Litigation

NFS Litigation Weekly October 2 & 9, 2019

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Forest Service summaries (which I have summarized further below):  0000000_2019_10_09_Litigation Weekly Email

COURT DECISIONS

The district court found plaintiffs lacked standing to challenge the NorthMet Project Land Exchange to allowing copper mining on the Superior National Forest.  (D. Minn.)  This case is discussed here.

The district court held that the administration of a special use permit for dam infrastructure on the Ocala National Forest is not subject to judicial review.  (M.D. Fla.)

The district court denied the government’s motion to dismiss or transfer to multiple courts the challenge to the 2015 decision by the BLM and FS to amend land management plan direction for sage-grouse affecting national forests in three regions.  (D. Idaho)

The district court remanded the decision on the Pilgrim Creek Timber Sale Project on the Kootenai National Forest to prepare a supplemental EIS and reinitiate consultation on grizzly bears regarding the effects of ineffective road closures.  The remand also requires reinitiation of consultation on the Forest’s “Access Amendment,” which is part of its revised forest plan.   (D. Mont.)  (More information is provided here.  An earlier court decision on similar issues on the same project was discussed here.)

UPDATES

The Supreme Court has agreed to hear this appeal of the order by the 4th Circuit Court of Appeals to vacate the Forest Service decision to permit construction of the pipeline across the George Washington and Monongahela National Forests and under the Appalachian Trail.

The district court denied a temporary restraining order regarding HUD’s authorizing the use of disaster relief funds to the Forest Service for logging on the Stanislaus National Forest and construction of a new biomass power plant.  (N.D. Cal.)

NEW CASES

The complaint concerns a second iteration of the Pettijohn Project on the Shasta-Trinity National Forest, and includes claims of ten statutory violations related primarily to northern spotted owls and old growth.  (E.D. Cal.)

The complaint alleges that the Bridger-Teton and Caribou-Targhee National Forests are improperly allowing mountain bike use in two wilderness study areas and motorized use in one of them.  (D. Wy.)  (Discussed on this blog here.)

NOTICES OF INTENT

Claim: The Pike and San Isabel National Forest failed to relocate a motorized trail out of an area where it would affect the federally listed greenback cutthroat trout as it had documented in a decision notice.  (Discussed on this blog here.)

Claim:  The Beaverhead-Deerlodge National Forest failed to initiate consultation regarding the effects on bull trout of operation of the Flint Creek Ditch and fish screen by the Montana Department of Natural Resources, as the decision notice on the East Fork Fish Creek Screen had stated.

Claim:  The analysis of effects on Canada lynx for the John Wood Forest Management Project on the Caribou-Targhee National Forest failed to meet requirements of ESA and NEPA.

 

BLOGGER’S BONUS

The Wilderness Society and Moncrief Oil and Gas Master LLC reached an out-of-court settlement resulting in the permanent retirement of a federal oil and gas lease in the Badger-Two Medicine area near Glacier National Park. The district court’s ruling and lease reinstatement had been appealed by multiple conservation, sportsmen and Blackfeet Nation stakeholders and their appeal was pending before the D.C. Circuit Court of Appeals when the settlement was reached. Williams (TWS), along with Peter Metcalf, executive director of the Glacier-Two Medicine Alliance, thanked the Wyss Foundation for its assistance in “making the lease retirement possible.”  This area has been previously discussed here (and I thought Sharon might be interested in this settlement).

Speaking of national monuments, the Western Environmental Law Center has filed a second lawsuit against the BLM for its decision to open 90% of this Monument to recreational target shooting, which has “irresponsibly damaged centuries-old saguaro cacti and irreplaceable petroglyphs.”

 

Lawsuit drives proposed changes in elk feeding permit

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The State of Wyoming has been feeding elk during the winter at several locations on the Bridger-Teton National Forest for decades.  Environmental plaintiffs challenged a 2016 decision to authorize the continued use of the Alkali Creek Feedground, and the court remanded the decision because of NEPA violations, as described here.

Rather than appealing or spending years studying the feedground’s impacts to address the judge’s concerns, the Forest Service and Wyoming wildlife managers came up with a plan that will allow emergency elk feeding on a smaller area for five years and then end the operation by 2024 (with a possible extension). That plan is now being “scoped” and is open for public comment.  The scoping letter is attached to this article.

This is an example of how litigation may lead to a better decision (after the appropriate public review process).  It appears to have made the State take a closer look at whether it really needed this feedground.  However, plaintiffs don’t appear to have been involved in the new proposal yet.  It’s also interesting that the original decision was based on an EIS/ROD, which the court found to be inadequate, but this is being proposed as a categorical exclusion (so maybe the Forest has an idea that they are not going to be challenged on it?).

CBD Threatens Lawsuit Over Motorcycle On-Trail Sedimentation Impacts to Greenback Cutthroat Trout

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Upper Cap’n Jack’s Trail, Colorado Springs Gazette file photo

This is an interesting story (1) because of the unique history of Greenback Cutthroat Trout and the discovery that they had survived in this particular drainage.

After more than five years of research, Kennedy concluded that Bear Creek was historically fishless. The greenbacks had been stocked sometime after 1874 by a man named Joseph C. Jones. Jones had come to Colorado as a prospector during the gold rush and later built an inn for the hordes of tourists that visited Pike’s Peak. There he built a series of fish ponds for guests, where it is believed he stocked the greenback far outside of its native range.

It was human stocking — the same practice that had killed off or pushed out so many of Colorado’s native trout — that had accidentally preserved the greenback. With only 800 individuals left in the entire subspecies, it would be up to humans again to save it.

Here’s an article in High Country News that tells the whole story. Philosophically, it raises interesting questions. Would ecological integrity requirements include moving the Bear Creek fish out, since they had been originally transplanted? How important is “genetic purity” compared to the ecosystem services provided by genetically motlier populations/subspecies of cutthroat trout?

(2) Here’s the Colorado Springs Gazette story on the potential lawsuit with a link to the CBD letter. It’s got everything.. a collaborative group from previous litigation..design disagreements..and it’s about a trail. Perhaps most interesting that it looks like CBD is distinguishing between impacts of hiking, mountain bikes, and motorcycles.

The Colorado Motorcycle Trail Riders Association sent a statement to The Gazette, criticizing the center’s “incessant zeal.”

“The long, thoughtful process that resulted in the rerouting of several popular trails in Jones Park represents a balance between preserving Bear Creek fish habitat and allowing reasonable recreational outdoor access for all users,” the statement read.

For years during the Forest Service’s analysis and reroute negotiations, motorists were barred from the singletrack closest to town. Now roaming the realigned Trail 667 on the north side of Kineo Mountain, they are “the crux” of the center’s concern, said the organization’s attorney, Margaret Townsend.

“If it was just a footpath or even potentially a mountain bike trail, it could have some impact, but not necessarily the same impact a motorcycle trail is likely to have,” she said in a phone call. “Of course we want folks enjoying the forest, and where the trail was going to be originally, that location wouldn’t have affected the greenback.”

So.. what do others think of the “impact” idea?

“We’ve got some concerns with upkeep; the trail’s not holding up the way it was sort of advertised,” said Cory Sutela, with Medicine Wheel Trail Advocates. “But it’s also pretty far from the creek.”

He’s no biologist, he said. “I’m a mechanical engineer, so I look at it technically, and it looks to me like sediment shouldn’t be able to get from the trail to the creek.”

Tim Volken of El Paso County:

The county “would appreciate reviewing any scientific data generated by the center indicating water quality concerns,” Wolken said. “This will be helpful in determining next steps

But to Allyn Kratz, president of the local chapter of Trout Unlimited, the evidence is “overwhelming,” and not in the favor of conservation.

He said he raised concerns about the trail before it was built, noticing at least eight “ravines” on the mountainside while hiking the flagged route — “ravines created by water,” Kratz said, “and the water obviously went to Bear Creek.”

He said he was told Trails Unlimited would address this. But he was unsatisfied in the end and remains so.

“I would love to see (Trail 667) closed,” Kratz said.

Conceivably after previous litigation, the trail was designed with sedimentation concerns in mind. Does anyone know of studies about different on-trail users having different sedimentation impacts? This may be time for a field trip…

NFS Litigation Weekly September 18 & 25, 2019

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Forest Service summaries:  2019_09_18 and 25_Litigation Weekly_Email

COURT DECISIONS

The district court invalidated the biological opinion on Mexican spotted owls prepared by the FWS for forest plans for the Lincoln, Santa Fe, Cibola, Carson, and Gila National Forests in New Mexico, and the Tonto National Forest in Arizona.  Timber management actions on these forests have been enjoined.  (D. Ariz.)  (See other discussions on this blog here and here.)

The district court issued a preliminary injunction for the Twin Mountain Timber Sale, which is part of the Prince of Wales Landscape Level Analysis Project on the Tongass National Forest, and involves the newly popular “condition-based analysis.”  (D. Alaska)  (We have discussed this case here.)

The district court granted the Forest Service’s motion for Summary Judgment regarding its Emergency Situation Determination for its decision to authorize the Cove Fire Salvage Project on the Modoc National Forest.  (E. D .Cal.)

NEW CASE

The plaintiffs claim HUD violated the National Environmental Policy Act (NEPA) when authorizing relief funds to the Forest Service for clear cutting activities and construction of a new biomass power plant utilizing the timber as feedstock following the 2013 Rim Fire on the Stanislaus National Forest.  (N. D. Cal.)

NOTICE OF INTENT

The parties have notified the Lincoln National Forest and the U. S. Fish and Wildlife Service of their intent to sue under the Endangered Species Act to reinitiate consultation to protect the New Mexico meadow jumping mouse from grazing activities on two allotments.

 

BLOGGER’S BONUS

Conservationists want a California judge to set aside Placer County’s approval of a 2.2-mile long gondola that would pass through the Tahoe national forest to connect the bases of Squaw Valley and Alpine Meadows ski resorts. About 20% of the project, including five of the towers, would be located on the Tahoe National Forest near the Granite Chief Wilderness Area.  The project won preliminary approval from the Forest Service earlier this year and is awaiting final approval after 12 organizations and individuals objected to their draft record of decision.

Conservation groups and a Native American tribe have sued the U.S. Army Corps of Engineers to challenge a key water permit allowing the PolyMet open-pit copper mine to move forward in Minnesota’s Superior National Forest.  Other related litigation was described here, here and here.

Mexican Spotted Owl Case: Monitoring, Biological Opinions, Firewood Cutting and Transparency

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Matthew posted the WEG press release here..with links to other posts on the case.

Frankly, I have never really understood ESA litigation. Maybe Jon and others can help me understand via this case.

1. From what I’ve read, this case is about the FS (and FWS?) not monitoring/improving the status of the MSO. But some forests are exempt, because they have a 2012 biological opinion, and it will supposedly take a year for the other forests to get a biological opinion. But if those other forests have a biological opinion, and it says “don’t do these things because of the MSO” then couldn’t another solution be to adopt those restrictions until the new BO is completed? Could that have been the judge’s decision? Would the plaintiff then have to agree? If some forests are exempt from the order due to their BO’s, then is it really about monitoring, or really about having a recent BO? To get back to Jon’s point, does it make better sense to have something like the Southern Rockies Lynx Amendment where a bunch of forest plans are amended at once?

It’s also interesting from the political science point of view. Thanks to the NAFSR twitter feed for this link to a story in the Las Cruces Sun News.

U.S. Sens. Tom Udall and Martin Heinrich, and U.S. Reps. Ben Ray Lujan, Deb Haaland and Xochitl Torres Small — all Democrats — signed the letter, asking Christiansen to “resolve a variety of issues, including, but not limited to, traditional firewood gathering, tribal cultural activities, and forest restoration and fire mitigation projects.”

The affected people and their elected officials can only ask the Forest Service to negotiate. If I remember correctly, it was also an ESA case in Region 3 about which Chief Jack Ward Thomas said:
“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”

So we don’t know if that situation has changed since JWT’s time, nor how much influence the FS actually has in negotiation.

Meanwhile, the plaintiffs in that court case — the Santa Fe-based environmental group WildEarth Guardians — are asking the judge to exclude firewood permits from his order on Thursday.

“It was never our intention to affect firewood cutting,” said Executive Director John Horning, who claimed Forest Service personnel have been telling people to call WildEarth for the permits.

“That was the U.S. Forest Service … inciting fear in all sorts of ways and frankly scapegoating us,” he said. “It’s unprofessional for a federal agency that has broken the law and been held accountable by a judge to direct people to our organization.”

3. Note that in this news story, WEG is saying that they are asking the judge to exclude firewood permits from the order. To me, this implies the judge developed the order without the plaintiff’s desired sideboards. Is that a natural consequence of taking something to court.. the decision can be what neither party wants?

4. If WEG took the FS to court, and the judge makes a ruling, doesn’t WEG share some responsibility for that? Is WEG accountable for that decision going to court, even if the results are not what they intended? Not that it wouldn’t be unprofessional, in some sense, if the Forest Service directed them to call WEG. What would it look like, though, for people to hold groups accountable for actions that affect their activities. Note that these folks (say, people who want fuels projects done) can’t force the FS to monitor either.

5. Wouldn’t it be terrific if all of the ongoing communication between the attorneys (DOJ and plantiffs’) and the judge were available to the public? Then we would know who was being reasonable, if anyone.

NFS Litigation Weekly August 28, September 11, 2019

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As last time, I am just copying the cover email summaries provided by the Forest Service and providing the links to the supporting documents.  However, August 28 there were no supporting documents (including the more detailed summary document) they usually provide.  Also, apparently there was no weekly summary at all for September 4.

AUGUST 28

Forest Service Summaries:  None

Court Decisions:  Nothing to report

Litigation Update:  Nothing to report

New Cases:

Forest Management | Region 1

WildEarth Guardians and Western Watersheds Project v. Chip Weber et al. (19-0056, D. Mont.) Region 1— On August 8, 2019, plaintiffs filed an amended complaint in the District Court of Montana against the Forest Service concerning the Forest Service’s decision finalizing the 2018 revision to the Flathead National Forest Land Management Plan (revised Forest Plan) on the Flathead National Forest (FNF). The plaintiffs’ amended complaint incorporates the Endangered Species Act (ESA) – 16 USC 1536 and Administrative Procedure Act (APA) 5 USC 706(2)(A) – regarding section 7 consultation with US Fish and Wildlife Service (FWS), including consultation regarding winter motorized use designations.

BLOGGER’S NOTE:  The amended complaint was actually attached to the previous weekly summary and may be found here:  WildEarthGuardians_v_Weber_19-56_amended_19-056_8-8-2019

Forest Management | Region 1

Alliance for the Wild Rockies and Native Ecosystems Council v. Leanne Marten, et al. (19-00102, D. Mont.) Region 1— On August 26, 2019, the plaintiffs filed an amended complaint in the District Court of Montana regarding the Decision Memorandum (DM) and 2014 Farm Bill Healthy Forest Restoration Act (HFRA)Categorical Exclusion (CE) for the Willow Creek Vegetation Management Project (Project) on the Helena-Lewis and Clark National Forest (HLCNF). Plaintiffs allege the decision violates the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA).

 Recreation | Region 1

Yaak Valley Forest Council v. Sonny Perdue et al. (19-143, D. Montana) – Region 1.  On August 23, 2019, Plaintiff filed suit in the District Court of Montana against the Forest Service (FS) regarding use of the Pacific Northwest Trail (PNT) through the Yaak Valley within the Kootenai National Forest (KNF). Plaintiff alleges the FS violated the National Trails System Act (NTSA), Administrative Procedures Act (APA), National Forest Management Act (NFMA), and the Endangered Species Act (ESA).

(An article on this lawsuit may be found here.)

Notice of Intent:

Transportation | Region 1

NOI (dated August 9, 2019 and received August 13, 2019) by Alliance for the Wild Rockies (AWR) alleging the Forest Service and U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) requirements pertaining to the Hanna Flats Project on the Idaho Panhandle National Forest (IPNF) — Region 1. The AWR alleges the Forest Service failed to demonstrate compliance with the IPNF Forest Plan’s 2015 Access Amendment’s baseline total and open road miles requirements.

Natural Resource Management Decisions Involving Other Agencies:  Nothing to report

 

SEPTEMBER 11

Forest Service summaries:  2019_09_11_Litigation Weekly_Email

Court Decisions:  Nothing to report

Litigation Update:  Nothing to report

New Cases:

Forest Management | Region 1

00001_Alliance for the Wild Rockies v Jeannie Higgins_Region 1

Alliance for the Wild Rockies v. Jeannie Higgins et al. (19-0332, D. Idaho) Region 1— On August 29, 2019 the plaintiff filed a complaint in the District Court of Idaho against the Forest Service regarding the Hanna Flats Good Neighbor Project on the Idaho Panhandle National Forest (IPNF). The plaintiff claims the Forest Service failed to demonstrate compliance with the IPNF Forest Plan 2015 Access Amendment (baseline total and open road miles requirements) in violation of the Forest Plan, National Forest Management Act, National Environmental Policy Act (NEPA), 2014 Farm Bill—Healthy Forest Restoration Act (HFRA), and the Administrative Procedures Act.

Notice of Intent: 

Forest Management | Region 1

00003_NOI_Alliance for the Wild Rockies_Willow Creek Veg_Region 1

NOI (dated August 26, 2019) by Alliance of the Wild Rockies and Native Ecosystem Council (AWR and NEC) alleging the U.S. Fish and Wildlife Service (FWS) and the Forest Service violated the Endangered Species Act (ESA) pertaining to the Willow Creek Vegetation Management Project (project) on the Helena – Lewis and Clark National Forest (HLCNF) Region 1— The project was approved through use of the 2014 Farm Bill Healthy Forest Restoration Act (HFRA) Categorical Exclusion (CE), and concerns the HLCNF Forest Plan’s Amendment 19 road closure requirements.

This NOI is the Second NOI notice filed by AWR and NEC under the ESA. The initial filing was dated June 14, 2019 and concerned Wolverine ESA claims.

BLOGGER’S NOTE:  The reference to the HLCNF Forest Plan’s Amendment 19 is incorrect.  This is actually a challenge to the 2018 Amendment of the forest plan for grizzly bears that occurred in conjunction with the Flathead Forest Plan revision.

Forest Management | Region 1

00002_NOI_Alliance for the Wild Rockies_North Bridger Project_Region 1

NOI, dated August 30, 2019, by Alliance for the Wild Rockies and Native Ecosystems Council (AWR and NEC) alleging the U.S. Fish and Wildlife Service (FWS) and the Forest service violated the Endangered Species Act (ESA), concerning the North Bridger Project on the Custer Gallatin National Forest, as it pertains to the Canada lynx and its critical habitat (Region 1).

This NOI is the Second NOI notice filed by AWR and NEC under the ESA.  The initial filing was dated June 5, 2019 and concerned Wolverine ESA claims.

Natural Resource Management Decisions Involving Other Agencies:  Nothing to report

 

BLOGGER’S NOTE

AWR v. Higgins

The complaint raises NEPA claims regarding the designation of “wildland urban interface” and the development of a community wildfire protection plan.  Specifically, the designation of WUI allows the Forest Service to use the HFRA categorical exclusion.  The complaint argues that this constitutes Forest Service “adoption” of the community plan and that it did not adequately consider the effects of doing so under NEPA.  In fact, the adoption of a plan that determines how national forest lands would be managed must follow the forest planning process in accordance with NFMA.  It has always seemed to me that WUI designation changes how national forest lands are managed, and any reference to WUI in a forest plan would require public participation in how that area was identified, and plans for national forest lands can not be viewed as directing national forest management independent of their inclusion in a forest plan.  Maybe these issues will come up here.

BLOGGER’S BONUS

Siskiyou Mountain Salamander

The U. S. Fish and Wildlife Service determined that listing of this species, was not warranted despite the loss of BLM regulatory mechanisms discussed previously here.  It’s interesting that the FWS stated (as quoted here), “The Yreka Fish and Wildlife Office is working with the Klamath National Forest to develop a conservation strategy for the Siskiyou Mountains salamander, and in Oregon the Roseburg FWO is currently working with the Rogue River-Siskiyou National Forest and the Medford District Bureau of Land Management to implement a conservation agreement and strategy for this salamander. Together, these actions will help conserve the Siskiyou Mountains salamander on all federal lands across the range of the species.”  The ESA caselaw is clear that strategies that do not yet exist can’t be considered “existing regulatory mechanisms” for the purpose of listing decisions, and it’s also been clear that “existing” for national forest lands means included as forest plan components.

 

Mountain Bikers and State Intervene in Ten Mile- South Helena Project

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Helena District Ranger Heather DeGeest, center, talks about the use of existing roads in inventoried roadless areas to reduce fuels by logging and prescribed fire.
TOM KUGLIN, Independent Record

Lourenço Marques posted this as a comment:
He had seen this on FB.

Today the Montana Bicycle Guild, Inc., filed a motion to intervene in the lawsuit in the U.S. District Court brought by Helena Hunters & Anglers and Montana Wildlife Federation against the U.S. Forest Service. The MBG is intervening to support the Forest Service’s decision on the Ten Mile-South Helena Project and to protect the interests of mountain bikers.

“As part of the post-disturbance restoration for this project, the Forest Service adopted several long-established trails into the trail system inventory and also approved the construction of three new thoroughly vetted and needed trails.

“The lawsuit brought by Helena Hunters & Anglers and Montana Wildlife Federation challenges the incorporation of existing trails into the inventoried system. Their lawsuit also seeks to prevent two of the new trails in this area from being built. . . .

“This would end-run years of work and collaboration to impose a de facto ban of bicycles from every trail in this area targeted by their lawsuit. If the Helena Hunters & Anglers and Montana Wildlife Federation lawsuit is successful, the bicycling community would suffer a major loss and be banned from this entire area.

“This project doesn’t only impact bikers—every public land user would lose a couple of well-thought-out new trails that is the result of numerous people and groups working together for many years, including the MBG, to plan and collaborate with the Forest Service.”

Lourenço asks “Would any employees of or participants in the public-lands litigation factory care to explain how this lawsuit benefits the cause of conservation?”

It seems pretty much BAU to litigate fuel treatment projects in Montana. The interesting twist is about the trails. From this Independence Record story:

The project calls for logging, thinning and prescribed burning on 17,500 acres near Helena. Goals primarily focus on wildfire concerns, with the aim of creating safe places to insert firefighters and reducing a wildfire’s potential severity. A smaller aspect of the project includes trail designations and construction, which has drawn some criticism — and now lawsuits — over concerns of drawing mountain bikes into roadless areas.

The association and federation’s lawsuit was recently consolidated with a separate and much broader lawsuit filed by Alliance for the Wild Rockies and Native Ecosystems Council. While the first lawsuit only challenges work in inventoried roadless areas, the second lawsuit challenges the entirety of the project and calls for it to be halted due to allegations of inadequate environmental analysis and impacts to wildlife.

The guild is challenging the trail portion of the lawsuit. The group contends that multiple trails in the project area have been used for decades by mountain bikers and notes that the project decision prohibits mountain bikes from leaving designated trails. The project officially designates two trails that have seen traditional bike use as well as construction of two multi-use trails in the Jericho and Lazyman Gulch inventoried roadless areas, the guild says.

Is this about kicking bikers off trails they currently use? But bike use is legal in roadless areas.. It’s all very confusing.

I also noted that the State is an intervenor as in this story from KTVH.

Finally, to make the whole project even more confusing, the project is currently underway while the lawsuits move forward according to this article that talks about the implementation (with good photos).

“Courts have not ruled on or temporarily halted the project as it hears the cases, however the Forest Service has agreed to suspend work in roadless areas until the court has ruled on the first lawsuit.”

Here’s an op-ed on the Collaborative and how their opinions were used in the decision.

Here’s a link to the EIS and Matthew Garrity’s (AWR) objection letter

Some of his claims are interesting:

The purpose of the project according to the DROD is to: “Reduce the probability of high-severity wildfires and their associated detrimental watershed effects in the Tenmile Municipal Watershed and surrounding area.”
This is a violation of NEPA since the project will not do this and the purpose also violates NFMA and the APA since trying to fireproof a forest destroys a forest and makes an unhealthy watershed.

NFS Litigation Weekly August 21, 2019

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The Forest Service is now providing these short overviews in their cover email, which serve the same purpose as the summaries I have been providing here, so I’m just going to copy them and add the links to the relevant documents.

Forest Service Summaries:  2019_08_21_Litigation Weekly_Email

Court Decisions:

Timber & Minerals | Region 6

Animal Legal Defense Fund v USA et al Region 6

Animal Legal Defense Fund, et al. v USA, et al. (18-1860, D.OR.) Region 6—On July 31, 2019 the District Court of Oregon issued an opinion and order in favor of the United States in which the Department of Agriculture is a party concerning commercial logging and mineral extraction contribution to climate change. This is the second climate change case that was filed after the Juliana v. United States (15-1517, D. OR., 18-36082, 9th Cir.). The Federal Government urged the district court to restrain “from dictating environmental policy by creating a “right to wilderness” and argued that the plaintiffs lacked standing to bring such a broad claim.”

Litigation Update:

Nothing to report

New Cases:

Recreation | Region 4

Sawtooth Mountain Ranch v USFS_Region 4

Sawtooth Mountain Ranch LLC et al. v. United States Forest Service et al. (19-00118, D. Idaho) Region 4— On August 8, 2019, plaintiffs filed an amended complaint in the District Court of Idaho against the Forest Service concerning plans to construct the Redfish to Stanley Trail (Trail) on the Sawtooth National Recreation Area (Sawtooth National Forest).

Notice of Intent:

Wildlife | Region 1

NOI Neighbors Against Bison Slaughter_Region 1

NOI (dated August 16, 2019 and received August 20, 2019) by Neighbors Against Bison Slaughter (NABS) alleging the Forest Service and National Park Service (NPS) violated the Yellowstone National Park Act (YNPA), National Forest Management Act (NFMA), Multiple-Use Sustained Yield Act (MUSYA), National Environmental Policy Act (NEPA), and Interagency Bison Management Plan (IBMP) by not imposing reasonable restrictions on the migrating and hunting of wild bison in Beattie Gulch on the Custer-Gallatin National Forest (CGNF) — Region 1.

Natural Resource Management Decisions Involving Other Agencies:

Pipeline | Region 8 & 9

Wild Virginia et al v USDOI Region 8_9

Wild Virginia, et al. v. U.S. Department of Interior, et al. (19-1866, 4th Cir.)-Region 8 and 9—On August 12, 2019 the petitioners filed a request for appeal with the 4th Circuit Court of Appeals concerning the Mountain Valley Pipeline on the Monongahela, George Washington and Jefferson National Forests. The petitioners are appealing pursuant to the Administrative Procedures Act, 5 U.S.C. 702, Section 19(d)(1) of the Natural gas Act to review the U.S Fish and Wildlife Service’s Biological Opinion (BO) and Incidental Take Statement (ITS) dated November 21, 2017 for the Mountain Valley Pipeline.

Mining | Region 1

Nez Perce Tribe v Midas Gold Corp Region 1

Nez Perce Tribe v. Midas Gold Corp, et al (19-307, D. Idaho)-Region 1— On August 8, 2019 the plaintiff filed a complaint in the District Court of Idaho against the defendants (Midas Gold Corp., Midas Gold Idaho, Inc., Idaho Gold Resources Company, LLC, and Stibnite Gold Company) concerning the Stibnite Gold Project on the Payette National Forest. Plaintiff’s complaint alleges violations under the citizen enforcement provision of the Federal Water Pollution Control Act (Clean Water Act-CWA). An initial Notice of Intent was sent to the defendants on June 5, 2019

BLOGGER’S NOTE

WildEarthGuardians_v_Weber_19-56_amended_19-056_8-8-2019

An additional document was included with this summary, but was not summarized.  It is an amended complaint filed on August 7 in WildEarth Guardians v. Weber, which is one of two lawsuits filed against the revised Flathead National Forest Plan.  They have dropped their claims of violations of NFMA and the Planning Rule and added claims related to the Endangered Species Act.

BLOGGER’S BONUS

Colville cows

The Maryland-based Center for a Humane Economy filed a suit in King County Superior Court, to prevent the state of Washington from killing more wolves from a pack that is preying on cattle. The Lands Council, a Spokane-based conservation group, said it may be time to move the cattle off of the Colville National Forest.  (However, the Forest Service is not a defendant in the lawsuit.) 

NFS Litigation Weekly August 7th & 14th, 2019

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Forest Service summaries:  August 7 and 14, 2019 Litigation Weekl

COURT DECISIONS

The District Court of Montana denied the plaintiffs’ motion for preliminary injunction to enjoin the Agency from constructing the Porcupine Ibex Trail on the Custer Gallatin National Forest.  Background here, and discussed here.

The Court for the Eastern District of California ruled favorably for the Forest Service on all claims associated with cattle grazing in three livestock allotments on the Stanislaus National Forest.

The District Court of Arizona vacated the Forest Service’s Final Environmental Impact Statement and Record of Decision for the Rosemont large scale copper pit-mining operation within the boundary of the Coronado National Forest.  (According to this article, Federal District Judge James Soto said in his decision Wednesday that the U.S. Forest Service “abdicated its duty to protect the Coronado National Forest” when it failed to consider whether the mining company held valid unpatented mining claims.)

The 9th Circuit Court of Appeals denied the appellants’ motion for injunction pending appeal of the Moose Creek Project on the Helena-Lewis and Clark National Forests under the Healthy Forest Restoration Act (2014 Farm Bill) Categorical Exclusion.

COMING SOON

The Central District Court of California will hear a case against the Cuddy Valley Forest Health/Fuels Reduction Project on the Los Padres National Forest (LPNF), which was analyzed and authorized under a 36 C.F.R. § 220.6(e)(6) categorical exclusion (CE) for timber stand and/or wildlife habitat improvement activities.  More on this lawsuit here.  This is the second project discussed here that is now under litigation.

Western Watersheds sent an NOI claiming the Forest Service is violating the ESA by failing to reinitiate consultation regarding impacts of its grazing management on listed fish (shortnose sucker and the Lost River sucker) and their designated critical habitat on the Modoc National Forest.

 

BLOGGER’S BONUS

In other mining news, state courts in Minnesota have approved the state rules that would allow the PolyMet copper-nickel mine planned within the watershed of the Boundary Waters Wilderness in the Superior National Forest, but blocked the mine itself until it addresses “procedural irregularities.”  In Colorado, the Colorado Court of Appeals ruled companies must reclaim uranium mines that sit idle for more than 10 years.

NFS Litigation Weekly July 31, 2019

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Forest Service Summary: 2019_07_31_Litigation Weekly

COURT DECISIONS – OTHER AGENCIES

The 4th Circuit of Appeals ruled against the U.S. Fish and Wildlife Service’s September 2018 Biological Opinion (BO) for the Atlantic Coast Pipeline  certificate of public convenience issued by the Federal Energy Regulatory Commission under the National Gas Act (again).  A portion of the pipeline project transverses the Monongahela and George Washington National Forests.  Forest Service decisions allowing the pipeline have also been invalidated and were discussed here.  The Appalachian Trail crossing issue has been appealed to the U. S. Supreme Court (discussed here).

 

BLOGGER’S BONUS

The New Hampshire Supreme Court upheld the rejection by the state Site Evaluation Committee last year of a large power corridor cutting through the White Mountain National Forest  .

The 9th Circuit Court of Appeals has vacated the sentence of a man convicted of federal charges he polluted waters of the United States by digging ponds on his property and the Beaverhead-Deerlodge National Forest (because he died).

A Montana State District Court held that Montana illegally re-issued a water pollution discharge permit in 2004 for the proposed Montanore copper and silver mine under the Cabinet Mountains on the Kootenai National Forest.  This is in addition to legal violations by the Forest Service discussed here.