Jon Haber

As September comes to a close, and in the absence of Forest Service “weekly” litigation summaries since September 3 (with the most recent entry being August 7), here’s some other things that happened in court related to public land management during the month of August.

FOREST SERVICE

• Private land access

(Court decision in Grill v. United States (Court of Federal Claims).)  The claim of an individual private plaintiff against the Forest Service for a Fifth Amendment “taking” of his property rights was dismissed by the claims court because there was no final decision on a special use permit regarding the construction of a bridge to access to his property through the Tahoe National Forest.

• Southwest grazing

(Litigation settlement in Center for Biological Diversity v. U. S. Forest Service (D. Ariz.).)  On August 18, the Forest Service agreed to additional monitoring and enforcement of grazing restrictions and future planning on 42 grazing allotments on the Apache-Sitgreaves and Gila national forests to protect at-risk riparian species.  (The linked article includes a link to the settlement agreement.)

• Willamette hazard trees

(New case.)  On August 18, three Oregon environmental groups sued the Willamette National Forest over its decision to use the “road repair and maintenance categorical exclusion” to remove “hazard trees” from burned areas along over 400 miles of road and encompassing thousands of acres.  (Other hazard tree litigation was discussed here.  Two other new cases against the Willamette and the Oregon BLM involving fire salvage are mentioned here)

BLM

• Fuel break FOIA

(New case.)  The Center for Biological Diversity filed a lawsuit under the Freedom of Information Act in federal court in Nevada in early August against the Bureau of Land Management seeking information about plans to create fuel breaks across six western states (described here).  This follows a January Notice of Intent to Sue under the Endangered Species Act for failure to consult with the U. S. Fish and Wildlife Service.

• Roadside salvage

(Notice of intent.)  Five environmental groups have notified the BLM of their intent to sue under the Endangered Species Act regarding development of a categorical exclusion that allows the BLM to conduct salvage harvests of certain sizes without preparing an EA, and its use for a 910-acre salvage harvest in Oregon.  (Guest appearance by one of our contributors.)

• Amargosa vole

(Notice of intent.)  On August 19, the Center for Biological Diversity filed a notice of intent to sue the U.S. Bureau of Land Management and U.S. Fish and Wildlife Service for failing to protect critical habitat for Amargosa voles from recreation and groundwater pumping in marshes in the Mojave Desert in California.  (The news release includes a link to the notice.)

OTHER

• Clean Water Act

(Court decision.)  On August 30, the federal district court in Arizona vacated the April 2020 Navigable Waters Protection Rule in which the Trump Administration revised the definition of Waters of the United States (WOTUS), narrowing the geographic scope of the Clean Water Act (which we also discussed here).

• Willamette River dams

(Court decision in Northwest Environmental Defense Center v. U. S. Army Corps of Engineers (D. Or.).)  On September 1, the district court directed the Corps to take actions to protect migrating listed salmon and steelhead that had been required in 2008.  The presence of these listed species affects management on national forests in the Willamette basin.  This was one of those unusual environmental cases where the judge ordered a federal agency to actually do something substantive.  The judge convened a panel of experts from the environmental groups, Army Corps and National Marine Fisheries Service to design the implementation plans, and ordered the Corps to begin drawing down the water level in Cougar Reservoir on the South Fork McKenzie River east of Eugene, and to begin conducting overnight spill operations at Foster Dam on the South Fork Santiam River near Sweet Home.

• Renewable energy

(New case.)  Awhile back there was a post on environmentalist views of renewable energy.  Here are a couple of articles related to lawsuits against federal approval of Vineyard Wind, the first industrial-scale offshore wind project in the U.S.  One lawsuit is from residents of Nantucket Island, but, “Those Nantucket residents are not alone. Beach communities from North Carolina to Maine and the Great Lakes joined together to form the American Coalition for Ocean Protection.”  This sounds like a NIMBY group with a huge back yard, but this article points out that the project is also being challenged by a competing developer of on-shore wind energy (pretending to be concerned about environmental impacts and NEPA).  It also suggests opposition from “wildlife organizations” that would want to avoid harms like those identified by the ACOP.  I don’t think renewables will get a free pass.

The most recent “weekly” we received and posted was August 6.

The Forest Service summary for this week is here (it contains only one action from a month ago):  NFS Litigation Weekly September 03 2021 Email

NOTICE OF INTENT TO SUE

• 20210807_NOI_Ripley Project_Kootenai NF_grizzly and lynx (2)

The Forest Service received a Notice of Intent to Sue under the Endangered Species Act dated August 8 from the Alliance for the Wild Rockies regarding the effects on grizzly bears and lynx of the Ripley Project, Kootenai National Forest Plan Access Amendment and Cabinet-Yaak Recovery Zone BORZ (Bears Outside of Recovery Zones) Mapping on the Kootenai National Forest.  Additional comments from AWR are here.

BLOGGER’S BONUS (through August 8)

Forest Service litigation

• Camp Lick Project, Malheur National Forest

(New lawsuit.)  On July 12, the Blue Mountains Biodiversity Project filed a complaint alleging that the Camp Lick Project on the Malheur National Forest violates NFMA by permitting the removal of trees more than 21 inches in diameter, contrary to the “Eastside Screens” limit, which was still in effect when the project decision was made.  Recent discussion of the amendment to replace the Eastside Screens is here.

• Lolo Insect and Disease Project, the Nez Perce-Clearwater National Forests

(Court decision – Friends of the Clearwater v. U. S. Forest Service (D. Idaho).)  On August 4, the district court enjoined the Lolo Insect and Disease Project on the Nez Perce-Clearwater National Forests in critical habitat for threatened Snake River Basin steelhead for failing to reinitiate consultation with the National Marine Fisheries Service because of new information about declining populations, and NMFS’ failure to use that information in the consultation process.  More on the plaintiffs’ views are here.

• Lincoln National Forest grazing

(New lawsuit – Center for Biological Diversity v. Moore (D. N.M.).)  On August 5, the Center for Biological Diversity and the Maricopa Audubon Society filed a complaint in the district court challenging the Lincoln National Forest’s failure to protect streamside meadows from cattle, which are designated critical habitat for the endangered New Mexico meadow jumping mouse.  The news release includes a link to the complaint.

Other litigation

• San Juan Basin

(Court decision – Dine´ Citizens Against Ruining Our Environment v. Bernhardt (D. N.M.).)  On August 3, the district court denied a motion for a temporary restraining order and preliminary injunction against approval by the BLM of oil and gas production in the San Juan Basin.  The case involved an EA Addendum, supplementing a total of 81 EAs covering 370 APDs which had been initially approved between 2014 and 2019.

• Gualala River

(Court decision – Friends of Gualala River v. Gualala Redwood Timber, LLC (N.D. Cal.).)  On August 3, the federal district court denied a preliminary injunction in litigation against the Dogwood Timber Harvest Plan for private land approved by the California Department of Forestry and Fire Protection.  The court held that prior proceedings in state courts had already addressed claims under the federal Endangered Species Act concerning four protected species: the California red-legged frog; the northern spotted owl; the Northern California steelhead; and the California Central Coast Coho salmon.

• BLM transmission line

(Court decision – Stop B2H Coalition v. Bureau of Land Management (D. Or.).)  On August 4, the district court upheld the BLM’s decision siting a powerline between Boardman, Oregon and Idaho for the Idaho Power Company against NEPA claims, including effects on greater stage-grouse.  The decision is also discussed in this article.

Two weeklies in two weeks!

The Forest Service summaries are here:  NFS Litigation Weekly August 06 2021 FINAL

COURT DECISION

• 0001_Sequoia TRO

Sequoia ForestKeeper v. U.S. Forest Service (E.D. Cal.) — On July 23, the district court granted the plaintiffs’ motion for a temporary restraining order against the Plateau Roads Hazard Tree Project on the Sequoia National Forest because it inappropriately used the categorical exclusion for road maintenance, and the prior 9th Circuit EPIC case is controlling.

NEW CASES

• 0002_21_3096 Washington State Snowmobile Association Wenatchee Alpine Hut Complaint

Washington State Snowmobile Association v. U.S. Forest Service (E.D. Wash.) — On July 27, plaintiffs filed a compliant alleging the Forest Service issued a special use permit to Wenatchee Mountain Alpine Huts, LLC to develop commercial winter lodging at the top of Van Epps Pass on the Okanogan-Wenatchee National Forest without following appropriate NEPA procedures.  The substantive issue appears to be whether the huts would pose a risk to public health and safety from avalanches and from increased interaction between motorized and non-motorized users as a result of the increased use of the area.

• 0003_AWR Greater Red Lodge Complaint

Alliance for the Wild Rockies v. Moore (D. Mont.) – On July 26, the plaintiffs filed a complaint against the Greater Red Lodge Project on the Custer Gallatin National Forest.  Issues include lynx habitat mapping, effects on lynx and compliance with the HFRA definition of WUI.  The project was stopped in 2015 by a previous lawsuit.  Here is some background, and here is plaintiffs’ perspective.

BLOGGER’S BONUS

• Roan Mountain herbicide spraying

Court decision:  Orr v. U. S. Environmental Protection Agency (W.D. N.C.) – On July 22, the district court denied a stay pending appeal to the 4th Circuit in one of a series of cases against the French Broad Electric Membership Corporation’s planned spraying of herbicides on its right-of-way easements (apparently including national forest lands).

• Gila Box grazing NOI

On July 22, the Center for Biological Diversity and Maricopa Audubon Society filed a notice of intent to sue the BLM and the Fish and Wildlife Service for failing to protect critical (riparian) habitat for seven threatened and endangered species in the Gila Box Riparian National Conservation Area in southeastern Arizona based on documented cattle grazing damage.  (The news release has a link to the NOI.)

• Idaho and Montana wolves NOIs

On July 19, a coalition of ten environmental groups filed a 60-day notice of intent to sue the state of Idaho over a new law that enables the year-around trapping of wolves on private property.  They contend the expanded use of traps and snares to catch wolves also harms grizzly bears and lynx, in violation of ESA.   The recorded interview also discusses a similar NOI in Montana against legalizing the use of snares (which would apply to national forests), as described here.

The Forest Service summary is here:  NFS Litigation Weekly July 30 2021 Email

(The last previous “weekly” summary was July 9.)

COURT DECISIONS

• 0001_20210723_SGA_v_UnitedStates_04-786_USCourtFederalClaims_SacromentoAllotments_Lincoln_opinion_order

Sacramento Grazing Association, Inc. v. United States (U.S. Court of Federal Claims) – On July 23, 2021 the U.S. Court of Federal Claims reconsidered the court’s 2017 liability determination that the Forest Service “effected a physical taking of plaintiffs right to beneficial use of stock water sources under New Mexico law” in the Sacramento Allotments of the Lincoln National Forest. The Court found that the plaintiffs did not possess a right to beneficial use of stock water sources under New Mexico water law at the time of the alleged taking.

• 0002_20210723_AllianceWildRockies_v_Pierson_21-244_DIdaho_IdahoPanhandleNF_HannaFlatsProj_order_grantingPI

Alliance for The Wild Rockies v. Pierson, (D. Idaho) – On July 23, 2021 the district court granted a preliminary injunction (for a second time) on the Hanna Flats Project on the Idaho Panhandle National Forest because the Forest Service failed to apply HFRA’s definition of WUI, and instead relied exclusively on Bonner County’s community wildfire protection plan’s determination of the WUI, which is inconsistent with HFRA’s definition and cannot provide a justification for a NEPA categorical exclusion under HFRA.  (Here is an AP news article.)

LITIGATION UPDATES

• Motion to Alter or Amend Judgment

WildEarth Guardians v. Steele and Swan View Coalition v. Steele (D. Mont.)- On July 22, 2021 the plaintiffs filed a motion to amend the district court’s June 24, 2021 decision against the Flathead National Forest revised land management plan by requesting the court to vacate new road management requirements, and to reinstate the requirements of the former forest plan to protect grizzly bears and bull trout.

NEW CASES

• 0003_Wilderness Complaint

Wilderness Watch v. Marten (D. Mont.) – On July 22, 2021, the plaintiff filed a complaint in the district court against the Forest Service regarding the North Fork Blackfoot River Westslope Cutthroat Trout Conservation Project on the Lolo National Forest. The project would authorize large-scale helicopter-assisted stream poisoning to remove previously stocked fish, followed by the stocking of Westslope cutthroat trout in the Scapegoat Wilderness, including in areas that were likely historically fishless.  (We discussed this project here, and here is a local news article.)

BLOGGER’S BONUS

• Tonto grazing

(Court decision.)  Neighbors of the Mogollon Rim, Inc. v. U.S. Forest Service (D. Ariz., June 30, 2021)

The district court denied a motion for a preliminary injunction against the Tonto National Forest’s allotment management plan and grazing permit for the Bar X allotments and Heber-Reno Sheep Driveway.  Plaintiffs are owners of land in private enclaves within an area of national forest lands that was reopened for grazing.  The court’s ruling is based entirely on the balance of harm and does not address the merits of the case.

• Colville grazing

(Notice of Intent.)  Lands Council v. U. S. Forest Service (E.D. Wa.)  Three conservation groups notified the Colville National Forest on July 10 of their intent to add a claim to their existing lawsuit against the issuance of a 10-year grazing permit for two allotments that will challenge the failure to consult with the Fish and Wildlife Service concerning effects on bull trout and critical habitat.  (The linked article includes a link to the NOI.)

• BLM horse gathering

(Court decision – BLM.)  Friends of Animals v. U. S. Bureau of Land Management (D. D.C., July 13, 2021)

The district court denied a motion for a preliminary injunction to stop BLM’s gather and removal of wild horses inside and adjacent to the Onaqui Mountain Herd Management Area in Utah.  The court found that Plaintiff’s likelihood of success on the merits was low, and that due to the extreme drought, “Allowing the horses to remain on the range could imperil their health and the ecological well-being of the range.”

• BLM grazing

(Notice of Intent – BLM.)  The Center for Biological Diversity and the Maricopa Audubon Society have filed a “60-Day Notice of Endangered Species Act Violations” with the Bureau of Land Management over cattle trespassing along the San Pedro River in the San Pedro Riparian National Conservation Area in Arizona.  Listed species that may be adversely affected are the western yellow-billed cuckoo, the northern Mexican garter snake and especially the Huachuca water umbel, an aquatic plant.

• Trump un-dos

ESA regulations:  Trump-era changes to the regulations implementing the Endangered Species Act are currently subject to three lawsuits.  The Biden Administration’s Spring 2021 Unified Agenda provides general timeframes for changing them, each of which will go through a notice and comment rulemaking process.

Northern spotted owl critical habitat:  The U. S. Fish and Wildlife Service is proposing to redesignate northern spotted owl critical habitat, restoring protection to all but about 200,000 acres of the 3.4 million acres removed by the Trump Administration.  (That decision is currently under litigation, as is the Biden Administration’s delay in implementing it, as described here).

Tongass old growth:  In addition to its efforts to reapply the Roadless Area Conservation Rule to the Tongass National Forest (discussed here), the Biden Administration has announced it is freezing any remaining old growth timber sales from the Forest and will pivot to investing in other sectors of Southeast Alaska’s economy.

• Law enforcement

Bull trout poaching:  A fourth poacher was convicted of illegally taking threatened bull trout from the Metolius River in the Deschutes National Forest.

Arrowhead theft:  Two men were convicted of unlawfully removing and damaging archeological resources on the Kisatchie National Forest.  The excavation site was designated by the United States government as a known Archeological Site, and the defendants uncovered various Native American artifacts, including arrowheads and some chips of Native American tools or utensils.

Maple tree theft:  A jury convicted Justin Andrew Wilke of conspiracy, theft of public property, depredation of public property, trafficking in unlawfully harvested timber, and attempting to traffic in unlawfully harvested timber from an illegal maple logging operation on the Olympic National Forest.  Wilke claimed the wood he sold to a Tumwater mill had been harvested from private property with a valid permit.  However, at trial, Richard Cronn, Phd., a Research Geneticist for the USDA Forest Service, testified that the wood Wilke sold was a genetic match to the remains of three poached maple trees investigators had discovered in the Elk Lake area. This was the first use of tree DNA evidence in a federal criminal trial.   (For Sharon!)

Off-road drivers:  Off-road drivers are damaging the Bankhead National Forest, and officials say they are struggling to stop the activity.  The Forest Service estimated only about 3% of the illegal riders are ever caught. He said it is usually a group of riders and they usually have lookouts with walkie-talkie radios to warn the drivers. In the rare event they are caught, the drivers face up to $5,000 in fines, six months in the county jail and a federal court appearance.

There WAS something to report this week (but it goes back a few weeks).  The Forest Service summaries are here:

Litigation Weekly July 09 2021 EMAIL

Links to court documents are provided in the abbreviated summaries below.

COURT DECISIONS

• 0001_WildEarthGuardians_v_Steele_19-56_DMont_FlatheadForestPlan_order

On June 24, 2021 the District Court of Montana issued an unfavorable decision to the Forest Service and U.S. Fish and Wildlife Service concerning the 2018 Revised Flathead Forest Plan and supporting 2017 biological opinion and their consideration of effects on grizzly bears and bull trout.  (This was previously summarized here.)

• 0002_Finnigan_v_USA_19-35922_9thCir_QuietTitle_Kaniksu_opinion

On June 21, 2021 the 9th Circuit Court of Appeals affirmed the District Court of Montana’s decision that the Rails-to-Trails Act secured title to the government of an abandoned railroad right of way across plaintiff’s land on the Kaniksu National Forest.  (This was also discussed here.)

NEW CASES

• 0003_SequoiaForestKeeper_v_ForestService_21-715_ED_Cal_PlateauRoadHazTreeProj_SequoiaNF_complaint

On July 1, 2021 Sequoia ForestKeeper and Earth Island Institute filed a complaint in the Eastern District Court of California against the Plateau Roads Hazard Tree Project on the Sequoia National Forest regarding the alleged improper use of the categorical exclusion (CE 4) for road repair and maintenance.

• 0004_Murray_v_UnitedStates_21-1492_FederalClaims_UmatillaNF_Oregon

On June 21, 2021, Plaintiffs filed a complaint in the United States Court of Federal Claims alleging a breach of contract by the Forest Service for revoking their ski area permit on the Umatilla National Forest after a dispute over Forest Service management of snowmobile use of the parking lot.

NOTICE OF INTENT TO SUE

• 0005_NOI_RCRA_Trespass_SoldWasteDisposal_SixRivers_Shasta-Trinity_Pumas

The Forest Service (Region 5) received a 90 Day Notice of Intent to Sue under the Resource Conservation and Recovery Act (RCRA) dated June 21, 2021 from the Environmental Protection Information Center and others regarding trespass cannabis farms and the Forest Service’s handling of these trespass sites, including solid waste discarded and left on the Six Rivers, Shasta-Trinity, and Plumas National Forests.  (This was also discussed here.)

The Forest Service has had “nothing to report” the last two weeks, but so you don’t feel like you’re missing something, here is what apparently didn’t make the cut.  (Links are primarily to news articles.)

SETTLEMENTS

• Colville ATVs

In response to the lawsuit summarized here (Conservation Northwest v. U.S. Forest Service), on April 30, 2021, the Colville National Forest withdrew its action that changed the vehicle use class designations for 26 road segments from open to highway legal vehicles only to open to all vehicles, which opened those roads to use by all-terrain vehicles.  On June 7, the court dismissed the case.

• Ochoco Black Mountain Project

On April 20, Central Oregon LandWatch and Oregon Wild filed a lawsuit challenging the Black Mountain Project on the Ochoco National Forest (introduced here).  On June 14, the court approved a settlement which, according to plaintiffs, will require the Forest Service to “exclude sensitive riparian habitat…”

ACCESS

• Jefferson NF road

(New lawsuit, between private parties.)  On June 1, a group comprised of hikers, hunters, fishermen and other users of the Jefferson National Forest sued a private landowner under a state statute in a Virginia county court for blocking historic access to the national forest.  The Forest Service had chosen to not pursue the matter in 2008.

• Railroad right of way

On June 21, the 9^th Circuit Court of Appeals held that the ownership of an abandoned railroad right of way near Noxon, Montana reverted to the federal government under the National Trails System Improvement Act.  An adjacent private landowner had brought a quiet title action against the Forest Service.

MARIJUANA

• Hazardous waste cleanup

Four California conservation groups filed a formal notice of intent to sue the Forest Service for failing to clean up hazardous waste associated with trespass cannabis grows on Forest Service lands in California.  While trash and other solid waste is often removed from grow sites after law enforcement, deadly pesticides are routinely left at the former grow site because of the cost and complexity of removal.

• Conviction

Meanwhile, on June 29, a grower pleaded guilty to cultivating marijuana on the Sierra National Forest.

ESA

• Bull trout recovery plan

(Court decision.)  On June 22, the Montana federal district court upheld the Bull Trout Recovery Plan in Save the Bull Trout v. Williams.  The court held the content of recovery plans is largely discretionary, and that the Fish and Wildlife Service could use a matrix addressing management of threats to bull trout instead of population numbers to determine recovery.  (That could raise the stakes for what forest plans should do to protect bull trout.)  (The article includes a link to the opinion.)  Plaintiffs have filed an appeal to the 9th Circuit.

• Eastern hellbender

(New case.)  Following up on their notice of intent to sue in March (provided here), five conservation groups sued the Fish and Wildlife Service for listing only a Missouri distinct population segment as endangered rather than the entire species.  The species occurs on several eastern national forests.  Additional background and a link to the complaint are here.

• Listing actions

Following a petition and lawsuit from the Center for Biological Diversity, the U.S. Fish and Wildlife Service announced that the beardless chinchweed will receive protection as endangered.  One of the remaining populations is found in the area that would be affected by the proposed Rosemont Copper Mine on the Coronado National Forest.  (Litigation related to the mine is discussed here.)

On June 15, the USFWS delisted the water howellia, an aquatic plant, citing (among other things) the protective measures in the Flathead National Forest revised forest plan and the Mendocino National Forest plan.  The delisting notice also states, “The USFS anticipates that water howellia will be given the status of ‘‘species of conservation concern’’ in both plans when the species is delisted.”

On June 24, the U. S. Fish and Wildlife Service proposed downlisting the smooth coneflower from endangered to threatened.  It is found on the George Washington and Jefferson National Forests in VA, Sumter National Forest in SC, and Chattahoochee-Oconee National Forest in GA.  The listing notice emphasized that, “there are currently 16 protected, resilient smooth coneflower populations, and, “These populations are protected on Federal lands from the threats of ecological succession or destruction due to development, primarily because Federal partners are vested in the protection of the species under their management plans.”

Things were a little busier this time.  Forest Service summaries are here:  Litigation Weekly June 18 2021 Email

Court documents related to each case are provided by the links below.

COURT DECISIONS

• Attach1_20210602_WesternWatershedProject_v_ForestService_19-0097_D_Utah_FishlakeNF_MonroeMountainPermits_order

Western Watershed Project v. U.S. Forest Service (D. Utah).  On June 2, the district court granted the Forest Service’s partial Motion to Dismiss one of several claims challenging the decision to not suspend and cancel grazing on three allotments on the Fishlake National Forest for the 2019 grazing season permits.  This case was introduced here.

• Attach2_20210528_UTP_v_FS_21-518_ED_Cal_Fisher_SequoiaNF_order

Unite the Parks v. U.S. Forest Service (E.D. Cal.).  On May 28, the district court denied the plaintiffs’ motion for a preliminary injunction against 45 forest health projects on the Sierra, Sequoia and Stanislaus National Forests that may affect the Southern Sierra Nevada Pacific fisher.  Most of the claims were based on ESA after the fisher was listed as endangered on May 15, 2020.  Regarding the long-term benefits to fisher claimed by the agencies (discussed here), the court found little likelihood that plaintiffs could raise serious questions. The Forest Service and Fish and Wildlife Service received a second notice of intent to sue under ESA on June 10 containing different claims (not linked).

• Attach4_SandraShort_v_FHA_19-285_D_ND_LittleMissouri_Bridge&Road_Recommend
• Attach5_SandraShort_v_FHS_19-285_D_ND_LittleMissouri_Bridge&Road_Order

Short v. Federal Highway Administration (D. N.D).  On May 28, the district court dismissed the Forest Service from the case without prejudice, based on their role as a cooperating agency for Little Missouri Crossing Road and Bridge Project that encroaches on and crosses the Little Missouri National Grassland and the Dakota Prairie Grassland (as well as plaintiff’s property).

• Attach6_20210604_CBD_WildEarth_v_ForestService_20-0128_D_Idaho_IdahoPan_BogCreekRoad_order

Center for Biological Diversity v. U.S. Forest Service (D. Idaho).  On June 4, the district court upheld the Bog Creek Road Project in the Selkirk Grizzly Bear Recovery Zone on the Idaho Panhandle National Forest, which will reopen the road for administrative use by Customs and Border Protection in monitoring the border with Canada.

MAGISTRATE’S RECOMMENDATION

• Flathead revision/grizzly bear amendments

O’Neil v. Steele (D. Mont.).   On June 8, the magistrate judge issued a findings and recommendation favorable to the Forest Service regarding the Flathead National Forest 2018 revised Forest Plan and the Lolo, Helena-Lewis & Clark and Kootenai National Forests amended Forest Plans. These plaintiffs have claimed that the Forest Service did not consider the albedo effect and should have planned for more timber harvest.  (No court document was provided.)

NEW CASES

• Attach8_20210607_AWR_v_Pierson_FS_21-244_D_Idaho_IdahoPan_HannaFlats_complaint

Alliance for The Wild Rockies v. Pierson (D. Idaho).  On June 7, the plaintiff filed a complaint against the Forest Service’s October 11, 2018 Decision Memo (DM) and May 28, 2021 Supplemental DM (based on categorical exclusions) approving the Hanna Flats Project on the Idaho Panhandle National Forest.  The Supplemental DM was the result of the court’s remand on April 27 to address Wildland-Urban Interface boundaries (described here).

• Atach9_20210604_SaveBullTrout_AWR_v_ForestService_21-070_D_Idaho_Beaverhead-Deerlodge_EastForkRockCreekDiversion

Save the Bull Trout v. U.S. Forest Service (D. Mont.). On June 4, the plaintiffs filed a complaint against the East Fork and Rock Creek Diversion on the Beaverhead-Deerlodge National Forest, alleging violations of the Endangered Species Act resulting from ongoing unpermitted incidental take of bull trout.

NOTICE OF INTENT TO SUE

• Attach10_20210604_NOI_CBD_Lincoln_Grazing_NMMJM-REININITIATION-FINAL

In a second NOI dated June 4 to the U.S. Fish and Wildlife Service and Forest Service (first NOI issued September 13, 2019), the Center for Biological Diversity and Maricopa Audubon Society expressed continued concerns that inadequate exclosure fencing (and monitoring of fencing) has resulted in cattle from two allotments entering protected areas that has resulted in destruction and modification of endangered New Mexico Meadow Jumping Mouse critical habitat, and other effects not considered in 2021 biological opinions for the allotments.

BLOGGER’S BONUS (links are to news articles)

• Fisher listing

(Notice of intent.) The Environmental Protection Information Center filed the notice along with the Center for Biological Diversity and the Klamath Siskiyou Wildlands Center on June 2. The NOI states that the U. S. Fish and Wildlife Service failed to explain why the West Coast population, which was petitioned for listing by the groups on this notice and found to warrant protection in 2004 and subsequent years, no longer warrants protection as a threatened or endangered species. A final listing rule made in May 2020 revised the West Coast population’s definition into two separate distinct population segments, the previously established Northern-California-Southern Oregon and Southern Sierra Nevada populations and only granting protection to the latter.  (See the Unite the Parks case above.)

• Buckwheat v. Lithium

(Update.) The U.S. Fish and Wildlife Service said on June 2 it will propose listing the Tiehm’s buckwheat as an endangered species, dealing a blow to ioneer Ltd’s proposed Rhyolite Ridge lithium mine on BLM land in Nevada.  This decision is in response to a court-imposed deadline (as discussed here).

• Utah Northern Corridor highway

(New case.) On June 3, a coalition of conservation groups sued the Department of Interior over the BLM’s decision to allow construction of a new four-lane highway through a national conservation area in southern Utah that includes protected habitat for the Mojave desert tortoise.  (The complaint in Conserve Southwest Utah v. USDI is here.)

• Endangered Species Act regulations

(Update.) On June 4, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act finalized under the prior administration.  This includes the regulations at issue in the ESA litigation described here.