Litigation

Federal Lands Litigation – update through October 7, 2024

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FOREST SERVICE

Court decision in Oregon Wild v. U. S. Forest Service (9th Cir.)

On September 25, the circuit court affirmed the district court’s decision that the Freemont-Winema National Forest had correctly applied a categorical exclusion to three logging projects because it was not subject to any acreage limitation.  However, the circuit court reversed and remanded the lower court’s dismissal of a claim that the CE had been improperly adopted.  The article includes a link to the complaint.  We have previously discussed this opinion here.

Court decision in Buffalo River Alliance v. U. S. Forest Service (W.D. Arkansas)

On September 30, the district court upheld NEPA compliance in an EA for the Roberts Gap Project, immediately upstream from the Buffalo National River, on the Ozark National Forest.  The Project includes regeneration harvest, thinning, burning and herbicide use in an effort to restore more open forest.

The court credited the EA for “tiering” to the forest plan EIS discussion of effects on the Buffalo National River and herbicide use in karst topography based on the Project’s compliance with forest plan standards.  It similarly accepted tiering to a forest plan amendment for Indiana bats, which were discovered on the national forest after the project decision was made, but which had been anticipated.  NEPA did not require additional public comment opportunities for this new information, or for protective measures that were added to the project after completion of the NEPA process.  The court quoted a prior case: “a reduction in the environmental impact is less likely to be considered a substantial change relevant to environmental concerns than would be an increase in the environmental impact.”  The court also held that an EIS was not required.

BLM

Court decision in Leigh v. U. S. Department of the Interior (D. Nevada)

On September 23, in response to litigation following a specific wild horse “gather,” the district court held that BLM must be compelled to prepare a herd management area plan (HMAP) in one year for the Blue Wing Complex of five wild horse herd units, but that the agency did not violate NEPA, and that summary judgment is not appropriate as to First Amendment claims.  The latter claims, which would go to trial, involve BLM’s restrictions on public access to post-gather holding facilities.  While there is no firm deadline for preparing HMAPs under the Wild Free-Roaming Horses and Burros Act, in this case the BLM had unreasonably delayed it (under the Administrative Procedure Act) for 38 years.

New lawsuit:  Cascadia Wildlands v. U. S. Bureau of Land Management (D. Oregon)

On September 27, Cascadia Wildlands and Oregon Wild sued the BLM over the Roseburg District’s Blue and Gold logging project.  “Not only will this logging permanently remove unique old-growth habitat relied upon by federally protected species, but the conversion of these areas into plantations will eliminate carbon stores and exacerbate wildfire risk and hazard in the region,” the complaint said.  The press release said that the BLM misrepresented the age of targeted forests and removed biologists from oversight roles.  The project would allegedly violate the resource management plan, and therefore FLPMA, especially regarding northern spotted owls and marbled murrelets, and plaintiffs said the BLM should have prepared an EIS.  The press release includes a link to the complaint.

Court decision in Orutsararmiut Native Council v. U. S. Army Corps of Engineers (D. Alaska)

On September 30, the district court ruled that the Corps of Engineers, who granted a permit needed under the Clean Water Act to build the Donlin Gold Mine, failed to properly consider the risks of a dam failure and catastrophic release of mine waste in their EIS.  While it discussed the risk of a dam failure, it did not consider its effects.  The BLM, a cooperating agency, had granted a right-of-way across its land to the privately owned mine site, and the court reversed the analysis for its permit under ANILCA for the same reason.  The court ordered supplemental briefing on the remedy.  The article includes a link to the complaint.

ENDANGERED SPECIES

Preliminary injunction denied in South Carolina Coastal Conservation League v. U. S. Army Corps of Engineers (D. South Carolina)

On September 19, the district court upheld a decision by the Corps of Engineers to grant a Clean Water Act permit to fill wetlands for a housing development near the Francis Marion National Forest.  Plaintiff’s claims included failure to properly consider the effects on the national forest related to Indiana bats, red-cockaded woodpeckers and prescribed burning.  The FWS Biological Opinion supported a decision to not include the national forest in the effects action area and showed minimal effects of the development on these species.  For the woodpeckers, the BiOp stated that, “[t]he FMNF population is not dependent on the Action Area population.”  With regard to prescribed burning, the court concluded that the federal agencies involved, “coordinated with the USFS to analyze the ability of FMNF to continue conducting prescribed fires on FMNF” and “anticipated that FMNF can continue to conduct prescribed fires as planned even with the proposed development in regard to smoke management.”

Court decision in Friends of Gualala River v. Gualala Redwood Timber (9th Cir.)

On September 30, the circuit court determined that the claim of illegal “taking” of several endangered species by the defendants was moot:  “Appellants brought their suit under section 9, not section 7. Section 9 does not authorize the Court to impose mitigation measures on a private party in an ESA case. Rather, it allows only injunctive relief, which Appellants failed to receive in the district court and have not appealed here.”

Settlement of Wild Fish Conservancy v. National Marine Fisheries Service (W.D. Washington)

The Washington Department of Fish & Wildlife is closing two southwest Washington hatchery programs and lowering releases at another to settle this case (among other more procedural agreements).  Wild Fish Conservancy Northwest and The Conservation Angler had sued NMFS and Washington State agencies in April over Lower Columbia River hatcheries allowing returning hatchery salmon to spawn with wild fish listed as threatened or endangered at levels that violate standards in a prior Biological Opinion.  Hatcheries are viewed as one of the factors that contribute to the declining status of wild migratory salmonids in streams on national forests where their habitat requires protection.

OTHER

Court decision in New Jersey Conservation Foundation v. FERC (D.C. Cir.)

On July 30, the circuit court vacated the Federal Energy Regulatory Commission’s order approving Transcontinental Gas Pipe Line Company’s Regional Energy Access Expansion Project. This project involves the construction and operation of approximately 36.1 miles of new natural gas pipeline facilities associated with a pipeline running through New Jersey, New York, Delaware, Maryland, and Pennsylvania.  The court found that FERC had violated the APA because it failed to explain why it did not make a significance determination regarding the environmental impact of the project’s greenhouse gas emissions.  The blog post includes a link to the opinion.

New lawsuit:  Center for Biological Diversity v. City of Jurupa Valley (Riverside County, CA)

On October 4, the Center for Biological Diversity, the California Native Plant Society, Endangered Habitats League and Friends of Riverside’s Hills sued the City of Jurupa Valley in Riverside County Superior Court in California for approving an industrial, commercial and residential development approximately 500 feet from the Jurupa Oak, described as “Earth’s oldest living oak.” A Palmer’s oak, it’s a sprawling shrub reaching nearly 80 feet in length that is estimated to be 13,000 to 18,000 years old, and is considered the third oldest plant on earth.  Plaintiffs allege that the city’s environmental review for the project violated the California Environmental Quality Act by overlooking threats to the Jurupa Oak’s watershed, and other risks to the tree’s survival. The article includes a link to the complaint.

E &E News has provided (apparently not paywalled) this overview of the upcoming Supreme Court term, including cases that it has accepted and others where Supreme Court review has been sought (generally a low probability).  The former includes the NEPA challenge to the railroad through the Uinta National Forest (upheld by the circuit court).  The latter includes the Utah challenge to BLM lands and the Tonto National Forest copper mine proposed for a Native American sacred site.

 

 

Fix Our Forests III. Litigation Reform

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Help from the lawyers at TSW would be greatly appreciated for this section.

SEC. 121. Commonsense litigation reform.
(a) In general.—A court shall not enjoin a covered agency action if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.

Maybe our legal friends can help us understand here, 1) what, if any criteria do judges use now? 2) Does this make extra work for judges (would they have to come to a pre-decision and do more work?)

(b) Balancing short-and long-term effects of covered agency action in considering injunctive relief.—As part of its weighing the equities while considering any request for an injunction that applies to a covered agency action, the court reviewing such action shall balance the impact to the ecosystem likely affected by such action of—

(1) the short- and long-term effects of undertaking such action; against

(2) the short- and long-term effects of not undertaking such action.

I don’t know how this will help.. some judges will think cutting trees is bad and wildfires won’t happen while the project is enjoined, and others think the other way. Judges, who are lawyers, tend to write really well, and will be describe quite eloquently how their decisions fit this requirement. Plus they make take some separation of powers umbrage, which I don’t think will help. Judges are, after all, necessarily human.

(c) Limitations on judicial review.—

(1) IN GENERAL.—Notwithstanding any other provision of law (except this section), in the case of a claim arising under Federal law seeking judicial review of a covered agency action—

(A) a court shall not hold unlawful, set aside, or otherwise limit, delay, stay, vacate, or enjoin such agency action unless the court determines that—

(i) such action poses or will pose a risk of a proximate and substantial environmental harm; and

(ii) there is no other equitable remedy available as a matter of law; and

(B) if a court determines that subparagraph (A) does not apply to the covered agency action the only remedy the court may order with regard to such agency action is to remand the matter to the agency with instructions to, during the 180-day period beginning on the date of the order, take such additional actions as may be necessary to redress any legal wrong suffered by, or adverse effect on, the plaintiff, except such additional actions may not include the preparation of a new agency document unless the court finds the agency was required and failed to prepare such agency document.

(2) EFFECT OF REMAND.—In the case of a covered agency action to which paragraph (1)(B) applies, the agency may—

(A) continue to carry out such agency action to the extent the action does not impact the additional actions required pursuant to such paragraph; and

(B) if the agency action relates to an agency document, use any format to correct such document (including a supplemental environmental document, memorandum, or errata sheet).

This seems to be about “when courts determine that something needs to be done with the document, just fix it don’t do a new document (unless..)”. This seems, together with the 180 day agency requirement, it would help with “you didn’t do this”, FS issues new doc, “you didn’t do that” recursive court cases, which are probably just as annoying for judges and their workload as for the agency.

(d) Limitations on claims.—Notwithstanding any other provision of law (except this section), a claim arising under Federal law seeking judicial review of a covered agency action shall be barred unless—

(1) with respect to an agency document or the application of a categorical exclusion noticed in the Federal Register, such claim is filed not later than 120 days after the date of publication of a notice in the Federal Register of agency intent to carry out the fireshed management project relating to such agency document or application, unless a shorter period is specified in such Federal law;

(2) in the case of an agency document or the application of a categorical exclusion not described in paragraph (1), such claim is filed not later than 120 days after the date that is the earlier of—

(A) the date on which such agency document or application is published; and

(B) the date on which such agency document or application is noticed; and

(3) in the case of a covered agency action for which there was a public comment period, such claim—

(A) is filed by a party that—

(i) participated in the administrative proceedings regarding the fireshed management project relating to such action; and

(ii) submitted a comment during such public comment period and such comment was sufficiently detailed to put the applicable agency on notice of the issue upon which the party seeks judicial review; and

(B) is related to such comment.

The time limit seems useful since this says that the party filing the claim must have participated in the administrative proceedings and submitted a comment. This also streamlines the process such that it requires the plaintiffs to have specific claims related to previous concerns. This signals to the agency what the real issues are. Perhaps it would relieve plaintiffs of writing “kitchen-sinkery” complaints?

(e) Definitions.—ln this section:

(1) AGENCY DOCUMENT.—The term “agency document” means, with respect to a fireshed management project, a record of decision, environmental document, or programmatic environmental document.

(2) COVERED AGENCY ACTION.—The term “covered agency action” means—

(A) the establishment of a fireshed management project by an agency;

(B) the application of a categorical exclusion to a fireshed management project;

(C) the preparation of any agency document for a fireshed management project; or

(D) any other agency action as part of a fireshed management project.

(3) NEPA TERMS.—The terms “categorical exclusion”, “environmental document”, and “programmatic environmental document” have the meanings given such terms, respectively, in section 111 of the National Environmental Policy Act of 1969 (42 U.S.C. 4336e).

Big FS Win! Ninth Circuit Upholds Category 6 Lack of Acreage Limitation; Builds on Previous Case

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Given the discussion about acreages in the Fix our Forests Act (I’ll continue the series; when I agreed to look at it I didn’t realize that it was the Mother of All Forest Bills), I thought this was weirdly timely, serendipitous, synchronistic or whatever..from AFRC yesterday.

Shout-out to the Fremont-Winema (who has a person answering the phone), the Region and WO, OGC and DOJ, for swinging for the stands! And it looks like, for the Bear Wallow Project, the Oregon Department of Forestry, and a  contract NEPA firm that deserves a shout-out as well.

I remember our view during my time period in NEPA was “don’t have too many acres as someone will litigate and we will lose the CE.” So it took some courage and good work all the way along to carry it through.  And of course, some luck (it’s a crapshoot, as my colleague JR used to say).

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For those of a political science bent, it is interesting that a policy that the Biden Admin apparently did not support in Congress (as to larger acreages) was supported by DOJ in defending the FS. I would guess the Admin didn’t have to appeal the lower court ruling, but did?  I wonder how all that worked between various parts of the Admin. Was the appeal horse out of the barn? Did DOJ not ask for permission from whomever??? If anyone knows, please email me. We are all curious about how our government works.

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Today the American Forest Resource Council (AFRC) announced a significant legal victory in the U.S. Court of Appeals for the Ninth Circuit concerning three critical forest management projects—Baby Bear, Bear Wallow, and South Warner—on the Fremont-Winema National Forest.

The Ninth Circuit upheld the U.S. Forest Service’s use of the timber stand and/or wildlife habitat categorical exclusion (CE-6) under the National Environmental Policy Act (NEPA), rejecting the claims made by Oregon Wild and WildEarth Guardians that CE-6 has an implied acreage limitation.

The plaintiffs challenged the projects, which cover a total area ranging from 3,000 to 16,000 acres of commercial thinning, on the grounds that the Forest Service had misused CE-6. They argued that the categorical exclusion should not apply to “large-scale” projects like these.

However, the Ninth Circuit ruled that CE-6 contains no acreage limitation, affirming that the Forest Service appropriately applied CE-6 to improve forest stand conditions and wildlife habitat, in compliance with both federal law and NEPA regulations.

AFRC participated in the litigation as amicus, both at the district court and appellate levels.

“The Court reaffirmed that CE-6 can be used for projects of this scale, ensuring that vital forest management efforts can proceed without the unnecessary delays of extended environmental reviews. This ruling allows these projects to continue their important work in maintaining healthy forests and reducing the risk of catastrophic wildfires,” said AFRC General Counsel Sara Ghafouri.

The Court’s decision also follows precedent from the Mountain Communities for Fire Safety v. U.S. Forest Service case, which upheld CE-6 as applicable for timber stand improvements, reinforcing that commercial thinning and other forest health projects can be expedited under this exclusion.

The Baby Bear, Bear Wallow, and South Warner projects are essential to improving forest resilience and wildlife habitat across the Fremont-Winema National Forest. They allow for commercial thinning without herbicide use and with minimal road construction, all within the legal framework of CE-6. The ruling ensures that these projects will not face additional legal obstacles, paving the way for sustainable forest management practices to continue without delay.

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For those interested, here is some background on the Bear Wallow Project from the Oregon Department of Forestry.

The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.

Here’s how folks worked together and the history of the stands, it appears to be a GNA project.

CASE STUDY: The FFR Program and Bear Wallow Project Area The Bear Wallow Timber Stand and Wildlife Habitat Improvement Project is a forest restoration project on the Fremont Winema National Forest, just south of La Pine, Oregon, bordering the Gilchrist State Forest. Developed as a collaboration between the Fremont Winema National Forest, Oregon Department of Forestry, and the Klamath-Lake Forest Health Partnership, this project serves as an interesting example of the FFR Program’s use of the Good Neighbor Authority (GNA) to accelerate the pace and scale of restoration on federal forest lands.

During the 2019-2021 Oregon State Biennium, FFR Program involvement in Bear Wallow began with a Planning Assistance Categorical Exclusion (PACE) grant to invest $100,000 in contract NEPA planning in the Sugarpine project area. This resulted in two commercial restoration projects generating over $2.7M in revenue. The state then used this funding to accomplish additional non-commercial restoration within these project areas and to complete surveys and planning for two additional NEPA project areas: Bear Wallow and Sun Pass.

The Bear Wallow project comprises about 17,000 acres of National Forest, approximately 40 percent of which is former Industrial Timber lands, some of which were heavily logged prior to Forest Service acquisition from Shevlin-Hixon Lumber Company in 1943.  Fire suppression and the lack of other active management has resulted in dense mixed conifer encroachment (mainly lodgepole pine), raising fire hazard and creating competition with more desirable species, such as ponderosa pine and aspen.
The project intends to improve habitat for wildlife and increase wildfire resilience by thinning less-desirable trees. The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.

Conifer infill began soon after the historical logging of ponderosa pine in the Bear Wallow project area. As a result, many of the trees that require thinning are of commercially desirable size. Through the use of the GNA, the ODF’s FFR Program plans to advertise and administer commercial thinning projects within the project area. Recent FFR Program GNA commercial projects have been purchased by local businesses such as Gilchrist Forest Products LLC, which produce building materials from ponderosa and lodgepole pine. Revenue from these commercial sales will be directed toward additional restoration needs within the project area and potentially elsewhere on the Fremont Winema National Forest.

This looks like the bid request for the NEPA contract, apparently contracted through the State.

I have asked the Forest for a photo of the forest conditions described in the ODF writeup, so stay tuned on that.

Federal Lands Litigation – update through September 24, 2024

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FOREST SERVICE

New lawsuit:  Grand Canyon Chapter of the Sierra Club v. Bosworth (D. Arizona)

On September 5, the Sierra Club and Maricopa Audubon Society sued the Forest Service and Fish and Wildlife Service for violating the National Environmental Policy Act and the Endangered Species Act in approving expanded operations at the Pinto Valley Mine, on the Tonto National Forest.  The mining would allegedly reduce flows to nearby Pinto Creek and destroy habitat for the western yellow-billed cuckoo and the southwestern willow flycatcher.  The complaint also alleges a violation of 36 CFR §228 (which implements the Forest Service’s Organic Act) by failing to protect fisheries and wildlife habitat, and using water without a state authorization.  (The press release includes a link to the complaint.)

New lawsuit (again):  Alliance for the Wild Rockies v. Anderson (D. Montana)

On September 9, Alliance for the Wild Rockies and Native Ecosystems Council filed a second lawsuit against the Gold Butterfly Project and associated forest plan amendments on the Bitterroot National Forest.  The original project was withdrawn four years ago (as described here).  The current lawsuit alleges violations of NEPA and revolves around excepting the project from forest plan requirements for old growth and elk, violating other forest plan requirements for elk, and inadequately addressing several other wildlife species and whitebark pine.  It also includes a claim that violating the forest plan is also a violation of the Healthy Forest Restoration Act’s requirement to be consistent with the forest plan.  The complaint is here.

Notice of Intent to Sue

On September 10, the law firm Earthjustice sent a notice of its intent to sue the Forest Service on behalf of Friends of the Bitterroot, Friends of the Clearwater, Native Ecosystems Council and WildEarth Guardians over its decision to amend the Bitterroot National Forest Plan to reduce its limitation on open road densities without complying with the Endangered Species Act for grizzly bears and bull trout.  (The article includes a link to the NOI.)

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

On September 11, the County, Indiana Forest Alliance, Hoosier Environmental Council, and Friends of Lake Monroe filed a third lawsuit against the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, allegedly, “the single largest project to log and burn the Hoosier National Forest in its 89-year history.”  This court had previously found that an EA contained inadequate analysis of the effects on the water quality of the Lake Monroe watershed, a drinking water source, and similar NEPA claims have been raised again.  Plaintiffs ask the court to require an EIS.  (The article includes a link to the complaint.)

Hearing in Western Watersheds Project v. Vilsack (10th Cir.)

On September 23, environmental appellants argued to reverse a September 2023 district court decision that upheld a 2020 amendment to the Thunder Basin National Grassland’s land management plan that removed measures protecting prairie dogs from poisoning and recreational shooting.  They claim violations of NEPA and ESA’s duty to conserve the black-footed ferret.  (The article includes a link to their brief.)

BLM

Court decision in Powder River Basin Resource Council v. U. S. Department of the Interior (D. D.C.)

On September 13, the district court enjoined he Converse County Oil and Gas Project, which would allow for 5,000 new oil and natural gas wells to be built across 1.5 million acres of brushland near the borders of Nebraska and South Dakota. The BLM acknowledged miscalculating the effects on local aquifers by a factor of 10,000; “the drastically higher specific storage value used by BLM may have resulted in ‘substantial underestimation’ of groundwater drawdown,” the judge wrote.  There will be further briefing on whether to vacate the decision.  (The article includes a link to the opinion.)

New lawsuits

The State of Idaho has recently filed two lawsuits against the Lava Ridge wind turbine project proposed for BLM lands.  They have asked the 9th Circuit to find that the Federal Aviation Administration’s review of low-level flight hazards was inadequate.  The second suit was filed in federal district court for the District of Idaho, related to the FAA’s incomplete response to a Freedom of Information Act request regarding the “hazard” evaluations.

ENDANGERED SPECIES

Court decision in WildEarth Guardians v. U. S. Fish and Wildlife Service (D. D.C.)

On September 5, the district court determined that the regulation designating black-footed ferrets as a “nonessential” experimental population in Wyoming was proper under the ESA, that the designation does not include an improper subdelegation of the FWS’s statutory duties to the Wyoming Game and Fish Dept., and that the FWS complied with the requirements of NEPA with the EA it prepared when it adopted the rule.  A determination that the population is “nonessential” relaxes the ESA’s prohibitions on taking and the requirement that federal agencies engage in formal consultation with the FWS before taking an action that might affect the species.

New lawsuit:  Pesticide Action Network North America v. Williams (N.D. California)

On September 9, the Center for Biological Diversity, Center for Food Safety, and Pesticide Action Network North America sued the U.S. Fish and Wildlife Service for failing to adequately protect more than 1,500 species of wildlife and plants from the insecticide malathion.  They are challenging a 2022 biological opinion the FWS prepared for EPA’s registration of malathion which found no jeopardy to any of the species.  Malathion is used in Forest Service programs to control insect pests in pine seed orchards and to control mosquitoes on lands managed by the Forest Service.  (The news release has a link to the complaint.)

  • Gray wolf delisting

Government appeal in Defenders of Wildlife v. U. S. Fish and Wildlife Service (9th Circuit)

On September 13, the Biden Administration endorsed the Trump Administration’s attempt to delist the gray wolf by filing an appeal of a district court decision that reinstated Endangered Species Act protections for gray wolves across most of the U.S.  According to the government brief, “At its core, this appeal is about whether the purpose of the ESA is to recover endangered and threatened species to the point where they are no longer in danger of extinction, or whether it goes beyond that objective to require that a species be restored to its historical range before delisting.”  (The article includes a link to the brief.)

It’s worth noting that the government is pursuing national delisting (based on recovery) in advance of its planned national recovery plan for gray wolves, which it announced on February 2.  (That announcement coincided with a decision to not relist the Northern Rocky Mountain region gray wolf, which has garnered at least three lawsuits.)

New lawsuit:  U. S. Sportsmen’s Alliance Foundation v. Haaland (W.D. Michigan)

Meanwhile, on September 9, the U. S. Sportsmen’s Alliance Foundation, Michigan Bear Hunters Association, Upper Peninsula Bear Houndsmen Association, and Wisconsin Bear Hunters Association filed a lawsuit against the Fish and Wildlife Service for failing to respond to two petitions they submitted to remove ESA protections from gray wolves.  One seeks delisting of gray wolves in the western Great Lakes states of Michigan, Wisconsin and Minnesota, plus areas in adjoining states.  The other seeks to downgrade partially recovered and rapidly growing West Coast wolf populations in western Washington, western Oregon and California from endangered to threatened, while continuing to protect wolves in the lower 48 states that are not part of an established population group.  (Even if the species as a whole were delisted, it may be possible to list “distinct population segments” under ESA.)  (The article includes a link to the complaint.)

New lawsuit:  Friends of the Wild Swan v. Hammond (D. Montana)

On September 16, Friends of the Wild Swan and Council on Wildlife and Fish sued the National Park Service and the Fish and Wildlife Service over plans to introduce an “experimental population” of bull trout into an alpine lake in Glacier National Park that was historically fishless.  The complaint alleges the agencies violated NEPA and ESA because they failed to properly consider the consequences of collecting bull trout from their native habitat, and conditions that changed over the course of the project.  ESA also requires specific procedures to permit populations outside of a species’ native range that were allegedly not followed.  (The article includes a link to the complaint.)

Meanwhile, on September 13, the Fish and Wildlife Service completed the five-year review of bull trout status required by ESA, and determined that listing as a threatened species is still warranted due to remaining threats, such as “climate impacts, past and current habitat threats, and expanding distribution of non-native fishes.”

Delisting

On September 4, the U. S. Fish and Wildlife Service announced that after more than five decades of recovery efforts by federal, state and Tribal partners, and with $5.1 million from President Biden’s Investing in America agenda, the Apache trout is being removed from the federal list of threatened species. It is the first sportfish and the first trout delisted due to recovery.  It is found on the Apache-Sitgreaves National Forest, and the Forest Service will continue to be part of the 2021 Apache Trout Cooperative Management Plan (with shared responsibilities by the Arizona Game and Fish Department, White Mountain Apache Tribe, U.S. Fish and Wildlife Service, and Trout Unlimited), which “provides for long-term management when delisted to maintain a recovered status while providing sportfishing opportunities for the citizens of Arizona,” according to the State.   Apache trout were originally listed because of “watershed alterations related primarily to forestry, livestock grazing, reservoir construction, agriculture, road construction, and mining” according to the species recovery plan.  

 

Federal Lands Litigation – update through September 3, 2024

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FOREST SERVICE

Most Endangered Species Act litigation against the Forest Service is about the consultation process and the substantive jeopardy and critical habitat requirements of ESA (§7(a)(2)).  Another requirement is found in §7(a)(1), which imposes a duty on federal agencies to “utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species.”  There is a logical link between recovery plans for listed species, forest plans for national forests and “programs” for species conservation.  This has not shown up in any earlier Forest Service court cases that I can remember, but here it is twice in the last month – the first two cases below.

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

On August 19, the Center for Biological Diversity, Chiricahua Regional Council, Natural Allies, Wild Arizona, and Conservation CATalyst sued the Coronado National Forest over its proposal to build three miles of new road for recreational access to 20 miles of forest roads that are currently closed.  The lawsuit says the Forest Service and the U.S. Fish and Wildlife Service violated the Endangered Species Act by failing to comply with jaguar and spotted owl recovery plans, as well as violating the forest plan.  Regarding recovery plans,  which are generally considered to be non-mandatory, the complaint says this:

“First, the Coronado Forest Plan provides that “[a]ctivities occurring within federally listed species habitat should apply habitat management objectives and species protection measures from approved recovery plans.”

“Because the recovery plan for the jaguar represents the only existing program for the conservation and recovery of jaguars, the Forest Service violated its affirmative duties under Section 7(a)(1) of the ESA by failing to carry out programs for the conservation of the jaguar.”

The press release includes a link to the complaint.

Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Arizona)

On August 26, the district court dismissed plaintiff’s claims that the agency’s cost-sharing agreement with the Arizona Department of Agriculture to partially fund a position related to wild horse management violated NEPA and ESA because of the effects of an overpopulation of horses.  The court found, “Plaintiffs have not pointed to any evidence that the AZDA would have altered any aspect of its horse management in light of a discontinuation or alteration to conditions of funding,” and it therefore dismissed claims of NEPA violations and failure to consult under ESA.

Plaintiffs also alleged violations of Section 7(a)(1) of ESA regarding conservation of the yellow-billed cuckoo, southwestern flycatcher, and Yuma Ridgway’s rail.  The Forest Service relied on its forest plan for the Tonto National Forest, and the ESA §7(a)(2) consultation on that, where the FWS opined that the plan “was likely to result in net beneficial effects to federally listed species in the Tonto National Forest.”  The court determined that “a plan placing affirmative constraints on future projects ‘counts’ under Section 7(a)(1),” and that the Tonto forest plan did so and the Forest had complied with ESA.

(I have always thought that a forest plan, especially its mandatory standards, should be evaluated against the requirements of Section 7(a)(1)) (and recovery plans).  Dismissal of this claim here is also an example of how consulting on forest plans can benefit the Forest Service, and an argument against (Cottonwood) legislation that would eliminate it.)

Court decision in Parthasarathi v. U. S. A. (D. Arizona)

On August 22, the district court found that the discretionary-function exception in the Federal Tort Claims act protected the Kaibab National Forest from liability for consequences of an auto accident caused by a cow (under a grazing permit) on a highway.  The Forest Service was under no obligation to construct a fence to keep cows off the highway, despite its prior NEPA decision to authorize one.  Its failure to build a fence and rejection of the state’s proposal to do so qualified for the exception because it, “balanced environmental costs with public safety and determined that the need to protect the natural state of the land outweighed the need to build a right-of-way fence.”

Swan View Coalition v. Haaland appealed

On August 27, the federal government appealed the adverse district court decision on the Flathead National Forest revised forest plan to the 9th Circuit Court of Appeals.  This case involves evaluation of effects of roads on grizzly bears and bull trout, and was discussed here.

New lawsuit:  Klamath Forest Alliance v. U. S. Fish and Wildlife Service (E. D. California)

On August 28, Klamath Forest Alliance, Conservation Congress, Environmental Protection Information Center and Shasta Bioregional Ecology Center challenged the South Fork Sacramento Public Safety and Forest Restoration Project on the Shasta-Trinity National Forest.  They allege that the Project’s logging activities would violate the ESA because they would diminish the likelihood of the northern spotted owl’s survival and recovery.  According to the complaint, “The FWS concluded that such activities would take up to 12 owls from two of the longest occupied territories in a 2.5-million-acre area—including two reproductively successful owl pairs and multiple years of offspring.”

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

On August 28, the federal district court agreed with the federal government that state requirements that the federal government own cattle in order to acquire water rights for livestock use violated the Supremacy Clause of the U. S. Constitution.  However, the court agreed that the federal government should be subject to Idaho’s forfeiture-related laws if it fails to use its water rights.  The article includes a link to the court’s decision and order.

New lawsuit

A federal lawsuit has been filed against a West Virginia logger and his logging company for trespassing and harvesting timber in Monongahela National Forest.  While logging on adjacent private land, the loggers allegedly encroached on nearly 10 acres of national forest lands.

A federal judge recently denied the federal government’s request to reconsider a case decided by a jury a year ago that awarded damages to a Black Hills NF district ranger for gender discrimination.  The employee alleged in her lawsuit that she had been subjected to a hostile work environment, excluded from working on special assignments given to male colleagues, excluded from management’s communications with male colleagues, subjected to a verbal threat, and had her ideas routinely dismissed in meetings by male managers. She was ultimately reassigned to another unit in position with decreased authority and duties.  (The article includes a link to an earlier article that provides more details.0

BLM

Court decision in American Wild Horse Campaign v. Stone-Manning (D. Wyoming)

On August 14, the district court approved amendments to BLM’s Green River and Rawlins resource management plans, which would enable the agency to remove two wild horse herds, significantly scale back a third and leave a fourth area intact.  BLM approved the plan last year following a legal settlement with the Rock Springs Grazing Association, which had sued BLM demanding that the bureau remove hundreds of wild horses that were grazing on its property within a roughly 2-million-acre federal grazing allotment in southern Wyoming in a checkerboard pattern of land ownership. “Ultimately, however, the Court finds that each contention fails for either conflating the [BLM’s Resource Management Plan amendment] with a removal decision, misconstruing BLM’s obligations, or [because it is] contradicted by the record,” the judge wrote.  The article includes a link to the opinion.  Plaintiffs have appealed it to the 10th Circuit.

TRO in Hualapai Indian Tribe v. Haaland  (D. Arizona)

On August 19, the district court granted a temporary restraining order against exploratory drilling for lithium on BLM land near the tribe’s sacred spring, as described here.  The court found it likely that BLM violated NEPA and the National Historic Preservation Act.  The article includes a link to the 2-page order.

Court decision in Friends of the Floridas v. U. S. Bureau of Land Management (D. New Mexico)

On August 27, the district court upheld the proposed American Magnesium Foothill Dolomite Mine Project in Luna County, New Mexico against multiple claims of NEPA and FLPMA violations by the BLM.  However, it found that the BLM had not taken the NEPA-mandated “hard look” at the water quality impacts arising from magnesium sludge at the off-site processing mill.  The court remanded the case without vacatur for further analysis.  The article includes a link to the opinion.

New lawsuit:  Southern Utah Wilderness Alliance v. U. S. Department of the Interior (D. D.C.)

On August 28, the Southern Utah Wilderness Alliance filed a lawsuit against a May decision by the BLM to reaffirm 35 oil and gas leases originally proposed by the Trump Administration in the San Rafael Desert in south-central Utah, including one in what later became the Labyrinth Canyon Wilderness.  The review was the result of a settlement of a prior lawsuit.  In addition to NEPA claims, the new lawsuit challenges BLM’s failure to provide a reasoned explanation for its decision to reverse course and not prepare oil and gas planning and analysis for the San Rafael Desert, which the BLM had previously deemed a necessary prerequisite before authorizing future leasing and development in this area.  The article includes a link to the complaint.

OTHER

New lawsuit

On August 12, WRH Nevada Properties, backed by Gallatin Gateway-based Citizens for Balanced Use filed a lawsuit to stop the state of Montana from approving a conservation easement that would prohibit development (but allow logging and public access) on almost 33,000 acres of land owned by Green Diamond Resource Company in northwestern Montana.  The Forest Service had pledged $20 million from its Forest Legacy Program.  WRH owns mineral rights on about half of the land.  They say that the Montana Environmental Policy Act process was not followed appropriately, and that the underlying authorities for the state’s Forest Legacy program are not statutorily authorized.

Court decision in Center for Biological Diversity v. Strommen (8th Cir.)

On August 14, the 8th Circuit Court of Appeals agreed with the district court that a consent decree which requires Minnesota to take additional steps to comply with the Endangered Species Act and protect Canada lynx was fair and reasonable, even though a coalition of trappers who intervened in the lawsuit disagrees.  The decree required Minnesota to put “additional restrictions” on snare and foothold traps in a Lynx Management Zone within 40 days “[b]y whatever regulatory means are necessary, including expedited emergency rulemaking.”  Minnesota allows shortcutting the public rulemaking process when urgent circumstances warrant it, and the court agreed that this situation would qualify.  The court also pointed out that, “nothing prevents (trappers) from challenging the validity of the new regulations in a separate state-court action.”

New lawsuit:  Center for Biological Diversity v. Hobbs (Maricopa County Superior Court)

On August 15, the Center for Biological Diversity, San Pedro 100, and Robin Silver sued the governor of Arizona and the Arizona Department of Water Resources over its decision to approve a guaranteed water certificate for a 7,000-home development project that would affect the San Pedro Riparian National Conservation Area on BLM lands.  They claim that the BLM has prior federal reserved water rights that have not been accounted for in the process, and seek to revoke the permit because it would infringe on those rights.  (The BLM had objected earlier in the process, but is not involved in this lawsuit.)

Summary judgment denied in Flathead-Lolo-Bitterroot Citizen Task Force v. Montana (D. Montana)

On August 28, the district court determined that this case must go to trial after continued disputes over expert witnesses.  Plaintiffs challenge the State’s authorization of recreational trapping and snaring for wolves and coyotes, alleging that future take of grizzly bears in legal wolf and coyote traps is reasonably certain to occur under the State’s regulatory scheme.  The court concluded:  “Because the parties dispute most of the material facts related to the evidence regarding when and where grizzly bears are likely to be out of their dens and the impact the State’s regulations have on grizzly bears, (see Doc. 68), those facts must be established at trial.”

 

 

Federal Lands Litigation – Bulletin: Utah seeks to declare the BLM unconstitutional

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Grand Staircase – “Visit Utah” (Larry C. Price)

On August 20, the State of Utah asked the U. S. Supreme Court to consider its claim that parts of the Federal Land Policy and Management Act (FLPMA) that allow it to retain and manage lands as federal property are unconstitutional.  (The State’s “news advisory” includes a link to the court documents.)  It will ask the Court to:

Order the United States to begin the process of disposing of its unappropriated federal lands within Utah, consistent with existing rights and state law.

Utah argues that the Constitution does not give the federal government the authority to retain lands that it has not designated for a federal purpose.  The key language at issue in the Constitution, which has been traditionally viewed as establishing such federal authority, is the Property Clause of Article IV, which provides:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States

Which plaintiffs interpret this way:

By its terms, that Clause empowers the federal government to regulate and “dispose of” land belonging to the United States—not to retain such land indefinitely, without regard to whether it is needed to carry out any enumerated federal function.

They read this language as requiring the federal government to dispose of such lands.  Maybe that’s ambiguous, but even it were to now be reinterpreted it this way, there is a counter-argument that any such authority was supplanted by western state enabling acts:

University of Colorado environmental law professor Mark Squillace said the lawsuit was unlikely to succeed and was “more a political stunt than anything else.”  The Utah Enabling Act of 1894 that governed Utah’s designation as a state included a promise that it wouldn’t make any claim on federal land, Squillace said.

If the court accepts the case, it will be interesting to see how many other states want to join in this “stunt.”  Utah has been preparing for this case for years, and challenges to other federal lands had been considered.  If this lawsuit is successful, would the Forest Service be immune to something similar?  This should all make the “local control” fans ecstatic.

 

 

 

Federal Lands Litigation – update through August 14, 2024

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FOREST SERVICE

I’ll “feature” the first case because it delves into the relationship between NFMA and NEPA, and claims for damages under the Federal Tort Claims Act and its discretionary-function exception to government liability (and a Smokey Wire contributor was involved).  The FTCA is a federal law that allows people to receive compensation from the United States for damages caused by federal government employees’ negligence or wrongful acts, but not for acts where those employees have discretion to act.

Court decision in Strawberry Water Users Ass’n v. U. S. A. (10th Cir.)

On July 30, the Tenth Circuit Court of Appeals affirmed a district court’s dismissal of claims against the Forest Service for damages to private property from two 2018 fires on the Uinta-Wasatch-Cache National Forest that were initially managed to contain rather than suppress the fires.  The court held that the Federal Tort Claims Act exception for discretionary functions of government applied in this case to prevent jurisdiction by the court.

The court examined the provisions in the applicable forest plans, which allowed for wildland fire use.  Forest Plan guidelines also require the Forest Service to produce annually a “Default Initial Fire Response Map,” referred to as the “Red/Green Map,” which  communicates to the public the “areas in which fire starts might be considered as a means to meet Forest Plan objectives.”  The Bald Mountain Fire and Cold Creek Fire started in areas where fire use could occur, and an incident decision was made to monitor and contain the fires after considering many factors.  Unexpected winds caused the fires to burn over 100,000 acres over the next month.

Plaintiffs alleged that the Forest Service acted outside of its authority by burning lands outside of its jurisdiction, and therefore this was not a “discretionary function.”  Plaintiffs relied heavily on “a declaration by its expert, Franklin Carroll, a retired Forest Service policy analyst, to support the contention that ‘the Forest Service implemented a national strategy of purposefully using anticipated natural wildfire to immolate private and nonfederal public lands and communities, forcing upon them its vision for people beyond its boundaries to live with wildland fire.’”

The court disagreed, stating that NFMA “expressly requires the Forest Service to develop and maintain Forest Plans that permit the limited use of wildfires,” and pointing out the National Cohesive Wildland Fire Management Strategy’s authority to “use fire where allowable.” The court concluded “there is no evidence to indicate that the Forest Service intended to burn land outside the UWC National Forest.”

Plaintiffs also contended that NEPA compliance was necessary for the Red/Green Map, and without that the Forest Service had no discretion and must suppress fires.  The court pointed out that, “The relevant statutes, National Strategy, and Forest Plans do not declare that extinguishing fires is the default action,” and held that,

 The Forest Service’s authority in responding to wildfires does not come from the Map, but from the FLAME Act and the NFMA. Those statutes grant the Forest Service the clear discretion to manage wildfires that arise on its lands. The Red/Green Map merely functions as a means to communicate to the public “areas in which fire starts might be considered as a means to meet Forest Plan objectives.” It is far from “specific and mandatory.” Whether or not the Red/Green Map was properly promulgated, the Forest Service still had the discretion necessary for application of the discretionary-function exception.

(And in any case, NEPA compliance must be determined under the Administrative Procedure Act rather than the Tort Claims Act.)

Here’s what I take home from this (which should not be considered legal advice):

  • Compliance with NEPA has no bearing on the authority for discretionary functions under the Tort Claims Act.
  • If a forest plan (or larger policy) made fire suppression mandatory (for all or part of a national forest), then deciding to not suppress a fire there could expose the agency to liability under the Tort Claims Act because the discretionary-function exception would not apply.)

 

TRO imposed and lifted in Salt River Wild Horse Management Group v. U. S. Department of Agriculture (D. Arizona)

On August 2, the district court found that plaintiffs were unlikely to succeed on the merits of their argument that the Apache-Sitgreaves National Forest did not give proper notice to the public that they would sell 13 horses considered to be feral.  The court did require a new 5-day notice, which may enable plaintiffs to acquire the horses and prevent their potential slaughter.  According to this article (which has a link to the order):

Since 2022, the forest service has been removing horses, known locally as the Alpine herd, at the request of the Center for Biological Diversity and other conservation groups who say the horses — who disappeared from the fossil record during the last ice age before their return alongside the Spaniards — are now destroying the native ecosystem that evolved in their absence.

New lawsuit:  BlueTriton Brands v. U. S. Forest Service (D. D.C.)

On August 6, the company producing Arrowhead 100% Mountain Spring Water sued the Forest Service for denying its application for a new permit to continue to pipe water from Strawberry Creek on the San Bernardino National Forest. (The article includes a link to the complaint.)  State officials determined last year that the company has been unlawfully diverting much of the water without valid water rights.  The Forest Service had also been unable to verify how the water was actually being used.  They ordered BlueTriton to remove their infrastructure a month after a local environmental group, Save Our Forest Assn., filed a lawsuit against the Forest Service arguing the agency was illegally allowing the company to continue operating under a permit that was past its expiration date.

New lawsuit:  Center for Biological Diversity v. Moore (D. New Mexico)

On August 12, the Center for Biological Diversity and Maricopa Audubon Society sued the Forest Service for the third time over its authorization of livestock grazing on the Sacramento Allotment on the Lincoln National Forest.  The complaint alleges that the Biological Opinion improperly assumes that conservation measures that have failed in the past will protect the New Mexico jumping mouse from cattle grazing in riparian areas.  The news release includes a link to the complaint.

BLM

New lawsuit:  Hualapai Indian Tribe v. Haaland (D. Arizona)

On August 2, the Hualapai Tribe and Earthjustice sued to stop the BLM from allowing 131 test holes to be drilled over 613 acres to find lithium in the Big Sandy River watershed.  The site surrounds tribal land that includes Ha’Kamwe’, a hot springs, which has long been central to Hualapai culture and traditions, and there is a particular concern about effects on water resources.  The article includes a link to the complaint, which alleges violations of NEPA and the National Historic Preservation Act.

New lawsuit:  Washington County, Utah v. U. S. Department of the Interior (D. Utah)

On August 6, plaintiffs filed a lawsuit against the BLM and Fish and Wildlife Service for withdrawing their Biological Opinion and reinitiating consultation on a proposed highway through the Red Cliffs National Conservation Area and its effects on the Mohave desert tortoise.  The county also alleges violations of Section 10 of ESA, which governs a habitat conservation plan the county prepared to allow incidental take of the species.  The withdrawal of the Biological Opinion was the result of settlement of a prior lawsuit brought by conservation groups, discussed here. (The article includes a link to the complaint.)

ENDANGERED SPECIES

Notice of Intent to Sue

On July 15, Wilderness Watch, Western Watersheds Project, WildEarth Guardians, and Friends of the Clearwater sent a notice of intent to sue the State of Idaho for violations of the Endangered Species Act over state hunting authorizations that put grizzly bears at risk.  Idaho allows hunters to attract black bears to baiting sites in some parts of the state, which has resulted in killings and habituation of threatened grizzly bears.  This lawsuit, alleging illegal incidental take by the State under the ESA, was filed shortly after a previous lawsuit against the Forest Service (discussed here) was dismissed because “new information” was not sufficient to require reinitiation of consultation by the Forest Service on their 1995 national policy on bear-baiting.  (That dismissal occurred on the same day that another grizzly bear was mistakenly shot at a bait station.)  This notice was not sent to the Forest Service.

  • 2024 ESA regulations

New lawsuit:  Center for Biological Diversity v. U. S. Department of the Interior (N.D. Cal.)

On August 1, the Center for Biological Diversity, Sierra Club and WildEarth Guardians challenged the Biden Administration’s revised Endangered Species Act regulations, focusing on the portions that retained some of the changes previously made by the Trump Administration in 2019.  They seek to reinstate the pre-2019 Regulations.

New lawsuit:  National Hydropower Association v. U. S. Fish and Wildlife Service (D. D.C.)

On August 2, the National Hydropower Association and Northwest Hydroelectric Association challenged the same regulations.  They seek to reverse the new requirement to include mitigation measures as a condition of obtaining a hydro license.  They allege that this is outside of the authority granted to the regulatory agencies by the Endangered Species Act.

(Both articles include links to the complaints.)

Court decision in Center for Biological Diversity v. Haaland (D. Montana)

On August 6, the district court reversed the decision by the U. S. Fish and Wildlife Service to not list the Upper Missouri River Distinct Population Segment of Arctic Grayling under the Endangered Species Act.  The judge faulted the FWS’ reliance on the benefits of a voluntary conservation program set to expire in two years, and its flawed analysis of the stability of the species in the Ruby River.  The few remaining populations face a variety of threats, including irrigation withdrawals that reduce flows and raise stream temperatures, climate change, and habitat degradation due to livestock grazing, roads and agriculture.  The article includes a link to the ruling.

OTHER

Court decision in Xerces Society for Invertebrate Conservation v. Shea (D. Oregon)

On August 2, the district court invalidated the Animal and Plant Health Inspection Service’s program to control grasshopper and Mormon cricket populations, which allowed insecticide spraying on millions of acres rangelands, much of it public lands.  The court held that the 2019 EIS and associated Record of Decision, as well as associated state-level EA/FONSIs for Oregon, Idaho, Wyoming, and Montana, violated NEPA.  The court found APHIS failed to consider preventative strategies (not just pesticides), the baseline conditions of butterflies, moths and native bees in spray areas, and the cumulative effects of its program when combined with other pesticide spraying in these areas.  The news release has a link to the opinion.

 

 

 

Federal Lands Litigation – update through July 31, 2024

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FOREST SERVICE

Preliminary injunction in Yellowstone to Unitas Connection v. Marten (D. Montana)

On July 12, the district court granted plaintiffs an injunction of the noncommercial vegetation treatments in the Pintler Face Project on the Beaverhead-Deerlodge National Forest, while denying the request to enjoin salvage harvest in the four commercial timber sales (which were mostly ongoing).  The court found that plaintiffs would be likely to win their argument that the Forest Service violated NEPA when it (1) failed to prepare a NEPA analysis for the 2020 decision to reclassify over a million acres as no longer lynx habitat (which had the effect of changing where forest plan direction would be applied), and (2) unlawfully tiered the Project EA and DN/FONSI to the new map.  We discussed this case previously here.

Conviction reversed (10th Circuit)

On July 16, the 10th Circuit Court of Appeals reversed a conviction for posting on a personal account a photo that depicted an individual snowmobiling over a jump in a terrain park at Keystone Resort when the property was closed. The U.S. government successfully prosecuted the individual for trespassing and conducting unauthorized work activity on national forest land.  The circuit court reversed the conviction for the latter charge, finding that, “It is one thing to require a movie producer or a photographer for Vogue to seek a permit for using public lands to conduct their business … But it is another thing to say that same individual is liable under the regulation when he or she visits (Forest Service) lands for a ski trip and makes a personal video for Instagram.”  The defendant had admitted this incident was related to his business.  The question of whether the trespassing charge requires a jury trial could be addressed to the Supreme Court.

Court decision in Knezovich v. U. S. A. (10th Circuit)

On July 26, the 10th Circuit Court of Appeals upheld the district court’s dismissal of claims for damages from the Roosevelt Fire on the Bridger-Teton National Forest to property owners and hunters who said rangers failed to adequately warn them to evacuate.  Plaintiffs also claimed the Forest Service delayed actions to suppress the fire in order to accomplish resource benefits.  The Forest Service disagreed.  However, the court did not reach the merits of that argument, holding, “We have little trouble concluding that the ‘nature of the actions’ taken by the Forest Service involved the exercise of policy judgment of the sort the exception is meant to protect” (referring to the “discretionary function” exception to potential liability in the Tort Claims Act).

BLM

Court decision in Cascadia Wildlands v. U. S. Bureau of Land Management (D. Oregon)

On June 28, the district court upheld the Big Weekly Elk project, consisting of logging and thinning on about 1,500 acres in southwestern Oregon.  The court interpreted the BLM’s resource management plan to support the BLM’s decision to exclude “edge effects” resulting from tree removal when it considers effects on the marbled murrelet’s nesting habitat to determine where plan direction for murrelets applies.  The court found no violations of FLPMA or NEPA.

The court applied “Auer deference” to its review of the forest plan, as if it were an agency regulation.  Similar to the Chevron test of statutory interpretation, this required finding that the plan was ambiguous regarding the meaning of the phrase “modifying nesting habitat.”  The court did this, and then reviewed in detail the language in the plan documents and the FWS Biological Opinion for murrelets and found sufficient evidence that BLM’s application of the plan falls “within the bounds of reasonable interpretation.”  The court concluded:

“… it makes little sense to require strict, 300-foot buffers for potential impacts from indirect edge effects from treatments in adjacent stands while encouraging—with the long-term goal of increasing nesting habitat via habitat restoration treatments—direct impacts from treatments within the occupied stand itself.”

An EIS was not necessary because any significant effects were already considered in the 2016 Resource Management Plan EIS, long-term benefits would outweigh any short-term concerns, and the Biological Opinion for the Project found minimal effects on spotted owls and murrelets.

Court decision in Alliance for the Wild Rockies v. Haaland (D. Montana)

On July 1, the district court upheld the Scratchgravel Hills Recreation Area Management Plan for BLM land north of Helena, Montana, which was designated as a 5500-acre Special Recreation Management Area in the applicable resource management plan.  The Scratchgravel RAMP will result in 35 miles of new trails, and implement two trail systems: one for hikers and horseback riders only and the other for mountain bikers only.  The decision, based on an EA, complied with NEPA and with the RMP, and “adhered to the principles of multiple use, as required by FLPMA.”  The court also found that a proponent/consultant and the public users and homeowners whom he surveyed fail to meet the characteristics of an advisory committee under FACA.

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

On July 11, the Center for Biological Diversity and the Maricopa Audubon Society sued the BLM and U. S. Fish and Wildlife Service over management of cattle grazing on three allotments in riparian habitat along the Big Sandy River in Arizona.  Plaintiffs have found damaged riparian areas, and allege the agencies violated ESA by not reinitiating consultation on the allotments after the listing of the endangered southwestern willow flycatcher, the threatened western yellow-billed cuckoo and the threatened northern Mexican garter snake, while also failing to consult on renewal of 10-year grazing permits.  The article includes a link to the complaint.

New lawsuit:  American Farm Bureau Federation v. U. S. Dept. of the Interior (D. Wyoming)

On July 12, eleven agricultural, mining and energy organizations filed a lawsuit against the BLM’s recently adopted “Conservation and Landscape Health Rule.” Plaintiffs allege violations of FLPMA associated with the conservation leases the rule provides for, its treatment of Areas of Critical Environment Concern, and its public involvement.  They also challenge BLM’s use of a categorical exclusion.  (The article includes a link to this complaint.)

Another lawsuit filed in June was described here.  On July 25, the Southern Utah Wilderness Alliance, Conservation Lands Foundation, and the Wilderness Society filed a motion to intervene in that case.  Legislation was also passed in the House of Representatives that would withdraw the Rule (The Western Economic Security Today – WEST Act).

Court decision in Wilderness Society v. U. S. Department of Interior (D. D.C.)

On July 16, the district court refused to vacate the BLM’s decision to lease almost 120,000 acres of land for oil and gas development.  While it had found in March (described here) that the BLM violated NEPA when making its decision, and prohibited the leases from proceeding, it concluded that, “In light of the ‘serious possibility’ that the Bureau will be able to substantiate its prior conclusions and the disruptive effects of setting aside the existing leases, the Court finds that vacatur is not the appropriate remedy in this case.”  The article includes a link to the opinion.

ENDANGERED SPECIES

New lawsuit

On July 2, Animal Wellness Action Center For a Human Economy filed a lawsuit in Montana against the U. S. Fish and Wildlife Service’s decision to not relist the northern Rocky Mountains gray wolf under the ESA.  Two previous cases were filed in April and were described here.  This one was directly tied to a February wolf torturing incident, about which a retired Fish and Wildlife Service game warden was reported to say that Federal land management agencies such as the U.S. Forest Service and Bureau of Land Management likely already have the authority to ban the practice on the lands that they control.  (Copy of the complaint not provided.)

 

Middleman Treatment Before and After Photos From the EA

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Thanks to Matt Koehler for linking to the Middleman EA.  I briefly ran through the EA  and noted the photos.. they help a lot for us folks from California, Oregon, New Mexico or even North Carolina to understand what the forests and treatments look like in Region 1.  Shout-out to the Districts for the photos!  I copied them via screenshots from the EA, so to compare before and after,  you have to look at the figure # plus the before and after treatment description.

Pintler Face Project: Why Wait Three Years to Litigate?

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Going through the Fix Our Forests litigation tweaks (which hopefully someone understands better than I), I was reminded of another Nick Smith story about the Pintler Face Project on the Beaverhead-Deerlodge. I did see a time limit for filing in Fix our Forests, which seems like a good idea, especially when we look at this case.

According to AFRC,

Almost three years after the Pintler Face Project’s approval, and after nearly half of the commercial timber harvest had been completed, anti-forestry groups filed a complaint alleging that the Forest Service violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Three months later, just as commercial harvest was about to resume, anti-forestry groups filed a motion for a preliminary injunction to halt all project activities, alleging irreparable harm under their NEPA and ESA claims.

On June 25, Judge Christensen held a hearing on the preliminary injunction, with strong support for the Forest Service, AFRC, and Defendant-Intervenors, evidenced by over 30 supporters present in the courtroom. This community support underscores the importance of projects like Pintler Face, which benefit forest health and the rural communities relying on a steady source of timber from federal lands.

In his decision, Judge Christensen ruled that the commercial harvest component of the project, encompassing 3,934 acres, can proceed. However, the non-commercial work, covering 7,765 acres, is enjoined until the court decides the case’s merits. Operations, which were suspended in May, can now resume on July 16 following the spring bear season’s close.

The Pintler Face Project includes four timber sales, all timber salvage contracts aimed at removing dead and dying trees from pine beetle infestations. One sale is complete, two are approximately 25 to 30 percent complete, and the last is set to begin in November.

Anti-forestry challenged the project based on a remapping of lynx habitat by the Forest Service in 2020, which reduced habitat without a NEPA analysis. They also contested the adequacy of the Fish and Wildlife Service’s Biological Opinion (BiOp) for the project concerning the grizzly bear.

During the hearing, the federal attorneys argued for the dismissal of anti-forestry groups’ claims on the 2020 remapping due to their failure to raise concerns during the project’s objection and public commenting period. The government also argued against the preliminary injunction, highlighting the groups’ nearly three-year delay after the project’s approval in 2021 to file their motion.

In denying the injunction, Judge Christensen recognized that enjoining the project’s commercial activities would harm the local, timber-dependent communities, noting the significant economic investments made and the many jobs provided by Iron Pine and Sun Mountain. The judge highlighted the salvage nature of the commercial work: “Because dead and dying timber loses its commercial value rapidly, even a short-term injunction would jeopardize the local economy.”

Here’s a link to the project site. It has a 367 page EA, an 84 page Decision Notice, and the Decision Notice was signed on 9/09/21. To me, the timing of half-way through the completion of the project seems odd.  I wonder why the plaintiffs chose that timeframe.

The story says plaintiffs “challenged the project based on a remapping of lynx habitat by the Forest Service in 2020, which reduced habitat without a NEPA analysis.” Not to sound too Ohio Forestry-esque, but mapping without specific projects doesn’t actually reduce habitat.  And that was done in 2020 before the decision was made, so they could have commented or objected.  There must be more here than meets the eye. Plus the trees involved are dead or dying.   Guess who the plaintiffs are?  AWR, Native Ecosystems Council and a group called Yellowstone to Uintas. Y to U advocates for a wildlife corridor, from Yellowstone to the Uinta Mountains in Utah. Now I’m not the greatest at Montana geography, but the site of the Pinteler project doesn’t seem anywhere near the corridor that Y to U’s are proposing.

Anyway, back to the discussion we had here.  There is something different about Montana (or R-1) and I think it’s due to the presence of certain litigation-oriented groups.  And I don’t think the FS or BLM proposing only projects supported by AWR is a good solution.