Jon Haber

John OIiver on trees as carbon offsets

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Here is John Oliver’s pop take on trees as carbon offsets.  (23 minutes.) He basically says that they essentially useless for mitigating climate change because they rarely protect forests from any human threats, and certainly do not provide protection commensurate with the carbon they allow to be released (so they may do more harm than good).  Rebuttal?

He also mentions that we could lose trees directly as a result of climate change, independent of any forest management (or lack of).  Climate change is the #2 reason for loss of forests according to this research on at-risk tree species:

https://nph.onlinelibrary.wiley.com/doi/10.1002/ppp3.10305

Here is an overview of the risks and an example of one species.

Here is an example of one forest.

Public Lands Litigation Summary – Late July/Early August, 2022

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In the only case where the Forest Service is a party …

On August 10, a federal district court approved an agreement between the U.S. Forest Service and two environmental groups that filed a lawsuit to stop the 50-mile Crow Creek Pipeline Project that partially crosses the Caribou-Targhee National Forest.  The Forest Service agreed to first conduct additional environmental studies.  Here is plaintiffs’ take:  “the government canceled the project without even waiting for a final court order.”

Other cases of possible interest …

Court decision in Fallon Paiute-Shoshone Tribe v. U. S. Department of the Interior (9th Cir.)

On July 25, the 9th Circuit Court of Appeals refused to bar construction of a Nevada geothermal plant that opponents say threatens to destroy a sacred site and drive the rare Dixie Valley toad to extinction. However, following the emergency listing of the toad under ESA, the developer has agreed to delay construction while consultation occurs between the BLM and Fish and Wildlife Service.  The district court case was discussed here, and remains pending.

New case: WildEarth Guardians v. Colorado Department of Public Health and Environment 

On July 26, WildEarth Guardians, Center for Biological Diversity, Sierra Club, High Country Conservation Advocates, and Wilderness Workshop sued in a state court to compel Colorado state agencies to comply with their mandatory duty to timely grant or deny the air pollution operating permit application submitted for the West Elk Coal Mine located on the Gunnison National Forest, as required by the Colorado Air Pollution Prevention and Control Act.  Under this state law, major polluters are required to obtain and comply with air pollution operating permits.  The state was required to either approve or deny a permit for the mine by September 2021.  The press release includes a link to the complaint.  We last discussed the West Elk Mine here.

  • Mt. Rushmore fireworks

On July 27, the 8th Circuit Court of Appeals dismissed an appeal by the Governor of South Dakota and 16 other intervenor states of the decision by the National Park Service to deny a permit for fireworks at Mt. Rushmore National Park in 2021 (which was upheld by the district court).  The case was now considered moot, but the court also upheld the requirement to obtain a permit, stating, “Nobody has a right to shoot off fireworks on someone else’s land.”  There is a link to the opinion in this entertaining take by the Dakota Free Press.  The original case was summarized here.

Court decision in Cascadia Wildlands v. Scott Timber Co. (D. Oregon).

On July 29, the district court enjoined three timber companies from logging on the Benson Ridge Tract, a private parcel of land (that used to be part of the Elliott State Forest) in the Coastal Range of Oregon, because the logging project would “take” marbled murrelets, a threatened species, in violation of section 9 of the ESA.  The court specifically upheld the determination that the site is occupied by marbled murrelets and that a 49-acre clearcut would result in harm.

Settlement agreement in Western Watersheds Project v. Feldhausen (D. Ariz.)

On August 1, The Bureau of Land Management and Fish and Wildlife Service agreed to reevaluate the impacts of the resource management plan’s livestock grazing decisions on plants and animals inside Arizona’s San Pedro Riparian National Conservation Area.  This will include preparing a biological assessment and biological opinion analyzing the impacts of the RMP proposal for additional grazing on the Huachuca water umbel, southwestern willow flycatcher, desert pupfish, Gila topminnow, northern Mexican gartersnake, yellow-billed cuckoo and Arizona eryngo.  The article has a link to the settlement agreement.  The complaint was summarized here.

Court decision in Western Organization of Resource Councils v. U. S. Bureau of Land Management (D. Mont.)

On August 3, the district court ordered the BLM to consider a no-leasing alternative and to disclose to the public the environmental and human health harms from the combustion of federal coal for the Miles City (MT) and Buffalo (WY) resource management plans in the Powder River Basin.  The news release contains a link to the opinion.

  • Gray wolves
(Photo by Matt Moyer/Getty Images)

New case:  Center for Biological Diversity v. USDI (D. Mont.)

On August 9, the CBD along with the Sierra Club, the Humane Society of the United States and the Humane Society Legislative Fund challenged the U.S. Fish and Wildlife Service’s failure to make a mandatory 1-year finding on whether the gray wolf warrants (re)designation as “threatened” or “endangered” under the ESA.  They claim laws passed by Idaho and Montana this past year have allowed for new and aggressive wolf-killing measures that are putting too much pressure on the species that was delisted in Idaho, Montana and Wyoming in 2011 and 2012.  The article has a link to the complaint.  (I like the expression on the woman’s face.)

New case:  Center for Biological Diversity v. Washington Department of Fish and Wildlife (Washington state court)

Also, on August 5, five conservation groups filed a lawsuit asking a Washington State court to enforce a governor’s order to enact wolf management rules.

On August 8, a federal district court in Seattle held that NOAA Fisheries had authorized Southeast Alaska’s chinook troll fishery at levels that the federal agency admits are pushing federally protected southern resident killer whales and wild chinook salmon closer to extinction.  The Court found that NOAA violated the ESA by improperly relying on uncertain mitigation measures in the form of hatchery production that “lack specific and binding plans, lack specific deadlines or otherwise-enforceable obligations, and are not subject to agency control or otherwise reasonably certain to occur.” The Court further found NOAA violated the ESA by relying on the supposed benefits to SRKWs from increasing hatchery production, without fully evaluating the harm those same hatchery increases will cause to native Chinook salmon populations in Puget Sound, the Columbia River, the Snake River, and the Willamette River. NOAA recognizes hatcheries and associated impacts as one of the top four factors contributing to the decline of wild salmon, along with overharvest, habitat loss, and hydroelectric dams.  Reduced reliance on hatcheries could lead to greater emphasis on habitat conditions, including waters on public lands.

Settlement agreement in Center for Biological Diversity v. U. S. Bureau of Land Management (C.D. Cal.)

On August 12, a legal agreement was reached to secure the permanent closure and restoration of 11 long-dormant oil wells along the Santa Barbara-San Luis Obispo County line inside the Carrizo Plain National Monument.   A proposed new permit for additional operations will not be granted by the BLM.  The news release has a link to the agreement.

 

Sensitive species and NFMA?

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Los Padres ForestWatch. The California spotted owl is listed as a Sensitive Species by the U.S. Forest Service and by the California Department of Fish and Game as a Species of Special Concern.

This question came up in the fuel treatment post yesterday, but it is worthy of its own post (wonky as it is).  I think there are some misconceptions out there about sensitive species.  This is without refreshing my memory (which I should do more often any more), but I was heavily involved in lots of this.

NFMA does not require identification or protection of sensitive species.  NFMA requires plant and animal diversity.  Habitat for viability is a requirement for diversity in the planning regulations (old and new).  Sensitive species have never been found in the planning regulations.  To the extent there was an implied regulatory requirement in the 1982 regulations, it was for viable populations of management indicator species (MIS).

“Sensitive species” was apparently created by the Forest Service (I’m guessing the Wildlife staff) as a means of both meeting the NFMA viability requirement and preventing listing under ESA, and requirements for sensitive species (including preparation of a Biological Evaluation) were to be applied to both plans and projects. The details may be found in FSM 2670 (which also addresses ESA requirements) and FSM 2620.  The current version of these is dated 2011, prior to the 2012 Planning Rule.  (The agency has frozen up in its efforts to update this manual direction.)

This led to a lot of confusion, even by judges, regarding what was required at the project level.  It sometimes appeared that parties/judges were saying that the NFMA viability requirement applied to each project (like ESA).  At one point (2004ish?), the Forest Service, issued an interpretive rule to clarify that the viability requirement in the 1982 planning regulation applied only to forest plan decisions (unless the plan imposed its own viability requirement on projects, which some did).

It also made this problem a focus of its efforts to produce a new planning rule.  Language now makes it clear that nothing in the 2012 Planning Rule applies to projects, and specifically the new requirements for species of conservation concern (SCC) apply only to forest plans (and projects must be consistent with what the plan says).

Meanwhile, forest plans that are being revised are following the new requirements for species of conservation concern. The Forest Service issued an internal letter to regional foresters on June 6, 2016 explaining that it would phase out the sensitive species designation. It recognized that, “As noted in the preamble to the 2012 planning rule, “[Regional Forester Sensitive Species] are…similar to species of conservation concern.”   It also stated that, “Applying both systems on the same administrative unit would be redundant.” Consequently, “Once a revised plan is in effect, the Regional Forester’s Sensitive Species list no longer applies to that unit.”

The letter acknowledges that a biological evaluation must still be prepared for a revised forest plan.  The letter doesn’t specifically instruct forests that have not revised their plans to keep preparing BEs for projects, but the Manual direction is still in place, so it is still official policy.

One observation I’ve made in reviewing forest plans revised under the 2012 Planning Rule is that sensitive species are often NOT considered “similar to species of conservation concern.”  Many sensitive species (with “viability concerns”) have not been designated SCC (“substantial concern about the species capability to persist over the long term in the plan area”) during forest planning.  Why is that?

The other thing I’ve seen when forest plans are being revised is that the Forest Service is not doing a very good job of explaining to the public that they are no longer going to have project analysis requirements for at-risk (but not listed) species separate from NEPA, and that some species they used to address at the project-level may not be addressed at all after the forest plan is revised.

What if we don’t want to protect our homes?

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We have discussed the role of home sites and homeowners in reducing wildfire risk.  In doing so I think we have made an implicit assumption that homeowners care about reducing wildfire risk.  Here is some evidence that protecting their homes from fires is less important to some people than protecting them from the government.

Oregon has adopted new legislation following the barrage of fire storms across Oregon in September 2020 that burned more than 1 million acres and destroyed 4,000 homes, many of them in rural areas.  It assigned tax lots one of five wildfire risk levels, and updated and refined the state’s “wildland-urban interface” map.  Starting next year, property owners on tax lots designated “high” or “extreme” risk that also fall within the updated wildland-urban interface must comply with minimum defensible space requirements.

“(The new map) generated so much pushback from angry homeowners that officials abruptly retracted it, saying they had not done enough local outreach before publicizing the ambitious project.

The rapid reversal, announced late Thursday, capped weeks of mounting frustration in mostly rural areas as the map emerged as a new flashpoint for conservatives who call it government overreach and “climate change evangelism.”

Fierce opposition bubbled up at community meetings prior to the state’s step back. Residents and some local officials worried it would lead to insurance rate increases or coverage loss, while others bridled at new mandates for defensible space and rules for future construction that flow from the map’s designations.

One information session in the conservative southwest corner of the state was canceled after someone threatened violence.”

There can certainly be legitimate concerns about factual errors, but this is being overshadowed by this new norm for how to respond to anything the government does that tells people what to do (especially if it’s because of climate change).  And just like Covid, if you leave it up to individual “personal responsibility,” some people’s lack of that will affect other people’s lives.  Achieving societal agreement on fuel reduction may be another casualty of this ongoing breakdown of social order.

Public lands litigation update – July 2022

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No Forest Service Summary since July 8.

FOREST SERVICE AND BLM CASES

Court decision in Friends of Animals v. Culver (D. D.C.)

On June 28, the district court found that the BLM had violated the Wild Free-Roaming Horses and Burros Act with its 2019 decision to remove over ten years (instead of “immediately”) a number of wild horses and burros from the Twin Peaks Herd Management Area, a range located along the California-Nevada Border.  However, the court did not vacate the decision pending remand for reconsideration because the decision complied with NEPA, and vacating the decision would harm the ecological interests that the decision would protect.  (This does not look like a win for the plaintiffs.)

New case:  Dakota Resource Council v. U. S. Department of the Interior (D. D.C.)

On June 28, ten conservation groups challenged BLM’s decision to approve the sale of 173 oil and gas lease parcels, encompassing 144,000 acres of public lands across eight western states, through an analysis contained in seven separate environmental assessments.  They allege failure to find that the cumulative effects of greenhouse gas pollution are significant, and that the BLM failed to take actions necessary to prevent the further unnecessary or undue degradation of public lands from acknowledged climate impacts, as required by FLPMA.  This would be the first onshore lease sale during the Biden Administration.  (The article includes a link to the complaint.)

Court decision in Concerned Friends of the Winema v. McKay (D. Or.)

On July 5, the district court ruled that the Forest Service adequately analyzed livestock impacts of an allotment management plan for the Antelope Allotment on the Fremont-Winema National Forest.  The court found compliance with ESA, NEPA and NFMA, including considering the effect of climate change on the Oregon spotted frog.  This article discusses the opinion.

Notice of Intent

On July 5, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands, Oregon Wild, and the Center for Biological Diversity notified the Oregon BLM and the Fish and Wildlife Service of their intent to sue regarding the BLM’s Integrated Vegetation Management for Resilient Lands Programmatic Environmental Assessment and the USFWS’s approval of the Programmatic Biological Opinion for Southwest Dry Forest Resilient Lands Activities.  Both address actions within a 684,185-acre treatment area in Oregon over ten years or more.  The ESA claims would relate to marbled murrelet and coastal marten.  The news release has a link to the notice, and the views of an Oregon State University fire specialist are here.

  • Willamette Lang Dam and Hwy 46 projects

Settlement in Cascadia Wildlands v. U. S. Forest Service (D. Or.)

A preliminary injunction was imposed in this case in December (here), and the parties settled the claim by the Forest Service agreeing to not to move forward with many of the planned timber sale units, modifying other units to reduce their size or to ensure they retain at least 60% canopy cover, and site visits and monitoring.  An attorney for Cascadia Wildlands was asked about the award of $115,000 in attorney fees:

While critics have claimed that environmental groups are motivated by attorney fee awards to file lawsuits, Cady characterized this allegation as “hilarious.”  “Nobody is in this game to get rich,” he said. “Environmental lawyers are not usually the ones with nice cars.”  If the nonprofits intended to maximize attorney fees, they would “litigate to the end” instead of settling, but that’s not their goal, Cady said. “It’s such a small amount of money overall that we don’t even budget for it,” he said.

(I guess my revisiting this site wasn’t allowed, but the source was this.)

  • Fremont-Winema thinning

New case:  Oregon Wild v. U. S. Forest Service (D. Or.)

On July 12, WildEarth Guardians and Oregon Wild filed a lawsuit against the Fremont-Winema National Forest’s use of a categorical exclusion for “timber stand and wildlife habitat improvement” to address the impacts of commercial thinning across thousands of acres of national forest as part of the South Warner, Bear Wallow, and Baby Bear logging projects.  This case was discussed here, which includes a link to the complaint.

  • Gila feral cattle

Settlement in New Mexico Cattle Growers Association v. Vilsack (D. N.M.)

A dismissal agreement announced in early July states that the U.S. Forest Service must give at least 75 days’ notice to ranchers and the public before any aerial killing of feral cattle in the Gila National Forest during the next three years.  According to this article, “Rough backcountry makes it difficult to catch the feral cows that were born in the wild and never domesticated.”  This case was introduced here.

  • Helena-Lewis and Clark revised forest plan

New lawsuit

On July 19, Helena Hunters and Anglers Association, Western Watersheds Project, the Sierra Club and WildEarth Guardians filed a lawsuit challenging the revised forest plan on the Helena-Lewis and Clark National Forest.  They object to the removal of ten wildlife standards that were in the 1986 forest plan that “provided important protections for big game habitat and security and benefited other species – including threatened grizzly bears and lynx – who also depend on sufficient hiding cover and low open-road densities.”  The case is discussed in this article.

OTHER CASES

Court decision in Friends of Gualala River v. Gualala Redwood Timber, LLC (N.D. Cal.)

On June 17, the district court did not find justification for a preliminary injunction against harvesting trees on private property under the Endangered Species Act because harm to the California red-legged frog, coho salmon and steelhead was not reasonably certain to occur.

  • Grant-Kohrs Ranch

New lawsuit

According to this article, Save the Bull Trout and Alliance for the Wild Rockies, say that the U.S. Department of the Interior and West Side Ditch Company are violating the Endangered Species Act in managing the Grant-Kohrs Ranch national historic site. “The DOI’s ‘cultural’ agricultural watering at the Grant-Kohrs Ranch has effectively dewatered the Upper Clark Fork River, resulting in not enough instream flow for the bull trout to survive,” the suit said.

  • Mexican gray wolves

Notice of Intent

On July 1, five conservation organizations provided a sixty-day notice of intent to sue the U.S. Fish & Wildlife Service for failing to comply with the ESA when it published the final §10(j) management rule for the experimental population of the Mexican wolf in response to a remand in a prior court case.  This press release includes a link to the notice.

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

On July 12, CBD and Defenders of Wildlife sued the Fish and Wildlife Service for violating NEPA when it adopted the same revised §10(j) management rule for Mexican wolves.  This article has a link to the new rule and the complaint.

One of the issues is the limited area on the Arizona-New Mexico border where wolves would be welcomed.  The lawsuit also states that the wild population is propped up by a supplemental feeding program, which uses strategically placed food caches to keep wolves from killing livestock.  (Maybe they could use them to catch the wild cows on the Gila?)

Court decision in County Commissioners of the County of Sierra v. U. S. Department of the Interior (D. N.M.)

On July 14, the district court dismissed a case filed against the Fish and Wildlife Service’s decision in March 2021 to translocate two adult Mexican wolves and their dependent pups that had been classified as “problem wolves” to a privately-owned ranch.  This was considered to be an “implementation action” of a prior decision, and therefore not reviewable by the court under the Administrative Procedure Act.

Court decision in Rocky Mountain Peace and Justice Center v. U. S. Fish and Wildlife Service (10th Cir.)

On July 19, the circuit court affirmed the district court holding that the FWS conducted a legally adequate study before allowing public trails at Rocky Flats National Wildlife Refuge, which encompasses part of a former nuclear weapons parts manufacturing site. According to reporting from the Denver Post (according to this article), the original appeal stated that the federal agency did not comply with the National Environmental Policy Act and the Endangered Species Act in opening the refuge to the public three years ago.

Court decision in Audubon Society of Portland v. Haaland (9th Cir.)

On July 22, the circuit court affirmed the district court in rejecting challenges to comprehensive conservation plans for three national wildlife refuges in the Klamath Basin National Wildlife Refuge Complex.  It found compliance with NEPA regarding pesticide applications on the Lower Klamath and Tule Lake Refuges.  It also found compliance with NEPA regarding the effects of grazing on the Clear Lake Refuge.  As to the sage-grouse, the panel held that the Conservation Plan discussed at length the potential effects of grazing on sage-grouse and why grazing would be beneficial to sage-grouse habitat.  The court found compliance with the Refuge Act by all of the plans.

Court decision in Conservation Northwest v. Commissioner of Public Lands (Supreme Court of Washington)

On July 22, the Washington court said the use of revenue generated by logging public lands may be constitutionally protected, but it’s not the only way to manage public land for the benefit of “all people,” as the state constitution states. The tethering of public schools to timber revenue has long been a heated controversy in Washington. “There appear to be myriad ways [the Department of Natural Resources] could choose to generate revenue from the state and forest board lands or otherwise put them to use for the benefit of the enumerated beneficiaries,” the state Supreme Court’s majority opinion stated.  More background may be found here.

A man arrested in connection with the Pipeline Fire was placed on a yearlong probation after he pleaded guilty Wednesday for starting a fire on the Coconino National Forest in June.  His lawyer Daniel Kaiser told The Arizona Republic he wanted to emphasize that Riser was sentenced for burning toilet paper, not for starting the Pipeline Fire.

 

 

Planning Update – July 2022

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Source: USFS, Draft Record of Decision, SNF Revised Land Management Plan June 2022

FOREST PLAN REVISIONS

The current schedule for national forests that are revising their plans is here:

Individual links are to Forest Service web pages.

  • On July 8, the Carson National Forest completed its review of objections and released its final revised forest plan FEIS and final ROD.  According to a news release, “The Carson worked closely with the Cibola and Santa Fe national forests to develop consistent plan components for traditional uses, including grazing, fuelwood, and acequias, to better serve the needs of tribes, community land grants, and subsistence-based rural communities.”  (Why not other consistent plan components to serve the needs of everyone else?)
  • On July 15, the Cibola National Forest completed its review of objections and released its final revised forest plan, FEIS and final ROD.  According to this article, “It covers everything from how thin they would like the forests to be and the balance of different types of trees to how they will better reduce the fuel load in areas where the forest meets homes. They also address climate change and how it has changed the conditions of the forest from fires and wind events to flooding and insect infestations. They also address grazing issues and the preservation of habitats of endangered species and the preservation of historic and culturally sensitive sites.”
  • On July 8, the Tonto National Forest reinitiated the 60-day objection period for its revised forest plan due to an incorrect website included in the original Federal Register notice in March.  “The document focuses on wildfire, recreation, the use of volunteers and other aspects that might affect policy, said Kenna Belsky of Tonto Forest.”
  • On June 14, the Sequoia and Sierra National Forests initiated the objection filing period for their revised forest plans, which will run till August 15, according to this article.

OTHER PLANNING

  • The Pew Charitable Trust has released reports on critical conservation areas for biodiversity, carbon storage, and climate resilience for the 17 national forests covered by the Northwest Forest Plan. These “high ecological value areas” are currently unprotected places that contain the top 10% of ecologically valuable lands within a given forest.  This analysis was previously discussed for the Ashley National Forest here.  The NFP forests have not yet initiated revision, but a Bioregional Assessment was prepared in 2020.
  • On July 13, the Bitterroot National Forest expanded the scope of a forest plan amendment beyond elk management to include old growth, coarse woody debris and snags.  According to the scoping letter (linked to this article), “Total plan revision has not yet begun for the Bitterroot National Forest, and it can be a years-long process; in the meantime, we can resolve certain long-standing problematic language regarding snags and coarse woody debris and improve our inventory of old growth forest stands by amending the current Bitterroot Forest Plan using the best current relevant science.”  This would include changing the definition of old growth, which was the subject of a recent court decision in Friends of the Clearwater v. Probert on the Nez Perce-Clearwater National Forest next door, discussed here.
  • On June 18, the BLM and Forest Service signed an inter-governmental cooperative agreement with five Native American tribes to “coordinat(e) on land use planning and implementation, as well as the development of long-term resource management and programmatic goals” for the Bears Ears National Monument.  According to this article, the five tribes plan to submit a land management plan for Bears Ears to the BLM. The agency will then incorporate the tribes’ recommendations into its own plan, which could take up to 18 months to finalize.  (Bears Ears has been discussed a few times on this blog.)
  • The Least-Conflict Solar Siting project is a voluntary, collaborative effort that brings stakeholders together to identify areas in the Columbia Plateau region where participants “would be least likely to oppose solar energy developments.”  While federal lands are mentioned, they don’t appear to be a focus, but it seems like this could provide useful information, and maybe a model for federal land planning efforts.
  • In February, the Biden Administration initiated a new interagency working group on reforming hardrock mining laws, regulations and permitting policies in the United States, which is ongoing. One of its “fundamental principles” is:  “Like other uses of public lands, mining should be governed by comprehensive federal land-use assessments and planning.”

NFS Litigation Weekly July 08, 2022

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The Forest Service summaries are here:  Litigation Weekly July 08 2022 Email

Individual links are to court documents.

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

On June 24, the district court reversed, remanded and enjoined the End of the World and Hungry Ridge Projects on the Nez Perce-Clearwater National Forest.  An EIS (instead of an EA) will be required for the End of the World Project and both projects failed to employ the forest plan’s definition of old growth or to properly analyze the cumulative effects on old growth.  We discussed that here.  The court did uphold other effects analysis, and the “no effect” determination for grizzly bears under ESA because they were not considered “occupied” by the species, even though bears may be present.

Court decision in Romey v. United States (D. Alaska)

On June 27, the district court granted the Forest Service motion to dismiss this case regarding a special use permit for the Wolf Creek Boatworks on the Tongass National Forest. The court determined that the plaintiffs lack standing because a land exchange had already taken place.

New case:  International Society for the Protection of Mustangs and Burros v. U.S. Department of Agriculture (D. Ariz.)

On June 28, 2022, the plaintiff filed a complaint alleging violation of NEPA (improper use of a categorical exclusion), the Wild Free-Roaming Horses and Burros Act of 1971, and the APA, following a March 21, 2022, notice of a planned capturing and removal of up to 20 feral horses on the Apache Sitgreaves National Forest.

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

On June 30, CBD, the Yaak Valley Resource Council and WildEarth Guardians filed a complaint against the Black Ram Project on the Kootenai National Forest.  It alleges NEPA violations related to grizzly bears and climate change and failure to prepare an EIS, and failure to comply with forest plan requirements for wild and scenic rivers and old growth.  We discussed that here.  Plaintiffs also notified the Forest Service and Fish and Wildlife Service of their intent to sue regarding effects on grizzly bears.

Court decision in Center for Biological Diversity v. Haaland and State of California v. Haaland (N.D. Cal.)

On July 5, the district court vacated the 2019 Endangered Species Act rules promulgated by the Trump Administration.  The Blanket Rule Repeal, 84 Fed. Reg. 44,753, eliminated the FWS’s former policy of automatically extending to threatened species the protections against “take” that Section 9 automatically affords to endangered species. And the Interagency Consultation Rule, 84 Fed. Reg. 44,976, changed how the Services work with federal agencies to prevent proposed agency actions that could harm listed species or their critical habitat.

BLOGGER’S BONUS

On June 24, 2022, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service published a final rule rescinding the Trump administration’s 2020 final rule defining “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  We previously discussed this here.

The U.S. Department of Agriculture’s Wildlife Services has agreed to settle a lawsuit by completing an extensive environmental study on its methods of predator control in Idaho, and also agreed not to use poison gas cartridges or fire to kill wolf pups in dens in Idaho until the study is finished at the end of 2024.  This extends an existing suspension of predator control in wilderness and other areas to species other than wolves, and precludes Wildlife Services from killing predators to bolster deer and elk populations, pending the environmental analysis.  The Forest Service and BLM were also defendants in this case.

On June 28, the district court found that the proposed logging of the Benson Ridge parcel (a private parcel of land Defendants purchased from the State of Oregon, formerly part of the Elliott State Forest) would harm and harass threatened marbled murrelets, in violation of the federal Endangered Species Act prohibition against incidental take of listed species in the absence of a permit from the listing agency. The court’s ruling permanently enjoins logging of the occupied murrelet habitat.  The news release has a link to the opinion.  (This is the case referred to in Bob Zybach’s comments about attorney fees here.)  In response to a 2016 lawsuit, the Oregon Board of Forestry is in the process of developing rules to protect murrelet sites on state and private timber lands, which could lead to a permit for incidental take.

NFS Litigation Weekly July 1, 2022

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Here is the Forest Service summary:  Litigation Weekly July 01 2022 Email

Other links are to court documents.

Court decision in Apache Stronghold v. U.S Department of Agriculture, (9th Cir.)

On June 24, the 9th Circuit Court of Appeals affirmed the District Court of Arizona’s decision denying plaintiff’s motion for a preliminary injunction against the Oak Flat Resolution Copper land exchange on the Tonto National Forest.  The case concerns the alleged violation of the Religious Freedom Restoration Act, the Free Exercise Clause of the Constitution’s First Amendment, and a trust obligation imposed on the United States by the 1892 Treaty of Santa Fe between the Apache and the United States.

Court decision in Mountain Communities for Fire Safety v. Elliott (9th Cir.)

On June 21, the 9th Circuit Court of Appeals denied petition for rehearing en banc submitted by plaintiffs. The case concerns the use of categorical exclusion 6 (for timber stand and wildlife improvement with commercial thinning) for the Cuddy Valley Project on the Los Padres National Forest, which was summarized here.

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

On June 16, the Eastern District of California issued a favorable decision to the Forest Service. This case concerns the combined efforts of the State of California, U.S. Housing and Urban Development, and the Forest Service with regard to the 2016 Rim Fire Recovery and Restoration Project on the Stanislaus National Forest and the California Biomass Project. The court determined the 2016 Rim Fire Project activities had already been completed and no new environmental impact statement (EIS) was needed by the State of California, and the use of the relief act funding was permissible.

New case against the National Park Service:  Earth Island Institute v. Muldoon (E.D. Cal.)

On June 13, the plaintiff filed a complaint against the National Park Service regarding its Biomass Removal and Thinning Project (for removal of hazardous fuels) to protect Sequoias in the Yosemite National Park. The plaintiff alleges the Agency improperly used a categorical exclusion (CE) in authorizing the project.

BLOGGER’S BONUS

The last “weekly” we received was dated June 10, so here’s some other things that have happened since then.

Court decision in WildEarth Guardians v. Bail (E.D. Wash.)

On June 7, the district court upheld the Forest Service’s authorization of domestic sheep grazing on allotments within the Okanogan-Wenatchee National Forest.  The court relied on a 2014 amendment of the Federal Land Management and Policy Act that allowed grazing to continue pending completing NEPA analysis for permit renewals to hold that, “Because the Forest Service has not completed its final analysis, there is no final decision for this Court to review at this time.”

New case:  Greater Hells Canyon Council v. Wilkes (D. Or.)

On June 14, six environmental organizations filed a complaint against the “Forest Plans Amendment to Forest Management Direction for Large Diameter Trees in Eastern Oregon and Southeastern Washington,” which replaces the 1995 “Eastside Screens” amendment with guidelines allowing more harvesting of large trees on six national forests.  Plaintiffs allege NEPA violations of inadequate effects analysis and failure to prepare an EIS, and NFMA violations from lack of an administrative objection process and failure to follow procedures for “significant” changes in the forest plans.  We discussed this here.

New case against the BLM:  Center for Biological Diversity v. U. S. Department of the Interior (D. D.C.)

On June 15, the Center for Biological Diversity and WildEarth Guardians filed a complaint challenging at least 3,535 applications for permit to drill (“APDs”) for oil and gas in New Mexico’s Permian Basin and Wyoming’s Powder River Basin in violation of NEPA, ESA, and FLPMA and those statutes’ implementing regulations.  (The article includes a link to the 254-page complaint.)

Court decision in Natural Resources Defense Council v. U. S. Environmental Protection Agency (9th Cir.)

On June 17, the circuit court ruled that the EPA’s determination that glyphosate (the active ingredient in the herbicide Roundup) was not likely to be carcinogenic was not supported by substantial evidence.  It also held that EPA’s registration review decision under FIFRA was an “action” that triggered the ESA’s consultation requirement, which the agency admitted it did not comply with.  The court did not vacate the decision while further analysis occurs as required by FIFRA by October 2022.  (The article includes a link to the opinion.)

 

NFS Litigation Weekly June 10, 2022

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Maybe the Forest Service weekly summaries are quarterly now – the last one we received was dated March 11.

Here is the summary:  “Nothing to Report.”

 

BLOGGER’S BONUS

We have had several discussions of the “villainous” behavior of oil and gas companies.  The harm caused by their role in climate change misinformation is being litigated in a number of lawsuits across the country.  The defendants have initially hung them up for as long as five years arguing against hearing the cases in state and local courts.  If companies can keep the lawsuits in federal courts, they’re more likely to be dismissed under federal laws such as the Clean Air Act.  On February 28, a Hawaii court became the first to decide that state courts are the appropriate venue.

That long-fought battle over the appropriate venue is evidence of the lengths companies will go to in throwing up hurdles before trial, Lewis & Clark Law School professor Lisa Benjamin said.

“The disclosure of deceptive information and misinformation will be one of the most reputational damaging parts of this litigation, even if the cases themselves are not successful, so I think companies will be very sensitive to that,” Benjamin said.

Another case filed by the city of Baltimore is currently in federal court to determine which court it should be in.

A federal district court issued an order on May 17 requiring a private ranch to allow the public and the government to use Teaters Road to access the BLM North Fork Crooked River area and the Ochoco National Forest while litigation is ongoing.

Cascadia Wildlands v. Adcock (D. Or.)

On May 25, Cascadia Wildlands and Oregon Wild challenged the Bureau of Land Management’s Siuslaw Field Office’s plan to log public lands across seven watersheds in Oregon in the agency’s “N126 Late Successional Reserve Landscape Plan Project” without completing an environmental impact statement.  The plan is designed to generate 380 million board feet of lumber.  Logging of over 16,000 acres of Late-Successional Reserves and Riparian Reserves is also alleged to be inconsistent with the applicable resource management plan and therefore a violation of the Federal Land Policy and Management Act.  (The news release includes a link to the complaint.)

  • Sierra fishers

Unite the Parks v. U. S. Forest Service (E.D. Cal.)

In late May, the district court again denied a request by conservation groups to stop 31 logging projects in Pacific fisher habitat on the Sierra and Sequoia national forests after the Forest Service completed further review on remand from the Ninth Circuit (which was discussed here).

The Idaho Conservation League and Greater Yellowstone Coalition filed a lawsuit in a U.S. district court in early June to stop Excellon Idaho Gold’s Kilgore Gold Exploration Project in the Caribou-Targhee National Forest west of Yellowstone National Park.  The Forest Service had produced a new plan after losing a lawsuit in 2018.  Plaintiffs allege violations of the Forest Service Organic Act and NEPA, where the Forest Service used the Trump administration’s 2020 rewrite of the CEQ regulations and did not prepare an EIS.

The U. S. Supreme Court announced June 6 it would hear Wilkins v. United States, a case regarding the Quiet Title Act, next term.  The plaintiffs in the case claim that the Forest Service exceeded the scope of a previously agreed upon easement by providing public access across their properties to the Bitterroot National Forest.  The Supreme Court will decide whether a statute of limitations precludes a court from considering such claims.  The Ninth Circuit opinion is here.

On June 7, the U. S. Fish and Wildlife Service proposed a change in its rule governing the reintroduction of listed species.  (The article includes a link to the proposed rule.)

“To provide for the conservation of certain species, we have concluded that it may be increasingly necessary and appropriate to establish experimental populations outside of their historical range if the ability of the habitat to support one or more life history stages has been reduced due to threats, such as climate change or invasive species.”

Center for Biological Diversity v. Williams (E.D. Ill.)

On June 8, The Center for Biological Diversity and Hoosier Environmental Council sued the U.S. Fish and Wildlife Service for denying Endangered Species Act protections to the Kirtland’s snake.  It is found in forested riparian areas in Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio and Tennessee (and has been extirpated in Wisconsin and Pennsylvania, as well as over half the counties where they were once found).  (The press release has a link to the complaint.)

Almond Alliance of California v. Fish and Game Commission 

On May 31, reporters were handed a gift by a California court:

Is a bee a fish? California court says it could be

California Court Rules that Bees are a Type of Fish

When Is a Bumblebee a Fish? When a California Court Says So

“If it looks like a duck, walks like a duck and quacks like a duck, it’s probably a duck. But a new California court ruling means that if it looks like a bee, flies like a bee and buzzes like a bee — it’s a fish.”

California’s Third Appellate District Court of Appeal ruled that bees could be protected under a state law to protect endangered species because bees meet the state’s legal definition of fish.”

Read on for a lesson in how a court interprets laws and regulations.