Litigation

Montana Republicans have had more fun this year than in the last 16 when their creativity was blocked by a Democratic governor.  This year they advanced a couple of ideas that might look good to those who don’t like environmental litigation.  However, they were too extreme for even a supermajority legislature and a Republican governor.

A measure introduced late last week by Sen. Duane Ankney, R-Colstrip, that would have directed the Department of Justice to investigate environmental groups is likely dead after a free conference committee voted to strike it from House Bill 693. Among other things, Ankney’s amendment would have empowered the Department of Justice to investigate environmental groups’ membership lists, funding, engagement in political speech, and influence on the government’s regulatory or permitting actions.

Democrats on the committee questioned if the measure would hold up to a judicial challenge and said they were troubled by the lack of a definition for “environmental organization.” Sen. Ellie Boldman, D-Missoula, wondered aloud if groups like the Rocky Mountain Elk Foundation would be subject to investigation. Ankney replied that was not his intention. Earlier in the meeting he’d said that his bill was directed at investigating groups that target natural resources issues with rhetoric.

The end of this article also discusses another bill that was still pending, Senate Bill 278, which then passed.  However, it was vetoed by a very conservative governor.

Governor Greg Gianforte on May 14 vetoed SB 278, a bill that contained provisions designed to penalize nonprofit environmental organizations. SB 278 would make nonprofit legal actions “challenging or supporting a government action” a taxable action under unrelated business income, and also require a nonprofit that challenges or supports a government action to – “under penalty or perjury” – file documentation with the Montana Attorney General listing the source of each donation over $50.

There would be serious constitutional questions about “rhetoric” (also known as “freedom of speech”), but I’m sure that won’t stop them from trying again.

These recent case developments are evidently not covered in a Forest Service litigation summary.

• Rock Creek Mine

Court decision (Forest Service):  Ksanka Kupaq Xa’lcin v. U. S. fish and Wildlife Service (D. Mont., April 14, 2021) (The news release includes a link to the opinion.)

The district court vacated the decision to permit construction of an evaluation adit for the Rock Creek Mine Project under the Cabinet Mountains Wilderness on the Kootenai National Forest without considering the effects of mine development, operations and reclamation in the biological opinion prepared pursuant to the Endangered Species Act.  The court found that, while the Forest Service has the authority to limit its current authorization as it sees fit, the Fish and Wildlife Service was required to explain adequately “why a comprehensive biological opinion addressing later development would be unproductive in assessing the impacts of the Project,” and “not only was a more comprehensive biological opinion possible, but that such opinions had already been completed” (in earlier iterations where the project had been considered as a whole).  The history of this project showed that mine operations are “reasonably certain to occur,” so their effects must be evaluated, even though the Forest Service had not formally permitted those operations to occur.

• Idaho Sheep Experiment Station

Court decision (Agricultural Research Service):  Western Watersheds Project v. U. S. Sheep Experiment Station, (D. Idaho, April 16, 2021)  (The court’s opinion is here.)

In the latest action in litigation that began in 2007, the court held:  “The Sheep Station/ARS acted arbitrarily and capriciously under the APA by failing to take the required hard look mandated by NEPA at the impacts of the project by (1) not adequately addressing its direct and indirect effects on non-ARS allotments (including on the Caribou-Targhee National Forest), (2) not sufficiently examining its impacts on bighorn sheep and grizzly bears, and (3) not objectively analyzing alternatives.”

• Wenatchee allotments

Court decision (Forest Service):  WildEarth Guardians v. Bail, (E.D. Wash., April 20, 2021)  (This case was previously discussed here.)

The court denied plaintiffs’ motion for a preliminary injunction against sheep grazing on four allotments (of the seven under litigation) on the Okanogan-Wenatchee National Forest.  The court found no “significant threat of irreparable injury in the absence of injunctive relief,” because domestic sheep would still be grazed on proximate private and state-owned lands, and therefore the court did not address the merits of the case.  Those are related to delay in addressing new information about the effects on bighorn sheep until after the forest plan is revised.

• Idaho phosphate mine

New lawsuit (BLM):  Center for Biological Diversity v. U. S. Bureau of Land Management, (D. Idaho, filed April 27, 2021).  (This article has a link to the complaint.)

The proposed Caldwell Canyon Mine in southeast Idaho’s “Phosphate Patch” would extract the raw material to make glyphosate, which is primarily used in Bayer’s Roundup herbicide.  The three plaintiffs claim BLM’s approval of the mine violates the National Environmental Policy Act with its inadequate EIS reviews of effects on sage grouse and selenium pollution.  (No mention of the effects of using Roundup, which to me would be similar to NEPA requiring evaluation of the use of fossil fuels that results from oil and gas leasing.  But maybe it’s because EPA is responsible for that.)

• Spotted owl critical habitat

Update (Fish and Wildlife Service):  The U. S. Fish and Wildlife Service has announced that it has delayed a decision on northern spotted owl critical habitat until December.  Plaintiffs in litigation opposing the vast acreage reduction adopted by the Trump administration are happy; plaintiffs in litigation opposing the delay in adopting the new designation are not.  (Those cases are discussed here.)

Interestingly, the Fish and Wildlife Service under the Biden administration has just followed through on the reduction of critical habitat for the northern Mexican garter snake from its original proposal in 2013 of 421,423 acres to 20,326 acres.  The remaining units of critical habitat include lands on the Tonto, Coronado, Coconino and Prescott National Forests.  (That is summarized here, with a link to the Federal Register notice.)

• Mt. Rushmore

New lawsuit (National Park Service):  The State of South Dakota is suing the Park Service for failing to grant a permit for a fireworks show on the Fourth of July.  While the Trump administration had signed a Memorandum of Understanding for such permits, the Park Service determined:

“Potential risks to the park itself and to the health and safety of employees and visitors associated with the fireworks demonstration continue to be a concern and are still being evaluated as a result of the 2020 event… In addition, the park’s many tribal partners expressly oppose fireworks at the Memorial. These factors, compiled with the COVID-19 pandemic, do not allow a safe and responsible fireworks display to be held at this site.”

The full Forest Service summaries are here:  Litigation Weekly May 7 and 14 2021_Email

Abbreviated summaries below include links to related court documents.

COURT DECISIONS

• Att1_Hanna Flats MSJ decision

Alliance for the Wild Rockies v. Higgins, (D. Idaho) – On April 27, 2021, the district court remanded the Forest Service’s categorical exclusion and decision memo for the Hanna Flats project on the Idaho Panhandle NF to the Forest Service to issue a supplemental decision memo explaining the how the project falls under the definition of wildland-urban interface under the Healthy Forest Restoration Act.  The district court held that, “[b]y not using the statutory definition of a wildland-urban interface, the USFS violated HFRA, thus rendering its use of the categorical exclusion unlawful” and noted that the Forest Service never provided a clear explanation of how the entire project area could be defined as a “wildland-urban interface.”  (Plaintiff’s view of the decision is provided here.)

Blogger’s note:  It appears to be common for revised forest plans to refer to the WUI as a location for certain kinds of management, and they also fail to include maps or provide any basis for what areas are considered WUI.  While forest plans do not rely on HFRA categorical exclusions, this approach raises questions about whether the plans properly identify areas where plan components apply as required by 36 CFR §219.7(d) and (e).

• Att4_2-BarRanch_OrderReversingAndRemanding

2-Bar Ranch Limited Partnership v. USFS, (9th Cir.) – On May 6, 2021, the 9th Circuit Court of Appeals reversed the District Court of Montana’s partial grant of summary judgment to plaintiff rancher permittees concerning the decision to apply the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment on the Beaverhead-Deerlodge National Forest.  The court held that the 2009 revised forest plan allowed for continued application of range seasonal utilization requirements previously established through a site-specific allotment management plan and NEPA analysis instead of using newer forest plan default requirements that would have been more lenient to the permittees.  The 9th Circuit also held that the Equal Access to Justice Act does not provide for attorney fee recovery in Forest Service administrative proceedings.

NEW CASES

• Att2_Complaint filed_4-28-21 – Copy

Alliance for the Wild Rockies v. Lannom, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint concerning the Horsefly Project on the Helena-Lewis and Clark National Forest. The complaint alleges the project includes a forest plan Amendment to exempt the project from two forest plan standards that protect elk hiding cover because the project violates those standards.  The complaint also addresses old growth and goshawks.

• Att3_Friends v. Probert 21cv189_COMPLAINT

Friends of the Clearwater v. Probert (D. Idaho) – On April 28, 2021, plaintiff filed a complaint challenging the approval of two logging projects known as the  “End of the World” (50,000 acres) and “Hungry Ridge” (30,000 acres) projects on the Nez Perce-Clearwater National Forests without preparing an EIS (for 19,000 acres of logging).  Issues include effects on old growth and several species, including listed grizzly bears, lynx, salmon and steelhead, and failure to consult under ESA for grizzly bears.

• Att4_Elk Smith Complaint_filed-2

Alliance for the Wild Rockies v. Munoz, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint regarding approval of the Elk Smith Project on the Helena-Lewis and Clark National Forest, which is within an inventoried roadless area.  The project calls for the removal of small-diameter trees and prescribed burning in an area that burned in the Canyon Creek Fire of 1988.  (Additional background is provided here “Twin Metals Mine.”)

OTHER AGENCIES

• Att5_20210427_NorthMet_18-1952_PolyMetCopperMinePermt – Copy

NorthMet Mining Project, Superior National Forest (not Region 1, as indicated in the Forest Service summary).  On April 28, 2021, the Minnesota Supreme Court ordered a remand to the state Department of Natural Resources to conduct a contested case hearing and to determine an appropriate definite term for the permit to mine as necessary.  (This appears to be related to prior discussions of mining near the Boundary Waters Wilderness we have discussed  previously, most recently here.)

• Att5_20210503_Complaint_ArmyCorps – Copy

Center for Biological Diversity v. Spellmon, (D. Mont.) – On May 3, 2021, plaintiffs filed a complaint alleging the Army Corps of Engineers violated the Endangered Species Act, National Environmental Policy Act, and Clean Water Act when it issued Nationwide Permit 12 for oil and gas pipelines.  (Additional background is provided here.)

Yesterday we had a discussion about what kind of evidence we might use to determine that there are, or are not, problems with the current FS NEPA-Litigation process. Another way to see if there are problems is to ask people directly “what are the problems you perceive?”  The EADM Roundtables that the Forest Service conducted a few years ago received much input about the problems people saw, as well as suggestions as to what to do about them.

Here’s an op-ed by Jack Smith and Holly Fretwell from last week:

After more than 15 years of delay, the Bozeman Municipal Watershed Project will finally move forward this spring—a victory for the U.S. Forest Service, wildfire resilience, and above all, the people of Bozeman.

And they specify what they see as the downsides of litigation (note, not NEPA):

But litigation has at least three serious downsides. First, it’s slow. And for a city like Bozeman, delays carry a potentially enormous cost. As appeals have played out, Bozeman has continued to face real risk from wildfire, illuminating the need for quicker processes to resolve conflict and develop collaborative forest management solutions.

Litigation also costs the Forest Service, taking time and dollars away from forest management. In a day and age when wildfires consume an ever-larger portion of the agency’s budget, dollars that remain would be most wisely spent getting ahead of wildfire risk rather than defending projects that aim to do so.

Last, the added delays and uncertainty caused by litigation can hold back partners, like the city of Bozeman, who want to invest in wildfire resilience but who need to know what the Forest Service will do in order to plan complementary work.

They acknowledge that litigation had value:

These repeated legal challenges have ultimately deepened the project’s environmental analysis and assuaged concerns about the project’s impacts, particularly on endangered species.

I assume that somewhere along the line, the proposal itself had changed for the better, not just the documentation.

I think we’re all familiar with their first and second points. What I think hasn’t been explored much, though, is the impact of Litigation-Induced-Uncertainty (about time, place, and if at all) on the efforts of other entities. Clearly this has been problematic for people who work in the timber industry, and they have been pretty open about that. But what’s it like to have the Forest Service trying to do something for 15 years for those potentially impacted from fire, sediment, and so on, and other landowners who want to plan what to do?

In a recent report by PERC, Fix America’s Forests, we suggest multiple ways Congress can help the Forest Service avoid long delays without sacrificing litigation’s important role. A good place to start would be to clarify how courts should decide whether to block forest restoration projects while deficiencies revealed by litigation are fixed.

Currently, when a court finds that a project’s environmental analysis is insufficient in some way, it has to decide whether to block the project or to allow it to proceed while the agency performs additional study. Congress could clarify how courts should weigh the risk of delay versus its potential benefits when making this decision. Congress could also require that challenges to forest restoration projects be filed quickly after those projects are approved, giving the Forest Service and partners early notice of whether litigation will affect a particular project.

My bold.. do you think it’s possible to agree that speeding up the process would be a good thing? Is 15 years to plan a 4,700 (?) acre fuel treatment project too long? And if so, what are your ideas for speeding things up?

One more thought: if reducing wildfire extent helps with climate change, and if dealing with large fires is adapting to climate change, then wouldn’t we want to speed up climate mitigation and adaptation if possible?

Well, this first “weekly” we’ve received from the Forest Service since March 5 has a summary of one new Notice of Intent to Sue:  Litigation Weekly April 30, 2021_Email

• NOI Friends of Clearwater re Hungry Ridge Project Nez Perce NF

On April 15, 2021, Friends of the Clearwater sent a 60-day notice of intent to sue the Forest Service alleging violation of the Endangered Species Act for approving the Hungry Ridge Restoration Project on the Nez Perce National Forest without consulting on grizzly bears, which “may be present” in the project area.  (The Summary also mentions a similar NOI received on February 22, 2021, on the End of the World Project).

But here are a few other things that were going on during the first part of April.

• BLM Factory Butte closure

Court decision:  Natural Resources Defense Council v. McCarthy (10^th Cir., April 8 2021)

The circuit court affirmed a decision by the District Court for the District of Utah, and held that the BLM was not required by NEPA to evaluate the effects reopening an area it had temporarily closed to off-highway vehicles.  (However, BLM did apparently consult with the Fish and Wildlife Service about effects on the Wright fishhook cactus, which was the reason for the original closure.)  The court held that, under BLM’s temporary closure regulation, BLM had no discretion to retain the closure once it determined that adverse effects could no longer occur. The court also found that the closure was not consistent with the Resource Management Plan’s designation of the area as open to off-highway vehicles, and this also limited BLM’s discretion to maintain the temporary closure.

The district court decision was described here.

• Tiehm’s buckwheat listing

Court decision:  Center for Biological Diversity v. Bernhardt, (D. Nev., April 21, 2021).  (The news release contains a link to the court’s order.)  We previously discussed this case here.  

The district court gave the U. S. Fish and Wildlife Service 30 days to decide whether or not to list the Tiehm’s buckwheat and designate critical habitat under the Endangered Species Act because they failed make a timely 12-month finding on the plaintiffs’ petition.  A proposed lithium mine on BLM land would destroy as much as 90% of the global population.  The court dismissed the claim against BLM because they are under no obligation to respond to a petition from plaintiffs nor do they have a duty to act with regard to their planning requirements.  The FWS has now said they can’t meet this timeline, as explained here.

• ESA listings and critical habitat

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C., filed April 15, 2021)  (The article includes a link to the complaint.)

The FWS released a plan in 2016 to address a portion of the more than 500 species waiting for Endangered Species Act protection in the U.S, but plaintiffs say the agency neglected to make dozens of findings every year since because of interference from the Trump administration.  In this case plaintiffs complain about delays in listing decisions for nine species, including the Franklin’s bumblebee from Oregon, the Sierra Nevada red fox and Hermes copper butterfly from California, and Bartram’s stonecrop and Beardless chinchweed from Arizona; and critical habitat decisions for eight plants and the Suwannee moccasinshell found in Florida, and the pearl darter fish in Mississippi.

• Mark Twain timber theft

An Arkansas man pleaded guilty in federal court in Missouri to cutting timber and damaging trees in the Mark Twain National Forest, including removal of 27 walnut and white oak trees.  He may be sentenced to up to 10 years in federal prison without parole.  “The value of the timber was placed at approximately $20,269, and the ecological damage value of the trees cut from the national forest and remediation costs to the U.S. Forest Service totaled more than $44,000.”  (Does that say something about the economics of timber sales there?)

Here’s some news on three cases that we have followed recently:

• Tahoe e-bikes: Backcountry Horsemen of America v. U. S. Forest Service (E.D. Cal.)

This is the case where the Tahoe National Forest attempted to allow e-bikes on trails designated as open only to non-motorized uses (see the litigation summary here).  In response to the lawsuit, the Forest rescinded the decision.  They have now completed a new decision, the East Zone Connectivity Project, with the result that (according to this article in “Singletracks”) “35-miles of existing non-motorized trail will be open to class 1 e-bikes.”  The Forest website reiterates that, “E-bike use is currently not allowed on NFS roads and trails unless they are designated for motor vehicle use.”  (The only administrative objections to the new decision were later withdrawn.)

• Mendocino “roadside hazard trees:” EPIC v. Carlson (N.D. Cal.)

This was the case where the Ninth Circuit previously held that under no reasonable interpretation of the language of 36 C.F.R. § 220.6(d)(4) did the Ranch Fire Roadside Hazard Tree Project on the Mendocino National Forest come within the categorical exclusion for “repair and maintenance” of roads.  After receiving a preliminary injunction (see the litigation summary here), the Forest Service agreed to abandon six commercial timber sales, but the settlement would allow them to remove hazard trees in the project area “for non-sawtimber primarily non-commercial purposes,” following specific hazard tree guidelines.  (The article includes a link to the settlement agreement.)  The Forest Service also agreed to pay $191,000 in attorney fees.

• Prince of Wales project:  Southeast Alaska Conservation Council v. U. S. Forest Service (D. Alaska)

This is the case where the Ninth Circuit previously held that “condition-based NEPA,” which didn’t identify site-specific locations or effects, was invalid for the Prince Wales timber sale on the Tongass National Forest.  (See our prior  discussion of the case here.)  This settlement dealt solely with attorney fees; the Forest Service agreed to pay $210,000 of the $301,000 in fees allegedly incurred by the plaintiffs.

(Blogger’s note:  I see a pattern here.  I wonder if it might make a difference, when an official is about to make a legally suspect decision, if their risk analysis would be different if this money came out their operating budget instead of a separate fund.)

FOREST SERVICE

• South Fork Stillaguamish project (North Cascades Conservation Council v. U. S. Forest Service, W. D. Washington)

(Update.)  The North Cascades Conservation Council has a lawsuit pending against the South Fork Stillaguamish timber sale project, located on the Darrington Ranger District of the Mount-Baker Snoqualmie National Forest (which was apparently not picked up by the Forest Service litigation summarizer).  (This March 9 Order from the district court grants intervention to contractors, but it also provides some background on the case.)

• Mt. St. Helens (Cascade Forest Conservancy v. U. S. Forest Service, D. Washington)

(New Lawsuit.)  Several research scientists and conservation groups sued the Gifford Pinchot National Forest on March 22 to require an EIS before building a road through the blast zone of the Mount St. Helens National Volcanic Monument in order to repair the outlet from Spirit Lake.  (This article includes a link to the complaint.)

• National oil and gas leasing ban (State of Wyoming v. U. S. Department of the Interior, D. Wyoming)

(New lawsuit.)  On March 23, the State of Wyoming challenged the Department of Interior’s moratorium on oil and gas leasing on federal lands.  According Governor Gordon, “The question is whether it will be produced under the environmental safeguards in place on federal lands in Wyoming, or overseas without equally stringent regulations.”  (This article includes a link to the complaint.)

BLM

• Alton Coal Mine (Utah Physicians For A Healthy Environment v. US Bureau of Land Management, D. Utah)

(Court decision.)  On March 24, the district court remanded a BLM decision to authorize expansion of the Alton coal mine.  The court found that the BLM violated NEPA by failing to consider the adverse socio-economic impacts of greenhouse gas emissions in a manner commensurate with the economic benefits, and failing to consider cumulative effects of other reasonably foreseeable future GHG sources.  (The opinion is here.)

• Colorado land exchange (Colorado Wild Public Lands, Inc. v. Shoop, D. Colorado)

(Court decision.)  On March 25, the district court upheld a land exchange that added land to a private ranch.  With regard to NEPA, the newly private land would be protected from environmental impacts by a conservation easement, and on the newly public land the effects of increased recreation did not need to be considered until a “future site-specific management plan” is developed for that area.  NEPA also did not apply to appraisals because they are not a “component of a physical environment and cannot be reasonably understood as encompassing of parity in the value of the parcels to be exchanged.”  (The court’s opinion is here.)

• Grand Junction RMP (Center for Biological Diversity v. U. S. Bureau of Land Management, D. Colorado)

(Voluntary remand.)  On March 26, the district court approved a voluntary remand of the Grand Junction Resource Management Plan to the BLM in light of a decision by the court in a similar case for an adjacent plan that failed to adequately consider indirect emissions of oil and gas or to consider a reasonable range of alternatives.  (This news release includes a link to the Order.)

• Mojave Desert

On March 23, the Center for Biological Diversity and two other organizations sued to stop BLM’s grant of a right-of-way to pump water from an underground aquifer under the Mojave Trails National Monument and near the Mojave National Preserve.  (Center for Biological Diversity v. U. S. Bureau of Land Management, C.D. California.)  On March 24, the Center and four other organizations filed a notice of intent to sue the BLM and Fish and Wildlife Service over the California Desert Conservation Area Plan Amendments and Approvals for the West Mojave Route Network Project and Travel Management Plans.

ESA

• Spotted owl critical habitat

(New lawsuits.)  On March 5, the American Forest Resource Council along with the Association of O&C Counties, and counties in Oregon, Washington, and California challenged the Biden administration’s delay in implementing its decision to substantially reduce the critical habitat designated for the northern spotted owl.  On March 23, conservation groups challenged the Trump administration’s critical habitat decision by the U. S. Fish and Wildlife Service’s that is being delayed.  This article has a link to the complaint in the latter case (Audubon Society of Portland v. U. S. Fish and Wildlife Service, (D. Oregon)), and this article may have a working link to the former.

• Trump vs ESA

This article summarizes other recent lawsuits filed over Endangered Species Act decisions made by the Trump administration.  Several affect national forests.

On April 1, in the federal district court for the District of Columbia, the Center for Biological Diversity challenged the failure to list ten candidate species that the Fish and Wildlife Service found warranted for listing but precluded by species with higher priorities.  The species include the monarch butterfly, and the northern spotted owl, which was found warranted for relisting as endangered instead of threatened.  This article includes a link to the complaint in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.).

Multiple conservation groups sued the USFWS on March 25 over a decision to deny the north Oregon coast population of red tree voles protection under the Endangered Species Act.  This news release includes a link to the complaint in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Oregon).

Multiple conservation groups also sued the USFWS on March 24 for refusing to designate critical habitat for the endangered rusty patched bumblebee.  (This article includes a link to the complaint in Natural Resources Defense Council v. U. S. Fish and Wildlife Service, D. D.C.)

On March 31, the Center for Biological Diversity also filed a notice of intent to sue the National Marine Fisheries Service to make a decision on whether the Oregon coast spring-run chinook salmon warrants protection.  (This article provides further background.

• Roundtail chub listing (Center for Biological Diversity v. Haaland, D. Arizona)

(Court decision.)  On March 31, the district court reversed the decision by the U. S. Fish and Wildlife Service to withdraw its 2015 proposed listing of the lower Colorado River roundtail chub, which is found in Wyoming, Utah, Colorado, Arizona and New Mexico.  The court held that a recent determination that it is not a separate species did not relieve the FWS of responsibility to consider it as a distinct population segment of its species that could be listed.  The plaintiffs first petitioned the species for listing seventeen years ago.  (The court’s opinion is here.)

The last Forest Service litigation summary I’ve received and posted was dated March 5.  Here are a few more things that were going on around that time.

FOREST SERVICE

• Verde River grazing (Center for Biological Diversity v. U. S. Forest Service)

(Update.)  In this case involving livestock grazing on the Prescott, Coconino, and Tonto National Forests (introduced here), the federal district court for Arizona on February 20, 2021 refused to dismiss the U. S. Fish and Wildlife Service from the lawsuit because of this regulatory language, which (despite written FWS policy that says otherwise) requires both them and the action agency to reinitiate consultation:  “Reinitiation of consultation is required and shall be requested by the Federal agency or by the Service” (noting the absence of a comma after “required”).

• Middle Henrys project (Alliance for the Wild Rockies v. U.S. Forest Service)

(Settlement.) The Caribou-Targhee National Forest has withdrawn its decision on the Middle Henrys Aspen Enhancement Project after the lawsuit (and Notice of Intent to Sue under ESA) described here was filed.  The Forest Service declined to discuss the forest’s rationale for withdrawing the project other than saying “We couldn’t reach any kind of an agreement about some of their points.”

• Castle Mountains project

(New lawsuit.)  The Alliance for the Wild Rockies and Native Ecosystems Council filed a lawsuit to halt the Castle Mountains logging and burning project on the Helena-Lewis and Clark National Forest, and associated road construction.  This article provides more information about the project, and plaintiffs’ “complaints” are here.

• Wolf Creek FOIA (Rocky Mountain Wild v. U. S. Forest Service)

(Court decision.)  The “ongoing saga” of the Village of Wolf Creek continued with litigation about a request for information under the Freedom of Information Act.  On March 4, 2021, the federal district court for Colorado upheld the Forest Service’s choices of employees to contact, search terms used, locations searched, dates searched and its application of four FOIA exemptions.

• Wayne fracking (Center for Biological Diversity v. U. S. Forest Service)

(Court decision.)  On March 13, 2020, the federal district court for the Southern District of Ohio held that the Forest Service and BLM violated NEPA when the Wayne National Forest granted fracking leases based largely on analysis done for the 2006 forest plan (posted here). As discussed here, the remedy now granted to plaintiffs is to prohibit new drilling permits and surface disturbance on existing leases and water withdrawal for any drilling that’s already occurring, but not rescind existing leases.  (The Forest Service has initiated revision of the Wayne forest plan.)

OTHER AGENCIES

• Wildlife Services – Colorado (WildEarth Guardians v. Wehner) 

(Court decision.)  The Forest Service was a cooperating agency in a decision by USDA Wildlife Services for predator control in Colorado.  The federal court for the District of Colorado found that an EIS was unnecessary.

• Northern long-eared bat (Center for Biological Diversity v. Everson)

(Court decision.)  On January 28, 2020 the federal district court for the District of Columbia remanded the decision by the U. S. Fish and Wildlife Service to list the northern long-eared bat as threatened rather than endangered (see this litigation summary).  As described here, on March 1, 2021, the court imposed a deadline of 18 months after completion of a species status assessment expected to done in May, 2021.  The species is found on 15 eastern national forests (this document includes a range map on p. 4).

• Eastern hellbender

(Notice of Intent.)  On March 4, 2021, five conservation groups notified the U. S. Fish and Wildlife Service of their intent to litigate the decision to not list the eastern hellbender as threatened or endangered.  It is found on eastern national forests, including the Nantahala-Pisgah, Sumter, Daniel Boone, Monongahela, and Allegheny.