Litigation

Supreme Court to look at science and politics

by

In my experience, there have been lots of controversies where the issue is about what scientific information was considered by an agency but was suppressed or ignored by an administrator, often for allegedly political reasons.  It’s not unusual for the results of litigation to turn on documents that show an agency decision being arbitrary and capricious (violating the Administrative Procedure Act) because it is not supported by the record.  But do those kinds of documents have to be available to the public, and what if they weren’t?  The Supreme Court will be addressing such questions in U. S. Fish and Wildlife Service v. Sierra Club.  The case involves the Freedom of Information Act, and its requirement to make government records available subject to exceptions that may cause harm, in particular protection of an agency’s “deliberative process.”  (This exception generally lines up with requirements for what must be in an agency’s administrative record for a decision.)

The dispute stems from the Environmental Protection Agency’s 2011 proposal to change how it regulates power plants’ cooling water intake structures, which can crush or boil fish and other aquatic creatures.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service advised the agency on how the plan would affect threatened and endangered species. The services crafted draft opinions that said the EPA’s proposal was likely to harm protected species, but they later changed their conclusion and issued a “no jeopardy” finding.

When the Sierra Club used FOIA to get records related to the consultation process, the agencies withheld the draft opinions. After years of litigation, the U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records.

The Trump administration in October asked the Supreme Court to step in, arguing that the circuit court ignored FOIA Exemption 5, which protects records from an agency’s “deliberative process.” The Sierra Club countered that the documents were labeled drafts but functioned as final opinions.

While this article doesn’t talk about it, the major federal environmental statutes have requirements to use the “best science,” including the Endangered Species Act involved in this case, but also NEPA and the Forest Service Planning Regulations.  Agencies must prove they have done this by “showing their work.”  This includes disclosing contrary science, and providing the rationale for not relying on it.  It seems to me that any changes in the use of science or how it is viewed would be relevant to this requirement and must be explained to the public.  This is probably why there are comments like these on this case:

Margaret Townsend, a Center for Biological Diversity attorney who focuses on government transparency, said her group will be watching the case closely, as the Supreme Court “has a crucial opportunity to tell agencies they can’t hide science at the expense of our endangered animals and plants.”

Brett Hartl, government affairs director for the center, noted that expanded use of FOIA’s “deliberative process” exemption could allow the EPA and others to block disclosure of critical documents that explain agency decisions.

Lewis and Clark Law School professor Daniel Rohlf said a win for the government at the Supreme Court could help agency leaders overrule their own scientists and other experts.

Here’s what the government would like us to believe (according to the apparently pro-government-secrecy advocates the Pacific Legal Foundation):

“And here the agencies decided that the draft should not be finalized because further consultation was necessary, and then actually engaged in more consultation before issuing a final opinion.”

Consultation with whom, I wonder.  Since the Supreme Court agreed to review the case, the assumption is they would like to reverse in favor of the government.  The Sierra Club may decide to fold, also because FOIA has been amended since this case was filed to restrict the use of this FOIA exemption and promote greater disclosure.

NFS Litigation Weekly February 28, 2020

by

The Forest Service summaries are here:  Litigation Weekly February 28_2020_Final

UPDATES

A case filed by a ranch and Idaho state officials was voluntarily dismissed because the BLM and Forest Service subsequently submitted the 2015 sage grouse plan amendment decisions to Congress in accordance with the Congressional Review Act.

(Blogger’s note:  The Forest Service summary refers to the plan amendments once as the “Sage Grouse Rules.”  These court document do not use this term, and I don’t believe a court has ever determined that forest plans are “rules” requiring submission to Congress under the CRA.)

NEW CASES

The plaintiffs are challenging the Darby Lumber Lands Phase II Project on the Bitterroot National Forest, which involves “restoration” of lands formerly owned and logged by the Darby Lumber Co., and changing forest plan management direction for elk.  (D. Mont.)  (More of the context is provided here.)

The plaintiffs bring various claims under ESA and NFMA related to the effects of management of the Apache-Sitgreaves National Forest riparian areas on the endangered New Mexico meadow jumping mouse and its critical habitat.  (D. Ariz.)  (More of the context, including a Forest Service response, is included here.)

 

BLOGGER’S BONUS

  • More on sage grouse

(Update)  In response to a court ruling against the 2019 amendments to the 2015 amendments to sage grouse management in BLM land management plans in seven states, the BLM is publishing six draft supplemental environmental impact statements.  They are not proposing to change the 2019 decision.  (They are currently operating under the 2015 amendments in accordance with the court ruling.)  An article from Colorado is here.

  • Waters of the US (WOTUS)

(Notice of Intent)  More than a dozen conservation groups notified the Trump administration that it will challenge its compliance with the Endangered Species Act when it changed a federal rule aimed at protecting rivers and streams across the United States.  EPA’s new rule, announced January 23 and expected to go into effect in mid-March, would exclude ephemeral waters, such as washes, that do not flow year-round, plus “millions of acres of rivers, streams, lakes, wetlands, impoundments, and other waterbodies,” the groups wrote.  (This article includes a link to the notice through the CBD press release.)  We previously discussed this here.

(Court opinion)  The District of Columbia Circuit Court of Appeals has upheld a decision by the BLM to remove wild horses from the Caliente Complex in Nevada.  The court found that a challenge to the land management plan decision to not manage the area for horse was beyond the 6-year statute of limitations for litigating agency decisions.  It also found that the project “gathering” decision complied with the Wild Free-Roaming Horses and Burros Act and NEPA.

(Fallout) “Although Benson does not explain the decision to cancel the objection period in his written notice, and in a statement to the Beacon merely said it had been placed on hold and will be reinstated at a later date, Mike Garrity, executive director of the Alliance for the Wild Rockies, explained that a 2019 federal court decision surrounding his group’s lawsuit over a separate but adjacent timber project found that road closures were ineffective to protect the declining population of grizzly bears.”  That court decision on the Pilgrim project was provided in this Litigation Weekly.

(Update)   After the Supreme Court hearing, both sides seem to agree that the Court would allow the pipeline to be built on national forest land under the Appalachian Trail.  That’s assuming the other flaws in the process can be corrected (as discussed here).

A man in Colorado was cited for using a snowmobile in a designated wilderness on fragile bare ground.  The prosecution was partly the result of social media.

(New case)  The Federal Energy Regulatory Commission was sued by the Center for Biological Diversity for approving a permit for building reservoirs and associated infrastructure to generate electricity from pumped water.  It would affect lands on the Gila and Apache-Sitgreaves National Forests, and the San Francisco River is being considered for recommended protection under the Wild and Scenic Rivers Act in the Gila forest plan revision.

NFS Litigation “Weekly” February 14, 2020

by

Just for the record, the Smokey Wire received two “weeklies” in November, one in December and one in January, so if you saw these you haven’t missed any weeks.  I’ve supplemented that with some other litigation news in between (including some of these cases).

Here I’ve again provided a short summary of each case, and a longer summary is provided in this document:  Litigation Weekly February 14_2020_Final for email.  The bulleted links below are usually to court documents associated with the case and provided by the Forest Service.  

COURT DECISIONS

The 9th Circuit Court of Appeals has overruled the district court and blocked the “Kids’ Climate Case” from proceeding due to lack of standing for judicial review.

The Northern District of California and the 9th Circuit court of appeals both denied motions for a preliminary injunction against the Ranch Fire projects on the Mendocino National Forest and a portion of the Berryessa-Snow Mountain National Monument.  (This case was included here.)

The 9th Circuit Court of Appeals panel upheld the District Court of Colorado’s decision on a case applying the Recreation Enhancement Act to recreation user fees for parking on the White River National Forest.  (We’ve also discussed this here.)

The Arizona District Court upheld the determination that the site of the proposed Rosemont Mine on the Coronado National Forest is critical jaguar habitat, and then invalidated the U. S. Fish and Wildlife Service’s biological opinion regarding the effects of the mine on several listed species.  (Additional information may be found in this article.)

NEW CASES

Plaintiff has challenged continued livestock grazing of 30 allotments on the Apache-Sitgreaves and Gila National Forests without reinitiating consultation with the Fish and Wildlife Service regarding the effects on eight listed species in riparian habitats.  (D. Ariz.)

NOTICES OF INTENT

Five different environmental groups are challenging the Fish and Wildlife Service’s Biological Opinion for the effects on grizzly bears of the Upper Green River Area Rangeland Project that authorizes livestock grazing on the Bridger-Teton National Forest (including allowing the incidental take of 72 bears).

The Alliance for the Wild Rockies and Native Ecosystems Council claim a violation of the Endangered Species Act regarding the effects on grizzly bears from the Elk Smith Project on the Helena-Lewis & Clark National Forest, as well as failure to consider wolverines (a species currently proposed for listing).

The Alliance for the Wild Rockies, and the Yellowstone to Uintas Connection claim the decision by the Caribou-Targhee National Forest to authorize the Crow Creek Pipeline Project violates ESA by improperly analyzing Canada lynx and failing to consider three other listed species.  (This NOI described here.)

OTHER CASES

(No Forest Service summary.)  A case filed by a ranch and Idaho state officials was voluntarily dismissed because the BLM and Forest Service subsequently submitted the 2015 sage grouse plan amendment decisions to Congress in accordance with the Congressional Review Act.

The Idaho District Court denied a motion by the defendant mining company to stay this litigation while it negotiated with the EPA concerning water pollution.  This involves the Stibnite Gold Mine Project on the Payette National Forest.

The District Court for the District of Columbia remanded the U.S. Fish and Wildlife Service’s decision to list the northern long-eared bat as threatened back to the FWS to reconsider whether it should be listed as endangered.  (Also discussed here.)

 

BLOGGER’S BONUS

The Alaska District Court recently heard arguments regarding these sales on Prince of Wales Island. A timber harvest, “might be right next door to you or they might be a hundred miles away,” an attorney for the plaintiffs said.

Four environmental groups dropped a lawsuit filed last summer when the BLM suspended two oil and gas leases after the lawsuit was filed.  The Center for Biological Diversity, one of the plaintiffs, said that the leased lands straddle the Little Colorado River and Silver Creek, home to two federally protected threatened species: the Little Colorado spinedace and the yellow-billed cuckoo, and are upstream from the largest remaining population of humpback chub in the Grand Canyon, and adjacent to the Petrified Forest National Park.

 

Public land developers getting financial pushback

by

An interesting observation from the Washington Post.  As investors become more enlightened about the financial risks caused by climate change they are starting to hold corporations accountable.  That includes their operations on public lands – and litigation is part of the risk.

A dozen-and-a-half senators wrote letters to 11 of the largest U.S. banks asking them to back down from financing any oil and gas activity in an unspoiled expanse of Arctic wilderness.

“The scale of your banks’ assets individually, let alone together, give you the ability to drive change in protecting the Arctic National Wildlife Refuge and in shifting towards a U.S. financial sector that effectively analyzes and plans for climate risks,” the group of a senators, led by Sen. Martin Heinrich (D-N.M.), told Wells Fargo, Bank of America, Citigroup, Morgan Stanley, JPMorgan Chase and six other banks in a letter sent last Thursday.

Democrats hope these banks follow the lead of one key peer: In December, Goldman Sachs said it is ruling out financing new drilling or oil exploration in the entire Arctic.

The world’s largest asset management firm, BlackRock, said last month it would divest from coal burned in power plants and make climate change a “defining factor” of its investing strategy.

And just last week, a group of investors representing nearly $113 billion in assets under management issued a similar letter to energy, mining and timber companies. Their warning: Don’t invest in certain federally controlled areas once protected but now open to development by the Trump administration.

These areas include not only the oil-rich Arctic refuge but also Alaska’s Tongass National Forest, the largest intact temperate rainforest where the U.S. Forest Service wants to allow new logging, (discussed here) and Minnesota’s Boundary Waters Canoe Area Wilderness (the Twin Metals mine litigation is discussed here), a popular lake-pocked forest near where the administration wants to allow a copper and nickel mining operation.

The institutional investors, which include several religious funds as well as a fund established by the late oil heir David Rockefeller, warned companies that many of the administration’s rollbacks of public land protections are legally precarious, and may be struck down by the courts or the next presidential administration. The letter went out to ExxonMobil, the timber company Weyerhaeuser and 56 other firms, according to Reuters.

“Many of these projects are mired in litigation,” the letter stated, “challenging the legality of any current or future industrial activity initiated in these regions and providing evidence of the risks associated with conducting commercial development on lands that the American public has deemed valuable for protection.”

The institutional investor letter also mentioned other areas, including protected sage grouse habitat (litigation discussed here) and the national monuments that have been reduced in size by the Trump Administration that are also under litigation (discussed here).  Here’s the latest on that.

January 2020 Litigation, Part 2

by

(Court decision/update)  The Northern District of California District Court has denied plaintiff’s request for a preliminary injunction (and removed a temporary restraining order) for Ranch Fire salvage projects on the Mendocino National Forest using the road maintenance categorical exclusion addressed previously here.  An appeal has been filed with the 9th Circuit.

  • Atlantic Coast Pipeline

(Update)  The hearing in the Supreme Court is scheduled for February 24. At issue is the green light that the U.S. Forest Service gave the Atlantic Coast Pipeline to cross the Appalachian Trail within the George Washington National Forest.  The key question is whether the Appalachian Trail comprises “lands in the National Park System,” which would preclude the Forest Service from making this decision because of language in the Mineral Leasing Act.  The pipeline is also being blocked by failure to comply with ESA for the rusty patched bumblebee, and a draft recovery plan has just been released.

(Update) This case involving the Caribou-Targhee National Forest was filed last summer, and briefing in the District Court of Idaho is scheduled this spring. The plaintiffs believe the vegetation treatments scheduled for this summer to improve forage would come at the expense of wildlife, especially sharp-tailed grouse, and that a categorical exclusion is improper due to the area’s “wilderness value and roadless value.”  Plaintiffs say this is one of the first cases where the Forest Service is trying to test the Idaho Roadless Rule.

(Update)  The BLM in Colorado has dropped some of the parcels from its planned leases because they are not available under the 2015 sage grouse amendments to its land use plan.  They were made available by the 2019 changes to the amendments, but those were enjoined in October in Western Watersheds v. Schneider.  They have also deferred other parcels as a result of an October lawsuit against the BLM Grand Junction Field Office’s new resources management plan.  (There’s a picture of the new BLM Headquarters.)

(Settlement)  Plaintiffs have settled a lawsuit filed in a California state court against Placer County’s approval of a gondola connecting two ski resorts on the Tahoe National Forest.   The agreement was finalized as part of the Forest Service’s final approval of the gondola that will skirt the Granite Chief Wilderness Area, which is home to the endangered Sierra Nevada yellow-legged frog.  The proponents agreed to permanently protect 27 acres of frog habitat and contribute about $500,000 over the next decade toward land purchases and other protection efforts.

Court Upholds Access Fees at Maroon Bells (White River National Forest)

by

This article in Colorado Politics covers a case that seems to have gotten little other media coverage. What I like is that writer Michael Karlick picked out some key quotes from the decision, and gives us a flavor of it, without our having to read the whole decision. And while Jon Haber does an excellent job summarizing cases, not everyone interested in public lands issues (perhaps sadly) reads The Smokey Wire.

Thomas Alpern claimed that the Federal Lands Recreation Enhancement Act prohibits the government from charging a fee solely for parking at Forest Service sites. Congress allowed the agency to collect fees to reinvest in amenities for its parks. When amenities are present, like picnic tables, security, toilets and signage, the law allows for a fee. Parking at Maroon Bells is only free for the first 30 minutes, then ranges between $10 and $25.

Judge Gregory A. Phillips, wrote for the three-judge panel that the law “prohibits charging fees ‘[s]olely for parking . . . along roads or trailsides[,]’ something Alpern does not do. He parks in a developed parking lot featuring all the amenities listed”.

Alpern said that he goes on multi-day backpacking trips and only uses the parking lot. Therefore, he should not have to pay a fee for the other, non-used amenities. A district court ruled against Alpern and the circuit court affirmed, saying the exemptions to the fee were reserved for people who drive through the site without parking, who walk in, or who take boats or horses.

I appreciate Judge Phillips’ pragmatic bent:

“Conspicuously unlisted are visitors who park at a fee area and claim not to use any amenities,” wrote Phillips, skeptical of Alpern’s representation of his situation. “Though Alpern does not admit using the security services, he does so every time he parks in one of the three Maroon Valley lots….We see no realistic scenario in which he does not use the security services. What if a security officer notices a would-be thief breaking into Alpern’s car? Should the officer ignore the break-in, somehow divining that Alpern has silently disavowed the use of security?”

The case is Thomas Alpern v. Brian Ferebee and United States Forest Service.

January 2020 Litigation, Part 1

by

Court decision:  The 9th Circuit held that the Olympic National Forest decision to grant a special use permit to the Navy for electronic warfare training was consistent with the forest plan, after allowing documents outside of the administrative record that showed they had considered the availability of private land.

Court decision:  The 9th Circuit upheld the Lostine Project on the Wallowa-Whitman National Forest.  The use of a categorical exclusion was proper under HFRA, the project met its requirements for collaboration, and it was consistent with the forest plan.  (The court did not review the facts of the case, but they were discussed here.)

  • Oil & gas fracking

New lawsuit:  The State of California and several environmental groups have filed lawsuits against a BLM decision that removed a moratorium on fracking on lands in central California, including some adjacent to national forests.  (The second link includes a map.)

New lawsuit:  Environmental groups have challenged  EPA’s failure to complete plans to address smog related to fracking in 11 states.  “Sensitive tree species at risk from ozone pollution include black cherry, quaking aspen, cottonwood and ponderosa pine, which provides critical habitat for threatened species such as the Mexican spotted owl and Pawnee montane skipper.”

Settlement implementation:  The U. S. Fish and Wildlife Service has formally announced a 5-year review of the status of grizzly bears, as agreed to in a partial settlement of litigation mentioned here.  This is part of a lawsuit which “ultimately aims to build a plan to eventually bring grizzly bears to more places, including the Sierra Nevada” according to this article.

Notice of Intent:  The Alliance for the Wild Rockies and Yellowstone to Uintas Connection sent a required 60-day notice to sue to the U.S. Forest Service and U.S. Fish and Wildlife Service.  They argue that 18 miles of pipeline on national forest land may affect grizzly bears and other listed species.  The application of the Idaho Roadless Rule is also involved.

Update:  The D. C. Court of Appeals heard arguments in a lawsuit filed by Solenex LLC to reverse its lease cancellation on the Lewis and Clark National Forest.  Environmental groups and the Blackfeet Nation have appealed on the side of the government.

Update:  The Quiet Title Act claim was dismissed for lack of jurisdiction because there is insufficient evidence that the Forest Service has asserted ownership in plaintiff’s land adjacent to the Sawtooth National Recreation Area as part of constructing a trail on an easement across plaintiff’s land.  (Other claims remain pending.)

 

 

Bats and bighorns and bears (oh my?)

by

Two of these were originally posted as comments related to other posts and the third I would have, but Sharon intimated that they might not get noticed there, so here they are at the top end of a post.

BATS

We were discussing how the wolverine is most affected by climate change, and yet ESA requires mitigation of other less harmful activities that we have more control over. The effect of an introduced disease on bats also came up there.  A federal judge has just overturned a decision by the U.S. Fish and Wildlife Service to protect northern long-eared bats as threatened rather than endangered under the Endangered Species Act.  Here’s the Center for Biodiversity’s read-out of the judge’s opinion (there’s a link to the opinion, but I haven’t read it):

The Service argued that since the species was primarily threatened by disease, there was no need to protect its habitat.  But the court rightly noted that, in combination with disease, habitat destruction and other threats can cumulatively affect the bats, and thus are cause for concern.

It’s a point of contention these days whether climate change should be a factor in listing decisions when there is little likelihood of reducing its effects, but the law says it’s important to address and potentially mitigate other actions that may harm the species.

BIGHORNS

The Bridger-Teton National Forest is considering a restocking request for returning domestic sheep to two vacated allotments in the Wyoming Range.  It hinges on changing the forest plan to deemphasize protections for the Darby Mountain bighorn sheep herd. This would purportedly be consistent with the State of Wyoming’s bighorn plans.  The Forest is proposing to do a “focused amendment” to their forest plan,  but …

Bighorn advocates and conservationists who have watchdogged the restocking conversations wanted the Forest Service to instead deal with the issue in its forest plan (revision). The years-long revision process was supposedly coming up, though O’Connor said it’s now indefinitely on hold. Wyoming Wild Sheep Foundation Director Steve Kilpatrick said the Darby Mountain Herd deserves the longer, closer look.

I’m not sure the Forest is going to be able to do a “focused amendment” for this issue, since bighorn sheep should be a species of conservation concern under the 2012 Planning Rule, which warrants greater attention. Maybe this is a case where the inability to revise a forest plan is going to cause some problems. Then there is the question of why these allotments were vacant. The permittees were “bought out” through the efforts of the National Wildlife Federation (to protect bighorns?). Would they need to be paid back?

GRIZZLY BEARS

The discussion of reintroducing wolves to Colorado brought up the experience with grizzly bears in the Selway-Bitterroot Wilderness in Montana and Idaho.  A reintroduction proposal was rejected in 2001, but at least two bears have been documented there in recent years.  Here is the recent news about that.  The Fish and Wildlife Service has written to the Forest Service that bears that have made it there are fully protected by the Endangered Species Act (not an experimental population). All four of these forests are revising or will soon revise their forest plans and will have to provide conditions to support grizzly bear recovery.  The Nez Perce-Clearwater is farthest along but has been avoiding doing that.

Helena project clears the 9th Circuit, except for some “WUI”

by

Fine specimen of a real antique Morse code telegraph machine.Copyright: Photowitch | Dreamstime.com

The Ninth Circuit Court of Appeals has upheld the Telegraph Vegetation Project on the Helena-Lewis and Clark National Forest, except for one question about the location of the Wildland Urban Interface (WUI).  The case was previously described on this blog here.  That description included this allegation by plaintiffs:

Agency used non-federal definition of the Wildland Urban Interface 


“While the lynx amendment allows logging in the Wildland Urban Interface, it also defines the Wildlife Urban Interface to be within one mile of communities,” Garrity explained. “But the Forest Service used a new definition provided by local counties and then remapped the Wildland Urban Interface to include areas over five miles away from communities.”

The court remanded the decision for 50 acres of the 5000-acre plus area to be treated, and left the record of decision in place while the Forest Service completes its reevaluation:

“The Forest Service has acknowledged that it erred in calculating the wildland-urban interface for the project area. The Forest Service estimates that, once it has corrected its error, 50 acres of forest that it had planned to treat may no longer be eligible for treatment. If that estimate proves correct, the Forest Service represents that it will not treat those 50 acres. We grant the government’s request for a voluntary remand to allow the Forest Service to undertake the necessary reevaluation.”

I have been interested in how WUI is identified, by whom, and using what process under what authority – especially the role of non-federal parties.  WUI is generally  identified based on the Healthy Forest Restoration Act of 2003 (HFRA).  Areas identified using that process qualify for streamlined projects in accordance with HFRA, and may be eligible for particular funding.  However (in accordance with HFRA), WUI projects are still subject to requirements of the governing forest plan.  Management direction for lynx is part of the forest plan, and this article (like plaintiffs) suggests it imposes greater restrictions on part of this project:

“In the second portion of the court’s order, the Forest Service proposed logging and thinning in areas defined as the “wildland-urban interface,” which is where houses or cabins meet the forest. Regulations related to lynx allow the removal of some trees and vegetation in lynx habitat if it falls within the wildland-urban interface and if the agency shows it is part of a wildfire mitigation project. The alliance inspected the area and reported only a handful of houses. The Forest Service conceded in court documents that it erred in calculating the size of the wild-land urban interface based on discrepancies between what qualifies.”

However, this actually indicates that the problem was in the definition of “community” (based the on number of houses), rather than the distance from one.  In fact, the Northern Rockies Lynx Management Direction refers to WUI “as defined by HFRA.”  Those definitions and criteria for “WUI” and “at risk community” are summarized by the Forest Service here.  Although which communities are to be included (they can self-identify) are mostly listed in the Federal Register, that doesn’t address their boundaries.  The district court opinion upheld the Forest Service WUI designation, stating that, “The Powell County Plan does not begin with the HFRA definition; it creates its own, “and “the Court is not persuaded by Council’s attempt to discredit the map provided by the Forest Service in the Telegraph Project EIS” based on that county plan. Yet it sounds like the map may have been wrong in this case.  This all reminds me of my take-home from my Forest Service days that “WUIs are fuzzy.”

Here’s why this might be important to planning.  I agree with the idea that forest plans (like the lynx direction) should identify areas with differences in long-term management that result from a wildland-urban influence.  However, if the WUI definition refers to another source (HFRA and a local plan), instead of being specifically defined in the plan itself through criteria and/or a map, there may be confusion about where and how the plan applies (as seems to be the case here).  (Yes I’m criticizing the lynx strategy for doing that; they didn’t take my advice.)  In addition, if external decisions about WUI locations change, the Forest Service may have to publicly consider whether to adopt that change in its forest plan (that situation wasn’t addressed in this case).  I’m also contrasting “decisions” with new “information” that affects how an existing decision applies (e.g. someone building a new house), which must be considered in a planning context but doesn’t necessarily trigger a plan amendment.  (A court has held that even changes in something like criteria for maps of lynx habitat must be considered in a public planning process when forest plan direction is tied to it.)

(The other issue addressed by the 9th Circuit in its short opinion was the ESA consultation process for grizzly bears.  The court approved a consultation process that tiered to forest plan decisions and consultation, which lead to streamlined project consultation.  The value of forest plan consultation has been questioned, but that value is evident here.)

 

Litigation news that didn’t make the NFS Litigation Weekly

by

 

COURT DECISIONS

The 9th U.S. Circuit Court of Appeals said EPA has failed to develop temperature limits as required under the Clean Water Act for the Pacific Northwest’s Columbia and Snake rivers to help endangered salmon and steelhead.  It directly affects Washington and Oregon, but could affect public land management in other states that do not have temperature limits, and especially with a warming climate.

UPDATES

A federal judge in Washington, D.C., heard oral arguments in a lawsuit that could determine the fate of the highly controversial copper-nickel mine that would be built near the Boundary Waters Canoe Area Wilderness in the Superior National Forest.  The case centers on the terms of the Twin Metals leases, which were first issued in 1966 and renewed twice before the Obama Administration denied them and then the Trump Administration reinstated them.  A good summary and map.  Also, legislation has been introduced to prevent future mine proposals.

Congress passed a fiscal year 2020 spending bill that includes prohibiting the U.S. Forest Service from euthanizing healthy wild horses and burros and selling them for slaughter.   This is a direct response to the Forest Service’s plan to sell California wild horses captured in the Modoc National Forest without limitation on slaughter, which resulted in two lawsuits introduced here.

The parties have filed briefs in this case filed by local residents against a logging project on the White River National Forest.

A lawsuit against the BLM involving the entire range of the Tiehm’s buckwheat (described here) was settled when the mining proponent ceased exploration at the site, and the BLM subsequently terminated its formal exploration notices. The company also said it wouldn’t seek such approval again without notifying the conservation group

  • Fire liability

Two more settlements in a lawsuit arising from a 2013 prescribed burn on the Dakota Prairie National Grasslands that became a wildfire have taken the cost to the federal government to nearly $900,000. It burned 3,519 acres of private lands.  But in Colorado, a judge has recommended that the federal government be allowed to pursue its case against the Durango & Silverton Narrow Gauge Railroad for its $25 million cost of fighting the 416 Fire, which started along the train’s tracks and burned more than 54,000 acres of mostly national forest lands in 2018.

OTHER LITIGATION

This is a Canadian case that pits a windfarm developer against a government that allegedly wants to discourage wind energy and used harm to bats as its reason for rejecting the proposal.  It is interesting because conservationists are supporting the developer. “We can have bats and green energy co-exist,” Dr. Baerwald said, arguing climate change, not wind power, is the greatest threat.

Three lawsuits have been filed against the state of Washington’s new timber plan, which a reduces timber harvest levels.  Lawsuits have been filed by the county, the forest industry and environmentalists.  The latter two are also challenging a related plan to conserve marbled murrelets, including consideration of climate change.