Jon Haber

The Ghosts of Spotted Owls Yet to Come

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Bird is still declining.. have we learned anything?  (original caption on TSW file photo)

This is what has happened to northern spotted owls north of the Canadian border without an Endangered Species Act.  Could this happen here?

Spotted owls have all but vanished from B.C., the only place they were found in Canada. Biologists estimate there were once 1,000 spotted owls in southwestern B.C.’s old-growth forests of Douglas fir, western hemlock and western red cedar.

Today, following the destruction and fragmentation of much of their habitat, only three spotted owls are known to exist in the province’s wild. Until the breeding pair was discovered in the Spuzzum Valley, the three were thought to be individuals with no offspring.

“The northern spotted owl is back from the dead in Canada — where once there was a flat line there is now a shimmer of hope,” Foy said. “What Canada does next in the way of protecting habitat may just tip the balance in favour of life.”

The B.C. government has repeatedly said captive-bred spotted owls will be re-introduced to the wild. But not a single captive-bred owl has been released since the breeding program began more than a decade ago.

Pepper-Smith said the Spuzzum Valley spotted owl pair represents the only proven option for maintaining the wild population, given there is no evidence that owls raised at the breeding facility can be successfully introduced to the wild.

“This is the last known breeding pair — and I think it’s hard to over emphasize how important it is that they continue to survive and breed,” Pepper-Smith said in an interview.

In June, The Narwhal reported that the B.C. forests ministry issued more than 300 logging approvals — totalling almost 2,000 hectares — in the spotted owl’s range between October 2018 and May 2020.

That was last fall.  And now, this spring …

An agreement to delay logging of an old-growth stand of British Columbia forest has given a one-year reprieve to one of Canada’s most endangered species.

But governments now have to come up with a permanent way to protect the vanishing spotted owl and other endangered species in the province, said Kegan Pepper-Smith of Ecojustice, which has been pushing the federal government on the issue.

B.C. claims about 281,000 hectares of protected spotted owl habitat. Pepper-Smith disputes that, saying much of that land is subject to logging.

Forest management in the climate context

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I thought the graphics from this research article did a good job of illustrating the role of forests and forestry in climate change mitigation.

Even if there is a lot of uncertainty in the assumptions and modeling, forest management is likely where the greatest opportunities are for land management to contribute to climate mitigation.  (Note that fire management is a relatively minor contributor.)  (AFOLU – the new acronym of the day – is Agriculture, Forestry and Other Land Use.)

Thus, ecosystems have the potential for large additional climate mitigation by combining enhanced land sinks with reduced emissions…  We describe and quantify 20 discrete mitigation options (referred to hereafter as “pathways”) within the AFOLU sector …  We refer to these terrestrial conservation, restoration, and improved practices pathways, which include safeguards for food, fiber, and habitat, as “natural climate solutions” (NCS).

Improved forest management (i.e., Natural Forest Management and Improved Plantations pathways) offers large and cost-effective mitigation opportunities, many of which could be implemented rapidly without changes in land use or tenure. While some activities can be implemented without reducing wood yield (e.g., reduced-impact logging), other activities (e.g., extended harvest cycles) would result in reduced near-term yields. This shortfall can be met by implementing the Reforestation pathway, which includes new commercial plantations. The Improved Plantations pathway ultimately increases wood yields by extending rotation lengths from the optimum for economic profits to the optimum for wood yield.

Work remains to better constrain uncertainty of NCS mitigation estimates. Nevertheless, existing knowledge reported here provides a robust basis for immediate global action to improve ecosystem stewardship as a major solution to climate change.

Unfortunately, the major role of forests in NCS mitigation strategies is pretty minor with regard to overall climate change mitigation needs.  (I.e. planting a trillion trees won’t do the trick; we need significant emissions reductions.)

 

March-April 2021 public lands litigation news

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FOREST SERVICE

  • South Fork Stillaguamish project (North Cascades Conservation Council v. U. S. Forest Service, W. D. Washington)

(Update.)  The North Cascades Conservation Council has a lawsuit pending against the South Fork Stillaguamish timber sale project, located on the Darrington Ranger District of the Mount-Baker Snoqualmie National Forest (which was apparently not picked up by the Forest Service litigation summarizer).  (This March 9 Order from the district court grants intervention to contractors, but it also provides some background on the case.)

  • Mt. St. Helens (Cascade Forest Conservancy v. U. S. Forest Service, D. Washington)

(New Lawsuit.)  Several research scientists and conservation groups sued the Gifford Pinchot National Forest on March 22 to require an EIS before building a road through the blast zone of the Mount St. Helens National Volcanic Monument in order to repair the outlet from Spirit Lake.  (This article includes a link to the complaint.)

  • National oil and gas leasing ban (State of Wyoming v. U. S. Department of the Interior, D. Wyoming)

(New lawsuit.)  On March 23, the State of Wyoming challenged the Department of Interior’s moratorium on oil and gas leasing on federal lands.  According Governor Gordon, “The question is whether it will be produced under the environmental safeguards in place on federal lands in Wyoming, or overseas without equally stringent regulations.”  (This article includes a link to the complaint.)

BLM

  • Alton Coal Mine (Utah Physicians For A Healthy Environment v. US Bureau of Land Management, D. Utah)

(Court decision.)  On March 24, the district court remanded a BLM decision to authorize expansion of the Alton coal mine.  The court found that the BLM violated NEPA by failing to consider the adverse socio-economic impacts of greenhouse gas emissions in a manner commensurate with the economic benefits, and failing to consider cumulative effects of other reasonably foreseeable future GHG sources.  (The opinion is here.)

  • Colorado land exchange (Colorado Wild Public Lands, Inc. v. Shoop, D. Colorado)

(Court decision.)  On March 25, the district court upheld a land exchange that added land to a private ranch.  With regard to NEPA, the newly private land would be protected from environmental impacts by a conservation easement, and on the newly public land the effects of increased recreation did not need to be considered until a “future site-specific management plan” is developed for that area.  NEPA also did not apply to appraisals because they are not a “component of a physical environment and cannot be reasonably understood as encompassing of parity in the value of the parcels to be exchanged.”  (The court’s opinion is here.)

  • Grand Junction RMP (Center for Biological Diversity v. U. S. Bureau of Land Management, D. Colorado)

(Voluntary remand.)  On March 26, the district court approved a voluntary remand of the Grand Junction Resource Management Plan to the BLM in light of a decision by the court in a similar case for an adjacent plan that failed to adequately consider indirect emissions of oil and gas or to consider a reasonable range of alternatives.  (This news release includes a link to the Order.)

  • Mojave Desert

On March 23, the Center for Biological Diversity and two other organizations sued to stop BLM’s grant of a right-of-way to pump water from an underground aquifer under the Mojave Trails National Monument and near the Mojave National Preserve.  (Center for Biological Diversity v. U. S. Bureau of Land Management, C.D. California.)  On March 24, the Center and four other organizations filed a notice of intent to sue the BLM and Fish and Wildlife Service over the California Desert Conservation Area Plan Amendments and Approvals for the West Mojave Route Network Project and Travel Management Plans.

ESA

  • Spotted owl critical habitat

(New lawsuits.)  On March 5, the American Forest Resource Council along with the Association of O&C Counties, and counties in Oregon, Washington, and California challenged the Biden administration’s delay in implementing its decision to substantially reduce the critical habitat designated for the northern spotted owl.  On March 23, conservation groups challenged the Trump administration’s critical habitat decision by the U. S. Fish and Wildlife Service’s that is being delayed.  This article has a link to the complaint in the latter case (Audubon Society of Portland v. U. S. Fish and Wildlife Service, (D. Oregon)), and this article may have a working link to the former.

  • Trump vs ESA

This article summarizes other recent lawsuits filed over Endangered Species Act decisions made by the Trump administration.  Several affect national forests.

On April 1, in the federal district court for the District of Columbia, the Center for Biological Diversity challenged the failure to list ten candidate species that the Fish and Wildlife Service found warranted for listing but precluded by species with higher priorities.  The species include the monarch butterfly, and the northern spotted owl, which was found warranted for relisting as endangered instead of threatened.  This article includes a link to the complaint in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.).

Multiple conservation groups sued the USFWS on March 25 over a decision to deny the north Oregon coast population of red tree voles protection under the Endangered Species Act.  This news release includes a link to the complaint in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Oregon).

Multiple conservation groups also sued the USFWS on March 24 for refusing to designate critical habitat for the endangered rusty patched bumblebee.  (This article includes a link to the complaint in Natural Resources Defense Council v. U. S. Fish and Wildlife Service, D. D.C.)

On March 31, the Center for Biological Diversity also filed a notice of intent to sue the National Marine Fisheries Service to make a decision on whether the Oregon coast spring-run chinook salmon warrants protection.  (This article provides further background.

  • Roundtail chub listing (Center for Biological Diversity v. Haaland, D. Arizona)

(Court decision.)  On March 31, the district court reversed the decision by the U. S. Fish and Wildlife Service to withdraw its 2015 proposed listing of the lower Colorado River roundtail chub, which is found in Wyoming, Utah, Colorado, Arizona and New Mexico.  The court held that a recent determination that it is not a separate species did not relieve the FWS of responsibility to consider it as a distinct population segment of its species that could be listed.  The plaintiffs first petitioned the species for listing seventeen years ago.  (The court’s opinion is here.)

 

 

 

February-March 2021 litigation news

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The last Forest Service litigation summary I’ve received and posted was dated March 5.  Here are a few more things that were going on around that time.

FOREST SERVICE

(Update.)  In this case involving livestock grazing on the Prescott, Coconino, and Tonto National Forests (introduced here), the federal district court for Arizona on February 20, 2021 refused to dismiss the U. S. Fish and Wildlife Service from the lawsuit because of this regulatory language, which (despite written FWS policy that says otherwise) requires both them and the action agency to reinitiate consultation:  “Reinitiation of consultation is required and shall be requested by the Federal agency or by the Service” (noting the absence of a comma after “required”).

  • Middle Henrys project (Alliance for the Wild Rockies v. U.S. Forest Service)

(Settlement.) The Caribou-Targhee National Forest has withdrawn its decision on the Middle Henrys Aspen Enhancement Project after the lawsuit (and Notice of Intent to Sue under ESA) described here was filed.  The Forest Service declined to discuss the forest’s rationale for withdrawing the project other than saying “We couldn’t reach any kind of an agreement about some of their points.”

  • Castle Mountains project

(New lawsuit.)  The Alliance for the Wild Rockies and Native Ecosystems Council filed a lawsuit to halt the Castle Mountains logging and burning project on the Helena-Lewis and Clark National Forest, and associated road construction.  This article provides more information about the project, and plaintiffs’ “complaints” are here.

(Court decision.)  The “ongoing saga” of the Village of Wolf Creek continued with litigation about a request for information under the Freedom of Information Act.  On March 4, 2021, the federal district court for Colorado upheld the Forest Service’s choices of employees to contact, search terms used, locations searched, dates searched and its application of four FOIA exemptions.

  • Wayne fracking (Center for Biological Diversity v. U. S. Forest Service)

(Court decision.)  On March 13, 2020, the federal district court for the Southern District of Ohio held that the Forest Service and BLM violated NEPA when the Wayne National Forest granted fracking leases based largely on analysis done for the 2006 forest plan (posted here). As discussed here, the remedy now granted to plaintiffs is to prohibit new drilling permits and surface disturbance on existing leases and water withdrawal for any drilling that’s already occurring, but not rescind existing leases.  (The Forest Service has initiated revision of the Wayne forest plan.)

OTHER AGENCIES

(Court decision.)  The Forest Service was a cooperating agency in a decision by USDA Wildlife Services for predator control in Colorado.  The federal court for the District of Colorado found that an EIS was unnecessary.

(Court decision.)  On January 28, 2020 the federal district court for the District of Columbia remanded the decision by the U. S. Fish and Wildlife Service to list the northern long-eared bat as threatened rather than endangered (see this litigation summary).  As described here, on March 1, 2021, the court imposed a deadline of 18 months after completion of a species status assessment expected to done in May, 2021.  The species is found on 15 eastern national forests (this document includes a range map on p. 4).

  • Eastern hellbender

(Notice of Intent.)  On March 4, 2021, five conservation groups notified the U. S. Fish and Wildlife Service of their intent to litigate the decision to not list the eastern hellbender as threatened or endangered.  It is found on eastern national forests, including the Nantahala-Pisgah, Sumter, Daniel Boone, Monongahela, and Allegheny.

 

Climate tipping point for forests

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www.e-education.psu.edu

Add to this diagram – “Respiration (when overheated).”

We’ve talked about how older forests may sequester less carbon and dead forests release carbon (for example, here).  New research indicates that forests also sequester less carbon and start to release carbon (while they are still alive) if the temperature gets too high.  As reported here:

‘We’re in Bigger Trouble Than We Thought’

The data show a clear temperature limit, above which trees start to exhale more CO2 than they can take in through photosynthesis, said co-author Christopher Schwalm, an ecologist and earth system modeler at the Woodwell Climate Research Center. The findings mark a tipping point, of sorts, at which “the land system will act to accelerate climate change rather than slow it down,” Schwalm said.

“Seeing such a strong temperature signal globally did not surprise me,” he said. “What I was surprised by is that it would happen so soon, maybe in 15 to 25 years, and not at the end of the century.”

Other researchers commented on management implications of drought-stressed dying trees:” 

It may come down to looking at options for saving valuable, individual stands of trees,  and protecting genetically distinct and more resilient species. It could also be important to conserve corridors and patches of woodland to reduce the distance seeds must travel to enable forests of the future to spread or reconnect under more favorable climate conditions, he explained.

“We think a lot of these areas are going to go down, so where can we save some of it?” he asked.

There are obviously implications here for national forest planning.  It seems like it should be the role of the national headquarters to review and interpret the implications of new research for forest management, and to advise national forests regarding its implications for their plans and whether they should consider making changes.

Budd Falen: Standing Up for Rural Constituents

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Salon

Karen Budd Falen was the Deputy Solicitor for Parks and Wildlife in the Department of Interior for three years, and she left with the rest of the Trump administration, capping off a notable career in opposing public lands.  She appears to come by that view honestly, being raised on a Wyoming ranch and representing ranchers as an attorney (including the Bundys).  She reflects in this short piece on her legacy of changing the Endangered Species Act regulations and National Environmental a Policy Act regulations to promote more “local control” (as well as with the Land and Water Conservation Fund).

I take issue with her arguments in both cases that the laws the regulations implement (ESA and NEPA) were intended to allow social and economic considerations to play the role she has provided for them.  These statutes are both clearly aimed at the “natural environment,” and not local “custom and culture.”  Remarkably, she appears to admit that, “the listing of a species should be based only on science,” but then she has made it harder to do that with various changes in the ESA implementing regulations (which go beyond those she describes here in relation to critical habitat).

My fundamental disagreement with her and those she represents concerns this statement (and I suspect it may be a reason for differing opinions on this blog):

In my view, local elected officials should have more sway on issues directly affecting them than someone from midtown New York who has never faced the realities of making a living from the land.

The major gloss-over here is that endangered wildlife and federal lands don’t belong more to local people and their elected officials.  Her view that local interests should have more influence is not supported by either of these laws, and it is not the view held by most of the people that these resources do belong to.  Should the Biden administration not reverse these regulations, courts will have another opportunity to slap down the misinformation from her, and organizations she has worked for like the Mountain States Legal Foundation, that has led to ideas like “county supremacy” limiting how national forests are managed.

(Here is a little background from just before Trump decided she could not get confirmed as BLM Director.)

FOIA in the Supreme Court

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The U. S. Supreme Court has issued its decision in United States Fish and Wildlife Service. v. Sierra Club (March 4, 2021), the Freedom of Information Act case we have discussed previously.  The EPA changed its proposal for cooling water intake structures at power plants after receiving a draft biological opinion from the consulting agencies that found the proposal would jeopardize listed species.  In a 7-2 decision, the Court reversed the lower court decisions and held that a draft biological opinion on the effects of the original proposal, which was shared informally between the EPA and the consulting agencies, was exempt from disclosure under FOIA as a predecisional and deliberative document.  Specifically, “the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.”  This shows that the consulting agencies did not “treat them as final,” which is consistent with the context of the consultation regulations.

The ESA consultation process makes this case more confusing than it needs to be.  Normally, drafts circulated among members of a government team would qualify as deliberative, but here the team is comprised of multiple agencies following prescribed interagency consultation procedures.  A “draft” biological opinion is specifically identified by consultation regulations, and it must be provided by the consulting agencies if requested by the action agency.  In this case, the draft was provided by consulting agency staff without official signatures.  Without those signatures, it was not the final position of the consulting agencies, even though it had the effect of EPA changing its proposal.  With those signatures, apparently a draft biological opinion would have been “final” for the purpose of FOIA, and should have been disclosed.  (This may or may not have been the result of good lawyering, but it would be good lawyering to so advise in the future.)

The Court doesn’t dig into the other aspects of this FOIA exemption, one of which is that factual material is not deliberative and must be released, or therefore the question I raised about the need to disclose the science on which the deliberations were based. Apparently, that would happen here on a remand to determine what is “segregable” non-exempt material.  I wonder whether the scientific conclusions about the effects of the original EPA proposal are also considered deliberative because they were not yet “officially approved.”

A more typical case, which does address this question, is this new one from the D. C. District Court involving Florida Key deer and its Species Status Assessment (Sierra Club v. United States Fish and Wildlife Service, Feb. 26. 2021).

On its face, a factual scientific report, produced “independently from any” regulatory or policy decisions, see FWS Letter Describing SSA, does not qualify as deliberative…  Nothing in this description indicates that the report contains “advisory opinions, recommendations[, or] deliberations” regarding the agency process at issue.

Yet, while the privilege does not generally extend to mere factual recitations, (citation omitted) “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.”  Such hesitation stems from the recognition that the drafter’s selection of facts can itself reveal the decisionmaking process.

This case also addresses the need for agencies to demonstrate harm to their deliberative process that would result from disclosing these records, which the Supreme Court does not address in the EPA case.  Public response to the case, including suggestions for congressional action, is discussed here.  (This article includes a picture of the the power plant at issue.)

NFS Litigation Weekly March 5, 2021

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The Forest Service summaries are here:  Litigation Weekly March 5, 2021_email

Links are provided for each case below.  (There are some signs of a new administration.)

COURT DECISIONS

Apache Stronghold v. United States (D. Arizona.) – On February 12, 2021, the district court denied the Plaintiff’s motion for temporary restraining order and preliminary injunction regarding the conveyance of Oak Flat Parcel on the Tonto National Forest to developers of the Resolution Copper Mine because plaintiffs could not show immediate and irreparable injury based on their claims based on violations of the First Amendment Right to Free Exercise of Religion, Right to Petition and Remedy, Fifth Amendment Right to Due Process, and statutory rights guaranteed by the Religious Freedom Restoration Act.

Blogger’s update:  On March 1, 2021, USDA directed the Forest Service to withdraw the Notice of Availability and rescind the FEIS and draft ROD.

Western Watersheds Project v. Bernhardt (D. Idaho) – On February 11, 2021, the district court vacated the BLM’s decision to cancel its previously proposed mineral withdrawal of 10 million acres of federal lands located in Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, which had previously been identified as Sagebrush Focal Area essential for the long-term health of sage-grouse.  The court found that the BLM failed to provide a reasoned explanation for reversing its prior position that the mineral withdrawal was needed, including failing to address the fact that the U. S. Fish and Wildlife Service had relied on that designation in its decision to not list the species under the Endangered Species Act.  The court also held that the decision to cancel the withdrawal did not trigger NEPA requirements.

Cascade Forest Conservancy v. Hepler ((D. Or.) – On February 15, 2021, the district court issued a preliminary injunction against the Goat Mountain Hardrock Mineral Prospecting Permits on the Gifford Pinchot National Forest based on two NEPA claims, while upholding three other claims and ordering further briefing on whether an EIS is required instead of an EA.  It also found no violations of the Land and Water Conservation Fund Act (which was the source of funding used to purchase the parcels at issue).

Friends of the Clearwater v. Higgins (9th Cir.) – On February 23, 2021, the circuit court affirmed the District Court of Idaho’s decision denying plaintiffs’ motion for a preliminary injunction in their challenge to the Brebner Flats timber harvest and road construction project on the Idaho Panhandle National Forest regarding its effects on grizzly bears and elk.

Organized Village of Kake v. Shea (D. Alaska) – On February 25, 2021, the district court granted the government’s motion to stay the case for 120 days or until the Department of Agriculture takes action regarding the Alaska Roadless Rule, whichever occurs first.  This involves the 2020 Exception that exempts the Tongass National Forest from the Roadless Area Conservation Rule, discussed previously here.

NEW CASE

Friends of the Columbia Gorge, Inc. v. USFS (D. Oregon) – On February 12, 2021, the plaintiff filed a complaint alleging that a 65-acre logging project on private forestland violates federal protections for the Columbia River Gorge National Scenic Area.

NOTICE OF INTENT

On February 22, 2021, Friends of the Clearwater sent a 60 day Notice of Intent to sue regarding the approval of the “End of the World” Project on the Nez Perce National Forest, alleging that the Forest Service violated ESA by failing to consult on the effects of the logging and road-building project on grizzly bears.

 

BLOGGER’S BONUS

Here’s a few other court-related activities that were going on around the same time.

  • Science

Environmental Defense Fund v. EPA (D. Montana.) – On January 27, 2021, the federal district court for Montana held that the Environmental Protection Agency failed to justify its decision to make the Strengthening Transparency in Science Rule (sometimes called the “secret science rule”) take effect right after its publication in the Federal Register, instead of after 30 days, as is typical.  The regulation would limit the EPA’s ability to write regulations that are unpinned by scientific research that can’t be reproduced or is based on underlying data that isn’t public.  As suggested in this article, the Biden Administration has decided to reconsider the regulation.

While that regulation pertains to medical data, in a coincidence (but not an unrelated story), on the same day, the Biden Administration issued a memorandum to all federal agencies, the “Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking.”  It requires federal agencies to, “conduct a thorough review of the effectiveness of agency scientific-integrity policies,” seeking to eliminate, “(i)mproper political interference in the work of Federal scientists or other scientists who support the work of the Federal Government and in the communication of scientific facts …”

(New case.)  A Nevada rancher and a coalition of conservation groups have filed separate lawsuits against the BLM’s January 15th decision to allow the Thacker Pass lithium mine in northern Nevada.  It could affect groundwater, sage-grouse and the federally listed Lahontan cutthroat trout, and Notices of Intent to Sue under ESA have also been filed.  (The article contains links to both complaints.)

(New case.)  A decision by the Ochoco National Forest to conduct a sanitation harvest of grand fir and Douglas-fir trees on 35 acres and tree thinning on 143 acres to manage root rot around Walton Lake, a popular recreation site, is being challenged again in federal district court.

January 2021 Litigation

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As I mentioned in conjunction with the February 18 NFS Litigation Summary, we missed a few things in January.  Here’s an attempt to catch up on that.  (You might get the impression that the last-minute efforts of the outgoing Trump administration have something to do with the flurry of new litigation.)

FOREST SERVICE

(New lawsuit.)  On January 8, 2021, several environmental organizations in the southeastern U. S. challenged the Forest Service’s November 19, 2020, adoption of new regulations implementing the National Environmental Policy Act (which we discussed here).  In particular, plaintiffs are concerned about the categorical exclusion allowing logging of up to 2800 acres without preparing an Environmental Assessment.  (We discussed this indirectly here.)

(New lawsuit.)  On January 8, 2021, the Alliance for the Wild Rockies filed a lawsuit claiming the Forest Service must reinitiate consultation with the U.S. Fish and Wildlife Service on the forest plan for the Helena-Lewis and Clark National Forest regarding new information about the impacts of illegal motorized road use on grizzly bears.

(New lawsuit.)  On January 11, 2021, the Forest Service issued a final Record of Decision that amends the Jefferson National Forest Land and Resource Management Plan to allow the Mountain Valley Pipeline project to move forward.  The ROD modifies certain standards in the Forest Plan to accommodate the pipeline construction.  Conservation groups sued just hours after the Forest Service decision was released.  In a separate proceeding before the Court of Appeals for the D. C. Circuit, the court refused to stay a decision by the Federal Energy Regulatory Commission allowing construction to begin elsewhere on the pipeline route.

(New lawsuit.)  On January 14, 2021, conservationists challenged the Stateline Range grazing project, a Forest Service decision that would allow livestock grazing across 271,665 acres of the Apache-Sitgreaves and Gila National Forests in Arizona and New Mexico over a 10-year period.

(Settlement.)  The federal government settled a lawsuit filed by the mining company regarding clean-up of existing mining waste on the site that is proposed for further development on the Payette and Boise National Forests.  The Nez Perce Tribe is continuing a separate Clean Water Act lawsuit against the company, and issued the statement linked above.

BLM

(Settlement.)  On January 6, 2021, the BLM agreed to stop drilling on more than 45,000 acres of oil and gas leases until officials revise land management plans in the Grand Junction and Colorado River Valley Field Offices.  The settlement results from a 2018 lawsuit challenging the agency’s failure to undertake site-specific environmental review when it approved the leases, instead relying on the allegedly inadequate resource management plans.

(Notice of Intent.)  On January 12, 2021, four conservation groups notified the BLM of its intent to sue for violations of the Endangered Species Act stemming from two decisions to build up to 11,000 miles of fuel breaks across 223 million acres of Bureau of Land Management public lands in the Great Basin.

(New lawsuit.)  On January 15, 2021.  The Colorado Department of Natural Resources filed a lawsuit in federal court challenging the Bureau of Land Management’s resource management plan for the Uncompahgre Field Office. The plan would open nearly one million acres of public lands to drilling and mining in southwest Colorado.  This case argues that, as in a case Montana won against the BLM, the decision is invalid because it was made by acting BLM Director William Perry Pendley who did not have authority to do so (discussed on this blog here).

  • Fracking:  WildEarth Guardians v. Bernhardt (D. D.C.) (This news release has a link to the complaint.)

(New lawsuit.)  On January 19, 2021, WildEarth Guardians and Physicians for Social Responsibility filed a complaint against BLM’s approval of 890 oil and gas leases encompassing over 1 million acres of public lands across Colorado, New Mexico, Utah, and Wyoming between March 2019 and December 2020.  This news release has also summarized recent and ongoing litigation against oil and gas leasing on public lands (but it didn’t include this additional case against the Pendley RMP decisions).

 

FISH AND WILDLIFE SERVICE

(Notice of Intent)  On January 5, 2021, the Center for Biological Diversity filed a Notice of Intent to Sue the U. S. Fish and Wildlife Service for delaying protection for 11 species that have been identified as warranting endangered status but were placed on a candidate list instead.  Included on that list is the northern spotted owl, which was found warranted for uplisting from threatened to endangered in December.

  • Salamander recovery plans: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.) (This news release has a link to the complaint.)

(New lawsuit.)  On January 13, 2021, The Center for Biological Diversity and Healthy Gulf sued the Trump administration today for failing to issue recovery plans for the endangered reticulated and frosted flatwoods salamanders.  The frosted flatwoods salamander is associated with the longleaf pine flatwoods that once extended across much of the Southeastern U.S. Today their range within Florida has been reduced primarily to the Apalachicola National Forest and a national wildlife refuge, and they are also found on the Francis Marion National Forest in South Carolina (and maybe others).

(New lawsuit.)  Seventeen states and New York City have filed a federal lawsuit against two final rules issued by the U. S. Fish and Wildlife Service in December that narrow the definition of “habitat” in a way that shrinks the amount of land designated as protected under the Endangered Species Act.

  • Migratory Bird Treaty Act:  National Audubon Society v. U. S. Fish and Wildlife Service (S.D. N.Y.)  (This article has a link to the complaint.)

(New lawsuit.)  On January 19, 2021, a coalition of national environmental groups filed litigation against a move by the U. S. Fish and Wildlife Service to eliminate longstanding protections for waterfowl, raptors, and songbirds under the Migratory Bird Treaty Act.  The new regulation applies MBTA protections only to the intentional killing of birds and not “incidental” killing from industrial activities, such as oil spills and electrocutions on power lines.

OTHER

(8th Supplemental Complaint.)  On January 19, 2021, a coalition of fishing and conservation groups and the State of Oregon returned to court to challenge the latest federal plan for hydropower operations on the Snake and Columbia Rivers, and its effects on endangered salmon and steelhead.  (Legislation has been proposed to remove the four dams that are at the heart of this litigation.)

NFS Litigation Weekly February 19, 2021

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The Forest Service summaries are here:  Litigation Weekly February 19, 2021 EMAIL

(The last summary we received was dated January 8, so we’ve missed a few things.)

Links for each case are to court documents.

COURT DECISIONS

WildEarth Guardians v. U.S. Forest Service (D. Utah).  On February 5, 2021, the District Court of Utah upheld the authorizations for a 400-well oil and gas development project on the Ashley NF with regard to NEPA, NFMA, Mineral Leasing Act, Roadless Rule, Clear Water Act and APA claims.

Idaho State Snowmobile Association v. U.S. Forest Service (D. Idaho).  On February 10, 2021, the District Court of Idaho reversed and remanded a travel management decision involving snowmobile access and closure of 72,447 acres of the Sawtooth NF because the research relied on did not support the conclusions about wildlife in the EA.

NEW CASES

Arizona Mining Reform Coalition v. U.S. Forest Service (D. Ariz.).  On January 22, 2021, the plaintiff filed a complaint in the District Court of Arizona, regarding the conveyance of Oak Flat Parcel as part of the “Southeast Arizona Land Exchange and Resolution Copper Mine Project” on the Tonto National Forest that was approved on January 15, 2021.

Friends of the Clearwater v. Cheryle Probert (D. Idaho).  On February 4, 2021, the plaintiff filed a complaint in the District Court of Idaho, challenging a October 2017 Travel Planning Record of Decision, which allows motorized use along the Fish Lake Trail within a Recommended Wilderness Area on the Nez Perce-Clearwater National Forest.

NOTICE OF INTENT

On January 26, 2021, Western Watersheds Project and Rocky Mountain Wild alleged violation the Endangered Species Act and National Forest Management Act regarding the Final Record of Decision and the Final Environmental Impact Statement for the Thunder Basin National Grassland 2020 Plan Amendment because of the failure to carry out programs to conserve the black-footed ferret.

OTHER CASES

Montana Environmental Information Center vs. Bernhardt (D. Montana).  On January 25, 2021, the Montana District Court denied Plaintiff’s Motion for Preliminary Injunction regarding the Rosebud Mine expansion in southeast Montana and its effect on the endangered pallid sturgeon. (The Forest Service is not a named party in this litigation nor are any mining operations on NFS lands. The summary was provided for information purposes.)

Price v. Barr (D. D.C.).  On January 22, 2021, the District Court entered a declaratory judgment and permanent injunction against permit and fee requirements for commercial filming in a national park because they are unconstitutional under the First Amendment (as we discussed here).

Natural Resources Defense Council v. U. S. Department of the Interior (N.D. California).   On January 25, 2021, NRDC, filed a complaint for Declaratory and Injunctive Relief in the Northern District of California against the U. S. Fish and Wildlife Service, challenging the decision to remove the gray wolf from the list of threatened and endangered species.