Litigation

Litigation Weekly July 20

• Martin v US

Plaintiffs’ claim that the Forest Service violated the Fifth Amendment by taking its property when it restricted access to inholdings after flooding was not ripe for review because there has not been a final agency decision on possible reconstruction of the roads.  (Fed. Cir.)

• Morales v USA

The USGS decision to not mark a cable 40 feet above a wild and scenic river on the Prescott National Forest, which led to the death of occupants of a helicopter that struck it, was considered a “discretionary function,” and the government could properly claim sovereign immunity from tort claims.  (9th Cir.)

• Democracy Forward v DOI

(New case.)  Plaintiffs are seeking records related to the establishment of a Federal Advisory Committee that is addressing issues they view as contributing to privatization of national parks, and the Park Service has failed to respond within the statutorily mandated 20 days.  (D. D.C.)

BLOGGER’S BONUS:  Friends of the Wild Swan v. Kehr (D. Mont.)

The Beaver Creek Landscape Restoration Project on the Flathead National Forest was upheld by the Montana District Court on July 16.

• Adjacent projects were not “cumulative actions,” potentially triggering a single EIS instead of separate EAs, because they were initiated in different years and there was no evidence of the Forest trying to segment a single project to avoid triggering an EIS.
• The cumulative effects analysis of the two projects was adequate because it met the “bare minimum” of explaining “why the combined impact would not be significant.”
• The project complied with forest plan requirements for road density in grizzly bear habitat by meeting standards for no net loss of habitat security and providing a “net gain” towards meeting security objectives by closing roads.
• The Forest properly considered roads committed to “intermittent storage” to be closed for the purpose of the forest plan standard because they would be reclaimed so they no longer function as roads (though they could be reopened in the future).
• The EA provided sufficient information to conclude that the project complied with an elk standard for road density.
• Acquisition of private lands in the project area subsequent to consultation on the forest plan road density standards did not require reinitiation of consultation under ESA because the prior consultation had already contemplated improvements of road density in these areas (even though the forest plan did not apply to them at the time).

Litigation Weekly July 13

• EII v Elliott

The court upheld the Sequoia National Forest’s use of a road maintenance categorical exclusion for a commercial timber sale to remove hazard trees in the Cedar Fire burn area.  (This decision followed an earlier denial of a preliminary injunction, discussed here).  (E.D. Cal.)

• PEER v Zinke

(New case.)  Public Employees for Environmental Responsibility challenges the decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the ESA list of threatened species.  (D. D.C.)

• Basinkeeper v. Army Corps of Eng  (Requires Lexis account)

In a 2-1 decision, the Fifth Circuit Court of Appeals upheld compliance with NEPA and the Clean Water Act by the U. S. Army Corps of Engineers when it granted a permit to construct the Bayou Bridge Pipeline in Louisiana.  (5th Cir.)

Litigation Weekly June 29

• AWHC v Zinke

New case – involving a decision by the BLM, based on an EA, to eliminate wild horses from eight of nine horse management areas on public lands in the vicinity of Caliente, Nevada. (D. D.C.)

• Voyageur v USA

New case – involving a determination by the BLM that it was obligated to renew or reinstate two leases for a copper-nickel sulfide ore mine in the Boundary Waters Canoe Area Wilderness on the Superior National Forest.  (D. D.C.)  (Additional information was provided here.)

Litigation Weekly July 6

• Wonder Ranch v. USA

The court of appeals determined that the Forest Service had established a prescriptive easement over an adjacent ranch for the Indian Creek Trail, which provides public access to the Lee Metcalf Wilderness on the Beaverhead-Deerlodge National Forest.  (9th Cir.)

• BRR Snowmobile v. USFS

The court upheld restrictions on motorized use in Wilderness Study Areas in the Bitterroot National Forest Travel Plan, but remanded the bicycle portion of the plan for the Forest Service to provide an opportunity for administrative objections to closures of trails to bicycle use.  (D. Mont.)  (Also see this article.)

• Bailey v. USA

(Update.)  The appellate court remanded a case involving Federal Lands Recreation and Enhancement Act fees to the district court to determine what type of fee the plaintiff (a recreational boat user) paid, in order to determine the Forest Service obligations for the site on the Daniel Boone National Forest.  (6th Cir.)

Litigation Weekly June 22

• San Juan Cit Alliance v. BLM

The Forest Service and BLM violated NEPA when they issued leases for 13 parcels of land on the Santa Fe National Forest and failed to adequately consider their effects on greenhouse gas emissions and the effects of water use (D.N.M.)

• 2 Bar Ranch Limited Partnership v. USFS

(New case.)  The ranch challenges a 20% suspension of season of use under its grazing permit on the Beaverhead-Deerlodge National Forest.  (The complaint exceeded the size limits for this site.  Oddly, I noted that the final appeal decision letter by the Forest Service reviewing officer stated “Your requested relief will be granted.”)  (D. Mont.)

• CC v. USFS (Lassen 15 Restoration Project)

(New case.)  Conservation Congress challenges the adjacent Lassen 15 and Joseph Creek projects on the Modoc National Forest.  (E.D. Cal.)

• ToNizhoni Ani v DOI

(New case.)  Environmental plaintiffs challenged a decision by the Office of Surface Mining Reclamation and Enforcement to allow the Kayenta Coal Mine to continue until 2020 on Navajo Nation Lands in northeastern Arizona.  (D. Ariz.)

• Waterkeeper v Pruitt

(New case.)  Nine environmental groups are challenging the EPA and Corps of Engineers interpretation of the Clean Water Act requirements for identifying “waters of the United States” in their decisions to adopt regulations in 2015 and 2018.  (N.D. Cal.)

• W. Org. of Res. Councils v. Zinke

(Viewing the opinion requires a Lexis account.)  The circuit court held that the BLM did not have to supplement its programmatic environmental impact statement for the Federal Coal Management Program based on new climate change information because the Program was a completed federal action (however, they could challenge the sufficiency of the PEIS through challenges to specific leases and projects).  (D. C. Cir.)

Blogger’s bonus

Recreation businesses sue Trump administration over mining near Boundary Waters Canoe Area I

“In 2016, then-chief of the U.S. Forest Service Thomas Tidwell wrote to the Bureau of Land Management, warning of “the inherent potential risk that development of a regionally-untested copper-nickel sulfide ore mine within the same watershed as the BWCAW might cause serious and irreparable harm to this unique, iconic, and irreplaceable wilderness area.””

“President Donald Trump endorsed mining in Superior National Forest in a visit to northern Minnesota on Wednesday, saying his administration is taking steps to roll back an Obama administration policy to protect hundreds of thousands of acres in the national forest from mining and other industry.”

“The lawsuit by the business owners against the U.S. Department of the Interior — filed the day after Trump’s visit — illustrates the increasingly well-organized opposition to the proposed Twin Metals project. Environmental groups are incensed that the proposal would mean ore processing less than a half mile from Birch Lake, which feeds directly into the Boundary Waters.”

USFS prevails in Lostine Corridor lawsuit

At least in the proceedings before the magistrate judge, who makes recommendations to the district court.  This project is on the Wallowa-Whitman National Forest.

“The ruling stated the USFS followed federal law in the development of the Lostine River project designed to reduce the number of standing dead trees and forest density along the narrow corridor, improves egress and safety for visitors and firefighters, and provides a safe landing spot for helicopters employed for firefighting and search and rescue.”

Litigation Weekly June 1

• Conservation Congress v USFS

The court upheld the Lava Hazardous Fuel Reduction Project on the Modoc National Forest involving northern spotted owls and gray wolves.  (E.D. Cal.)  (See additional discussion below.)

• Wild Watersheds v Hurlocker

(New case.)  This case involves the Hyde Park Wildland Urban Interface Thinning and Prescribed Fire Project on the Santa Fe National Forest, which applied a Healthy Forest Restoration Act categorical exclusion to 1,840 acres, most of which is allegedly found in inventoried roadless areas.  (D. N.M.)  (See also this article – with a lot of comments.)

• NRDC v DOI

(New case.)  At issue is a 2017 legal opinion issued by the Department of Interior that reversed its longstanding interpretation of the Migratory Bird Treaty Act so that it no longer applies to incidental killing of migratory birds by activities like oil spills and wind farms.  (S.D. N.Y.)

Blogger’s notes on Conservation Congress:

Although the Fish and Wildlife Service had found that the wolf “may be present” in the relevant counties, the nearest pack was 20-30 miles away, and the only other wolves that had been in California were last located in Oregon, with no reason to think they would be drawn to the project area over other areas (since wolves are a habitat generalist). What was interesting to me about the wolf issue was that once the court agreed that there was “no effect” on wolves, that also meant that plaintiffs could not be harmed, and therefore, “Plaintiff has failed to establish standing here because even assuming Plaintiff can establish that its members have an interest in the gray wolf, any injury to that interest is conjectural.”

For spotted owls, the court found: “The FWS appropriately analyzed critical habitat and observed that: (1) no nesting/roosting or foraging habitat would be directly affected by the Project; (2) while foraging and dispersal habitat would be indirectly affected, those effects would be insignificant; and (3) dispersal habitat would be directly affected by the removal of six acres and the degradation of 33 acres of habitat, but that too, in the larger context of the subunit, was also insignificant.”

The court used the word “insignificant” here, but the FWS actually said Project activities within the NSO activity centers would have “[s]ignificant negative effects to northern spotted owls potentially occupying” those activity centers by altering their ability “to breed, feed, and shelter within the action area” (emphasis added). The Court added that, “The BiOp, however, recognized the forest-health benefits of the Project and concluded that “[a]lthough there will be short and long term negative effects to northern spotted owl habitat, the proposed action will help sustain northern spotted owl habitat over the long term.”

The definition of “effects” in the CEQ NEPA regulations requires that the beneficial and detrimental effects be considered separately, “even if on balance the agency believes the effect will be beneficial.” However, the court held that there were no significant impacts that would have triggered an EIS. In doing so it also said there was no scientific controversy, even though there was, according to the Forest Service (and as suggested above), “a difference of professional opinion on the amount of effect” between it and the FWS.

Litigation Weekly May 18

• WildlandsDefense v Seesholtz

(Update.)  Plaintiffs asked for an injunction pending an appeal to the Ninth Circuit of the district court’s denial of a preliminary injunction against the North and South Pioneer Project on the Boise National Forest.  (D. Or.)

• NEC v Marten

(New case.)  Environmental plaintiffs challenge the North Hebgen Project, up to 5,670 acres of commercial and non-commercial logging, on the Custer-Gallatin National Forest.   They also challenge a 2015 amendment to the forest plan, Amendment 51, which they say removed or modified 56 goals and standards in the Gallatin Forest Plan.  (D. Mont.)

• Gelburd v Christiansen

(New case.) A doctor seeking to treat a tree-sitter protesting the Mountain Valley Pipeline Project has sued the George Washington and Jefferson National Forest for a closure order that allegedly violates his Constitutional rights to provide medical treatment (freedom of speech, freedom to exercise religion and due process). (W.D. Va.)

• SoutheastAlaskaConservationCouncil v Stewart

(New case.) Plaintiff environmental groups seek a supplemental EIS for the Kulu Timber Sale on the Tongass National Forest.  (D. Alaska)

• WildEarth Guardians v BLM

(New case.)  Environmental groups and landowners challenge 287 oil and gas leases of close to 150,000 acres in previously undeveloped parts of Montana that were based on four EAs.  (D. Mont.)

Litigation Weekly May 11

• Wildlands Defense v Seesholtz

Following its earlier denial of a TRO, the district court also denied a preliminary injunction for the North and South Pioneer salvage logging projects on the Boise National Forest. (D. Idaho) (See below also.)

• AWR NOI

(Notice of intent to sue under ESA.)  Plaintiffs claim failure by the Forest Service to include wolverines in their biological assessment, as required by ESA if they are present in the project area, for the North Hebgen Project on the Gallatin National Forest.

Blogger’s note:

The Boise case included a “Cottonwood” style claim that the project could not proceed until completion of the forest plan level consultation that is presently occurring on bull trout critical habitat.  The court held that that was not necessary in this case because project level consultation had concluded that the projects were not likely to adversely affect bull trout critical habitat, and the Fish and Wildlife Service did not base its conclusion on the forest plan.  Therefore these projects could not violate ESA §7(d)’s prohibition against going ahead with actions that had the potential to adversely modify critical habitat.

Litigation Weekly May 4

• Granat v USDA

In a 2-page opinion, the circuit court upheld the decision by the Plumas National Forest to designate only 234 of 1107 miles of user-created routes as open for motorized travel, including the process of cooperating and coordinating with the local counties who wanted more.  (9th Cir.)

• Chancey et al. v. Christiansen MountainValleyPipelineAccessRights

(New case.)  Plaintiffs claim that closure of a road to a site where a protesters are obstructing tree clearing for a pipeline across Washington and Jefferson National Forest lands is a violation of their First Amendment rights of free speech and assembly.  (W.D. Va.)

• MontanaWildlifeFederation et al. v. Zinke
• WesternWatershedsProject et al._v_Zinke

(New cases.)  Both cases claim violations of the 2015 Sage-Grouse Amendments to BLM land management plans in Montana and Idaho in relation to specific oil and gas lease sales and other policy changes.  (D. Mont, and D. Idaho)