Litigation

Trump’s latest marching orders on public lands

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Trump – Nailed it

The Trump Administration declared the coronavirus pandemic to be a “national emergency” in March. On June 4, the president issued an executive order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”  It has been characterized as “waiving environmental protections,” in particular the National Environmental Policy Act and the Endangered Species Act, and would include actions taken on public lands. This has been condemned in the usual places.

It will be interesting to see how this plays out on federal lands, and whether it makes any difference.  Trump already has the pedal to the metal on development activities, so I wonder what more they could do – without actually violating a law.  Maybe we should expect more lawsuits.

Here’s some of the key language in the EO (with my emphasis):

Sec. 2.  Policy.  Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  (I assume that means other non-emergency authorities, and not other unlawful authorities 🙂 )

Sec. 5.  Expediting the Delivery of Infrastructure and Other Projects on Federal Lands

b)  To facilitate the Nation’s economic recovery, the Secretary of Defense, the Secretary of the Interior, and the Secretary of Agriculture shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance.

Sec. 6.  National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures.

b)  To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.

Sec. 7.  Endangered Species Act (ESA) Emergency Consultation Regulations.

(b)  The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, the ESA regulation on consultations in emergencies, to facilitate the Nation’s economic recovery.

Sec. 10.  General Provisions

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Of course an executive order can’t change the law or regulations, and this one explicitly refers to existing procedures that can be used in emergencies.  All I see Trump doing here is pointing out that there are existing authorities to expedite projects, and agencies should be using them.  But maybe the intent might be to expand the situations that are considered emergencies to include an economic recession.  I doubt that could be done “consistent with applicable law” related to emergency determinations.  Here is the language applicable to Forest Service NEPA (36 CFR §220.4):

The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources.

If there is a need to mitigate immediate harm to life, property or important resources, it would be consistent with applicable law to use the established emergency procedures.  There is either nothing new in the executive order, or if there is, we should expect it to be challenged.  (And then there is the question of why he waited three months to address this “emergency.”)

But these are dark days.  The Washington Post quoted an attorney at a large national law firm (Perkins Coie) that doesn’t usually represent environmental plaintiffs.  He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. “I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,” Jensen said, referring to actions in a Washington park this week. “It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.”

 

Litigation update – early May, 2020

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(Court decision)  In Alliance for the Wild Rockies v. Marten, the Montana federal district court has lifted the injunctions against the Bozeman Municipal Watershed Fuels Reduction Project and the East Boulder Fuel Reduction Project on the Custer-Gallatin National Forest because they have properly consulted on critical habitat for Canada lynx for both the forest plan and the projects, and no supplemental EIS was required.  This was discussed most recently here.

(Court decision)  In Conservation Congress v. U. S. Forest Service, the Ninth Circuit Court of Appeals has affirmed the district court and upheld the Bagley Hazard Tree Abatement Project on the Shasta-Trinity National Forest against ESA and NEPA claims related to northern spotted owls.  A report on the hearing is here.  (And here is some discussion on this blog from 2013.)

(Court decision)  In Pacific Rivers v. BLM, the Ninth Circuit Court of Appeals affirmed the district court and the BLM and upheld the 2016 amendments to its western Oregon resource management plans against ESA and NEPA claims related to listed fish species.  (They’re not calling it WOPR any more, but I think this was what happened after BLM lost in court on the first try, discussed here.)

(Settlement)  In response to a lawsuit, the Office of Surface Mining Reclamation and Enforcement agreed to consult with the U.S. Fish and Wildlife Service to review the impacts of coal mining across the country on endangered species.  While plaintiffs seem most interested in West Virginia, active coal mining occurs on national forests in Colorado, Utah, Wyoming and Kentucky.

(New lawsuit)  Monroe County (IN) and two environmental groups filed a lawsuit to stop the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, which they believe will pollute Lake Monroe, a major drinking water source for the area, and harm the endangered Indiana bat.

(New lawsuit)  Public Employees for Environmental Responsibility and the Western Watersheds Project have sued the Trump Administration for illegally filling the positions of the directors of the BLM and National Park Service with temporary, non-confirmed appointments.

 

In other Endangered Species Act news:

(Update)  A federal judge has agreed that 17 states may be harmed by Trump Administration changes in the Endangered Species Act regulations, so their lawsuit against these changes may proceed.  However, he found that was not the case for environmental and animal-rights groups and dismissed their complaints.

Following litigation, the U. S. Fish and Wildlife Service has proposed the southern Sierra Pacific fisher for listing as endangered, but denied a similar petition for the northern California/southern Oregon population, where “threats were mitigated by fuel reduction projects aimed at reducing wildfire severity and partnerships with timber companies to limit logging in Oregon.”

The U. S. Fish and Wildlife Service has proposed designation of critical habitat in Arizona and New Mexico riparian areas for the narrow-headed garter snake and the northern Mexican garter snake.  While it excluded private lands with conservation agreements and other public lands with adequate protective measures in place, a study had concluded that generally, the Forest Service does a poor job of enforcing existing restrictions on grazing leases.

The last two cases suggest that improved conservation measures for national forest lands might have made a difference and avoided these designations.

Litigation Summary – late April/early May 2020

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  • Stanislaus grazing (court decision in Central Sierra Environmental Resource Center v. Stanislaus National Forest, not included in earlier Forest Service summaries)

On August 6, the Eastern District of California court held that the grazing program (permits and annual operating instructions) for three livestock grazing allotments on the Stanislaus National Forest did not violate the Clean Water Act and is consistent with the forest plan in accordance with NFMA.  With regard to the latter, it deferred to the Forest Service interpretation of forest plan grazing standards to require long-term compliance based on monitoring and on evidence of steps taken to reduce impacts.  (We were talking about this here a couple of years ago.)

On April 21, the Eastern District of California court denied a preliminary injunction against two recovery projects following the Rim Fire on the Stanislaus National Forest.  New information submitted by plaintiffs suggesting greater natural regeneration than expected did not warrant preparation of a supplemental EIS.   While plaintiffs did raise serious questions regarding whether the California Department of Housing and Community Development should have analyzed the cumulative impacts of a biomass facility in conjunction with the recovery projects, they did not establish a likelihood of success on the merits, which allowed the benefits of the projects to outweigh potential harm from an injunction.  (Searching this site for “Rim Fire” will find a lot of background, most recently here,  A previous lawsuit was discussed here.)

On April 29, the Montana district court denied plaintiff’s motion for a preliminary injunction against the Darby Lumber Lands II Project on the Bitterroot National Forest since logging wasn’t expected to start until this fall.  “Friends of the Bitterroot said the agency’s decision to include logging in the second phase of work on the already heavily logged area that was once owned by Burlington Northern Railroad and then Darby Lumber was contrary to the agency’s initial focus on restoration of the area.”

On April 30, the Colorado district court granted summary judgment to plaintiffs on two of its Freedom of Information Act claims related to oil and gas lease sales (some of the records involve the Forest Service, so I’m assuming this affects the San Juan National Forest) and their effects on the federally listed Gunnison sage-grouse.  BLM was required to search for additional records at its national headquarters and to prepare a new index that would allow the court to determine if FOIA exemptions were properly applied.

  • Malheur grazing (court decision in Oregon Natural Desert Association v. U. S. Forest Service)

On May 1, the Ninth Circuit Court of Appeals affirmed the district court and the Forest Service determination that a number of grazing authorization decisions on the Malheur National Forest were consistent with two standards in the forest plan (including a key standard found in the Inland Native Fish Strategy applicable to all national forests with bull trout habitat). The court agreed with the Forest Service that determining consistency with standards focused on outcomes designed to protect aquatic resources required a “multi-pronged approach” over time, including monitoring.

  • Kilgore Mine (update on Idaho Conservation League v. U. S. Forest Service)

On May 4, the Idaho district court revoked the Forest Service’s approval of the Kilgore Project exploring for gold on the Caribou-Targhee National Forest, after ruling in December that the Forest Service failed to consider the applicant’s underground drilling as a threat to water quality and Yellowstone cutthroat trout in Corral Creek.

  • Grizzly bear delisting (update – hearing on Crow Indian Tribe v. U.S.A.)

The Ninth Circuit Court of Appeals held a hearing on this case on May 5th, as reported here and here.  The U. S. Fish and Wildlife Service has agreed to study the impacts on the species as a whole from delisting the Yellowstone population of grizzly bears, but does not want to conduct the “comprehensive review of the entire listed species” mandated by the district court (which could have implications for the legal status of other populations).  The genetic health of the species is also at issue.  (The district court opinion is found here.)

  • Bear baiting  (update on WildEarth Guardians v. U. S. Forest Service)

On May 7, the Idaho district court dismissed the NEPA claim but allowed the ESA claim to continue in this case involving black bear baiting in national forests in Idaho and Wyoming.  The agreement with the states to allow the practice, which has led to the death of grizzly bears, was established by rulemaking, so there is no ongoing federal action that would trigger the need for additional NEPA analysis.  The attempt by the U. S. Fish and Wildlife Service to remove itself from the ESA part of the case was denied.  (When this case was filed, we discussed it here.)

Central Oregon LandWatch and Oregon Wild filed suit against the 15,763-acre Black Mountain Vegetation Management Project on the Ochoco National Forest, claiming it would build too many roads, allow logging by streams and failed to identify and protect elk habitat.

The Center for Biological Diversity and the Environmental Protection Information Center have sued the U. S. Fish and Wildlife Service in California for failure to complete the ESA listing process for Humboldt marten within the required timeframes after proposing it for listing in October, 2018 (as we discussed here).  Martens are threatened by logging of mature forests, loss of closed-canopy habitat to wildfires, rodent poison used in marijuana cultivation, and vehicle strikes.

On May 6, five conservation groups, a canoe manufacturer, five outfitters and two outdoor-activity nonprofits sued in the District of Columbia court.  Plaintiffs allege that the Bureau of Land Management violated the National Environmental Policy Act before renewing the leases of land in the Superior National Forest for the Twin Metals copper-nickel mining project, following a prior rejection by the Forest Service under the previous administration.  Additional background may be found here and here.

In the latest effort to stop construction of the Mexico border wall, three conservation groups have filed suit in the District of Columbia court against three federal agencies (not including the Forest Service) for taking $7.2 billion from the Department of Defense without congressional approval of this use.  They allege that the planned barriers will wall off all remaining jaguar corridors along the U.S.-Mexico border (which would affect those using national forests).

  • SLAPPback suit against Roseburg Forest Products (new lawsuit: Water for Citizens of Weed California v. Churchwell White)

A group of citizens in Weed California has sued attorneys for the Roseburg Forest Products Company.  The attorneys had previously sued the individual citizens, who were activists involved in a disagreement about the town of Weed’s water supply.  The citizens prevailed in that case using California’s anti-strategic litigation against public participation, or anti-SLAPP, law intended to prevent use of the courts for intimidation.  In an unusual turn, they are now seeking damages from the attorneys in California Superior Court.

In response to the NOI referenced here, the U. S. Fish and Wildlife Service has agreed to reexamine the effect of the proposed development of summer recreation facilities (including mountain bike trails) on the federally endangered Mt. Charleston blue butterfly and its designated critical habitat on the Humboldt-Toiyabe National Forest.

Litigation update – end of April

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I haven’t seen a Forest Service summary for awhile, but here’s some things from my list that are becoming old news:

COURT DECISIONS

In Dobbs v. U. S. Forest Service, the Tenth Circuit Court of Appeals upheld a decision by the Forest Service to deny a request for a special use permit to build a gravel access road through the Upper Kiamichi River Wilderness in the Ouachita National Forest in Oklahoma.  The court accepted the Forest Service’s determination that a foot trail would provide “adequate access” under the requirements of the Wilderness Act.

But with or without a road or cabin, Dobbs can use his property to the same extent that most of the other inholders in the area use their own inholdings. And if Dobbs eventually decides to build a cabin, the agency concluded that he can do so with pack animals and helicopter to transport materials. Given that this is a “technical . . . matter[] within the [Forest Service’s] area of expertise,” we owe their decision “especially strong” deference.

This trend, it noted, was consistent with practices nationwide because a review of National Forests found that “motorized vehicles were only allowed on roads that existed prior to the area’s wilderness designation.” Id. That same national review found “no cases of new road construction . . . except in the rare instance where a new road was authorized by wilderness legislation.” Id.

In NRDC v. McCarthy, the Utah federal district court held that an environmental review under the NEPA was not required before the BLM lifted a temporary closure order for the Factory Butte area in southern Utah.  The purpose of the closure was to protect threatened and endangered cacti species that had been or were at risk of being adversely impacted by OHV use.

The Tenth Circuit Court of Appeals has recognized that the BLM’s implementation of “such [temporary] closures are nondiscretionary,” meaning that the action is exempt from the NEPA’s environmental review requirements. The plain language of (43 CFR) § 8341.2(a) supports a conclusion that lifting of a temporary closure order is also a nondiscretionary action of the BLM which is exempt from the NEPA.

There were concurrent changes being made in the area’s Resource Management Plan, and the court addressed the question of why this particular situation didn’t have to be addressed as part of that process.

“[The] exemption of [temporary] OHV travel restrictions from the [RMP] process reflects the realities of public land management and allows the BLM to timely comply with its statutory mandate to `take any action necessary to prevent unnecessary or undue degradation of the lands.'” And the exemption of lifting temporary OHV travel restrictions from the RMP process enables the BLM to comply with its statutory directive to “manage the public lands . . . in accordance with the [RMP].”

(Note:  That quote in the last sentence should not be read as allowing site-specific travel planning decisions to remove OHV travel restrictions without complying with NEPA.  At most, it should be limited to cases like this one where a temporary closure is being lifted, and Forest Service regulatory authorities would be different.)

SETTLEMENT

The Tahoe National Forest has agreed to limit e-bikes to trails open to motorized vehicles in response to the lawsuit filed by the Backcountry Horsemen and others in a case filed in October and discussed here.

NEW CASES

A coalition of wildlife advocacy groups filed a lawsuit charging the U.S. Forest Service with continuing to grant elk feeding permits on the Bridger-Teton National Forest without adequate environmental analysis, a move ordered by the U.S. District Court of Wyoming in 2018.

As promised in the NOI described here, two environmental groups filed a federal lawsuit to stop a proposed underground natural gas pipeline from Idaho to Wyoming in the Caribou-Targhee National Forest, saying it would harm protected grizzly bears and other wildlife and would create a road through six roadless areas.  Here is the plaintiffs’ perspective.

The Wilderness Society has gone to court to obtain a draft EA related to this possible mine on the Superior National Forest (as we discussed here) through the Freedom of Information Act.

“While federal decision-making is supposed to be based on “substantial evidence,” there is little question that political calculations occasionally play a role as well. In this case, however, environmental critics of Twin Metals contend that the decision was not just partially political, but entirely so, and they believe it was directly at odds with the evidence developed as part of the two-year study.”

A complaint was filed in the federal court in January against USDA Secretary Sonny Perdue and the U.S. Forest Service alleging gender discrimination and harassment and retaliation against a woman who worked for the Green Mountain National Forest and claims a colleague harassed her.

 

Clean Water Act major court decisions

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Not long ago we were discussing EPA’s new regulations redefining WOTUS to exclude areas that were not obviously connected to navigable waters, as summarized in the graphic above.  It was the latest iteration of a political dispute over the scope of the Clean Water Act.  Now the U. S. Supreme Court has, in a 6-3 decision, stepped in to apparently invalidate the recent “bright line” rule established by the EPA to again make point source permit requirements contingent on the actual risk of pollutants getting into navigable waters.  This somewhat splits the difference between the Obama and Trump interpretations, but clearly rejects the latter’s new absolute position.  “Significant nexus” has now become “functional equivalent.”

On April 23, 2020, the United States Supreme Court ruled that the addition of pollutants to groundwater which travels a half mile to enter navigable waters is the functional equivalent of a direct discharge, and subject to the protections and requirements of the Clean Water Act (“CWA”). The decision in County of Maui v. Hawaii Wildlife Fund, 590 U.S. (2020), represents a sea change in CWA interpretation, and may spell the end of the Navigable Waters Protection Rule issued by EPA and the Army Corps of Engineers only two days earlier. That rule (colloquially known as the 2020 WOTUS Rule) specifically excluded groundwater from the protections of the CWA under a new definition of “Waters of the United States.”

In determining that the CWA requires a permit when there is a functional equivalent of a direct discharge from a point source to navigable waters, the Supreme Court acknowledged that application of the statute will be highly fact dependent, with time and distance being critical issues in most cases.

In addition, a federal district court has stopped the Keystone Pipeline because its Clean Water Act permit for stream crossings is invalid.  This is significant because the permit was kind of the Clean Water Act equivalent of a NEPA categorical exclusion, a nation-wide blanket permit requiring limited environmental review that could be used for certain kinds of projects.  The court said that when the permit was renewed in 2017, the Army Corps of Engineers failed to adequately consider effects on species listed under the Endangered Species Act.  Since then the permit has been used 37,000 times.  So here’s what’s happening ….

The U.S. Army Corps of Engineers has suspended a nationwide program used to approve oil and gas pipelines, power lines and other utility work, spurred by a court ruling that industry representatives warn could slow or halt numerous infrastructure projects over environmental concerns.

The Trump administration is expected to challenge the ruling in coming days. For now, officials have put on hold about 360 pending notifications to entities approving their use of the permit, Army Corps spokesman Doug Garman said Thursday.

Pipeline and electric utility industry representatives said the effects could be widespread if the suspension lasts, affecting both construction and maintenance on potentially thousands of projects. That includes major pipelines like TC Energy’s Keystone XL crude oil line from Canada to the U.S. Midwest, the Mountain Valley natural gas pipeline in Virginia and power lines from wind turbines and generating stations in many parts of the U.S.

The Forest Service is involved with litigation of the Mountain Valley Pipeline as discussed most recently here.

 

NFS Litigation Weekly April 17, 2020

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Forest Service summaries:  Litigation Weekly April 17_2020_email

COURT DECISIONS

In Native Ecosystem Council v. Martin, the 9th Circuit Court of Appeals affirmed the district court and upheld the Johnny Crow wildlife habitat improvement project on the Helena-Lewis and Clark National Forest based on a wildlife habitat improvement categorical exclusion.

In another Native Ecosystem Council v. Martin, the 9th Circuit Court of Appeals affirmed the district court and upheld the Moose Creek Vegetation Project on the Helena-Lewis and Clark National Forest based on a HFRA categorical exclusion.

In BARK v. U. S. Forest Service, the District Court of Oregon held that Crystal Clear Restoration Project on the Mt. Hood National Forest required an EIS.  (This was also included last week.)

NEW CASES

In Mountain Pursuit v. U.S. Forest Service, plaintiffs filed an amended complaint (after their previous complaint was dismissed without prejudice) regarding ongoing motorized and mechanized use in wilderness study areas on the Bridger-Teton and Caribou-Targhee National Forests and its effects on ESA-listed species.  (D. Wyo.)

In Western Watershed Project v. Bernhardt, a second plaintiff is challenging the Upper Green River Area Rangeland Project on the Bridger-Teton National Forest regarding impacts on the grizzly bear and the Kendall Warm Springs dace.  The first case, filed by the Center for Biological Diversity, was summarized here.  (D. D.C.)

NOTICES OF INTENT

WildEarth Guardians and the Western Watersheds Project claim the Forest Service and Fish and Wildlife Service are violating ESA by authorizing livestock grazing on three allotments on the Colville National Forest without proper consultation on several listed and candidate species.

The Center for Biodiversity intends to sue the Forest Service and Fish and Wildlife Service concerning the impacts of region-wide restoration projects on the Mexican spotted owl in New Mexico and Arizona.  (The link actually goes to the Colville notice.)

BLOGGER’S BONUS

(New case, BLM)  Advocates for the West and other plaintiffs say the Bureau of Land Management’s 2019 plan for the conservation area sanctioned destructive levels of livestock grazing on lands that were supposed to be protected.  (An NOI under ESA is pending.)  (D. Ariz.)

(Administrative objection)  Yellowstone to Uintas Connection and the Alliance for the Wild Rockies filed a formal Objection and a call for a full Environmental Impact Statement with the Manti La Sal National Forest, objecting to the Cottonwood Range Improvements Project, for the grazing allotment managed by The Nature Conservancy’s Dugout Ranch.

(Court decision involving FWS)  The Arizona federal district court has overturned the U.S. Fish and Wildlife Service’s approval of a permit for the proposed Rosemont copper mine in the Coronado National Forest because FWS improperly estimated the potential groundwater drawdown from the mine’s operations and how that might impact several endangered species in the Santa Rita Mountains.  An earlier court decision also reversed the decision based on terrestrial species.

(FWS action required by injunction) The U.S. Fish and Wildlife Service announced a 60-day public comment period to help determine the scope of its analysis for rewriting the rule for Mexican gray wolf management in Arizona and New Mexico.

(NOI, FWS)  Four conservation groups intend to sue the Fish and Wildlife Service over its decision in November 2019 that the California spotted owl did not warrant listing under the Endangered Species Act.

(NOI, FWS)  Three conservation groups intend to sue the Fish and Wildlife Service over its decision in December 2019 that the red tree vole, found in northwest Oregon, did not warrant listing under the Endangered Species Act.

(New case against the state forestry agency) The Wendell State Forest Alliance has filed a lawsuit in county court against the state Department of Conservation and Recreation’s selective harvesting of an 80-acre old oak stand.  The main issue is that older trees that would be cut sequester more carbon, but the DCR is putting a higher priority on the forest’s long-term health.

NFS Litigation Weekly April 10, 2020

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Here’s the Forest Service summary:  Litigation Weekly April 10_2020_Final_Email

COURT DECISIONS

The 9th Circuit Court of Appeals determined that the Forest Service’s decision to not prepare an Environmental Impact Statement for the Crystal Clear Restoration Project on Mount Hood National Forest was arbitrary and capricious – as described in more detail here.

UPDATES

(Front Range Equine Rescue v. Christiansen)  The plaintiffs requested dismissal of the complaints in the District Court of Northern California concerning the gathering of wild horses on the Modoc National Forest based on the new provision in the 2020 Interior-EPA Federal Budget authorization that prohibits the sale of wild horses without limitation (i.e. for slaughter) by the Forest Service.

(Rocky Mountain Wild v. Dallas) The District Court of Colorado issued an order granting a partial motion to dismiss concerning ANILCA in favor of the Forest Service concerning the Village of Wolf Creek Access 2019 Record of Decision (2019 ROD) on the Rio Grande National Forest.

NEW CASES

(Alliance for the Wild Rockies v. U.S. Forest Service)  The plaintiff filed a complaint in the District of Montana concerning the authorization of the Elk Smith Project on The Helena-Lewis & Clark National Forest and the programmatic ESA consultation for the wolverine.

(Center for Biological Diversity v. Bernhardt)  The plaintiffs filed a complaint in the District Court for the District of Columbia against the U.S. Fish and Wildlife Service 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.  (Here’s CBD’s press release, and here’s another summary.)

NOTICE OF INTENT

Alliance for the Wild Rockies claims the Forest Service violated the Endangered Species Act regarding alleged violations of road restrictions over the prior five-year period on the Helena-Lewis & Clark National Forest and has not properly consulted on the effects on grizzly bears.  (Here’s a local news article.)

The Center for Biological Diversity intends to sue the U.S. Fish and Wildlife Service and the Forest Service concerning the expansion of the Lee Canyon Ski Area on the Humboldt-Toiyabe National Forest regarding its effects on the Mount Charleston Blue Butterfly.

The Center for Biological Diversity also intends to sue the U.S. Fish and Wildlife Service and the Forest Service concerning region-wide restoration project impacts on the Mexican Spotted Owl in Region 3.

 

BLOGGER’S BONUS

  • Ten-mile South Helena Project

(Update)  We’ve talked about this case a few times, including here, where the State of Montana’s intervention was mentioned.  The role of intervenors in settlements has come up before and I ran across this court’s treatment of that request in this case:

In granting the motion for intervention as a matter of right, the Court advises Montana that, while it may participate in settlement negotiations with the parties should such negotiations take place, its status as Defendant-Intervenor does not carry with it the right to prevent any settlement of plaintiffs’ or consolidated plaintiffs’ claims from occurring…

A preliminary injunction was denied in October.  Here is the plaintiff’s recent perspective on the ongoing project:

  “How does the Forest Service justify bulldozing new roads where they are not supposed to be?  Only by saying, “this feature is not a road.”

(New case against FWS.)  The Center for Biological Diversity and others have sued the U.S. Fish and Wildlife Service for failing (again) to protect wolverines as required by the Endangered Species Act.  Read more here.

  • Iron Mask sagebrush/juniper project

(Continuation of an existing case against BLM.)  According the Alliance for the Wild Rockies,

“The federal court agreed and halted the project last year because the BLM’s analysis was limited to the theoretical positive effects but did not analyze the overwhelming negative effects of burning sagebrush-juniper habitat on wildlife. Ignoring the court’s order, the Trump administration now wants to go forward to benefit a few cattle ranchers without analyzing the damage their project will have on public lands and a wide variety of native wildlife.

(Court decision involving EPA.)  The First Circuit Court of Appeals found that under the Federal Advisory Committee Act, the EPA must ensure that its science advisory committees are sufficiently balanced so that they can provide independent advice.

(Potential lawsuit.)  Monroe County, Indiana has approved the use of its attorneys to challenge a project on the Hoosier National Forest that could affect its municipal watershed.

(New case against FWS.)  The Buffalo Field Campaign, Friends of Animals, and Western Watersheds Project have sued the U. S. Fish and Wildlife Service for determining that the bison (which seasonally uses a portion of the Custer-Gallatin National Forest) does not warrant listing under the Endangered Species Act.

(Court decision involving BLM.)  In a case involving the State of California and other plaintiffs, the Trump administration didn’t break the law when it scrapped an Obama-era regulation for fracking on public and tribal lands.

Mt. Hood (lack of) science loses in 9th Circuit

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The way courts approach scientific controversy is a common thread on this blog.  We happen to have a perfect example from the Ninth Circuit Court of Appeals (link to the opinion included) last week.  And it happens to involve the science of “variable density thinning” to reduce wildfire threats, another popular topic here.

The Project is the Crystal Clear Restoration Project on the Mt.  Hood National Forest.  The stated primary purpose of the Project is to reduce the risk of wildfires and promote safe fire-suppression activities.  It would use “variable density thinning” to address wildfire concerns, where selected trees of all sizes would be removed.  According to the plaintiffs, it  would encompass nearly 12,000 acres and include almost 3000 acres of logging of mature and old-growth forests along with plans to build or re-open 36 miles of roads.  The court held that an EIS was required because of scientific controversy about the effects of variable density thinning on what plaintiffs characterized as “mature, moist forest.”  The court also found that the Forest failed to show that cumulative effects would not be significant.

In both cases, the court found that the Forest “did not engage” with the information provided by the plaintiffs after, “The plaintiffs, especially Bark, got people out into the landscape and spent thousands of hours collecting information about what was going on in the land and gave that information to the Forest Service,” said attorney Brenna Bell, who spent four years on the case.  Failing to engage is a common reason for the Forest Service failing to win in court, especially when under pressure to meet “timber volume targets imposed by President Donald Trump’s administration.”

The EA stated that the Project would assertedly make the treated areas “more resilient to perturbations such as . . . largescale high-intensity fire occurrence because of the reductions in total stand density.”  Plaintiffs had provided “substantial expert opinion” that disputed that outcome.  As plaintiffs point out in their victory notice, here is how the court viewed it:

“Oregon Wild pointed out in its EA comments that “[f]uel treatments have a modest effect on fire behavior, and could even make fire worse instead of better.” It averred that removing mature trees is especially likely to have a net negative effect on fire suppression. Importantly, the organization pointed to expert studies and research reviews that support this assertion

Oregon Wild also pointed out in its EA comments that fuel reduction does not necessarily suppress fire. Indeed, it asserted that “[s]ome fuel can actually help reduce fire, such as deciduous hardwoods that act as heat sinks (under some conditions), and dense canopy fuels that keep the forest cool and moist and help suppress the growth of surface and ladder fuels . . . .” Oregon Wild cited more than ten expert sources supporting this view.”

Even the fuels report by the Forest Service acknowledged the possibility of increased fire severity. The court held (emphasis added):

“In its responses to these comments and in its finding of no significant impact, the USFS reiterated its conclusions about vegetation management but did not engage with the substantial body of research cited by Appellants. Failing to meaningfully consider contrary sources in the EA weighs against a finding that the agency met NEPA’s “hard look” requirement as to the decision not to prepare an EIS. This dispute is of substantial consequence because variable density thinning is planned in the entire Project area, and fire management is a crucial issue that has wide-ranging ecological impacts and affects human life.”

The opinion is short and worth reading as a good example of how not to approach NEPA effects analysis (i.e. “let’s make this fit into an EA instead of an EIS”).  The court cited 9th Circuit precedent for this requirement: “To demonstrate a substantial dispute, appellants must show that “evidence from numerous experts” undermines the agency’s conclusions.” The court is not choosing the science; only faulting the Forest Service for ignoring conflicting views that it found rose to a level of scientific controversy.  Under NEPA, evidence of scientific controversy requires an EIS to fully explore how the use of that science may be important to determining environmental impacts.

NFS Litigation Weekly March 27, 2020

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The Forest Service summaries are here:  Litigation Weekly March 27_2020_For Email

This week there are no documents included with the summaries.  Where I’ve got something I’ve added a link.

COURT DECISIONS

The district court held that the Forest Service and the Bureau of Land Management violated NEPA in conjunction with the authorization of oil and gas leases and fracking on the Wayne National Forest.  (The CBD announcement link above includes a link to the opinion.  For an alternative view that uses this as an example of a need for NEPA reform, see this.)

The district court denied plaintiff’s motion for reconsideration of the court’s decision to lift the injunction against the Miller West Fisher Project on the Kootenai National Forest because the project has been halted while the access management direction in the forest plan is being reconsidered, as discussed here in conjunction with the Pilgrim II Project.

The district court dismissed this case concerning the Rocky Mountain Regional Forester’s authorization permitting the use of chainsaws to clear trails in designated wilderness on the San Juan and Rio Grande National Forests because the Forest Service formally withdrew the authorization.  (We previously discussed this issue here and here.)

The circuit court upheld the use of a HFRA categorical exclusion for the Smith Shields Forest Health Project on the Custer-Gallatin National Forest and the “Clean-up Amendment” to the Gallatin Forest Plan as it related to identification of old growth forest and elk hiding cover.

The district court found violations of NEPA, NFMA and ANILCA for the Prince of Wales Landscape Level Analysis Project and the Twin Mountain Timber Sale on the Tongass National Forest as discussed here.  (Earlier discussion of the invalidated “condition-based” management is found here.)

  • WildEarth Guardians v. Weber (D. Mont.)

The district court denied a motion to dismiss the claims against the Flathead revised forest plan related to areas designated as suitable for snowmobile use.

  • Thiessen v. Irwin (D. N.M.)

The district court dismissed this case because the plaintiffs incorrectly served the complaint against the Forest Service for cancelling a grazing permit.

  • Wilderness Watch v. Perdue (9th Cir.)

The circuit court affirmed the decision that there were NEPA and Wilderness Act violations from allowing helicopter operations to collect wolf data on the Salmon-Challis National Forest, but remanded to the district court to modify the injunction regarding use of the data.  (This was posted earlier here and the district court decision was discussed here.)

  • Native Ecosystem Council v. Marten (D. Mont.)

The district court held that the Custer-Gallatin National Forest violated the Endangered Species Act by failing to complete a biological assessment for the wolverine and violated the National Forest Management Act because its calculation of elk hiding cover violated the forest plan for North-Hebgen Multiple Resource Project.

UPDATE

  • Devil’s Garden Preservation Group v. U.S. Forest Service (E.D. Cal.)

The district court denied the plaintiffs’ motion to compel the Forest Service to provide documents through discovery on this case concerning the gathering of wild horses on the Modoc National Forest.

NEW CASE

The complaint (linked to above) alleges that Idaho Panhandle National Forest and U.  S. Customs and Border Protection violated the forest plan and NEPA when approving the construction and maintenance of a new road and removing seasonal restrictions on five other roads near the Canadian border.  (More in this article.)

NOTICES OF INTENT

The Center for Biological Diversity claims the Forest Service violated The Endangered Species Act by not following requirements in the U.S. Fish and Wildlife Service’s biological opinions for 20 grazing allotments in the Coconino, Prescott, and Tonto national forest, and failing to reinitiate consultation on many species affected in riparian areas.  (This article includes pictures from the plaintiff’s monitoring.)

  • Custer-Gallatin bridge and trail

Paul and Cathy Donohoe of Nye Montana claim the Forest Service violated the Endangered Species Act regarding the effects on grizzly bears of construction of a bridge over the West Fork of the Stillwater River and the creation of a connector trail between the West Fork of the Stillwater Trailhead and the Castle Creek Trailhead Project.

OTHER AGENCIES

  • Voyageur Outward Bound School v. United States (D. D.C.)

To resolve several consolidated cases involving the proposed Twin Metals Mine on the Superior National Forest, the district court upheld BLM’s reinstatement of 2004 leases.  (This proposal has been discussed here and here. According to this article, which summarizes the complicated history, an appeal is planned.)

The circuit court reversed a decision by the U. S. Fish and Wildlife Service to designate critical habitat for the endangered jaguar in southwestern New Mexico and southeastern Arizona.  (Another summary is here.)

BLOGGER’S BONUS

The US Army Corps of Engineers, Bonneville Power Administration, and the Bureau of Reclamation produced a draft plan for hydrosystems operations in the Columbia River basin.  Once again it proposes to leave the Snake River dams in place.  Consultation will be required with the National Marine Fisheries Service on several listed salmon runs.  Courts have thrown out five similar plans since 2001 that were approved by NMFS.  I was involved in at least one of these because the Forest Service provides much of the spawning habitat, and has a responsibility to help mitigate the effects of these dams as long as they are in place.  (Here’s a second perspective.)

 

NFS Litigation Weekly March 6, 2020

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Forest Service summaries:  Litigation Weekly March 06_2020 Email

COURT DECISIONS

The 6th Circuit Court of Appeals issued an Order in favor of the Forest Service concerning amenities at the Marsh Branch Boat Launching Facility in the Daniel Boone National Forest.  This was an attempt by an individual to compel the Forest Service to repair a security light and provide picnic tables because they charged a fee under the Federal Lands Recreation Enhancement Act.

NEW CASES

Neighbors of the Mogollon Rim filed a complaint against the Forest Service and U.S. Fish and Wildlife Service regarding the allotment management plan and grazing permit for the Bar X and Heber-Reno Sheep Driveway Allotments on the Tonto National Forest involving the effects of grazing on the Mexican Spotted Owl and narrow headed garter snake.   (D. Ariz.)

Plaintiffs filed a complaint against the Forest Service regarding the Fossil Ridge II Land Exchange on the Gunnison National Forest, which would allegedly eliminate access to private property.  (D. Colo.)

OTHER AGENCIES

The District Court of Idaho has required notice and comment rulemaking for the BLM to change its public comment process for oil and gas lease sales in sage grouse habitat, and failure to do so resulted in the court cancelling $125 million in recent lease sales in Nevada, Utah and Wyoming.  (More in this article.)

 

BLOGGER’S BONUS

(Update.)  Three  environmental groups are suing the BLM over its decision to allow development of a gas field that overlaps with the state of Wyoming’s only recognized sage grouse winter concentration area and a migration path that’s used by pronghorn.  (More in this article.)  We have discussed the “path of the pronghorn,” which includes the Bridger-Teton National Forest, here.

(Update.)  As a result of a lawsuit by the Center for Biological Diversity, the U. S. Fish and Wildlife Service has designated critical habitat for the black pinesnake in the longleaf pine forests of Mississippi and Alabama, including the DeSoto National Forest, which comprises the majority of the habitat.

(New case.)  The Center for Biological Diversity has filed a new lawsuit against the Fish and Wildlife Service for failing to act on petitions to list 241 species as it had specified in a schedule it adopted in 2016.  The CBD press releases includes a link to a map that shows which species are found in each state (if you click on the state).  Many are found on national forests.  (More in this article.)

(New case.)  A Montana ranch as sued an individual for trespassing when he crossed from one piece of national forest land to another at a corner (with an 80-foot gap) where that land abuts private land.  The individual has claimed a prescriptive easement.  The Gallatin National Forest states that it has no position.

(New case.)  Surviving members of a family have sued the Forest Service for negligence, wrongful death, and negligent infliction of emotional distress because relatives were killed in a Tonto National Forest campground by a flash flood, and the Forest Service failed to provide a warning.