Litigation

The Forest Service summaries are here:  Litigation Weekly October 23 2020 EMAIL

NEW CASES

• 0001_Wolf Creek

Historic Wolf Creek Boatworks v. United States of America (D. Alaska).  The plaintiff claims the Forest Service violated 36 C.F.R. 251.54 in relation to non-renewal of a conditional use permit for operation of buildings on the Tongass National forest.

NOTICE OF INTENT

• 0002__NOI_WWP_GunnisonBasin

The Center for Biological Diversity and Western Watersheds Project have notified the Forest Service, BLM and Fish and Wildlife Service that they will challenge the failure to reinitiate ESA consultation on the Gunnison sage-grouse (as previously discussed here).

OTHER CASES

• 0003_Bullock

Bullock v. U.S. Bureau of Land Management (D. Mont.).  The district court declared that the Lewistown Resource Management Plan (RMP), Missoula RMP, and Miles City RMP amendment are unlawful because the Acting BLM Director approved them in violation of the Appointments Clause of the U.S. Constitution, the Federal Vacancies Reform Act of 1998, and the Administrative Procedure Act (which we discussed most recently here.)

BLOGGER’S BONUS

The replacement of Ruth Bader Ginsburg on the U. S. Supreme Court with a conservative justice has potentially stunning implications for many aspects of American life, including federal agencies.  In particular, E&E News singled out her Congressional testimony (or lack thereof) on climate change

Sen. Richard Blumenthal (D-Conn.) asked Barrett yesterday if she believed “human beings cause global warming.”  “I don’t think I am competent to opine on what causes global warming or not,” Barrett answered.  When pressed on the question, she added, “I don’t think that my views on global warming or climate change are relevant to the job I would do as a judge.”

In an exchange with Sen. John Kennedy (R-La.) on Tuesday, Barrett dodged a climate question by saying she’s “not a scientist,” a talking point that is often used by Republican lawmakers who reject the underlying tenets of climate science (Climatewire, Oct. 14).

When grilled yesterday by Sen. Kamala Harris (D-Calif.), Barrett again declined to recognize that human-caused greenhouse gases have caused global temperatures to rise by about 2 degrees Fahrenheit over the last century…  Barrett countered by saying Harris, a vice presidential candidate, was leading her to reveal an opinion about a “very contentious matter.”  “I will not express a view on a matter of public policy especially one that is politically controversial because that’s inconsistent with the judicial role as I have explained,” Barrett said.

Barrett has been tight-lipped on a gamut of issues over the course of the hearing, from health care to voting rights. But experts said her reluctance to acknowledge the scientific basis for climate change is notable.  “Her response suggests that she either is a climate change denier or someone who is afraid of offending the President and his supporters in the fossil fuel industry,” Bob Percival, director of the environmental law program at the University of Maryland, said in an email.  On Tuesday, “she was willing at least to acknowledge that there is racism in society. Climate change has now also become an obvious fact that intelligent people should not be afraid to acknowledge,” he added.

Others countered:

“Given the various deference doctrines, whether an appellate judge has firm views on climate science is not particularly important and should not have a significant influence on their opinions,” said Jonathan Adler, director of the environmental law center at Case Western Reserve University.

This has been my answer to questions Sharon always has about the role of judges.  However, this very concept of judicial deference to administrative agencies could itself be remade under a conservative court.  Business conservatives have wanted to get rid of “Chevron deference” to agencies regarding their regulations.  This is most often discussed in relation to the more obviously regulatory laws like the Clean Water Act and Clean Air Act, but it could also lead to less judicial respect for decisions made by agencies under the Endangered Species Act or public land management laws.  In theory this seems like it should cut both ways because agencies get sued by both ends of the political spectrum, but here is another possibility:

But, by repealing Chevron, the Supreme Court would essentially invite judicial policymaking, as activist judges would have freer rein to exploit unavoidable statutory ambiguities in order to substitute their own policy preferences. Or worse, it could halt agency action until Congress could pass legislative changes to resolve all ambiguity.

The end of the “deep state?”

The Forest Service summaries are here:  Litigation Weekly October 16 2020 Email

Links for individual cases are to related documents.

COURT DECISION

• 0001_North Dakota Decision

North Dakota v. United States of America (D. N.D.).   The court agreed with McKenzie County that several roads were established as county roads by 20 years of public use under R.S. 2477 and N.D.C.C. § 24-07-01 prior to the federal government reacquiring the underlying lands in the later 1930s.

NOTICES OF INTENT

• 0002_Rim Fire 60 day notice letter FINAL

Three conservation groups have asserted that the Rim Fire Project on the Stanislaus National Forest requires reinitiation of consultation under ESA to address impacts on the Pacific fisher, which was federally listed on May 15, 2020.

• 0003_NOI Colville NF

WildEarth Guardians and Conservation Northwest are threatening to sue the Forest Service and Fish and Wildlife Service for failure to formally consult on the modification to the vehicle class use designations and the motor vehicle use maps for the Colville National Forest because it authorizes increased vehicle traffic, which would affect listed species.

BLOGGER’S BONUS

• Snake River dams

In late September, federal agencies operating dams on the Columbia River issued a decision on operations that did not include removing the dams.  They had made similar decisions in 2003, 2005, 2009, 2011 and 2016, and they were sued and lost each time.  While another lawsuit is possible, there are signs that governors of Northwest states, particularly Democrats in Oregon and Washington, are looking for a negotiated solution.  In the broader arena of renewable energy, there is a new agreement among some conservationists and hydropower producers to work together on planning for the role of hydropower in mitigating climate change.  Leaving more dams in place in salmon habitat affects national forest management because it puts more of a burden on addressing other threats to salmon, such as roads and logging in spawning habitat.  In fact, part of the broader agreement is to “Advance Effective River Restoration through Improved Off-Site Mitigation Strategies.”

• Oregon fires

PacifiCorp, one of the Northwest’s biggest private utilities, faces a class action lawsuit for allegedly failing to maintain power lines that caused a significant portion of the catastrophic Labor Day wildfires in Oregon.  An attorney for plaintiffs said the weather and fire conditions across the state amounted to the perfect storm, but PacifiCorp had plenty of time to safely shut off power to prevent sparking more wildfires.  Presumably the federal government will take a similar approach for damages and costs to national forests.

• Firewood theft

Mark Allen James, 23, of Twin Falls, Idaho, repeatedly harvested timber from the Deadline Ridge Summer Home area of the Sawtooth National Forest without a lawfully obtained permit to do so. James would sell the illegally obtained timber online. He confessed to harvesting twelve cords of firewood and selling it for $140 per cord.  James was sentenced in U.S. District Court to three years of probation for theft of government property, and was required to pay $1,680 in restitution.

• Tongass audit

Public Employees for Environmental Responsibility has filed a Freedom of Information Act lawsuit against the Forest Service for failing to release its audit of Tongass National Forest timber sales, which was requested last year.

• Wildlife Services

WildEarth Guardians has sued USDA Wildlife Services for failing to prepare an EIS for its activities in New Mexico, which include almost one million acres of national forest lands, and for relying on outdated EAs.  The Forest Service has an MOU with Wildlife Services that discusses NEPA compliance for wildlife damage, invasive species, and wildlife disease management activities.

Forest Service case summaries are here:  Litigation Weekly October 9 2020 EMAIL

Links below are to court documents related to each case.

COURT DECISIONS

• High Country Conservation Advocates v US 17-03025 C. Colo. Order

On October 2, 2020 the District Court of Colorado issued an order allowing a mining company to continue its operations using new roads constructed into a designated roadless area to the West Elk Mine on the Grand Mesa, Uncompahgre and Gunnison National Forests.  Road construction in the Sunset Roadless Area was allowed under a lease pursuant to an exception to the Colorado roadless rule, but that exception was subsequently reversed by the 10th Circuit Court of Appeals.  On remand, the district court did not vacate the lease.

(BLOGGER’S UPDATE:  On October 9, the 10th Circuit Court of Appeals temporarily barred further surface disturbance by the West Elk Mine so it can consider the legality of that activity. The complicated history of the exception and this case is included in the Forest Service summary.)

• Friends of the Bitterroot v Marten 20-19 D. Mont Court Order

On September 29, 2020 the District Court of Montana issued a decision allowing the Darby Lumber Lands Phase II Project on the Bitterroot National Forest to proceed.  The court also upheld a project-specific forest plan amendment to “suspend” an elk habitat effectiveness standard.  While the court invalidated the Forest’s reference to a minimum road system under the Travel Management Rule because the forest-wide Travel Management Plan did not properly establish that, the court did not find that to be a reason to vacate the Project decision.

• Van McGibney, et al., v. Missouri Department of Natural Resources

On September 24, 2020 the Circuit Court of Oregon County Missouri determined that lands acquired by the state can’t be used as a park because of restrictions in the federal Wild and Scenic Rivers easement, so the state must divest its ownership.  The lands are located near the Mark Twain National Forest.  Plaintiffs also owned land subject to the easement.  (Local reporting here and a viewpoint here:  “… the Judge reasoned that without unfettered public use of the land, it could not be a park. This defies both common conservation practices and common sense.”)

It’s been pretty quiet, so not very “weekly.  Here is the latest Forest Service summary:  Litigation Weekly October 2 2020_FINAL

NEW CASES

• Verde-USFS-grazing-allotments-sec-7-complaint-2019_09_17

Center for Biological Diversity  v. U.S. Forest Service (D. Ariz.). On September 17, the plaintiffs filed a complaint based on recent monitoring by plaintiffs that alleges that livestock grazing on the Prescott, Coconino, and Tonto National Forests has impacted 14 threatened and endangered species dependent on aquatic and riparian habitat, and the Forest Service and Fish and Wildlife Service have failed to reinitiate and complete ESA Section 7 consultation to ensure ongoing livestock grazing does not jeopardize listed species or destroy or adversely modify critical habitat.  (This article provides a local perspective.)

BLOGGER’S BONUS

• Upper Frying Pan 

(Court decision in Swomley v. Schroyer.)  On September 3, the district court of Colorado rejected an attempt by 21 residents and landowners to halt the Upper Frying Pan logging project on the White River National Forest, holding that an EA for the project was sufficient.  (The article includes a link to the opinion.)

• West Elk Mine

(Update.)  The Colorado Division of Reclamation, Mining and Safety, which had ordered Arch Resources to cease road-building and other surface-disturbing activity in the Sunset roadless area on the Grand Mesa, Uncompahgre, and Gunnison National Forest because it hadn’t shown it had maintained its legal right of entry, partly lifted that order after the Forest Service and BLM indicated Arch Coal is legally allowed to continue such work as it pertains to a road that environmental plaintiffs claim is illegal.  Plaintiffs are renewing their court efforts.  (The High Country Conservation Advocates Case was most recently discussed here.)

• Colville grazing

(New case.)  Three conservation groups filed a lawsuit against the Forest Service for allowing “excessive” cattle grazing on the Colville National Forest through their 2019 decision to adopt a revised forest plan.

• Thompson Divide leases

(Court decision, BLM.)  The district court in Colorado upheld a 2009 decision by the BLM, also affecting the White River National Forest, to cancel undeveloped drilling leases in the Thompson Divide area.  (Ex-acting BLM Director Pendley’s Mountain States Legal Foundation represented the lessee.)

• Iron Mask Project, Montana

(Update, BLM case.)  After the district court issued a preliminary injunction on this project to reduce conifer encroachment into sagebrush habitat, the BLM has withdrawn that part of the decision for lands that had not yet been treated, mooting the case.

• California spotted owl

(New case, U. S. Fish and Wildlife Service.)  On August 18, three conservation groups sued the U. S. Fish and Wildlife Service for deciding to not list the California spotted owl as endangered in November, 2019.  According the complaint (linked in the article), “Since the early 1990s, the volume of commercial logging of mature trees on public land in the Sierra Nevada has declined, but “fuel reduction” in the form of mechanical thinning and salvage logging continue, both of which continue to degrade the owls’ habitat.”  The complaint also says:

“The Species Status Assessment also concluded the California spotted owl may be extirpated from the Lassen and El Dorado regions of the Sierra Nevada in the foreseeable future. See Species Status Assessment 95, fig. 22 (California Spotted Owl Regional Future Scenario 2 Condition). It further concluded that the Plumas, Tahoe, Stanislaus, Humboldt-Toiyabe, Inyo, Sierra, and Sequoia National Forest regions will deteriorate in condition to low or low-moderate condition, id., which means that they will “have low resiliency and may not be able to withstand stochastic events because of significant declines in occupancy, survival, fecundity, or habitat quality.” Id. at 69.”

• Colorado Uncompahgre RMP

(New case, BLM.)  On August 19, several conservation groups sued the BLM for its decision on the Uncompahgre Field Office Resource Management Plan for central and southern Colorado, released in April.  They alleged that expanded drilling would hasten climate change and affect endangered species, including the razorback sucker, greenback cutthroat trout and, Gunnison sage grouse.

• Gualala River

(New case against a private timber owner.)  On September 15, the Center for Biological Diversity and a local conservation group sued the Gualala Redwood Timber Company in federal district court to protect a private redwood forest near Northern California’s Gualala River.  They allege that an incidental take permit from the regulatory agencies is needed for the threatened and endangered species that would be harmed:  Northern California steelhead, Central California Coast coho salmon, California red-legged frogs, and northern spotted owls.  (This CBD press release includes a link to the complaint.)

• CEQ NEPA regulations

(New case and Notice of Intent to Sue CEQ.) On August 28, 2020, a coalition of 23 state attorneys general filed a lawsuit against the Administration’s Final Rule on NEPA procedures.  On September 22, plaintiffs notified the CEQ that they would add a claim that the Final Rule violated the Endangered Species Act by failing to consider the impact on endangered and threatened species or consult with the federal wildlife agencies.

Since it’s been over three weeks since I’ve seen a Forest Service summary, here’s some news that’s getting old.

FOREST SERVICE CASES

• Mt. Charleston blue butterfly

The Center for Biological Diversity filed a Notice of Intent to Sue the Forest Service and U. S. Fish and Wildlife Service to block the Lee Canyon ski resort expansion on the Humboldt-Toiyabe National Forest that would affect the federally endangered Mt. Charleston blue butterfly.  This would be the second lawsuit, following new consultation on the project after the first lawsuit (discussed here).

• Prince of Wales project

The government has appealed the district court’s adverse decision on this landscape-scale, condition-based “project” on the Tongass National Forest to the Ninth Circuit Court of Appeals.  (Southeast Alaska Council v. Forest Service, discussed here most recently.)

• New Mexico meadow jumping mouse

On August 27, the Center for Biological Diversity sued the Forest Service over violations by grazing permit holders for the Sacramento and Aqua Chiquita allotments in the Lincoln National Forest.  The Forest Service has documented that the permit holders have improperly allowed their cows to enter protected streamside meadows, habitat for the federally endangered New Mexico meadow jumping mouse.  (A similar case is pending involving the Apache-Sitgreaves National Forest, summarized here.)

• Gold Butterfly

On August 28, the Bitterroot National Forest withdrew its decision on the Gold Butterfly vegetation management project, conceding that it used a different definition of old growth than was in its forest plan, and that it did not comply with road density requirements in the forest plan for elk. (Friends of the Bitterroot v. Anderson, summarized here.  This article includes a map.)

• Rowley Canyon

On August 25, the district court for the District of Idaho upheld the decision by the Caribou-Targhee National Forest regarding the Rowley Canyon Wildlife Enhancement Project, which authorizes the thinning of juniper trees and prescribed burning to “eliminate the threat of future catastrophic fire” (in the court’s words) within the Elkhorn Mountain Inventoried Roadless Area.  (Wildlands Defense v. Bolling, summarized previously here, including plaintiff’s perspective).

Note:  This was a case involving the categorical exclusion for “timber stand and/or wildlife habitat improvement activities” and alleged “extraordinary circumstances.”  I thought the court took a rather extreme position on the criteria for deference to the agency; I have never understood that ANY analysis would be sufficient to comply with NEPA (my emphases).

Plaintiffs take issue with the depth and scope of the Forest Service’s analyses, claiming that neither was adequate to support the Forest Service’s finding that the proposed project will not lead to any significant impacts or extraordinary circumstances. But that is not the same as saying the Forest Service failed to conduct any analysis whatsoever. Within the administrative record, there are extensive analyses of the Project’s effects upon all users, including animals and avian species who depend upon the habitat proposed to be treated. The Court must defer to the agency on matters within the agency’s expertise unless the agency completely failed to address a factor that was essential to making an informed decision.

• Soldier-Butler project

After receiving a Notice of Intent to Sue over its effects on grizzly bears, the Lolo National Forest has delayed implementing its decision on the Soldier-Butler forest management project in order to reinitiate consultation with the Fish and Wildlife Service.  The project would involve building new roads in an area recently designated in the forest plan as a Demographic Connectivity Area for grizzly bears.

OTHER CASES

• Mexican border wall

On June 26, 2020 the Ninth Circuit Court of Appeals, on a 2-1 vote, held that the Administration illegally transferred Department of Defense funds for the purpose of building a border wall on the Mexican border.   (Sierra Club v. Trump.  A related lawsuit was discussed here.)

• National Petroleum Reserve

A coalition of environmental groups sued the Interior Department Aug. 24 urging a federal judge to halt implementation of the BLM’s plan to expand oil and gas opportunities in Northwest Alaska, challenging the EIS prepared by the BLM.

• Humboldt marten

After litigation for delaying a decision (discussed here), the U. S. Fish and Wildlife Service has listed the Humboldt marten of southern Oregon and northern California as threatened under the Endangered Species Act.  However, apparently using new provisions enacted by the Trump Administration, the listing includes “an array of broad and vague exemptions for forest management activities.”

This is from the AFRC newsletter: definitely checks the  “things people agree on” box.

Section 7 of the ESA requires federal agencies to consult with the FWS and/or National Marine Fisheries Service to ensure that agency actions do not “jeopardize the continued existence” of a listed species or “adversely modify” or destroy designated critical habitat. Even under the best of circumstances, the consultation is somewhat of a “black box” for action agencies like the Forest Service or BLM, and even more so for timber purchasers, permittees, and others who rely on the consultation process.

On August 3, AFRC and industry partners National Association of Home Builders, American Farm Bureau Federation, and NFIB Small Business Legal Center filed an amicus brief with the Supreme Court urging the Court to rule in favor of transparency in the consultation process. The case, called U.S. Fish & Wildlife Service v. Sierra Club, addresses what parts of consultation are part of the “deliberative process” so that documents are privileged from release under the Freedom of Information Act.

The case involves a consultation by EPA where the Services prepared jeopardy biological opinions on a proposed rule for cooling water intake structures. Once EPA learned it was going to get jeopardy opinions, it stopped consultation on the initial version of the rule, rewrote the rule, and re-submitted to consultation, eventually getting no-jeopardy opinions. The Services refused to release the jeopardy BiOps, claiming they were “drafts” and therefore “deliberative.” The Ninth Circuit ruled against the Services, but the Supreme Court took the case in March.

Our brief describes how the Services’ actions can impose significant economic consequences without having to explain the scientific rationale. This case highlights a factual scenario that we have encountered where an agency will assert that it cannot select a particular alternative in planning or a project because it would not pass muster in consultation. Understanding the line between jeopardy and no-jeopardy is important for the regulated community to obtain the best outcomes when working with agencies on the ground.

Although AFRC and our partners are not often on the same side of a case as the Sierra Club, the ACLU, and The New York Times, this is an instance where a wide variety of stakeholders agree that transparency will be beneficial to the public interest. Other briefs along the same lines were filed by environmental organizations, former agency officials, and an array of media and civil liberties groups. The Court has set the case for argument on November 2, and will likely issue a decision by next June.

The Forest Service summaries are here:  Litigation Weekly August 21_28 2020 Email Final

Related court documents are included as a link below.

COURT DECISIONS

• 00001_AWR 19 445

Alliance for the Wild Rockies v. USFS (D. Idaho)- On August 11, 2020, the district court ruled against the Forest Service on the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest.  The court held that the Forest failed to explain how changing the desired conditions (without amending the forest plan) would achieve the existing desired condition and therefore it violated the forest plan.  (Plaintiffs version of the story is here.  We had a long discussion of the Ninth Circuit’s decision on the original project here.)

• (No linked court documents)

United States of America v. Robertson (D. Montana) – On August 7, 2020, the district court of Montana found defendant liable for trespass and damages associated with the White Pine patented mining claim on the Beaverhead-Deer Lodge National Forest.

• 00003-Klamath

Klamath-Siskiyou Wildlands Center v. Grantham (E.D. Cal.) — On August 12, 2020, the district court issued a Stipulation for Dismissal without Prejudice regarding the Crawford Vegetation Project on the Klamath National Forest because the Forest Service withdrew the decision.  (We discussed the issues in this case here.)

• 00004_Los Padres

Los Padres Forest Watch v. U.S. Forest Service (C.D. Cal.) – On August 20, 2020, the district court upheld the Tecuya Ridge Shaded Fuelbreak Project on the Los Padres National Forest, which used the categorical exclusion for “timber stand and/or wildlife habitat improvement activities.”  (We had an even longer discussion of this case here.)

NEW CASES

• 00005_CBD

Center for Biological Diversity v. Leverete (D. D.C.) — On August 5, 2020 the plaintiffs filed a complaint against the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the Forest Service concerning the 4-year extension of 13 prospecting permits on the Superior National Forest to Twin Metals Minnesota LLC, for proposed sulfide-ore copper mine at the edge of the Boundary Waters Canoe Area Wilderness.  (This is the latest of many lawsuits related to mining there, including this one (Campaign to Save the Boundary Waters) and this one (Wilderness Society.  This article includes a map.)

• 00006_Round

Round v. USDA (D. Colo.)- On July 17, 2020, Plaintiff filed a complaint claiming property rights in grazing allotments and improvements on the Pike and San Isabel National Forest, Cimarron and Comanche National Grasslands.

• 00007_Alaska

State of Alaska, Department of Fish and Game v. Federal Subsistence Board (D. Alaska) —  The Forest Service and BLM were included in this complaint filed on August 10, 2020 involving the operation and decisions of the Board regarding native and non-native hunting rights on federal lands.

• 00008_Nez

Nez Perce Tribe v. Midas Gold Corp (D. Idaho) — On August 18, 2020 Midas Gold (defendant) in this case, filed a proposed Third Party motion against the Forest Service to join this case, or in the alternate, to consolidate this case with the action Midas Gold Idaho, Inc. v. United States, concerning the Stibnite Gold Project on the Payette and Boise National Forests and alleged violations of the Clean Water Act by the Forest Service.

OTHER CASES

• (No linked court documents, but the complaint is here.)

Citizens for a Healthy Community v. U. S. Bureau of Land Management (D. Colo.) – On August 19, 2020 the plaintiffs filed a complaint against the BLM, concerning the agency’s approval of a revised Resource Management Plan for BLM’s Uncompahgre Field Office (UFO) in southwestern Colorado, which opens 871,810 acres of BLM, other federal lands and private mineral rights to oil and gas leases.  (Here is some local coverage.)

BLOGGER’S BONUS

• Bozeman and North Bridger projects

(New case.)  The Cottonwood Environmental Law Center has sued the Custer-Gallatin National Forest for failing to reconsider its 1987 forest plan direction based on new scientific information about the ineffectiveness of fuel treatments on wildfire prior to implementing these projects. (The forest plan is currently being revised.)

• Migratory Bird Treaty Act (this article includes a link to the opinion)

(Other agency court decision.)  NRDC v. U. S. Department of the Interior – On August 11, 2020, a federal district court in New York ruled that the unintentional or incidental “take” of migratory birds is a crime under the Migratory Bird Treaty Act.  The law is best known for its use in fining those responsible for large oil spills, with the money being used for restoration purposes, but it can come up in Forest Service litigation.  The Forest Service has an MOU with the Fish and Wildlife Service obligating it to “address the conservation of migratory bird habitat and populations when developing, amending, or revising management plans for national forests and grasslands…”