Jon Haber

A number of high-level court decisions here.

• Colville NF Bulldog project: Complaint.FINAL.FILE.STAMPED

New lawsuit:  Kettle Range Conservation Group v. Smolden (E.D. Wash.)

On May 12, the plaintiff challenged the Bulldog logging, thinning and prescribed burning project on close to 44,000 acres over many years on the Colville National Forest.  The area is considered a stronghold for the threatened Canada lynx, and the complaint alleges failure to properly consult with the U. S. Fish and Wildlife Service on how the project may affect lynx.  It also claims violations of NEPA and failure to ensure compliance with the forest plan’s lynx habitat requirements.

• Railroad Valley NV toad

Notice of intent to sue

On May 15, the Center for Biological Diversity filed a formal NOI with the U. S. Fish and Wildlife over its failure to protect the Railroad Valley toad in Nevada under the Endangered Species Act.  The BLM has leased out land around the toad’s habitat to oil companies.  (The press release includes a link to the notice.)

• Mountain Valley Pipeline

Forest Service action in response to a prior court decision

On May 15, the Forest Service issued a record of decision allowing the Mountain Valley Pipeline project to proceed through a 3.5-mile stretch of the Jefferson National Forest.  The decision amends the forest plan 11 times to allow the pipeline to cross the Forest and provides terms and conditions to include in a decision by the BLM to grant permits under the Mineral Leasing Act.  The pipeline is mostly complete, including some tree clearing on the national forest.  The U.S. Fourth Circuit Court of Appeals threw out two past Forest Service approvals of the Jefferson National Forest crossing in July 2018 and January 2022 (discussed previously here).

Court decision in Sierra Club v. Federal Energy Regulatory Commission (D.C. Cir.)

On May 26, the circuit court held that FERC had inadequately explained its decision to not prepare a supplemental analysis on erosion and sedimentation along the pipeline’s right-of-way.   It ordered FERC to either to prepare a supplemental environmental impact statement or to better explain why one isn’t necessary.  However, the court allowed construction to continue “in areas adjacent to wetlands.”  (The article includes a link to the opinion.)

HOWEVER, this long-running controversy may become moot if the debt ceiling legislation is approved as currently proposed.  According to the Washington Post on May 29, “The new legislation could nullify that decision and other outstanding court orders, experts said. Legislative language prohibits court oversight of decisions on MVP permitting from FERC and other federal agencies. It says Congress ratifies all permits and gives the Army Corps of Engineers 21 days after the bill’s passage to issue those permits.”

• Idaho Panhandle NF Hanna Flats project

Court decision in Alliance for the Wild Rockies v. Petrick (9^th Cir.)

On May 16, the circuit court reversed the district court and dismissed some issues for failure to provide sufficient notice to the government of its concerns that it violated the Healthy Forests Restoration Act, but remanded that the Hanna Flats project on the Idaho Panhandle National Forest.  The court agreed with the district court’s ruling that the Forest Service’s reliance on Bonner County’s Community Wildfire Protection Plan was insufficient to apply a categorical exclusion, but it disagreed with the way the district court defined “wildland urban interface.”  This led it to lift the injunction against the project while the district court addresses the remand.  (The article includes a link to the opinion.)

• Jaguar critical habitat

Court decision in Center for Biological Diversity v. U.S. Fish & Wildlife Service (9^th Cir.)

On May 17, in a split decision, the circuit court set aside parts of the U.S. Fish and Wildlife Service’s 2014 designation of critical habitat for the jaguar in southeastern Arizona.  CBD had challenged the biological opinion on the Rosemont Mine on the Coronado National Forest, and Rosemont Mine had cross-claimed that the FWS had improperly designated two areas as critical habitat.  The court concluded that, based on its record, FWS improperly designated Unit 3 as “occupied” critical habitat (as of the time of listing in 1972) and that neither this nor another unit met the more demanding requirements to qualify as “unoccupied habitat.”   The court remanded the critical habitat designation, and so it could not address the effects of the mine on critical habitat.  (The article includes a link to the complaint.)  (A related case on the Rosemont Mine was discussed here.)

• Sierra Pacific spotted owls

Notice of intent to sue

On May 18, the Environmental Protection Information Center notified the Fish and Wildlife Service that it is challenging an incidental take permit issued by that agency to Sierra Pacific Industries to “take” northern spotted owls when logging their land under a habitat conservation plan.  EPIC argues that the extent of take allowed would violate ESA by jeopardizing the northern spotted owl’s long-term survival. (The news release includes a link to the notice.)

• Wetlands under the Clean Water Act

Supreme Court decision in Sackett v. Environmental Protection Agency

On May 25, the Court limited the scope of federal jurisdiction under the Clean Water Act.  It decided in favor of private landowners who wanted to build a house on land including wetlands that would need to be filled, and for which the EPA would require a permit because they were “near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.”  The Court held that the permit was unnecessary because the wetlands lacked a “continuous surface connection” to “waters,” defined as “geographic[al] features that are described in ordinary parlance as `streams, oceans, rivers, and lakes'” (not “wetlands”).  There were no dissenting opinions but multiple disagreements with the reasoning in the opinion.  There has been a lot written about this issue, and here and here are a couple of takes on this decision.

Federal land management is subject to the Clean Water Act, and this holding could, for example potentially reduce the scope of the potential violations in the fire retardant case, especially if, as the first article suggests, it does preclude inclusion of all ephemeral features and the vast majority of tributaries  …

• Fire retardant and the Clean Water Act

Court decision in Forest Service Employees for Environmental Ethics v. U. S. Forest Service (D. Mont.)

On May 26, the district court found that the Forest Service had conceded that it violated the Clean Water Act when it aerially dropped fire retardant, a pollutant, into waterways without a permit.  However, the court did not enjoin the activity while a permit is being sought.  We’ve discussed this case here (where there is a link to the opinion).

• Upper Green River grazing

Court decision in Western Watersheds Project v. Haaland (10^th Cir.)

On May 25, the circuit court reversed a district court decision and reversed a decision by the Bridger-Teton National Forest authorizing livestock grazing for 10 years on land in the Upper Green River Area Rangeland (“UGRA”) in Wyoming.  The Forest Service and Fish and Wildlife Service violated the Endangered Species Act because the FWS biological opinion (BiOp) failed to “consider (1) a limit on lethal take of female grizzly bears, and (2) the UGRA Project’s likely contribution to the already-existing mortality sink (where mortality exceeds or nearly exceeds survival) for female grizzly bears in the Project area.”  The incidental take statement permitted “the killing of up to 72 grizzly bears” (as the plaintiffs put it), and did not distinguish females nor consider the more serious effects of female mortality.   This article provides more background on this issue.  (The news release provides a link to the opinion.)

The court also found that the project violated the forest plan and NFMA because the record contradicted the Forest’s conclusion that the project would provide adequate forage and cover for migratory birds.  It upheld the application of the forest plan’s forage utilization requirement to sensitive amphibians.  The court remanded the decision to the agencies “to address the deficiencies in the BiOp and the ROD,” but did not vacate the decision because “deficiencies in the BiOp and the ROD are curable upon remand to the agencies, and vacatur would cause disruption.”

• Corner crossings

A year after the hunters were declared not guilty in Wyoming criminal court, a federal judge ruled that the four Missouri residents didn’t trespass when they corner-crossed through the airspace over private land in Wyoming during their 2020 and 2021 hunting trips. The judge noted that “corner crossing on foot in the checkerboard pattern of land ownership, without physically contacting private land and without causing damage to private property does not constitute an unlawful trespass.” The wealthy landowner had sought more than $7 million in alleged damages, but the judge said that even if they had trespassed, any damages to the plaintiff would be “nominal.”  We discussed this case here.

• Crime scene seen 

A California man was convicted of obstructing an investigation into why his plane crashed, apparently into the Los Padres National Forest.  Blame it on YouTube.

CLEVER HEADLINE AWARD: “C’est levee: Coconino NF has no plans to repair Lower Lake Mary levee.”

FEATURED RECOMMENDATIONS

Some federal court cases are heard by a “magistrate” judge, who then makes recommendations to the judge who will formally issue an opinion.  I haven’t often seen the judge change the recommended outcome of a case.  (Maybe someone can explain this a little better.)  There are two very interesting recommendations pending that I am aware of.  Both would deny motions to dismiss by the agency.

• Oregon BLM Siuslaw Landscape Plan

Magistrate’s recommendation in Cascadia Wildlands v. Adcock (D. Or.)

On April 21 the magistrate recommended to the district court that it not dismiss this NEPA challenge to Oregon BLM’s Siuslaw Harvest Land Base Landscape Plan and EA.  The BLM undertook the Landscape Plan pursuant to the Northwest Resource Management Plan (“RMP”), and it lays out a multi-decade strategy for timber harvest, but does not authorize particular projects.  Standing to sue is routinely established by environmental groups for public land litigation.  However, the BLM argued here that plaintiffs did not have standing because the Landscape Plan is a programmatic decision, and does not decide precisely where within the project area the BLM will ultimately log, and it therefore cannot cause an imminent injury to Plaintiffs.

The magistrate disagreed: “An agency need not have authorized an implementation action for a court to find that an area will surely be affected where “there is no real possibility” that agency will not pursue any site-specific projects under the planning framework.”  Even though specific units had not been selected, the decision represents a commitment because the EA states that the agency would not be authorized to elect a non-logging alternative for a specific project because it “would not be in conformance” with the RMP.  Plaintiffs were not required to tie their injuries to specific units within the project area to establish standing, so the plan’s lack of site-specificity did not prohibit them from establishing standing.  The claim should also be considered ripe for judicial review because “the imminence or occurrence of site-specific action is irrelevant to the ripeness of procedural injuries (such as NEPA violations), which are ripe and ready for review the moment they happen.”

(This “program” appears to be similar to “condition-based” management “projects” in the Forest Service, but it’s less clear there would be no additional NEPA for specific projects.)  (The article includes a link to the recommendation.)

• Fremont-Winema NF Eastside Screens amendment

Magistrate recommendation in Blue Mountains Biodiversity Project v. Wilkes (D. Or.)

In October, 2022, plaintiffs challenged the South Warner Project on the Fremont-Winema National Forest for employing the Eastside Screens amendment adopted in January, 2021 (which is under separate litigation).  Although the Ochoco National Forest Supervisor was initially listed as the Responsible Official for the amendment, the Decision Notice was signed by then-Under Secretary for National Resources and Environment James Hubbard.

On April 27, the magistrate judge concluded that, “When the Under Secretary is not involved with a proposed plan amendment before signing a Decision Notice, the Under Secretary cannot later retroactively claim that the Under Secretary proposed that plan amendment by simply signing the Decision Notice,” and doing so, “does not exempt a lower ranking official’s proposed plan amendment from the objection process.”  (Objection regulations create this exemption if the Under Secretary “proposes” an action.  The failure to allow objections is also part of the broader Eastside Screens lawsuit.)  (The article includes a link to the recommendation.)

THE MONTH OF THE (WILD) HORSE

• Cumberland Island National Seashore

New lawsuit:  Horses of Cumberland Island v. Haaland (N.D. Ga.)

On April 12, animal rights groups and a Cumberland homeowner sued the National Park Service seeking removal of Cumberland Island National Seashore’s feral horses.  The NPS management has allegedly caused harm to both the horses and the natural resources of the Seashore, violating the National Park Service Organic Act, Wilderness Act and Endangered Species Act (related to loggerhead sea turtle critical habitat.)

• Tonto NF

New lawsuit:  Center for Biological Diversity v. U. S. Forest Service (D. Ariz.)

On April 27, the three wildlife-oriented organizations and three sportsman’s groups sued the Forest Service over its management of wild horses along the Salt River on the Tonto National Forest.  The parties allege that the Forest violated NEPA by failing to consider the environmental impact of a 2017 agreement (and a February update) with the Salt River Wild Horse Management Group that allegedly allows continued overgrazing to harm wildlife species. The carrying capacity has been found to be as low as 20 horses, and the current population is estimated to be as high as 600.  (The article includes a link to the compliant.)

• Wyoming BLM

New lawsuit:  American Wild Horse Campaign v. Stone-Manning (D. Wyo.)

On May 10, a coalition of wild horse advocates, environmentalists and academics filed suit against the U.S. Department of the Interior over a land use plan amendment that would eliminate 2.1 million acres of wild horse habitat in the Red Desert area of and slash by one-third the allowed population of wild horses in the state Wyoming.  The plan allegedly violates the Wild Free-Roaming Horses and Burros Act, the Administrative Procedure Act, and the National Environmental Policy Act, arguably to promote livestock grazing.   (The article includes a link to the complaint.)

OTHER LITIGATION

• Deference to federal agencies

Supreme Court accepts Loper Bright Enterprises v. Raimondo

The Supreme Court has announced that it will hear a case about commercial fishing rules, which could have far-reaching effects on federal agency discretion to implement laws.  The Court will consider repealing the “Chevron Doctrine,” which states that courts should defer to the government’s experts’ interpretation of ambiguous statutes.  Much of the concern is about the future ability of government agencies to regulate the private sector, and the effect on land management agencies may be less obvious.  However, the Chevron Doctrine has been used in relation to the Forest Service’s interpretation of its Organic Act, the Wilderness Act, ANILCA, and the Clean Water Act.  At least one court has granted Chevron deference to the Forest Service interpretation of NFMA (public comment requirements), and NEPA (interpretation of “extraordinary circumstances”).  The Fish and Wildlife Service’s interpretations of the Endangered Species Act could also be affected.

• Pesticides in critical habitat

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Ariz.)

On May 4, the plaintiff sued the Fish and Wildlife Service for failure to respond to its 2019 petition to prohibit all use of pesticides in critical habitat for listed species unless it has previously consulted with the Environmental Protection Agency to assess the pesticides’ impact on listed species (or if the pesticides are used to control invasive species or promote human health and safety).  The lawsuit complaint asks the court to order FWS to respond to the petition within 90 days.  (The article includes a link to the complaint.)

Court decision in Neighbors of the Mogollon Rim v. U. S. Forest Service (9th Cir.)

On May 5, the circuit court reversed a district court decision and partially vacated the EA (with respect to the pasture at issue) used by the Tonto National Forest to authorize grazing on several allotments, parts of which had been vacant for many years.  The court held, “The Forest Service failed to give full and meaningful consideration to plaintiff’s proposed alternative, which maintains the status quo as to the closure of the Colcord/Turkey Pasture to grazing.”  The court rejected the Forest Service defense that it was unnecessary because it was “within the range of” the two alternatives considered (action and no-action).  It also rejected the agency’s attempt to assign responsibility to neighboring landowners for the effects of trespassing cattle on their lands in the NEPA analysis.  (The article has a link to the unpublished memorandum opinion.)

• Ute Tribe v. Utah

New lawsuit

On May 5, the Ute Indian Tribe of the Uintah and Ouray Reservation filed a federal lawsuit accusing state agencies of racially discriminatory conspiracy to prevent the tribe from purchasing ancestral land just outside its reservation. In 2018, the Utah School and Institutional Trust Land Administration put it up for sale, but plaintiffs allege (based on a whistleblower account) that their winning bid was undermined by the losing bidder, the Utah Department of Natural Resources who wanted to manage it as a wildlife preserve with public access.

• FEMA Cook Creek Road

Notice of intent to sue

On May 8, The Center for Biological Diversity and Cascadia Wildlands notified the Federal Emergency Management Agency (FEMA), of their intent to sue with regard to FEMA’s decision to fund the repair and reopening of Cook Creek Road in the Oregon Coast Range.  They are concerned about Oregon Department of Forestry timber sales that would be enabled by the project, and their effects on Oregon Coast coho and marbled murrelets, both of which are protected as threatened species under the Endangered Species Act.  (The article includes an indirect link to the notice.)

• Idaho grizzly bears

Notice of intent to sue

On May 10, The State of Idaho sent a notice of intent to sue to the U.S. Fish and Wildlife Service over the Biden Administration’s failure to remove grizzly bears from the endangered species list.  The State had previously submitted a petition to delist the grizzly bears because the 1975 listing decision applies the ESA’s protections to an entity that is not a “species” as defined by the Act because it applied only to the “lower 48” population.  (This article includes a link to the Notice.)

• Montana grizzly bear trapping

Notice of intent to sue

The Flathead-Lolo-Bitterroot Citizen task force has sent a 60-day notice of intent to sue the United States Fish and Wildlife Service as well as the Montana Department of Fish, Wildlife and Parks because it says that as the state expanded trapping, snaring and hunting regulations, it failed to take safety precautions that would protect grizzly bears.

LEGISLATION

• Forest plan ESA consultation reinitiation

The 2018 appropriations bill exemption of forest plans from Endangered Species Act consultation when a new species is listed or critical habitat designated, which resulted from the “Cottonwood” litigation over Canada lynx, expired in April.  On March 23, The House of Representatives held a hearing on a bill that would specify there is not a need to reinitiate such consultations.  A similar bill was introduced in the Senate last session but not considered by the full Senate.  The attorney behind the Cottonwood decision discusses this legislation here.

• Congressional Review Act applied to the Endangered Species Act

On May 11, the U.S. Senate passed two Congressional Review Act (CRA) resolutions that would do Biden-administration rules implementing the Endangered Species Act.  One was the listing of the northern long-eared bat, and the other allows consideration of future conditions when designating critical habitat.  According to Defenders of Wildlife, along with a recent similar resolution involving the listing of the lesser prairie chicken the CRA “has never previously been used on the Endangered Species Act.” President Biden has vowed to veto both resolutions should they pass the House.

OTHER THINGS

• Bi-state sage-grouse proposed listing

FWS response to Desert Survivors v. U. S. Department of the Interior (N.D. Cal.)

On April 27, the Fish and Wildlife Service announced that it is reinstating its 2013 proposed rules to list the Bi-State distinct population segment of greater sage-grouse as threatened under the Endangered Species Act and to designate critical habitat, and that it is reopening the comment period.  The court had vacated the agency’s withdrawal of this proposed rule in March, 2020.  Species proposed for listing must be addressed in land management agency decision-making where they are present

• Wyoming wind energy development

The Wyoming Supreme Court has upheld Albany County’s 2021 approval of the proposed Rail Tie Wind Project on private land by rejecting a local landowner’s bid to block the project.  The challenge was to the county permitting process rather than the federal EIS, and garnered objections from close to 50 local landowners.  Alternative energy will clearly not be immune to NIMBY challenges.  (The article includes links to other news about Wyoming’s transition to renewable energy.)

• Deschutes NF water supply system project

Court decision in Central Oregon Landwatch v. Connaughton (9^th Cir.)

On October 23, the circuit court upheld a special use permit granted by the Deschutes National Forest to the City of Bend to upgrade its Bridge Creek intake facility, construct a new pipeline, and operate the system for 20 years.  The court found that the permit was consistent with the forest plan’s Inland Native Fish Strategy guidelines to “avoid effects that would retard or prevent attainment of the [interim water temperature Riparian Management Objectives (RMOs) established by INFISH] and avoid adverse effect on inland native fish.”  The court also found that the EA’s failure to evaluate a “no diversion” alternative was not arbitrary or capricious, and that the analysis of climate change did not have to be quantitative because it affected streamflow in both alternatives equally.  (The link to the opinion at the end of the article works.)

• Point Reyes National Seashore tule elk

Court decision in Gescheidt v. National Park Service

On February 27, the district court held that the Park Service has no statutory duty to revise its 1980 General Management Plan for the Tomales Point portion of the Point Reyes Seashore to address the fact that elk are dying from starvation and dehydration as a result of a fence that limits their movement into areas that would compete with livestock.

• Nevada BLM molybdenum mine

Court decision in Great Basin Resource Watch v. U. S. Department of the Interior (D. Nev.)

On March 31, the district court vacated the BLM’s approval of Eureka Moly’s planned molybdenum mine about 250 miles east of Reno.  The judge cited the 9th Circuit’s ruling in an Arizona case (Rosemont Mine) last year that upended the government’s long-held position that the 1872 Mining Law conveys the same rights established through a valid mining claim to adjacent land for the disposal of tailings and other waste without having to show that valuable minerals are present there.  This article provides more background and discusses proposed legislation to reverse these rulings.

• Oregon BLM late successional reserves

New lawsuit:  Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Or.)

On April 10, four environmental groups sued the BLM over its approval of the Programmatic Integrated Vegetation Management for Resilient Lands Program and the Late Mungers Project Determination of NEPA Adequacy.  The program was not specific about where logging would occur, but would include late successional reserves established in the Northwest Forest Plan which would allegedly be inconsistent with that plan.  The complaint also alleges a violation of NEPA for failure to prepare an EIS for the Program.  (The press release includes a link to the complaint.)

• Clean Water Act “waters of the U. S.” (WOTUS)

Court decisions in West Virginia v. EPA (E.D. N.D.), and Kentucky v. EPA (E.D. Ky., 6^th Cir.)

On April 12, following the decision in February in Texas v. EPA, (which affected Texas and Idaho, noted here), the North Dakota district court issued an injunction against the Biden Administration’s Clean Water Act regulations covering 24 more states.  In addition, a March 23 opinion barring a similar challenge in the Kentucky district court was reversed by the 6^th Circuit Court of Appeals on April 21, which granted a stay of implementation.  (There lots of links in the article.)

In case you haven’t been keeping up, there’s a summary provided here:

• The 2015 Obama WOTUS attempted to expand the types of waterways under federal protection. Various states successfully sued to stop its implementation.
• The Trump Navigable Waters Protection Rule reduced the number of waterways under federal protection. It was implemented in 2020 and was repealed by a federal judge in 2021.
• The Biden 2023 WOTUS rule (now being litigated) returned the U.S. to a definition put in place during the Reagan administration and observed until 2015.

These cases are backing up behind a pending Supreme Court decision in Sackett v. EPA, which will determine whether the 9th Circuit applied the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act.

• Southwest snakes critical habitat

Notice of intent to sue

On April 12, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue for reducing critical habitat for two endangered snakes (the narrow-headed and northern Mexican garter snakes) by more than 90% from what it originally proposed to protect these species found in riparian areas.  The Forest Service provided substantial comments on the original proposal, including that proposed critical habitat would affect numerous livestock grazing allotments on the Tonto National Forest.  Critical habitat would be designated there and on the Gila, Apache-Sitgreaves, Prescott and Coconino national forests and BLM lands.  The news release contains a link to the notice, and additional background is provided here.

• Haaland FOIA

New lawsuits

On April 17, Protect the Public’s Trust, which describes itself as an unincorporated association dedicated to restoring public trust in government, filed lawsuits against the Department of the Interior and the BLM for failing to meet Freedom of Information Act requirements to provide documents involving communications between agency officials and Somah Haaland, who is the daughter of Deb Haaland, the Secretary of the Interior.  Somah Haaland has lobbied lawmakers as a media adviser for the Pueblo Action Alliance in support of a drilling moratorium around Chaco Culture National Historical Park in northwest New Mexico, and the request focuses on a movie about the protection efforts.  The FOIA request was made on January 2.

(Family ties seem to be important to some these days; Hunter Biden comes to mind.  Here’s an example of how more transparency might play out in such situations.)

• Kootenai NF Knotty Pine project

Preliminary injunction granted in Center for Biological Diversity v. U. S. Forest Service (D. Mont)

On April 24, the district court enjoined the Knotty Pine Project on the Kootenai National Forest.  The project would add 3.76 miles of road to the road system, 1.2 miles of temporary road construction, 35 miles of road maintenance, and 4.04 miles of road storage, and would include commercial harvests on 2,593 acres, non-harvest fuel treatments on 4,757 acres, precommercial thinning on 2,099 acres, and 7,465 acres of prescribed burning. The court said the agencies failed to adequately account for the harm to grizzly bears in the Cabinet-Yaak Ecosystem Recovery Zone from illegal roads when they authorized the project.  The judge pointed out that the forest plan said any road found to have illegal use would be considered an open road for that year, so such roads should be considered in the calculation of open roads relative to compliance with forest plan road density requirements.  The article includes a link to the opinion.  Plaintiffs provide additional background here.

• Cascade-Siskiyou National Monument expansion

Court decision in Murphy Company v. Biden (9^th Cir.)

On April 24, the circuit court upheld the expansion of the Cascade-Siskiyou National Monument made by President Obama in January 2017 against a challenge by timber interests.  The court found that the expansion did not violate the Oregon and California Lands (O&C) Act.  Cascade-Siskiyou is the only national monument in the nation specifically established to protect biodiversity.  “In rejecting Murphy’s lawsuit, the Ninth Circuit today definitively concluded that conserving O&C Lands for their ecological values is consistent with the law,” said Susan Jane Brown, senior attorney with the Western Environmental Law Center.  (The news release contains a link to the opinion.)

• Oil and gas industry court venue

On April 24, the Supreme Court turned away five appeals by oil companies of lower court decisions that determined that the lawsuits seeking damages for climate change belonged in state court, a venue often seen as more favorable to plaintiffs than federal court.  The lawsuits were filed by the state of Rhode Island and municipalities or counties in Maryland, Colorado, California and Hawaii.

• Monongahela NF coal hauling

Notice of intent to sue

On April 25, the Center for Biological Diversity, Sierra Club, West Virginia Highlands Conservancy, Appalachian Voices, Appalachian Mountain Advocates, Greenbrier River Watershed Association, and Kanawha Forest Coalition notified the Forest Service of their intent to sue related to the Forest Service’s approval of a road use permit authorizing SF Coal Co. to haul coal through the Monongahela National Forest, and related road reconstruction work.  They claim that the Forest Service failed to consult with the Fish and Wildlife Service regarding the effects on listed species and critical habitat in the Cherry River watershed, as well as NEPA violations.  (The press release includes a link to the notice.)

• Oil and gas drilling on federal lands

New lawsuit:  Center for Biological Diversity v. Haaland (D. D.C.)

On April 25, three conservation groups sued the Department of the Interior for failing to respond to a rulemaking petition to phase out oil and gas extraction on federal public lands, and a subsequent notice of intent to sue.  The petition was submitted in January, 2022.  The Administrative Procedure Act requires federal agencies to initiate rulemaking or provide a substantive response to rulemaking petitions within a reasonable timeframe. This lawsuit alleges that the administration’s failure to respond to the petition constitutes an unreasonable delay given the urgency of the climate crisis.  (The press release includes a link to the complaint.)

• Nevada BLM restoration

New lawsuit:  Western Watershed Project v. U.S.D.I (D. Nev.)

On March 23, Western Watershed Project and the Center for Biological Diversity sued the BLM to stop a vegetation removal plan for over 380,000 acres near Great Basin National Park in the eastern part of Nevada near the Utah border.  The South Spring Valley and Hamlin Valley Watershed Restoration Plan would remove “invasive” pinyon pine and juniper trees.  The lawsuit says the EA failed to adequately analyze harm from the project, partly because it did specify where the activities will occur nor provide site- or species-specific information about the affected environment, and the project failed to comply with land use plans.  (The article has a link to the complaint.)

• Mount Baker-Snoqualmie NF Stillaguamish project

Court decision in North Cascades Conservation Council v. U. S. Forest Service (9^th Cir.)

On March 27, the  circuit court issued a memorandum opinion affirming a district court decision upholding the South Fork Stillaguamish Vegetation Project on the Mt. Baker-Snoqualmie National Forest.  It will harvest trees younger than 80 years, but in areas designated as late successional and riparian reserves.  The court held that the Project will not violate the 1994 Northwest Forest Plan’s prohibition against a “net increase in the amount of roads” in the Project area. It also held that the forest plan required habitat to be evaluated for the forest as a whole rather than within a project area, and it upheld the Biological Evaluation for the Project.  The project also did not violate a plan amendment requiring pre-disturbance surveys because the Puget Oregonian snail is not documented to occur in the Project Area.  The Project complied with NEPA requirements for effects on wildlife and for a range of alternatives.  (However, the court also strangely faulted the plaintiffs for offering “no explanation of how their alternatives would be funded.”)  This article provides more details.

• North Dakota oil and gas leasing

Court decision in North Dakota v. U. S. D. I. (D. N.D.)

On March 27, the district court ordered the BLM to resume quarterly sales of oil and gas leases on public lands in North Dakota after holding that the agency “very likely violated their mandatory statutory duties to plan and timely complete mandatory analyses of individual parcels in North Dakota.”  It had made no ‘determinations of availability’ in North Dakota during Q4 2022, following President Biden’s executive order in 2021 “pausing” the quarterly lease sales required by the Mineral Leasing Act.”  (The article has a link to the opinion.)

• BLM protest process

Court decision in Cascadia Wildlands v. Bureau of Land Management (D. Or.)

On March 27, the district court granted summary judgement in favor of the BLM and upheld a 2020 rule eliminating the agency’s protest process.  Intervenor American Forest Resources Council stated, “Even without the BLM’s process, the agency’s level of public engagement during project planning is consistent with the procedures of other agencies, like the U.S. Forest Service, and continues to provide for an administrative appeals process to the Interior Board of Land Appeals.”  (The article includes a link to the opinion.)

• Pesticide ESA NOI

On March 27, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue the agency for failure to respond within a reasonable time to the “Petition for Rulemaking to Protect Endangered Species from Pesticides by Restricting Pesticide Use in Critical Habitat” (Petition), dated January 7, 2019.  It mentioned the California spotted owl as one of the species affected by pesticides, and cited 40 “highly imperiled, narrowly endemic species that would receive the greatest benefit from a prohibition on the use of pesticides within critical habitat.”

• Bitterroot NF access easement

Supreme Court decision Wilkins v. United States

On March 28, the U.S. Supreme Court issued a 6-3 decision allowing a Quiet Title Act lawsuit to proceed by two landowners attempting to close off public access to Bitterroot National Forest lands.  The court found that the statute of limitations on a 1962 easement with the Forest Service did not deny the landowners standing to pursue their claim that the Forest Service allegedly altered the terms of the easement to allow public use of the Robbins Gulch road.

• Hoosier NF Houston South project

Preliminary injunction in Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Ind.)

On March 29, the district court issued a preliminary injunction against the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, in particular against an imminent prescribed burn.  The project is expected to last between 12 and 20 years, during which time approximately 13,500 acres of forest will be burned, 4,000 acres will be logged and herbicide will be applied to 2,000 acres.  Plaintiffs are concerned about effects on Lake Monroe, a drinking water source, and claim that the Supplemental Information Report does not comply with the court’s earlier reversal of this project. The court agreed that plaintiffs are likely to succeed on the merits, but also ordered the plaintiffs to pay an $11,596 bond, 10% of the amount Forest Service said it was losing due to the delay.  (The article includes a link to the opinion.)

• Wayne NF Sunny Oaks project

Court decision in Ohio Environmental Council v. U. S. Forest Service (S.D. Ohio)

On March 30, the district court ruled that the Forest Service violated NEPA with its decision to log 2,700 acres, including 1,600 acres of clearcutting, in the Wayne National Forest’s Sunny Oaks Project.  The judge wrote, “The Forest Service has not provided any quantifiable criteria for assessing oak regeneration, either before or after a harvest.  Instead, the Project relies on vague quantitative triggers, like “enough” oak regeneration or a “need” for more.”  The court ordered additional briefing on remedies.  (The article includes a link to the complaint.)

The court dismissed a claim related to the mycorrhizal network associated with oak trees because plaintiffs did not properly raise it in their administrative objection.  The court also found no violation of a forest plan standard “to retain a minimum of 12 live trees per acre (averaged over the cutting unit) of any species that are six inches or more dbh with large areas of loose bark…”  The Forest Service had found that there were currently only six live trees per acre meeting these requirements, that oak trees did not provide the desired bark condition, and the current majority of live trees with more than six inches dbh and large areas of live bark are shagbark and shellbark hickory trees, which are already required to be retained under another forest guideline.  The court accepted the survey data over arguments offered by plaintiffs that oak trees should be protected because they provide the desired bark conditions, and accepted that protecting these other trees would meet the intent of the standard where the specified conditions could not be met.

(I’ve mentioned a concern about this issue in the case before.  I would have to interpret this opinion to mean that in this case the forest plan standard prohibits them from logging any oak trees that have the requisite bark conditions (but there aren’t any).  This would be similar to site-specificity issues involving large trees – the project analysis for NEPA and forest plan consistency needs to look at individual trees that would be logged to determine plan compliance and effects.)

• Mountain Valley Pipeline

Court decision in Sierra Club v. West Virginia Department of Environmental Protection (4^th Cir.)

On April 3, the circuit court found several defects in the review the West Virginia Department of Environmental Protection conducted before issuing a Clean Water Act permit for the Mountain Valley Pipeline that would cross the Jefferson National Forest.  The court found that 139 prior state stormwater permit violations and dozens of state water quality standards violations warranted closer scrutiny, and, “In the face of such a history, it is arbitrary and capricious for an agency to predict compliance without a rational explanation.”  (The article has a link to the opinion.)  (The history of this litigation is long, including here, and here.  But wait, there’s more …)

New lawsuit Appalachian Voices v. U. S. DI. (4^th Cir.)

On April 10, lots of environmental organizations filed another petition in the circuit court (pursuant to the Natural Gas Act) challenging a recently issued new biological opinion and incidental take statement under the Endangered Species Act for the Mountain Valley Pipeline.  The BO addressed six threatened or endangered species and critical habitat for one of them.  (Previous consultation was reversed twice.)  (The article has a link to the petition.)

• Firewood theft

On April 3, the Idaho federal district court sentenced an Idaho man to one month in federal prison, payment of $8,000 in restitution and banned him from entering all National Forest System lands for a period of three years.  He had been removing more trees than his permit allowed to sell as firewood, and creating unauthorized roads and campsites in the Payette, Nez Perce and Boise National Forests.

• Alaska BLM Donlin Gold project

New lawsuit:  Orutsararmiut Native Council v. U. S. Corp of Engineers (D. Alaska)

On April 5, three Yukon-Kuskokwim Delta tribes challenged the EIS used to support the U.S. Army Corps of Engineers’ 2018 wetlands (404) permit for the proposed Donlin open-pit gold mine on BLM lands.  Specifically, tribes are asking that the federal agencies be required to study impacts to downstream waters and villages from a potentially catastrophic tailings dam failure.  If developed, Donlin, located in the headwaters of the Kuskokwim River system, would be the largest open pit gold mine in North America.  (The article includes a link to the complaint.)

• Pueblo of San Felipe boundary

The Pueblo of San Felipe is suing the BLM for allegedly violating a federal land patent from 1864 by changing the boundary with the Pueblo to remove 695 acres of their patented land in New Mexico.

• Abortion pill

Court decision in Alliance for Hippocratic Medicine v. U. S. Food and Drug Administration (N.D. Texas)

On April 7, the district court for Northern District of Texas reversed the Food and Drug Administration’s approval of the abortion pill mifepristone, concluding the agency ignored safety concerns due to political pressure.  This is a high profile case involving the Administrative Procedure Act, which will likely get Supreme Court review of the amount of deference courts should give to administrative agencies.  The relevant holding from this court:

But the agency “must cogently explain why it has exercised its discretion in a given manner,” and that explanation must be “sufficient to enable [the Court] to conclude that the [agency’s action] was the product of reasoned decisionmaking.” A.L. Pharma, 62 F.3d at 1491 (quoting State Farm, 463 U.S. at 52). Defendants have not done so here. FDA’s 2016 Actions were not the product of reasoned decision-making.

The American College of Obstetricians and Gynecologists lambasted the decision as “inflammatory” and “brazenly” substituting “the court’s judgment for that of trained professionals.” Other agencies may find that the outcome of this case affects their discretion as well.

Court-world has gotten a little busy lately, with some interesting cases.

• Helena-Lewis and Clark NF Travel Plan

Court decision in Capital Trail Vehicle Association v. U. S. Forest Service (D. Mont.)

On March 10, the district court determined that the Helena-Lewis and Clark National Forest had complied with NEPA, NFMA and the Travel Management Rule in adopting the Forest’s Travel Plan.  Plaintiffs were local nonprofit organizations that promote recreational motorized off-highway vehicles, and they objected to the Travel Plan’s restrictions on OHV use.

(The case addresses an interesting point that I’ve seen raised in relation to closing routes to motorized or mechanized uses – that there would be impacts on other users of concentrating that use in fewer areas.  Citing a 1996 9^th Circuit case, Bicycle Trails Council of Marin v. Babbitt, which held that “NEPA does not require that an agency take into account every conceivable impact of its actions, including impacts on citizens’ subjective experiences,” this court concluded that possible overcrowding “does not qualify as an ‘environmental effect’ for the purposes of the NEPA cumulative effects analysis.”  It also added, “Adverse impacts caused by more concentrated OHV use may occur regardless because of the increasing demands on National Forests …”)

• Bitterroot grizzly bears

Court decision in Alliance for the Wild Rockies v. Cooley (D. Mont.)

On March 15, the district court ruled that the U.S. Fish and Wildlife Service unreasonably delayed implementing its plan from 23 years ago to introduce grizzly bears into the unoccupied Bitterroot recovery zone, and failed to prepare a supplemental environmental impact statement based on new information about recent occurrences of grizzly bears in this ecosystem.  The court required the FWS to do the latter.  (The article has a link to the opinion.)

• Public lands oil and gas phase-out

Notice of Intent to sue

On March 16, the Center for Biological Diversity, WildEarth Guardians, and Friends of the Earth notified the Department of the Interior and the BLM of their intent to sue under the Administrative Procedure Act for failure to respond within a reasonable time to their “Petition to Reduce the Rate of Oil and Gas Production On Public Lands and Waters to Near Zero by 2035” submitted in January, 2022.  The petition “provides a policy framework for managing the decline of federal oil and gas production to near zero by 2035.”  Said Taylor McKinnon with the Center for Biological Diversity, “The climate deadline to end oil and gas extraction in the U.S. is 2034, and the natural place to start is on land the federal government controls.”

• ESA:  southern mussels

Proposed listing

On March 17, in response to a Center for Biological Diversity lawsuit, the U.S. Fish and Wildlife Service proposed protection for the Texas heelsplitter (endangered) and Louisiana pigtoe (threatened) found in five southern states, and designated 1,860 river miles as critical habitat.  The proposed rule states, “With regard to silvicultural operations that occur on forested areas across the range of the species, we recognize that private timber companies routinely implement State-approved best management practices.  However, it is important to recognize that while BMPs reduce timber harvest impacts, they do not eliminate impacts; therefore, sensitive species and their habitats may still be impacted even when BMP guidelines are followed.”  (The news release includes a link to the proposed rule.)

• Clean Water Act (WOTUS) regulations

Court decision in Texas v. EPA (S.D. Tex.)

On March 19, the district court issued a preliminary injunction to temporarily halt the enactment of the Biden administration’s new waters of the United States (WOTUS) rule within the borders of Texas and Idaho.  On March 20, the rule became effective throughout the rest of the United States.  Background on this issue about the scope of the Clean Water Act and other related litigation is included here.  (The article includes a link to the opinion.)

• Kootenai NF Knotty Pine Project

Motion for a preliminary injunction in Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On March 20, the Center and four other conservation groups asked the district court to enjoin the construction of logging roads for the Knotty Pine Project on the Kootenai National Forest.  The project would allow more than 5,000 acres of commercial logging over 10 years, and the groups oppose the project because all but 1,200 acres of the project lies within core habitat of the Cabinet-Yaak Grizzly Bear Recovery Area.  The lawsuit was filed last June.  Here is some additional background.

• Idaho/Wyoming bear baiting

Court decision in WildEarth Guardians v. U. S. Forest Service (D. Idaho)

On March 21, the district court held that the Forest Service had not violated ESA with respect to the use of bait for hunting black bears in Idaho and Wyoming.  The plaintiffs were concerned about effects on grizzly bears of baiting for black bears.  The Forest Service generally allowed this practice on the national forests based on a 1995 national policy that had replaced the practice of issuing individual special use permits for bear-baiting, and allowed states to regulate.  The history of the bear-baiting policy is complicated and included prior consultation on grizzly bears that was withdrawn, but the court specifically found that the 1995 policy was not an agency action and did not establish future criteria for action (that did not already exist), and therefore consultation under ESA was not necessary,

(But what if the agency action that allows states to regulate bear-baiting is the forest plan, which is where forest-level management policy is considered and decided, and where some forest plans have included direction to regulate hunting?  Forest plans are subject to ESA consultation and reinitiation requirements.)

• ESA:  gopher tortoise

Notice of intent to sue

On March 22, the Center for Biological Diversity and Nokuse Education, Inc. filed a formal notice of their intent to sue the U.S. Fish and Wildlife Service for denying Endangered Species Act protections to the eastern population of gopher tortoises in 2022.  These gopher tortoises have allegedly lost 97% of the longleaf pine savannas they historically inhabited in Florida, Georgia, South Carolina and most of Alabama.  (Gopher tortoises in limited parts of Louisiana, Mississippi and western Alabama are already protected by the ESA.)

• Oregon forest practices

Settlement in Center for Biological Diversity v. Daugherty (D. Or.)

On March 23, the Center for Biological Diversity announced settlement of this lawsuit against the Oregon Department of Forestry for the incidental take of coho Salmon in the Tillamook and Clatsop State Forests.  The settlement will increase no-cut buffers around streams to 120 feet and increase the number of non-fish bearing and seasonal streams that receive protections.  It will also require an inventory of forest roads in the next five years.  Both of these conditions are expected to be included in a state-wide habitat conservation plan (which is also discussed here).  (The news release includes a link to the agreement.)

• Thacker Pass lithium mine

Court decision

On March 23, the district court ruled against the Reno-Sparks Indian Colony, Summit Lake Paiute Tribe, and the Burns Paiute Tribe, who argued that the Bureau of Land Management violated several laws when it permitted the Thacker Pass lithium mine to Lithium Americas.  In particular they object to the tribal consultation, as discussed here.  Construction has begun.

• Fire damage claims

Court decision in Strawberry Water Users Ass’n v. U. S. A. (D. Utah)

On March 24, the district court dismissed plaintiff’s claims of negligence and trespass by the Wasatch-Cache and Uinta National Forests under the Federal Tort Claims Act alleging it failed to adequately suppress two wildfires in 2018, the Bald Mountain Fire and the Pole Creek Fire, which damaged their property.  To avoid the discretionary function exception from such claims against the federal government, plaintiffs would have to show that the action taken was not within the employee’s discretion pursuant to agency policy.  The court cited forest plan guidelines for wildfire use, a “Default Initial Fire Response Map,” and national fire policy and guidance in holding that the agency actions met the requirements for a discretionary function exception.  The court admonished plaintiff’s attorney for trying to distinguish this case from binding precedents by, “blatantly twisting the government’s written policy statements to make the case that the Forest Service intended to burn non-National Forest lands.  Here is some background information.

Plaintiff attempted to attack the cited map, which allowed wildfire use in these areas, for not complying with the NEPA process when it was adopted, but NEPA violations are outside of the scope of the Federal Tort Claims Act (and therefore damages could not be recovered for this procedural claim, even if valid).  (This court refused to address the merits of the NEPA claim, but I believe that the development of a map that established different management of fires in one area from another should have followed the NFMA forest planning (amendment) process, including NEPA.  There is no mention of the public participation in the decision to potentially allow wildfire use, but it seems like there would have been a lot of interest.)

Court decision in Schurg v. United States (9th Cir.)

On March 28, the appeals court held that determining how to consult with private landowners during the Lolo Peak Fire about fire suppression activities on their properties near the Lolo National Forest “was precisely the type of decision the discretionary function exception was designed to shield,” and denied their damage claims under the Federal Tort Claims Act.