Jon Haber

It seems like this is becoming more of a “litigation monthly” (maybe because the litigation business is slow?), but here’s what they’ve got:  Litigation Weekly June 11 2021_Email

COURT DECISIONS

• 00001_Conservation_decision

Conservation Congress v. U.S. Forest Service (E.D. Cal.).   On May 17, the district court upheld the Pettijohn Project on the Shasta-Trinity National Forest concerning alleged impacts on the northern spotted owl under ESA, NEPA, HFRA and NFMA.  A local story is here.

• 00002_Gallatin Decision

Gallatin Wildlife Association v. U.S. Forest Service (9th Cir.).  On May 18, in a 4-page opinion, the 9th Circuit affirmed the District Court of Montana’s decision, which upheld the allotment management plans on 7 domestic sheep allotments, on the Beaverhead-Deerlodge National Forest, and the Forest Service’s use of a coarse filter methodology in assessing the risk of domestic sheep grazing to bighorn sheep.

• 00003_Bar K decision

BAR K Ranch v. United States (D. Mont.).  On May 10, in a quiet title action brought against the Forest Service and BLM, the district court granted the Forest Service’s motion that the several public and private rights-of-way over roads on the Beaverhead-Deerlodge National Forest constitute Forest Service roads.

NEW CASES

• 00004_Kettle complaint

Kettle Range Conservation Group v. U.S. Forest Service (E.D. Wash.) On May 12, the plaintiff filed a complaint concerning the Sanpoil Project on the Colville National Forest. The complaint alleges failure of the EA to include a meaningful (including site-specific) analysis of the impacts of timber harvests, controlled burns and road work within 47,956 acres of the Colville National Forest. Due to the proximity to tribal trust lands of the Colville Tribe, the project was proposed under the Tribal Forest Protection Act.  Plaintiffs further challenge the Forest Service’s final decision approving the 2019 Colville Forest Plan, because it fails to protect old-growth trees from logging through projects such as the Sanpoil Project.

• 00005_Klamath complaint

Klamath Forest Alliance v Blower (D. Or.).   On May 21, the plaintiffs filed a complaint against the Slater Fire Safe Re-entry Project, after fires in 2020 on the Rogue River-Siskiyou National Forest, challenging the use of the road repair and maintenance CE for a project of this scope (along 85 miles of roadway).  Additional claims under ESA may be added pending response to a 60-day Notice of Intent to Sue.

BLOGGER’S BONUS

• Friends of Animals v. Haaland (9th Cir.)

On May 17, 2021, the United States Court of Appeals for the Ninth Circuit held that a new Trump administration U.S. Fish and Wildlife Service rule requiring that affected states receive a 30-day notice of an intent to file a petition to list a species as endangered or threatened is inconsistent with the Endangered Species Act.  The specifics of this case involve the Pryor Mountains on the Custer-Gallatin National Forest.  They also involve a petition to list a particular “Old-World Spanish genetic lineage” of wild horse, which the Fish and Wildlife Service rejected for failure to comply with this new requirement.

• Sage grouse

In February, the district court of Idaho overturned a Trump administration action to cancel a prior effort to ban mining and allow mining and other development on 10 million acres that are considered important for the survival of sage-grouse.  In May the Biden administration announced it would consider a new ban.

• Flathead forest plan revision

On May 27, a hearing was held in the district court of Montana in the lawsuit against the revised Flathead National Forest Plan involving grizzly bears and bull trout.  Local articles summarizing the hearing discussions are here, here, and here.

Montana Republicans have had more fun this year than in the last 16 when their creativity was blocked by a Democratic governor.  This year they advanced a couple of ideas that might look good to those who don’t like environmental litigation.  However, they were too extreme for even a supermajority legislature and a Republican governor.

A measure introduced late last week by Sen. Duane Ankney, R-Colstrip, that would have directed the Department of Justice to investigate environmental groups is likely dead after a free conference committee voted to strike it from House Bill 693. Among other things, Ankney’s amendment would have empowered the Department of Justice to investigate environmental groups’ membership lists, funding, engagement in political speech, and influence on the government’s regulatory or permitting actions.

Democrats on the committee questioned if the measure would hold up to a judicial challenge and said they were troubled by the lack of a definition for “environmental organization.” Sen. Ellie Boldman, D-Missoula, wondered aloud if groups like the Rocky Mountain Elk Foundation would be subject to investigation. Ankney replied that was not his intention. Earlier in the meeting he’d said that his bill was directed at investigating groups that target natural resources issues with rhetoric.

The end of this article also discusses another bill that was still pending, Senate Bill 278, which then passed.  However, it was vetoed by a very conservative governor.

Governor Greg Gianforte on May 14 vetoed SB 278, a bill that contained provisions designed to penalize nonprofit environmental organizations. SB 278 would make nonprofit legal actions “challenging or supporting a government action” a taxable action under unrelated business income, and also require a nonprofit that challenges or supports a government action to – “under penalty or perjury” – file documentation with the Montana Attorney General listing the source of each donation over $50.

There would be serious constitutional questions about “rhetoric” (also known as “freedom of speech”), but I’m sure that won’t stop them from trying again.

These recent case developments are evidently not covered in a Forest Service litigation summary.

• Rock Creek Mine

Court decision (Forest Service):  Ksanka Kupaq Xa’lcin v. U. S. fish and Wildlife Service (D. Mont., April 14, 2021) (The news release includes a link to the opinion.)

The district court vacated the decision to permit construction of an evaluation adit for the Rock Creek Mine Project under the Cabinet Mountains Wilderness on the Kootenai National Forest without considering the effects of mine development, operations and reclamation in the biological opinion prepared pursuant to the Endangered Species Act.  The court found that, while the Forest Service has the authority to limit its current authorization as it sees fit, the Fish and Wildlife Service was required to explain adequately “why a comprehensive biological opinion addressing later development would be unproductive in assessing the impacts of the Project,” and “not only was a more comprehensive biological opinion possible, but that such opinions had already been completed” (in earlier iterations where the project had been considered as a whole).  The history of this project showed that mine operations are “reasonably certain to occur,” so their effects must be evaluated, even though the Forest Service had not formally permitted those operations to occur.

• Idaho Sheep Experiment Station

Court decision (Agricultural Research Service):  Western Watersheds Project v. U. S. Sheep Experiment Station, (D. Idaho, April 16, 2021)  (The court’s opinion is here.)

In the latest action in litigation that began in 2007, the court held:  “The Sheep Station/ARS acted arbitrarily and capriciously under the APA by failing to take the required hard look mandated by NEPA at the impacts of the project by (1) not adequately addressing its direct and indirect effects on non-ARS allotments (including on the Caribou-Targhee National Forest), (2) not sufficiently examining its impacts on bighorn sheep and grizzly bears, and (3) not objectively analyzing alternatives.”

• Wenatchee allotments

Court decision (Forest Service):  WildEarth Guardians v. Bail, (E.D. Wash., April 20, 2021)  (This case was previously discussed here.)

The court denied plaintiffs’ motion for a preliminary injunction against sheep grazing on four allotments (of the seven under litigation) on the Okanogan-Wenatchee National Forest.  The court found no “significant threat of irreparable injury in the absence of injunctive relief,” because domestic sheep would still be grazed on proximate private and state-owned lands, and therefore the court did not address the merits of the case.  Those are related to delay in addressing new information about the effects on bighorn sheep until after the forest plan is revised.

• Idaho phosphate mine

New lawsuit (BLM):  Center for Biological Diversity v. U. S. Bureau of Land Management, (D. Idaho, filed April 27, 2021).  (This article has a link to the complaint.)

The proposed Caldwell Canyon Mine in southeast Idaho’s “Phosphate Patch” would extract the raw material to make glyphosate, which is primarily used in Bayer’s Roundup herbicide.  The three plaintiffs claim BLM’s approval of the mine violates the National Environmental Policy Act with its inadequate EIS reviews of effects on sage grouse and selenium pollution.  (No mention of the effects of using Roundup, which to me would be similar to NEPA requiring evaluation of the use of fossil fuels that results from oil and gas leasing.  But maybe it’s because EPA is responsible for that.)

• Spotted owl critical habitat

Update (Fish and Wildlife Service):  The U. S. Fish and Wildlife Service has announced that it has delayed a decision on northern spotted owl critical habitat until December.  Plaintiffs in litigation opposing the vast acreage reduction adopted by the Trump administration are happy; plaintiffs in litigation opposing the delay in adopting the new designation are not.  (Those cases are discussed here.)

Interestingly, the Fish and Wildlife Service under the Biden administration has just followed through on the reduction of critical habitat for the northern Mexican garter snake from its original proposal in 2013 of 421,423 acres to 20,326 acres.  The remaining units of critical habitat include lands on the Tonto, Coronado, Coconino and Prescott National Forests.  (That is summarized here, with a link to the Federal Register notice.)

• Mt. Rushmore

New lawsuit (National Park Service):  The State of South Dakota is suing the Park Service for failing to grant a permit for a fireworks show on the Fourth of July.  While the Trump administration had signed a Memorandum of Understanding for such permits, the Park Service determined:

“Potential risks to the park itself and to the health and safety of employees and visitors associated with the fireworks demonstration continue to be a concern and are still being evaluated as a result of the 2020 event… In addition, the park’s many tribal partners expressly oppose fireworks at the Memorial. These factors, compiled with the COVID-19 pandemic, do not allow a safe and responsible fireworks display to be held at this site.”

The full Forest Service summaries are here:  Litigation Weekly May 7 and 14 2021_Email

Abbreviated summaries below include links to related court documents.

COURT DECISIONS

• Att1_Hanna Flats MSJ decision

Alliance for the Wild Rockies v. Higgins, (D. Idaho) – On April 27, 2021, the district court remanded the Forest Service’s categorical exclusion and decision memo for the Hanna Flats project on the Idaho Panhandle NF to the Forest Service to issue a supplemental decision memo explaining the how the project falls under the definition of wildland-urban interface under the Healthy Forest Restoration Act.  The district court held that, “[b]y not using the statutory definition of a wildland-urban interface, the USFS violated HFRA, thus rendering its use of the categorical exclusion unlawful” and noted that the Forest Service never provided a clear explanation of how the entire project area could be defined as a “wildland-urban interface.”  (Plaintiff’s view of the decision is provided here.)

Blogger’s note:  It appears to be common for revised forest plans to refer to the WUI as a location for certain kinds of management, and they also fail to include maps or provide any basis for what areas are considered WUI.  While forest plans do not rely on HFRA categorical exclusions, this approach raises questions about whether the plans properly identify areas where plan components apply as required by 36 CFR §219.7(d) and (e).

• Att4_2-BarRanch_OrderReversingAndRemanding

2-Bar Ranch Limited Partnership v. USFS, (9th Cir.) – On May 6, 2021, the 9th Circuit Court of Appeals reversed the District Court of Montana’s partial grant of summary judgment to plaintiff rancher permittees concerning the decision to apply the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment on the Beaverhead-Deerlodge National Forest.  The court held that the 2009 revised forest plan allowed for continued application of range seasonal utilization requirements previously established through a site-specific allotment management plan and NEPA analysis instead of using newer forest plan default requirements that would have been more lenient to the permittees.  The 9th Circuit also held that the Equal Access to Justice Act does not provide for attorney fee recovery in Forest Service administrative proceedings.

NEW CASES

• Att2_Complaint filed_4-28-21 – Copy

Alliance for the Wild Rockies v. Lannom, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint concerning the Horsefly Project on the Helena-Lewis and Clark National Forest. The complaint alleges the project includes a forest plan Amendment to exempt the project from two forest plan standards that protect elk hiding cover because the project violates those standards.  The complaint also addresses old growth and goshawks.

• Att3_Friends v. Probert 21cv189_COMPLAINT

Friends of the Clearwater v. Probert (D. Idaho) – On April 28, 2021, plaintiff filed a complaint challenging the approval of two logging projects known as the  “End of the World” (50,000 acres) and “Hungry Ridge” (30,000 acres) projects on the Nez Perce-Clearwater National Forests without preparing an EIS (for 19,000 acres of logging).  Issues include effects on old growth and several species, including listed grizzly bears, lynx, salmon and steelhead, and failure to consult under ESA for grizzly bears.

• Att4_Elk Smith Complaint_filed-2

Alliance for the Wild Rockies v. Munoz, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint regarding approval of the Elk Smith Project on the Helena-Lewis and Clark National Forest, which is within an inventoried roadless area.  The project calls for the removal of small-diameter trees and prescribed burning in an area that burned in the Canyon Creek Fire of 1988.  (Additional background is provided here “Twin Metals Mine.”)

OTHER AGENCIES

• Att5_20210427_NorthMet_18-1952_PolyMetCopperMinePermt – Copy

NorthMet Mining Project, Superior National Forest (not Region 1, as indicated in the Forest Service summary).  On April 28, 2021, the Minnesota Supreme Court ordered a remand to the state Department of Natural Resources to conduct a contested case hearing and to determine an appropriate definite term for the permit to mine as necessary.  (This appears to be related to prior discussions of mining near the Boundary Waters Wilderness we have discussed  previously, most recently here.)

• Att5_20210503_Complaint_ArmyCorps – Copy

Center for Biological Diversity v. Spellmon, (D. Mont.) – On May 3, 2021, plaintiffs filed a complaint alleging the Army Corps of Engineers violated the Endangered Species Act, National Environmental Policy Act, and Clean Water Act when it issued Nationwide Permit 12 for oil and gas pipelines.  (Additional background is provided here.)

Well, this first “weekly” we’ve received from the Forest Service since March 5 has a summary of one new Notice of Intent to Sue:  Litigation Weekly April 30, 2021_Email

• NOI Friends of Clearwater re Hungry Ridge Project Nez Perce NF

On April 15, 2021, Friends of the Clearwater sent a 60-day notice of intent to sue the Forest Service alleging violation of the Endangered Species Act for approving the Hungry Ridge Restoration Project on the Nez Perce National Forest without consulting on grizzly bears, which “may be present” in the project area.  (The Summary also mentions a similar NOI received on February 22, 2021, on the End of the World Project).

But here are a few other things that were going on during the first part of April.

• BLM Factory Butte closure

Court decision:  Natural Resources Defense Council v. McCarthy (10^th Cir., April 8 2021)

The circuit court affirmed a decision by the District Court for the District of Utah, and held that the BLM was not required by NEPA to evaluate the effects reopening an area it had temporarily closed to off-highway vehicles.  (However, BLM did apparently consult with the Fish and Wildlife Service about effects on the Wright fishhook cactus, which was the reason for the original closure.)  The court held that, under BLM’s temporary closure regulation, BLM had no discretion to retain the closure once it determined that adverse effects could no longer occur. The court also found that the closure was not consistent with the Resource Management Plan’s designation of the area as open to off-highway vehicles, and this also limited BLM’s discretion to maintain the temporary closure.

The district court decision was described here.

• Tiehm’s buckwheat listing

Court decision:  Center for Biological Diversity v. Bernhardt, (D. Nev., April 21, 2021).  (The news release contains a link to the court’s order.)  We previously discussed this case here.  

The district court gave the U. S. Fish and Wildlife Service 30 days to decide whether or not to list the Tiehm’s buckwheat and designate critical habitat under the Endangered Species Act because they failed make a timely 12-month finding on the plaintiffs’ petition.  A proposed lithium mine on BLM land would destroy as much as 90% of the global population.  The court dismissed the claim against BLM because they are under no obligation to respond to a petition from plaintiffs nor do they have a duty to act with regard to their planning requirements.  The FWS has now said they can’t meet this timeline, as explained here.

• ESA listings and critical habitat

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C., filed April 15, 2021)  (The article includes a link to the complaint.)

The FWS released a plan in 2016 to address a portion of the more than 500 species waiting for Endangered Species Act protection in the U.S, but plaintiffs say the agency neglected to make dozens of findings every year since because of interference from the Trump administration.  In this case plaintiffs complain about delays in listing decisions for nine species, including the Franklin’s bumblebee from Oregon, the Sierra Nevada red fox and Hermes copper butterfly from California, and Bartram’s stonecrop and Beardless chinchweed from Arizona; and critical habitat decisions for eight plants and the Suwannee moccasinshell found in Florida, and the pearl darter fish in Mississippi.

• Mark Twain timber theft

An Arkansas man pleaded guilty in federal court in Missouri to cutting timber and damaging trees in the Mark Twain National Forest, including removal of 27 walnut and white oak trees.  He may be sentenced to up to 10 years in federal prison without parole.  “The value of the timber was placed at approximately $20,269, and the ecological damage value of the trees cut from the national forest and remediation costs to the U.S. Forest Service totaled more than $44,000.”  (Does that say something about the economics of timber sales there?)

Here’s some news on three cases that we have followed recently:

• Tahoe e-bikes: Backcountry Horsemen of America v. U. S. Forest Service (E.D. Cal.)

This is the case where the Tahoe National Forest attempted to allow e-bikes on trails designated as open only to non-motorized uses (see the litigation summary here).  In response to the lawsuit, the Forest rescinded the decision.  They have now completed a new decision, the East Zone Connectivity Project, with the result that (according to this article in “Singletracks”) “35-miles of existing non-motorized trail will be open to class 1 e-bikes.”  The Forest website reiterates that, “E-bike use is currently not allowed on NFS roads and trails unless they are designated for motor vehicle use.”  (The only administrative objections to the new decision were later withdrawn.)

• Mendocino “roadside hazard trees:” EPIC v. Carlson (N.D. Cal.)

This was the case where the Ninth Circuit previously held that under no reasonable interpretation of the language of 36 C.F.R. § 220.6(d)(4) did the Ranch Fire Roadside Hazard Tree Project on the Mendocino National Forest come within the categorical exclusion for “repair and maintenance” of roads.  After receiving a preliminary injunction (see the litigation summary here), the Forest Service agreed to abandon six commercial timber sales, but the settlement would allow them to remove hazard trees in the project area “for non-sawtimber primarily non-commercial purposes,” following specific hazard tree guidelines.  (The article includes a link to the settlement agreement.)  The Forest Service also agreed to pay $191,000 in attorney fees.

• Prince of Wales project:  Southeast Alaska Conservation Council v. U. S. Forest Service (D. Alaska)

This is the case where the Ninth Circuit previously held that “condition-based NEPA,” which didn’t identify site-specific locations or effects, was invalid for the Prince Wales timber sale on the Tongass National Forest.  (See our prior  discussion of the case here.)  This settlement dealt solely with attorney fees; the Forest Service agreed to pay $210,000 of the $301,000 in fees allegedly incurred by the plaintiffs.

(Blogger’s note:  I see a pattern here.  I wonder if it might make a difference, when an official is about to make a legally suspect decision, if their risk analysis would be different if this money came out their operating budget instead of a separate fund.)