Jon Haber

Out with the old, and in with the new.

• BLM limestone mine

Court decision in Glenwood Springs Citizens’ Alliance v. U. S. Department of the Interior (D. Colo.)

On November 8, the district court denied a motion to dismiss the case by the Federal Defendants, allowing it to proceed with a claim that the BLM unreasonably delayed taking action to address unauthorized removal of limestone, in violation of a 1982 plan of operations, for a quarry on federal lands.  The opinion is here.

• Okanogan-Wenatchee NF Twisp project

New lawsuit

On November 23, plaintiffs filed a lawsuit against the Twisp Restoration Project on the Okanogan-Wenatchee National Forest.  The complaint alleges failure to give adequate notice for public participation after changes were made following the 2021 Cedar Creek Fire.  Among other issues, the complaint challenges the use of “condition-based management, which “makes it impossible for the public to adequately determine what trees will be cut, where, or in what amounts.”  The lawsuit also states that there is scientific controversy over the use of thinning to manage wildfire risk, and that the Forest Service has been using the North Central Washington Forest Health Collaborative as an advisory committee in violation of the Federal Advisory Committee Act.

• Los Padres NF FOIA

New lawsuit

Los Padres ForestWatch filed a lawsuit against the Los Padres National Forest for not releasing public records about the Ecological Restoration Project—a fire mitigation proposal that will impact roughly 235,495 acres of land – in a timely manner.  They submitted a Freedom of Information Act request during the 30-day comment period in July.  After a second request in November, they received a response confirming there are 3,726 pages of documents, but did not provide them.  Normally compliance with FOIA requests must occur within 20 days, but plaintiffs allege that this lack of responsiveness is typical.

• The Wall

Settlement

The November 19 update discussed actions by the State of Arizona to place shipping containers on federal land along the border with Mexico and to sue the United States.  On December 14, the Center for Biological Diversity filed a Notice of Intent to Sue the state for violating the Clean Water Act, and the U. S. Justice Department filed a complaint in USA v. Ducey (D. Ariz.) accusing the state of trespassing on federal land. On December 20, the State of Arizona filed documents in court agreeing to cease installing the containers in the Coronado National Forest, and to remove the containers already installed, in consultation with the Forest Service, to settle the case.

• Sierra Nevada red fox

Notice of intent to sue

On December 16, WildEarth Guardians filed a notice of intent to sue the Forest Service and Fish and Wildlife Service regarding the effects of over-snow vehicle use on the Sierra Nevada red fox on the Stanislaus and Humboldt-Toiyabe National Forests.  The species was listed as endangered in 2021, after OSV designations were made by these forests, and ESA consultation on the red fox has not occurred.  The press release includes a link to the notice.

• CEQ NEPA regulations

Court decision in Wild Virginia v. Council on Environmental Quality (4^th Cir.)

This is the challenge to the Trump Administration’s 2020 changes in the regulations governing how federal agencies conduct reviews under the National Environmental Policy Act.  On December 22, the circuit court affirmed the district court decision that the district court did not have jurisdiction to decide this case.  The Biden Administration has since adopted the 2022 version of the CEQ regulations, which mooted plaintiffs’ case regarding some issues by returning to pre-2020 requirements for direct, indirect, and cumulative effects, and reasonable alternatives.  Remaining issues may be addressed by additional pending changes by CEQ.  The court rejected jurisdiction primarily because those issues are not ripe for review or plaintiffs lack standing since harm depends on future actions by other parties.  This case was discussed earlier here.

• Boise NF Sage Hen project

Settlement and withdrawal in Wildlands Defense v. Brummett (D. Idaho)

On December 30, the Boise National Forest withdrew the Sage Hen Integrated Project, which covered 67,800 acres of land over a 20-year period, and explicitly used a “’condition based management’ scheme left over from the Trump administration that has been rejected by courts.”  There were also endangered species issues.  The withdrawal was required by a settlement of the litigation on October 19.  That litigation was discussed here, where we speculated about the outcome (and now we can speculate about the Forest Service’s reasons for withdrawing it).  The article includes a link to the withdrawal letter.

• Willamette NF Flat Country project

Withdrawal

On December 29, the Pacific Northwest Regional Forester withdrew the Flat Country Project on the Willamette National Forest.  This was not the result of a lawsuit, but rather of the Biden Administration’s directive to conserve old and mature forest.  The Forest Service indicated that the parts of the project most groups agree on will move forward, while other parts, such as the logging of the older trees, could be dropped.

• Rio Grande Wolf Creek FOIA

Court decision in Rocky Mountain Wild v. U. S. Forest Service (10^th Cir.)

On December 30, the circuit court upheld the district court’s finding that the Forest Service conducted a reasonable search for records associated with the Village of Wolf Creek Access Project on the Rio Grande National Forest.  The request was filed in 2018 and yielded over 140,000 pages in 14,740 documents, and plaintiffs had challenged the file-searching process. The court allowed the Forest Service to choose the search terms it used.  It also allowed the Forest Service to “claw back” two documents it released by mistake.  The article has a link to the court opinion.  The plaintiffs had recently won their lawsuit against the Forest Service on the merits, as discussed here.

• Kootenai Black Ram project

New lawsuit:  Alliance for the Wild Rockies v. Kaiser (D. Mont.)

On January 6, Alliance for the Wild Rockies and Native Ecosystems Council filed suit against the Black Ram Project on the Kootenai National Forest.  Plaintiffs argue that the project will destroy grizzly bear habitat for the declining Cabinet-Yaak population with logging, prescribed burning and road building, in violation of the Endangered Species Act.  The project includes 579 acres of “intermediate harvest” in designated old growth forest.  The complaint includes a claim that the project fails to demonstrate it would comply with a forest plan standard for road density.  The article includes this link to the complaint. Plaintiffs provide their views here.

• Tiehm’s buckwheat

Notice of intent to sue

On January 9, the Center for Biological Diversity filed a notice of intent to sue the Bureau of Land Management over cattle observed grazing in the recently designated critical habitat for this newly listed endangered species in Nevada.  The article includes a link to the notice.

The same area is the site of a possible lithium mine (we have discussed prior litigation here), and the BLM cited the mining company for trespassing on the critical habitat five days after the U.S. Department of Energy announced a $700 million conditional loan to the mining company.  The DOE said the loan was contingent on, among other things, the completion of an environmental impact statement.

• Nevada geothermal exploration

New lawsuit

On January 9, the San Francisco-based Burning Man Project and four co-plaintiffs (Friends of Nevada Wilderness, Friends of Black Rock/High Rock Inc. and two local residents) filed a lawsuit in federal court in Reno accusing the Bureau of Land Management of violating NEPA in approving Ormat Nevada Inc.’s exploratory drilling within the Black Rock National Conservation Area, home to the annual Burning Man Festival.  The lawsuit said Ormat has attempted to evade analysis of the geothermal power plants’ potential negative effects on the environment by segmenting the project, which limits BLM’s review to only the exploration stage of its plans.  The proposed wells would be adjacent to a number of unique hot springs that are ecologically important and are relied upon by the local community for tourism.

• FEATURED LAWSUIT:  Sage-grouse, research natural areas, grazing and land use plans

Court decision in Oregon Natural Desert Association v. Bushue (D. Or.)

On December 7, the district court held that the BLM is required by its resource management plan to close 13 research natural areas (RNAs) to grazing in southeastern Oregon.  That requirement was included as a decision in a 2015 plan amendment adopted range-wide to protect habitat for sage-grouse (ARMPA).  (That was the basis for the Fish and Wildlife Service deciding to not list the sage-grouse under ESA, and the 2015 amendment remains in place after a subsequent amendment in 2019 was enjoined.)

FLPMA requires that lands be managed in accordance with land use plans, and this amendment stated (twice) that specific areas in these RNAs “will be unavailable to livestock grazing.”  However, the Record of Decision also made it clear that, “implementing on-the-ground activities requires additional steps before any of them can begin.”  The court first found that language in the draft plan that imposed a 5-year deadline and prescribed fencing was not included in the final decision, despite language in the ROD that could be interpreted otherwise, and therefore these were not actual plan requirements.

The court then determined that nine years or more of delay in meeting FLPMA’s requirement by terminating existing grazing authorizations was unreasonable under the APA.  To do so, it first found that these specifically identified actions were “discrete” (as opposed to “programmatic attacks”), making them enforceable by a court.  One reason the BLM had argued that they were not “discrete” was because actions requiring NEPA compliance could not be compelled.  The court disagreed, saying, “If courts were barred from enforcing any discrete, mandatory action that required some further NEPA analysis, many environmental statutes, regulations, and provisions would be unenforceable.”  In this case, the court also found that the BLM had completed a separate NEPA process for closing these areas to grazing and had included that with its plan amendment.

The court then held that the closures to grazing were “legally required” by the resource management plan.  It cited the Supreme Court (Southern Utah Wilderness Alliance, SUWA, case) for acknowledging the possibility that language in a land use plan could create a binding commitment for an agency to act.  This court concluded that the sage-grouse amendment contains “a specific, unequivocal command” placed on the agency to make the RNAs unavailable to grazing.  Moreover, “The plain language of the ROD makes clear that the ‘land use allocation[s]’ in Management Decision LG 1 and Objectives LG 2, the provisions making areas unavailable for grazing, were immediate decisions…  In other words, it is not “[a] statement by BLM about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities;” (i)t is an immediate, binding commitment to set aside 22,765 acres as unavailable to grazing.”

The court found that, “BLM has violated FLMPA and the APA by failing timely to close the 13 key RNAs. BLM must make unavailable to grazing the portions of the key RNAs specified in the 2015 ARMPA without further delay.”  It ordered further briefing on a specific remedy.

• Northern long-eared bat

ESA listing action resulting from Center for Biological Diversity v. Everson (D. D.C.)

On November 30, the U. S. Fish and Wildlife Service announced it will reclassify the northern long-eared bat from threatened to endangered, the result of a lawsuit decided in 2020.  The Service cited the impacts of white nose syndrome (WNS) on the species’ viability.  This tightens restrictions on incidental take of individuals – activities NOT likely to result in a violation of the ESA section 9 prohibition on “take” include “minimal tree removal and vegetation management any time of the year outside of forested habitat and more than five miles from known or potential hibernacula, insignificant forested habitat removal during the hibernation period not negatively affecting an essential behavioral pattern, tree removal at any time of year in highly developed urban areas…”  In other words, most logging would now require the FWS to authorize incidental take.  This article includes a map of WNS distribution, and a link to the earlier court decision.

• Lead on national wildlife refuges

Settlement in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Mont.)

On November 30, the district court approved a settlement that requires the Service to respond to Plaintiff’s June 8, 2022 rulemaking petition, requesting a phase-out of lead usage on the entire National Wildlife Refuge System, by June 1, 2023.  The original lawsuit had challenged a Trump Administration rule for failing to comply with the Endangered Species Act when it expanded hunting and fishing at national wildlife refuges and fish hatcheries.  Because of the lawsuit, the Service has also committed to a proposed phaseout of lead use on numerous national wildlife refuges in the eastern U.S.  The press release includes links to the lawsuit complaint and the settlement agreement.

• Los Padres NF fuelbreaks

Court decision in Los Padres ForestWatch v. U. Forest Service (C.D. Cal.)

On December 5, the district resolved the remaining issue in litigation of the Tecuya Ridge Project on the Los Padres National Forest.  The court found that additional analysis by the Forest supported a conclusion that the proposed shaded fuelbreaks would comply with the Roadless Area Conservation Rule requirement that the project remove “generally small diameter timber.”

The earlier decision by the Ninth Circuit in this case was discussed here.

• Beaverhead-Deerlodge NF project

Court decision in Native Ecosystems Council v. Marten (D. Mont.)

On December 6, the district court granted the Forest Service motion to dissolve an injunction against the Fleecer Mountains Project on the Beaverhead-Deerlodge National Forest.  The agency had complied with its requirement to consult on the forest plan with regard to new information that included parts of the Forest as Canada lynx habitat.

• Tahoe NF OHV prosecution

A federal judge has convicted and fined an individual for driving a motorized vehicle off of designated routes on the Tahoe National Forest.  He was found by Forest Service law enforcement officers in a riparian area that provides important habitat for the Foothill yellow-legged frog, a species proposed for federal listing in 2022.  The Forest had ramped up patrols of this area that had historically received heavy motorized use.

• Amargosa voles and recreation

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (C.D. Cal.)

On December 6, plaintiffs sued the BLM to protect federally endangered Amargosa voles from unmanaged recreational use within their federally protected critical habitat near a popular hot spring in the Mojave Desert.  They say, “federal officials are looking the other way while people party around the clock …,” and allege that unauthorized off-road vehicles, unattended campfires, off-leash dogs, unauthorized camping, litter, and a lack of bathroom facilities have led to severe degradation of the animals’ habitat.

• Wilderness Study Area antenna

This isn’t a lawsuit yet, but the “demand letter” sounds like it could be the equivalent of a notice of intent to sue (which is not a formal requirement in this case), and what can be done in “de facto” wilderness has been a topic of discussion here.  The Beaverhead-Deerlodge National Forest moved an electronic site structure into a statutory Montana Wilderness Study Area using motorized equipment under a categorical exclusion for “maintenance” and with no public process.  Montana Backcountry Horsemen has asked that it be removed.

• Whitebark pine listing

As someone noted in a comment on the last litigation summary, on December 14, the whitebark pine was listed as a threatened species under the Endangered Species Act.  White pine blister rust is the primary threat to the species, along with “mountain pine beetles, altered wildfire patterns, and climate change.”  The news release from the Whitebark Pine Ecosystem Foundation links to the Fish and Wildlife Service information.

• Tiehm’s buckwheat listing

On December 16, the U. S. Fish and Wildlife Service published a final rule listing the Tiehm’s buckwheat as an endangered species, and designated 910 acres of critical habitat on lands managed by the Bureau of Land Management.  The Center for Biological Diversity had sent the FWS a Notice of Intent to Sue in October for failing to list the species.  The habitat involved is also the site of a proposed lithium mine, which we have discussed in conjunction with that litigation, most recently here.  CBD said, “Lithium is an important part of our renewable energy transition, but it can’t come at the cost of extinction.”  According to the mining company, “Our operations have and will continue to avoid all Tiehm’s buckwheat populations.”  The article includes a link to the listing notice.

Some old news to start the new year.

• BLM categorical exclusion

Settlement in Cascadia Wildlands v. U. S. Bureau of Land Management (D. Or.)

On October 3, the BLM agreed to reverse the expansion of a categorical exclusion made by the Trump Administration.  The Trump rule increased the maximum area for categorical exclusions permitting logging of “dead or dying trees” from 250 acres to 3,000 acres. The rule also doubled the maximum amount of permitted road construction from one-half to one mile of permanent road. The previous categorical exclusion rule had required those roads to be temporary. The BLM will now engage in rulemaking to remove the categorical exclusion language from its NEPA implementing procedures and revert to the old guidance. On August 3, the BLM had alread limited the CE to 250 acres again.  The settlement allowed a specific BLM project that had used the new CE to proceed. The news release includes a link to the agreement.

• BLM Chaco fracking

New lawsuit:  Dine´ Citizens Against Ruining our Environment v. U. S. Bureau of Land Management (D. N.M.)

On October 26, plaintiffs challenged authorization and issuance of oil and gas leases on 42 parcels, covering nearly 45,000 acres of land administered by the BLM’s Rio Puerco and Farmington field offices in the Greater Chaco area, and BLM’s approval of approximately 120 Applications for Permit to Drill on 8 of these lease parcels. Plaintiffs fault the agency’s failure to adequately analyze the effects this fracking will have on the climate, public health, environmental justice, and cultural resources. There is also a claim of failure to prevent unnecessary or undue degradation of public lands under FLPMA.  It comes amid current government efforts to “honor” Chaco.  The news release includes a link to the complaint

• Tonto NF grazing

Notice of Intent to Sue

On November 9, The Center for Biological Diversity and Maricopa Audubon Society notified the Forest Service and Fish and Wildlife Service of an intent to sue for failure to control cows grazing in endangered species critical habitat, primarily along the Salt River and its tributaries.  The groups allege the Forest Service is violating the ESA by failing to ensure that ongoing livestock grazing is not likely to jeopardize the yellow-billed cuckoos, southwestern willow flycatchers, Chiricahua leopard frogs, northern Mexican garter snakes, narrow-headed garter snakes, spikedace, razorback suckers or Gila chub and their habitat. The notice follows the Center’s 2020 report and lawsuit and resulting 2021 legal agreement protecting the Verde River from cattle grazing, and recent findings continue to show widespread, severe cow grazing damage in riparian areas.  The news release includes a map and a link to the notice.

• Tonto copper mine

On November 15, the Arizona Court of Appeals ruled that the state Department of Environmental Quality illegally issued a Clean Water Act permit for the proposed Resolution Copper Mine, which is being opposed by the San Carlos Apache Tribe.  The decision overturns a Maricopa County Superior Court ruling and orders ADEQ to restart the permit process.  The opinion in San Carlos Apache Tribe v. State of Arizona is included here.

On November 17, the 9th U.S. Circuit Court of Appeals agreed to rehear a federal case in front of a full panel of 11 judges. The 3-judge panel had previously ruled that the federal government was not in violation of the Religious Freedom Restoration Act, and could give land in the Tonto National Forest to the mining company.  A link to the district court order under review in Apache Stronghold v. United States may be found here.  The earlier 9^th Circuit decision was discussed and linked here.

• Vermont forests

On November 23, Standing Trees, a Montpelier-based anti-logging group, filed a lawsuit in Vermont Superior Court against logging of mature forest in Camel’s Hump State Forest.  The group has called for a moratorium on logging in state parks and forests and in the federal Green Mountain National Forest, and has protested the Telephone Gap Integrated Resource Project there (which may be the next lawsuit).  The group argues that the Forest Service logging plans violate the spirit, if not the letter, of President Joe Biden’s executive order earlier this year requiring the service to categorize and monitor old-growth trees on federal lands and to implement “climate-smart management and conservation strategies.”

• BLM North Project

Court decision in Klamath-Siskiyou Wildlands Center v. Bureau of Land Management (9^th Cir.)

On November 25, the 9^th Circuit upheld the North Landscape Project against NEPA and ESA claims, as discussed here.

• Ochoco NF Walton Lake

Injunction pending appeal in Blue Mountains Biodiversity Project v. Jeffries (9^th Cir.)

On November 18, the circuit court agreed to preserve the injunction until it hears the case against logging around the recreation area on the Ochoco National Forest to manage root rot.  (The article includes a picture.)  The district court opinion was summarized here:

• Gliders stop logging

A Supreme Court decision has threatened the immediate future of the native timber industry in Victoria, according to logging proponents. The court ordered stricter rules for VicForests operations, after it found the government-owned agency broke the law by failing to adequately protect the yellow-bellied glider and the endangered greater glider in Victoria.  The court ordered VicForests to undertake more rigorous surveying for gliders in logging coupes, create wider protected areas where gliders were located, and maintain at least 60 per cent of basal area eucalypts in harvested areas where gilders were identified.  (This is from Australia, but does it sound familiar?)

There were a number of developments related to the Endangered Species Act that may affect public land management.

• ESA regulations

Court decision in Center for Biological Diversity v. Holland (N.D. Cal.)

On November 16, the district court granted the requests by the U.S. Fish and Wildlife Service and National Marine Fisheries Service to send the 2019 Trump Administration changes to ESA regulations back to them for further reconsideration. The 2019 rule changed procedures for listing, interagency consultation, and incidental take.  The judge left the changes to the ESA intact, saying he couldn’t vacate them without having first ruled on the merits of the environmentalists’ claims.  There is no deadline for this reconsideration.  The article contains a link to the ruling.

• Gray wolf recovery plan

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

On November 29, the Center sued the U. S. Fish and Wildlife Service for failing to complete a national wolf recovery plan.  The existing plan has separate treatments for the eastern timber wolf in Minnesota, the delisted gray wolf population in the northern Rocky Mountains and the Mexican gray wolf in the Southwest, and the agency has attempted to delist the species in other areas.  The lawsuit also challenges the failure to prepare a required 5-year status review.  The article includes a link to the complaint.

• Potential ESA Listing lawsuits

The Center for Biological Diversity has also been busy prodding the Fish and Wildlife Service to make listing decisions for several species.

On November 14, they filed a Notice of Intent to Sue for deciding to not list the southern hognose snake.  The species lives in longleaf pine savanna, a forested fire-dependent ecosystem that once covered an estimated 92 million acres in the Atlantic and Gulf Coast regions. Because of forest clearing and fire suppression, longleaf pine forests now cover less than 3 million acres.

On November 15, they filed a Notice of Intent to Sue for improperly delaying protection of the least chub, a species found in spring habitats in Utah’s Bonneville Basin.  The main threat to the species is groundwater pumping, but much of the habitat is found on BLM lands where oil and gas development is a threat to some populations.  The fish have also been introduced at protected sites on BLM lands.  There is more information about an immediate water pipeline threat here.

On November 15, the Center also filed a Notice of Intent to Sue for improperly delaying protection of the Fish Lake Valley tui chub in Nevada.  The FWS had found substantial evidence that listing the fish may be warranted, but the agency failed to issue a decision on whether protection is warranted by the legally required deadline.  The Center alleges that the state of Nevada, which has the authority to manage groundwater, failed to correct severe overpumping as groundwater levels continue to fall across the valley.  The chub is a BLM sensitive species, and additional threats include geothermal leases on BLM lands and numerous proposed lithium mines on a nearby playa.

• Other ESA news

On November 7,  the U.S. Fish and Wildlife Service has revised its proposal to designate critical habitat for the Southern Sierra Nevada distinct population segment of fisher. The critical habitat designation would include approximately 595,495 acres and span six units in California’s Tuolumne, Mariposa, Madera, Fresno, and Tulare Counties. The majority of the land comprising these units is owned and/or managed by federal, state, or tribal governments.

On November 30, the Dixie Valley toad was given permanent protection as an endangered species under ESA (replacing an emergency designation).  Its only habitat is threatened by a geothermal energy project approved by the BLM, which is currently in court (last discussed here).  The final rule is here.

And finally, an election on November 8 for the Deschutes Basin North Unit Irrigation District in Oregon was viewed as a referendum of sorts on a habitat conservation plan that allows incidental take of bull trout and Oregon spotted frogs, both listed under the Endangered Species Act.  Two candidates for board members were outspoken against the HCP, and they were both defeated by a vote of those who use the water managed by the District.

• Heat death

On October 11, the widow of a volunteer who died preparing for the 2021 Bighorn Sheep Count in California’s Anza-Borrego Desert State Park filed a wrongful death lawsuit this week against state parks officials, alleging the event was unsafe due to triple-digit temperatures in the region.  The suit alleges state parks employees should have known high heat (which reached 116 degrees) would endanger volunteers, including 68-year-old Donald White Jr., who died of environmental hypothermia.  The complaint alleges “negligent and reckless conduct” by the state.  (California’s Tort Claims Act may be different from federal law.)

• WUI development proposal

New lawsuit:  Preserve Wild Santee v. City of Santee (California Superior Court)

On October 14, four conservation groups sued a city in San Diego County (again) for approving the Fanita Ranch Project in a state-designated Very High Fire Hazard Severity Zone.  The Project would include 2,900 to 3,000 residential units, commercial structures, a road network, and other infrastructure.  One claim involves the California state version of NEPA (CEQA) and failure to analyze effects on, among other things, special status wildlife and plant species, and wildfire and wildfire safety.  The news release from the Center for Biological Diversity includes a link to the complaint.

• The Wall

On October 19, the Center for Biological Diversity notified the State of Arizona that it would sue to force the state to remove shipping containers it is placing on the Mexican border, which plaintiff alleges violate the Endangered Species Act because they obstruct “one of the last established endangered jaguars and ocelot movement corridors between Mexico and the United States.”  On October 7, the Coronado National Forest had notified the State that the containers on national forest lands are an unauthorized use, and that they require a special use permit.  On October 13, the U. S. Department of Interior also advised that containers were trespassing on Bureau of Reclamation lands and an Indian reservation.  Arizona then sued the Forest Service and Bureau of Reclamation.  On November 2, the Center for Biological Diversity asked to intervene in this lawsuit on the side of the United States.

• Valles Caldera cattle trespass

On October 19, WildEarth Guardians, Western Watersheds Project, and Caldera Action filed a notice of intent to sue the National Park Service over Endangered Species Act violations related to illegal livestock grazing in the Valles Caldera National Preserve in the Jemez Mountains of northern New Mexico. They allege cattle have illegally entered the Preserve from neighboring Forest Service grazing allotments.  The press release includes a link to the Notice.

• Mount St. Helens Spirit Lake

Court decision in Cascade Forest Conservancy v. U. S. Forest Service (9^th Cir.)

On October 19, the circuit court affirmed the district court’s holding that the Forest Service did not violate NEPA in approving construction of a temporary road across a pumice plain in Mount St. Helens National Monument on the Gifford Pinchot National Forest to repair a drainage structure on Spirit Lake.  The court also allowed a project-specific amendment to the forest plan, and approved the Forest Service’s application of 2012 Planning Rule requirements to that amendment.  The opinion is here.

• Wolf Creek Pass village

Court decision in Rocky Mountain Wild v. Dallas (D. Colo.)

On October 20, the district court found that the Forest Service decision to approve an access road to an inholding of private land slated for a mountaintop resort was based on inadequate NEPA analysis.  This was the third court reversal for different versions of the proposal to develop the Wolf Creek Pass area within the Rio Grande National Forest.  The article includes a link to the opinion.  Plaintiffs’ account is here.

• Social cost of greenhouse gases

Court decision in Missouri v. Biden (8^th Cir.)

On October 21, the circuit court affirmed a district court holding that dismissed an attempt by several states to enjoin the Biden Administration’s executive order to identify the social cost of greenhouse gases and consider those estimates in evaluating agency proposals.  Plaintiffs failed to establish standing to sue because they would not be harmed unless unknown future decisions are based on the results of this order.

• Fish and Wildlife Service Director

New lawsuit:  Aland v. U. S. Department of the Interior (N.D. Ill.)

On October 21, Robert H. Aland, a retired lawyer residing in Illlinois, who has been involved in grizzly bear litigation, filed a lawsuit seeking to have the Director of the U. S. Fish and Wildlife Service Martha Williams removed because she does not meet the statutory qualifications for that position:  “scientific education and experience.”  She is an attorney who has experience in government administration of wildlife programs.  He believes her participation in agency decisions would “contaminate” them and risk reversal under judicial review.  (It brings to mind a recent controversy regarding the BLM Director.)

• Suckley’s cuckoo bumblebee

Settlement in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Ariz.)

On October 24, the U.S. Fish and Wildlife Service agreed to a deadline of December 2024 to determine whether Suckley’s cuckoo bumblebees warrant protection under the Endangered Species Act.  These parasitic bees were once common in prairies, meadows and grasslands across the western United States but have now been lost across more than 50% of their historic range.  The FWS had found that they “may be warranted’ for listing in May, 2021, and should have made a final determination within 12 months.  The press release includes a link to the stipulated settlement.

• Bighorn weed management

Settlement of administrative objections

Bighorn Audubon Society, Forest Service Employees for Environmental Ethics, Western Watersheds Project, Council for the Bighorn Range and Bighorn Native Plant Society, have agreed to drop their administrative objections to a proposal by the Bighorn National Forest to kill “invasive” rangeland species, including up to 76,000 acres of native sagebrush and several hundred acres of native larkspur.  This was the result of the Forest Service agreeing that, “all sagebrush treatments, as well treatments of other native plants, to include duncecap larkspur” would be dropped from the plan.

• Tiem’s buckwheat listing

Notice of intent to sue

On October 25, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue (again) for failing to publish a final listing determination for Tiehm’s buckwheat.  The species is threatened by a proposed lithium mine on BLM land between Reno and Las Vegas, and the FWS had proposed listing it more than a year ago.  The press release includes a link to the notice.  Here is additional background, and we discussed this here.

• Tribe intervenes in timber sale lawsuit

Intervenors in Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On October 28, the Kootenai Tribe of Idaho was granted intervention as a defendant in this lawsuit against the Black Ram Project on the Kootenai National Forest.  According to the court, “The Tribe’s interest in the Project stems from the Tribe’s ancestral and ongoing relationship with the land and natural resources in the Project area  … the Tribe also supports the Project …”

• Mendenhall Lake

New lawsuit:  State of Alaska v. U.S.A. (D. Alaska)

On November 1, the state filed a quiet title action claiming ownership of submerged land underlying Mendenhall Lake and the Mendenhall River at the base of Mendenhall Glacier within the Tongass National Forest.  The case is expected to hinge on the definition of “navigable” waters, and success is expected to lead to use of motorboats on the lake.  This is part of larger strategy being pursued by the state.  The article includes a link to the complaint.

I’ve gotten a little behind.

• Colorado oil and gas leasing

Settlement in Citizens for a Healthy Community v. U. S. Bureau of Land Management (D. Colo.)

On August 11, the BLM settled another case against its resource management plan decisions involving oil and gas leasing.  Under the agreement, BLM will complete an amendment process for its Uncompahgre RMP, and prepare an EIS that will include alternatives that “reconsider the eligibility of lands open to oil and gas leasing, the designation and management of Areas of Critical Environmental Concern (“ACEC”), and management of lands with wilderness characteristics.”  (Availability for leasing on national forest lands is not included, presumably because that decision is made in national forest plan rather than BLM RMPs.)  With limited exceptions, new leases will not be issued prior to the amendment decision.  The settlement also imposes a deadline on completion of range-wide Gunnison sage-grouse amendment from a previous settlement.  (The news release includes a link to the agreement.)

• Malheur NF logging anti-trust case

On September 15, several logging contractors operating on the Malheur National Forest sued Iron Triangle, the recipient of a 2013 stewardship contract, for stifling competition.  “Put simply,” the lawyers write, “Iron Triangle won the stewardship contract by assuring the Forest Service in its written proposal that it would administer the contract in a manner that diversified the local economy and promoted the public interest. Once the contract was secured, however, Iron Triangle did the exact opposite.”

• Custer-Gallatin NF bridge and trail

Court decision in Donohoe v. U. S. Forest Service (D. Mont.)

On September 16, the district court denied plaintiffs’ motion for a preliminary injunction against the Custer-Gallatin National Forest pending appeal of the court’s March 29, 2022 decision to affirm the Forest Service decision to construct a trail and a bridge (the latter of which was already complete).  The trail would adjoin plaintiffs’ property.  The court found that harm to grizzly bears from increased human presence would be “speculative,” but had dismissed the ESA claim for failing to provide a Notice of Intent to sue.  The court had earlier found no violation of NEPA scoping and connected action requirements, nor any violation of the forest plan.  The original opinion is here.

• Endangered Species Act regulations

Court decision in Washington Cattlemen’s Association v. USDC-CAOAK (9^th Cir.)

On September 21, the 9^th Circuit stayed the July 5^th order of the Northern California district court that had vacated the Trump Administration rewrite of Endangered Species Act regulations.  The circuit court held that the district court should have ruled on the validity of the regulations before it vacated them.  The Biden Administration is revising these regulations, which affect the listing process and consultation, and had asked the court to NOT vacate the Trump rules while that is pending.  The blog post above has a link to the 9th Circuit opinion.  The district court decision in Center for Biological Diversity v. Haaland is linked to this article.

• Yosemite National Park logging

Court decision in Earth Island Institute v. Muldoon (E.D. Cal.)

On September 21, the district court held that fuel reduction projects in Yosemite National Park constituted “changes or amendments to” the current Fire Management Plan, which qualified them for a Park Service categorical exclusion, and denied a preliminary injunction.  (See our prior discussion here.)  The court noted that neither party had provided a definition of the quoted phrase, so it deferred to the Park Service, following a 7^th Circuit case that had done something similar.  (The Forest Service Planning Rule does clearly define forest plan amendments as something different from projects.)  The court also allowed the Park Service to tier its categorical exclusion to a prior FMP EIS because the failure of the CEQ regulations to expressly allow tiering for CEs does not mean that it is prohibited.  (The actual reason that the regulations do not mention tiering CEs is because environmental analysis is not relevant to determining if a CE applies, except to the extent it identifies “extraordinary circumstances.”)  The court also found that the projects were properly “tiered to” existing plans (which I think must be comparable to “consistent with” Forest Service plans) – “at this stage of the case.”  (The court used this or similar qualifiers multiple times throughout the opinion.)

One part of the NEPA issue in this case was whether a declaration by someone named Hanson had demonstrated a sufficient level of scientific controversy over the effects of fuel reduction.  The court chose to not delve into it very deeply because of the “limited evidence before the court” at the injunction stage of the lawsuit.

• Wayne NF Sunny Oaks Project

Brief filed in Ohio Environmental Council v. U.S. Forest Service (S.D. Ohio)

On September 16, plaintiffs filed a reply brief in this case (so the complaint would have been filed months ago, but we have apparently not reported it) involving the Sunny Oaks Project on the Wayne National Forest.  It would clearcut existing white oak forest, which plaintiffs assert “may also destroy the soil’s suitability for future oak ecosystem success.”  The case includes NEPA claims, and “nullification” of a forest plan standard for loose bark tree retention for Indiana bats, allegedly illegal under NFMA, as well as violations of other forest plan guidelines.  We’ve previously discussed white oak management here, and this article provides more background on the lawsuit.  Plaintiff’s blog (above) has a link to the brief.

• Ochoco NF Walton Lake Project

Court decision in Blue Mountains Biodiversity Project v. Jeffries (D. Oregon)

On September 26, the district court upheld a logging project in a developed recreation area on the Ochoco National Forest.  The court held that the purpose and need for the project, to curb root rot in a developed recreation area, was consistent with the forest plan requirements to detect and treat diseases.  (While this sounds like an NFMA consistency holding, it is actually a NEPA conclusion that a purpose and need for projects that is based on a forest plan is reasonable, suggesting that one that is not might not be.)  The court also found that including an NFMA-required finding of a preliminary need to amend a forest plan as part of a project’s purpose and need does not violate NEPA (even though it may preclude project alternatives that don’t require an amendment, which it did not in this case, which is good because an amendment is a result of a project proposal, not a purpose).  The court upheld the use of an EA instead of an EIS, and it adequately considered soil impacts.  (The opinion alludes to previously granting plaintiff’s motion for summary judgment on something, but does not explain further.)

• Bull trout recovery plan

Court decision in Save the Bull Trout v. Williams (9^th Cir.)

On September 28, the circuit court held that plaintiffs were barred from litigating the bull trout recovery plan in the Montana district court because some of the plaintiffs had previously made the same claims against the recovery plan in the Oregon district court (and lost).  This blog post explains it further.

• Medford BLM timber sales

Court decision in Klamath-Siskiyou Wildlands Center v. U.S. Fish and Wildlife Service (D. Oregon)

On September 30, the district court held that the FWS violated the ESA when they determined that old-growth logging by the BLM in the Poor Windy and Evans Creek timber sales on 15,848 acres of threatened northern spotted owl habitat would not jeopardize the species or adversely modify its critical habitat.  In particular, the court found that the Service “was not faced with scientific uncertainty, but unanimity concerning the negative impact of reduced [nesting, roosting, and foraging] habitat and the barred owls’ threat to the spotted owl based on the barred owls’ ability to out-compete for food and shelter,” so its assumption that other areas would continue to support spotted owls was arbitrary.  The court added that mitigation measures addressing barred owls are not “reasonably certain to occur.”  The FWS determination of no “incidental take” was also arbitrary.  The judge also found that the Bureau and the Service illegally failed to reinitiate consultation on the effects of the East Evans Creek and Milepost 97 wildfires that actively burned the timber sale area as the Service concluded its evaluation.  Along the way, the court determined that a prior challenge to an RMP does not preclude raising the same issue for a project (so it does not create a similar situation to the bull trout case above).  The court denied two other ESA claims.

• Mexican wolf

New lawsuit:  Grand Canyon Wolf Recovery Project v. Haaland (D. Ariz.)

On October 3, five conservation non-profits filed suit in Arizona against the July 1 revised Section 10(j) rule governing management of Mexican wolves in New Mexico as a “nonessential” experimental population, and preventing their further dispersal in the southwest.  The news release includes a link to the complaint.

• Fire retardant

On October 11, a lawsuit was filed in the Montana federal district court against the Forest Service by Forest Service Employees for Environmental Ethics for violating the Clean Water Act by the continued use of chemical flame retardant from aircraft.

• Snail darter DE-listing

A notice of a final rule to delist the snail darter from protection under the Endangered Species Act was published October 5, at the request of the Center for Biological Diversity, among others.  The fish is known for stopping the construction of the Tellico Dam on the Tennessee River in the first test of ESA in the Supreme Court.  While the dam was later authorized by Congress, other measures resulting from ESA are credited with the species’ recovery.  More in this article.

As the weather cools down, things have heated up in court for the Forest Service.

• Daniel Boone NF timber sale

New case:  Kentucky Heartwood v. U. S. Forest Service (E.D. Ky.)

On September 7, plaintiff conservation group sued the Daniel Boone National Forest over the South Redbird Wildlife Habitat Improvement Project, allegedly the largest timber project on the Forest in nearly 20 years.  Issues include the proper identification of old growth (which is allegedly being logged), the effects of landslides on aquatic species listed under ESA and loss of habitat for endangered bats.  (The news release includes a link to the complaint.  And a storymap!)

• White River NF subdivision

New case:  Berlaimont Estates v. U. S. Forest Service (D. Colo.)

On September 7, the developers behind the 19-home Berlaimont Estates development within the White River National Forest sued the Forest Service for failing to make a decision to approve a road on federal land to reach their planned 680-acre mountaintop community.  Plaintiffs have objected to the alternative proposed by the Forest Service, arguing the route violated their right to “adequate access” for “reasonable use” under ANILCA, and they may sue again if that becomes the final decision.  We’ve talked about this a couple of times, here and here.

• Unita railway on the Ashley NF

New case:  Center for Biological Diversity v. U. S. Forest Service (D.C. Cir.)

On September 8, the Center for Biological Diversity, Living Rivers, Sierra Club, and Utah Physicians for a Healthy Environment petitioned the circuit court (having exclusive jurisdiction by statute) to review the U.S. Forest Service’s Record of Decision, issued July 14, 2022, authorizing, inter alia, the granting of a special use permit in response to a request for a right-of-way on National Forest System lands on the Ashley National Forest for the construction, operation, and maintenance of Uinta Basin Railway.  Plaintiffs allege that the proposed railway will spur increased oil production in the Uinta Basin, and that the climate impacts were not considered in the EIS prepared by the Surface Transportation Board.  The lawsuit also challenges the Forest Service’s failure to protect rare plants protected by the Endangered Species Act. Twelve miles of the railway would run through the Ashley National Forest on public lands protected by the Roadless Area Conservation Rule.  (The news release includes a link to the complaint.)

• Badger-Two Medicine lease

Court decision in Solenex v. Haaland (D. D.C.)

On September 9, the district court decided a case filed in 2013 in favor of a company with a 1982 oil and gas lease on a part of the Lewis and Clark National Forest that is south of Glacier National Park, and is considered sacred to Native Americans.  (All other leases in the area have been voluntarily relinquished.)  The lease was cancelled by the Department of the Interior in 2016 and this was upheld by the D. C. Circuit, but on remand the plaintiffs amended their complaint, and the district court agreed with them that the lease was properly issued and not subject to cancellation.  The article includes a link to the opinion, and the prior circuit court decision was noted here.

• Custer-Gallatin grazing

New case:  Western Watersheds Project v. Moore (D. Mont.)

On September 12, nine conservation organizations filed suit over the East Paradise grazing decision, which expanded livestock grazing in grizzly bear habitat on the Custer-Gallatin National Forest near Yellowstone National Park. The decision increases acreages and allows cattle to graze a month earlier than normal, allegedly increasing human-bear conflicts. The suit also names the U.S. Fish and Wildlife Service as a defendant for using out-of-date scientific information and failing to adequately consider the impacts of the grazing decision on grizzly bears.  The news release includes a link to the complaint, and this article includes maps.

• Mt. Graham red squirrels

New case:  Center for Biological Diversity v. Moore (D. Ariz.)

On September 13, the Center for Biological Diversity, Maricopa Audubon Society and Mount Graham Coalition sued the Forest Service and Fish and Wildlife Service for violating the Endangered Species Act when approving special use permits for an organizational camp (expired permit) and recreational cabins (2015 permit) on the Coronado National Forest in the only habitat for the endangered Mt. Graham red squirrel.  In the summer of 2017, the Frye Fire killed between 61-78% of the remaining red squirrel population and decimated a significant portion of its remaining habitat.  Consultation on both permits was completed in 2021.  The news release has a link to the complaint.

• West coast fisher listing 

New case:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (N.D. Cal.)

On September 13, the Center for Biological Diversity, Environmental Protection Information Center and Klamath-Siskiyou Wildlands Center sued the Fish and Wildlife Service for denying Endangered Species Act protections for fisher populations in southern Oregon and northern California when it listed other populations in the southern Sierra Nevada as threatened in 2020.  The challenge is based on plaintiffs’ interpretation of the best available science, and largely related to threats from logging and fire.  (The article has a link to the complaint.)

• Idaho water rights

Recently enacted Idaho water rights forfeiture laws create a state process where ranchers can potentially gain control of federal water rights already decided by a court. Ranchers have started using that process, and the Idaho Department of Water Resources this year, at the request of ranchers, initiated multiple actions against water rights claimed by the federal government based on those water rights not being put to beneficial use.

A lawsuit filed in June against Idaho and the Idaho Department of Water Resources by the U.S. Department of Justice contends that it does put the water to a beneficial use because it issues grazing permits to ranchers who in turn graze livestock that drink the water.  The federal government also argues that the state’s forfeiture procedure violates the U.S. Constitution’s supremacy clause, which states that federal law takes precedence over state law. The Justice Department also says the laws violate parts of the Idaho Constitution.  In a case with statewide ramifications for millions of acres of land in Idaho administered by the Forest Service and Bureau of Land Management, and their associated instream water rights, the Idaho legislature was granted intervention on September 15.

• Oregon state lands

The Oregon Supreme Court has declined to hear an appeal from 13 counties in a long-running $1 billion lawsuit over timber revenue and what constitutes “the greatest permanent value” when it comes to state forest management.  The decision leaves in place a lower court ruling saying that Oregon can manage forests for a range of values that include recreation, water quality and wildlife habitat — not just logging revenue.  The Oregon Department of Justice, which represented the state government in the case called the Supreme Court’s decision a “victory for Oregon’s environment and for sound forest management in general.”

• Forest fire caused by a lumber mill?

A lawsuit filed on September 8 in Sacramento County Superior Court on behalf of a family whose home was destroyed by the (aptly named) Mill Fire alleges that the Roseburg Forest Products mill in Weed failed to properly handle hot ash, which ignited a fire that burned 4,000 acres, killed two people and burned dozens of homes.

ESA LISTING NOTE

• Tricolored bat proposed listing

On September 14, the U. S. Fish and Wildlife Service proposed to list the tricolored bat as endangered, primarily due to the range-wide impacts of white-noise syndrome, caused by a deadly fungus affecting cave-dwelling bats across the continent.  Other threats include disturbance to bats in their roosting, foraging, commuting and wintering habitats and mortality at wind energy facilities. With regard to forests, the proposed rule said:

“While temporary or permanent suitable forested habitat loss may occur throughout the species’ range, impacts to tricolored bat typically occur at a more local scale (i.e., individuals and potentially colonies), and summer forested habitat continues to be widely available across the species’ range. Based on this information, forested habitat loss is not a major driver of the species’ status, and suitable forest habitat is not limiting for tricolored bat now nor is it likely to be limiting in the future. Therefore, we conclude that designating the forest habitat of the tricolored bat as critical habitat is not prudent.”

However, effects on the species would need to be consulted on for projects in bat habitat.  The tricolored bat is found east of the Rocky Mountains in 39 U.S. states and the District of Columbia.  This article provides more background and a link to the FWS announcement.