Litigation

Forest Service summary:  2019_07_24_Litigation Weekly

NOTICE OF INTENT

• NOI CBD alleges FS and FWS violated ESA-Region 3

The Center for Biological Diversity claims that the Forest Service has not excluded cattle from allotments in the Gila National Forest and the Apache-Sitgreaves National Forest that were part of a 1998 settlement between the CBD and Forest Service, and therefore it must reinitiate consultation under the Endangered Species Act for several affected species.

BLOGGER’S COMMENT

While litigation about vegetation management is usually about what the Forest Service says it is going to do, grazing litigation is frequently about what the Forest Service actually did.  The July 10 Litigation Weekly included the denial of a preliminary injunction in Concerned Friends of the Winema v. McKay, a long-running dispute over the Antelope Allotment and effects on the Oregon spotted frog.  The plaintiffs pointed out problems with the way the allotment had been managed in the past, and Forest Service promised to do better.  That was good enough for the court at the preliminary injunction stage:

The Court takes Plaintiffs’ concerns about the history of cattle trespass on the Antelope Allotment and the threat to the Jack Creek OSF seriously. Nevertheless, the Court concludes that the Forest Service has imposed sufficient limitations and safeguards to render the risk to the Jack Creek OSF population speculative, rather than imminent, for the 2019 grazing season.

In making this ruling, the Court is cognizant of the long history of litigation concerning grazing on the Antelope Allotment and the significance of the Forest Service’s new model for managing the Allotment’s resources. In response to Plaintiffs’ motion, the Government and the permittee agreed to substantially reduce the grazing planned for the 2019 season, both in terms of the number of cattle and the areas to be grazed.

It’s harder for plaintiffs to bring post-decisional implementation cases than to stop a decision from being implemented in the first place.  In both of these cases, plaintiffs had monitor the allotments.  At some point though, the Forest Service track record of what it did is going keep it from doing what it wants to do.

BLOGGER’S BONUS (non-Forest Service cases)

• BLM fracking near national park

In a new BLM case, the Center for Biological Diversity, the Sierra Club and WildEarth Guardians claim the agency failed to consider new drilling technologies or environmental science, including predicted effects of climate change from proposed drilling near Petrified Forest National Park in Arizona. They also claim the oil and gas leases are a thin veil for the extraction of helium, which has other regulatory limitations.

• Oregon logging violates Clean Water Act

The Oregon federal district court has ordered the Oregon Department of Environmental Quality to do more to protect salmon streams harmed by logging operations. Northwest Environmental Advocates argues that state regulations governing logging on private lands are much weaker than federal regulations governing logging on federal land, so this doesn’t appear likely to affects federal lands even though the state DEQ may have Clean Water Act jurisdiction on federal lands.

Forest Service summaries:  2019_07_17_Draftv1 for distribution

COURT DECISIONS

• 000001_Greater Hells Canyon Council v. Kris Stein et al_Region 6

The District Court of Oregon issued an order adopting all of the magistrate’s March 22, 2019 Findings and Recommendations in favor of the Forest Service concerning the Lower Imnaha Rangeland Analysis Project within the Hells Canyon National Recreation Area on the Wallowa-Whitman National Forest.  Those findings were previously discussed here.

UPDATES

• 000002_Order NEC v Marten_ Region 1 Johnny Crow ORDER
• 000002.1_Original Order_NEC v Marteen_Region 1_Johnny Crow

On December 10, 2018 the Montana district court granted the Forest Service’s motion for summary judgement and upheld the Johnny Crow Wildlife Habitat Improvement Project on the Helena-Lewis and Clark National Forest.

NEW CASES

• 000003_Los Padres Forest Watch et al v. U.S. Forest Service_Region 5_Tecuya Project

The plaintiffs filed a complaint in the Central District Court of California concerning the Tecuya Project on the Los Padres National Forest, approved using the Category 6 Wildlife Habitat Enhancement Categorical Exclusion.  Further background is provided by this article.

• 000004_Earth Island Institute and Center for Biological Diversity v. U.S Forst Service_Region 5 Three Creeks

The plaintiffs filed a complaint in the Eastern District Court of California against the Three Creeks Forest Health and Restoration Project on the Inyo National Forest.

NOTICES OF INTENT

• 000007_Center for Bio Div re ESA re Jumping Mouse_Region 3

The Center for Biological Diversity alleges that the U.S. Fish and Wildlife Service and the Forest Service violated the Endangered Species Act pertaining to consultation on the 2015 revised Land Management Plan for the Apache-Sitgreaves National Forest and effects on the New Mexico meadow jumping mouse.

• 000006_NOI_Center for Biological Diversity re ESA Violation_Region 3

The Center for Biological Diversity may add to the complaint (above) against the Tecuya Project on the Los Padres National Forest based on violations of ESA in relation to the California condor.

BLOGGER’S BONUS

• Pettijohn Project, Shasta-Trinity

A lawsuit filed by the Conservation Congress in 2013 was dismissed after the Forest Service reinitiated and completed ESA consultation.

• Santa Fe thinning

The Forest’s proposal for the Pacheco Canyon area near the city of Santa Fe is being appealed by plaintiffs to the 10th Circuit Court of Appeals.

• Salmon-Challis grazing

The 9th Circuit Court of appeals affirmed the district court opinion in favor of the Forest’s management of four grazing allotments for aquatic species.  The district court opinion was discussed here as the Western Watersheds case.

• Mountain caribou

Conservation groups have sued the U. S. Fish and Wildlife Service for failing to designate critical habitat, including national forest lands on the Idaho Panhandle National Forest, after the species went extinct within the U. S.

• Wolf killing

The Southwest Regional Forester has revoked the grazing permit of a rancher who trapped and bludgeoned to death an endangered Mexican wolf.

Forest Service summaries:  2019_07_10_Draftv1 for distribution

COURT DECISIONS

• 000001_Concerned Friends of Winema v. McKay_Region 6

The District Court of Oregon denied a motion for a preliminary injunction against a ten-year grazing permit on the Antelope Allotment on the Fremont-Winema National Forest.  This case was previously discussed here.

NEW CASES

• 000002_Wildlands Defense_v_Bolling_Region 4

A complaint was filed in the District Court of Idaho concerning the Rowley Canyon Wildlife Enhancement Project on the Caribou-Targhee National Forest.  Here’s the viewpoint of plaintiff Alliance for the Wild Rockies.

NOTICE OF INTENT

• 000003_NOI_R1_WillowCreek

The Alliance of the Wild Rockies and Native Ecosystem Council filed a Notice of Intent to Sue under the Endangered Species Act regarding the Willow Creek Vegetation Management Project on the Helena – Lewis and Clark National Forest.  A complaint addressing other issues was filed previously and included here.

OTHER AGENCIES

• 000005_Wild Earth Guardians et al v. Bernhardt_BLM_Region 2

A complaint was filed in the District Court of Colorado concerning BLM’s decision to approve the West Elk Mine expansion underlying roadless lands in the Grand Mesa, Uncompahgre and Gunnison National Forests.  The Forest Summary includes a 2013 complaint for a “related case:”  000004_High Country Conservative Advocates et al v US FS et al_Region 2  .  More information is provided in this article.

BLOGGER’S BONUS

Plaintiffs in the Friends of the Crazy Mountains case have moved for a preliminary injunction against construction of a new trail.  This case was discussed here.

The Forest Service has sued the Durango and Silverton Narrow Gauge Railroad for causing the 416 Fire and causing $25 million in damages to federal lands.  This article provides a good description of how these cases work.

Environmental plaintiffs followed through on their Notice of Intent to Sue the U. S. Fish and Wildlife Service for failing to respond to their petition to list the Siskiyou Mountain salamander, found on federal lands in Oregon, which was discussed here.

The Center for Biological Diversity has sued the U. S. Fish and Wildlife Service to force it to update its recovery plan for grizzly bears and consider reintroducing them in additional areas of former habitat, as described here.

The Forest Service was providing summaries of the “climate kids” case, officially known as Juliana v. U. S.  A hearing was held before the Ninth Circuit in June in the latest move by the federal government to dismiss the case.  Here are two recent views of the case, one from one of my (notably libertarian) law professors, and another from “60 Minutes.”

Forest Service summary:  2019_07_03_Litigation Weekly

LITIGATION UPDATE

• 000002_Cowpasture River Preservation Association et al v. US Forest Serv…

The government is asking the Supreme Court to review the appeals court decision that the Forest Service may not grant a right-of-way across the Appalachian Trail for the Atlantic Coast Pipeline.  More on this and on the Mountain Valley Pipeline here.

NOTICE OF INTENT

• 000003_NOI North Bridger Forest Health Project_Region 1

The Notice of Intent to Sue under the Endangered Species Act involves the Forest Service and Fish and Wildlife Service, and concerns the effects on wolverines of the North Bridger Forest Health Project on the Custer Gallatin Forest.

Forest Service summaries:  000000_2019_06_19_Litigation Weekly

COURT DECISIONS

• 000001_Alliance for Wild Rockies v Savage Region 1

The 9th Circuit denied an emergency motion for injunction pending appeal by the plaintiffs for the Miller West Fisher Project on the Kootenai National Forest.

• 000002_CNSP Inc v USFS_Region3

The District Court of New Mexico denied the plaintiff’s motion for reconsideration concerning the requested placement of telecommunication equipment on Tesuque Peak in the Santa Fe National Forest.

• 000003_Conservation Congress v USFS_Region 5

The 9th Circuit Court of Appeals affirmed the Eastern District Court of California’s March 2, 2018 order lifting the injunction on the Smokey Project on the Mendocino National Forest.

• 000004_State of Alaska v USFS Region 10

The District Court of Alaska rejected the Forest Service interpretation of the scope of easements on the Tongass National Forest, pursuant to a 2005 statute. Here is an article with more details.

• 000005_Sawtooth Mtn. Ranch, LLC. v. USFS_Region 4

The District Court of Idaho denied plaintiffs’ motion for a preliminary injunction to prevent construction by the Forest Service of the Stanley to Redfish Trail on a private land conservation easement in the Sawtooth National Recreation Area.

• 000006_Klamath_Siskiyou Wildlands v Grantham Region 5
• 000006.1_APPELLATE-#376676-v1-Seiad_Horse_–_plaintiffs_injunction_pending_appeal_motion
• 000006.2_APPELLATE-#376677-v1-Seiad_Horse_–_second_emergency_motion_injunction_pending_appeal

The 9th Circuit Court of Appeals issued an order denying the plaintiffs request for emergency motion for injunction pending appeal of the Seiad-Horse Risk Reduction Project in the Klamath National Forest.  Additional discussion of this case may be found here.

NEW CASES

• 000007_Wildearth Guardians et al v. USFS and USFWS Region 1 2

The Forest Service policy allowing baiting black bears for hunting in grizzly bear habitat violates ESA and NEPA.  (D. Idaho)

• 000008_Alliance for Wild Rockies v Marten_region 1

The Forest Service’s decision memorandum and categorical exclusion for the North Bridger Forest Health Project on the Custer Gallatin National Forest violate NEPA.  (D. Mont.)

• 000009_Friends of the Crazy Mountains, et al v USFS_Region 1

The Forest Service is failing to maintain public access on four trails in the Crazy Mountains on the Custer Gallatin National Forest.  This was discussed previously here.  (D. Mont.)

NOTICE OF INTENT

• 000010_OTHER_BLM_Friends of Animals_v_BLM_WildHorses_Oregion

The decision to adopt the Warm Springs Spay Feasibility and On-Range Behavioral Outcome Assessment and Warm Springs Herd Management Area Population Management Plan in Oregon violate FLPMA and the Wild Free-Roaming Horses and Burros Act.  (D. Or.)

BLOGGER’S ADDITIONS

• Rock Creek Mine, Kootenai National Forest

The latest step in this long-lasting case was for the District Court of Montana to deny a stay request by the Forest Service while it considers new information: “Defendants are free to withdraw or amend their decisional documents at any time. But they cannot delay ongoing litigation to shore up the administrative record or search for post-hoc rationalizations based on new information. Unless and until the documents are withdrawn or amended, Defendants must defend against the existing allegations.”

• Gold mine, Payette National Forest

The Nez Perce Tribe threatened to sue Midas Gold Corp. under the Clean Water Act for allegedly discharging arsenic and other heavy metals into the headwaters of the South Fork of the Salmon River on lands that include the Payette National Forest.

• Hammond grazing permits

The District of Oregon granted a temporary restraining order that will prevent Hammond Ranches, Inc., of Burns, Oregon, from grazing in two BLM-administered allotments for the next 28 days.  This was summarized here.  (Pick your version of reality.)

Forest Service summaries:  2019_06_05_

COURT DECISIONS

• Klamath_Order Granting Stay

Klamath-Siskiyou Wildlands v. Grantham (E. D. Cal.):  The district court essentially reversed itself on enjoining the Seiad-Horse Risk Reduction Project on the Klamath National Forest, staying that injunction while the project is appealed to the circuit court.  The court’s reasoning:

“While Plaintiffs raised substantial questions regarding at least one of their claims, the Court must defer to the Forest Service’s determination that without a stay the harm will become truly irreparable. The crux of this Court’s first order was the fact that only Plaintiffs were in jeopardy of irreparable harm. In light of Federal Defendant’s arguments in their newest motion, it is clear that Federal Defendants will face irreparable harm that — most critically in the Court’s analysis — will threaten the public safety should the injunction remain in place.”

• 000004.5_Gallatin Wildlife Association v. United States FS, et al 15-0027 D. Mont. Region 1

The District of Montana dismissed a complaint filed in 2015, concerning the allotment management plans on 7 domestic sheep allotments on the Beaverhead Deerlodge National Forest, and the revised forest plan (D. Mont.)

• Kaibab_Condor Decision

Center for Biological Diversity v. USFS (9th Cir.):  The circuit court held that the district court has jurisdiction to hear an action brought under the citizen suit provision of Resource Conservation Recovery Act (RCRA) seeking to require the Forest Service to ban the use of lead shot that poses a threat to endangered California condors in the Kaibab National Forest.

• Duhring_Opinion

Duhring Resource Company v. USA (3rd Cir.):  The circuit court remanded the case to the Western District of Pennsylvania district court to consider costs incurred due to delay of oil and gas operations on the Allegheny National Forest.  Another facet of this case was discussed here.

• Wild Watershed_Hyde and Pacheco projects

Wild Watershed v. Hurlocker (D. N.M.):  The District Court upheld the Hyde Park Wildland Urban Interface Project and the Pacheco Canyon Forest Resiliency Project on the Santa Fe National Forest.  It found that NEPA was not required prior to designation of areas under the 2014 Farm Bill HFRA amendment as insect and disease treatment areas, and the applicable statutory categorical exclusion does not require consideration of extraordinary circumstances or consideration of environmental impacts as would administrative CEs subject to NEPA requirements.  The projects met the HFRA requirements for protecting old growth, for use of best available science (for northern goshawk and Albert’s squirrel and for air pollution from burning) and for consistency with the forest plan.  Forest plan direction applicable to old growth did not apply because the treated stands did not meet the definition of old growth.

UPDATES

• Sawtooth Reply Brief

Sawtooth Mountain Ranch v. USFS (D. Idaho):  (No FS summary provided.)  Private landowners oppose the proposed Redfish to Stanley Trail on the Sawtooth National Forest (discussed here).

NEW CASES

• Idaho Snowmobile Complaint

Idaho State Snowmobile Association v. USFS (D. Idaho):  The Sawtooth National Forest prohibited snowmobile use on 85,266 acres of public land in the Fairfield Ranger District.

• Tonto NF_FOIA Complaint

Friends of Animals v. Perdue (D. Colo.):  (No FS summary provided.)  Plaintiffs allege violation of Freedom of Information Act requirements to provide documents related to management of wild horses on the Tonto National Forest.

BLOGGER’S NOTE on the Klamath case

We discussed it extensively on this blog here, mostly regarding snags.  We didn’t discuss another issue in the case about compliance with the Northwest Forest Plan Aquatic Strategy. Here’s this court’s description of what is required:

In demonstrating ACS compliance, the Forest Service “must manage the riparian-dependent resources to maintain the existing condition or implement actions to restore conditions. The baseline from which to assess maintaining or restoring the condition is developed through a watershed analysis. Improvement relates to restoring biological and physical processes within their ranges of natural variability.” (SHAR_E_2158.) “In order to make the finding that a project or management action ‘meets’ or ‘does not prevent attainment’ of the Aquatic Conservation Strategy objectives, the analysis must include a description of the existing condition, a description of the range of natural variability of the important physical and biological components of a given watershed, and how the proposed project or management action maintains the existing condition or moves it within the range of natural variability.”

In the days of the Northwest Forest Plan development, ranges of natural variability were to be determined between the plan and project level, in the case of watershed conditions via a requirement for “watershed analysis.”  Under the 2012 Planning Rule, NRV is a plan-level requirement.  What makes the Flathead forest plan revision litigation so interesting is that the revised plan both omits NRV from its aquatic ecosystem plan components and removes the requirement for any analysis to identify it later (instead merely suggesting that monitoring would be used).  It may be a good way of avoiding problems with project compliance, but it raises serious questions about how well the plan meets its obligation to protect aquatic species.

Forest Service summaries:  2019_05_30_Lit Weekly

NEW CASES

• 000001_Wilderness Watch, et al v USFS_Region 2

The complaint alleges unauthorized use of chainsaws in two wilderness areas on the San Juan and Rio Grande National Forests.  The case is being discussed on this blog, here and here. (D. Colo.)

• 000002_Rocky Mtn Wild, et al v USFS_Region 2

Another lawsuit has been filed against the Rio Grande National Forest’s approval of access to private land that would allow development of the Village at Wolf Creek Ski area.  More on this dispute can be found here.  (D. Colo.)

BLOGGER’S BONUS (not included in the Forest Service summaries)

• Alliance for the Wild Rockies v. Savage

The district court denied a motion for injunction pending appeal to the Ninth Circuit of its decision to dissolve a prior injunction on the Miller West Fisher Project after the Kootenai National Forest had completed additional analysis.  That court decision was discussed here.  (D. Mont.)

• Conservation Congress v. USFS

The appeals court upheld a fire salvage and restoration project on the Modoc National Forest.  It found that the Forest adequately addressed effects on northern goshawks and Modoc suckers.  In relation to NFMA, it found that landscape conditions did not comply with the forest plan because of the fire rather than the proposed action, that required surveys were conducted, and other alleged requirements were discretionary guidelines.  (9th Cir.)

LATE BREAKING UPDATE (after the Forest Service summary was compiled)

• Center for Biological Diversity v. USFS

A federal appeals court ordered a new hearing for environmental groups trying to ban the use of lead shot that they said poses a threat to endangered California condors in the Kaibab National Forest. The court held that the case is justiciable, and that because the district court dismissed for lack of jurisdiction, it never had the chance to consider the questions pertaining to contributor liability under the Resource Conservation and Recovery Act in the factual context presented by this case.  (9th Cir.)

I’ll return to my role of providing a brief summary and links to the Forest Service summary and documents (with occasional additions and comments).  Some of these cases below were recently discussed here.

Forest Service summaries:  Litigation Weekly_2019_05_15_22_Distributed

COURT DECISIONS

• 000001_Friends of The Wild Swan et al v Kehr- 9th Cir. May 10 Opinion

Flathead National Forest, Beaver Creek Project.

• 000002_Bailey v United States et al-District Court KY April 30 2019

The Plaintiffs had sought to compel the Forest Service to repair a broken security light and place picnic tables at the facility on the DBNF under the Federal Lands Recreation Enhancement Act (FLREA.  The 6th Circuit Court of Appeals ordered parties to provide evidence about the designations of the facility.

• 000003_Utah Native Plant Society et al v United States Forest Service, et al-10th Cir-May 7, 2019

Introduced mountain goats, Manti-La Sal National Forest.

• 000004_WildEarth Guardians, et al v Provencio, et al-9th Cir-May 6, 2019

The 9th Circuit upheld the Kaibab National Forest Travel Management Plan permitting motorized big game retrieval.  The district court decision was discussed here.

• 000004.5_Gallatin Wildlife Association v. United States FS, et al 15-0027 D. Mont. Region 1

The District of Montana dismissed a complaint filed in 2015, concerning the allotment management plans on 7 domestic sheep allotments on the Beaverhead Deerlodge National Forest, and the revised forest plan.

NEW CASES

• 000005_Georgia Forest Watch & SierraClub_v_USFS_Dist.Ct GA

This complaint alleges violations of NFMA and NEPA on the Cooper Creek Project on the Chattahoochee-Oconee National Forest.

• 000006_Southeast Alaska Conservation v USFS et al Region 10 May 7 2019 Complaint

Prince of Wales Landscape Level Analysis Project.

NOTICES OF INTENT

• 000007_NOI_WWP_Humboldt Toiyabe Lahontan Cutthroat Trout

Western Watersheds Project states they plan to pursue litigation unless the FS initiates and completes new consultation with the USFWS over impacts from grazing to the Lahontan Cutthroat Trout on the Humboldt-Toiyabe National Forest.

• 000008_NOI_WEG-WWP_FWS_FS_FlatheadNF_4-3-2019

This ESA NOI pertains to the second lawsuit against the Flathead National Forest revised forest plan.  A complaint was filed by the same plaintiffs on NFMA and NEPA issues on April 2.  The first lawsuit was discussed here.

• Western Watersheds Project v. Schneider (no link)

Sage grouse plans.

OTHER AGENCIES

• 000009_Herrera v. Wyomin_17-532 US Supreme Court_Region 2

The Supreme Court ruled against the State of Wyoming on a case involving interpretation of an 1868 Treaty concerning hunting rights on “unoccupied lands of the United States ….”  This case was previously discussed here.