Litigation

BLM apparently leaderless

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Speaking of “politicals” making decisions, here is the latest on one of them, following the announcement that BLM’s acting director would not be nominated for the position.

The Trump administration’s method of keeping the controversial acting head of the Bureau of Land Management (BLM) in power even after his nomination is withdrawn is likely not legal, according to experts who have reviewed the orders.

But Pendley is still running the agency because of succession orders dictating that the acting chief will lead the department if the director role remains unfilled.

Legal experts say the succession orders are dubious because the officials whose tenure has been questioned are the ones assigning themselves their new positions. The order was written and signed by Pendley, essentially giving himself the authority to act as director.

That runs afoul of the Federal Vacancies Reform Act and allegedly the Appointments Clause of the Constitution.  This law limits temporary appointments to 210 days.  Not mentioned in this article is the consequence of such an illegal appointment, which is  – (Congressional Research Report, citing 5 U.S.C. § 3348(d)):

Unless an acting officer is serving in compliance with the Vacancies Act, any attempt to perform the functions and duties of that office will have no force or effect.

The most direct means to enforce the Vacancies Act is through private suits in which courts may nullify noncompliant agency actions…  The Vacancies Act renders noncompliant actions “void ab initio,” meaning that they were “null from the beginning,” by providing that such actions have “no force or effect.”

Do you suppose anyone might sue to void any of Pendley’s illegal political decisions?

NFS Litigation Weekly August 14, 2020

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The Forest Service summaries are here:  Litigation Weekly August 14 2020 Email

(There were no cases summarized last week.)

Related court documents are linked to each summary below.

COURT DECISION

In Environmental Protection Information Center v. Carlson, the 9th Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction of the Ranch Fire Roadside Hazard Tree Project on the Mendocino National Forest.  The court held that under no reasonable interpretation of the language of 36 C.F.R. § 220.6(d)(4) did the project come within the CE for “repair and maintenance” of roads.  (A similar issue was addressed in Earth Island Institute v. Elliott, discussed here.)

Blogger’s note:  The court made an interesting observation in weighing the interests for and against an injunction:

As Forest Supervisor Carlson points out in her declaration, revenue from the Project will allow the Forest Service to pay for the felling of such trees. This is a valid and important point, but we note the obvious: A budgetary system that requires the authorization of commercial salvage logging operations in order to finance work necessary for public safety can put the Forest Service in an awkward and conflicted position in deciding whether, and under what conditions, to authorize such operations.

I guess the point is that the Forest Service set up this system so they are responsible for any harm associated with it.

NOTICE OF INTENT

The Forest Service and the U.S. Fish and Wildlife Service (FWS) received a 60-day Notice of Intent by the Alliance for the Wild Rockies and Friends of the Bitterroot to sue the agencies regarding the Gold Butterfly Project on the Bitterroot National Forest, stating that the project area is within the habitat of the grizzly bear, wolverine, and bull trout.  (A complaint has already been filed regarding non-ESA issues, as described here for Friends of the Bitterroot v. Anderson.)

Administrative and Judicial Review Opportunities for Collaborators: Webinar with Susan Jane Brown

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Susan Jane Brown posted about this webinar a while back. I was driving and listened in, except for when the call dropped, so I missed some of the Q&A. I thought Susan Jane Brown did an excellent job of explaining how cooperative groups can get involved, among a variety of other topics. She was clear, accurate and easy to understand in explaining a complex topic- not an easy thing to do. Sustainable Northwest put on the webinar, so thanks to them!

Here’s a link to the webinar.
Here’s Susan’s white paper
So.. how can collaborative groups get involved in litigation?

She has an informative discussion about the roles and difficulties of collaboratives becoming Amicus curiae and even how to hire an attorney.

In general, some things collaborative groups may want to consider when retaining a lawyer include:
• Cost. Pro bono and reduced cost attorneys are not the norm, and most lawyers will want to be paid for their representation. As mentioned previously, most private attorneys charge their clients based on hourly rates, and will vary based on experience, expertise, and location (for example, an attorney in John Day, Oregon who does not specialize in environmental litigation and recently graduated from law school will charge a much different rate than a Washington, DC lawyer who has been practicing natural resources law before the Supreme Court for 40 years). You should always ask prospective attorneys about their hourly rates.

• Expertise. Experience with federal environmental law is extremely useful in litigation of the type discussed in this memo, but not necessary. Simply because a prospective attorney has little experience with environmental or natural resources law does not mean they will not be able to competently and zealously represent a collaborative group in litigation. Nevertheless, familiarity with the issues common to this type of litigation is a relevant consideration.

• Scope of representation. When engaging an attorney, it is critical to know what you are getting for your money and time. Will the attorney represent the collaborative group in just the district court, or on appeal if the Forest Service loses the case? Will the attorney engage in any post-litigation work, such as review of settlement agreements? What happens if the attorney puts in more work than expected: is the collaborative group responsible for paying the attorney for that additional work? Must the collaborative group pay for any time the attorney’s clerk spends writing a brief? These are some of the questions you should ask prospective attorneys about what they will be doing for your collaborative group. After these discussions, your attorney will prepare an attorney-client representation agreement that will set out in writing the rights and responsibilities of both the client and the attorney.

• Personality. As collaborative groups know, it is all about relationships. Whether you like and can get along with a prospective attorney is an extremely important consideration, given that you may be spending substantial time with that person, not to mention paying them for an important service: representing you on an issue in which you are heavily invested. Someone may be an excellent attorney but an impossible person.

It all sounds very expensive (and difficult to become an effective Amicus curiae). I wonder whether collaborative groups have approached foundations about support for legal costs? I know the larger foundations do fund environmental groups. I also wonder if when the policy landscape favors litigation as a policy tool, policies tend to be unduly influenced by well-intentioned but distant rich people?

NFS Litigation Weekly July 10 to July 24, 2020

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Forest Service summaries are found here:  Litigation Weekly July 24 2020 Email

Links to court documents are provided for each case below.

COURT DECISIONS

Helena Hunters and Anglers Association v. Marten.  On July 1, 2020, the District Court for Montana issued an order against the Forest Service regarding the Tenmile South Project on the Helena-Lewis and Clark National Forest. The court determined that the Forest Service  violated the Roadless Area Conservation Rule and NEPA, and also ESA regarding the effect of new recreational trails on grizzly bears.  This case was also included here.

Sawtooth Mountain Ranch LLC v. United States Forest Service. On June 30, 2020, the District Court for Idaho denied the plaintiff’s second motion for preliminary injunction seeking to halt construction on the Stanley to Redfish Trail Project on the Sawtooth National Forest.

Sierra Trail Dogs Motorcycle and Recreation Club v. U.S. Forest Service. (On July 6, 2020, the District Court of Nevada issued a decision favorable to the Forest Service regarding the Humboldt-Toiyabe National Forest’s Greater Sage-grouse Bi-State Distinct Population Segment Forest Plan Amendment, concerning an off-highway vehicle use standard.  This case was also referenced here.

Friends of the Clearwater v. Higgins. On July 13, 2020, the District Court of Idaho denied the plaintiffs’ motion for a preliminary injunction concerning the Brebner Flat Project on the Idaho Panhandle National Forest. The court determined that the plaintiffs showed a likelihood of success on the merits on their Endangered Species Act claims concerning the project’s potential impacts on the grizzly bear and Canada lynx, but not the irreparable harm needed for an injunction.

NEW CASES

Friends of the Clearwater v. Christiansen. On June 26, 2020, the plaintiffs filed a complaint in the District Court of Idaho against the Forest Service and National Marine Fisheries Service regarding the Record of Decision that was signed on July 1, 2019, and the Biological Opinion and Incidental Take Statements related to listed steelhead, authorizing the Lolo Insect and Disease Project on the Nez Perce-Clearwater National Forests.  This case was also included here.

Friends of the Bitterroot v. Anderson.  On July 10, 2020, the plaintiffs filed a complaint in the District Court of Montana against the Forest Service regarding the Gold Butterfly Project on the Bitterroot National Forest, and a project-specific forest plan amendment for standards relating to elk habitat effectiveness and elk habitat objectives.  On July 2, plaintiffs also sent the Forest Service a 60-day Notice of Intent to sue over the project’s potential effects on grizzly bears, wolverines and bull trout.  More background is provided here.

Board of County Commissioners of the County of Pitkin Colorado, v. Rock Creek Association.  On July 1, 2020, the plaintiff filed a complaint in the District Court of Colorado against the Forest Service and Rock Creek Association concerning public access to the Wild Rose Ranch Subdivision through a right-of-way in Pitkin County on the White River National Forest.

 

BLOGGER’S BONUS

On July 6, 2020, a U.S. magistrate judge recommended that a Bureau of Land Management prescribed burning project in the Elkhorn Mountains, Iron Mask, be halted as a court case proceeds.

California v. Bernhardt.  On July 15, 2020, the Northern District of California federal district court vacated the BLM’s 2018 rule regulating methane waste, which had rescinded a more restrictive 2016 rule.

“The Court details herein the myriad inadequacies upon which the Rescission is based. First, the Court provides the factual and procedural background and the legal framework for its decision. (Sections I and II.) In Section III, the Court analyzes the statutory mandate of the Mineral Leasing Act and BLM’s attempt to narrow the same by employing a new economic definition of “waste” which the Court finds to have been arbitrary. Section IV then explains how BLM’s actions in the rulemaking process failed to comply with the Administrative Procedures Act. Section V focuses on BLM’s failure to comply with the National Environmental Policy Act (“NEPA”). Finally, in Section VI, the Court explains how, given the circumstances, no reason exists to depart from the standard remedy of vacatur.”

The Center for Biological Diversity sued the Trump administration on July 21 for failing to release public records on the termination of a program to restore grizzly bears to the North Cascades in Washington (a lawsuit against the decision was noted here). The Center filed its initial Freedom of Information Act request in December 2017.

Public lands litigation news, early July, 2020

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While we (maybe) await further news of what the Forest Service thinks is news, here’s some of what I’ve seen.  Some others we’ve looked at already:

Bi-state sage-grouse

Mexican spotted owl

North Cascades grizzly bears  (see comments)

FOREST SERVICE

In a case that has been discussed here a number of times (such as here) The Montana federal district court found that the Forest Service had acted in “bad faith” on the Ten Mile-South Helena project on the Helena-Lewis and Clark National Forest, finding that it would require reconstruction of old roads in an area protected by the Roadless Area Conservation Rule.   The judge refused to defer to the agency:

“The matter is not one that involves specialized or expert knowledge,” Christensen wrote. “The problem is basic geometry. A vehicle with a wheelbase 9 to 11 feet wide requires a road similarly wide. The Lazyman area does not contain a network of preexisting roads 9 to 11 feet wide. Therefore, bringing this equipment into the area will require the Forest Service to widen the roads.”

The judge also held that the project would require additional NEPA analysis after changing it to allow mechanized logging equipment, and the Forest would need to consult with U.S. Fish and Wildlife Service on the impacts to grizzly bears of proposed trails that would allow mountain bikes.  Plaintiffs’ takes on the opinion are here and here.

The first week of July, the Friends of the Clearwater and the Alliance for the Wild Rockies filed a lawsuit against the Lolo Insect and Disease Project on the Nez Perce-Clearwater National Forest, which calls for logging across 3,380 acres in 30 harvest units.  The Plaintiffs’ perspective, focusing on the threatened Snake River Basin steelhead, is here (the National Marine Fisheries Service is a co-defendant).

Remember that pipeline that the Supreme Court just said could be built on national forest lands and under the Appalachian Trail (in Cowpasture River Preservation Association v. U. S. Forest Service)?  On July 5, developers of the Atlantic Coast natural gas pipeline announced they are canceling the project, blaming legal setbacks and economic uncertainty.

OTHER AGENCIES

On June 29, the Center for Biological Diversity and Healthy Gulf filed a notice of intent to sue the U. S. Fish and Wildlife Service for failing to develop recovery plans for the endangered reticulated and frosted flatwoods salamanders.  (The lack of a recovery plan for the latter was an issue during the Francis Marion National Forest’s forest plan revision, and arguably influenced its ability to contribute to recovery.)

On July 1, WildEarth Guardians and Wilderness Workshop sued the U. S. Fish and Wildlife Service over its failure to take any action in response to a 2016 court order striking down the agency’s exclusion of Canada lynx habitat in the species’ entire southern Rocky Mountain range from designation as critical habitat.

The U.S. Supreme Court ruled on July 9 in McGirt v. Oklahoma that much of Oklahoma’s tribal lands had never been rescinded, and that the state had no criminal jurisdiction over those lands. However, some Indian law experts believe the ruling may lead to more civil and regulatory oversight by tribal governments on land within historic reservation boundaries.  This article cites an example of Mt. Graham, now part of the Coronado National Forest.

On July 14, conservation and landowner groups filed a new lawsuit challenging the Trump administration’s approval of the Keystone XL tar-sands pipeline to be constructed on federal BLM lands in Montana. The complaint asserts that the reviews by the BLM and the Fish and Wildlife Service under the National Environmental Policy Act and Endangered Species Act are riddled with the same errors and omissions as earlier versions deemed insufficient by a federal court in 2018.

NFS Litigation Weekly June 26 & July 3, 2020

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The Forest Service summaries may be found here:  Litigation Weekly June 26_July 3_2020_Final Email

COURT DECISIONS

High Country Conservation Advocates, et al. v. United States Forest Service.  On June 15, 2020, the District Court of Colorado issued an order vacating the Colorado Roadless Rule’s North Fork Coal Mining Area exception on the Grand Mesa, Uncompahgre, and Gunnison National Forest, per the 10th Circuit Court of Appeals March 2, 2020, order. (Meanwhile, Arch Coal has built a road into the Sunset Roadless Area during the delay in the lower court’s order.)

Solenex LLC v. Bernhardt.  On June 16, 2020, the District of Columbia Court of Appeals found the Bureau of Land Management’s cancellation of the Solenex oil and gas lease in the Badger-Two Medicine Area on the Helena-Lewis and Clark National Forest was not arbitrary and capricious.  (Here is some background.)

Western Watershed Project, et al. v. Bernhardt.  On June 19, 2020, the District Court for the District of Columbia issued a memorandum opinion order denying the plaintiff’s request for a preliminary injunction concerning the Upper Green River Area Rangeland Project on the Bridger-Teton National Forest, which plaintiffs allege unlawfully impacts the grizzly bear, and the Kendall Warm Springs Dace.  (Discussed here.)

Southeast Alaska Council v. Forest Service.  On June 24, 2020, the District Court for Alaska issued a remedy order against the Forest Service concerning the Prince of Wales Landscape Level Analysis Project on the Tongass National Forest which vacates the portions of the March 16, 2019, record of decision for the project that authorize vegetation management and road construction activities; and vacates the portion of the October 19, 2018, Final Environmental Impact States as applied to vegetation management and road construction activities.

The judge explicitly rejected the Forest Service argument that, if this can’t be the only NEPA process for this large landscape “condition-based” decision, “the project EIS’s shortcomings do not necessarily prevent it from serving as a programmatic EIS, to which future site specific analyses could tier, potentially without further amendment…”   (The court’s original ruling was discussed here.)

NEW CASE

WildEarth Guardians v. U.S. Forest Service.  On June 17, 2020, the plaintiffs filed a complaint in the District Court of Eastern Washington against the Colville National Forest, primarily concerning the state listed gray wolf. The plaintiffs claim that Forest Service abdicated its authority on livestock ranching activities to ranchers in both its recently revised forest plan and ongoing grazing authorizations, which has incited conflict with the gray wolf.  The plaintiffs also claim violations of section 7 of the Endangered Species Act, concerning ranching activities on the several listed species.  (We have previously discussed this case here.)

NOTICE OF INTENT

On June 22, 2020, Klamath Siskyou Wildlands Center, Klamath Forest Alliance, and EPIC sent a 60-day Notice of Intent to Sue pursuant to the Endangered Species Act for alleged failure to reinitiate consultation on the Crawford Vegetation Project on the Klamath National Forest regarding effects on northern spotted owls.

 

BLOGGER’S BONUS

Here are some updates related to past and pending litigation.

The lawsuit recently filed against the U. S. Fish and Wildlife Service for failing to complete the ESA listing process for wolverine has been settled, with the FWS agreeing to complete the process by the end of August.  This process is in response to a court invalidating their prior decision to not list the species.

We have discussed extensively, including here.  After President Trump shrank the Bears Ears and Grand Staircase-Escalante National Monuments several lawsuits were filed and consolidated.  Here is a summary of the arguments presented in a seminar at that time.  The plaintiffs filed an amended complaint in late 2019 and asked the court for summary judgment.  The briefing was just completed for this case.

 

While cases continue in federal court (see here), the Campaign to Save the Boundary Waters announced it is filing a lawsuit under the Minnesota Environmental Rights Act asking a judge to order the Minnesota Department of Natural Resources “to initiate a public process to amend state non-ferrous mining rules” that would would effectively kill the copper-nickel mine that has been proposed in a watershed that includes the Boundary Waters Canoe Area Wilderness on the Superior National Forest.  The article also mentions federal legislation that has been introduced to ban mining on national forest lands in the watershed.

 

After the Tenth Circuit Court of Appeals ruled that the Forest Service had not made a final decision on mountain goat management, and therefore there was no final agency action to challenge, plaintiffs have continued to monitor the effects of the non-native goats on a research natural area.  They plan to provide the information to the Manti-La Sal National Forest plan revision process this summer as a way of forcing action on the issue.

 

 

NFS Litigation Summary mid-June, 2020

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I didn’t receive a Forest Service June 19 “weekly,” but here’s what might have been covered:

COURT DECISIONS

On June 9, 2020, the Montana federal district court dissolved the injunction against the North Hebgen Multiple Resource Project on the Custer-Gallatin National Forest after the Forest addressed deficiencies related to elk hiding cover and wolverines.  (The opinion is short.)

On June 12, 2020, the Tenth Circuit Court of Appeals upheld two thinning and prescribed burning projects (Hyde Park and Pacheco Canyon) on the Santa Fe National Forest.  The projects complied with HFRA and forest plan requirements for old growth and wildlife, properly applied the relevant categorical exclusion, and adequately addressed cumulative effects.

On June 12, the Idaho federal district court denied plaintiff’s injunction request, finding no likelihood of success on the claims under the Endangered Species Act and Clean Water Act.  (The court also denied a request by the Forest Service for an order for plaintiffs to stop harassing work crews with a helicopter, viewing it as a one-time occurrence.)

NEW CASES

On June 10, 2020, plaintiffs sued the Forest Service and U. S. Fish and Wildlife Service in the Arizona federal district court seeking removal of 14 summer homes and a bible camp subject to special-use permits in order to protect the remaining canopied habitat on the Coronado National Forest upon which the federally endangered Mt. Graham red squirrel now relies.  (Additional background here.)

UPDATES

Plaintiffs filed a motion for summary judgment in their lawsuit against the U.S. Fish & Wildlife Service and U.S. Forest Service regarding the effects of the Rock Creek Mine on the Kootenai National Forest on grizzly bears and bull trout.  (Last discussed here.)

Plaintiffs decided not to seek a preliminary injunction in their lawsuit against the Forest Service and U.S. Customs and Border Protection when the agencies informed them that there would be no construction activities until the summer of 2021 on the Bog Creek Road project, located just south of the Canadian border on the Idaho Panhandle National Forest.

The Helena-Lewis and Clark National Forest announced it is withdrawing the Elk Smith project, involving prescribed fire in a roadless area.

OTHER LITIGATION

On June 17, 2020, a coalition of conservation groups filed a formal notice of their intent to sue the U.S. Fish and Wildlife Service for its failure to protect the bi-state sage-grouse population under the Endangered Species Act.  The species occurs on the Humboldt-Toiyabe National Forest which has been involved in this long process, as noted here.

The federal government filed a complaint claiming that J-Spear Ranch of Paisley, Oregon, started the 2018 Watson Creek Fire that burned 46,000 acres in the Fremont-Winema National Forest, resulting in at least $14 million worth of losses in timber, habitat, water protection and environmental values, as well as fire suppression and rehabilitation costs.

A Mexican national pleaded guilty in federal court last week to cultivating over 1,000 marijuana plants in Sequoia National Forest.

Four conservation groups filed motions to intervene on the side of Ventura County and against the Ventura County Coalition of Labor, Agriculture and Business, and the California Construction and Industrial Materials Association in their lawsuit against two ordinances protecting designated wildlife corridors connecting the Los Padres National Forest, Santa Monica Mountains and Simi Hills.  (No word on whether the Forest Service will also intervene to coordinate with other land managers having land relevant to maintaining viable populations of wildlife, 36 CFR §219.9(b)(2)(ii).)

NFS Litigation Weekly June 12, 2020

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The Forest Service summary may be found here:  Litigation Weekly June 12_2020_Email

COURT DECISION

On June 3, 2020, the District Court of Montana issued a favorable decision in Alliance for the Wild Rockies v. Marten on the consolidated challenges against two Healthy Forest Restoration Act categorical exclusion projects—Willow Creek Project on the Helena-Lewis and Clark National Forest and the North Bridgers Project on the Custer-Gallatin National Forest.

 

BLOGGER’S BONUS (since there’s some space to fill this week)

(Court decision, this article includes a link to the opinion.)  On May 27, 2020,  in Montana Wildlife Federation v. Bernhardt, the District Court of Montana held that a 2018 Instructional Memorandum (IM) implementing the 2015 sage-grouse amendments to BLM resource management plans (RMPs), as well as oil and gas leases, in Montana and Wyoming were inconsistent with the RMP requirements to prioritize leases to protect sage grouse, and therefore violated the Federal Land Policy and Management Act.

The RMPs at issue included the following language:

“Priority will be given to leasing and development of fluid minerals outside of [priority and general habitat]. When analyzing leasing and authorizing development of fluid mineral resources in PHMA and GHMA, and subject to applicable stipulations for the conservation of [sagegrouse], priority will be given to development in nonhabitat areas first and then in the least suitable habitat for [sage-grouse].”

The Record of Decision for the amendments and a 2016 IM emphasized the importance of encouraging new development in areas that would not conflict with sage-grouse. The 2018 IM dispensed with that priority, except when there was a leasing backlog.  The court held determined that the 2018 IM violated the FLPMA requirement for agency actions to conform to land use plans because it conflicted with the plain language of the RMPs. The court then held, “The lease sales either explicitly, or in effect, follow the same rationale as the 2018 IM and thus also violate the FLPMA,” and it vacated the lease decisions:

“The Court sees no reason to leave the 2018 IM in place. BLM’s errors undercut the very reason that the 2015 Plans created a priority requirement in the first place and prevent BLM from fulfilling that requirement’s goals. As for the lease sales, the errors here occurred at the beginning of the oil and gas lease sale process, infecting everything that followed.”

 

Supreme Court Upholds Atlantic Coast Pipeline and Forest Service Under-Trail Authority

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We’ve discussed the Atlantic Coast Pipeline before here and possibly elsewhere. Here’s a Hill story from today.

Here’s an excerpt:

The Supreme Court on Monday upheld a permit for a controversial $8 billion gas pipeline that would tunnel below the famed Appalachian Trail.

The 7-2 opinion handed a defeat to environmental groups who challenged the Atlantic Coast Pipeline, (ACP) which would carry natural gas some 600 miles from West Virginia to North Carolina.

The decision to uphold the permit resolves a complex bureaucratic dispute involving multiple U.S. environmental agencies and overlapping legal authorities.

The justices held that the U.S. Forest Service (USFS) had been duly authorized to greenlight the project, rejecting the challengers’ claim that power over the affected land lay elsewhere.

The dispute stemmed from the Department of the Interior’s decision to make the National Park Service (NPS) responsible for the Appalachian Trail. Prior to the court’s Monday decision, the question of whether this move also transferred authority of lands underneath the trail had been an open one.

But Justice Clarence Thomas, writing for the majority, said the administrative arrangement did not remove the USFS’s power to permit construction under the trail.

“Accordingly, the Forest Service had the authority to issue the permit here,” wrote Thomas, whose majority opinion cut across ideological lines.

Thomas was joined by fellow conservatives Chief Justice John Roberts, Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh, as well as liberal justices Stephen Breyer and Ruth Bader Ginsburg. Two of the court’s liberals, Sonia Sotomayor and Elena Kagan, dissented.

“For decades, more than 50 other pipelines have safely crossed the trail without disturbing its public use. The Atlantic Coast Pipeline will be no different,” ACP spokeswoman Ann Nallo said by email, reiterating the company’s plans to be in operation by 2022.

“To avoid impacts to the trail, the pipeline will be installed hundreds of feet below the surface and emerge more than a half-mile from each side of the trail. There will be no construction activity on or near the trail itself, and the public will be able to continue enjoying the trail as they always have.”

Here’s a quote of interest. The plaintiffs just don’t want the project, and will move on to the next permit. Though I’m not sure what environmental law has language about how much something is needed and by whom.

While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power,” DJ Gerken, with the Southern Environmental Law Center, which sued over the pipeline, said in a statement.

NFS Litigation Weekly June 5, 2020

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The “real thing” is back (with a vengeance).  This is why I try to not get too far ahead of the Forest Service.  This FS litigation “weekly” covers six of them, some of which I’ve already addressed, so I guess you’ll get them twice.  The full Forest Service summaries for all may be found here:

Litigation Weekly June 5_2020_EMAIL

I’m also just copying their shorter email summary here and providing links to the related documents provided by the Forest Service, as well as to any previous summaries and a few related articles.

COURT DECISIONS

On April 20, 2020, the District Court of Montana issued an order lifting the injunction on the Bozeman Municipal Watershed Fuels Reduction Project and the East Boulder Fuel Reduction Project on the Gallatin National Forest after the Forest Service adequately assessed the impacts of the Northern Rockies Lynx Amendment (Lynx Amendment) and the projects on the Canada Lynx and its critical habitat. The projects aimed to reduce the severity and collateral effects of wildfire by way of logging, thinning, and prescribed burns. Both projects were to take place in areas designated as critical habitat lynx.  (Previously summarized here.)

On April 21, 2020, the Eastern District Court of California issued an order dismissing the plaintiffs motions for temporary restraining order and preliminary injunction concerning the use of disaster relief funds for clearcutting timber, and construction of new biomass power plant utilizing the timber as feedstock following the 2013 Rim Fire on the Stanislaus National Forest.  (Previously summarized here.)

On April 29, 2020, the District Court of Montana issued an order favorable to the Forest Service dismissing the plaintiff’s motion for Temporary Restraining Order (TRO) and Preliminary Injunction regarding the Darby Lumber Lands Project on the Bitterroot National Forest.  (Previously summarized here.)

On May 7, 2020, the District Court of Idaho issued an order that granted the Forest Service’s motion to dismiss the plaintiffs’ claim that the Agency supplement the 1995 Environmental Assessment (EA) based on new information. However, the district denied the Forest Service’s and U.S. Fish and Wildlife Service’s motion to dismiss the plaintiffs’ claim for reinitiating consultation based on taking of grizzly bear resulting from black-bear baiting for hunting in the Idaho Panhandle National Forest, Caribou-Targhee, Bridger-Teton, and Shoshone National Forests.  (Previously summarized here.)

On May 4, 2020, the District Court of Idaho issued a decision concerning the Kilgore Exploration Project on the Caribou-Targhee National Forest (a 5-year mining exploration project). The court vacated the August 20, 2018, decision notice (DN) and finding of no significant impact (FONSI) and the environmental assessment (EA). The district court’s December 18, 2019 decision had permitted the project to proceed, minus the Dog Bone Ridge portion of the project.  (Previously summarized here.)

May 1, 2020, the 9th Circuit Court of Appeals ruled in favor of the Forest Service upholding the District Court of Oregon’s decision granting summary judgment for the Forest Service, concerning the plaintiffs’ challenge to the issuance of grazing authorizations between 2006 and 2015 on seven grazing allotments on the Malheur National Forest. The plaintiffs allege non-compliance with the Wild and Scenic Rivers Act (WSRA), Administrative Procedures Act (APA), National Forest Management Act (NFMA), and Inland Native Fish Strategy (INFISH).  (Previously summarized here.)

On May 8, 2020, the 9th Circuit Court of Appeals affirmed the District Court for Eastern California’s favorable decision to the Forest Service and the U.S. Fish and Wildlife Service (FWS) concerning the Bagley Hazard Tree Abatement Project on the Trinity National Forest.  (Previously summarized here.)

On May 20, 2020, the 9th Circuit Court of Appeals affirmed the District Court of Idaho’s favorable decision to the Forest Service, concerning the Windy Shingle Project on the Perce Clearwater National Forest. The project was approved with an insect and disease categorical exclusion (CE), under the 2014 amended Healthy Forest Restoration Act (HFRA), sections 602 and 603. The Forest completed an extraordinary circumstances analysis and evaluated the cumulative impacts. The 9th Circuit found that the methods applied for determining old growth status were legitimate, and that adjusting the management areas was permitted by the Nez Perce Forest Plan.

On May 26, 2020, the District Court of Central California issued a decision favorable to the Forest Service concerning the Cuddy Valley Project on the Los Padres National Forest involving the use of a 36 C.F.R. § 220.6(e)(6) categorical exclusion (CE), for timber stand and wildlife habitat improvement. The plaintiffs asserted that approval of the project violated the National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), and Administrative Procedures Act (APA).

On May 28, 2020, the Court of Federal Claims issued an order dismissing the case for lack of jurisdiction in favor of the National Park Service and the Forest Service concerning continued allowance of the hunting of bison that have migrated out of the Yellowstone National Park and through Beattie Gulch on the Custer-Gallatin National Forest. Plaintiffs allege the hunting program has affected a temporary regulatory taking of plaintiffs’ property by creating an atmosphere of danger and decreasing the rental value of their property.

On May 28, 2020, the District Court of Eastern California issued a decision against the Forest Service and the U.S. Fish and Wildlife Service (FWS) concerning the Pettijon Project (a fuel-reduction project) on the Shasta-Trinity National Forest regarding the Plaintiffs motion to supplement the administrative record.

On May 22, 2020, the District Court of Arizona issued an order in favor of the Forest Service concerning the remaining claim which challenged the Agency’s determination that Energy Fuels has “valid existing rights” (VER) at the Canyon Mine on the Kaibab National Forest. The Decision concerns the district court evaluation of Federal Land Policy and Management Act (FLPMA) in determining prior existing rights based on the 9th Circuit Court of Appeals order (December 19, 2019) vacating back to the lower court for review.  (More in this article.)

On May 26, 2020, the District Court of Montana issued a decision favorable to the Forest Service, concerning Robbins Gulch Road easement on the Bitterroot National Forest. The court granted the Agency’s motion to dismiss and denied the plaintiffs’ motion for summary judgment. The plaintiffs alleged that by allowing public access on Robbins Gulch Road, the Forest Service was exceeding the scope of its 1962 road easement, which plaintiffs argued was limited to Forest Service use only, such as for timber or grazing purposes, and was not intended to provide public access to National Forest System lands.  (More in this article.)

COURT UPDATE

On April 24, 2020, the District Court of Montana issued an order regarding a factual dispute between the Forest Service and the plaintiff, which must be addressed prior to summary judgement. The case concerns the Forest Service’s approval of Tenmile South-Helena Vegetation Project on the Helena-Lewis and Clark National Forest. A factual dispute arose after the plaintiffs took photos and collected GPS information in the project area, which they believe strengthens their case.

NEW CASES

On April 20, 2020, the plaintiffs filed a complaint in the District Court of Oregon against the Forest Service concerning the Black Mountain Vegetation Management Project on the Ochoco National Forest. Plaintiffs claim the project is inconsistent with the Ochoco NF Forest Plan as amended by Inland Native Fish Strategy (INFISH). The plaintiffs claim the Forest Service failed to take a hard look at direct, indirect, and cumulative impacts of the project.  (Introduced here.)

On April 20, 2020, the plaintiffs filed a complaint against the Forest Service concerning the Crow Creek Pipeline on the Caribou-Targhee National Forest and the Agency’s final decision and amendments to the 2003 Caribou-Targhee National Forest (CTNF) Forest Plan. The plaintiffs allege violations of the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), Mineral Leasing (MLA), and National Trails System Act (NTSA).  (Introduced here.)

On April 20, 2020, the plaintiffs filed a complaint in the District Court of Wyoming against the Forest Service approval of the Alkali Creek, Forest Park, and Dell Creek feedgrounds on the Bridger-Teton National Forest. The plaintiffs challenge two feedground decisions by the Forest Service’s (1) five year approval of the Wyoming Game and Fish Commission request to resume feeding operations on the Alkali Creek Feedground without conducting the environmental analysis previously ordered by the district court (September 14, 2019 order; 17-0202, D. Wyo.); and (2) indefinite authorization of artificial feeding at Dell Creek and Forest Park feedgrounds without issuing the special uses permit under the Forest Service’s own regulations (36 CFR section 251.54(e)(1), or conducting environmental analysis under the National Environmental Policy Act (NEPA).  (Introduced here.)

April 27, 2020, the petitioner (YJ Guide Service, LLC dba Bungalow Outfitters) a hunting outfitter and guide, filed an application for Temporary Restraining Order (TRO) in the District Court of Idaho against the Forest Service regarding suspension of a special use permit for Outfitting and Guiding on the North Fork Ranger District of the Nez Perce-Clearwater National Forest. No complaint has yet been filed. The petitioner’s application for the TRO is based on upon grounds that it believes it will suffer irreparable harm and injury if the TRO is not issued.

On April 24, 2020, the plaintiffs filed a complaint in the Eastern District of California against the Forest Service concerning the Crawford Vegetation Project on the Klamath National Forest. The plaintiffs claim the Forest Service failed to supplement their environmental analysis for the project in light of significant new information and changed circumstances regarding the impacts of the project on the northern spotted owl and Pacific fisher which have been found in the project area.

On May 6, 2020, the plaintiffs filed a complaint in the District Court for the District of Columbia against the U.S. Department of Interior (DOI), Bureau of Land Management (BLM), Department of Agriculture (USDA) and the Forest Service concerning compliance with the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) when the BLM issued two hard-rock mining lease renewals to Twin Metals Minnesota in an area adjacent to the Boundary Waters Canoe Area Wilderness (Boundary Waters) on the Superior National Forest.  (This latest lawsuit was introduced here.)

On May 7, 2020, the plaintiffs filed a complaint in the District Court of Idaho against the Animal and Plant Health Inspection Service (APHIS) concerning their predator damage management actions in the State of Idaho, relying on inadequate and outdated environmental analysis in violation of the National Environmental Policy Act (NEPA). The plaintiffs bring related claims against the Bureau of Land Management (BLM) and Forest Service, which authorized APHIS’s aerial gunning of coyotes and other wildlife on federal lands [through Annual Work Plans (AWPs)], without adequate environmental analysis in violation of NEPA.

On May 8, 2020, the plaintiffs filed a request for a preliminary injunction (PI) in the District Court for the District of Columbia against the U.S. Fish and Wildlife Service (FWS) and the Forest Service concerning the Upper Green River Area Rangeland Project on the Bridger Teton National Forest, which plaintiffs allege unlawfully impacts the grizzly bear, and the Kendall Warm Springs dace. Plaintiffs challenge the FWS issuance of, and the Forest Service reliance on, a flawed Biological Opinion (BO) regarding the negative impacts to grizzly bears that arise from the Forest Service’s authorization of continued livestock grazing in prime grizzly bear habitat within the Forest, in violation of the Endangered Species Act (ESA), and Administrative Procedures Act (APA), and impacts on the Kendall Warm Springs dace.  (Some prior history can be found here.)

On May 13, 2020, the plaintiffs filed a complaint in the District Court of Indiana against the Forest Service concerning the Forest Service Houston South Vegetation Management and Restoration Project on the Hoosier National Forest. The plaintiffs allege the project violates the National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), and Administrative Procedures Act (APA). The plaintiff’s concerns are related to the impacts of the project on Lake Monroe watershed, which supplies drinking water for more than 145,000 people. The plaintiffs claim the Forest Service’s action fails to comport with the Agency’s own stated goal of protecting and restoring watershed health in its 2006 Hoosier NF Forest Plan. The project consists of commercial logging, including clear-cuts, shelterwood cuts, selective cuts, and thinning cuts, as well as road building, herbicide application, and prescribed burning activities.  (Introduced here.)

On May 20, 2020, the plaintiffs filed a complaint in the District Court of Idaho against the Forest Service for violations of the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), National Forest Management Act (NFMA), the Administrative Procedures Act (APA), and Agency Wild and Scenic River regulations concerning the Brebner Flat Project on the Idaho Panhandle National Forest.

NOTICES OF INTENT

On April 15, 2020, (dated April 7, 2020), a 60-day Notice of Intent was received by the Friends of the Clearwater and the Alliance for the Wild Rockies (FOC/AWR) to sue the National Marine Fisheries Service (NMFS) and the Forest Service concerning the approval of the Lolo Insect and Disease Project and 24 new culvert replacements on the Nez Perce-Clearwater National Forest. The FOC/AWR state the Forest Service approved a decision permitting the Lolo Insect and Disease Project and 24 culvert replacements, and NMFS’s issued Biological Opinion (BO) and Incidental Take Statement (ITS) for the project on June 20, 2019, and a revised ITS on July 19, 2019, with a take limit of 79 Snake River Basin (SRB) steelhead. The complainants claim violations of Section 7 and Section 9 of the ESA concerning the Snake River Basin Steelhead.

On April 1, 2020, Range 6-received a 60-day Notice of Intent by the WildEarth Guardians (WEG) to sue the U.S. Fish and Wildlife Service (FWS) and the Forest Service concerning ongoing Livestock Grazing, on the Cooper Mires, Lambert, and C.C. Mountain allotments on the Colville National Forest. The FWS and the Forest Service continue to violate the Endangered Species Act (ESA) section 7 consultation. Complainants claim four listed species and two critical habitats exists within the allotments: bull trout, woodland caribou and their critical habitats, grizzly bear, and Canada lynx. Also, suitable habitat for yellow-billed cuckoo (listed threatened species) and both wolverine and white bark pine are present (candidate species).

NOI-dated April 27, 2019, Alliance for the Wild Rockies and Native Ecosystems Council sent a 60-day Notice of Intent to Sue pursuant to the Endangered Species Act (ESA) for alleged violations concerning the Stonewall Vegetation Project on the Helena-Lewis and Clark National Forest. The Stonewall project was authorized 1,381 acres of vegetation treatments in a Record of Decision on December 19, 2019. This project was analyzed in a Supplemental EIS due to a fire that had burned through the project area.

NOI-dated May 20, 2020, Center For Biological Diversity, Northeastern Minnesotans for Wilderness and the Wilderness Society sent a 60-day Notice of Intent to Sue the Bureau of Land Management (BLM), Forest Service and the U.S. Fish and Wildlife Service (FWS) pursuant to the Endangered Species Act (ESA) for alleged violations concerning BLM’s May 1, 2020 Decision approving Federal Hardrock Prospecting Permit Extensions for Twin Metals; and for the Forest Service and FWS failure to reinitiate and complete ESA consultation regarding ongoing impacts to Federally listed species and their critical habitat from the Prospecting Permits on the Superior National Forest (Region 9). The NOI states that the permits violate Sections 7 and 9 of the ESA based on new information concerning Canada lynx, gray wolf and their critical habitat, and the Northern long-eared bat.