechanisms; genetic threats; and threats to habitat.”

  • Updates to Trump Administration rulemaking litigation

NEPA:  On October 7, the Council on Environmental Quality published the first of two proposed rules to “generally restore” NEPA regulations that were in place prior to the 2020 updates.  (There is some discussion of the litigation here.)

ESA:  On October 27, 2021, the Fish and Wildlife Service and National Marine Fisheries Service published two proposals in the Federal Register to rescind critical habitat regulations promulgated by the Trump Administration that defined the term “habitat” and promoted consideration of economic tradeoffs of designation.  (This earlier note lists some of the litigation, and it was also discussed here.)

On October 21, fishing and conservation groups joined with the state of Oregon, the Nez Perce Tribe and the Biden administration to seek a pause in litigation challenging the latest federal plan for hydropower operations on the Snake and Columbia rivers in an effort to save endangered salmon runs.  (A related discussion is here.)

NFS Litigation Weekly October 22, 2021

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After about six weeks we have another summary from the Forest Service.  The Forest Summary is here:  NFS Litigation Weekly October 22 2021 EMAIL

It only covers two recent cases, so I’ve filled in some other happenings from early October below.

COURT DECISION

Swomley v. Schroyer (10th Cir.) — On October 15, 2021, the 10th Circuit Court of Appeals affirmed the District Court of Colorado’s September 3, 2020 order upholding NEPA compliance for the Upper Fryingpan Vegetation Management Project on the White River National Forest, challenged by 21 nearby residents who used the area for recreation.  Additional background is in this article.

NEW CASE

Umpqua Watersheds v. Chambers (D. Oregon) — On October 14, 2021, Umpqua Watersheds, Cascadia Wildlands, and Oregon Wild filed a complaint in the District Court of Oregon against the Forest Service regarding the Archie Creek Fire Roadside Danger Tree Project on the Umpqua National Forest. The claims focus on whether a large-scale salvage logging project constitutes road “repair and maintenance” eligible for a categorical exclusion, and on consistency with the Northwest Forest Plan in late successional and riparian reserves.

 

BLOGGER’S BONUS

Court decision in Alliance for the Wild Rockies v. Marten.  On October 5, the district court for the District of Montana adopted the magistrate judge’s findings and enjoined the Soldier-Butler Project on the Lolo National Forest because it was not consistent with the forest plan and also violated ESA.   (I’ve provided a more detailed summary of the forest planning implications of this case below.)

Court decision in Sequoia ForestKeeper v. U.S. Forest Service.  On October 5, the district court for the Eastern District of California adopted its reasoning from its prior decision to grant a TRO (discussed here) to grant plaintiff’ motion for a preliminary injunction against the Plateau Roads Hazard Tree Project on the Sequoia National Forest:  “for the reasons that the Ninth Circuit explained in EPIC, allowing for large scale tree removal projects is inconsistent with the purposes of categorical exclusions …”  (The TRO decision was described on this blog here.)

New case:  Center for Biological Diversity v. Feldhausen.  On October 6, the Center for Biological Diversity and Maricopa Audubon Society sued the U.S. Bureau of Land Management in the District of Arizona for failing to protect the Huachuca water umbel, a semi-aquatic endangered plant, from livestock grazing in the San Pedro Riparian National Conservation Area.  The complaint alleges that failing to fence cattle out of the area violates BLM’s affirmative duty under section 7(a)(1) of the ESA to utilize its authorities to carry out an essential program for the conservation of this endangered species.  (The news release includes a link to the complaint.)

New case:  Center for Biological Diversity v. U. S. Bureau of Land Management.  On October 7, the Center for Biological Diversity and Maricopa Audubon Society sued the U.S. Bureau of Land Management and Fish and Wildlife Service in the District of Arizona for failure to reinitiate ESA consultation on the effects of livestock grazing on threatened and endangered species in the Gila Box Riparian National Conservation Area in southeastern Arizona. Plaintiffs also include a Freedom of Information Act claim.  (The news release includes a link to the complaint.)

New case:  Center for Biological Diversity v. U. S. Environmental Protection Agency.  On October 4, The Center for Biological Diversity sued the EPA for issuing a Clean Water Act permit without fully assessing the risks posed to freshwater endangered species by pesticides applied directly to water.  The nationwide “pesticide general permit” establishes the requirements for pesticide applications directly to water for purposes including forest canopy pest control.  (The news release includes a link to the petition for review by the Ninth Circuit Court of Appeals, as provided in the Clean Water Act.)

SOLDIER-BUTLER (Alliance for the Wild Rockies v. Marten, D. Mont.)

Finalized in April 2020, the Soldier-Butler project on the Lolo National Forest would burn and thin about 10,000 acres and harvest 18 million board feet.  The Forest Service intended to build 7 miles of new roads, 9 miles of temporary roads and it rescinded a previous commitment on the adjacent Frenchtown Face project to decommission 37 miles of existing road.

The forest plan included two standards for elk winter range within the project area that said, “Retain as a minimum a 50:50 coverage:forage ratio. The majority of cover should be thermal cover, that is, trees greater than or equal to 40 feet tall with a crown density greater than or equal to 50 percent.”  The Forest Service first argued that this was just a goal that could yield to other competing uses, but the court said, “the Forest Service’s failure to comply with a forest plan’s goal may very well constitute a NFMA violation,” citing a 9th Circuit precedent.  However, the court also concluded that, “a minimum 50:50 coverage:forage ratio be retained is about as close to a standard as it gets.”  While the other language in this standard is more goal-like, the court concluded, “the record is not sufficiently developed to permit this Court to make the call one way or another. Accordingly, the Project violates NFMA.”

The Forest Service also tried to argue that, because they had documented that the project would not provide the 50:50 ratio, they would not implement some of the activities from the project.  The court found that, “the record simply did not reveal how these alternative measures would ensure the Project complied with the Forest Plan’s 50:50 coverage forage ratio standard.”  While the court would not require a particular methodology, it said, “Defendants have not provided any updated calculation at all. The Court cannot simply take Defendants’ word.  In other words, Defendants need to show their work.”

Another standard said, “Provide stands at least 30 to 40 acres in size that are decadent, multi-storied, fully stocked, contain snags with dead and down material greater than 15 tons per acre, and contain 15 trees per acre greater than 20 inches d.b.h.”  The Forest Service tried to argue that this did not apply to the Project because there were no existing stands that met these criteria.  The court found that interpretation to be inconsistent with the language of the standard that applied it to this management area to protect old-growth dependent wildlife species.  Since the project could result in the loss of snags, the Forest Service needed to explain how it would meet this standard, but failed to do so.

Reinitiation of ESA consultation on the forest plan is necessary because the Project was potentially not compliant with the incidental take statement for the 2012 grizzly bear forest plan amendment.  The court noted, “Defendants have not pointed to any authority supporting the notion that site-specific analysis absolves them of their obligations to comply with the governing forest plan.”

Additional plan consultation is necessary to address 137 miles of “undetermined roads,” because there was no evidence that these roads had been addressed, or even been in existence, for the 2012 consultation when the baseline amount of roads was established.  Since the baseline is unclear, it is not possible to tell if the incidental take limit for the forest plan has been exceeded by this Project.  While that limit only applies to public roads, there is evidence that some of these “undetermined” roads are actually public roads that would be subject to this limit.

In addition, the site-specific 2020 Project Biological Opinion did not adequately consider the Project’s reversal of a prior decision to decommission 37 miles of roads.  The Forest Service argued that these roads were a prior federal action and therefore are not considered cumulative effects under ESA, but the court held that undoing that prior decision was a direct effect of this Project, and must be considered in consultation.   This is true regardless of the possibility the Forest Service would not have implemented the road decommissioning decision, because the court must assume that, “Forest Service will abide by ‘legally-binding commitments . . . [made] in a record decision.’”

 

Public Lands Litigation Update – September 2021

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Nothing from the Forest Service for September, but here’s what I’ve seen.  (Links are to articles, news releases or court opinions.)

FOREST SERVICE

(Court decision in WildEarth Guardians v. U. S. Forest Service.)  On September 10, the federal court for the Eastern District of Washington denied a challenge to the Colville National Forest revised forest plan’s direction related to livestock grazing and gray wolves because the plaintiffs could not show they were injured without a site-specific grazing decision based on the revised plan, and because the state “is the lead agency primarily responsible for wolf management operations.”  The court also upheld ESA consultation compliance for whitebark pine, Canada lynx and grizzly bears.

(Court decision.)  On September 21, the Ninth Circuit Court of Appeals affirmed the dismissal of a case filed against the Bitterroot National Forest by two landowners contesting the scope of a Forest Service road easement across their land because they failed to meet the 12-year statute of limitations under the Quiet Title Act for making their claims.

(Court decision.)  On September 21, the federal district court of Wyoming determined that the Bridger-Teton National Forest had improperly authorized the State of Wyoming to feed elk on two winter feedgrounds because they did not appropriately analyze the harmful impacts of concentrated feeding on wildlife, including the increased risk of transmission of lethal chronic wasting disease.

(New lawsuit.)  On September 21, the Alliance for the Wild Rockies filed a lawsuit in the Montana federal district court against the Ripley logging project on the Kootenai National Forest near the Cabinet-Yaak grizzly bear recovery zone.

(Court decision in Yaak Valley Forest Council v. Vilsack.)  On September 28, the federal district court for Montana ordered the Kootenai National Forest to comply with the requirements of the National Trials System Act after nearly a decade of delay by preparing a comprehensive plan for the Pacific Northwest National Scenic Trail by December 31, 2023.  The Forest could not rely on its forest plan to meet this requirement.

BLM

(New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management.)  On September 16, five environmental groups sued the Interior Department, Bureau of Land Management and U.S. Fish and Wildlife Service regarding the 2019 West Mojave Route Network Project and plan amendments for violating NEPA, FLPMA, and ESA when authorizing off-road vehicle use and cattle grazing in the California Desert Conservation Area.  (The news release includes a link to the complaint.)

FISH AND WILDLIFE SERVICE

(Notice of intent to sue.)  On September 8, three environmental groups filed a notice of intent to sue over a delayed response to their 2020 petition seeking to list the Alexander Archipelago wolves under the Endangered Species Act.  Alleged threats to the wolves include “the intensive clear-cut logging of old-growth forests on the Tongass National Forest” and associated road construction, and loss of regulatory “protections from the 2001 Roadless Area Conservation Rule on the Tongass National Forest.”  (A link to the notice is included in this article.)

(Court decision in WildEarth Guardians v. Haaland.)  On September 20, the district court for the Central District of California invalidated the decision by the U. S. Fish and Wildlife Service to not list the Joshua tree as threatened or endangered.  The court held that the agency’s determination that climate change doesn’t threaten the trees to such an extent to warrant protection was arbitrary and capricious.  (The court’s opinion is here.)