Jon Haber

NFS Litigation Weekly June 26 & July 3, 2020

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The Forest Service summaries may be found here:  Litigation Weekly June 26_July 3_2020_Final Email

COURT DECISIONS

High Country Conservation Advocates, et al. v. United States Forest Service.  On June 15, 2020, the District Court of Colorado issued an order vacating the Colorado Roadless Rule’s North Fork Coal Mining Area exception on the Grand Mesa, Uncompahgre, and Gunnison National Forest, per the 10th Circuit Court of Appeals March 2, 2020, order. (Meanwhile, Arch Coal has built a road into the Sunset Roadless Area during the delay in the lower court’s order.)

Solenex LLC v. Bernhardt.  On June 16, 2020, the District of Columbia Court of Appeals found the Bureau of Land Management’s cancellation of the Solenex oil and gas lease in the Badger-Two Medicine Area on the Helena-Lewis and Clark National Forest was not arbitrary and capricious.  (Here is some background.)

Western Watershed Project, et al. v. Bernhardt.  On June 19, 2020, the District Court for the District of Columbia issued a memorandum opinion order denying the plaintiff’s request for a preliminary injunction concerning the Upper Green River Area Rangeland Project on the Bridger-Teton National Forest, which plaintiffs allege unlawfully impacts the grizzly bear, and the Kendall Warm Springs Dace.  (Discussed here.)

Southeast Alaska Council v. Forest Service.  On June 24, 2020, the District Court for Alaska issued a remedy order against the Forest Service concerning the Prince of Wales Landscape Level Analysis Project on the Tongass National Forest which vacates the portions of the March 16, 2019, record of decision for the project that authorize vegetation management and road construction activities; and vacates the portion of the October 19, 2018, Final Environmental Impact States as applied to vegetation management and road construction activities.

The judge explicitly rejected the Forest Service argument that, if this can’t be the only NEPA process for this large landscape “condition-based” decision, “the project EIS’s shortcomings do not necessarily prevent it from serving as a programmatic EIS, to which future site specific analyses could tier, potentially without further amendment…”   (The court’s original ruling was discussed here.)

NEW CASE

WildEarth Guardians v. U.S. Forest Service.  On June 17, 2020, the plaintiffs filed a complaint in the District Court of Eastern Washington against the Colville National Forest, primarily concerning the state listed gray wolf. The plaintiffs claim that Forest Service abdicated its authority on livestock ranching activities to ranchers in both its recently revised forest plan and ongoing grazing authorizations, which has incited conflict with the gray wolf.  The plaintiffs also claim violations of section 7 of the Endangered Species Act, concerning ranching activities on the several listed species.  (We have previously discussed this case here.)

NOTICE OF INTENT

On June 22, 2020, Klamath Siskyou Wildlands Center, Klamath Forest Alliance, and EPIC sent a 60-day Notice of Intent to Sue pursuant to the Endangered Species Act for alleged failure to reinitiate consultation on the Crawford Vegetation Project on the Klamath National Forest regarding effects on northern spotted owls.

 

BLOGGER’S BONUS

Here are some updates related to past and pending litigation.

The lawsuit recently filed against the U. S. Fish and Wildlife Service for failing to complete the ESA listing process for wolverine has been settled, with the FWS agreeing to complete the process by the end of August.  This process is in response to a court invalidating their prior decision to not list the species.

We have discussed extensively, including here.  After President Trump shrank the Bears Ears and Grand Staircase-Escalante National Monuments several lawsuits were filed and consolidated.  Here is a summary of the arguments presented in a seminar at that time.  The plaintiffs filed an amended complaint in late 2019 and asked the court for summary judgment.  The briefing was just completed for this case.

 

While cases continue in federal court (see here), the Campaign to Save the Boundary Waters announced it is filing a lawsuit under the Minnesota Environmental Rights Act asking a judge to order the Minnesota Department of Natural Resources “to initiate a public process to amend state non-ferrous mining rules” that would would effectively kill the copper-nickel mine that has been proposed in a watershed that includes the Boundary Waters Canoe Area Wilderness on the Superior National Forest.  The article also mentions federal legislation that has been introduced to ban mining on national forest lands in the watershed.

 

After the Tenth Circuit Court of Appeals ruled that the Forest Service had not made a final decision on mountain goat management, and therefore there was no final agency action to challenge, plaintiffs have continued to monitor the effects of the non-native goats on a research natural area.  They plan to provide the information to the Manti-La Sal National Forest plan revision process this summer as a way of forcing action on the issue.

 

 

NFS Litigation Summary mid-June, 2020

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I didn’t receive a Forest Service June 19 “weekly,” but here’s what might have been covered:

COURT DECISIONS

On June 9, 2020, the Montana federal district court dissolved the injunction against the North Hebgen Multiple Resource Project on the Custer-Gallatin National Forest after the Forest addressed deficiencies related to elk hiding cover and wolverines.  (The opinion is short.)

On June 12, 2020, the Tenth Circuit Court of Appeals upheld two thinning and prescribed burning projects (Hyde Park and Pacheco Canyon) on the Santa Fe National Forest.  The projects complied with HFRA and forest plan requirements for old growth and wildlife, properly applied the relevant categorical exclusion, and adequately addressed cumulative effects.

On June 12, the Idaho federal district court denied plaintiff’s injunction request, finding no likelihood of success on the claims under the Endangered Species Act and Clean Water Act.  (The court also denied a request by the Forest Service for an order for plaintiffs to stop harassing work crews with a helicopter, viewing it as a one-time occurrence.)

NEW CASES

On June 10, 2020, plaintiffs sued the Forest Service and U. S. Fish and Wildlife Service in the Arizona federal district court seeking removal of 14 summer homes and a bible camp subject to special-use permits in order to protect the remaining canopied habitat on the Coronado National Forest upon which the federally endangered Mt. Graham red squirrel now relies.  (Additional background here.)

UPDATES

Plaintiffs filed a motion for summary judgment in their lawsuit against the U.S. Fish & Wildlife Service and U.S. Forest Service regarding the effects of the Rock Creek Mine on the Kootenai National Forest on grizzly bears and bull trout.  (Last discussed here.)

Plaintiffs decided not to seek a preliminary injunction in their lawsuit against the Forest Service and U.S. Customs and Border Protection when the agencies informed them that there would be no construction activities until the summer of 2021 on the Bog Creek Road project, located just south of the Canadian border on the Idaho Panhandle National Forest.

The Helena-Lewis and Clark National Forest announced it is withdrawing the Elk Smith project, involving prescribed fire in a roadless area.

OTHER LITIGATION

On June 17, 2020, a coalition of conservation groups filed a formal notice of their intent to sue the U.S. Fish and Wildlife Service for its failure to protect the bi-state sage-grouse population under the Endangered Species Act.  The species occurs on the Humboldt-Toiyabe National Forest which has been involved in this long process, as noted here.

The federal government filed a complaint claiming that J-Spear Ranch of Paisley, Oregon, started the 2018 Watson Creek Fire that burned 46,000 acres in the Fremont-Winema National Forest, resulting in at least $14 million worth of losses in timber, habitat, water protection and environmental values, as well as fire suppression and rehabilitation costs.

A Mexican national pleaded guilty in federal court last week to cultivating over 1,000 marijuana plants in Sequoia National Forest.

Four conservation groups filed motions to intervene on the side of Ventura County and against the Ventura County Coalition of Labor, Agriculture and Business, and the California Construction and Industrial Materials Association in their lawsuit against two ordinances protecting designated wildlife corridors connecting the Los Padres National Forest, Santa Monica Mountains and Simi Hills.  (No word on whether the Forest Service will also intervene to coordinate with other land managers having land relevant to maintaining viable populations of wildlife, 36 CFR §219.9(b)(2)(ii).)

Collaborating on national forest exploitation – an oxymoron?

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“Attendees engaged in fruitful conversations during the Green Mountain and Finger Lakes National Forests hosted Environmental Analysis and Decision Making collaboration summit. USDA Forest Service photo.”

“Before retiring, James Burchfield worked as a field forester for the Forest Service and served as dean of the W.A. Franke College of Forestry and Conservation at the University of Montana.”  Where our careers overlapped, he was known for his support of and expertise in collaboration in national forest management.  We have argued on this blog about the proper role of collaboration (it flared up again in the Rim Fire recent example), but in this Missoulian column he points out what I think most would agree is an improper role (on his way to making another point about adequately funding the Forest Service).

In 2002, former Chief Dale Bosworth, who now resides in Missoula, reminded the agency of the concept of stewardship, where the focus is not what we take from the land but what we leave on the land. I fear we may be forgetting these vital lessons.

The June 12 visit to Missoula by Agriculture Secretary Sonny Perdue to announce his Secretarial Memorandum on new agency priorities reminds us how easily we may be lured in the wrong direction. His mandate to “increase America’s energy dominance” and “reduce regulatory burdens” comes on the heels of a June 4 Presidential Executive Order that orders federal agencies to set aside environmental impact requirements because of the economic downturn caused by the COVID-19 pandemic. Certainly, the nation must take assertive measures to restore the economy, but a command to exploit complex ecological systems without appropriate environmental reviews, guaranteed by the National Environmental Policy Act (NEPA), abandons the sound principle of “look before you leap.” Further, forcing the Forest Service to meet production targets on a narrow range of resource benefits — those that can be commodified in the marketplace — discounts other critical resource values such as clean water, wildlife habitat and recreation opportunities that are well-recognized as central to Montana’s economic vitality.

Moreover, the Forest Service has learned its best outcomes emerge only after ongoing deliberations among partners and local residents to apply their nuanced knowledge and experience. This process actually happens in Montana via the decades of efforts by the 20-plus voluntary groups known as forest collaboratives that regularly engage with agency staff to improve project design, build understanding, and help get work done. These collaborative groups do not enter their deliberations with presupposed notions of resource exploitation. They want the best for the land.  

(My emphasis.)  I was always skeptical that including those with strictly monetary interests in collaborative efforts comported with this principle.  I assumed that there would have to be collaborative agreement with the desired outcome as step 1.  (This is also where forest plans should make an important contribution by defining the desired condition of the land.)  After Perdue’s announcement, it’s hard to see how any truly collaborative effort today could get past that step.

 

 

Range of variation webinar (and more)

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This is a topic that at least Sharon and I like to debate (though for some reason she didn’t weigh in here).  The Western Environmental Law Center is offering this hour and half webinar on July 17.  As far as I know, it’s open to the public.

PNW Forest Collaboratives Workshop Series Part 3: Historical Range of Variability (HRV): Uses and Various Approaches
 
Range of Variability (ROV) concepts – including Natural (NRV), Historic (HRV), Current (CRV), and Future (FRV) – are frequently used by the US Forest Service to help define land management goals. Nathan Poage, Forest Service Ecologist, joins us to provide an introduction to ROV terminology and examples of how the Malheur, Umatilla, and Wallowa-Whitman National Forests in the Blue Mountains have applied ROV concepts during project planning when addressing key requirements of the Eastside Screens. The discussion will include overviews of tools commonly used to conduct ROV analyses. Q&A will follow the presentation.
This webinar will be on Friday, July 17 from 10-11:30am Pacific Time.
Registration is required for this event. Register today by clicking this link.
Note that it also involves the Eastside Screens.  I don’t think I can make it, but I’d be interested in hearing about it.  I also wanted to point out that this is about how to apply these concepts to projects developed under antiquated forest plans that don’t include the concepts.  It was this kind of thinking that drove development of the requirement to do this instead as part of revising forest plans under the 2012 Planning Rule.  Natural Range of Variation (NRV) embraced by the Planning Rule is a required desired condition for ecosystems, which should not change over time, and therefore should not be redecided for each project.  I’d be interested in knowing how, once ROV is determined for a particular project here, it is then documented and used for future projects in the same ecosystem.
But maybe there would be more interest in this one:
PNW Forest Collaboratives Workshop Series Part 2: Collaborative Administrative and Judicial Review Opportunities
In this follow-up webinar to NEPA 101, WELC attorney Susan Jane Brown will give a presentation on and answer your questions about collaborative administrative and judicial review opportunities, and dig deeper into the administrative review process for the Forest Service, judicial review of agency decisions, and how collaborative groups can engage in these processes.
This webinar will be on Thursday, July 9 from 10-11:30am Pacific Time.
Registration is required for this event. Register today by clicking this link.

NFS Litigation Weekly June 12, 2020

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The Forest Service summary may be found here:  Litigation Weekly June 12_2020_Email

COURT DECISION

On June 3, 2020, the District Court of Montana issued a favorable decision in Alliance for the Wild Rockies v. Marten on the consolidated challenges against two Healthy Forest Restoration Act categorical exclusion projects—Willow Creek Project on the Helena-Lewis and Clark National Forest and the North Bridgers Project on the Custer-Gallatin National Forest.

 

BLOGGER’S BONUS (since there’s some space to fill this week)

(Court decision, this article includes a link to the opinion.)  On May 27, 2020,  in Montana Wildlife Federation v. Bernhardt, the District Court of Montana held that a 2018 Instructional Memorandum (IM) implementing the 2015 sage-grouse amendments to BLM resource management plans (RMPs), as well as oil and gas leases, in Montana and Wyoming were inconsistent with the RMP requirements to prioritize leases to protect sage grouse, and therefore violated the Federal Land Policy and Management Act.

The RMPs at issue included the following language:

“Priority will be given to leasing and development of fluid minerals outside of [priority and general habitat]. When analyzing leasing and authorizing development of fluid mineral resources in PHMA and GHMA, and subject to applicable stipulations for the conservation of [sagegrouse], priority will be given to development in nonhabitat areas first and then in the least suitable habitat for [sage-grouse].”

The Record of Decision for the amendments and a 2016 IM emphasized the importance of encouraging new development in areas that would not conflict with sage-grouse. The 2018 IM dispensed with that priority, except when there was a leasing backlog.  The court held determined that the 2018 IM violated the FLPMA requirement for agency actions to conform to land use plans because it conflicted with the plain language of the RMPs. The court then held, “The lease sales either explicitly, or in effect, follow the same rationale as the 2018 IM and thus also violate the FLPMA,” and it vacated the lease decisions:

“The Court sees no reason to leave the 2018 IM in place. BLM’s errors undercut the very reason that the 2015 Plans created a priority requirement in the first place and prevent BLM from fulfilling that requirement’s goals. As for the lease sales, the errors here occurred at the beginning of the oil and gas lease sale process, infecting everything that followed.”

 

Touchless reforestation

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Drone technology is being used for tree-planting in response to afforestation and carbon sequestration needs, including use after wildfires. How might this change national forest management?

To quickly plant around a trillion trees—a goal that some researchers have estimated could store more than 200 gigatons of carbon—Flash Forest argues that new technology is needed. In North America, trees need to grow 10-20 years before they efficiently store carbon, so to address climate change by midcentury, trees need to begin growing as quickly as possible now. “I think that drones are absolutely necessary to hit the kind of targets that we’re saying are necessary to achieve some of our carbon sequestration goals as a global society,” she says.

But to restore forests that have already been lost, the drones can work more quickly and cheaply than humans planting with shovels. Flash Forest’s tech can currently plant 10,000 to 20,000 seed pods a day; as the technology advances, a pair of pilots will be able to plant 100,000 trees in a day (by hand, someone might typically be able to plant around 1,500 trees in a day, Ahlstrom says.) The company aims to bring the cost down to 50 cents per tree, or around a fourth of the cost of some other tree restoration efforts.

This has obvious implications for tree-planting crews, but how about something like salvage logging?  Other issues?

NFS Litigation Weekly June 5, 2020

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The “real thing” is back (with a vengeance).  This is why I try to not get too far ahead of the Forest Service.  This FS litigation “weekly” covers six of them, some of which I’ve already addressed, so I guess you’ll get them twice.  The full Forest Service summaries for all may be found here:

Litigation Weekly June 5_2020_EMAIL

I’m also just copying their shorter email summary here and providing links to the related documents provided by the Forest Service, as well as to any previous summaries and a few related articles.

COURT DECISIONS

On April 20, 2020, the District Court of Montana issued an order lifting the injunction on the Bozeman Municipal Watershed Fuels Reduction Project and the East Boulder Fuel Reduction Project on the Gallatin National Forest after the Forest Service adequately assessed the impacts of the Northern Rockies Lynx Amendment (Lynx Amendment) and the projects on the Canada Lynx and its critical habitat. The projects aimed to reduce the severity and collateral effects of wildfire by way of logging, thinning, and prescribed burns. Both projects were to take place in areas designated as critical habitat lynx.  (Previously summarized here.)

On April 21, 2020, the Eastern District Court of California issued an order dismissing the plaintiffs motions for temporary restraining order and preliminary injunction concerning the use of disaster relief funds for clearcutting timber, and construction of new biomass power plant utilizing the timber as feedstock following the 2013 Rim Fire on the Stanislaus National Forest.  (Previously summarized here.)

On April 29, 2020, the District Court of Montana issued an order favorable to the Forest Service dismissing the plaintiff’s motion for Temporary Restraining Order (TRO) and Preliminary Injunction regarding the Darby Lumber Lands Project on the Bitterroot National Forest.  (Previously summarized here.)

On May 7, 2020, the District Court of Idaho issued an order that granted the Forest Service’s motion to dismiss the plaintiffs’ claim that the Agency supplement the 1995 Environmental Assessment (EA) based on new information. However, the district denied the Forest Service’s and U.S. Fish and Wildlife Service’s motion to dismiss the plaintiffs’ claim for reinitiating consultation based on taking of grizzly bear resulting from black-bear baiting for hunting in the Idaho Panhandle National Forest, Caribou-Targhee, Bridger-Teton, and Shoshone National Forests.  (Previously summarized here.)

On May 4, 2020, the District Court of Idaho issued a decision concerning the Kilgore Exploration Project on the Caribou-Targhee National Forest (a 5-year mining exploration project). The court vacated the August 20, 2018, decision notice (DN) and finding of no significant impact (FONSI) and the environmental assessment (EA). The district court’s December 18, 2019 decision had permitted the project to proceed, minus the Dog Bone Ridge portion of the project.  (Previously summarized here.)

May 1, 2020, the 9th Circuit Court of Appeals ruled in favor of the Forest Service upholding the District Court of Oregon’s decision granting summary judgment for the Forest Service, concerning the plaintiffs’ challenge to the issuance of grazing authorizations between 2006 and 2015 on seven grazing allotments on the Malheur National Forest. The plaintiffs allege non-compliance with the Wild and Scenic Rivers Act (WSRA), Administrative Procedures Act (APA), National Forest Management Act (NFMA), and Inland Native Fish Strategy (INFISH).  (Previously summarized here.)

On May 8, 2020, the 9th Circuit Court of Appeals affirmed the District Court for Eastern California’s favorable decision to the Forest Service and the U.S. Fish and Wildlife Service (FWS) concerning the Bagley Hazard Tree Abatement Project on the Trinity National Forest.  (Previously summarized here.)

On May 20, 2020, the 9th Circuit Court of Appeals affirmed the District Court of Idaho’s favorable decision to the Forest Service, concerning the Windy Shingle Project on the Perce Clearwater National Forest. The project was approved with an insect and disease categorical exclusion (CE), under the 2014 amended Healthy Forest Restoration Act (HFRA), sections 602 and 603. The Forest completed an extraordinary circumstances analysis and evaluated the cumulative impacts. The 9th Circuit found that the methods applied for determining old growth status were legitimate, and that adjusting the management areas was permitted by the Nez Perce Forest Plan.

On May 26, 2020, the District Court of Central California issued a decision favorable to the Forest Service concerning the Cuddy Valley Project on the Los Padres National Forest involving the use of a 36 C.F.R. § 220.6(e)(6) categorical exclusion (CE), for timber stand and wildlife habitat improvement. The plaintiffs asserted that approval of the project violated the National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), and Administrative Procedures Act (APA).

On May 28, 2020, the Court of Federal Claims issued an order dismissing the case for lack of jurisdiction in favor of the National Park Service and the Forest Service concerning continued allowance of the hunting of bison that have migrated out of the Yellowstone National Park and through Beattie Gulch on the Custer-Gallatin National Forest. Plaintiffs allege the hunting program has affected a temporary regulatory taking of plaintiffs’ property by creating an atmosphere of danger and decreasing the rental value of their property.

On May 28, 2020, the District Court of Eastern California issued a decision against the Forest Service and the U.S. Fish and Wildlife Service (FWS) concerning the Pettijon Project (a fuel-reduction project) on the Shasta-Trinity National Forest regarding the Plaintiffs motion to supplement the administrative record.

On May 22, 2020, the District Court of Arizona issued an order in favor of the Forest Service concerning the remaining claim which challenged the Agency’s determination that Energy Fuels has “valid existing rights” (VER) at the Canyon Mine on the Kaibab National Forest. The Decision concerns the district court evaluation of Federal Land Policy and Management Act (FLPMA) in determining prior existing rights based on the 9th Circuit Court of Appeals order (December 19, 2019) vacating back to the lower court for review.  (More in this article.)

On May 26, 2020, the District Court of Montana issued a decision favorable to the Forest Service, concerning Robbins Gulch Road easement on the Bitterroot National Forest. The court granted the Agency’s motion to dismiss and denied the plaintiffs’ motion for summary judgment. The plaintiffs alleged that by allowing public access on Robbins Gulch Road, the Forest Service was exceeding the scope of its 1962 road easement, which plaintiffs argued was limited to Forest Service use only, such as for timber or grazing purposes, and was not intended to provide public access to National Forest System lands.  (More in this article.)

COURT UPDATE

On April 24, 2020, the District Court of Montana issued an order regarding a factual dispute between the Forest Service and the plaintiff, which must be addressed prior to summary judgement. The case concerns the Forest Service’s approval of Tenmile South-Helena Vegetation Project on the Helena-Lewis and Clark National Forest. A factual dispute arose after the plaintiffs took photos and collected GPS information in the project area, which they believe strengthens their case.

NEW CASES

On April 20, 2020, the plaintiffs filed a complaint in the District Court of Oregon against the Forest Service concerning the Black Mountain Vegetation Management Project on the Ochoco National Forest. Plaintiffs claim the project is inconsistent with the Ochoco NF Forest Plan as amended by Inland Native Fish Strategy (INFISH). The plaintiffs claim the Forest Service failed to take a hard look at direct, indirect, and cumulative impacts of the project.  (Introduced here.)

On April 20, 2020, the plaintiffs filed a complaint against the Forest Service concerning the Crow Creek Pipeline on the Caribou-Targhee National Forest and the Agency’s final decision and amendments to the 2003 Caribou-Targhee National Forest (CTNF) Forest Plan. The plaintiffs allege violations of the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), Mineral Leasing (MLA), and National Trails System Act (NTSA).  (Introduced here.)

On April 20, 2020, the plaintiffs filed a complaint in the District Court of Wyoming against the Forest Service approval of the Alkali Creek, Forest Park, and Dell Creek feedgrounds on the Bridger-Teton National Forest. The plaintiffs challenge two feedground decisions by the Forest Service’s (1) five year approval of the Wyoming Game and Fish Commission request to resume feeding operations on the Alkali Creek Feedground without conducting the environmental analysis previously ordered by the district court (September 14, 2019 order; 17-0202, D. Wyo.); and (2) indefinite authorization of artificial feeding at Dell Creek and Forest Park feedgrounds without issuing the special uses permit under the Forest Service’s own regulations (36 CFR section 251.54(e)(1), or conducting environmental analysis under the National Environmental Policy Act (NEPA).  (Introduced here.)

April 27, 2020, the petitioner (YJ Guide Service, LLC dba Bungalow Outfitters) a hunting outfitter and guide, filed an application for Temporary Restraining Order (TRO) in the District Court of Idaho against the Forest Service regarding suspension of a special use permit for Outfitting and Guiding on the North Fork Ranger District of the Nez Perce-Clearwater National Forest. No complaint has yet been filed. The petitioner’s application for the TRO is based on upon grounds that it believes it will suffer irreparable harm and injury if the TRO is not issued.

On April 24, 2020, the plaintiffs filed a complaint in the Eastern District of California against the Forest Service concerning the Crawford Vegetation Project on the Klamath National Forest. The plaintiffs claim the Forest Service failed to supplement their environmental analysis for the project in light of significant new information and changed circumstances regarding the impacts of the project on the northern spotted owl and Pacific fisher which have been found in the project area.

On May 6, 2020, the plaintiffs filed a complaint in the District Court for the District of Columbia against the U.S. Department of Interior (DOI), Bureau of Land Management (BLM), Department of Agriculture (USDA) and the Forest Service concerning compliance with the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) when the BLM issued two hard-rock mining lease renewals to Twin Metals Minnesota in an area adjacent to the Boundary Waters Canoe Area Wilderness (Boundary Waters) on the Superior National Forest.  (This latest lawsuit was introduced here.)

On May 7, 2020, the plaintiffs filed a complaint in the District Court of Idaho against the Animal and Plant Health Inspection Service (APHIS) concerning their predator damage management actions in the State of Idaho, relying on inadequate and outdated environmental analysis in violation of the National Environmental Policy Act (NEPA). The plaintiffs bring related claims against the Bureau of Land Management (BLM) and Forest Service, which authorized APHIS’s aerial gunning of coyotes and other wildlife on federal lands [through Annual Work Plans (AWPs)], without adequate environmental analysis in violation of NEPA.

On May 8, 2020, the plaintiffs filed a request for a preliminary injunction (PI) in the District Court for the District of Columbia against the U.S. Fish and Wildlife Service (FWS) and the Forest Service concerning the Upper Green River Area Rangeland Project on the Bridger Teton National Forest, which plaintiffs allege unlawfully impacts the grizzly bear, and the Kendall Warm Springs dace. Plaintiffs challenge the FWS issuance of, and the Forest Service reliance on, a flawed Biological Opinion (BO) regarding the negative impacts to grizzly bears that arise from the Forest Service’s authorization of continued livestock grazing in prime grizzly bear habitat within the Forest, in violation of the Endangered Species Act (ESA), and Administrative Procedures Act (APA), and impacts on the Kendall Warm Springs dace.  (Some prior history can be found here.)

On May 13, 2020, the plaintiffs filed a complaint in the District Court of Indiana against the Forest Service concerning the Forest Service Houston South Vegetation Management and Restoration Project on the Hoosier National Forest. The plaintiffs allege the project violates the National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), and Administrative Procedures Act (APA). The plaintiff’s concerns are related to the impacts of the project on Lake Monroe watershed, which supplies drinking water for more than 145,000 people. The plaintiffs claim the Forest Service’s action fails to comport with the Agency’s own stated goal of protecting and restoring watershed health in its 2006 Hoosier NF Forest Plan. The project consists of commercial logging, including clear-cuts, shelterwood cuts, selective cuts, and thinning cuts, as well as road building, herbicide application, and prescribed burning activities.  (Introduced here.)

On May 20, 2020, the plaintiffs filed a complaint in the District Court of Idaho against the Forest Service for violations of the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), National Forest Management Act (NFMA), the Administrative Procedures Act (APA), and Agency Wild and Scenic River regulations concerning the Brebner Flat Project on the Idaho Panhandle National Forest.

NOTICES OF INTENT

On April 15, 2020, (dated April 7, 2020), a 60-day Notice of Intent was received by the Friends of the Clearwater and the Alliance for the Wild Rockies (FOC/AWR) to sue the National Marine Fisheries Service (NMFS) and the Forest Service concerning the approval of the Lolo Insect and Disease Project and 24 new culvert replacements on the Nez Perce-Clearwater National Forest. The FOC/AWR state the Forest Service approved a decision permitting the Lolo Insect and Disease Project and 24 culvert replacements, and NMFS’s issued Biological Opinion (BO) and Incidental Take Statement (ITS) for the project on June 20, 2019, and a revised ITS on July 19, 2019, with a take limit of 79 Snake River Basin (SRB) steelhead. The complainants claim violations of Section 7 and Section 9 of the ESA concerning the Snake River Basin Steelhead.

On April 1, 2020, Range 6-received a 60-day Notice of Intent by the WildEarth Guardians (WEG) to sue the U.S. Fish and Wildlife Service (FWS) and the Forest Service concerning ongoing Livestock Grazing, on the Cooper Mires, Lambert, and C.C. Mountain allotments on the Colville National Forest. The FWS and the Forest Service continue to violate the Endangered Species Act (ESA) section 7 consultation. Complainants claim four listed species and two critical habitats exists within the allotments: bull trout, woodland caribou and their critical habitats, grizzly bear, and Canada lynx. Also, suitable habitat for yellow-billed cuckoo (listed threatened species) and both wolverine and white bark pine are present (candidate species).

NOI-dated April 27, 2019, Alliance for the Wild Rockies and Native Ecosystems Council sent a 60-day Notice of Intent to Sue pursuant to the Endangered Species Act (ESA) for alleged violations concerning the Stonewall Vegetation Project on the Helena-Lewis and Clark National Forest. The Stonewall project was authorized 1,381 acres of vegetation treatments in a Record of Decision on December 19, 2019. This project was analyzed in a Supplemental EIS due to a fire that had burned through the project area.

NOI-dated May 20, 2020, Center For Biological Diversity, Northeastern Minnesotans for Wilderness and the Wilderness Society sent a 60-day Notice of Intent to Sue the Bureau of Land Management (BLM), Forest Service and the U.S. Fish and Wildlife Service (FWS) pursuant to the Endangered Species Act (ESA) for alleged violations concerning BLM’s May 1, 2020 Decision approving Federal Hardrock Prospecting Permit Extensions for Twin Metals; and for the Forest Service and FWS failure to reinitiate and complete ESA consultation regarding ongoing impacts to Federally listed species and their critical habitat from the Prospecting Permits on the Superior National Forest (Region 9). The NOI states that the permits violate Sections 7 and 9 of the ESA based on new information concerning Canada lynx, gray wolf and their critical habitat, and the Northern long-eared bat.

Make forest plans great again (for wildlife)

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I often point out how the Forest Service is shirking its responsibility to adopt forest plans that provide ecological conditions needed for diversity and viability of at-risk species.  Most recently, I listed some examples from the recently released Rio Grande revised forest plan.  Here is one guideline (there weren’t really any relevant standards):

EPC-G-1: To avoid or minimize adverse effects to listed species and their habitat, management actions should be designed with attention to threatened, endangered, proposed, or candidate species and their habitats. 

This says essentially nothing.

An important purpose of identifying and planning for at-risk species is to reduce the chance that they would need to be listed under the Endangered Species Act.  If this were a private landowner, conservation measures for at-risk (but not yet listed) species would be discretionary.  However, they could choose to sign a Candidate Conservation Agreement with Assurances (CCAA) with the listing agency to adopt conservation measures that would reduce the likelihood of listing in exchange for a commitment that the listing agency would not require anything more if the species did become listed.

Here is an example of one such enhancement of survival permit for Chinook Forest Partners, LLC Candidate Conservation Agreement with Assurances for Fisher in Oregon (until recently, a candidate for listing).  From the NEPA document (CE):

Activities that are covered by this CCAA and the associated section 10(a)(1)(A) permit are on-going and commonly practiced forest land management activities. These include timber harvest and hauling, site preparation and reforestation, and road maintenance and construction. Additionally, there may be some collection of minor forest products, fire suppression, and recreation (including legal hunting and trapping).

Goals and objectives for fisher include: improving our understanding of fisher distribution, densities, and habitat use, especially on non-federal lands where information is more lacking; conserving active fisher den sites to increase the survival of young; increasing public participation and support for fisher recovery and reintroduction by providing long-term assurances; and, monitoring potential future reintroduced fishers as they disperse from their release sites to determine success rates and provide information for improving success rates.

And here is what the private landowner committed to do in the CCAA to achieve those objectives for fisher (note: some are saying that this still isn’t good enough).  Given that the Forest Service is obligated by NFMA to provided ecological conditions for a viable population of at-risk species on national forests, why shouldn’t they be making at least this kind of commitment in their forest plans for public lands?  (This could make them adequate regulatory mechanisms to reduce the likelihood of listing under the ESA criteria.)

  • Specifically, CFP/CFM shall not conduct or authorize any of the activities described in the forest management activities in Section 4 (including but not limited to timber felling, pre-commercial thinning, reforestation, salvage of trees, prescribed burning, and brush control) within 0.25 miles of a den site, because those activities could result in disturbance or harm to denning fishers. CFM shall not authorize helicopter or fixed wing application of herbicide or fertilizer within 0.25 miles of an occupied den site between 15 March and 30 September until CFM is informed by USFWS or its agent the denning female has vacated the den site.
  • Provide protection of denning female fishers by restricting trapping and nuisance animal control activities on enrolled lands within 2.5 miles of den sites.
  • Report to USFWS, and ODFW or mutually agreed upon designated agents, within 48 hours upon finding any potentially occupied den sites or any dead, sick, or captured fishers on enrolled lands.
  • Cover all man-made structures on enrolled lands that pose an entrapment risk to fishers (e.g. large water troughs, old rail cars, or other containers from which fishers cannot escape) or place a device within the structure (e.g., wooden pole to allow fishers to climb out) to prevent mortality of fishers from drowning, starvation or dehydration
  • Where suitable habitat exists and where agreed upon by CFP and USFWS, allow the release of translocated fishers on enrolled lands
  • CFP will seek to have all of its timberlands third party certified to the Sustainable Forestry Initiative® (SFI),
  • CFP will take fisher habitat characteristics into consideration when assessing parcels for transfer or sale into permanent or semi-permanent conservation status.
  • Subject to safety, operability, fire hazard considerations, and salvage of timber following fire, windthrow or other natural or man-caused casualty, CFM will conserve existing and future standing deadwood, and, where available, focus leave tree retention on damaged, decayed, or deformed trees that are likely to provide or promote decay processes and structures beneficial to fisher or their prey.
  • CFM meets or exceeds the Forest Practices Act (FPA) live tree and snag retention, and down woody debris. For clearcut harvests greater than 25 acres, FPA requires that at least 2 snags or 2 green trees 30 feet tall and at least 11 inches DBH, at least 50% are conifer, plus at least 2 down logs or down trees at least 50% of which must be conifers that are at 6 least 6 feet long with a total volume of 10 cubic feet must be retained. CFM commits to retaining a minimum of 3 snags or green trees per acre on clearcuts larger than 25 acres, and these trees/snags will be retained for the life of the CCAA.
  • Trees >32” DBH will be retained the greatest extent possible, provided they do not pose safety hazards
  • CFM will instruct logging contractor to avoid whenever possible, driving machinery over, or otherwise damaging large down woody debris, thereby maintaining the integrity of stumps and logs that may be used by fishers and their prey.
  • CFM will seek to leave down woody debris and other structures important to fishers and their prey distributed throughout the unit instead of piling them into slash piles, will attempt to avoid mechanical damage or disturbance, and will locate skid trails around them where safety and operability considerations permit.
  • For slash piles documented as being used by fishers for denning on the enrolled lands, CFM shall not burn or otherwise mechanically alter such slash piles for a period of 5 years after the last year of known occupancy and use by a denning fisher.
  • CFM will avoid the use of rodenticides on lands enrolled in the permit area.
  • CFM will prohibit lessees from recreational trapping.

Trump’s latest marching orders on public lands

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Trump – Nailed it

The Trump Administration declared the coronavirus pandemic to be a “national emergency” in March. On June 4, the president issued an executive order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”  It has been characterized as “waiving environmental protections,” in particular the National Environmental Policy Act and the Endangered Species Act, and would include actions taken on public lands. This has been condemned in the usual places.

It will be interesting to see how this plays out on federal lands, and whether it makes any difference.  Trump already has the pedal to the metal on development activities, so I wonder what more they could do – without actually violating a law.  Maybe we should expect more lawsuits.

Here’s some of the key language in the EO (with my emphasis):

Sec. 2.  Policy.  Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  (I assume that means other non-emergency authorities, and not other unlawful authorities 🙂 )

Sec. 5.  Expediting the Delivery of Infrastructure and Other Projects on Federal Lands

b)  To facilitate the Nation’s economic recovery, the Secretary of Defense, the Secretary of the Interior, and the Secretary of Agriculture shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance.

Sec. 6.  National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures.

b)  To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.

Sec. 7.  Endangered Species Act (ESA) Emergency Consultation Regulations.

(b)  The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, the ESA regulation on consultations in emergencies, to facilitate the Nation’s economic recovery.

Sec. 10.  General Provisions

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Of course an executive order can’t change the law or regulations, and this one explicitly refers to existing procedures that can be used in emergencies.  All I see Trump doing here is pointing out that there are existing authorities to expedite projects, and agencies should be using them.  But maybe the intent might be to expand the situations that are considered emergencies to include an economic recession.  I doubt that could be done “consistent with applicable law” related to emergency determinations.  Here is the language applicable to Forest Service NEPA (36 CFR §220.4):

The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources.

If there is a need to mitigate immediate harm to life, property or important resources, it would be consistent with applicable law to use the established emergency procedures.  There is either nothing new in the executive order, or if there is, we should expect it to be challenged.  (And then there is the question of why he waited three months to address this “emergency.”)

But these are dark days.  The Washington Post quoted an attorney at a large national law firm (Perkins Coie) that doesn’t usually represent environmental plaintiffs.  He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. “I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,” Jensen said, referring to actions in a Washington park this week. “It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.”

 

Litigation update – early May, 2020

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(Court decision)  In Alliance for the Wild Rockies v. Marten, the Montana federal district court has lifted the injunctions against the Bozeman Municipal Watershed Fuels Reduction Project and the East Boulder Fuel Reduction Project on the Custer-Gallatin National Forest because they have properly consulted on critical habitat for Canada lynx for both the forest plan and the projects, and no supplemental EIS was required.  This was discussed most recently here.

(Court decision)  In Conservation Congress v. U. S. Forest Service, the Ninth Circuit Court of Appeals has affirmed the district court and upheld the Bagley Hazard Tree Abatement Project on the Shasta-Trinity National Forest against ESA and NEPA claims related to northern spotted owls.  A report on the hearing is here.  (And here is some discussion on this blog from 2013.)

(Court decision)  In Pacific Rivers v. BLM, the Ninth Circuit Court of Appeals affirmed the district court and the BLM and upheld the 2016 amendments to its western Oregon resource management plans against ESA and NEPA claims related to listed fish species.  (They’re not calling it WOPR any more, but I think this was what happened after BLM lost in court on the first try, discussed here.)

(Settlement)  In response to a lawsuit, the Office of Surface Mining Reclamation and Enforcement agreed to consult with the U.S. Fish and Wildlife Service to review the impacts of coal mining across the country on endangered species.  While plaintiffs seem most interested in West Virginia, active coal mining occurs on national forests in Colorado, Utah, Wyoming and Kentucky.

(New lawsuit)  Monroe County (IN) and two environmental groups filed a lawsuit to stop the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, which they believe will pollute Lake Monroe, a major drinking water source for the area, and harm the endangered Indiana bat.

(New lawsuit)  Public Employees for Environmental Responsibility and the Western Watersheds Project have sued the Trump Administration for illegally filling the positions of the directors of the BLM and National Park Service with temporary, non-confirmed appointments.

 

In other Endangered Species Act news:

(Update)  A federal judge has agreed that 17 states may be harmed by Trump Administration changes in the Endangered Species Act regulations, so their lawsuit against these changes may proceed.  However, he found that was not the case for environmental and animal-rights groups and dismissed their complaints.

Following litigation, the U. S. Fish and Wildlife Service has proposed the southern Sierra Pacific fisher for listing as endangered, but denied a similar petition for the northern California/southern Oregon population, where “threats were mitigated by fuel reduction projects aimed at reducing wildfire severity and partnerships with timber companies to limit logging in Oregon.”

The U. S. Fish and Wildlife Service has proposed designation of critical habitat in Arizona and New Mexico riparian areas for the narrow-headed garter snake and the northern Mexican garter snake.  While it excluded private lands with conservation agreements and other public lands with adequate protective measures in place, a study had concluded that generally, the Forest Service does a poor job of enforcing existing restrictions on grazing leases.

The last two cases suggest that improved conservation measures for national forest lands might have made a difference and avoided these designations.