• Kenai National Wildlife Refuge bear baiting

Supreme Court declines review of Safari Club International v. Haaland (9^th Cir. 2022)

In 2022, the Ninth Circuit upheld a 2016 Fish and Wildlife Service regulation that, among other things, prohibits brown bear baiting on the Kenai National Wildlife Refuge in Alaska.  The circuit court had held that Congress has authority under the Property Clause of the Constitution to preempt state law and protect the wildlife on federal lands.  The Supreme Court chose not to hear an appeal by the plaintiffs.

• Guiding without a permit

Criminal conviction

A federal magistrate judge in Alaska sentenced a Fairbanks man to pay a fine for unlawfully conducting a tour on BLM land without a permit. Federal law requires tour operators to have a Special Use Permit to sell or operate tours on federal land in order to protect visitors and the land.

• Pike-San Isabel NF Travel Plan

New lawsuit:  Colorado Off Road Enterprise v. USDA Forest Service (D. Colo.)

This case was filed on Februrary 13, and we have discussed it  here.

• Multi-species ESA listing litigation

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

On March 7, plaintiffs filed a complaint alleging noncompliance with various deadlines in the process for listing 12 plants and animals under the Endangered Species Act.  They include two species of alligator snapping turtles, and a fish species threatened by lithium mining and geothermal development in Nevada.  (The article includes a link to the complaint.)

The next day, one of the eastern freshwater mussel species involved in the lawsuit, the round hickorynut, was listed as “threatened” under the Endangered Species Act (along with another mussel species, the longsolid).  Similar to the California spotted owl listing, an exemption from incidental take prohibitions was established, in this case for forest management that implements state-approved best management practices.  (The “good” news is that these species are found “largely where federally protected mussels already occur, so any increased regulatory burden is expected to be minimal.”)

Partial court decision in Center for Biological Diversity v. Haaland (D. D.C.)

Also the next day, on March 8, in an ongoing similar case involving delayed protection of 231 species, the district court reduced the number of species because the listing determination had been completed for one species, listing petitions had been withdrawn for four species, and inadequate notice of intent to sue was given for one species.  The court rejected a motion to dismiss the complaint with regard to 219 species because the violation of ESA’s continuing obligation to make 12-month finding prevents invoking the 6-year statute of limitations.  (The article has a link to the opinion.)

• Inyo NF gold exploration

Court decision in Friends of the Inyo v. U. S. Forest Service (E.D. Cal.)

On March 9, the district court allowed an exploratory gold drilling operation on the Inyo National Forest to proceed.  The proposal would largely involve drilling deeper than prior exploration in the same area, but it is in an area which is habitat for the bi-state sage-grouse (currently proposed for listing under the ESA).  The court approved the use of two separate categorical exclusions related to short-term mining impacts and wildlife habitat improvement.

• Joshua tree

On March 9, the U. S. Fish and Wildlife Service completed its review to comply with a September 20, 2021 court-ordered remand of the Service’s previous “not warranted” finding for the Joshua tree. It found again that the species is not warranted for listing.

• White River NF private development road

New lawsuit:  Wilderness Workshop v. Harrell (D. D.C.)

On March 13, Wilderness Workshop and Rocky Mountain Wild filed a lawsuit to overturn the White River National Forest’s Record of Decision for the Berlaimont Estates Road Improvement Project. Issued on Friday, March 10, this decision would facilitate a developer’s plan to build 19 new mansions on 680 acres surrounded by deer and elk winter range in the White River National Forest.  (The article includes a link to the complaint.)

• Alaska BLM Willow oil drilling

New lawsuits:

Sovereign Inupiat for a Living Alaska v. Bureau of Land Management (D. Alaska)

Center for Biological Diversity v. Bureau of Land Management (D. Alaska)

On March 13, the Biden Administration approved the Willow oil drilling project on the Naval Petroleum Reserve in Alaska.  This followed a court reversal of a previous Trump Administration approval, and two new lawsuits were immediately filed by environmental and indigenous groups.  There are ESA claims involving federally threatened polar bears and other species, and alleged violations of NEPA, including effects of greenhouse gases, and limiting the range of alternatives considered because of a “mistaken conclusion” that the agency lacked the authority to deny or significantly curtail the ConocoPhillips project, including failure to consider eliminating “special areas.”  ANILCA and the Naval Petroleum Reserves Production Act are also implicated.  (The article includes links to both complaints.)

In another case, applicable in part to the Willow project, the Alaska district court held that federal law preempted state law, and therefore that ConocoPhillips could withhold well data from the public for the duration of the lease (rather than a shorter time period provided by state law).

There was some news in a couple of ongoing Forest Service project lawsuits:

• Wayne NF Sunny Oaks project

Oral argument in Ohio Environmental Council v. U.S. Forest Service (S.D. Ohio)

The Sunny Oaks project on the Wayne National Forest involves clearcutting white oak trees (discussed previously here).  It also involved the interpretation of forest plan standards that require the agency to maintain 12 trees with loose bark per acre, like oaks and hickories, to provide habitat for endangered Indiana bats.  At the hearing, the Forest Service attorney apparently argued that, in the project area, there aren’t that many trees with loose bark, and he said the agency has the flexibility to not follow the standard.  (This reminds me of an argument that, because a project area didn’t meet an elk cover standard already, it was ok to remove more cover, which I don’t think was a winning argument.)

• Los Padres NF Pine Mountain

Plaintiffs’ brief filed in Los Padres Forest Watch v. U. S. Forest Service (C.D. Cal.)

This project on the Los Padres National Forest involves “removal of trees and native chaparral across 775 acres of a unique ridgeline that harbors rare plants and animals and is important to local Chumash tribes.”  It is “one of the most controversial decisions ever issued in Los Padres National Forest.”  In April, 2022, six environmental organizations, the City of Ojai and the County of Ventura, challenged the use of a categorical exclusion, as well as “failing to provide annual updates to Congress on how many times the agency has invoked the loophole.”  The brief (a link is provided in the article) also addresses violations of the Endangered Species Act (California condors) and the Roadless Area Conservation Rule.

Now that we are no longer receiving the Forest Service’s updates, my goal is to provide a summary of relevant lawsuits twice a month.  (Did you know that “bi-monthy” can mean either twice a month or every other month?  That’s pretty useless.)  I’ll try to include a link to the court document in or via the header when I’ve got that.

My sources of information are pretty hit-or-miss, so some of them may be a little late.  Still, if it looks like I missed something you think should be included, let me know about it.  (There’s one of those included here – thanks!)

• Nez Perce-Clearwater Travel Plan

(Another) court decision in Friends of the Clearwater v. Probert (D. Idaho)

This court had (for the second time) previously granted summary judgment on Plaintiff’s challenge to a travel planning decision in 2017 allowing motorized use of the Fish Lake Trail trail in a Recommended Wilderness Area on the Clearwater National Forest, finding violations of elk habitat standards in the forest plan, and “minimization” requirements of the Travel Management Rule.  On December 1, the court vacated the exception in the travel plan for that particular trail, meaning that the trail would no longer be designated as open to motorized use, and therefore such use would be prohibited.  The court found “no reasonable justification” for the more than seven-year failure to comply with the first remand order in 2015, in particular with no end in sight for completing the revised forest plan.  It established a June 1, 2024 deadline for completing the remand and it required interim reporting to the court.

• Oil and gas leasing delays

Intervention:  State of Wyoming v. U. S. Department of Interior (D. Wyo.).

In December, Wyoming and two industry trade groups challenged the Bureau of Land Management’s decision to not hold lease sales during parts of 2021 and 2022.  Plaintiffs claim the agency has an “unwritten policy” pausing leasing and want the court to order the Department of the Interior (DOI) and the BLM to hold lease sales every three months across the west.  On February 9, 17 conservation organizations were granted intervention (per the motion attached to this news release).  An earlier case in Wyoming held that the federal government has broad authority to postpone sales to address environmental concerns (see Western Energy Alliance v. Biden (D. Wyo.)).

Intervenor briefing in State of North Dakota v. U. S. Department of Interior (D. N.D.)

In January, North Dakota also sued the BLM for postponing oil and gas leases and not issuing them every three months, mimicking the Wyoming lawsuit and its own similar lawsuit in 2021.  This press release includes a link to a brief filed by conservation group intervenors on February 9.

• BLM Chaco NM fracking

Court decision:  Dine´ Citizens Against Ruining Our Environment v. Haaland (10^th Cir.)

On February 1, the circuit court ruled on the adequacy of an “EA Addendum,” prepared after a previous loss in district court, and 81 individual Environmental Assessments.  The circuit court held that the BLM again violated NEPA by failing to account for the impacts – including health effects – of toxic air pollution from oil and gas drilling and fracking, and the impacts of added carbon pollution to the climate.  The court also ordered a halt to new drilling permits.  (The article linked above includes a link to the decision.)

The district court had upheld the decision, and this reversal by the 10th Circuit is the first time it has ruled in favor of citizen groups on these issues.  This article explains the reasoning:  

Arguably the most noteworthy element of the ruling was that the BLM could, and indeed should have compared the volume of greenhouse gasses emitted by permitted wells to the levels budgeted by the Intergovernmental Panel on Climate Change. 

On appeal, the BLM had claimed that “incremental contribution to global (greenhouse gasses) from a proposed land management action cannot be accurately translated into effects on climate change globally or in the area of any site-specific action.”

“(The BLM) is not free to omit the analysis of environmental effects entirely when an accepted methodology exists to quantify the impact of GHG emissions from the approved (Applications for Permits to Drill),” the court ruled.

The court did not see this preapproval as an unlawful predetermination, given the BLM’s willingness to revoke permits if the wells were found to violate the final environmental analysis.

• PolyMet mine

Partial court decision in Center for Biological Diversity v. Haaland (D. Minn.)

On February 1, in the latest iteration of this case, the district court dismissed parts of a claim that the U. S. Fish and Wildlife Service and Army Corps of Engineers should have reinitiated consultation on the land exchange that removed the site from the Superior National Forest, and on a Clean Water Act permit.  It allowed the case to proceed with this claim, but limited it to determining if reinitiation was necessary to address the recent decline in the northern long-eared bat population, and alleged changes in the mine proposal.  (There are also additional claims remaining in this case.)

• Boundary Waters wilderness motorboats

New lawsuit:  Wilderness Watch v. Halter (D. Minn.)

On February 3, Wilderness Watch sued the Forest Service for failing to implement a 2015 settlement agreement where it agreed to study and correct excessive motorized towboat use to shuttle canoes farther into the Superior National Forest wilderness.  (The article includes a link to the complaint.)

• BLM Nevada lithium mine

Court decision in Bartell Ranch v. McCullough (D. Nev.)

On February 6, the district court held that the BLM complied with NEPA for the Thacker Pass mine, and met its tribal consultation obligations, but violated FLPMA as it relates to the approximately 1300 acres of land that Lithium Nevada intends to bury under waste rock because BLM did not first make a mining rights validity determination as to those lands.  The court did not vacate the decision while BLM makes this determination.  (A link to the opinion is provided at the end of the article.)  We most recently discussed this case here.

• ESA listing delays NOI

On February 7, the Center for Biological Diversity filed a notice of intent to sue the Fish and Wildlife Service for unlawfully delaying final listing decisions for species it had proposed for listing:  Peñasco least chipmunks, Mt. Rainier white-tailed ptarmigans, South Llano Springs moss, bog buck moths, cactus ferruginous pygmy owls, tall western penstemons, four distinct populations of foothill yellow-legged frogs, and eight freshwater mussels. The notice also opposes the delay in finalizing critical habitat protection for Humboldt martens.   The marten was discussed here, and the yellow-legged frogs here.  More on the pyramid pigtoe is here.

The Penasco least chipmunk was proposed for listing as endangered in 2021 with proposed critical habitat.  The chipmunk is native to the Sacramento and White Mountains in south-central New Mexico in and around the Lincoln National Forest, but remains only in the White Mountains, with about half of the habitat in a wilderness area.  In its listing proposal, the Fish and Wildlife Service said it was especially threatened by recreational activities in the area, and livestock grazing is also implicated.

• Florida waterpark

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

On February 8, the National Park Service was sued for failing to prepare an EIS or to consult with the Fish and Wildlife Service before removing land-use restrictions to allow construction of Miami Wilds waterpark, hotel, and retail development, where 17 threatened or endangered species may occur, including some critical habitat.  Miami-Dade County received these lands in the 1970s and 1980s from the U.S. Department of the Interior and NPS through conveyances that required the county to use and maintain the land for public park or public recreational purposes, along with other terms, covenants, and restrictions.  The NPS decision at issue, an agreement with Dade County, would transfer those restriction to lands outside of this project area.  (The article has a link to the complaint.)

• Chippewa NF fern

The Minnesota Court of Appeals has ruled that construction of a new wood products plant requires preparation of an EIS and reconsideration of effects on two public wetlands.   The Leech Lake Band of Ojibwe challenged the decision by the Cohasset City Council because of perceived threats to wild rice in Blackwater Lake and two eagle nests, and an imperiled fern — called the goblin fern — in its Chippewa National Forest old-growth habitat.  (The Forest Service was apparently not a party to the lawsuit.)

• Wood pellets

We have previously discussed the use of southern forests to produce wood pellets for energy generation.  Last fall, a Georgia judge allowed a case to proceed with claims that the permit for the Spectrum Energy pellet mill in Adel, GA violated the Civil Rights Act because the Georgia Environmental Protection Division discriminated against minority residents of a small town by approving an air pollution permit for manufacturing wood pellets.

• BLM dinosaur tracks

The BLM is offering a $2,000 reward for information leading to a conviction of anyone responsible for graffiti vandalizing the Moccasin Mountain Dinosaur Tracksite located southwest of Kanab.

For those inclined to use the phrase “frivolous lawsuits” to characterize bothersome legal complaints filed by environmental groups, here is a rebuttal.  But first, here is a legal definition of “frivolous.”

A frivolous claim, often called a bad faith claim, refers to a lawsuit, motion or appeal that is intended to harass, delay or embarrass the opposition.

A claim is frivolous when the claim lacks any arguable basis either in law or in fact (citation omitted). That means, in a frivolous claim, either: “(1) “the ‘factual contentions are clearly baseless,’ such as when allegations are the product of delusion or fantasy;” or (2) “the claim is ‘based on an indisputably meritless legal theory.'”

Here is what a Montana columnist (with an environmental background) had to say:

• Mt. Hood NF land exchange

New lawsuit

In December, conservation groups sued the Forest Service to block a long-disputed land swap on Mount Hood, claiming the Forest Service is giving the owner of Mt. Hood Meadows and Cooper Spur ski areas a sweetheart deal on buildable land in Government Camp without protecting the north side of the mountain from further development.

• Idaho BLM grazing

Court decision

In early January, the Idaho district court vacated, at the agency’s request, a BLM decision to allow 16,000 sheep to graze on a 270,000 acre allotment in southeastern Idaho, after the judge blocked the Twin Buttes Allotment decision.  A Freedom of Information Act request had revealed recent research that identified the area as an important sage-grouse migration corridor, which had not been disclosed by the BLM.  Western Watersheds’ news release is here.

• Wildlife Services Montana

New lawsuit

On January 18, three conservation groups sued U. S. D. A. Wildlife Services and the U. S. Fish and Wildlife Service over Wildlife Services’ predator control program in Montana, arguing that its activities could threaten the long-term recovery of grizzly bears, which are protected under the Endangered Species Act.  The lawsuit challenges a 2021 decision to continue the program and its associated consultation with the FWS, along with a 2020 Trump Administration policy.  The complaint focuses on an alleged failure to consider the effects on connectivity between grizzly bear populations of its bear removal actions.

• Grizzly bear recovery plan

Court decision in Center for Biological Diversity v. Haaland (9^th Cir.)

On January 19, the circuit court held that plaintiffs cannot sue the U.S. Interior Department for refusing to amend the 1993 Grizzly Bear Recovery Plan because the recovery plan itself was not a “final agency action” subject to judicial review under the Administrative Procedure Act.  The article includes a link to the opinion, or here it is.

• New Mexico BLM oil & gas

New lawsuit:  Citizens Caring for the Future v. Haaland (D. N.M.)

On January 23, four plaintiff organizations challenged 32 oil and gas leases covering nearly 6,000 acres of land in New Mexico administered by the BLM’s Carlsbad Field Office.  It targets “the Biden administration’s decision to uphold the Trump-era leases,” and “the administration’s failure to address the harm from expanded oil and gas extraction to the climate and regional air quality.”  The news release includes a link to the complaint.

• Idaho BLM phosphate mine

Court decision in Center for Biological Diversity v. U. S. Bureau of Land Management (D. Idaho)

On January 24, the district court held that BLM approvals for a 1600-acre open pit phosphate mine in southeastern Idaho failed to adequately analyze how the project might damage sage-grouse habitat and the extent of groundwater pollution with heavy metals.  The Caldwell Canyon mine would replace another depleted mine to provide ore that would be processed into the herbicide glyphosate, a key ingredient in Bayer’s Roundup weedkiller, which is itself the subject of extensive litigation.  The news release includes a link to the opinion.

• Hoosier NF Houston South Project

New lawsuit:  Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Ind.)

On January 25, the county and three environmental plaintiffs filed a second lawsuit against the Houston South Vegetation Management and Restoration Project challenging the agency’s failure to comply with the court’s order in a prior lawsuit to evaluate the effects of logging and burning on Lake Monroe’s drinking water.  The article includes a link to the complaint. That first lawsuit is now being considered in the 7th Circuit Court of Appeals, where both the plaintiffs and defendants appealed the original court decision.

• BLM grazing fraud

Criminal conviction

A Montana resident pleaded guilty to mail fraud, and faces a maximum of 20 years in prison, a $250,000 fine and three years of supervised release for fraudulently certifying he was grazing his own cattle on a BLM grazing allotment.  Grazing cattle owned by a third party requires payment of higher grazing fees, and he had submitted a false document showing ownership.

• South Dakota section lines

New lawsuit

The South Dakota Office of School and Public Lands is suing the Elm Springs Township Board of Supervisors for vacating ownership of section lines so that the public cannot use them to reach public lands, especially for hunting.  In South Dakota, section lines are considered to be a public right-of-way for access to other parcels of land, but abuse of that system is apparently not uncommon, including a case involving the Black Hills National Forest.  (We discussed a Wyoming lawsuit on “corner crossings” here.)

• Southern hognose snake

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

On January 26, plaintiffs sued over the 2019 decision by the U. S. Fish and Wildlife to not list the southern hognose snake under the Endangered Species Act.  The species’ historic habitat includes fire-dependent forested habitat across the south, and the primary stressors affecting the species’ biological status are habitat loss due to fire suppression, timber harvesting, sea level rise, conversion of land to agriculture, and urbanization.  The allegations include failure to properly model timber harvest.  The article includes a link to the complaint.

• Arctic grayling

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

On January 30, the Center for Biological Diversity, Western Watersheds Project and a professor at Montana Tech who authored the popular book “Montana’s Last Best River: The Big Hole and Its People” sued the U. S. Fish and Wildlife Service for failing to list the arctic grayling.  The remaining fish are found primarily in the Big Hole River, which is in a valley surrounded by the Beaverhead-Deerlodge National Forest.  They are threatened primarily by irrigation withdrawals for growing hay.  The FWS has deferred to a conservation agreement implemented by the state which has, to date, not restored summer flows sufficiently to sustain grayling.  The news release includes a link to the complaint.

The new year also found the Biden Administration making some important policy decisions related to past litigation.

• Clean Water Act

On January 18, the Army Corps of Engineers and the U.S. Environmental Protection Agency published their final rule on “Waters of the United States” (WOTUS) in the Federal Register.  The new rule, which will become effective 60 days after publication in the Federal Register, attempts to clarify which bodies of water, wetlands and waterways are protected under the federal Clean Water Act.  The Biden administration rule will protect more wetlands and streams than the previous regulation issued under President Trump. However, the Biden administration rule is less expansive than the Obama administration’s WOTUS rule, which included isolated wetlands.  Recent litigation was discussed here.  This article discusses the case currently before the Supreme Court.

• Tongass NF roadless areas

On January 25, the Secretary of Agriculture announced that the Forest Service would reinstate a rule to again prohibit road-building and timber harvest in unroaded areas of the Tongass National Forest.  Lawsuits followed the last time the rule was imposed, and in 2020 after it was removed by the Trump Administration (discussed here).  The USDA press release cited a directive from President Biden at the start of his term to review and address rules enacted under Trump that might conflict with environmental and climate aims laid out by Biden.

• Boundary Waters withdrawal

On January 26, the Interior Department issued a 20-year mining moratorium for over 225,000 acres of the Superior National Forest upstream from the Boundary Waters Canoe Area Wilderness in northeastern Minnesota.  This includes an area that had been eyed for a potential copper and nickel mine by Twin Metals Minnesota, and has been the subject of litigation.  This withdrawal decision came after the Bureau of Land Management and the Forest Service evaluated the environmental impacts of mineral development in the region.

The U. S. Fish and Wildlife Service has also made a couple of decisions for species found on national forests.

• Sierra salamanders

On October 18, 2022, the U. S. Fish and Wildlife Service proposed listing two salamander species found on the Sequoia National Forest under the Endangered Species Act and proposed designating critical habitat on national forest lands.  The Service determined that the main threats impacting the Kern Canyon slender salamander include those posed by increasing grazing, recreation, fire, and climate change, and warrant listing the species as threatened, while the relictual slender salamander faces threats primarily caused by roads, grazing, fire, timber harvest, and hazard tree removal, and it would be listed as endangered. The Kern Plateau salamander (also found on the Inyo National Forest) was not proposed for listing.  National forest plans were cited for protecting all three species.  (The comment period closed in December.)

• Sacramento Mountains checkerspot butterfly

On January 30, the U.S. Fish and Wildlife Service protected the Sacramento Mountains checkerspot butterfly as an endangered species.  The butterfly is found only in high-elevation meadows on the Lincoln National Forest in southern New Mexico.  Only two small populations of the butterfly remain because most of its habitat has been degraded by grazing, development and motorized recreation.