Litigation

I’ve been out hobnobbing with the Coastal Elite at a Breakthrough conference and visiting family, so I’m way behind…

Chevron case

I’m puzzled by the news coverage of this case. It’s always interesting to try to narrow the gap between what news sources tell us and our own lived experience. Here’s an example from CBS:

Proponents of the doctrine have argued that agencies have the expertise and experience to address gaps in the laws enacted by Congress, especially when it comes to administering programs that serve broad swaths of the population. Overturning Chevron would make it more difficult for the federal government to implement the laws passed by Congress, its backers warned.

Kagan, in dissent, accused the conservative majority of usurping the power the legislative branch gave to agencies to make policy decisions and putting judges in the center of the administrative process on all manner of subjects.

“What actions can be taken to address climate change or other environmental challenges? What will the nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.?” she wrote. “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role.”

The Biden administration urged the Supreme Court to leave Chevron deference intact, calling it a “bedrock principle of administrative law.” Justice Department lawyers argued that the framework allows experts at federal agencies to interpret statutes, and have said they, not judges, are better suited to respond to ambiguities in a law.

Hmm. judges in the “center of administrative processes on all manner of subjects.” You mean like whether BLM used the appropriate air quality model in its EIS? Or whether the scientific findings of effectiveness of certain forests treatments are controversial? It’s hard to imagine them being more involved than they already are. But maybe our federal lands litigation is unique. Here’s NRDC:

Sometimes Congress is purposefully inexplicit in order to give the subject-area experts space to decide how best to implement a regulation. For example, an agency made up of occupational safety specialists should already be well equipped to decide how to handle the technical, nuts-and-bolts aspects of imposing workplace protections—rules about equipment usage, say, or the need for periodic employee rest breaks—without the meddling of judges. And given the complexity of weather patterns, EPA scientists are better equipped than judges at determining how much a state should curb its air pollution in order to protect people living in other states downwind.

It’s hard not to read this and add “and Forest Service experts are better than federal judges in determining how to protect people from wildfires.” I guess, according to NRDC, judges only “meddle” when they get involved with NRDC-approved agencies like EPA.

The only thing I could think of was that the Chevron case related specifically to “interpreting statutes” and maybe that’s not exactly what judges in our kinds of cases are doing. When the article says:

limiting the framework would threaten the ability of federal agencies to craft regulations on issues like the environment, nuclear energy or health care.

It seems like judges already get involved when groups litigate regulations (which they do regularly). When folks don’t like proposed regulations, they often say that they are going against the statute at issue.

Hopefully one of legal folks out there can explain this in layperson’s language and give us some ideas of what changes we might expect. Personally, I think it would be a good use of time for legal and agency folks to review any proposed statutes for Possible Problematic Ambiguities with an eye to correcting any problems before they start.

To start your week (and month) off right …

FOREST SERVICE

• Umatilla NF ski area permit

Court decision in Murray v. United States (Court of Claims)

On June 5, 2023, the Court of Federal Claims dismissed this breach of contract claim involving an authorization by the Umatilla National Forest for snowmobile use in the parking lot of the Spout Springs ski area (the plaintiffs). The record indicated that “material interference” by snowmobiling with the contract began at least by 2013, so the lawsuit was not filed within the statute of limitations, and the case was dismissed.  (This case was introduced here, and someone inquired about the results, so I included it in this update.)

• Colville NF Vegetation management project

New lawsuit

On May 14, the Alliance for the Wild Rockies filed a lawsuit in U.S. District Court for the Eastern District of Washington seeking to stop the Sxwutn-Kaniksu Connections Trail Project, which calls for logging and burning on more than 36,000 acres over 20 years on the Colville National Forest.   The Forest partnered with the Kalispel Tribe of Indians, whose reservation adjoins the Forest.   The Forest Service has offered three timber sales that are part of the project, according to the complaint.  The plaintiff’s problems with the Project are described here.  We discussed this here.

• Coronado NF mines

Court decision in Patagonia Area Resource Alliance v. U. S. Forest Service (9^th Cir.)

On May 15, the appeals court affirmed the district court’s denial of a preliminary injunction regarding two mines on the Coronado National Forest.  The court found that plaintiffs were unlikely to succeed on the merits of claims related to the cumulative effects of the Sunnyside and Flux Canyon projects on the Mexican spotted owl and groundwater.

• White Mountain NF logging

New lawsuit:  Standing Trees v. U. S. Forest Service (D. New Hampshire)

On May 16, Standing Trees filed a lawsuit asking the court to halt the Tarleton and Peabody West integrated resource projects on the White Mountain National Forest.  The plaintiff alleges that the Forest Service failed to take the hard look at alternatives and effects as required by NEPA before approving nearly 3,000 acres of commercial logging based on an EA, and that the projects violated the forest plan.  Plaintiffs are concerned about  water quality, carbon storage, biodiversity, endangered species, mature and old growth forests, and flood resiliency.  (Here is additional background.)

• Sawtooth NF ditch diversion ownership

Court decision in Hansen v. U.S.A. (D. Idaho)

Court decision in Mizer v. U.S.A (D. Idaho)

On May 20, the district court dismissed two cases with claims of ditch easement ownership by private parties who sought to prevent the Forest Service from subjecting the ditches on national forest lands to Endangered Species Act requirements.

• Inyo NF mineral exploration

Court decision in Friends of the Inyo v. U. S. Forest Service (9^th Cir.)

On May 21, the circuit court reversed a district court holding and enjoined exploratory drilling on the Inyo National Forest.  The court found, based on Forest Service mineral regulations, that associated monitoring and restoration was part of the project.  Since that would continue for more than one year, a categorical exclusion for drilling projects was not available.  Neither was a CE that would have covered the restoration component, but not the drilling.  The court ultimately found that the Forest Service regulation establishing categorical exclusions “unambiguously prohibits combining CEs to approve a proposed action where no single CE could cover the proposed action alone.”  Plaintiffs were concerned about the bi-state sage-grouse and water for the endangered Owens tui chub. (The article includes a link to the opinion, which we also discussed here.)

• Monongahela NF coal

Court transfer in Center for Biological Diversity v. U. S. Forest Service (now S.D. West Virginia)

On May 21, the federal district court for the District of Columbia granted the government’s request to transfer this case (introduced here) to the Southern District of West Virginia, holding that, “The final factor—the local interest in deciding local controversies at home—is ‘perhaps [the] most important factor’ (citing another case).  Moreover, “Just because a case “involves federal laws and could result in a decision with ‘national implications,’ these implications do not outweigh the significant interest of [local] residents” (citing another case).  (This is why we don’t see many national forest decisions litigated in the D. C. court.)

• Tonto NF wild horses

New lawsuit

The Center for Biological Diversity has filed a second lawsuit against the Tonto National Forest’s management of the Salt River herd of wild horses.  The first (discussed here) was dismissed with the expectation that it would be refiled after an intergovernmental agreement was renewed.

• Lincoln NF grazing

Notice of Intent to Sue under ESA

The Center for Biological Diversity has notified the Forest Service and Fish and Wildlife Service of its intent to sue them regarding (1) U.S. Fish and Wildlife Service’s December 29, 2023, Biological Opinion for the Reinitiation for Ongoing Livestock Management on the Sacramento and Dry Canyon Allotments, and (2) U.S. Forest Service’s reliance on this Biological Opinion on the Lincoln National Forest.  Riparian areas in the Sacramento Mountains are critical habitat for the endangered New Mexico meadow jumping mouse and Mexican spotted owl.  This is the third such notice involving these areas.

BLM

• Drilling fees

New lawsuit:  Western Energy Alliance v. Haaland (D. Wyoming)

On May 15, six oil and gas associations sued to overturn the BLM’s regulation that would raise royalty rates and toughen protection and cleanup requirements on public land.  They claim procedural violations in adopting the regulation and substantive violation of the Federal Land Management and Policy Act’s “obligations” to promote oil and gas development.   Additional background is here.

• Powder River coal

Post-litigation agency decision (and lawsuit promised)

On May 16, the BLM issued its final supplemental environmental impact statement and proposed amendment to its Buffalo Field Office land use plan, selecting a “no future coal leasing alternative” for the Powder River Basin in Wyoming and Montana.  The BLM was required by a 2022 court order to reevaluate its land use plan after local conservation groups successfully argued it had not fully considered environmental, climate and human health impacts. The area is the largest coal producer in the U. S., and existing leases would continue for decades.

• Oregon BLM logging

Magistrate’s recommendation in Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

On May 24, the magistrate judge found that the BLM should have prepared an EIS for the “Integrated Vegetation Management for Resilient Land Program” (875,290 acres in southwestern Oregon). This was in part the result of the uncertainty about effects associated with the flexibility incorporated into the decision.

The judge also found that the “commercial logging portions” of the IVM Program violated FLPMA because they are inconsistent with the governing resource management plan.  The plan includes a standard that directs the BLM to apply logging treatments within late-successional reserves only if they do not preclude or delay the development of northern spotted owl nesting or roosting habitat by 20 years or more.  The BLM had tried to claim that the standard didn’t apply because this project promoted forest health.  The magistrate found that it “clearly applies to any proposed actions in the LSRs, irrespective of BLM’s stated purpose.”

The immediate effect is on the 830-acre Late Mungers commercial thinning project.  The scope of relief is to be determined later.   (The article includes a link to the magistrate’s findings and recommendations, which we also discussed here.)

ENDANGERED SPECIES

• Coastal marten critical habitat

On May 29, the U. S. Fish and Wildlife Service designated critical habitat for the coastal distinct population segment of Pacific marten.  It includes federal lands in southwestern Oregon and northwestern California, but land owned by timber company Green Diamond Resources was ultimately excluded from the designation in exchange for the company’s agreement to perform monitoring and create a reserve. Yurok and Karuk tribal land was also excluded.  This follows a lawsuit from the Center for Biological Diversity over delaying the decision.  The article includes a link to the Federal Register notice.

OTHER

• Deschutes County land use

Court decision by the Oregon Court of Appeals

The state appeals court overturned a decision by the Oregon Land Use Board of Appeals that had approved a destination resort (on private land).  The court found that Deschutes County officials did not properly take into account the effects of water use on off-reservation treaty fishing rights of several Native American tribes.

• Red Rocks NWR grazing

New lawsuit

On May 14, WildEarth Guardians and Western Watersheds Project filed a complaint in the Montana federal district court focusing on livestock grazing permitted by the U. S. Fish and Wildlife Service in Red Rock Lakes National Wildlife Refuge in Montana.  The complaint alleges that the FWS “continues to renew commercial grazing permits that rely on a nearly three-decade-old environmental analysis.”  Concerns include effects on grizzly bears and Arctic grayling.  (A lawsuit against the FWS decision to not list the grayling as threatened or endangered is pending – described here.)

• North Carolina wildlife refuge chemical treatment

New lawsuit:  Defenders of Wildlife v. U. S. Fish and Wildlife Service (E.D. North Carolina)

On May 20, Defenders of Wildlife and the Sierra Club challenged a decision by the U. S. Fish and Wildlife Service to allow an experimental algaecide treatment using a toxic-to-birds product at Mattamuskeet National Wildlife Refuge in North Carolina.  The complaint alleges a violation of the National Wildlife Refuge System Improvement Act and several violations of NEPA.  It also included several claims that the promulgation of the 2020 (Trump Administration) changes to the CEQ NEPA regulations (which were in effect when this decision was made, but have since been replaced) violated the APA.

While this is normally Jon’s bailiwick, this settlement is of particular interest. Here’s the article from the Daily Montanan, without a paywall.

This story describes a settlement of litigation on a project in Montana.  It would appear to an outsider, and by Garrity’s own claims as reported (I bolded below), that their organization’s views had an outsized role in determining on-the-ground specifics of projects.  Once again, the way it works is that DOJ gets credit for settling..the Forest Service gets credit for doing things, so it appears that different federal agencies have different goals.  For folks relatively new to TSW,  I wrote a post  in 2011 on Chief Jack Ward Thomas’s  experience at being overruled by DOJ:

The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.

Now I don’t have any insider information about this particular settlement, so perhaps this was not the case with this one.  From the news article:

Under the agreement, accepted by federal district court Judge Dana Christensen, the United States Forest Service can still move forward with aspects of the massive plan, including the Crouching Trout Timber sale, which authorizes nearly 25 miles of temporary or current road construction. The Crouching Trout timber portion covers approximately 1,600 acres.

Originally the project touched three Montana counties — Lewis and Clark, Meagher and Broadwater counties — and called for more than 53,000 acres of tree cutting and burning, 6,669 acres of commercial burning, and 45,934 acres of burning, plus more than 100 miles of road building. The groups had argued in federal court that the project was illegal and could disrupt critical habitat for several species.

The project was originally slated as a 20-year project in the Helena-Lewis and Clark National Forest and the Big Belt Mountain Range.

As part of the agreement, the Forest Service can continue with the “associated activities” in the Crouching Trout Timber sale. The service also agrees to limit prescribed burning to the “inventoried wilderness areas” of no more than 25% of any area.

The U.S. Forest Service also agreed to produce annual summaries of the prescribed burning in the Middleman Project, “including units where burning has occurred and the acres burned.”

The U.S. Forest Service also agreed to a $39,000 lump sum payment to settle claims of attorneys’ fees.

Previously, the conservation groups had argued that the central Montana land was a key part of grizzly bears’ habitat and made it easier for “genetic exchange” between the populations of Yellowstone and Glacier National Park areas.

“We are thrilled that the Forest Service agreed to settle this case,” said Mike Garrity, executive director for the Alliance of the Wild Rockies. “We stopped over 100 miles of road construction and reconstruction in the forest, and we stopped over 5,000 acres of commercial logging in lynx and grizzly habitat.”

I’ve looked at the Board of Alliance for the Wild Rockies and they seem like nice people.  There appear to be two Montanans, a Utahn, and an Idahoan.  It’s not clear to me who funded the lawsuit.

Here’s a link to their 990. It looks like the source of their funding is restricted, but maybe I’m reading it wrong.

My point is not that folks shouldn’t have views. It’s not even that rich people shouldn’t fund whatever they want, through the processes like 501c3s and c4s, that we have in this country.

My point is about justice.  Some people’s views count much more than others, apparently. Possibly people (funders) who have never set foot in Montana.  They are not political folks who have some accountability to the broader (Montana) public via elections.  We can’t even examine their diversity in the terms we usually use.

As far as we know, they (nor the DOJ) folks haven’t read nor considered public comments on the project.

I haven’t mapped the project itself, but certainly parts of  Lewis and Clark County are identified as disadvantaged in the CEQ Climate and Economic Justice screening tool.  So I guess there is an environmental justice perspective as well.  We need to listen to the voices of those communities, and that’s a major push for this Administration.. but they were not in on the settlement discussion. Maybe this is another case in which agencies are not aligned.

Interestingly, AWR has a page about its supporters.  Senator Sheldon Whitehouse from Montana, Reps Raul Grijalva from Arizona, Carolyn Maloney from New York, Jimmy Carter, Carole King (Montanan), and Gloria Estefan.

Now, I’ve heard the argument that they are federal lands, and so anyone across the country should have an equal vote on what happens.. as one EPA senior executive said to me “an apartment dweller in New York should have an equal voice to a resident of Delta” (we were in Delta, discussing a project on the GM).

I call that the “property rights” argument.  But this is not that.

Funders we don’t know, from where we don’t know, whom no one elected, are effectively setting policy for a piece of the country, with those policies having an outsized influence on local residents.  Their intentions are noble. I agree. But noble intentions combined with political power don’t always work out so well for ordinary people, as some of us older folks recall from 20th century history.

FOREST SERVICE

• Shasta Trinity NF logging project

New (to me) lawsuit

Last fall, Safe Alternatives for our Forest Environment, Conservation Congress and Klamath Forest Alliance sued the Shasta Trinity National Forest for its decision to approve the McFarland Project using a categorical exclusion for “wildlife habitat improvement.”  According to plaintiffs, the project would include commercial logging of over 2000 acres, most of which is in a late successional reserve that supports “one of the few successful breeding pairs of the northern spotted owl left in the Shasta Trinity National Forest.”

• San Juan NF water diversion

Court decision in Purgatory Recreation I, LLC v. United States (D. Colorado)

The substantive issue in this case is whether the Purgatory ski resort retained a right to an easement to divert and carry water across national forest land when it conveyed that land to the Forest Service as part of a land exchange.  In a quiet title action, the Forest Service objected on the basis that the diversion could detrimentally impact the native cutthroat trout population.  On April 15, the court held that, since the land exchange was completed in 1991, and Purgatory should have been aware at that time that there would be no easement, the 12-year statute of limitations for proceeding under the Quiet Title Act had not been met.  This doesn’t foreclose Purgatory using other means to access its water right.  Here is the court opinion.

• Helena-Lewis and Clark NF vegetation project

Settlement

The parties have settled a case filed in September by Native Ecosystems Council and Alliance for the Wild Rockies against the Middleman Project on the Helena-Lewis and Clark National Forest.  The Forest can implement parts of the project that include 4.1 miles of temporary road construction and about 21 miles of road reconstruction, but will forego commercial timber harvest not already under contract.  The settlement also limits prescribed burning.

According to plaintiffs, “The settlement stops over 110 miles of road construction/reconstruction and over 5,000 acres of commercial logging in lynx and grizzly habitat.”  Michael Garrity is also reported to have said that while he appreciated the Forest Service settling the case, he wished they would have listened to the plaintiffs’ concerns when they commented on the project instead of forcing the issue to court.

• Nantahala-Pisgah NF revised forest plan

New lawsuit:  Defenders of Wildlife v. U. S. Forest Service (D. North Carolina)

On April 18, Defenders of Wildlife, MountainTrue, Sierra Club and Center for Biological Diversity filed a lawsuit against the revised forest plan for the Nantahala-Pisgah National Forest.  The complaint alleges multiple violations of the Endangered Species Act with regard to the effects of the plan on four endangered bat species: the northern long-eared bat, the Indiana bat, the Virginia big-eared bat, and the gray bat.  Plaintiffs claim that the Forest provided misleading information to the Fish and Wildlife Service, and the FWS failed to consider the best available scientific information and drew arbitrary conclusions in its biological opinion, which plaintiffs seek to vacate.  A link to the complaint is provided.

• Rio Grande NF Village at Wolf Creek

Court decision in Rocky Mountain Wild v. Dallas (10^th Circuit)

On April 19, the circuit court reversed the district court and upheld the 2019 Forest Service ROD and 2018 FWS Biological Opinion under ANILCA, NEPA, and the ESA, affirming the USFS’s grant of a right-of-way across Rio Grande National Forest land so that a private owner could develop a ski village on its own land.  This article reviews the long history of the case.  Plaintiffs said the developers still have other steps to complete before they can begin work, and a “concerned local citizenry will be actively engaged.”  Here is the court’s opinion.

• Ashley NF aspen project

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

On April 24, the Center for Biological Diversity, Yellowstone to Uintas Connection, Alliance for the Wild Rockies and Native Ecosystems Council sued the Forest Service over the Ashley National Forest’s Aspen Restoration Project.  They allege it violates the Roadless Rule as well as NEPA.  With regard to the Roadless Rule, which requires that trees removed must be “generally small diameter,” the complaint says, “It places no limits on the size of trees to be removed, nor does it otherwise demonstrate or ensure that only generally small diameter trees would be removed. The Forest Service ignored repeated public requests that the agency explain how the project would comply with the Roadless Rule.”  Plaintiffs claim that the Forest Service did not provide details for the project necessary to determine compliance.  This press release includes a link to the complaint.

BLM

• Utah BLM wild horse plans

Court decision

A district court halted BLM’s practice of removing wild horses in areas where the agency has reached its planned population for the area.  The BLM had developed ten-year management plans for two areas, authorizing roundups for “maintenance,” even after achieving appropriate management levels.  The court said that new plans with public participation are necessary in this situation.  (Best play on words award, from plaintiffs:  “I’m hopeful that this decision will pull back on the BLM’s unbridled discretion to remove horses …”)

• Arizona BLM SunZia transmission line

Court decision in Tohono O’odham Nation v. Department of the Interior (D. Arizona)

On April 16, the district court denied a preliminary injunction to halt construction on 50 miles of the 550-mile SunZia power transmission line from windfarms through the San Pedro River Valley (recently discussed here).  The court held that the tribes waited too long to challenge the NEPA sufficiency of the 2015 decision.  As for the National Historic Preservation Act, the court held, “BLM (1) complied with its obligation to identify historic properties, (2) considered measures to avoid adverse impacts to historic properties, and (3) consulted with Plaintiff Tribes during each phase of the PA.”  The court’s opinion is here.

• BLM Public Lands Rule

“Notice of intent to sue”

An NOI is required by the Endangered Species Act, but not for other types of claims we usually see related to public lands.  The idea is to give the agency a chance to change its ways before being confronted in court.  That doesn’t seem likely with the recently released BLM Public Lands Rule – at least until after the election, but they are getting plenty of “We’ll see you in court” warnings.  From the Governor of Utah:

“The added layers of red tape and federal bureaucracy embedded in the BLM’s Public Lands Rule create new roadblocks to conservation work. The health of Utah’s lands and wildlife will suffer as a result. This rule is contrary to the bedrock principle of ‘multiple-use’ in the BLM’s governing law, the Federal Land Policy and Management Act.”

It will be interesting to see what specific legal claims they’ll make, given that the “multiple-use” requirement has always been interpreted to allow a lot of discretion, and the agency should get a lot of deference regarding what will promote “conservation.”  (The article also provides perspectives from environmental groups.)

ENDANGERED SPECIES

• Rocky Mountain wolf re-listing

Notice of Intent to Sue

On April 22, the Fish and Wildlife Service received a notice written on behalf of Animal Wellness Action, the Center for a Humane Economy, Project Coyote, the Kettle Range Conservation Group, Footloose Montana, and the Gallatin Wildlife Association.  The parties object to the agency’s February 2, 2024 finding that western United States gray wolf does not warrant listing under the Endangered Species Act.  This is the third lawsuit filed against that decision (the other two are discussed here), and it is being attributed to a wolf-torturing incident in Wyoming that represented “everything that’s wrong with Wyoming’s handling of wolves.”  (Meanwhile, the U.S. House voted April 30 to end federal protection for gray wolves across the lower 48 states, but the legislation is not expected to be adopted.)

• Montana wolf trapping and grizzly bears

Preliminary injunction in Flathead-Lolo-Bitterroot Citizens Task Force v. State of Montana (9^th Cir.)

On April 23, the circuit court affirmed the district court’s decision to limit the wolf trapping and snaring season in Montana to six weeks in January and February when grizzly bears are expected to be denning, based in part on effects of climate change shortening the denning season.  However, it also limited this restriction to areas where grizzly bears are known to live.  Grizzly bears are listed as threatened under the ESA, and they have been harmed by wolf traps.  Plaintiffs are now seeking a permanent injunction.  (The article includes a link to the opinion.)

• Listing delays

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

On April 25, the parties agreed to a court-ordered deadline to complete overdue listing designations that the Fish and Wildlife Service had proposed for 10 species: two snapping turtles, the white-tailed ptarmigan, the Peñasco least chipmunk and six species of Texas mussels will receive federal protections by the end of the year. Three other species will also receive final designations of critical habitat, including Humboldt martens, and two mussel species will get an initial listing determination.  The Northwest’s tall western penstemon flower and Nevada’s Fish Lake Valley tui chub fish will get final protection decisions later.  (The article includes a link to the settlement agreement.)

OTHER

• National wildlife refuge transmission lines

Preliminary injunction in National Wildlife Refuge Association v. Rural Utilities Service (W.D. Wisconsin)

On March 6, the NWRA, Driftless Area Land Conservancy and Wisconsin Wildlife Federation filed suit against a proposed land exchange that would facilitate construction of a transmission line across the Upper Mississippi River National Wildlife and Fish Refuge. The complaint alleges violations of NEPA and the National Wildlife Refuge System Improvement Act.  A  preliminary injunction was quickly granted.

• Mark Twain NF tree theft

Criminal sentencing

On April 23, a Missouri man was sentenced to two years and six months in federal prison without parole, and was required to pay $30,000 in restitution for cutting down and selling at least ten trees from the Mark Twain National Forest.

• Outfitter minimum wage

Court decision (10^th Circuit)

On April 30, the circuit court affirmed the lower court’s denial of a preliminary injunction against the Department of Labor’s requirement that a minimum wage of $15 per hour be paid in federal contracts.  This case involved river outfitters operating under permits from the Forest Service and BLM which have typically used a flat fee.

• Climate change

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

On May 1, the circuit court issued an order to the district court to dismiss this high-profile case claiming that the government’s actions encouraging a fossil fuel economy, despite scientific warnings about global warming, is unconstitutional.

A little weekend reading.

FOREST SERVICE

• Siuslaw NF Oregon Dunes NRA coastal marten

Notice of Intent to Sue

On March 25, the Center for Biological Diversity notified the Forest Service and Fish and Wildlife Service of its intent to sue for failing to initiate consultation on its ongoing actions that may affect the coastal pine marten, listed as threatened in 2020.  They specifically target “rampant, unchecked off-road vehicle (“ORV”) use” in the Oregon Dunes National Recreation Area, and suggest that the Forest Service should “put up fencing to protect marten habitat, and more signage or enforcement of noise limits that could disrupt the martens’ critical day-to-day behaviors.”  The press release includes a link to the Notice; additional background is provided here.

• Beaverhead-Deerlodge NF telecommunications site

New lawsuit

A new lawsuit has been filed against the Beaverhead-Deerlodge National Forest because it relocated a repeater antenna to a designated Wilderness Study Area.  The Forest’s decision was apparently based on a categorical exclusion for repair and maintenance of an administrative site.  No news sources without a paywall seem to have covered this story, but background was previously provided here.

• Eastside Screens

Court decision in Greater Hells Canyon Council v. Wilkes (D. Oregon)

On March 29, the district court issued an order supporting the findings of the magistrate judge, previously discussed here.  The court said the Forest Service evaluation of eliminating the 21 inch diameter limit on logging in eastern Oregon and Washington “failed to take a hard look at the amendment’s change and its impact on aquatic species.”  We have already discussed the court’s decision here.  (Press coverage seems surprisingly limited, and I have not seen the actual order.)

• Custer-Gallatin NF trail rerouting

Court decision in Friends of the Crazy Mountains v. Erickson (9^th Cir.)

On April 8, the circuit court affirmed the district court’s ruling that the Forest Service had complied with NEPA requirements for specificity for this 2018 decision long ago because, “Both the 2006 EIS and the 2009 EA gave reasonable notice that the 2018 trail reroute fell within their respective scopes.”  Plaintiffs had failed to challenge those actions at the time.  The article includes a link to the opinion.  We covered the beginnings of this case here.

BLM/NPS

• BLM oil and gas leases

Court decision in Dakota Resource Council v. U. S. Department of Interior (D. D.C.)

On March 22, the district court upheld BLM’s compliance with NEPA and FLPMA for six oil and gas lease sales affecting nearly 120,000 acres in Wyoming and another 10,000 in several other states.  The court specifically rejected the plaintiff’s arguments that the BLM should combine all leases within each quarter in one decision process instead of separate EAs.  With regard to greenhouse gas issues, the court said:

“Operating at the frontiers of science, BLM reasonably exhausted available tools to analyze the lease sales’ environmental consequences:  It estimated the amount of GHG emissions from the lease sales; placed those projections in proper perspective; monetized the social cost of the emissions; described why it cannot predict the on-the-ground effects that this level of GHG emissions will have on the local ecosystem or global environment; and explained why, absent a government carbon budget or similar reference standard, it was not possible to determine whether the estimated emissions would have a “significant” impact on the environment.”

Court decision in Wilderness Society v. U. S. D. I. (D. D.C.)

In a second case on the same lease decisions, the same judge held that the BLM violated NEPA because it failed to adequately assess “the Wyoming sale’s impact on groundwater and wildlife,” specifically mule deer and the sage grouse, and failed to adequately explain how the effects on greenhouse gas emissions influenced its leasing decisions.  Notably, the court did not approve of the BLM relying on the analysis of wildlife effects in its resource management plan.  The court agreed with the BLM on other issues.  With regard to the greenhouse gas issue, the court said:

“After projecting the emissions and their social costs, though, the Bureau did not explain why it believed that a lease sale of this magnitude was nonetheless worthwhile and consistent with its statutory duties to steward federal lands for the public benefit. Rather, the Bureau appeared to back away from its analysis of GHG emissions when justifying its decision to move forward.”

Briefing on the remedy is pending.  (The article includes a link to both opinions.)

• Nevada BLM national monument plans

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

On March 25, plaintiffs went to court to try to force the BLM to develop plans for two national monuments in Nevada, Basin and Range and Gold Butte.  The monuments were established in 2015 and 2017 respectively, and beginning efforts at planning were abandoned.  FLPMA and the proclamations for the monuments require planning. Plaintiffs explained the problems with the delay:

“Some examples of impacts to the monuments from a lack of active management include the proliferation of human waste at recreation sites due to BLM’s failure to install sanitary facilities; a proliferation of unauthorized [off-highway vehicle] uses due to BLM’s failure to properly regulate and enforce laws on limitations to off road vehicular travel; and the ongoing illegal cattle grazing by Cliven Bundy in Gold Butte. These impacts cause habitat degradation and destruction which threaten wildlife like the desert tortoise.”

Solar projects were also mentioned.  This article provides an update on the Bundy cattle (from which one might infer a connection to the lack of BLM action there).  Plaintiffs recognize that completion of plans would not resolve the cattle trespassing issue, since they are already illegal.

• Oregon BLM Cascade-Siskiyou National Monument

Cert denied in American Forest Resource Council v. U. S. A. (Supreme Court)

On March 25, the Supreme Court declined to review the expansion of the Cascade-Siskiyou on O&C lands, and BLM’s 2016 Resource Management Plans for Western Oregon O&C lands, which had been upheld by the D. C. Court of Appeals.  (See also comments by Sean here.)  Only two justices indicated an interest in reviewing the case, and they may have only been interested in the narrower question of conflicts with the O&C Act rather than the Antiquities Act authority to designate monuments.  The door doesn’t appear to be closed to another challenge to the Antiquities Act.  (Coincidentally, the BLM has just released a new draft plan for managing the Monument.)

• Oregon BLM forest management project

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

On March 27, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands and Oregon Wild sued the BLM for its decision to authorize portions of the Rogue Gold Forest Management Project, which involves logging in late-successional reserves designated under a resource management plan.  The complaint alleges that the Project violates FLPMA because it is not consistent with that plan because, “Generating timber volume is not a permissible objective for logging within the LSR.”

This article provides some additional context regarding large trees and litigation in this area, including this comment from BLM that was something I hadn’t heard before:

“We work really hard to design timber sales and access roads to have the least amount of impact. We hear from our timber operators that they don’t want to cut those larger trees. It’s a safety issue. It increases the costs,” said Kyle Sullivan, a BLM spokesperson.

He said that there are barely any mills left in Oregon that can take old-growth sized logs and claimed those large trees that are felled are left on the forest floor to become wildlife habitat.

• Nevada BLM wild horse roundups

Court decision in Leigh v. Raby (D. Nevada)

On March 28, the district court ruled that the BLM “unreasonably delayed” completion of herd management area plans when it failed to adopt such a plan or conduct the necessary environmental review before 31 mustangs died during a roundup in the Pancake complex in eastern Nevada.  The court specifically rejected the argument that BLM’s broader resource management plans combined with individual roundup plans for overpopulated herds satisfies the requirement.  The court stated, “Engaging in the decision-making of an HMAP without actually preparing an HMAP could therefore deprive interested parties of the administrative review processes to which they are entitled.”  (This reasoning may be applicable to decisions that should be in forest plans but are made without following appropriate processes, or attempts to substitute some other process for actions that should be subject to NEPA.)  The court required completion of the Herd Area Management Plan within one year.

ENDANGERED SPECIES ACT

• ESA regulations

At the end of March, the U. S. Fish and Wildlife Service and NOAA issued a final rule largely reversing the changes the Trump Administration had made in the ESA listing and consultation processes.  This article explains the changes, and anticipates the litigation that will follow.

• Bumblebee (li)stings

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

On April 1, the Center sued the Fish and Wildlife Service for failing to respond to its petitions to list four bumblebee species under the Endangered Species Act within the required time period.  The species are the American bumblebee, the southern plains bumblebee, the variable cuckoo bumblebee and the blue calamintha bee.  American bumblebees were found in open areas across all of the lower 48 states except Washington.

• Gray wolf relisting

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

New lawsuit:  Western Watersheds Project v. Williams (D. Montana)

On April 8, 14 plaintiffs filed two lawsuits against the decision by the U. S. Fish and Wildlife Service to not relist the gray wolves of the northern Rocky Mountains under the Endangered Species Act.  Both complaints argue that USFWS relied on flawed population models and underestimated the impact of aggressive wolf-reduction measures in Idaho, Montana and Wyoming.  The article has links to both complaints.

An Easter egg for this morning, but I’ll be running a little behind for awhile.

FOREST SERVICE

I started the last litigation update with this, before discussing a district court opinion in the Rio Grande case: “I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other).”   Within a couple of days there were new opinions on both the Rio Grande and the Flathead revised forest plans.

• Grande NF plan revision

Court decision in Defenders of Wildlife v. U. S. Forest Service (10^th Cir.)

On March 11, the 10^th Circuit Court of Appeals affirmed a district court opinion upholding the Rio Grande National Forest revised forest plan’s compliance with the Endangered Species Act for Canada lynx.  The circuit court did not directly offer an opinion on what the district court called “fundamental flaws” in the plaintiff’s arguments, but found that the determination of no jeopardy by the Fish and Wildlife Service was supported by the record and not arbitrary.

However, the circuit court did imply that there is no point in formally consulting on lynx on the Rio Grande because there are not enough lynx.  The court first established that, “When the record shows a subpopulation is particularly important to the species, the FWS may need to consider how the agency action affects that subpopulation to give a reasoned jeopardy opinion” on the listed species as a whole.  It then found that to not be the case for the subpopulation on the Rio Grande.   It found that the Species Status Assessment for lynx showed that the “Colorado subpopulation was a fraction of the estimated DPS population” (the population south of Canada), and pointed out “the RGNF’s small lynx population relative to the Colorado population.”  (The NFMA requirement for viability in a plan area is more protective of such “dispensable” populations.)

The court nevertheless proceeded to find that there was sufficient information in the administrative record about lynx habitat and use in the northern portion of the Forest (designated in the plan as a “low use” area for lynx) to uphold the FWS discounting of effects there.  This included discussion of the applicability of three research efforts, and the agency’s determination of what was the best available science for them to use (which was given considerable deference by the court).  It also upheld the analysis of effects on lynx in the low use areas, which it pointed out meant only looking at the effects of the revised plan, and did not require a comparison to the former plan.  It found that the FWS made reasonable assumptions about the amount and location of future vegetation management and deferred to its recognition that “complete analysis is not possible at this time” (but additional consultation would occur on specific projects).  (The court noted that “Defenders’ petition for review did not challenge the USFS’s design of the (new) VEG S7 standard,” but instead this case was about  the FWS effects analysis.)

• Flathead NF plan revision

Magistrate recommendations in Swan View Coalition v. Haaland (D. Montana)

This is the second lawsuit on the Flathead plan.  In the first, the district court remanded without vacatur to the agencies to reconsider how to comply with ESA, and the 9^th Circuit dismissed an appeal as moot because the FWS had issued a superseding Revised Biological Opinion.  On March 12, in this lawsuit on that BiOp, the magistrate judge recommended another remand without vacatur to address the following ESA violations (the article includes a link to the recommendations):

“(T)he Revised BiOp failed to adequately consider the impact of ineffective road closures on the 2011 baseline and on grizzly bear populations as a whole. The Revised BiOp further failed to consider that the new take statement regarding culvert removal does not apply to roads rendered impassable under the Revised Plan. Therefore, the Forest Service violated the ESA to the extent it relied on the Revised BiOp’s flawed road density determinations and culvert removal analysis.”

A 2020 analysis of road closure devices found an average of 92% of them to be effective, and the Revised BiOp included a new section addressing illegal or unauthorized motorized use of closed roads in the environmental baseline.  However, the BiOp did not attempt to determine the actual effect of the failures and account for unauthorized use, instead stating that unauthorized motorized access is unpredictable, and its effects on grizzly bears are unknowable.  This reasoning had already been found insufficient in a prior case.

The Revised BiOp also included a new incidental take statement for bull trout, which assumes a take will result from road decommissioning in bull trout watersheds that did not remove culverts (referred to as “impassable” or “barrier” roads, which were expected to be more common than fully decommissioned roads).  The magistrate found, “given that removal of culverts is an effective sediment-prevention method for both barriered and decommissioned roads, it is inexplicable why FWS limited its analysis to the Forest Service’s abandonment of culvert removal requirements for decommissioned roads.”  Omitting the effects of leaving these culverts in place for these other roads was arbitrary and capricious.

The magistrate would uphold the Forest Service against other claims.  By not vacating the portions of the forest plan identified by plaintiffs, they point out, “while we appreciate that the judge has since sent them back to the drawing board, they’re still out there building roads on grizzly and bull trout habitat…”

• Plumas NF logging project

New lawsuit:  John Muir Project v. U. S. Forest Service (E. D. California)

On March 22, John Muir Project of Earth Island Institute and the Plumas Forest Project asked the district court to require an EIS (rather than an EA) for a logging and burning project on the Plumas National Forest.  Plaintiffs say the 217,000-acre Central/West Slope Project will be among the largest logging authorizations in the forest’s history, and it will include cutting old-growth trees up to 400 years old.  The Forest Service says the project is intended to reduce wildfire impacts in several communities.

BLM

• Arizona BLM Agua Fria National Monument grazing

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

On March 12, the Center and Maricopa Audubon Society sued the BLM and Fish and Wildlife Service over unauthorized cattle grazing in the Agua Fria National Monument, and its effects on critical habitat for the endangered Gila chub and threatened yellow-billed cuckoo.  Plaintiffs specifically challenge the ESA consultation process for five grazing allotments, and also failure to develop and implement a program to conserve listed species impacted by BLM’s grazing program and unauthorized grazing, pursuant to §7(a)(1) of ESA.  A prior lawsuit was settled, but plaintiffs allege the settlement has not been properly implemented.  (The article includes a link to the complaint.)

• Utah BLM Labyrinth Rims/Gemini Bridges Travel Plan

Preliminary injunction denied in BlueRibbon Coalition v. U. S. Bureau of Land Management (D. Utah)

On March 20, the district court denied plaintiffs a preliminary injunction against the Labyrinth Rims/Gemini Bridges Travel Plan, finding that they had not demonstrated a likelihood of success on the merits of any of the four claims, discussed earlier here.  Per some of that discussion, the court found, “neither the law nor the record supports Plaintiffs arguments that BLM was creating a buffer zone or closing routes due to noise within the Labyrinth Canyon Wilderness.”  Additional background is provided here.

ENDANGERED SPECIES

• Arkansas snail listing

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

On March 11, plaintiffs filed suit against the 2019 decision to not list the Arkansas mudalia, a freshwater snail, as threatened or endangered.  According to the Fish and Wildlife Service, four of the nine recently documented populations occur on the Ozark and Mark Twain National Forests.  They say, “Habitat modification and degradation is highly unlikely in these areas, as the USFS restricts many of the land practices that can be a threat or, when allowed, follows strict BMPs to reduce the impact of the practice on the environment.”  (Presumably these restrictions are in the forest plans so that the FWS can consider them “regulatory” in the listing process.)

• Mt. Graham red squirrel critical habitat

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

On March 19, plaintiffs sued the Fish and Wildlife Service for failing to protect additional critical habitat for Mount Graham red squirrels.  Original critical habitat for the squirrels was destroyed by construction of mountaintop telescopes and fires. A petition to designate the additional habitat was filed in 2017.  Part of the alleged problem is Forest Service special use permits for recreation cabins and an organizational camp in remaining habitat on the Coronado National Forest.  (The article incudes a link to the complaint.)

• Idaho wolf trapping

Court decision in Center for Biological Diversity v. Little (D. Idaho)

On March 19, the district court found that Idaho’s rules for trapping wolves violated the Endangered Species Act because the traps and snares are likely to harm grizzly bears.  The decision stated, “There is ample evidence in the record, including from Idaho’s own witnesses, that lawfully set wolf traps and snares are reasonably likely to take grizzly bears in Idaho.”  The court enjoined trapping and snaring during the non-denning season on public and private lands unless the State obtains an incidental take permit from the Fish and Wildlife Service for harm to grizzly bears.  (The article includes a link to the opinion.)

• Joshua tree listing

New lawsuit:  WildEarth Guardians v. U. S. Fish and Wildlife Service (C.D. California)

On March 20, plaintiffs sued the FWS for its 2023 decision to not list two species of Joshua trees as threatened under the Endangered Species Act.  The same court ruled in 2021 that a prior decision to not do so lacked scientific support.  Plaintiffs again claim the FWS did not properly account for the effects of climate change and wildfires on recruitment of young trees.  Agriculture and human developments near Joshua Tree National Park are also threats to the species.  (The article includes a link to the complaint.)

OTHER

• Going cashless

New lawsuit (D. D.C.).

Three individuals have sued the National Park Service over its policy of not accepting cash payments at some of its sites across the country.   The suit asks the court for a declaratory judgment that the Park Service is in violation of U.S. law that “legal tender”—U.S. currency—is suitable “for all public charges.”  For those with only cash, “Go buy a gift card.”  This article also cites an example of a BLM site with a “no cash” policy, its Virgin River Recreation Area in Arizona.  (Coming to a national forest near you?)