Litigation

FOIA in the Supreme Court

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The U. S. Supreme Court has issued its decision in United States Fish and Wildlife Service. v. Sierra Club (March 4, 2021), the Freedom of Information Act case we have discussed previously.  The EPA changed its proposal for cooling water intake structures at power plants after receiving a draft biological opinion from the consulting agencies that found the proposal would jeopardize listed species.  In a 7-2 decision, the Court reversed the lower court decisions and held that a draft biological opinion on the effects of the original proposal, which was shared informally between the EPA and the consulting agencies, was exempt from disclosure under FOIA as a predecisional and deliberative document.  Specifically, “the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.”  This shows that the consulting agencies did not “treat them as final,” which is consistent with the context of the consultation regulations.

The ESA consultation process makes this case more confusing than it needs to be.  Normally, drafts circulated among members of a government team would qualify as deliberative, but here the team is comprised of multiple agencies following prescribed interagency consultation procedures.  A “draft” biological opinion is specifically identified by consultation regulations, and it must be provided by the consulting agencies if requested by the action agency.  In this case, the draft was provided by consulting agency staff without official signatures.  Without those signatures, it was not the final position of the consulting agencies, even though it had the effect of EPA changing its proposal.  With those signatures, apparently a draft biological opinion would have been “final” for the purpose of FOIA, and should have been disclosed.  (This may or may not have been the result of good lawyering, but it would be good lawyering to so advise in the future.)

The Court doesn’t dig into the other aspects of this FOIA exemption, one of which is that factual material is not deliberative and must be released, or therefore the question I raised about the need to disclose the science on which the deliberations were based. Apparently, that would happen here on a remand to determine what is “segregable” non-exempt material.  I wonder whether the scientific conclusions about the effects of the original EPA proposal are also considered deliberative because they were not yet “officially approved.”

A more typical case, which does address this question, is this new one from the D. C. District Court involving Florida Key deer and its Species Status Assessment (Sierra Club v. United States Fish and Wildlife Service, Feb. 26. 2021).

On its face, a factual scientific report, produced “independently from any” regulatory or policy decisions, see FWS Letter Describing SSA, does not qualify as deliberative…  Nothing in this description indicates that the report contains “advisory opinions, recommendations[, or] deliberations” regarding the agency process at issue.

Yet, while the privilege does not generally extend to mere factual recitations, (citation omitted) “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.”  Such hesitation stems from the recognition that the drafter’s selection of facts can itself reveal the decisionmaking process.

This case also addresses the need for agencies to demonstrate harm to their deliberative process that would result from disclosing these records, which the Supreme Court does not address in the EPA case.  Public response to the case, including suggestions for congressional action, is discussed here.  (This article includes a picture of the the power plant at issue.)

NFS Litigation Weekly March 5, 2021

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The Forest Service summaries are here:  Litigation Weekly March 5, 2021_email

Links are provided for each case below.  (There are some signs of a new administration.)

COURT DECISIONS

Apache Stronghold v. United States (D. Arizona.) – On February 12, 2021, the district court denied the Plaintiff’s motion for temporary restraining order and preliminary injunction regarding the conveyance of Oak Flat Parcel on the Tonto National Forest to developers of the Resolution Copper Mine because plaintiffs could not show immediate and irreparable injury based on their claims based on violations of the First Amendment Right to Free Exercise of Religion, Right to Petition and Remedy, Fifth Amendment Right to Due Process, and statutory rights guaranteed by the Religious Freedom Restoration Act.

Blogger’s update:  On March 1, 2021, USDA directed the Forest Service to withdraw the Notice of Availability and rescind the FEIS and draft ROD.

Western Watersheds Project v. Bernhardt (D. Idaho) – On February 11, 2021, the district court vacated the BLM’s decision to cancel its previously proposed mineral withdrawal of 10 million acres of federal lands located in Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, which had previously been identified as Sagebrush Focal Area essential for the long-term health of sage-grouse.  The court found that the BLM failed to provide a reasoned explanation for reversing its prior position that the mineral withdrawal was needed, including failing to address the fact that the U. S. Fish and Wildlife Service had relied on that designation in its decision to not list the species under the Endangered Species Act.  The court also held that the decision to cancel the withdrawal did not trigger NEPA requirements.

Cascade Forest Conservancy v. Hepler ((D. Or.) – On February 15, 2021, the district court issued a preliminary injunction against the Goat Mountain Hardrock Mineral Prospecting Permits on the Gifford Pinchot National Forest based on two NEPA claims, while upholding three other claims and ordering further briefing on whether an EIS is required instead of an EA.  It also found no violations of the Land and Water Conservation Fund Act (which was the source of funding used to purchase the parcels at issue).

Friends of the Clearwater v. Higgins (9th Cir.) – On February 23, 2021, the circuit court affirmed the District Court of Idaho’s decision denying plaintiffs’ motion for a preliminary injunction in their challenge to the Brebner Flats timber harvest and road construction project on the Idaho Panhandle National Forest regarding its effects on grizzly bears and elk.

Organized Village of Kake v. Shea (D. Alaska) – On February 25, 2021, the district court granted the government’s motion to stay the case for 120 days or until the Department of Agriculture takes action regarding the Alaska Roadless Rule, whichever occurs first.  This involves the 2020 Exception that exempts the Tongass National Forest from the Roadless Area Conservation Rule, discussed previously here.

NEW CASE

Friends of the Columbia Gorge, Inc. v. USFS (D. Oregon) – On February 12, 2021, the plaintiff filed a complaint alleging that a 65-acre logging project on private forestland violates federal protections for the Columbia River Gorge National Scenic Area.

NOTICE OF INTENT

On February 22, 2021, Friends of the Clearwater sent a 60 day Notice of Intent to sue regarding the approval of the “End of the World” Project on the Nez Perce National Forest, alleging that the Forest Service violated ESA by failing to consult on the effects of the logging and road-building project on grizzly bears.

 

BLOGGER’S BONUS

Here’s a few other court-related activities that were going on around the same time.

  • Science

Environmental Defense Fund v. EPA (D. Montana.) – On January 27, 2021, the federal district court for Montana held that the Environmental Protection Agency failed to justify its decision to make the Strengthening Transparency in Science Rule (sometimes called the “secret science rule”) take effect right after its publication in the Federal Register, instead of after 30 days, as is typical.  The regulation would limit the EPA’s ability to write regulations that are unpinned by scientific research that can’t be reproduced or is based on underlying data that isn’t public.  As suggested in this article, the Biden Administration has decided to reconsider the regulation.

While that regulation pertains to medical data, in a coincidence (but not an unrelated story), on the same day, the Biden Administration issued a memorandum to all federal agencies, the “Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking.”  It requires federal agencies to, “conduct a thorough review of the effectiveness of agency scientific-integrity policies,” seeking to eliminate, “(i)mproper political interference in the work of Federal scientists or other scientists who support the work of the Federal Government and in the communication of scientific facts …”

(New case.)  A Nevada rancher and a coalition of conservation groups have filed separate lawsuits against the BLM’s January 15th decision to allow the Thacker Pass lithium mine in northern Nevada.  It could affect groundwater, sage-grouse and the federally listed Lahontan cutthroat trout, and Notices of Intent to Sue under ESA have also been filed.  (The article contains links to both complaints.)

(New case.)  A decision by the Ochoco National Forest to conduct a sanitation harvest of grand fir and Douglas-fir trees on 35 acres and tree thinning on 143 acres to manage root rot around Walton Lake, a popular recreation site, is being challenged again in federal district court.

January 2021 Litigation

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As I mentioned in conjunction with the February 18 NFS Litigation Summary, we missed a few things in January.  Here’s an attempt to catch up on that.  (You might get the impression that the last-minute efforts of the outgoing Trump administration have something to do with the flurry of new litigation.)

FOREST SERVICE

(New lawsuit.)  On January 8, 2021, several environmental organizations in the southeastern U. S. challenged the Forest Service’s November 19, 2020, adoption of new regulations implementing the National Environmental Policy Act (which we discussed here).  In particular, plaintiffs are concerned about the categorical exclusion allowing logging of up to 2800 acres without preparing an Environmental Assessment.  (We discussed this indirectly here.)

(New lawsuit.)  On January 8, 2021, the Alliance for the Wild Rockies filed a lawsuit claiming the Forest Service must reinitiate consultation with the U.S. Fish and Wildlife Service on the forest plan for the Helena-Lewis and Clark National Forest regarding new information about the impacts of illegal motorized road use on grizzly bears.

(New lawsuit.)  On January 11, 2021, the Forest Service issued a final Record of Decision that amends the Jefferson National Forest Land and Resource Management Plan to allow the Mountain Valley Pipeline project to move forward.  The ROD modifies certain standards in the Forest Plan to accommodate the pipeline construction.  Conservation groups sued just hours after the Forest Service decision was released.  In a separate proceeding before the Court of Appeals for the D. C. Circuit, the court refused to stay a decision by the Federal Energy Regulatory Commission allowing construction to begin elsewhere on the pipeline route.

(New lawsuit.)  On January 14, 2021, conservationists challenged the Stateline Range grazing project, a Forest Service decision that would allow livestock grazing across 271,665 acres of the Apache-Sitgreaves and Gila National Forests in Arizona and New Mexico over a 10-year period.

(Settlement.)  The federal government settled a lawsuit filed by the mining company regarding clean-up of existing mining waste on the site that is proposed for further development on the Payette and Boise National Forests.  The Nez Perce Tribe is continuing a separate Clean Water Act lawsuit against the company, and issued the statement linked above.

BLM

(Settlement.)  On January 6, 2021, the BLM agreed to stop drilling on more than 45,000 acres of oil and gas leases until officials revise land management plans in the Grand Junction and Colorado River Valley Field Offices.  The settlement results from a 2018 lawsuit challenging the agency’s failure to undertake site-specific environmental review when it approved the leases, instead relying on the allegedly inadequate resource management plans.

(Notice of Intent.)  On January 12, 2021, four conservation groups notified the BLM of its intent to sue for violations of the Endangered Species Act stemming from two decisions to build up to 11,000 miles of fuel breaks across 223 million acres of Bureau of Land Management public lands in the Great Basin.

(New lawsuit.)  On January 15, 2021.  The Colorado Department of Natural Resources filed a lawsuit in federal court challenging the Bureau of Land Management’s resource management plan for the Uncompahgre Field Office. The plan would open nearly one million acres of public lands to drilling and mining in southwest Colorado.  This case argues that, as in a case Montana won against the BLM, the decision is invalid because it was made by acting BLM Director William Perry Pendley who did not have authority to do so (discussed on this blog here).

  • Fracking:  WildEarth Guardians v. Bernhardt (D. D.C.) (This news release has a link to the complaint.)

(New lawsuit.)  On January 19, 2021, WildEarth Guardians and Physicians for Social Responsibility filed a complaint against BLM’s approval of 890 oil and gas leases encompassing over 1 million acres of public lands across Colorado, New Mexico, Utah, and Wyoming between March 2019 and December 2020.  This news release has also summarized recent and ongoing litigation against oil and gas leasing on public lands (but it didn’t include this additional case against the Pendley RMP decisions).

 

FISH AND WILDLIFE SERVICE

(Notice of Intent)  On January 5, 2021, the Center for Biological Diversity filed a Notice of Intent to Sue the U. S. Fish and Wildlife Service for delaying protection for 11 species that have been identified as warranting endangered status but were placed on a candidate list instead.  Included on that list is the northern spotted owl, which was found warranted for uplisting from threatened to endangered in December.

  • Salamander recovery plans: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.) (This news release has a link to the complaint.)

(New lawsuit.)  On January 13, 2021, The Center for Biological Diversity and Healthy Gulf sued the Trump administration today for failing to issue recovery plans for the endangered reticulated and frosted flatwoods salamanders.  The frosted flatwoods salamander is associated with the longleaf pine flatwoods that once extended across much of the Southeastern U.S. Today their range within Florida has been reduced primarily to the Apalachicola National Forest and a national wildlife refuge, and they are also found on the Francis Marion National Forest in South Carolina (and maybe others).

(New lawsuit.)  Seventeen states and New York City have filed a federal lawsuit against two final rules issued by the U. S. Fish and Wildlife Service in December that narrow the definition of “habitat” in a way that shrinks the amount of land designated as protected under the Endangered Species Act.

  • Migratory Bird Treaty Act:  National Audubon Society v. U. S. Fish and Wildlife Service (S.D. N.Y.)  (This article has a link to the complaint.)

(New lawsuit.)  On January 19, 2021, a coalition of national environmental groups filed litigation against a move by the U. S. Fish and Wildlife Service to eliminate longstanding protections for waterfowl, raptors, and songbirds under the Migratory Bird Treaty Act.  The new regulation applies MBTA protections only to the intentional killing of birds and not “incidental” killing from industrial activities, such as oil spills and electrocutions on power lines.

OTHER

(8th Supplemental Complaint.)  On January 19, 2021, a coalition of fishing and conservation groups and the State of Oregon returned to court to challenge the latest federal plan for hydropower operations on the Snake and Columbia Rivers, and its effects on endangered salmon and steelhead.  (Legislation has been proposed to remove the four dams that are at the heart of this litigation.)

How Different is the New Restoration CE from Statutory CEs 603 and 605?: Igelman Story Discussion #1

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In 2014, the Pisgah Ranger District conducted a 64-acre timber harvest in the Mills River watershed as part of an Brushy Ridge ecosystem improvement project to control nonnative pests and improve fish and wildlife habitat. Jack Igelman / Carolina Public Press.

Another detailed story from Jack Igelman of Carolina Public Press on the litigation against the new Forest Service NEPA Regulations. I’d like to discuss the NEPA attitude question that Sam Evans brought up in post 2 on this. This one will just focus on “how different is the new CE from current legislative CE’s?” and “what do we know about how the Forest Service has used those?”

We had an interesting discussion about the fact that there are existing legislative CE’s that already allow more acres than the Resilience CE. Those legislative CE’s require both scoping (as do all the relevant CEs), as well as a collaborative process.

Here’s what the new Restoration CE requires in addition to scoping:
Allows 2,800 acres of activities (which may include commercial/noncommercial timber harvest). Primary purpose of all activities must be achievement of restoration objectives.
Salvage harvest is not allowed under this category.
Requires project development via a collaborative process

It turns out that parts of the North Carolina forests are allowed to use CEs 603 and 605 due to the HFRA mapping. In fact, they have done so.
As explained by Sam Evans in the story:

In fact, the Forest Service used categorical exclusions for North Carolina timber projects before the rule change, including the 2017 Crawley Branch Southern Yellow Pine Restoration Project in the Grandfather Ranger District in Caldwell County.

The purpose of the project was to reduce the risk of Southern pine beetle infestation, and, using a categorical exclusion created to expedite threats caused by invasive pests and the rising risk of catastrophic wildfire, the Forest Service bypassed an environmental assessment.

“It’s a good project and it’s having good results on the ground,” Evans said. “The reason for that, however, is because you have a very capable district ranger who relied on a well-established, formally convened collaborative process.”

Although the categorical exclusion used for the Crawley Branch restoration has a limit of 3,000 project acres, it’s more limited than the recent restoration categorical exclusion, since it addresses very specific needs, such as wildfire suppression and pest infestations.

“(The categorical exclusion) also has important strings attached,” Evans said. “They don’t allow harvest of old-growth or large trees, for example. Congress gave the Forest Service the authority to take action for high priorities with limitations to prevent abuse so it could move ahead without consulting the public.”

However, the new categorical exclusion rules allow the Forest Service to reject the limits imposed by Congress, he said.

“The Forest Service wants to be able to move forward even with low-priority, high-controversy projects without consulting the public,” he said.

To me, the consultation is in the requirement for scoping and in the requirement for collaboration. Do to say that the FS wanted to move forward with high-controversy projects “without consulting the public” seems like a bit of a stretch. Here’s a link to the documents (including scoping and DM) for the Crawley Branch project.

I don’t see many other “important strings” other than the old growth requirement in Categories 603 and 605.

Unfortunately I’ve never been able to find a simple CE table that shows all vegetation CE’s and the restrictions so here are the 605 ce’s.. “wildfire resilience”. You have to look in the NEPA Handbook, so I’ve quoted 605 below:

4. Wildfire Resilience. The Consolidated Appropriations Act of 2018 (Public Law 115-171) amended Title VI of the Healthy Forests Restoration Act of 2003 (HFRA) (16 U.S.C. 6591 et seq.) to add Section 605. Section 605 establishes a categorical exclusion for hazardous fuels reduction projects in designated areas on National Forest System lands. A hazardous fuels reduction project that may be categorically excluded under this authority is a project that is designed to maximize the retention of old-growth and large trees, to the extent that the trees promote stands that are resilient to insects and disease, and reduce the risk or extent of, or increase the resilience to, wildfires (HFRA, Sections 605(b)(1)(A)).
This categorical exclusion may be used to carry out a hazardous fuels project in an insect and disease treatment area that was designated by the Secretary under HFRA section 602(b) by March 23, 2018. (HFRA, Section 605(c)(2)(C)) Within designated landscape scale areas, projects carried out under this authority are:
Prioritized in the wildland-urban interface; or
If located outside the wildland-urban interface, limited to Condition Classes 2 or
3 in Fire Regime Groups I, II, or III that contain very high wildfire hazard
potential.
(HFRA, Sections 605(c)(2)(A) & (B))
Projects carried out under this authority may not be implemented in any of the following
areas:
a component of the National Wilderness Preservation System;
any Federal land on which, by Act of Congress or Presidential proclamation, the removal of vegetation is restricted or prohibited;
a congressionally designated wilderness study area; or an area in which activities… would be inconsistent with the applicable land and resource management plan.
CHAPTER 30 – CATEGORICAL EXCLUSION FROM DOCUMENTATION
(HFRA, Sections 605(d)(1) – (4))
A project under this authority must either carry out a forest restoration treatment that:
complies with the eligibility requirements of the Collaborative Forest Landscape Restoration Program under section 4003(b) of the Omnibus Public Land Management Act of 2009 (16 U.S.C. 303(b)).
(HFRA, Sections 605(b)(2))
Or, a project under this authority must carry out a forest restoration treatment that:
maximizes the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees promote stands that are resilient to insects and disease, and reduce the risk or extent of, or increase the resilience to, wildfires;
considers the best available scientific information to maintain or restore the ecological integrity, including maintaining or restoring structure, function, composition, and connectivity; and
is developed and implemented through a collaborative process that— includes multiple interested persons representing diverse interests; and is transparent and nonexclusive; or meets the requirements for a resource advisory committee under subsections (c) through (f) of section 205 of the Secure Rural Schools and Community Self-Determination Act of 2000 (16 U.S.C. 7125).
(HFRA, Sections 605(b)(1)(A) – (C)).
Projects carried out under this authority are subject to the following size limitation on the number of acres treated:
may not exceed 3000 acres.
(HFRA, Section 605(c)(1))
Projects carried out under this authority are subject to the following limitations relating to roads:
A project . . . shall not include the establishment of permanent roads.
The Secretary may carry out necessary maintenance and repairs on existing permanent roads for purposes of this section.
The Secretary shall decommission any temporary road constructed under a project under this section not later than 3 years after the date on which the project is completed.
(HFRA, Section 605(c)(3))
All projects and activities carried out under this authority:
shall be consistent with the land and resource management plans…”
(HFRA, Section 605(e))
For projects and actions carried out under this authority:
The Secretary shall conduct public notice and scoping for any project or action.
(HFRA, Section 605(f))
Document this category in a decision memo (FSH 1909.15, 33.2 – 33.3) and include it on the
Schedule of Proposed Actions (36 CFR 220.4 (d)). The decision memo should include a
description of the efforts taken by the Agency to meet the collaborative process
requirements in HFRA, Section 605(b)(1).
Cite this authority as Section 605 of HFRA (16 U.S.C.6591d)

NFS Litigation Weekly January 08, 2021

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The Forest Service summary is here:  Litigation Weekly January 08 2021 Email

The bullets here include links to court documents.

COURT DECISIONS

Cottonwood Environmental Law Center, v. Bernhardt (D. Montana) – On December 10, 2020, the District Court of Montana issued an order that directed the Department of Interior, National Park Service, and Forest Service to conduct an additional NEPA analysis of the Interagency Bison Management Plan for bison leaving Yellowstone National Park.

(Blogger’s note:  This plan and management of bison on the Custer-Gallatin National Forest has also been an issue during its forest plan revision.)

Western Watersheds Project v. USDA APHIS (D. Idaho.) – On December 11, 2020, the District Court of Idaho granted Animal and Plant Health Inspection Service’s request to dismiss the case against APHIS for failure to sufficiently analyze the environmental impacts of their predator control activities in Idaho and the operation of the Pocatello Supply Depot.

(Blogger’s note:  While the alleged actions of APHIS were not reviewable, there were also claims against the BLM and Forest Service, which authorized APHIS’s aerial gunning of coyotes and other wildlife on federal lands.  The summary does not mention the disposition of those claims or whether they remain pending.)

Cottonwood Law Center, v. Marten, et al. (D. Mont.) – On December 17, 2020, the District Court of Montana granted the Agency’s Motion to Dismiss regarding new information pertaining to the 1987 Custer Gallatin National Forest Plan and the Bozeman Municipal Watershed, North Hebgen, North Bridgers Projects on the Custer-Gallatin National Forest.

(Blogger’s note:  One of the claims rejected was that the announcement of forest plan revision constitutes new information that should be considered pursuant to NEPA with regard to the existing forest plan or proposed or ongoing projects.)

WildEarth Guardians v. U.S. Forest Service (D. Idaho) – On December 23, 2020, the District Court in Idaho denied the Forest Service motion to dismiss the case’s remaining claim for reinitiating consultation based on take of grizzly bear resulting from black bear baiting for hunting in national forests in Idaho and Wyoming.

NEW CASES

Alliance for the Wild Rockies v. Marten (D. Mont.) – On December 11, 2020, AWR and Native Ecosystems Council filed a complaint in the District Court of Montana against the Forest Service and the U.S. Fish and Wildlife Service challenging the Stonewall Vegetation Project and Forest Plan Amendment #35 on the Helena-Lewis and Clark National Forest.  The plaintiffs’ claims relate to new information, including effects of the Park Creek Fire that affected the project area (which was discussed here).  (More on the plaintiffs’ perspective, especially on elk, may be found here.)

(Blogger’s note:  With regard to this project-specific amendment, plaintiffs challenge the “practice of issuing successive site specific amendments to evade the analysis of what is actually a significant Forest Plan amendment.”  While this issue of “cumulative amendments” has been raised under the 1982 planning regulations (unsuccessfully, as I remember it), under the (amended) 2012 Planning Rule a “significant amendment” under NFMA is now one that requires preparation of an EIS, which was the case for this project – “except for an amendment that applies only to one project or activity.”  And the 2012 Planning Rule adds no “analysis” requirements for such amendments, though NFMA may.)

Blue Mountain Biodiversity Project v. Shane Jeffries (D. Or.) – On December 11, 2020, the plaintiff filed a complaint in the District Court of Oregon against the Forest Service, concerning the Walton Lake Restoration Project on the Ochoco National Forest and associated project-specific amendment to the forest plan.  This project was previously enjoined but the contract for logging has remained in effect.  (More about the area and the project may be found here.)

(Blogger’s note:  This complaint also alleges that the project-specific amendment is significant under NFMA.  In contrast to the Stonewall project above, an EIS was not prepared here.  Under the agency Directives for the 1982 planning regulations there were criteria that determined an amendment’s significance, but those no longer exist.  Now the only criterion in the Planning Rule is the existence of significant environmental impacts requiring preparation of an EIS.)

Alliance for the Wild Rockies v. U.S. Forest Service (E.D. Idaho.) – On December 16, 2020, AWR, Yellowstone to Uintas Connection and Native Ecosystems Council filed a complaint in the Eastern District Court of Idaho against the Middle Henrys Aspen Enhancement Project on the Caribou-Targhee National Forest, which used the categorical exclusion for timber stand and wildlife habitat improvement.  It includes claims of failure to comply with the forest plan.

In addition, plaintiffs filed a notice of intent to sue the Forest Service and Fish and Wildlife Service under ESA, dated December 14, 2021.  Issues include the need to reinitiate consultation on the forest plan because grizzly bears are newly present in the area.  (This article provides plaintiffs’ perspectives.)

Organized Village of Kake v. Perdue (D. Alaska) – On December 23, 2020, five Alaska native tribes, small businesses, and more than a dozen conservation organizations filed a complaint in the District Court of Alaska against the Department of Agriculture and the Forest Service concerning the 2020 Exception that exempts the Tongass National Forest from the Roadless Area Conservation Rule.  (We have discussed this several times, including recently here, and more background is provided in this article.

NOTICE OF INTENT

  • Middle Henrys Project (see above)

 

The Forest Service, BLM and U.S. Fish and Wildlife Service received a 60 Day Notice of Intent to Sue, dated December 22, 2020 from the Alliance for the Wild Rockies and Native Ecosystems Council pursuant to the Endangered Species Act regarding the Castle Mountain Project on the Helena Lewis & Clark National Forest and its effects on whitebark pine.

(Blogger’s note:  Whitebark pine was proposed for listing as a threatened species on December 2, 2020.  The news release from the Fish and Wildlife Service is here, and states, “White pine blister rust, a non-native fungal disease, is harming native whitebark pine trees across the American West. Mountain pine beetles, altered wildfire patterns, and climate change are all negatively affecting the species’ health.”)

 

BLOGGER’S BONUS (links are to news articles)

(Update.)  This litigation concerns the Bridger-Teton National Forest’s decision to reauthorize cattle grazing on 170,000 acres of the Upper Green and Gros Ventre rivers, for which the U. S. Fish and Wildlife Service approved incidental take of up to 72 grizzly bears over the following decade, as we discussed here.  The District of Columbia district court granted intervenors’ request to transfer the case to the district court in Wyoming, saying, “this case is decidedly a more local controversy than a national one.”

(Court decision.)  In its 2014 petition, the Center for Biological Diversity asked the U.S. Fish and Wildlife Service to update its recovery plan and add several new areas of historic grizzly bear range as potential recovery areas. In a 2011 status review, the wildlife service had said areas in Colorado, New Mexico, Arizona, Utah, Nevada, Oregon and southern Washington should be evaluated for their potential for grizzly bear recovery areas, but then the agency declined to include them.

Plaintiffs were denied standing to sue.  “A court may review a recovery plan to the extent that it is missing one of the required plan components,” the court order states, “but it may not entertain disagreements with the agency concerning the substance of those components.”

December litigation that doesn’t directly involve the Forest Service

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Five new lawsuits were filed against the U. S. Fish and Wildlife Service related to species found on national forests.

The Center for Biological Diversity and Maricopa Audubon sued the U.S. Fish and Wildlife Service for failing to update the critical habitat designation for the endangered Mount Graham red squirrels on the Coronado National Forest.

A coalition of conservation organizations has sued the U.S. Department of Interior and the U.S. Fish and Wildlife Service in the Montana District court on grounds that the government has failed to prepare a recovery plan for Canada lynx after being ordered by a court to do so by January 2018.

Seven environmental groups have filed a lawsuit in the Northern District of California that seeks a court order requiring the U. S. Fish and Wildlife Service to complete its five-year review of the owl’s protected status and to issue a final decision on the petition to upgrade the owl from a threatened to endangered species.

Two lawsuits, involving 25 plaintiffs, have been filed in the Montana District court against the U. S. Fish and Wildlife Service and its decision to not list the wolverine as a threatened or endangered species on October 8.

The Center for Biological Diversity has filed a lawsuit in the District of Columbia District court challenging the Trump administration’s recent termination of a program aimed at restoring grizzly bears to the North Cascades in Washington.

The BLM was sued over its management of the Carrizo Plain National Monument.

The Center for Biological Diversity and Los Padres Forest Watch have sued the Bureau of Land Management in the Central District of California court to reverse its approval of what would be the first new oil well and pipeline in Carrizo Plain National Monument since it was established in 2001.

Other oil and gas litigation involving public lands and waters.

  • Beaufort Sea (court decision) (includes a link to the opinion)

The Ninth Circuit Court of Appeals rejected the proposed Liberty project, which would have involved the construction and operation of a nine-acre artificial island and a 5.6-mile pipeline along the Alaska coast in the Beaufort Sea.  The court faulted to Bureau of Ocean Energy Management for arbitrary modeling of economic effects of climate change, and the U. S. Fish and Wildlife Service for inadequate analysis of effects on polar bears.

Native Alaskans and environmental groups are asking a federal district court to block the Trump administration from selling oil drilling rights on the coastal plain of the Arctic National Wildlife Refuge on January 6th.  Environmentalists were already challenging the Interior Department’s August decision to formally authorize an oil auction.

Earthjustice filed a lawsuit in the District Court of Alaska challenging the Willow Master Development Plan oil and gas project in Alaska’s National Petroleum Reserve in the western Arctic because of its effects on climate change and polar bears.  Earthjustice sued the U.S. Bureau of Land Management and U.S. Fish and Wildlife Service on behalf of the Center for Biological Diversity, Friends of the Earth and Greenpeace.

We have discussed the topic of “political interference” in agency decisions; here is a case about that.

The U.S. District Court for the District of Arizona found sufficient evidence of bad faith to grant a motion authorizing discovery and compelling the U.S. Fish & Wildlife Service (FWS) to produce internal documents showing whether political corruption influenced an abrupt reversal of policy regarding a huge property development near the San Pedro River.  The court stated:

“Director Spangle plainly admitted that he was forced to concur on a decision that was his to make…  Director Spangle’s statements call FWS’ entire decision-making process into question. These statements, at the very least, support a showing of bad faith sufficient to warrant deliberative materials and limited extra-record discovery.”

And the Colorado pooping story (which does directly involve the Forest Service) continues.

David Lesh posted a photo on social media that allegedly showed him defecating in Maroon Lake on the White River National Forest. U.S. Magistrate Gordon Gallagher ruled Oct. 30 that because of Lesh’s latest action, he was prohibited from “entering onto, being on, or remaining on National Forest System Land” while awaiting disposition of his court case.  Lesh’s attorney filed a motion Nov. 24 contending the Maroon Lake picture was a fabrication and should not have triggered the forestland ban.  In response, the government brief said, “The actual position of the Government has been and continues to be that the mere posting of the Maroon Lake photo was an act of impermissible defiance to the Court’s authority by the defendant, regardless of whether the image is genuine or not.”

 

 

 

NFS Litigation Weekly December 4, and December 23, 2020

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The December 23 Forest Service summary is here:  Litigation Weekly December 11 18 23 2020 Email

Case materials are provided in the links below.

(There is no actual summary for December 4, but there was one case noted in the cover email.)

COURT DECISIONS

On December 1, 2020 the Eastern District Court of Washington issued a favorable decision to the Forest Service and the U.S. Fish and Wildlife Service, regarding the Mission Restoration Project and Forest Plan Amendment #59 on the Okanogan-Wenatchee National Forest.  The Project was consistent with the forest plan and did not violate NEPA (with an EA) or ESA (not likely to adversely affect grizzly bears).

On November 24, 2020 the District Court of Montana dismissed the case against the Gold Butterfly Project and a project-specific forest plan amendment as moot for lack of jurisdiction, since the Bitterroot National Forest withdrew the record of decision on August 28, 2020 to provide additional review and analysis.

On December 3, 2020, the District Court of Idaho issued another decision against the Forest Service on the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest, denying Defendants motion to alter or amend the court’s summary judgment in favor of plaintiffs, resulting in the total vacatur of the 2019 decision.  (The original court decision is provided here, with links to other discussions.)

NEW CASES

On November 30, 2020, WileEarth Guardians and Western Watersheds Project filed a complaint in the Eastern District Court of Washington against the Forest Service, challenging the authorization of domestic sheep grazing on seven allotments within the Okanogan-Wenatchee National Forest regarding continuing failure to reduce the risk of contact between domestic sheep and bighorn sheep, and alleging NFMA and NEPA violations.

On December 7, 2020, Center for Biological Diversity and Western Watersheds Project filed a complaint in the District Court of Colorado against the Department of Interior, U.S. Fish and Wildlife Service, Bureau of Land Management, National Park Service, and the Forest Service, regarding the Gunnison Basin Candidate Conservation Agreement’s Biological Opinion, for development, recreation, and livestock grazing authorizations in the Gunnison Basin, including the Grand Mesa, Uncompahgre and Gunnison National Forest.  More information can be found in this article.

On December 7, 2002 Conservation Northwest and WildEarth Guardians filed a complaint in the Eastern District Court of Washington against the Forest Service regarding the modification to the vehicle class use designations and the motor vehicle use maps, which opens 117 miles of roads in the Colville National Forest to vehicle uses.  They allege violations of ESA, NEPA and the Travel Management Rule.  This article provides more background, including on Conservation Northwest as an infrequent plaintiff.

OTHER CASES

  • Appalachian Voices v. U.S. Department of Interior ( 4th Cir.) (As described in the December 4 Litigation Summary email.) 

On November 18, 2020 the 4th U.S. Circuit Court of Appeals denied appellants motion for a temporary stay of activities on the Mountain Valley Pipeline where protected fish are located. However, this order does not lift a hold on permits issued by the U.S. Army Corps of Engineers on November 9, 2020, which prevents the Mountain Valley Pipeline from completing stream crossings.  (See next case.)

On December 1, 2020 the 4th U.S. Circuit Court of Appeals issued a stay on the use of a streamlined Nationwide Water Permit 12 (issued by the U.S. Corps of Engineers) for the Mountain Valley Pipeline in the Huntington, West Virginia on the Jefferson National Forest.

Blogger’s update:  The Forest Service has released its Final Environmental Impact Statement supporting eleven amendments to the forest plan and approving the permit to cross national forest lands.  Additional information may be found in this article.

 

BLOGGER’S BONUS

On September 14, Defenders of Wildlife filed a notice of intent to sue the Rio Grande National Forest (as well as the Fish and Wildlife Service) for violating the Endangered Species Act with its adoption of its revised forest plan.  They assert that, when it revised the plan, it, “abandoned key habitat protections that have been in place for more than a decade that significantly limited the logging allowed in important habitat for the threatened Canada lynx,” and that, “the new standards open up hundreds of thousands of acres of lynx habitat in the Rio Grande National Forest to largely unregulated logging, increasing the threat to the small and struggling Colorado lynx population.”

Linn County Files Lawsuit To Obtain Documents on Beachie Creek Fire

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Beachie Creek Fire progression map

In one of my jobs with the Forest Service, I had the FOIA people working on my staff.  Through these folks, I gained some understanding, and experienced a some small amount of what it is to work in FOIA.  It’s a strange job in that you have a widely varying workload (with no upper bound) and required deadlines, but only so many knowledgeable people available to work. And it tends not to be glamorous or highly valued, with sometimes disrespectful folks in the public to work with. So here’s a shout out to them!

This story from Wildfire Today also reminded me of the gap between “doing” jobs (in this case, time was a factor) and “critiquing” jobs (at anyone’s leisure).  We need to introduce more fire into the landscape; but if people in hindsight are seen (in a courtroom) to have made “mistakes” in doing it.. well then. People are less willing to take chances, and so the idea of restoring fire to the landscape possibly becomes impossible.

A county in Oregon has filed a lawsuit against the U.S. Forest Service that is related to the Beachie Creek Fire that burned over 193,000 acres east of Salem, Oregon in September.

The Davis Wright Tremain law firm in Portland submitted a request September 28 on behalf of Linn county, requesting records related to the fire. The request cited the Freedom of Information Act (FOIA) which requires a federal agency to respond within 20 business days, unless there are “unusual circumstances,” or notify the party of at least the agency’s determination of which of the requested records it will release, which it will withhold.

About 12 percent of the Fire was in Linn County, with the rest in Marion and Clackamas Counties. The Linn-Marion county line is near Highway 22 close to the communities of Lyons, Mill City, Gates, Detroit, and Idanha where many structures were destroyed.

The Forest Service replied to the FOIA in a letter dated the next day, saying (and this is an exact quote):
“Please be advised your request is not perfected at this time and we will be reaching out to you to discuss clarification once it has been to thoroughly review.”
After not receiving the documents or apparently hearing nothing further from the Forest Service, the attorneys for Linn County filed a lawsuit November 2, 2020 in the U.S. District Court in Eugene, Oregon.

Here’s (some of) what the FOIA asked for:

The information Linn County requested from the Forest Service was about the agency’s policy for managing fires, and the Beachie Creek Fire in particular. Some examples:

Contracts and documents relating to arrangements made with outside contractors for firefighting equipment and training in the Pacific Northwest;
Maps and records depicting all former “owl circles” and all locations of other endangered species habitat in the 2 years immediately preceding the Beachie Creek Fire;
Records declaring the Beachie Creek Fire a Prescribed natural Fire, a Management Ignited Fire or a Wildfire, and all records discussing or relating to that declaration;
Records illustrating the Suppression Response for the Beachie Creek Fire;
Records illustrating the Control Strategy for the Beachie Creek Fire;
Records relating to inputs to and outputs derived from the FLAME computer program or any other predictive computer analysis for the Beachie Creek fire for the period commencing on August 1, 2020, through the date records responsive to this request are provided;
All Social media posts discussing or describing the Beachie Creek Fire;
All current Forest Service Manuals in effect immediately preceding the Beachie Creek Fire and effective throughout the Fire Event.

Here’s Bill Gabbert’s take:

The Forest Service is notorious for flagrantly violating the law in regards to the mandatory standards for providing information requested with a FOIA. They have been known to stall for years, or have simply refused to comply. Not every citizen seeking information from their government has a petty cash account with $400 for the filing fee, or the tens of thousands of dollars it could take to pay attorneys for a FOIA lawsuit. Our citizens deserve transparency. However, it also seems unusual to file a lawsuit approximately 26 business days, as Linn County did, after initially submitting the FOIA — just 6 days over the 20-day requirement.

(I’m not sure what the $400 would be for.)

The comments and references to other fires are also interesting. Especially related to size of fires, and changes in suppression strategies over time.

NFS Litigation Weekly November 6, 2020

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The Forest Service summaries are here:  Litigation Weekly November 6 2020 FINAL

The Forest Service email indicated “no updates for November 13.”

COURT DECISIONS

Environmental Protection Information Center v. Carlson (9th Cir.).  On October 27, 2020, the 9th Circuit Court of appeals denied the Forest Service’s petition for panel rehearing and denied the intervenor’s (Sierra Pacific Industries) petition for en banc rehearing, concerning the improper use of the road maintenance categorical exclusion for Ranch Fire Tree Project on the Mendocino National Forest.

Bitterroot Ridge Runners Club v. Forest Service (9th Cir.).  On October 27, 2020, the 9th Circuit Court of Appeals upheld the Bitterroot National Forest’s 2005 Travel Management Plan’s closures to motorized and mechanized use.

High Country Conservation Advocates v. United States Forest Service (10th Cir.).  On October 29, 2020, the 10th Circuit Court of Appeals granted the plaintiffs’ Emergency Motion for Injunction Pending Appeal  concerning the West Elk Mine and the Colorado Roadless Rule’s  North Fork Coal Mining Area exception on the Grand Mesa, Uncompahgre, and Gunnison National Forests. The 10th Circuit’s order prohibits West Elk Mine’s use of new roads in the roadless area constructed in June 2020.  This article updates this complicated story.

NEW CASES

Alliance for the Wild Rockies, v. Marten (D. Mont.).  On October 23, 2020, Alliance for the Wild Rockies filed a complaint in the District Court of Montana against the Forest Service and the U.S. Fish and Wildlife Service, concerning the Environmental Assessment, and Decision Notice for the Soldier-Butler logging project on the Lolo National Forest

Flathead-Lolo-Bitterroot Task Force v. U.S. Fish and Wildlife Service (D. Mont.).  On October 26, 2020, Flathead-Lolo-Bitterroot Task Force did the same.

This article on the lawsuit focuses on the designation of the area by the forest plan to be managed for connectivity between grizzly bear populations.

EarthJustice has filed a Notice of Intent to Sue the Secretary of Energy, Bonneville Power Administration, U.S. Corps of Engineers, U.S. Department of Interior, U.S. Fish and Wildlife Service,Bureau of Reclamation, Secretary of Commerce, and NOAA regarding the effects on listed salmon of their coordinated operation and maintenance of federal dams, reservoirs, and related facilities, power marketing and other actions in the Columbia River basin as reflected in their Joint Record of Decision for Columbia River System Operations dated September 28, 2020.  That was discussed further here.

 

BLOGGER’S BONUS

On November 2, the U. S. Supreme Court held its hearing in Fish and Wildlife Service v. Sierra Club regarding an attempt to obtain draft biological opinions from the Fish and Wildlife Service for EPA regulations.  Its holding on how “Exemption 5,” which allows withholding predecisional and deliberative records, could affect how all federal agencies administer the Freedom of Information Act.

On October 31, the Federal District Court for Colorado denied a government motion to alter its judgment against the government in its efforts to delist the species where the Fish and Wildlife Service failed to explain why it changed it methodology for assessing the species.  The court held, “Because the Court is limited to assessing the explanation publicly provided by the FWS in its decision, not explanations proffered for the first time in litigation, the fact that the FWS has now tendered such an explanation now insufficient.”

The 4th Circuit Court of Appeals has granted another stay, this time holding up permits related to stream crossings that could result in effects on listed aquatic species.  Here is some interesting background on the role of the Forest Service in this controversial decision:

The Forest Service “was not in the driver’s seat” when it came to making a final decision, Peter Gaulke wrote in an email to colleagues. FERC was.

“It is fair to say there were pains of adjustment as we tried to merge our USFS way of business with the FERC way of business,” Gaulke wrote in a Nov. 28, 2017, review of the process.

“This was not easy and still has a level of discomfort for the Forest and the Regional Office,” the email stated.

Gaulke’s email, provided to The Roanoke Times in response to a Freedom of Information Act request, is “shocking and eye-opening,” said Rupert Cutler of Roanoke, who oversaw the Forest Service as assistant secretary of agriculture from 1977 to 1980.

“It proves that the Forest Service felt emasculated and victimized by the FERC-dominated MVP decision-making process,” Cutler said.

A part-time Colorado resident who documents his disrespect for public lands on social media was banned from entering millions of acres of U.S. Forest Service lands because he posted a picture on Instagram of himself defecating in Maroon Lake.

NFS Litigation Weekly October 30, 2020

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The Forest Service summaries are here:  Litigation Weekly October 30 2020 Email

NEW CASE

Friends of the Florida Trail, Inc. v. Thomas (D. N. Florida).  The plaintiff claims the Forest Service violated NEPA and the National Scenic Trails Act when it approved the 90-mile Big Bend Reroute of the Florida National Scenic Trail using a categorical exclusion.

NOTICE OF INTENT

After the Southern Sierra Nevada DPS of the Pacific fisher was listed as endangered on May 15, 2020, the Forest Service and Fish and Wildlife completed a programmatic consultation on 40 proposed projects involving the logging and removal of trees and other vegetation across the Sierra, Sequoia, and Stanislaus National Forests.  On September 3, Unite the Parks, Sequoia ForestKeeper, and the John Muir Project notified the agencies of their intent to sue for failure to adequately analyze the effects on the fisher.

 

BLOGGER’S BONUS

(Update.)  After the government filed a notice of appeal of the Alaska district court’s reversal of the Prince of Wales Landscape Level Analysis Project for the Tongass National Forest (discussed here), they changed their minds.  They are now proceeding with a more traditional timber sale project involving 3,000 acres of old-growth forest.

(Update – EPIC v. Carlson.)  The 9th Circuit Court of Appeals has denied requests by the Forest Service and intervenors to rehear this case involving an unreasonable interpretation of the road repair and maintenance categorical exclusion for the Ranch Fire Roadside Hazard Tree Project on the Mendocino National Forest (discussed here).  (When I worked with this forest supervisor earlier in her career she didn’t like my advice either.)