Litigation

NFS Litigation Weekly January 10, 2020

by

The Forest Service summaries are here:  Litigation Weekly January 10, 2020_Final Email

They have not attached any supporting documents this time, but the summaries are longer.  I’ve added a short overview here.

COURT DECISIONS

  • Idaho Conservation League and Greater Yellowstone Coalition v. U.S. Forest Service, et al. (D. Idaho)

The district court remanded the decision to the Forest Service to consider the impacts of the Kilgore Exploration Project (a 5-year mining exploration project) on the Caribou-Targhee National Forest  on groundwater and derivative impacts on stream water quality and Yellowstone cutthroat trout.  Here is the court’s opinion.

NEW CASES

  • Short et al v. Federal Highway Administration (D. N.D.)

Plaintiff landowners claim NEPA and historic preservation violations for the Little Missouri Crossing Road and Bridge project, which encroaches on and crosses the Little Missouri National Grassland of the Dakota Prairie Grassland.  (The Forest Service was named as a non-signatory cooperating agency.)

NOTICES OF INTENT

  • Sawtooth National Forest trail

Sawtooth Mountain Ranch LLC sent two 60 Day Notices of Intent to Sue pursuant the Endangered Species Act and Clean Water Act regarding the construction of the Redfish to Stanley Trail in the Sawtooth National Recreation Area near the Salmon River.  The District Court of Idaho has already denied a preliminary injunction based on other issues.

  • Forest plans in Region 3

WildEarth Guardians sent six 60-day notices of intent to sue claiming the US Fish and Wildlife Service and Forest Service failed to comply with the Endangered Species Act when they consulted on the effects of Forest Plans on the Mexican spotted Owl and designated critical habitat on the Apache-Sitgreaves, Cibola, Coconino, Coronado, and Prescott National Forests.  They state that new information also requires reinitiation of consultation on the Kaibab National Forest Plan.

(These are the same plaintiffs who brought the lawsuit against other Region 3 national forests that led to an injunction against many projects resulting from failure to monitor Mexican spotted owls, discussed here and elsewhere.  The FWS recently filed a new biological opinions intended to remove the injunctions on those forests, as described here:  “Forest management strategies now focus more on ecology and a “return to pre-settlement fire regimes, both of which have potential to benefit the spotted owl” instead of more commodity-based management including commercial timber harvest, the biological opinion states.”  The new NOI involves forests not subject to the current injunction.)

  • Idaho Panhandle timber project

Alliance for the Wild Rockies and Friends of the Clearwater sent a 60-day Notice of Intent to Sue pursuant to the Endangered Species Act for  determining that the Brebner Flat Project would have no effect on grizzly bears and Canada lynx and therefore not consulting with the Fish and Wildlife Service.

Litigation updates that didn’t make the NFS litigation weekly

by

(Update.)  The Custer Gallatin National Forest has done the additional work required after it lost this lawsuit (which we were discussing in 2012), and is seeking to lift the injunction, but plaintiffs still think effects on lynx habitat are a problem.

(Update and NOI.)  Plaintiffs who won the Pilgrim Project case on the Kootenai National Forest have issued over 100 notices of intent to sue on other projects on the Kootenai, Idaho Panhandle, and Lolo national forests where ineffective road closures may affect grizzly bears.  The Forest Service has appealed the Pilgrim case, but has also reinitiated ESA consultation on 37 projects.

(Update.)  The 9th Circuit Court of Appeals heard an appeal from two environmental groups that have sued to stop the project to thin/log the insect-infested forest along the Lostine River Road.  This 2017 case was discussed here.

  • Sage grouse

(Update.)  The government and defendant intervenors have appealed to the 9th Circuit the district court’s injunction of the 2019 sage grouse amendments to BLM and Forest Service plans.  This Western Watersheds case was discussed most recently here.  Also, as a result of that district court decision, another sage grouse case filed by ranchers against the 2015 sage grouse amendments is proceeding, and environmental groups are seeking to intervene.

(No objection!)  The Forest prepared a forest-wide EIS for removal of juniper to achieve a desired (historic) distribution of juniper and aspen.  The Grand Canyon Trust said it wasn’t much different from what they would like to see.  Chaining is allowed by the decision – compare to our discussion of that here.

 

NFS Litigation Weekly December 20, 2019

by

Forest Service summary (click on the highlighted bullets to see the documents provided by the Forest Service):  Litigation Weekly December 20 2019_Final

COURT DECISIONS

The District Court of Montana issued an order denying plaintiffs’ motion for preliminary injunction against the 2019 Yellowstone bison hunt on the Custer Gallatin National Forest.  However, the 9th Circuit Court of Appeals has reversed a lower court ruling from February that dismissed a lawsuit from the Cottonwood Environmental Law Center on Yellowstone bison management.

The District Court of Idaho upheld the Windy Shingle project on the Nez Perce-Clearwater National Forests involving the Healthy Forest Restoration Act and other requirements.

The District Court of Colorado suspended Applications for Permits to Drill on the Grand Mesa, Uncompahgre, and Gunnison National Forests until they complete an analysis of the reasonably foreseeable indirect impacts of oil and gas.

NEW CASES

The State of Montana filed an amended complaint against the Defendants, which includes the Forest Service, claiming the State of Montana owns title to submerged lands also claimed by Defendants for former hydropower sites on the Madison, Missouri and Clark Fork Rivers.

The plaintiff filed a complaint in the District Court of Utah against the Forest Service concerning the issuance of term and temporary grazing permits on the Kingston, Forshea and Manning Creek Allotments on Monroe Mountain within the Fishlake National Forest for the 2019 grazing season.  (A more colorful version of the story may be found here:  “This lawsuit claims these Utah ranchers, like Bundy, don’t recognize the authority of the federal government and have snubbed grazing requirements for years.”)

The plaintiff filed a complaint in the District Court of Montana against the Forest Service concerning the Flathead National Forest 2018 revised Forest Plan and the Lolo, Helena-Lewis & Clark and Kootenai National Forests amendments for grizzly bears.  (While, it may be hard to tell from his pro se complaint what the plaintiff’s interest is, this is from the sometime state legislator’s blog:  “Policies that I am against are taking out our roads and allowing our forests to be downgraded and such policies are resulting in fires that are destroying our property and Killing our wildlife!”)

NOTICE OF INTENT

Plaintiffs sent a renewed 60-day Notice of intent to Sue pursuant to the Endangered Species Act regarding the Rock Creek Mine project on the Kootenai National Forest after the Fish and Wildlife Service completed a “Supplement to the Biological Opinion” in November of 2019.

OTHER AGENCY CASES

The plaintiffs filed a complaint in the District Court for the District of Columbia against the National Park Service and the Department of Interior concerning the use of motorized electric bicycles within the National Park System.

Litigation news from November

by

The Forest Service report hasn’t shown up for awhile, so here’s a few court stories you may have missed.

New case:  The Western Shoshone Defense Project sued the BLM over its decision to permit the Mt. Hope molybdenum mine.  (They are following the model used against the Forest Service to enjoin the Rosemont mine in Arizona; that district court decision is described here.)

Court decision:  A federal judge blocked the West Elk Coal Mine’s plans to expand by 2,000 acres into the Gunnison National Forest’s Sunset Roadless Area because of NEPA violations involving methane capture and effects on streams.

New case:  The Stop B2H Coalition and Greater Hells Canyon Council have filed a lawsuit seeking to block the proposed Boardman-to-Hemingway power transmission line, which would cross the Wallowa-Whitman National Forest.

TRO granted:  A judge has granted a temporary restraining order to prevent salvage logging operations on four of the six projects at issue in this case involving the road maintenance categorical exclusion (introduced here).

TRO denied:  A plea to halt Montana’s winter bison hunt on the Custer-Gallatin National Forest has been denied by a D.C. District Court judge, who also moved the case to Montana.

Court decision:  A D. C. District Court judge found the presidential proclamation expanding Cascade-Siskiyou National Monument is “invalid and unenforceable” for the O&C Lands, as is the BLM forest management plan that placed about three-fourths of the O&C Land base into old growth and riparian reserves.  (The latter decision conflicts with an earlier decision in Oregon federal court.)

Court decision:  Jurors in Oregon found in favor of 14 counties and their $1 billion lawsuit claiming the state deprived them of revenue for decades by limiting logging in state forests.

Court decision:  We’ve had some discussion of whether the Federal Advisory Committee Act has any teeth, including requirements for the make-up of the committee. This decision from September involves the Department of the Interior’s International Wildlife Conservation Council, “an advisory body composed primarily of trophy-hunting profiteers and firearm manufacturers.”  Plaintiffs:  “The court’s ruling allows us to continue challenging the illegal creation and operation of the IWCC …”

Recent Endangered Species Act news of interest

by

These could all have some implications for national forest management (except I think the last one is just about trees – and climate change).

A federal district court ordered the U.S. Fish and Wildlife Service to issue an overdue status report assessing how threatened grizzly bears in the Lower 48 are doing. This resolves one claim in the Center for Biological Diversity’s ongoing lawsuit that challenges the Trump administration’s failure to update the federal recovery plan for grizzly bears.

Environmental groups have sued the U. S. Fish and Wildlife Service for producing an inadequate recovery plan for the threatened species. They have directly implicated national forest planning which must “contribute to recovery” of listed species: “You can see where weaker recovery standards are leading to weaker forest plans,” Montgomery said. “It’s not trickling down but is cascading down. It’s really important for recovery plans to be a road map.”

The U.S. Fish and Wildlife Service proposed Endangered Species Act protections for West Coast populations of the Pacific fisher. The move drew criticism from conservation groups that say loopholes allow for continued logging of the fisher’s habitat.  “The exemptions to their protection are fuzzier than fishers themselves.”

The yellow cedar, a tree native to Southeast Alaska and culturally significant to Alaska Native communities, was denied protected status under the Endangered Species Act. Warmer temperatures are reducing the amount of snow in areas where the cedar grows and that is leaving the tree’s roots exposed to subzero temperatures, which kills the trees.

WildEarth Guardians filed a suit against the U.S. Fish and Wildlife Service, challenging its decision not to list the Joshua tree as a threatened species. They claim climate change is the major reason why the tree should be listed.

Weekly litigation settlement summary

by

It’s been awhile since we’ve gotten a Forest Service litigation summary, but it was a busy week for settling three cases involving the Forest Service.

Idaho salmon

A U.S. District Court judge signed off on an agreement between the Forest Service and Idaho Conservation League involving water diversions in the Sawtooth Valley.  The Forest Service has agreed to complete biological assessments of 20 water diversions in central Idaho that the conservation group says could be harming protected salmon. The Forest Service has three years to complete the reviews of the diversions that mostly supply water to homes in the area.  The judge in June ordered the Forest Service to complete the reviews, and the documents filed Thursday spell out a timeline as agreed to by the Forest Service and Idaho Conservation League.

In this case the settlement narrowly concerns the timetable because the court fully resolved the case and told the Forest Service what it needed to do

Montana bull trout

The Alliance for the Wild Rockies sent a 60-day notice of intent to sue in September over management of bull trout in the East Fork of Rock Creek and in the St. Mary River drainage, alleging the federal agencies managing bull trout in those drainages violated the Endangered Species Act by failing to complete formal consultation to protect the trout, which are listed as a “threatened” population. The notice specified the Bureau of Reclamation in connection with the St. Mary River and the Beaverhead/Deer Lodge National Forest in regards to Rock Creek.  The issues here also include water diversions, and additional concerns about flow management and degraded stream channels in Rock Creek.  Earlier this month, the agencies sent letters to lawyers for the Alliance, agreeing to undertake the formal consultation.  

This is exactly what a NOI to sue under ESA is intended to do.  Technically it’s not a settlement since a lawsuit hadn’t been filed yet, but it keeps the agencies out of the position that the Sawtooth is in (above).  There is no timetable specified; they just need to do the process.

Mountain Valley Pipeline

Before a judge decides whether to approve a $2.15 million settlement of a lawsuit alleging environmental damage caused by building the Mountain Valley Pipeline, state regulators will consider public comments on the proposal.  The state agencies are a plaintiff who sued Mountain Valley, saying the company violated state regulations meant to limit erosion and sedimentation more than 300 times in building the largest natural gas pipeline ever to cross Southwest Virginia.

This settlement involves some substantive elements.  In October, Attorney General Mark Herring announced a settlement that provides a framework for court-ordered enforcement going forward, with the possibility that the financial penalty will exceed the $2.15 million agreement if additional violations occur.  Mountain Valley agreed to conditions — which include hiring independent monitors to make inspections beyond what had previously been required by the state — as part of a consent decree that will soon go to a county circuit judge.

This is just one of the lawsuits against the pipeline; others seek to restore permits struck down last year by the 4th Circuit, one to allow the pipeline to pass through the Jefferson National Forest (described here) and the second for it to cross more than 1,000 streams and wetlands.

 

Missoula Forest Collaboration Roundtable

by

Montana Public Radio collected some interesting perspectives.

What collaboration looks like to what some would consider a “far-right politician:”

“We were thrilled to have the Rocky Mountain Elk Foundation with us today, that is exclusively focused on habitat restoration for elk and sportsmen. We want to continue to have all voices at the table,” Gianforte said…  I think all voices needed to be at the table in these collaboratives, but you have to participate in good faith,” he said. “There have been instances here in Montana where a collaborative worked literally for years to put a project together, and yet people who were at the table still sued. We have to prevent that sort of bad behavior.”

Is it “collaboration” when your participation means you can’t sue over the outcome?

What this idea of collaboration looks like to what some would consider an “extreme environmental group” (Alliance for the Wild Rockies):

“He wants to have all voices that agree with him at the table,” Michael Garrity says.  Garrity says he had no advance notice about Thursday’s roundtable. The Alliance is frequently at odds with — and in court fighting against — timber interests over forest policy.  Garrity said Friday that not only did he not receive an invitation, no one from what he called the environmental community got one either. And without that perspective, he says this week’s roundtable was simply an echo chamber. “It’s not going to be a good dialog unless they invite groups that oppose some logging by the Forest Service.”

My emphasis, especially on the “some,” not all logging.  (The Rocky Mountain Elk Foundation does not oppose logging, though some elk hunters and groups do.)

What collaboration and litigation look like to the Forest Service:

“Different people see it in different ways; including different courts,” (USDA Undersecretary) Hubbard said. “The idea is for us to come together and agree on what kind of treatments make some sense, what satisfies most of the interest out there in one way or another, and then be able to implement that and have the courts support that with some consistent rulings.”

(My emphasis.)  The implication is that courts are just another form of public opinion.  And that it’s ok to exclude some of the interest out there, like “groups that oppose some logging.”  (And my usual gripe – the scope of project collaboration should include not just the “kind of treatments,” but which areas should be treated.)

(And there’s some discussion of categorical exclusions and the Good Neighbor Authority, too.)

NFS Litigation Weekly November 1 & 6, 2019

by

Forest Service summaries:  2019_11_1 and 6_Litigation Weekly_Final

COURT DECISIONS

The district court denied the Rosemont Copper Company’s motion for reconsideration of its decision to enjoin a proposed copper mine on the Coronado National Forest.  (D. Ariz.)

The district court granted a joint stipulation of both parties to dismiss the case for the Pier Fire Roadside Hazard Tree Mitigation Project on the Sequoia National Forest.  (E.D. Cal.)  (This was another case involving the road maintenance CE and salvage logging – see also EPIC v. Carlson.)

The 9th Circuit Court issued an order affirming in part and remanding in part the appeal of the district court’s 2018 order dissolving the permanent injunction against the Miller West Fisher Project on the Kootenai National Forest. The case was remanded to the district court for the limited purpose of reconsidering whether the Miller Project complied with the ESA in the Cabinet Face grizzly bear area as a result of the recent ruling on the Pilgrim Project.)  (9th Cir.)

UPDATES

The district court denied the Forest Service’s motion to dismiss this case involving the Rock Creek Mine on the Kootenai National Forest.  (D. Mont.)

NEW CASES

The plaintiffs request a Declaratory Judgment of their ownership of property adjoining the White River National Forest.  (D. Colo.)  (These are the same parties who filed a suit in the Court of Claims, discussed here.)

The plaintiffs filed a complaint concerning the allowed use of Class 1 e-bikes on non-motorized trails on the Tahoe National Forest.  (E.D. Cal.)  (More in this article.)

NOTICE OF INTENT

The Notice concerns ESA consultation on the Mission Project on the Okanogan-Wenatchee National Forest with regard to salmon, steelhead, bull trout and Canada lynx.  (A lawsuit has already been filed addressing other issues, summarized here.)

 

BLOGGER’S BONUS

The Supreme Court of New Hampshire has affirmed a state commission’s determination to reject this proposal, which would have cut through the White Mountain National Forest.  (There is no indication on the Forest Service website that the agency ever engaged on this.)

The Center for Biological Diversity sued the BLM protect the world’s only population of Tiehm’s buckwheat (Eriogonum tiehmii) from harm related to mineral exploration and a proposed open-pit mine for lithium and boron (fyi – not “rare earth” minerals).  They have also petitioned the U. S. Fish and Wildlife Service to list the species under ESA.  CBD asserts that “the proposed mine’s project area includes the entire area where Tiehm’s buckwheat is known to grow,” and that, “the BLM has designated the wildflower as a special status species, intended to promote its conservation and reduce its chances of being listed as threatened or endangered.”

CBD and other conservation groups notified the U.S. Fish and Wildlife Service of their intent to sue the agency for failing to finalize Endangered Species Act protection for Humboldt martens in northern California and southern Oregon.  They were proposed for protection in October 2018 and should have received final protection by October 2019.

In May 2019, after 12 years of protection, the BLM opened up the desert around Factory Butte to ORVs, and they are being sued for failing to follow any NEPA process.

  • Crazy Mountains

The judge in the Friends of the Crazy Mountains case, discussed here,  refused to dismiss it.  Meanwhile the Custer-Gallatin National Forest has proposed a land exchange to address problems associated with the checkerboard ownership.

NFS Litigation Weekly October 25, 2019

by

Forest Service summaries:  000000_2019_10_25_Litigation Weekly

COURT DECISIONS

The district court denied the plaintiffs’ Motion for Preliminary Injunction sought for the Tenmile South Helena Timber Management Project on the Helena-Lewis and Clark National Forest.  (D. Mont.)

LITIGATION UPDATE

The district court approved a stipulation to modify the injunction against projects affecting Mexican spotted owls pending further consultation with the USFWS.  (D. Ariz.)  Discussed in detail here and here.

NEW CASES

Plaintiffs contend the Forest Service is asserting federal ownership of Plaintiff’s ten acres adjacent to the White River National Forest.  (Court of Federal Claims)

This case involves several projects related to the Ranch Fire on the Mendocino National Forest and Barryessa-Snow Mountain National Monument where the Forest Service has used a categorical exclusion for road maintenance to salvage timber from 7000 acres.  (D. N.D. Cal.)  A similar case was discussed here.

Plaintiffs claim violations of NEPA and NFMA for the Mission Restoration Project and Forest Plan Amendment #59, which authorized logging, burning, and road building on the Okanogan-Wenatchee National Forest based on an EA.  (E. D. Wash.)

This lawsuit was filed against the National Park Service and the Forest Service concerning the continued allowance of hunting bison that have migrated out of the Yellowstone National Park to the Custer Gallatin National Forest.  (D. D.C.)  Here’s a background article.

NOTICES OF INTENT

Grazing permittees assert that a biological opinion by the National Marine Fisheries Service addressing 29 allotments on the Malheur National Forest violated the ESA.

The Alliance for the Wild Rockies has supplemented its NOI for the Hanna Flats Project on the Idaho Panhandle National Forest to include violations of ESA associated with consultation on grizzly bears for the forest plan Access Amendment.  (This may be related to the outcome of the Pilgrim lawsuit, discussed here.)

OTHER AGENCIES

The district court has enjoined the BLM from implementing the 2019 BLM Sage-Grouse Plan Amendments because of NEPA violations.  This was explained here.

 

AND MORE FROM THE BLOGGER

  • BLM Grazing

The Western Watersheds Project has filed a lawsuit seeking information (presumably via FOIA) from the BLM about a 2017 grazing initiative affecting six states.  Also, a new lawsuit was filed that challenges parts of the 2019 sage-grouse amendment that allow grazing of research natural areas.  

A court has remanded the decision by the FWS that the species is warranted for listing but precluded by higher priorities for an explanation of why its priority was lowered.  The species is found in high-elevation streams and lakes of the Rio Grande, Canadian and Pecos rivers in Colorado and New Mexico.

  • Mining

The Idaho Conservation League and Greater Yellowstone Coalition are asking a federal court to stop the Kilgore Gold Project on the Caribou-Targhee National Forest.   In Montana, the district court refused to dismiss claims against the Rock Creek Mine on the Kootenai National Forest.

  • Oregon state forests

Counties and other taxing districts have sued because the state has not managed forests for the most long-term, sustainable income as required in a decades-old contract.  Instead, the state is operating under a management plan based on a definition of greatest forest value that includes factors such as recreation, wildlife enhancement and water quality.  Meanwhile, the state is trying to develop a new plan that would gradually increase the number of harvestable acres after adopting a habitat conservation plan for at-risk species.

Trump Administration sage-grouse plans stopped

by

The district court for Idaho has enjoined the Trump Administration’s attempt to cut back protection of sage-grouse on BLM lands in Idaho, Wyoming, Colorado, Utah, Nevada/Northeastern California, and Oregon from that provided by plan amendments in 2015. (A similar decision has been pending for national forest plans.) The changes made in the 2019 amendments to BLM land management plans can not be implemented, and the provisions in the 2015 amendments will apply (projects must be consistent with the 2015 amendments) until the case is decided on the merits.  (A link to the opinion is included with this news release.)

Moreover, the court telegraphed the merits pretty clearly:

“… the plaintiffs will likely succeed in showing that (1) the 2019 Plan Amendments contained substantial reductions in protections for the sage grouse (compared to the 2015 Plans) without justification; (2) The EISs failed to comply with NEPA’s requirement that reasonable alternatives be considered; (3) The EISs failed to contain a sufficient cumulative impacts analysis as required by NEPA; (4) The EISs failed to take the required “hard look” at the environmental consequences of the 2019 Plan Amendments; and (5) Supplemental Draft EISs should have been issued as required by NEPA when the BLM decided to eliminate mandatory compensatory mitigation.”

(1) “The stated purpose of the 2019 Plan Amendments was to enhance cooperation between the BLM and the States by modifying the BLM’s protections for sage grouse to better align with plans developed by the States. While this is a purpose well-within the agency’s discretion, the effect on the ground was to substantially reduce protections for sage grouse without any explanation that the reductions were justified by, say, changes in habitat, improvement in population numbers, or revisions to the best science contained in the NTT and CTO Reports.” The agencies did not fulfill their duty to explain why they are now making a different decision based on the same facts.

(2) The no-action alternative did not meet the purpose and need, and there was only one action alternative. “Common sense and this record demonstrate that mid-range alternatives were available that would contain more protections for sage grouse than this single proposal.”

(3) The BLM prepared six EISs based on state boundaries, but failed to provide the “robust” cumulative effects analysis this situation required. In particular, “connectivity of habitat – requires a large-scale analysis that transcends the boundaries of any single State.”

(4) “Certainly, the BLM is entitled to align its actions with the State plans, but when the BLM substantially reduces protections for sage grouse contrary to the best science and the concerns of other agencies, there must be some analysis and justification – a hard look – in the NEPA documents.” The court took particular note of the EPA comments that were ignored, and Fish and Wildlife Service endorsement of the 2015 amendments in deciding not to list the species under ESA because they adopted scientific recommendations (see below).

(5) Compensatory mitigation measures were eliminated after the draft EIS, which “appears to constitute both “substantial changes” to its proposed action and “significant new circumstances” requiring a supplemental EIS.

The case provides a good example of how science is considered by a court, which allowed declarations from outside experts to determine if relevant environmental consequences were ignored. The court relied heavily on earlier scientific reports that included normative “recommendations,” but the court focused on their scientific conclusions, such as “surface-disturbing energy or mineral development within priority sage-grouse habitats is not consistent with the goal to maintain or increase populations or distribution,” and “protecting even 75 to >80% of nesting hens would require a 4-mile radius buffer.” The Final EISs stated that there would be no measurable effects or they would be beneficial to sage-grouse, but the BLM either had no analysis or ignored this contrary information.